Federal Register / Vol. 79, No. 3 / Monday, January 6, 2014 / Rules and Regulations 551 

(iii) GE T700 Turboshaft Engine Service 

Bulletin T700 S/B 72–0041, Revision 1, dated 

March 12, 2010. 

(3) For GE service information identified in 

this AD, contact Sikorsky Aircraft 

Corporation, Attn: Manager, Commercial 

Technical Support, mailstop s581a, 6900 

Main Street, Stratford, CT, telephone (800) 

562–4409, email address 

tsslibrary@sikorsky.com, or at http:// 

www.sikorsky.com. 

(4) You may view this service information 

at FAA, Office of the Regional Counsel, 

Southwest Region, 2601 Meacham Blvd., 

Room 663, Fort Worth, Texas 76137. For 

information on the availability of this 

material at the FAA, call (817) 222–5110. 

(5) You may view this service information 

that is incorporated by reference at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

(202) 741–6030, or go to: http:// 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued in Fort Worth, Texas, on December 

24, 2013. 

Kim Smith, 

Directorate Manager, Rotorcraft Directorate, 

Aircraft Certification Service. 

[FR Doc. 2013–31525 Filed 1–3–14; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0593; FRL–9905–07– 

Region–6] 

Approval and Promulgation of 

Implementation Plans; Texas; Control 

of Air Pollution by Permits for New 

Construction or Modification; Permits 

for Specific Designated Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Withdrawal of direct final rule. 

SUMMARY: On November 21, 2013, the 

Environmental Protection Agency (EPA) 

published a direct final rule approving 

portions of two revisions to the Texas 

State Implementation Plan (SIP) 

concerning the Permits for Specific 

Designated Facilities Program, also 

referred to as the FutureGen Program. 

The direct final action was published 

without prior proposal because EPA 

anticipated no adverse comments. EPA 

stated in the direct final rule that if we 

received relevant, adverse comments by 

December 23, 2013, EPA would publish 

a timely withdrawal in the Federal 

Register. EPA received a letter dated 

December 19, 2013, from the Texas 

Commission on Environmental Quality 

stating that the March 9, 2006, and July 

2, 2010, SIP revisions specific to the 

FutureGen program have been 

withdrawn from our consideration as 

revisions to the Texas SIP. Accordingly, 

EPA is withdrawing our direct final 

approval and in a separate rulemaking 

in today’s Federal Register we are also 

withdrawing the corresponding 

proposed approval. We find that no 

further action is necessary on the Texas 

FutureGen Program March 9, 2006 and 

July 2, 2010 SIP revisions. The State’s 

action also withdraws from EPA’s 

review the FutureGen Program 

component of the January 22, 2010 

Consent Decree between EPA and the 

BCCA Appeal Group, Texas Association 

of Business, and Texas Oil and Gas 

Association. This withdrawal is being 

taken under section 110 and parts C and 

D of the Federal Clean Air Act. 

DATES: The direct final rule published 

on November 21, 2013 (78 FR 69773), is 

withdrawn effective January 6, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Adina Wiley (6PD–R), Air Permits 

Section, Environmental Protection 

Agency, Region 6, 1445 Ross Avenue 

(6PD–R), Suite 1200, Dallas, TX 75202– 

2733. The telephone number is (214) 

665–2115. Ms. Wiley can also be 

reached via electronic mail at 

wiley.adina@epa.gov. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: December 20, 2013. 

Samuel Coleman, 

Acting Regional Administrator, Region 6. 

Accordingly, the amendments to 40 

CFR 52.2270 published in the Federal 

Register on November 21, 2013 (78 FR 

69773), which were to become effective 

on January 21, 2014, are withdrawn. 

[FR Doc. 2013–31437 Filed 1–3–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0612; FRL–9904–03– 

Region–6] 

Approval and Promulgation of 

Implementation Plans; Texas; Public 

Participation for Air Quality Permit 

Applications 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving revisions to 

the Texas State Implementation Plan 

(SIP) that establish the public 

participation requirements for air 

quality permits. EPA finds that these 

revisions to the Texas SIP comply with 

the Federal Clean Air Act (the Act or 

CAA) and EPA regulations and are 

consistent with EPA policies. Texas 

submitted the public participation 

provisions in four separate revisions to 

the SIP on July 22, 1998; October 25, 

1999; July 2, 2010; and March 11, 2011. 

EPA is finalizing this action under 

section 110 and parts C and D of the 

Clean Air Act (the Act). 

DATES: This final rule will be effective 

on February 5, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2010–0612. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information the disclosure of 

which is restricted by statute. Certain 

other material, such as copyrighted 

material, will be publicly available only 

in hard copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. While all documents in the 

docket are listed in the index, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material), and some may 

not be publicly available at either 

location (e.g., CBI). To inspect the hard 

copy materials, please schedule an 

appointment with the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Adina Wiley, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

214–665–2115; fax number 214–665– 

6762; email address wiley.adina@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. Background for this Final Action 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 


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I. Background for this Final Action 

On December 13, 2012, EPA proposed 

approval of the July 22, 1998; October 

25, 1999; July 2, 2010; and March 11, 

2011, revisions to the Texas SIP that 

establish the public participation 

requirements for air quality permits. See 

77 FR 74129. In this proposed action we 

explained that the Clean Air Act at 

section 110(a)(2)(C) requires states to 

develop and implement permitting 

programs for attainment and 

nonattainment areas that cover both 

construction and modification of 

stationary sources. EPA codified 

minimum requirements for these State 

permitting programs including public 

participation and notification 

requirements at 40 CFR 51.160–51.164. 

There are additional detailed public 

participation requirements in 40 CFR 

51.166(q) for the Prevention of 

Significant Deterioration (PSD) major 

permitting program. 

Our December 13, 2012, proposed 

approval and the accompanying 

Technical Support Document provided 

the history of the Texas Public 

Participation provisions in the Texas 

SIP and a summary of each of the 

submitted revisions to the Texas SIP. 

The proposal identifies the specific 

sections that were proposed for 

approval from the July 22, 1998; October 

25, 1999; July 2, 2010; and March 11, 

2011 SIP submittals. Note that while we 

are acting on revisions to the Texas SIP 

that were submitted in four separate 

packages, we collectively refer to these 

rules as the Texas Public Participation 

SIP submittal from July 2, 2010 since 

the majority of the revisions were 

submitted on that date. 

II. Response to Comments 

EPA accepted comments on our 

proposed approval of the Texas public 

participation SIP revisions for 60 days, 

through February 11, 2013. We received 

comments from 7 organizations—the 

Texas Commission on Environmental 

Quality (TCEQ), the Gulf Coast Lignite 

Coalition (GCLC), the Association of 

Electric Companies of Texas (AECT), the 

Texas Industry Project (TIP), the BCCA 

Appeal Group (BCCAAG), Luminant, 

and the University of Texas Law Clinic 

on behalf of Air Alliance Houston, 

Citizens for Environmental Justice, 

Texas Environmental Justice Advocacy 

Services, Public Citizen and 

Environmental Integrity Project. All 

comment letters can be found in their 

entirety in the docket for this 

rulemaking. The following section 

summarizes the comments received and 

provides responses to each. Note that 

comments are grouped together into 

categories to assist the reader. 

General Comments in Support of the 

Proposed Approval 

Comment 1: AECT stated that EPA’s 

December 13, 2012, proposed approval 

of the Texas Public Participation Rules 

as revisions to the Texas SIP were 

adequately supported. As a result, the 

AECT requested that EPA issue final 

approval of the Texas Public 

Participation submittals as revisions to 

the Texas SIP. 

Response 1: EPA appreciates the 

support for our proposed approval. No 

changes were made to the final rule as 

a result of this comment. 

Comment 2: GCLC and Luminant 

support EPA’s December 13, 2012, 

proposed approval of the Texas Public 

Participation rules as revisions to the 

Texas SIP. The GCLC states that the 

submitted public participation 

requirements are fully protective of 

Texans’ ability to thoroughly and 

adequately comment on air permit 

applications in the state and meet and 

exceed federal public participation 

requirements. Luminant states that the 

TCEQ has a robust regulatory program 

to ensure the protection of human 

health and the environment in Texas, 

including opportunity for public 

participation regarding issues before the 

Commission. 

Response 2: EPA appreciates the 

support for our proposed approval. Our 

December 13, 2012, proposal and the 

accompanying Technical Support 

Document identified the manner in 

which the submitted rules satisfy all 

necessary requirements for public 

participation under the CAA and EPA’s 

regulations. No changes were made to 

the final rule as a result of these 

comments. 

Comment 3: GCLC believes that 

existing public participation 

requirements and previous SIP 

submittals were more than adequate to 

comply with the CAA, particularly with 

regard to Texas’ contested-case hearing 

process which is far more than required 

by federal law. 

Response 3: EPA appreciates GCLC 

taking the opportunity to comment on 

our December 13, 2012, proposed 

approval of the Texas Public 

Participation rules. However, we 

disagree with the commenter’s 

statement that the previous public 

participation requirements were 

adequate under federal law. EPA 

believes the previous public 

participation requirements were 

inadequate to implement the 

requirements of the CAA and EPA’s 

regulations, thus we proposed limited 

approval/limited disapproval on 

November 26, 2008. See 73 FR 72003. 

EPA withdrew our proposed limited 

approval/limited disapproval on 

November 5, 2010, only after the TCEQ 

had adopted and submitted revised 

public participation rules that replaced 

the previous SIP submissions and 

addressed our concerns identified in the 

proposed limited approval/limited 

disapproval. See 75 FR 68291. TCEQ’s 

own comment letter acknowledges that 

the ‘‘new and amended rules submitted 

to EPA in July 2010 were adopted in 

response to EPA’s notice proposing 

limited approval and limited 

disapproval of TCEQ’s outstanding SIP 

revisions regarding public 

participation.’’ See February 11, 2013 

letter from TCEQ to EPA in the docket 

for this rulemaking. 

Regardless, our December 13, 2012, 

proposed action evaluated the revised 

public participation rules submitted as 

revisions to the Texas SIP on July 2, 

2010, by the TCEQ and found the 

submitted rules to be adequate under 

federal law as described in our proposal 

and accompanying TSD. We note that 

contested case hearings were not 

submitted for EPA’s review and 

therefore the contested case hearing 

process is outside the scope of this final 

rule action. 

Comment 4: The BCCAAG and TIP 

supports EPA’s December 13, 2012, 

proposed approvals of each applicable 

Texas regulation in EPA’s proposed 

notice at 77 FR 74129. The BCCAAG 

and TIP state that these regulations 

comply with the FCAA and are an 

important part of the Texas air quality 

permitting program. 

Response 4: EPA appreciates the 

support for our proposed approval. No 

changes were made to the final rule as 

a result of this comment. 

Comment 5: The TCEQ commented 

that the new and amended rules 

submitted to EPA in July 2010 were 

adopted in response to EPA’s proposed 

limited approval and limited 

disapproval. The TCEQ recognizes that 

EPA has reviewed and proposed 

approval of most of the rules submitted 

in 2010, as well as in earlier submittals, 

stating that all outstanding issues were 

adequately addressed. 

Response 5: EPA appreciates the 

support of the TCEQ for our proposed 

rulemaking. We note that the TCEQ’s 

cooperation and willingness to 

collaborate with the Region 6 office has 

enabled us to propose full approval of 

the revised public participation rules, as 

submitted July 2, 2010. No changes were 

made to the final rule as a result of this 

comment. 


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Comment 6: The TCEQ supports 

EPA’s determination that TCEQ meets, 

and in some cases exceeds, the 

minimum federal requirements and 

therefore has proposed full approval of 

public participation rules submitted in 

1998, 1999, 2010 and 2011. The TCEQ 

noted that the EPA correctly observes 

that the Notice of Receipt of Application 

and Intent to Obtain Permit (NORI) is a 

unique element to the Texas permit 

program that is not federally required. 

TCEQ also commented that it is 

important to acknowledge that TCEQ’s 

comment period exceeds federal 

requirements. Comments are considered 

timely if filed any time after the NORI 

is published and through the end of the 

comment period. This timeline 

encompasses the administrative 

completeness determination, the NORI 

publication period, the technical review 

period, as well as the comment period 

associated with the Notice of 

Application and Preliminary Decision 

(NAPD), which may be more than 30 

days if alternate language publication is 

required and that publication is after the 

English language publication. Therefore, 

the state comment period greatly 

exceeds the federal requirement in 

length of time, thus affording greater 

opportunity for public participation. 

Response 6: EPA appreciates the 

support for our proposed approval. As 

detailed in our proposal and 

accompanying TSD, EPA finds that the 

public participation provisions as 

submitted in four separate revisions to 

the SIP satisfy the minimum federal 

requirements for public participation 

consistent with the CAA and EPA 

regulations. We agree with the TCEQ 

that our analysis has identified some 

provisions of the Texas public 

participation process that go beyond the 

minimum requirements—such as the 

requirement to publish notice of the 

application (first notice, or NORI) or to 

require sign-posting. No changes were 

made to the final rule as a result of this 

comment. 

Comment 7: The TCEQ notes that EPA 

correctly observes that the comment 

period runs for 30 days after last 

publication of the NAPD, and, by 

proposing approval of these rules, 

acknowledges that the TCEQ’s comment 

period for minor and major NSR permit 

applications that are subject to the 

requirements of Chapters 39, 55, and 

116 meets the minimum federal 

requirements for a 30 day period after 

the draft permit is made available for 

review. 

Response 7: EPA appreciates the 

support for our proposed approval. We 

agree with the TCEQ that the comment 

requirement for the comment period to 

run 30 days after last publication of the 

NAPD meets the minimum federal 

requirements for a 30-day comment 

period after the draft permit is available 

for review. No changes were made to the 

final rule as a result of this comment. 

Comment 8: UT Law Clinic 

commented that the proposed rules do 

correct some clear legal shortcomings in 

Texas’ public participation 

requirements for the Major permitting 

programs, the Nonattainment New 

Source Review (NNSR) and Prevention 

of Significant Deterioration (PSD) 

applications. 

Response 8: EPA appreciates the 

support. No revisions were made to the 

final rule as a result of this comment. 

Comments Regarding Severability 

Comment 9: EPA received several 

comments on our approach of taking no 

action for the public participation 

provisions at 30 TAC 116.111(a)(2)(K) 

and 30 TAC 116.116(b)(3), relating to 

HAPs permitting under CAA 112(g) and 

40 CFR Part 63. The BCCAAG and TIP 

concur with EPA’s analysis that 30 TAC 

116.116(b)(3) should not be part of the 

Texas SIP. The TCEQ understands that 

EPA is taking no action on the October 

25, 1999 submittal of 30 TAC 

116.111(a)(2)(K) and 116.116(b)(3). The 

TCEQ further notes that EPA returned 

30 TAC 116.111(a)(2)(K) and 

116.116(b)(3) by letter on June 29, 2011. 

Response 9: EPA agrees with TCEQ’s 

assessment of the scope of this approval 

action. No changes were made to the 

final rule as a result of this comment. 

Comment 10: EPA received several 

comments on our decision to take no 

action on the public participation 

provisions for new flexible permits and 

flexible permit amendments at 30 TAC 

39.402(a)(4) and (a)(5). The TCEQ 

recognizes that the EPA is taking no 

action on the public participation rules 

for new flexible permits and flexible 

permit amendment applications 

(adopted June 2, 2010). The BCCAAG 

and TIP request that EPA approve 30 

TAC 39.402(a)(4) and (5) rather than 

take no action, as proposed. The 

BCCAAG and TIP identified the 

following reasons EPA should act on the 

public participation provisions for 

Flexible Permits: 

1. EPA has a statutory obligation to 

act on these SIP submittals for public 

participation for flexible permits. 

2. EPA’s prior disapproval of the 

Flexible Permit program does not 

provide a basis to delay action on the 

submitted sections. 

3. Analysis of the 402(a)(4) and (a)(5) 

provisions does not reveal any concerns 

since the provisions require Flexible 

Permit holders to follow procedures that 

EPA is otherwise proposing to approve. 

Response 10: EPA agrees that we have 

a statutory obligation to act on the SIP 

submittal for public participation for 

flexible permits; however we have 

chosen to sever the flexible permit 

public participation provisions per our 

SIP approval authority and discretion 

under the CAA and address those public 

participation provisions in the future 

with the flexible permit program as a 

whole in a separate SIP action. This 

approach will prevent any 

misunderstanding among the regulated 

community that would arise if a public 

participation pathway was approved for 

a permitting program that is not 

currently approved into the Texas SIP. 

Additionally, EPA has not finished its 

review of the flexible permitting 

program and how its public 

participation process is intertwined. 

Further, there is nothing in the Act that 

prohibits the bifurcation of our action. 

Finally, this approach was anticipated 

and supported by the TCEQ as 

explained in the final Texas Register. 

See 35 TexReg 5223, June 18, 2010. No 

revisions were made to this final rule as 

a result of this comment. 

Comment 11: EPA received several 

comments on our decision to take no 

action on the public participation 

provisions for portable facilities at 30 

TAC 39.402(a)(12). The TCEQ 

recognizes that EPA is taking no action 

on the public participation rules for 

portable facilities (adopted February 10, 

2010) because these provisions are 

associated with rules for permitting 

programs which have not yet been 

reviewed by EPA. The BCCAAG and TIP 

request that EPA approve 30 TAC 

39.402(a)(12) and 30 TAC 116.20 and 30 

TAC 116.178 as submitted March 19, 

2010. The BCCAAG and TIP note that 

EPA has a statutory obligation to act on 

the portable facility rules and public 

participation requirements. 

Response 11: EPA has a statutory 

obligation to act on the SIP submittal for 

public participation for portable 

facilities; however we have chosen to 

sever the portable facility public 

participation provisions per our SIP 

approval authority and discretion under 

the CAA. As explained in our December 

13, 2012, proposal, EPA has not 

evaluated the public participation 

provisions for portable facilities at 30 

TAC 39.402(a)(12) for inclusion in the 

Texas SIP because we have not yet acted 

on the underlying definitions and 

permitting rules for portable facilities at 

30 TAC 116.20 and 116.178, 

respectively. EPA will address the 

definitions and permitting provisions 

for the Relocations and Changes of 


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554 Federal Register / Vol. 79, No. 3 / Monday, January 6, 2014 / Rules and Regulations 

1 ‘‘Petition for EPA Action Addressing Texas’ Air 

Permitting Program Deficiencies, Environmental 

Integrity Project (August 28, 2008); and First 

Supplement to Petition for EPA Action Addressing 

Texas’ Air Permitting Program Deficiencies, 

Environmental Integrity Project (January 5, 2009).’’ 

Location of Portable Facilities at a 

separate time and in a separate action. 

We will address the public participation 

requirements for portable facilities at 

that time. This approach will prevent 

any misunderstanding among the 

regulated community that would arise if 

a public participation pathway was 

approved for a permitting program that 

is not currently approved into the Texas 

SIP. Additionally, EPA has not finished 

its review of the portable facility rules 

and how the public participation 

process for portable facilities is 

intertwined. Further, there is nothing in 

the Act that prohibits the bifurcation of 

our action. No revisions were made to 

this final rule as a result of this 

comment. 

Comment 12: TCEQ recognizes that 

EPA is taking no action on the public 

participation rules for FutureGen 

(adopted February 22, 2006), which is 

associated with rulemakings for 

permitting programs which have not yet 

been reviewed by EPA. 

Response 12: EPA has a statutory 

obligation to act on the SIP submittal for 

public participation for FutureGen 

applications; however we have chosen 

to sever the FutureGen public 

participation provisions per our SIP 

approval authority and discretion under 

the CAA. As explained in our December 

13, 2012, proposal, EPA had not 

evaluated the public participation 

provisions for applications for permits, 

registrations, licenses, or other type of 

authorization required to construct, 

operate, or authorize a component of the 

FutureGen project at 30 TAC 

39.402(a)(10) for inclusion in the Texas 

SIP because we had not yet acted on the 

underlying definitions and permitting 

rules for the FutureGen project at 30 

TAC Chapter 91. Since the time of our 

proposal on public participation, EPA 

has separately completed our review of 

the FutureGen program, including the 

public participation requirements. EPA 

signed a direct final approval of the 

FutureGen program rules on November 

1, 2013. Information regarding this 

separate rulemaking can be found in the 

FutureGen docket, EPA–R06–OAR– 

2006–0593. No revisions were made to 

this final rule as a result of this 

comment. 

Comment 13: TCEQ agrees with EPA’s 

decision to take no action on 30 TAC 

39.405(h)(1)(B). EPA inadvertently 

included this provision in the proposed 

SIP analysis because TCEQ did not 

include this rule as part of its submittal. 

Response 13: EPA appreciates the 

comment. We agree with the TCEQ that 

we erred in our proposal when we 

identified 30 TAC 39.405(h)(1)(B) as 

submitted as a SIP revision on July 2, 

2010. Today’s final action corrects this 

error. 

Comment 14: UT Law Clinic 

commented that to the extent EPA finds 

other provisions of the Texas submittal 

separable, EPA should require Texas to 

commit to correcting the additional 

deficiencies identified in order to obtain 

a conditional approval of those 

provisions. 

Response 14: Our proposed 

rulemaking identified the reasons for 

severing and taking no action on the 

portions of the submittal relevant to 

public participation for Flexible 

Permits, FutureGen permitting, and 

Portable Facilities. EPA has not yet 

evaluated these programs; therefore, 

there are no identified deficiencies in 

the programs to be corrected. However, 

in this action, we are finalizing our 

proposed approval of the Texas public 

participation program. As explained in 

this response to comments, for those 

portions of the July 2, 2010, SIP 

submittal for public participation we are 

taking action on, we do not find any 

deficiencies in Texas’s public 

participation program as it is currently 

submitted to EPA for review. So, further 

severing of provisions from this action 

in order to resolve deficiencies is 

unnecessary. No revisions have been 

made to the final rule as a result of this 

comment. 

Comments Regarding Environmental 

Justice 

Comment 15: UT Law clinic 

commented that EPA has a mandate to 

provide members of Environmental 

Justice communities with the 

‘‘opportunity to participate in decisions 

about activities that may affect their 

environment and/or health’’. 

Response 15: EPA aims to provide 

meaningful involvement in the 

decision-making process to all people, 

regardless of race, color, national origin, 

or income. Our December 13, 2012, 

proposal and today’s final action have 

been closely analyzed to ensure federal 

requirements have been satisfied for 

public participation under the CAA and 

EPA’s regulations. For more discussion 

on how our proposal and final action on 

the Texas public participation rules 

meet or satisfy minimum federal 

requirements please see comment and 

response 22. EPA believes it is 

important to recognize and work with 

Environmental Justice communities to 

assure their full participation in 

permitting activities; however, we note 

that there are no specific statutes or 

regulations giving EPA authority to 

require a state’s SIP to address public 

participation opportunities for 

Environmental Justice communities. 

Rather, EPA is subject to Executive 

Order 12898: Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations. (59 FR 7629, February 16, 

1994). Through our compliance with EO 

12898 we work to identify minority 

communities and low-income 

communities that may be 

disproportionately impacted by a 

specific rulemaking. EPA endeavors in 

every rulemaking to ensure each 

member of the public has an equal 

opportunity for public participation. 

The public participation provisions are 

designed to apply consistently statewide 

and provide every member of the public 

the opportunity to review and submit 

comments on a proposed permit 

application. These public participation 

provisions meet the federal 

requirements for public participation. 

The TCEQ also requires additional 

notice and opportunity through the 

NORI publication. Further, the sign 

postings and alternate language 

publication provisions of the Texas 

rules are specifically targeted to 

ensuring environmental justice 

communities receive fair notice and 

opportunity to comment. No changes 

were made to our final rule as a result 

of this comment. 

Comment 16: UT Law Clinic also 

commented that the approval of the 

proposed public participation rules 

would exacerbate public participation 

inadequacies that Texas communities 

have complained about for years. 

Response 16: The commenter did not 

provide specific examples of the ‘‘public 

participation inadequacies that Texas 

communities have complained about for 

years’’; however, the comment letter 

discusses a variety of specific issues 

throughout and had attached several 

petitions that environmental groups 

have previously submitted to EPA under 

the Administrative Procedures Act.1

These petitions discuss various issues 

regarding Texas’s air permitting 

program, including some of the specific 

issues that are also noted in the 

comment letter. Where the UT Law 

Clinic submitted specific issues, we 

have addressed those comments below 

with respect to our proposed approval 

of the July 2, 2010 public participation 

submittal. We note that, insofar as 

where Texas’s public participation 

program as submitted meets the public 

participation requirements in Title I of 

the CAA and the applicable federal 


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2Public notice for permit amendments at the 

discretion of the TCEQ Executive Director is only 

applicable to minor permit amendments. 30 TAC 

116.131(a) requires that ‘‘for any permit subject to 

the FCAA, Title I, Part C or D, or to Title 40 Code 

of Federal Regulations (CFR), Part 51.165(b), the 

executive director shall state a preliminary 

determination to issue or deny the permit and 

require the applicant to conduct public notice of the 

proposed construction.’’ Therefore, a permit 

application for a new major source or major 

modification subject to PSD/NNSR permitting 

requirements is required to go through public 

notice. 

requirements, EPA must approve the 

submittals. EPA’s proposed limited 

approval limited disapproval noted 

several deficiencies in Texas’s prior 

public participation program. For 

reasons explained throughout this 

document, we find that the State’s 

revised July 2, 2010 submittal cures 

these deficiencies. No changes were 

made to our final rule as a result of this 

comment. 

Comments Regarding the Requirements 

of the Existing SIP-Approved Public 

Participation Rules 

Comment 17: UT Law Clinic 

commented that the EPA 

misrepresented the public participation 

requirements of the current Texas SIP. 

UT Law Clinic commented that EPA’s 

proposed approval states that the 

current SIP only requires public notice 

of amendments at the discretion of the 

TCEQ Executive Director. But, contrary 

to EPA’s assertions, the UT Law Clinic 

comments that the current Texas SIP 

requires public participation for all 

permit applications, including 

applications for any modifications. 

Response 17: EPA disagrees with the 

commenter’s interpretation of the 

current public participation 

requirements in the existing Texas SIP. 

The current SIP-approved requirements 

for public participation are found at 30 

TAC 116.130–116.137. The applicability 

of these requirements is found at 30 

TAC 116.130(a) as follows: ‘‘Any person 

who applies for a new permit or permit 

renewal shall be required to publish 

notice of the intent to construct a new 

facility or modify an existing facility or 

renew a permit. The notice shall be 

published in a newspaper in general 

circulation in the municipality where 

the facility is located or to be located. 

Any person who applies for a permit 

amendment shall provide public 

notification as required by the executive 

director’’ (emphasis added).2

The applicability statement at 30 TAC 

116.130(a) creates three categories of 

permit actions: (1) New permits, (2) 

permit renewals and (3) permit 

amendments. This subdivision of the 

types of permit actions is consistent 

with an analysis of the Texas SIP 

permitting provisions at 30 TAC 

Chapter 116, Subchapter B, Sections 

116.110 and 116.111. The Applicability 

of the Permit Application Requirements 

at 30 TAC 116.110(a) requires a 

construction permit for any new facility 

or modification of any existing facility. 

This construction permit will be issued 

under the General Application 

provisions at 30 TAC 116.111. Note that 

if the construction permit is for a new 

major stationary source or a major 

modification, then the General 

Applicability provisions at 30 TAC 

116.111 direct the applicant to the SIPapproved permitting provisions for PSD 

and NNSR. If the construction permit is 

for a minor NSR permit or a minor 

permit modification, the permit will be 

issued pursuant to the case-by-case 

minor permit provisions of 30 TAC 

116.116 or will satisfy the conditions of 

a Standard Permit or a Permit by Rule. 

The General Applicability provisions at 

30 TAC 116.110(b) further state that 

minor modifications to existing 

permitted facilities may be handled 

through the amendment of an existing 

permit. Thus the SIP-approved Texas 

permit program designates a permit 

amendment as one type of permitting 

action that can be used to authorize a 

modification to an existing facility. 

Other types of permitting actions that 

could be used for modifications at 

existing facilities would include 

standard permits, permits by rule, and 

permit alterations. 

EPA believes that the commenter 

misinterpreted the Texas permitting 

program such that a minor permit 

modification is a specific type of permit 

application that would have its own 

public notice requirements. As 

presented previously, minor 

modification of an existing source is 

accomplished through a permit 

amendment, standard permit, permit by 

rule, or permit alteration. Because the 

SIP approved permitting program 

recognizes new permits, permit renewal 

and permit amendments, EPA’s 

proposed approval is correct in its 

characterization of the SIP-approved 

public notice requirements for minor 

permit amendments. Pursuant to the 

SIP-approved language at 30 TAC 

116.130(a), minor permit amendments 

only go through public notice to the 

extent required by the TCEQ Executive 

Director. The July 2, 2010 public notice 

SIP submittal improves upon the public 

notice requirements for minor permit 

amendments. The new rules retain and 

refine the TCEQ’s Executive Director’s 

discretion provisions to apply to only 

two specific types of minor permit 

amendments—only those minor permit 

amendments that are below the ‘‘de 

minimis’’ and ‘‘insignificant’’ 

thresholds. No changes were made to 

the final rule as a result of this 

comment. 

Comment 18: UT Law Clinic 

commented that under the revised rules, 

public participation would be required 

only for modifications that meet the 

definition of ‘‘amendment’’ and that 

meet one of the criteria in 30 TAC 

39.402(a)(3)(B) or (a)(3)(C). This 

narrowing of the universe of 

modifications subject to public 

participation weakens the existing SIPapproved public participation 

requirements. 

Response 18: As discussed in 

Comment/Response 17, the commenter 

has misunderstood the current SIPapproved public notice and permitting 

provisions in the Texas Program for 

minor modifications. A minor 

modification of an existing facility is not 

a specific permit action that goes 

through public notice. Rather, when a 

facility will be modified (pursuant to 

the SIP-approved definition of 

modification at 30 TAC 116.10) and the 

modification is below the major NSR 

thresholds, the source owner or operator 

must apply for a permit amendment or 

permit alteration or for other applicable 

permit actions such as a standard permit 

or permit by rule to address the minor 

modification. 

Under the current SIP, any minor 

modification that is permitted as a 

permit amendment will only go to 

public notice at the discretion of the 

Executive Director. In contrast, the 

revised public participation rules 

submitted July 2, 2010, require minor 

NSR permit amendments to go through 

public notice if the emission rates 

exceed the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds. Further, the 

Executive Director has the discretion to 

require notice for any minor permit 

amendments that fall below the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

if the Executive Director determines 

these permit amendments to have a 

reasonable likelihood for significant 

public interest in a proposed activity, 

emissions to impact a nearby sensitive 

receptor, a high nuisance potential from 

the operation of the facilities, or the 

application involves a facility in the 

lowest classification under Texas Water 

Code, § 5.753 and § 5.754 and 30 TAC 

Chapter 60. In contrast to the SIPapproved Executive Director discretion 

for minor permit amendments, which 

essentially provides the Executive 

Director with the authority to exempt all 

minor permit amendments from public 

notice, the revised rules submitted July 


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2, 2010, that are being approved today 

only provide for the Executive Director 

to exercise discretion in requiring 

additional notice if the criteria 

presented above are satisfied. Therefore, 

the revised rules expand the public 

notice requirements to cover the 

majority of minor permit amendment 

applications. EPA views this expansion 

of public notice requirements for minor 

modifications to be an improvement of 

the SIP instead of the weakening 

purported by the commenter. No 

changes were made to the final rule as 

a result of this comment. 

Comment 19: UT Law Clinic 

commented that, although the current 

SIP does include provisions regarding 

alterations, it does not exempt 

modifications authorized by alterations 

from public participation requirements, 

including notice and the opportunity for 

public comment. The commenter also 

submitted several examples of 

alterations being used in permits. 

Response 19: Minor modifications to 

an existing facility are not a specific 

type of permit action under the SIPapproved Texas permit program. Rather, 

when a facility chooses to make a minor 

modification at an existing major or 

minor facility, the source owner or 

operator will choose to get 

authorizations for that minor 

modification through a permit 

amendment, permit alteration, standard 

permit or permit by rule. Therefore, the 

commenter is incorrect when stating 

that the current SIP requires public 

participation for minor modifications 

authorized by alterations. The existing 

SIP requirements for permit alterations, 

which are outside the scope of today’s 

rulemaking, exempt permit alterations 

from public notice as explained at 67 FR 

58697, September 18, 2002. 

Comments Regarding the Proposed 

Rules Weaken the Existing SIPApproved Public Participation 

Requirements 

Comment 20: UT Law Clinic 

commented that EPA proposes to 

approve rules that weaken existing 

public participation requirements and 

that create new loopholes that eliminate 

all public participation for many minor 

new source review applications, 

including those at major sources in 

nonattainment areas. 

Response 20: EPA disagrees with the 

commenter. As our proposal explained, 

the revised public participation rules 

submitted on July 2, 2010, either 

improve upon the existing SIP-approved 

public participation requirements or 

maintain the status quo for all types of 

permit applications subject to the 

Chapter 39 public participation 

requirements. 

• For permit applications for major 

new sources and major modifications 

subject to PSD or NNSR permit 

requirements the revised rules represent 

no substantive change in the existing 

SIP-approved requirements. Permit 

applications for new major sources or 

major modifications subject to PSD and 

NNSR permit requirements must go 

through NORI and NAPD notice. 

• Public notice requirements for PAL 

permit applications are not explicitly 

provided for in the current SIPapproved public notice requirements. 

However, as discussed in the proposal 

and TSD, the public notice requirements 

for PAL permit applications are 

consistent with federal requirements 

and require NAPD notice. 

• Public notice requirements for 

renewal permit applications are 

consistent with the current SIPapproved requirements. As noted in the 

proposal, there is no federal 

requirement for a Title I permit renewal, 

therefore EPA views any renewal permit 

and the subsequent public notice to 

enhance Texas’s SIP-approved permit 

renewals program. 

• TCEQ’s revised regulations for 

public participation increase 

opportunities for public involvement in 

Minor NSR permitting decisions 

compared to the current SIP-approved 

requirements. For permit applications 

for new minor sources the revised July 

2, 2010, public notice rules maintain the 

status quo and require NORI and NAPD 

notice. However, as explained in 

Comment/Response 17 the current SIPapproved public notice requirements for 

minor permit amendment applications 

is at the discretion of the Executive 

Director. This means that under the 

current SIP, many minor permit 

amendment applications may receive no 

notice at all. In response to our 

proposed limited approval/limited 

disapproval, the July 2, 2010, public 

participation SIP submittal expanded 

the publication of the NAPD to cover 

Minor NSR permit applications and 

specified Minor NSR permit amendment 

applications. The new rules also require 

permit amendment applications to go 

through NORI and NAPD if the 

amendment is for a change in the 

character of emissions or the release of 

an air contaminant not previously 

authorized. Further, the revised rules 

require NORI and NAPD public notice 

for all new minor sources and all permit 

amendments above identified ‘‘de 

minimis’’ and ‘‘insignificant’’ 

thresholds. For permit amendment 

applications with emissions less than 

these thresholds, the TCEQ justified its 

approach using de minimis principles 

like those established in Ala. Power Co. 

v. Costle, 636 F.2d 323, at 360–361 (D.C. 

Cir. 1979) [hereinafter Alabama Power]. 

See the June 18, 2010 Texas Register, 

pages 5224–5230. Requiring NORI and 

NAPD notice for amendments above a 

specified emissions threshold is more 

stringent than the existing SIP; which 

only requires public notice of minor 

amendments at the discretion of the 

Executive Director. 

EPA’s proposal and our analysis of 

the July 2, 2010, public notice submittal 

did not identify any public notice loop 

holes that violate the relevant 

requirements in the CAA or federal 

regulations. Rather, we have identified 

an expansion of public notice 

requirements for minor permit 

amendments above certain thresholds. 

For the minor permit amendment 

applications below the thresholds, there 

is either no public notice (which 

maintains the status quo of the current 

SIP requirements) or the Executive 

Director can exercise the provided 

discretion to require public notice if 

there is reasonable likelihood for 

significant public interest in a proposed 

activity, there is reasonable likelihood 

for emissions to impact a nearby 

sensitive receptor, there is reasonable 

likelihood for a high nuisance potential 

from the operation of the facilities, or 

the application involves a facility in the 

lowest classification under Texas Water 

Code, § 5.753 and § 5.754 and 30 TAC 

Chapter 60. No changes were made to 

the final rule as a result of this 

comment. 

Comment 21: UT Law Clinic 

commented that the Texas rules at 30 

TAC 39.402 create new exemptions 

from public participation requirements. 

Specifically, the Texas rules at 30 TAC 

39.402 limit public participation to only 

certain types of modifications, those 

that are defined as ‘‘amendments’’ and 

that meet the one or more of the 

conditions in 30 TAC sections 

39.402(a)(3)(A), (B), (C), or (D), or 30 

TAC 39.402(a)(6). Unlike the existing 

SIP rules, the rules proposed for 

approval exempt large classes of 

modifications from all public 

participation. Their approval would, 

therefore, weaken the existing SIP. 

Response 21: EPA disagrees with the 

commenter that the existing SIP requires 

public participation for all minor 

modifications. The existing SIP only 

requires public participation for new 

minor permit applications or renewal 

applications. Applications for minor 

permit amendments are only required to 

go through notice to the extent 

determined by the Executive Director. 

Therefore, the commenter is inaccurate 


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in the assertion that the existing SIP 

requires public participation for all 

minor modifications. 

EPA also disagrees that the new rules 

submitted July 2, 2010, at 30 TAC 

39.402 create new exemptions from 

public participation requirements and 

limit public participation to only certain 

types of minor modifications. The 

revised public participation rules 

maintain the existing stringency of the 

SIP requirements for major NSR and 

new minor stationary sources and 

provide more opportunities for public 

participation for minor modifications to 

existing facilities. In the following 

paragraphs we will address each portion 

of the applicability provisions of the 

July 2, 2010 rules as requested by the 

commenter. 

• The public notice requirements at 

30 TAC 39.402(a)(3)(A) do not limit 

public notice. Section 39.402(a)(3)(A) 

requires public notice for any minor 

permit amendment application where 

there is a change in character of 

emissions or release of an air 

contaminant not previously authorized 

under the permit, regardless of whether 

the emissions are below the ‘‘de 

minimis’’ and ‘‘insignificant’’ 

thresholds. The current SIP only 

requires minor permit amendments to 

go to notice at the discretion of the 

Executive Director, so even if a minor 

permit amendment was for an air 

contaminant not previously emitted 

there was no requirement for public 

notice unless the increase in emissions 

triggered NNSR or PSD. 

• With respect to the requirements at 

30 TAC 39.402(a)(3)(B) and 

39.402(a)(3)(C) as submitted on July 2, 

2010, for minor modifications public 

notice is expanded to cover minor 

permit amendments that exceed the 

specified ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds. While 30 

TAC Sections 39.402(a)(3)(B) and 

39.402(a)(3)(C) do establish two 

thresholds below which public 

participation is not required, the 

establishment of these two thresholds 

actually represent an expansion over the 

existing SIP-approved public notice 

requirements for minor permit 

amendments. Under the current SIP, 

minor permit amendment applications 

regardless of permitted emission rate do 

not go to notice unless required by the 

Executive Director. EPA maintains that 

the establishment of the ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds provide 

opportunities for more minor permit 

amendments to go through public notice 

compared to the existing SIP 

requirements. As explained in previous 

Comment/Response 20, these two 

categories of thresholds are narrower 

than the existing SIP requirements and 

cannot be considered a weakening. With 

the addition of these two thresholds, the 

TCEQ is now requiring public notice for 

all minor permit amendment 

applications above either of the 

thresholds, which is a significant 

expansion of the minor NSR SIP 

requirements for public participation. 

The TCEQ submitted an explanation of 

how the thresholds were established 

that demonstrated the thresholds do not 

impact air quality in Texas. Further, 

EPA finds that Texas’s ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds do not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 171), or any other applicable 

requirement of the CAA, as required by 

section 110(l). 

• The requirements at 30 TAC 

39.402(a)(3)(D) establish the criteria that 

the TCEQ Executive Director will use to 

require public notice for minor permit 

amendment applications that would not 

otherwise go through the public notice 

process because the minor permit 

amendments are below either of the two 

thresholds. This use of Executive 

Director Discretion is in direct contrast 

to the discretion currently provided for 

in the Texas SIP. In the SIP-approved 

public notice rules the Executive 

Director has the discretion to exempt 

every minor permit amendment 

application from public notice. The 

rules submitted on July 2, 2010, at 30 

TAC 39.402(a)(3)(D) do not allow for the 

Executive Director to remove a 

requirement, rather these rules provide 

a set of criteria for the Executive 

Director to require additional public 

notice not already required by the rules. 

This type of director discretion does not 

limit public notice and does not violate 

the relevant requirements in the CAA 

and federal regulations. Further, EPA 

views the criteria under which the 

Executive Director can require 

additional notice for minor permit 

amendments as creating a consistent 

mechanism that will improve 

implementation of the Texas minor NSR 

permit program. 

• The requirements at 30 TAC 

39.402(a)(6) require public notice for 

permit renewals. There is no federal 

requirement for a title I permit renewal, 

so any requirement for public notice of 

such a renewal enhances the Texas air 

permitting program and provides 

opportunity for public notice beyond 

federal requirements. 

For the reasons stated above, EPA 

disagrees that the revised public 

participation rules submitted July 2, 

2010 create new exemptions from 

public notice requirements. No changes 

have been made to the final rule as a 

result of this comment. 

Comments Regarding the Minor NSR 

Public Notice Requirements Specific to 

Two Types of Minor NSR Permit 

Amendment Applications 

Comment 22: UT Law Clinic 

commented that ‘‘public participation is 

necessary to maintain air quality under 

the CAA.’’ See 77 FR 74129, 74130 (Dec. 

13, 2012); 60 FR 45530, 45548 (citing 38 

FR 15834, 15836 (1973) and NRDC v. 

EPA, No. 72–1522 (D.C. Cir.) See also 61 

FR 38250, 38276 and 38320. 

Response 22: We agree with the 

commenter. In fact, TCEQ’s revised 

regulations for public participation that 

we are approving today increase 

opportunities for public involvement in 

Minor NSR permitting decisions. 

TCEQ’s revised rules require that all 

applications for new Minor NSR sources 

go through full public notice with the 

NORI and NAPD, improve the public 

notice opportunities for permit 

amendments, and define and limit 

conditions for use of the Executive 

Director’s discretion. All permit 

amendment applications now are 

subject to public notice if changes to the 

permits authorize a change in the 

character of emissions or a release of an 

air contaminant not previously 

authorized. Permit amendment 

applications that increase emissions 

above either of the two thresholds now 

are subject to public notice. TCEQ’s 

revised rules enhance public 

participation by creating tiered, public 

notice requirements for permit 

amendments. Unlike the existing SIP 

regulations, the revised rules now 

require that most permit amendments go 

through full public notice with the 

NORI and NAPD. But, the new rules 

retain and refine the TCEQ’s director’s 

discretion provisions for minor permit 

amendments below the ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds. For 

these amendments, TCEQ will not 

automatically require an opportunity for 

public participation. TCEQ justified its 

approach for permit amendment 

applications with emissions less than 

these thresholds using de minimis 

principles like those established in 

Alabama Power. 

As we explain in Comments/

Responses 39–40, Texas tailored the 

scope of its Minor NSR permit program. 

Specifically, Texas identified ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

for which review with public 

participation may or may not be 

necessary depending on whether the 

amendment triggers public review 

under the specified Executive Director’s 

criteria. TCEQ has made an adequate 


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justification that the Texas tiered public 

participation program satisfies the 

provisions of 40 CFR 51.160(e) and 

51.161. No changes were made to the 

final rule as a result of this comment. 

Comment 23: UT Law Clinic 

commented that even if Alabama Power 

could be read to give agencies the 

authority to create de minimis 

exceptions to their regulations, the 

exceptions created by the Texas rules do 

not qualify as de minimis. The actual 

modifications that Texas has entirely 

exempted from public participation are 

not de minimis or environmentally 

insignificant. 

Response 23: EPA disagrees with the 

commenter. EPA recognizes a state’s 

ability to tailor the scope of its Minor 

NSR program as necessary to achieve 

and maintain the NAAQS in accordance 

with CAA 110(a)(2)(C). EPA has 

reviewed the TCEQ’s analysis and 

determined that the state established 

‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds meet federal requirements. 

EPA’s evaluation of the adequacy of the 

State’s demonstration is in our proposal 

at 77 FR 74129, at 74136–74140 and 

Comments/Responses 39–40 =. The 

commenter did not provide any specific 

evidence that disputes the 

demonstration provided by Texas, nor 

did the commenter provide any 

alternative metrics the EPA should 

consider when evaluating the scope of 

the applicability of the ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds submitted by 

TCEQ. The minor permit amendments 

are still processed pursuant to the SIPapproved Minor NSR permitting 

program and will only be issued by the 

TCEQ if demonstrated to be protective 

of the NAAQS and increment. We note 

that the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds are only used 

to distinguish those minor permit 

amendment applications that require 

full review, including public notice, 

from those that may not. See 77 FR 

74138–74139. But the thresholds do not 

affect any part of the technical review of 

these minor permit amendment 

applications or the requirement to 

comply with other requirements such as 

application of required control 

technology, reporting when required to 

the emissions inventory, and analysis of 

monitoring data. No revisions were 

made as a result of this comment. 

Comment 24: The EPA has repeatedly 

refused to fully approve programs that 

provide a ‘‘blanket exemption’’ from one 

or more public notice requirements of 

Part 51. The commenter referenced EPA 

actions at 73 FR 20536, at 20545–46 on 

April 16, 2008, and at 73 FR 72001, at 

72008 on November 26, 2008. 

Response 24: The commenter has not 

shown that the state established ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

under the Texas program are not 

approvable. The commenter cites two 

Federal Register notices regarding 

‘‘blanket exemptions’’ from public 

notice requirements, but does not 

explain how the disapproved 

exemptions worked or compare the 

disapproved exemptions to the Texas 

‘‘de minimis’’ or ‘‘insignificant’’ 

thresholds. In sum, the commenter did 

not demonstrate that any previous EPA 

action provides a basis for disapproving 

the submitted revisions to the Texas 

public participation requirements. 

Despite the commenter’s failure to 

describe or explain the relevance of the 

Federal Register citations, EPA has 

reviewed the April 16, 2008, final 

partial approval and partial disapproval 

action for Nevada referenced by the 

commenter, and confirmed that it 

provides no basis for disapproving the 

Texas program because Nevada’s SIP 

submittal is distinguished from the 

Texas public participation rules at issue 

here. In the April 16, 2008 final rule, 

EPA disapproved Nevada’s blanket 

exemption from public notice for 

sources below 100 tons per year (tpy) 

because the State had not provided any 

demonstration to justify its limitation on 

the scope of its Minor NSR permitting 

requirements. Thus, EPA suggested that 

the State consider ‘‘lowering the 

mandatory public notice thresholds 

from 100 tons per year.’’ 73 FR 20536, 

at 20546. Contrary to the situation in 

Nevada, the TCEQ has submitted a 

demonstration for both the ‘‘de 

minimis’’ and ‘‘insignificant’’ 

thresholds. For the small subset of 

minor permit amendment applications 

that are below the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds and are not 

subject to full review, as discussed more 

fully in Comment/Response 39–40, the 

TCEQ has demonstrated this tailoring of 

the Minor NSR program is consistent 

with the CAA and EPA’s regulations. 

Additionally, the Texas rules provide 

for public notice below these thresholds 

at the discretion of the TCEQ Executive 

Director—which is one of the suggested 

remedies provided by EPA for Nevada 

to consider in a subsequent rule change. 

See id. 

EPA also reviewed the other Federal 

Register notice cited by the commenter, 

the November 26, 2008, proposed 

limited approval and limited 

disapproval in Texas. The section of 

that proposal referenced by the 

commenter generally highlights the 

need for public participation programs 

to comply with 40 CFR Part 51, and 

describes previous EPA rulemakings 

concerning such programs. The cited 

proposed rule notes that EPA ‘‘approved 

Oregon’s Minor NSR program 

establishing categories of Minor NSR 

permit actions,’’ with differing levels of 

public review. See 73 FR 72008. The 

cited proposed rule also indicates that 

EPA ‘‘disapproved or gave partial 

approval to Minor NSR public 

participation requirements’’ that did not 

allow a 30-day comment period. See 73 

FR 72008. The commenter does not 

specifically discuss the proposed 

approval of the Texas public notice 

provisions or any of the specific 

program approval decisions mentioned 

in that notice. And the commenter has 

not shown how or why any of the cited 

EPA actions provide any basis for 

questioning EPA’s approval of the Texas 

‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds. 

EPA finds that the commenter failed 

to demonstrate relevancy of the cited 

EPA actions (73 FR 20536, at 20545–46 

on April 16, 2008, and at 73 FR 72001, 

at 72008 on November 26, 2008) to our 

proposed approval of the Texas public 

participation program. However to be 

clear and transparent in our rulemaking, 

we have reviewed the above cited 

actions, and the additional actions 

internally referenced within the April 

16, 2008 and November 26, 2008 

actions, and present the following 

discussion of each referenced 

rulemaking and how that rulemaking is 

either relevant or not relevant to the 

Texas rule at hand. 

• 68 FR 2891, January 22, 2003— 

EPA’s direct final approval of the 

Oregon Minor NSR program. In that 

final rule, EPA approved Oregon’s 

tailoring of public participation 

requirements, in which the State created 

four categories of permit actions and 

established public participation criteria 

for each category. Similar to EPA’s 

evaluation of the Oregon public 

participation rules, our analysis of the 

Texas public participation rules has 

demonstrated that Texas has tailored its 

public participation process in a manner 

that is consistent with the requirements 

for public participation set forth in 40 

CFR 51.161 for minor source permits. 

EPA finds that our basis for this 

referenced rule is relevant to support 

our final rulemaking. Furthermore, 

Texas has demonstrated that using the 

‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds will have no adverse impact 

upon the existing air quality in the State 

of Texas. 

• 65 FR 2042, January 13, 2000— 

EPA’s final partial approval and partial 

disapproval of the West Virginia Minor 

NSR program. In that final action EPA 

disapproved a 15-day public comment 


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period for some Minor NSR actions 

because the State did not submit a 

demonstration. This disapproval is not 

applicable to the Texas public 

participation rules. As discussed in our 

December 13, 2012 proposal and 

Comments/Responses 39–40, EPA has 

received and evaluated the Texas 

demonstration for the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds and 

determined that the state’s 

demonstration is consistent with the 

Minor NSR requirements and ability to 

tailor a Minor NSR program under the 

CAA and EPA’s regulations. Texas has 

demonstrated that using the two 

thresholds will have no adverse impact 

upon the existing air quality in the State 

of Texas. 

• 65 FR 2048, January 13, 2000— 

EPA’s limited approval of the Delaware 

Minor NSR program. In that action, EPA 

granted limited approval of the 

Delaware Minor NSR public notice 

provisions because these rules were a 

strengthening of the SIP-approved 

public notice requirements. However, 

EPA did not grant a full approval 

because Delaware’s submittal provided 

a 15-day period to request a public 

hearing for all permitting actions, which 

conflicts with the 30-day requirement in 

40 CFR 51.161(b)(2). See 63 FR 16751, 

at 16753. Such a blanket exemption 

applied to all permitting actions with no 

demonstration submitted by the state. 

But, as discussed in Comments/

Responses 39–40, the TCEQ has made a 

demonstration consistent with the 

requirements for public participation set 

forth in 40 CFR 51.161 for minor source 

permits that provides for Texas to tailor 

its public participation process for the 

subset of minor permit amendment 

applications below the ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds. Texas 

has demonstrated that using the two 

thresholds will have no adverse impact 

upon the existing air quality in the State 

of Texas. Moreover, these thresholds do 

not affect any part of the technical 

review of these minor permit 

amendment applications; or the 

requirements to continue to comply 

with other requirements such as 

application of appropriate control 

technology, reporting when required to 

the emissions inventory, and analysis of 

monitoring data. Further, the 

discretionary public notice for minor 

permit amendments below the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

does not override any notice or 

technical requirements for PSD, NNSR, 

or new Minor NSR permit applications. 

• 71 FR 48696, August 21, 2006. This 

is a proposal for EPA’s Tribal NSR Rule, 

which was finalized several years later. 

See 76 FR 38748 on July 1, 2011. The 

rule promulgated a Federal 

Implementation Plan (FIP) for tribes in 

Indian country. In part, the FIP 

exempted from Minor NSR review 

sources with emissions below certain 

permitting levels based on a 

demonstration that ‘‘sources with 

emissions below the thresholds will be 

inconsequential to attainment or 

maintenance of the NAAQS.’’ 76 FR 

38758. Under the approved Texas 

permitting program, new Minor NSR 

sources and minor modifications will go 

through the SIP-approved permit 

process and be evaluated by the TCEQ 

with respect to impact on the NAAQS 

and increment. For the subset of Minor 

NSR permit amendment applications 

that are below the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds as discussed 

more fully in Comments/Responses 39– 

40, the TCEQ has demonstrated that 

using the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds is still 

protective of NAAQS attainment and 

maintenance. 

• 72 FR 45378, August 14, 2007— 

EPA’s final rule on revisions to the 

Alaska NSR program. In that notice, 

EPA approved revisions to the public 

notice provisions for minor permitting 

which, for certain types of permits that 

meet specific requirements, gives the 

public 15 days to request a full 30-day 

public comment period on the draft 

permit. Otherwise the state will issue 

the permit based on the application 

without any opportunity for review and 

comment. See 72 FR 5232, at 5235. This 

Alaska program is not the same as the 

Texas program, and therefore not 

relevant to our rulemaking on Texas 

public participation. Under the 

approved Texas permitting program, 

new Minor NSR sources or minor 

modifications will go through the SIPapproved permit process and be 

evaluated by the TCEQ with respect to 

impact on the NAAQS and increment. 

Under the submitted public 

participation rules, all applications for 

new minor sources and the majority of 

minor permit amendment applications 

go through full notice and the public is 

given the opportunity to review the 

draft permit and the TCEQ’s technical 

analysis. There is no separate 

requirement on the public to request 

this draft permit like there is in the 

approved Alaska program. For the 

subset of minor permit amendment 

applications that are below the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

as discussed more fully in Comments/

Responses 39–40, the TCEQ has 

demonstrated that it has tailored its 

public participation process in a manner 

that is consistent with the requirements 

for public participation set forth in 40 

CFR 51.161 for minor source permits. 

Texas has demonstrated that using the 

two thresholds will have no adverse 

impact upon the existing air quality in 

the State of Texas. No revisions were 

made to the final rule as a result of this 

comment. 

Comment 25: UT Law Clinic 

commented that Texas’s justification for 

its de minimis levels in 30 TAC 

39.402(a)(3)(B) is that they referenced 

the EPA SILs and/or a percentage of the 

NAAQS. This is not an adequate 

demonstration for purposes of showing 

that the exempted permitting changes 

will have a de minimis impact in terms 

of ambient air quality in their location. 

There is no specific analysis or 

modeling of how these emissions 

increases might impact maintenance of 

the NAAQS or the increments, 

particularly in areas that already exceed 

or are close to exceeding those limits. 

Response 25: EPA disagrees with the 

commenter. The TCEQ submitted a 

sufficient demonstration that using the 

‘‘de minimis’’ threshold will be 

protective of the NAAQS, as required by 

CAA 110(a)(2)(C). The comment does 

not add any specific analysis or details 

to the record to establish a basis for 

disapproval, and the commenter 

provided no alternative metric EPA 

should consider when evaluating the 

‘‘de minimis’’ threshold. No revisions 

were made to the final rule as a result 

of this comment. 

Comment 26: UT Law Clinic 

commented that Texas’s proffered 

justification for the ‘‘insignificant’’ 

levels in 30 TAC 39.402(a)(3)(C) is also 

lacking. It is based on unenforceable 

assumptions about where agricultural 

sources covered by the rule will locate 

in the future and fails to provide an 

adequate demonstration that such 

emissions will not contribute to 

exceedances of the PM NAAQS in El 

Paso. 

Response 26: EPA disagrees with the 

commenter. The TCEQ submitted a 

sufficient demonstration in support of 

the criteria established for applicability 

of the ‘‘insignificant’’ threshold, 

including an analysis of the effect on the 

PM NAAQS in El Paso. See 77 FR 

74139. The comment does not add any 

specific analysis or details to the record 

to establish a basis for disapproval, and 

the commenter provided no alternative 

metric EPA should consider when 

evaluating the applicability of the 

‘‘insignificant’’ threshold. TCEQ’s 

submittal explains that the 

‘‘insignificant threshold’’ is ‘‘intended 

to focus the attention of the public and 

the commission on emission increases 

that could have a greater potential for 


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public interest and questions regarding 

impacts to public health and welfare.’’ 

The submittal also demonstrates that the 

‘‘insignificant’’ threshold applies to a 

limited number of minor amendments at 

facilities (approximately 10% of total 

amendment applications) dispersed 

across the State in 88 counties, many of 

them in rural areas of west Texas. Due 

to the nature and location of the 

activities at the relevant agricultural 

facilities, we anticipate that using the 

‘‘insignificant’’ threshold will not 

impact nonattainment anywhere in or 

out of the State. Nevertheless, the Texas 

rules do provide for public notice for 

these amendments at the discretion of 

the TCEQ Executive Director under 

specified criteria that are consistent 

with the goal and purposes of the Act 

to provide an adequate opportunity for 

informed public participation. Further, 

under the approved Texas permitting 

program, all Minor NSR sources and 

modifications will go through the SIPapproved permit process and be 

evaluated by the TCEQ with respect to 

impact on the NAAQS and increment. 

Therefore the NAAQS and increment 

will continue to be protected. No 

revisions were made to the final rule as 

a result of this comment. 

Comment 27: UT Law Clinic 

commented that in the past EPA has 

disapproved amendments to states’ SIPs 

that attempted to relax the public 

participation standards for the minor 

stationary sources to the significance 

level, as Texas does here for certain 

agricultural sources. See 75 FR 51188 on 

August 19, 2010. 

Response 27: EPA has reviewed the 

referenced August 19, 2010, proposed 

disapproval notice for Indiana. In the 

referenced Indiana rule, EPA proposed 

to disapprove a submittal from Indiana 

that would allow pollution prevention 

projects for sources that are not subject 

to title V and that do not result in a net 

increase in potential emissions above 

the PSD/NNSR significance levels to be 

processed as minor permit revisions 

under the Indiana minor operating 

permit provisions; meaning these 

revisions would be permitted without 

public notice. EPA proposed 

disapproval of the submitted rules 

because they weakened the SIPapproved requirements without 

adequate support for the SIP relaxation 

and because the state did not provide a 

110(l) demonstration for the additional 

modifications to be exempted from 

notice. The existing Indiana SIPapproved Minor NSR rules required 

public notice for modifications with 

emission increases of greater than 25 

tpy; the proposed rule would have 

exempted modifications from public 

participation up to the PSD/NNSR 

thresholds. 

The August 19, 2010, proposed 

disapproval notice for Indiana is not 

analogous to the July 2, 2010, Texas 

public participation submittal. Contrary 

to the Indiana notice, the July 2, 2010, 

Texas submittal enhances the SIP by 

expanding the universe of minor permit 

amendments subject to public 

participation. See Comments/Response 

20 and 21. Additionally, the TCEQ 

provided a demonstration for the 

establishment of the ‘‘insignificant’’ 

thresholds and EPA finds that the 

State’s demonstration is adequate. 

Please see our proposal and Comment/ 

Response 39–40 for further discussion 

about this demonstration from Texas. 

Finally, the Executive Director has 

discretion to require public notice for 

any minor permit amendment at 

agricultural facilities that are below the 

‘‘insignificant’’ threshold. EPA therefore 

finds that the Indiana rule is not 

relevant to our rulemaking on the Texas 

public participation program. No 

revisions were made to the final rule as 

a result of this comment. 

Comment 28: UT Law Clinic 

commented that the thresholds in 30 

TAC 39.402(a)(3)(B) exceed those 

previously rejected by EPA as too high. 

See 77 FR 7531, 7532 on February 13, 

2012. ‘‘EPA never before denoted 

emissions increases as high as 15 tons 

per year as ‘‘de minimis’’.’’ 

Response 28: EPA has reviewed the 

February 13, 2012, final notice to 

partially approve and partially 

disapprove revisions to the Montana 

permitting program. We disagree with 

the commenter that this notice is 

relevant to today’s rulemaking on Texas 

Public Participation. In the Montana 

partial approval and partial disapproval, 

EPA disapproved the revisions to the de 

minimis permitting thresholds for 

asphalt concrete plants and mineral 

crushers where the de minimis 

permitting threshold for those sources 

was increased from five tpy to 15 tpy. 

EPA based our disapproval of the de 

minimis permitting threshold increase 

on lack of a 110(l) demonstration 

justifying the SIP relaxation. See 77 FR 

7531, 7532. Texas has not relaxed its 

requirements, and has made an 

adequate demonstration to justify the 

scope of its minor NSR provisions. No 

revisions were made to the final rule as 

a result of this comment. 

Comment 29: UT Law Clinic 

commented that the Texas rules fail to 

require public participation for 

amendments that exceed the 

significance level for fluorides and for 

emissions up to the significance level 

for lead. 

Response 29: The Texas rules require 

minor permit amendments for nonagricultural facilities that are not subject 

to THSC § 382.020 to provide public 

notice if the state-established ‘‘de 

minimis’’ thresholds are exceeded (0.6 

tpy of lead or 5 tpy of fluorides) and for 

agricultural facilities subject to THSC 

§ 382.020, if the state-established 

‘‘insignificant’’ thresholds are exceeded 

(25 tpy of fluorides). As explained 

previously, the State adequately 

justified the scope of its Minor NSR 

requirements. Moreover, a Minor NSR 

permit amendment for a change in 

character of emissions or release of an 

air contaminant not previously 

authorized under these new rules must 

go through notice. So if the facility, 

either subject to THSC § 382.020 or not, 

submitted a minor permit amendment 

application to add emissions of lead or 

fluorides that were not already 

authorized, that amendment now would 

be required to go through notice. 

Additionally, the Executive Director has 

discretion to require notice for any 

permit amendment that falls below the 

‘‘de minimis’’ or ‘‘insignificant’’ 

thresholds. Furthermore, no 

modification that is major under the 

PSD or NNSR requirements is exempt 

from public participation. UT Law 

Clinic, in referencing ‘‘significance’’ 

levels, is referring to the levels at which 

projected emission increases to an 

existing major stationary source exceed 

the level and therefore must undergo 

PSD/NNSR Major permitting 

requirements. The Texas public 

participation rules are clear that the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

apply only to Minor NSR permit 

amendments. No revisions were made to 

our final rule as a result of this 

comment. 

Comment 30: UT Law Clinic 

commented that the proposed rules 

allow increases to occur with no public 

oversight even at major sources and 

synthetic minor sources that are already 

emitting high levels of emissions and 

adversely impacting surrounding 

communities. See 77 FR 38557, 38563 

(synthetic minor sources ‘‘should be 

treated for public participation purposes 

as major sources.’’). Further, the 

commenter states that EPA proposed to 

approve Texas’ exemption from all 

public participation for modifications, 

including those at major and synthetic 

minor sources; at major sources of 

HAPs; at sources in nonattainment areas 

that proposed to increase emissions of 

nonattainment pollutants; that alter the 

terms and conditions of Major NSR and 

PSD permits, and that allow increases in 

emissions that are not actually de 


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3A synthetic minor source is an air pollution 

source that has the potential to emit air pollutants 

in quantities at or above the major source 

permitting threshold levels, but has accepted 

federally enforceable limitations (such as permit 

restrictions) to keep the emissions below such 

major source levels. 

minimis. UT Law Clinic further states 

that the above identified modifications 

exempt from public participation are 

clearly not de minimis or insignificant 

modifications and Texas has not 

attempted to demonstrate, nor could it, 

that these modifications could be 

excluded entirely from its Minor NSR 

permitting program pursuant to 40 CFR 

51.160(b). 

Response 30: We disagree with the 

commenter’s characterization of the 

submitted thresholds for certain minor 

permit amendments. The submitted ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

cannot be used for new major sources or 

major modifications subject to PSD or 

NNSR requirements. Additionally, 

section 112(g) of the CAA regulates 

HAPs and this program is not under the 

auspices of a CAA section 110 SIP; 

therefore, regulation of HAPs is outside 

the scope of today’s rulemaking. 77 FR 

74133. We believe that the commenter 

is indirectly challenging the federal 

rules for determining whether minor or 

major NSR SIP requirements apply to a 

proposed change. Under the CAA and 

federal regulations, PSD and 

Nonattainment NSR (NNSR) SIP 

requirements do not apply to minor 

modifications at major stationary 

sources or to minor modifications at 

minor sources (including synthetic 

minor stationary sources 3). As such, 

EPA’s authority to evaluate Texas’s 

submitted Minor NSR program 

requirements for approval into the SIP 

is limited to the applicable Minor NSR 

requirements. By definition, the Texas 

‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds can only apply to minor 

modifications at existing minor and 

major stationary sources, i.e., Minor 

NSR requirements. 

EPA has reviewed the referenced June 

28, 2012, proposed limited approval and 

limited disapproval to the Nevada SIP 

and disagrees that the cited statement 

regarding synthetic minor sources is 

relevant to the proposed Texas rule. The 

referenced comment about synthetic 

minor sources being treated as major 

sources for purposes of public 

participation was specifically regarding 

the method in which the public notice 

is made available for the public— 

newspaper notice versus electronic 

notice. In this proposed LA/LD for 

Nevada, EPA stated that ‘‘notice of 

permitting actions may be made by 

means other than traditional newspaper 

notice for most types of minor sources, 

EPA also believes that, with respect to 

synthetic minor sources, an exception 

should be made to the use of electronic 

means as the sole means to notify the 

general public of proposed permitting 

actions. For synthetic minor sources 

. . . we believe that the traditional 

means of notification (i.e., newspaper 

notice) should be included as one of the 

means for notifying the general public of 

proposed permit actions on the grounds 

that such sources should be treated for 

public participation purposes as major 

sources for which such notice is 

required.’’ But EPA did not find the 

Nevada program’s failure to provide 

newspaper ‘‘notice with respect to 

synthetic minor sources to be 

significant,’’ and did not propose 

disapproval on this basis. The July 2, 

2010, Texas public notice submittal 

requires newspaper notice for all new 

major and minor stationary sources, 

major modifications, and minor permit 

amendments above the ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds. So, from 

that respect, construction of synthetic 

minor sources and minor modifications 

above the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds will be 

required to provide newspaper notice 

consistent with the statements provided 

in our Nevada proposed LA/LD. 

As discussed in Comment/Response 

39–40, for the small subset of minor 

permit amendment applications that are 

below the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds, the TCEQ 

has demonstrated that this tailoring of 

the scope of the Minor NSR 

requirements is consistent with the CAA 

and EPA’s regulations and is protective 

of the NAAQS and maintenance. EPA 

notes that Texas has not proposed to 

exclude entirely from its SIP-approved 

Minor NSR permitting program those 

minor permit amendments that fall 

below the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds. Moreover, 

although the commenter has asserted 

that the Texas thresholds ‘‘exempt from 

public participation [modifications that] 

are clearly not de minimis or 

insignificant,’’ it offers no evidence to 

support that assertion. In sum, the 

commenter has failed to show that EPA 

erred in determining that TCEQ 

adequately ‘‘justified its approach for 

permit amendment applications with 

emissions less than’’ the ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds. 77 FR 

74137. No changes were made to our 

final rule in response to this comment. 

Comment 31: UT Law Clinic 

commented that the rules do not require 

public participation for increases of 

emissions, such as NOX or VOCs that 

are nonattainment pollutants in 

nonattainment areas and that may cause 

violations of the NAAQS, increments, or 

other control strategy requirements. 

Response 31: This characterization of 

the rules is incorrect. Any new major 

stationary source or major modification 

subject to the requirements of NNSR 

permitting must go through public 

notice using the NORI and NAPD. The 

new rules also require minor permit 

amendment applications to go through 

NORI and NAPD if the amendment is 

for a change in the character of 

emissions or the release of an air 

contaminant not previously authorized. 

Further, the revised rules require NORI 

and NAPD public notice for all new 

minor sources and all minor permit 

amendments above identified ‘‘de 

minimis’’ and ‘‘insignificant’’ 

thresholds. Moreover, consistent with 

the provisions of 51.160(b), the Texas 

Minor NSR permitting provisions 

provide that the Executive Director may 

not issue a permit to any source that 

would cause or contribute to a NAAQS 

violation. (30 TAC 116.111(a)(2)(A).) 

The July 2, 2010, public participation 

rules do provide that applications for 

certain minor permit amendments that 

are below the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds do not go 

through notice, except at the discretion 

of the TCEQ Executive Director. 

However, under the approved Texas 

permitting program, new Minor NSR 

sources and minor modifications will go 

through the SIP-approved permit 

process and be evaluated by the TCEQ 

with respect to impact on the NAAQS 

and increment. Therefore, pursuant to 

the Texas SIP at 30 TAC 

116.111(a)(2)(A), the minor permit 

amendment will only be issued by the 

TCEQ if the applicant is able to 

demonstrate that the amendment will 

not cause violations of the NAAQS, 

increment or other provisions of the 

control strategy. The TCEQ will 

continue to use the permit review and 

approval process to protect the NAAQS, 

increment and applicable control 

strategy. No revisions were made to the 

final rule as a result of this comment. 

Comment 32: UT Law Clinic 

commented that EPA Region 6 informed 

Texas in 2006 that the agency [EPA 

Region 6] had identified categories of 

Minor NSR permitting actions that are 

not de minimis, including any change 

where prospective emission increases 

by themselves would be a significant 

increase of any pollutant and any 

emission increases that involve netting 

out of major NSR or synthetic minor 

certifications. See Attachment A 

(Attachment 3—EPA Letter to Steve 

Hagle Regarding Comments on SIP 

revisions for Public Participation, 


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August 14, 2006). Texas proposed 

exemptions from public participation 

include modifications that fall within 

the categories EPA has expressly 

identified as not de minimis. 

Response 32: The commenter 

references the August 14, 2006, 

comment letter from Mr. David Neleigh, 

EPA Region 6 Air Permits Section Chief, 

to Mr. Steve Hagle of the TCEQ on the 

proposed public participation rules at 

that time [the rules upon which EPA 

initially proposed LA/LD in 2008 and 

withdrew after TCEQ adopted and 

submitted revised rules in July 2010]. 

This letter identifies previous 

rulemakings and interprets those 

rulemakings to portray the position 

noted by the commenter. However, that 

position is not actually articulated in 

the rulemakings that the letter cites. See 

Comment/Response 24. Consequently, 

the letter fails to accurately represent 

EPA’s official position. EPA’s official 

position is reflected in today’s final 

action. 

Under the Texas program, all 

construction of major stationary sources 

must go through full major NSR review 

including public participation. All 

major modifications to existing major or 

minor stationary sources must go 

through full major NSR review 

including public participation. All 

construction of new minor stationary 

sources must go through full Minor NSR 

review including public participation. 

All minor modifications to existing 

major or minor stationary sources must 

go through full Minor NSR review, and 

include public participation unless they 

meet either the ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds. There is a 

slim chance under the ‘‘insignificant’’ 

threshold that a minor modification 

approaching the synthetic minor limit 

may not require public participation. 

Nevertheless, the state has demonstrated 

that using the ‘‘insignificant’’ threshold 

will not allow interference with the 

NAAQS. Besides demonstrating that 

using the two thresholds will not result 

in any violation of the NAAQS or any 

control strategy, the State has included 

a consistent mechanism that gives 

constrained authority to the Executive 

Director to require public participation 

for minor permit amendments that 

would otherwise be below one of the 

two thresholds. 

As explained in Comments/Responses 

39–40, permitting authorities have the 

discretion to tailor the Minor NSR 

permit program. The TCEQ has 

developed the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds, and for 

minor permit amendment applications 

with emissions less than these 

thresholds, the TCEQ justified its 

approach using the de minimis 

principles like those established in 

Alabama Power. See the June 18, 2010 

Texas Register, pages 5224–5230. 

Therefore, we are approving the Minor 

NSR ‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds. The commenter has failed to 

dispute the demonstration provided by 

Texas. EPA believes that the NAAQS 

and increment will continue to be 

protected because the TCEQ still must 

follow the SIP-approved permitting 

process. If EPA discovers evidence to 

support the determination that the 

TCEQ were found to be misapplying the 

Minor NSR SIP permit rules or an 

applicant is found to be using the public 

notice ‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds in an attempt to circumvent 

any NSR requirements, then EPA or the 

public could address this 

implementation failure on a permit 

specific basis or other CAA remedy 

mechanism such as a failure to 

implement action. No revisions were 

made to the final rule as a result of this 

comment. 

Comment 33: UT Law Clinic 

commented that the Texas rules allow 

sources to use a netting process to 

determine their total emission increases 

without any public oversight and allow 

them to calculate those emissions 

increases taking into consideration 

voluntary, unenforceable control 

technologies. 

Response 33: EPA believes that the 

commenter may be misconstruing/

misunderstanding the EPA NSR SIP 

rules. The federal Major NSR SIP 

requirements allow a state to provide for 

a netting process to determine if a 

proposed modification to an existing 

major stationary source is major or 

minor. First, this netting process takes 

into consideration the control 

technologies that will be applied to the 

proposed change. (The control 

technology assumption must be made 

enforceable through the issuance of the 

permit for the netting process to meet 

the NSR SIP requirements.) Next, one 

looks to what are the emission increases 

of the proposed modification by itself. If 

the emission increases of the proposed 

modification by itself are above the 

significance level, then the 

contemporaneous window is evaluated 

to see if there is a net increase of 

emissions considering all other 

increases and decreases. If the 

calculation of the netting is above the 

significance levels, then the proposed 

modification to the existing major 

stationary source is major and is subject 

to full public participation. Therefore, 

the public can comment upon the 

netting calculations if they so choose. If 

the calculation of the netting is below 

the significance level/rate, then the 

proposed modification to the existing 

major stationary source is minor. Under 

the Texas NSR SIP, this minor 

modification can be authorized by a 

minor permit amendment or another 

SIP-approved minor NSR mechanism 

such as a PBR or SP. Under the rules 

approved today, full public 

participation for a minor permit 

amendment is required unless the 

change is below either the ‘‘de minimis’’ 

or ‘‘insignificant’’ thresholds. Therefore, 

the public now will have an opportunity 

to review the netting calculations and 

comment upon them in the Texas public 

participation process for all 

amendments resulting in emissions 

increases above the two thresholds and 

for amendments below the thresholds if 

the Executive Director so requires. 

Under the federal NSR SIP rules, the 

requirements for a modification to a 

minor existing stationary source are 

very different from those described 

above for a modification to a major 

existing stationary source. The proposed 

change can be above the major NSR 

significance levels but regardless still is 

defined under the federal SIP rules, as 

a minor modification. This proposed 

change would only be required to be 

permitted under the major NSR SIP 

requirements if the proposed increase in 

emissions is the same as the emission 

rate for a major stationary source. 

EPA recognizes the public’s role in a 

viable major NSR SIP permitting 

program is to review and comment on 

the netting calculations to hold the 

permitting authority accountable. For 

instance, project netting—wherein a 

source calculates the projected increases 

for the project simultaneously with 

decreases from other projects—before 

determining if the project itself is 

significant, is a circumvention of NSR 

SIP requirements. Project netting is not 

provided for in the approved Texas NSR 

SIP permitting program, nor is it 

provided for in the Texas public notice 

rules acted upon today. If EPA discovers 

evidence to support the determination 

that the TCEQ were found to be 

misapplying the NSR SIP permit rules 

or an applicant to be using the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

in an attempt to circumvent major NSR 

applicability, then EPA or the public 

could address this implementation 

failure on a permit specific basis or 

other CAA remedy mechanism such as 

a failure to implement action. No 

revisions were made to the final rule as 

a result of this comment. 

Comment 34: UT Law Clinic 

commented that Texas facilities are 

already using the rules, as adopted in 

Texas, to avoid public participation for 


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changes such as authorizing 

maintenance, startup, and shutdown 

emissions, which are clearly not de 

minimis. 

Response 34: Under the rules being 

approved today, where the inclusion of 

MSS emissions constitutes a major 

modification subject to PSD or NNSR 

permitting then the facility must go 

through full public notice with the 

NORI and NAPD. Under the rules being 

approved today, MSS emissions that 

constitute a minor modification can be 

included in a minor permit amendment 

that must go through full public notice 

unless the change is below either the 

‘‘de minimis’’ or ‘‘insignificant’’ 

thresholds. There are other SIPapproved permit mechanisms available 

for including minor MSS emissions; 

these include permit alterations, permits 

by rule, and standard permits. Each of 

these three permitting mechanisms is 

outside the scope of this public 

participation rulemaking action. In the 

event the facility chooses to use a minor 

permit amendment, then the minor 

permit amendment will be subject to 

notice if the emission increases 

associated with the minor permit 

amendment exceed the ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds. The TCEQ 

Executive Director also has 

discretionary authority to require public 

notice for those minor permit 

amendment applications that are below 

the ‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds and would not otherwise 

receive full notice. Again, this process is 

an improvement over the existing SIPapproved process that requires no 

public notice for minor permit 

amendments. It also does not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the Act. CAA 110(l). 

Also, the permit process itself ensures 

that the emissions are permitted and 

enforceable. No revisions were made to 

the final rule as a result of this 

comment. 

Comment 35: UT Law Clinic 

commented that the provisions 

submitted by Texas at 30 TAC 39.402 

exempt large categories of modifications 

that have the potential to violate the SIP 

and interfere with attainment or 

maintenance. 

Response 35: EPA disagrees with the 

commenter. The TCEQ did not submit 

and EPA did not evaluate any 

provisions to exempt new sources or 

modifications (whether major or minor) 

from permit requirements. Our action is 

solely regarding the public notification 

process in the Texas air permitting 

program. As explained previously, the 

submitted rules do not require public 

participation for certain Minor NSR 

permit amendment applications with 

emissions below the ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds. However, 

because these Minor NSR permit 

amendment applications must continue 

to be reviewed and processed through 

the SIP-approved permit process, the 

TCEQ will continue to issue permits 

protective of the NAAQS. If EPA 

discovers evidence to support the 

determination that the TCEQ were 

found to be misapplying the Minor NSR 

SIP permit rules or an applicant using 

the ‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds in an attempt to circumvent 

any NSR requirements, then EPA or the 

public could address this 

implementation failure on a permit 

specific basis or other CAA remedy 

mechanism such as a failure to 

implement action. No revisions were 

made to the final rule as a result of this 

comment. 

Comment 36: UT Law Clinic 

commented that EPA proposes to 

approve rules that allow significant 

increases in emissions and changes to 

terms and conditions of NSR and PSD 

permits without any public 

participation. 

Response 36: EPA disagrees with the 

commenter. Construction of any new 

major stationary source must go through 

public notice. Any major modification 

must go through public notice. 

Construction of any new minor 

stationary source must go through 

public notice. Minor modifications to 

minor or major stationary sources must 

go through public notice except for 

those below the ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds. And the state 

has demonstrated that minor permit 

amendment applications using the 

established ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds will not affect 

NAAQS attainment or maintenance. The 

rules address public participation only 

and do not address increases in 

permitted emissions. Under the federal 

NSR SIP program, there can be what is 

defined as ‘‘significant emission 

increases’’ that fall under the Minor 

NSR SIP requirements, not the Major 

NSR SIP requirements. It is only when 

there is a ‘‘significant emission 

increase’’ to an existing major stationary 

source that this increase falls under the 

Major NSR SIP requirements. If the 

increase is to a minor stationary source 

and yet is above the ‘‘significant 

emission increase,’’ the federal rules 

allow this change to be authorized 

through the Minor NSR SIP program. 

Therefore, under the action taken today, 

under the Texas SIP, minor 

modifications to major or minor 

stationary sources must go through 

public notice unless the change is below 

either the ‘‘de minimis’’ or 

‘‘insignificant’’ thresholds. The 

commenter appears to be indirectly 

challenging the federal SIP rules for 

how one determines applicability for 

major and Minor NSR; concerns 

regarding major and minor NSR 

applicability are outside the scope of 

this rulemaking. Our action taken today 

approving the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds, does not 

prohibit all public participation for all 

modifications. We are approving an 

exemption from public participation 

only for certain minor permit 

amendments that meet either of the two 

thresholds; TCEQ has demonstrated that 

use of either of these two thresholds 

will not affect attainment or 

maintenance of the NAAQS. By 

definition, the Texas public notice 

exemptions for minor permit 

amendments below the public notice 

‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds can only apply to minor 

modifications at existing minor and 

major stationary sources. Under the 

CAA and federal regulations, PSD and 

NNSR SIP requirements do not apply to 

minor modifications at major stationary 

sources or to minor modifications at 

minor sources. As such, EPA’s authority 

to evaluate Texas’s submitted Minor 

NSR exemptions for approval into the 

SIP is limited to the applicable Minor 

NSR requirements. No revisions were 

made to the final rule in response to this 

comment. 

Comment 37: UT Law Clinic 

commented that EPA’s approval of the 

Texas rules in 30 TAC 39.402(a)(3), 

would exempt permits by rule (PBRs) 

from SIP public participation 

requirements. By utilizing a PBR to 

authorize increases in emissions, 

sources thereby avoid public 

participation for Minor NSR changes 

that should be subject to at least 30-day 

notice and comment. If EPA finalizes its 

proposed approval, there would not 

appear to be any provisions in the SIP 

governing public participation for PBRs. 

Commenter also submitted information 

about how the PBR program works. 

Response 37: The Permit by Rule 

program at 30 TAC Chapter 106 is 

outside the scope of today’s rulemaking. 

EPA approved the PBR program into the 

SIP such that the initial development 

and adoption of a PBR goes to public 

notice, but the individual issuance or 

authorization of a PBR to a facility is 

exempt from public notice. See 68 FR 

64543. The July 2, 2010 submittal does 

not change our SIP-approval of the PBR 

program. 


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4For example, under the federal Tribal NSR 

regulations, EPA did not require permits for sources 

with emissions below de minimis levels, and for 

sources in ‘‘insignificant source categories’’. 76 FR 

38748, at 38755. In sum, under these Tribal NSR 

regulations, some sources are not required to obtain 

permits, and have no public notice requirements. 

Comment 38: UT Law Clinic 

requested that EPA disapprove the 

provisions at 30 TAC 39.402. 

Response 38: As explained in 

previous Comments/Responses we do 

not agree that the provisions at 30 TAC 

39.402 are inconsistent with federal 

requirements or represent a weakening 

of the existing SIP-approved 

requirements. No changes have been 

made to the final rule as a result of this 

comment. 

Comments Regarding the Minimum 

Federal Requirements for Public 

Participation and EPA’s Use of Alabama 

Power de minimis Principles 

Comment 39: UT Law Clinic 

commented that the regulations at 40 

CFR 51.161(a) and (b) plainly set 

minimum public participation 

requirements. These regulations state 

that the SIP ‘‘must’’ require the 

opportunity for public comment and 

that ‘‘as a minimum’’ the comment 

period must last 30 days. The 

commenter also provided the regulatory 

language and history of 40 CFR 51.161 

to support the statement that rules 

regarding notice and public 

participation apply to all permitting 

actions. 

1. In 1983, EPA proposed to 

restructure and revise the SIP 

preparation regulations. See 

Restructuring SIP Preparation 

Regulations, 48 FR 46152 (Oct. 11, 

1983). 

a. Among other things, the proposed 

rule moved the regulations for notice 

and public participation from 40 CFR 

51.18 to §§ 51.160 and 51.161. 

b. Additionally, EPA proposed to 

narrow the scope of the requirement 

(then contained in 40 CFR 51.18(h)(4)) 

that forced ‘‘States to notify EPA of all 

air permitting actions pertaining to new 

sources or modification to existing 

sources’’ to only apply to ‘‘major 

sources in nonattainment areas, . . . or 

for lead, those sources covered under 

§ 5l.l(k)(2).’’ 48 FR at 46156. 

c. In the proposal, EPA explained that 

the change was due to the fact that it 

‘‘primarily needs permitting information 

from only major new sources or major 

modifications of existing sources in 

nonattainment areas.’’ 

2. In 1986, EPA finalized the 

restructuring and revision of the SIP 

preparation regulations. 51 FR 40656. 

a. In response to comments in 

opposition to the proposal to narrow the 

scope of the notice standard, EPA 

dropped the proposal and kept the 

original language largely in place when 

it moved 40 CFR 51.18(h)(4) to 

§ 51.16l(d). 

b. The final rule explained: 

i. A commenter opposed the proposal 

to drop requirements for States to notify 

EPA of permitting actions for all minor 

sources and for all sources outside 

nonattainment areas [§ 51.161(d)] on the 

grounds that new source review is a 

central part of the prevention of 

significant deterioration (PSD) and the 

air quality maintenance plan process 

and that notification is needed for EPA 

oversight. The provisions governing 

PSD procedures, § 51.24, require States 

to notify EPA of permitting actions for 

major sources outside nonattainment 

areas. The deletion from § 51.161(d) did 

not affect those requirements, only the 

notification requirements for minor 

sources. 

ii. However, EPA agrees that where 

State or local agency review of new or 

modified minor sources is required, it 

should be notified of permitting action 

for such sources. 

iii. The very fact that such sources are 

subject to review indicates that it would 

be appropriate to require that EPA be 

notified of permitting actions on such 

sources for oversight purposes. 

iv. Moreover, a large number of minor 

sources could have a significant 

cumulative effect on air quality. 

v. Thus, under the authority of 

sections 110 and 301 of the Act, the 

proposed § 51.16l(d) has been modified 

so that it now is essentially identical to 

existing § 51.18(h)(4). Hence, EPA will 

require reporting of all State permitting 

actions, as required in the existing SIP 

regulations. 

The commenter states that EPA’s prior 

interpretation [the 1983–1986 

rulemaking history of 40 CFR 51.161 

cited above] makes clear that the 

regulations apply to ‘‘all State 

permitting actions.’’ If the EPA wants to 

omit minor sources from the notice and 

public participation requirements, it 

must go through the notice and 

comment process. Finally, the 

commenter states that the narrowing of 

the universe of permit modifications 

that go through public notice is 

inconsistent with 40 CFR 51.160– 

51.161. 

Response 39: EPA does not find this 

comment on the 1986 rulemaking 

relevant. In the quoted language in the 

1986 final rulemaking, EPA focused on 

the requirement in 40 CFR 51.161(d) to 

notify EPA of minor permitting actions. 

As the commenter indicates, EPA 

ultimately decided to retain that 

notification to EPA requirement for 

Minor NSR state permitting actions 

requiring public notice. Secondly, EPA 

received no specific comments during 

our rulemaking on the Texas Public 

Participation program as to whether 

Texas’s public participation program 

meets 40 CFR 51.161(d). 

For the second comment that the 

regulations at 40 CFR 51.161(a) and (b) 

plainly set minimum public 

participation requirements, EPA 

reviewed the submitted rules against all 

the requirements of 40 CFR 51.160 and 

51.161. They cannot be read in isolation 

but in conjunction with each other. 

The Federal requirements for Minor 

NSR permit applications and public 

notice requirements at 40 CFR 51.160 

and 161 generally require 30 days 

public review for all sources subject to 

Minor NSR; however, these 

requirements also allow a state to 

identify the types and sizes of facilities, 

buildings, structures, or installations, 

which will require full preconstruction 

review by justifying the basis for the 

state’s determination of the proper 

scope of its program.4 Importantly, our 

decision to approve a state’s scope of its 

Minor NSR program must consider the 

individual air quality concerns of each 

jurisdiction, and therefore will vary 

from state to state. 

EPA recognizes a state’s ability to 

tailor the scope of its Minor NSR 

program as necessary to achieve and 

maintain the NAAQS. See 76 FR at 

38756 (EPA regulation creating minor 

source program for Indian country, 

recognizing that CAA 110(a)(2)(c) 

provides discretion in developing a 

minor source program ‘‘so long as the 

NAAQS are protected.’’). As explained 

in our proposal at 77 FR 74129, at 

74136–74140 and Comment/Response 

40, TCEQ’s submittal appropriately 

tailored application of the Minor NSR 

permitting requirements. TCEQ 

explained its approach of setting the 

two thresholds using de minimis 

principles like those established in 

Alabama Power. Under TCEQ’s tiered 

program, all new Minor NSR 

construction permits and the majority of 

Minor NSR permit amendments go 

through full public notice. 

Finally, there is no narrowing of the 

universe of permit modifications that go 

through public notice; rather there is an 

expansion for minor modifications. 

Please see Comments/Responses 20 and 

21. No changes were made to the final 

rule as a result of this comment. 

Comment 40: UT Law Clinic 

commented that EPA cannot use 

Alabama Power to justify creating 

exemptions from its own regulations. 


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5FOIA’s longstanding exemption for ‘‘trade 

secrets and commercial or financial information 

obtained from a person and privileged or 

confidential.’’ 6Making it a crime for federal employees to 

disclose confidential information ‘‘in any manner or 

to any extent not authorized by law.’’ 

7EPA regulation on the ‘‘method of asserting 

business confidentiality claim.’’ 

8Requiring records to be available to the public, 

unless they are confidential and not ‘‘emission 

data.’’ Disclosure to the public is similarly 

mandated for ‘‘emission data’’ in the context of 

automobile manufacturing under Title II. See CAA 

section 208(c). 

9 ‘‘Special rules governing information obtained 

under the Clean Air Act’’ and defining the term 

emission data. 

10See Attorney General Opinion H–436 (1974); 

Open Records Decision Nos. 363 (1983), 150 (1977), 

91 (1975). 

11Open Records Decision No. 363 (1983) 

(information is public unless it falls within specific 

exception). 

Response 40: Consistent with the 

requirement for ‘‘determining which 

facilities will be subject to review’’ 

under a minor source SIP at 40 CFR 

51.160, EPA has recognized that states 

may tailor their Minor NSR permitting 

requirements. EPA is not relying on 

Alabama Power to ‘‘creat[e] exemptions 

from its own regulations.’’ Instead, EPA 

is using an inquiry similar to that used 

in Alabama Power—whether there is a 

‘‘de minimis’’ impact—in applying its 

SIP regulations and regulating permit 

amendments to determine whether the 

submitted Texas rules meet the Act and 

EPA regulations. Texas established a 

‘‘de minimis’’ threshold based on its 

‘‘insignificant emissions rates and 

insignificant emissions impact.’’ See 77 

FR at 74138. Similarly, Texas 

established an ‘‘insignificant’’ threshold 

for agricultural sources based on their 

limited effects. See 77 FR 74139. 

As explained in our proposal at 77 FR 

74129, at 74136–74140, the submitted 

Texas public participation provisions 

create a tiered program, wherein two 

narrow types of Minor NSR amendment 

applications that have been defined by 

TCEQ as ‘‘de minimis’’ or 

‘‘insignificant’’ will not automatically be 

required to go through the public notice 

process. As noted, the State justified the 

scope of its regulatory program using de 

minimis principles like those 

established in Alabama Power. 

Moreover, Texas limits the effects of 

applying the two thresholds by 

providing for public notice for minor 

permit amendments that would 

otherwise be exempt at the discretion of 

the TCEQ Executive Director based on 

the objective criteria established in 30 

TAC 39.402(a)(3)(D). For EPA’s full 

analysis of Texas’s demonstration for 

the ‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds, please see our proposal at 77 

FR 74129, at 74136–74140. There is a 

full discussion of the two thresholds in 

the proposal and how Texas analyzed 

their impacts; how the ‘‘de minimis’’ 

threshold is based on EPA’s significant 

emission rates and significant impact 

levels that together are used to 

determine whether a proposed minor 

source or minor modification will have 

a significant permitting impact; and 

how the ‘‘insignificant’’ threshold 

applies to a limited subcategory of 

sources, is limited in scope, represents 

a small subset of the permit amendment 

universe, and is consistent with the 

requirement to ensure the NAAQS are 

achieved. 

Note that applicability of the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

in no way relieve the applicant or the 

TCEQ of the technical burden to 

demonstrate that the proposed minor 

change will assure noninterference with 

attainment and maintenance of the 

NAAQS and that the proposed minor 

modification will comply with all CAA 

and Minor NSR requirements. Further, 

neither of Texas’s thresholds affects any 

part of the technical review of these 

minor permit amendment applications, 

and they do not override any notice or 

technical requirements for PSD, NNSR 

or new Minor NSR permit applications. 

In this instance, we find that the 

Texas ‘‘de minimis’’ and ‘‘insignificant’’ 

thresholds are approvable. However, we 

note that our approval is limited to the 

specific record before us and in the 

context of the Texas air permitting 

program as a whole. No changes were 

made to the final rule as a result of this 

comment. 

Comment 41: UT Law Clinic 

commented that the D.C. Circuit 

recently affirmed that implied authority 

is not available for a situation ‘‘where 

the regulatory function does provide 

benefits, in the sense of furthering the 

regulatory objectives, but the agency 

concludes that the acknowledged 

benefits are exceeded by the costs.’’ 

Response 41: We agree that Alabama 

Power does not confer the 

administrative authority to create 

exemptions to requirements based on a 

cost-benefit analysis. Alabama Power, 

636 F.2d at 357 and 361. However, 

EPA’s approval of Texas’s ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds is not 

based on a cost-benefit analysis, but 

rather based on Texas’s demonstration 

that using either of the thresholds will 

not have an adverse impact on the 

existing air quality in the State of Texas. 

See our proposal at 77 FR 74129, at 

74136–74140 and Comments/Responses 

39 and 40 for additional information on 

the adequacy of Texas’s demonstration. 

No changes were made to the final rule 

as a result of this comment. 

Comments Regarding Confidential 

Information 

Comment 42: UT Law Clinic 

commented that EPA should require 

Texas to amend its rules as necessary to 

ensure that all emissions data that is 

included with permit applications is 

made available for the entire public 

comment period. 

Response 42: As explained in our 

proposal FRN, the accompanying TSD 

and in today’s final rule, the Texas rules 

for public participation for air quality 

permit applications are consistent with 

the federal requirement at 40 CFR 

51.161 that the information submitted 

by the applicant be made available for 

public review and inspection during the 

applicable public comment period. 

While the federal government has long 

recognized the right of businesses to 

make claims of confidentiality in 

submitting information to its agencies 

(see, e.g., FOIA, 5 U.S.C. 552(b)(4) 5; see 

also 18 U.S.C. 1805 6; see also 40 CFR 

2.203 7), the Clean Air Act has made 

clear that ‘‘emission data’’ contained in 

records held by EPA are not entitled to 

confidential treatment and shall be 

publicly available (see CAA section 

114(c) 8; see also 40 CFR 2.302 9). The 

Texas Open Records Act (adopted 1973, 

and as amended May 27, 1975) and 

Texas Attorney General Opinion No. H– 

539 were submitted by Texas and 

approved by EPA as part of the Texas 

SIP on December 15, 1981, at 46 FR 

61124–61125 to show that the Texas 

environmental agency is required to 

make emissions data available to the 

public. This Act was repealed in 1993 

and replaced by the Public Information 

Act now codified in the Texas 

Government Code at Chapter 552. The 

codification of the Act was a nonsubstantive revision. If a state agency 

wishes to withhold information from 

the public, it must request an opinion 

from the Texas Attorney General that 

the requested information falls within 

one of the enumerated exceptions. This 

is necessary because the Texas Act 

presumes that governmental records are 

open to the public unless the records are 

within one of the exceptions.10 The 

Attorney General is required to construe 

the Act liberally in favor of open 

government.11 The governing Texas law, 

Texas Attorney General Opinion No. H– 

539 (dated February 26, 1975) and part 

of the Texas SIP, held that ‘‘emission 

data supplied to the Texas Air Control 

Board may not be treated as confidential 

under any provision of the Texas Clean 

Air Act or the Open Records Act, and 

that the Board is required to release 

such information upon request.’’ 

Although not believed to be part of the 


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SIP, a Texas Attorney General Opinion 

No. H–836 (dated June 14, 1976) affirms, 

‘‘emissions data is clearly public 

information’’ (even in acknowledging 

that information ‘‘on amount, type and 

rate of emissions from a particular unit 

might enable a person to determine how 

the process itself functions’’). There has 

been continual reaffirmation of the 

bright-line rule that emission data is 

non-confidential. See Attorney General 

Open Record Rulings from 2005 to 2010. 

The EPA has therefore determined 

through our review of the July 2, 2010, 

submitted public participation rules and 

the relevant Texas legislative authorities 

and governing Attorney General 

Opinion No. H–836, that the Texas rules 

already require that emissions data be 

made publicly available. If EPA 

discovers evidence to support the 

determination that the TCEQ or permit 

applicants are misapplying the SIP rules 

in an attempt to prevent the public from 

having a meaningful opportunity to 

comment on emissions data, then EPA 

could address this issue on a permit by 

permit basis using its oversight 

authority in implementation of the 

Texas air permit program or other CAA 

remedy mechanism such as a failure to 

implement action. No revisions were 

made to the final rule as a result of this 

comment. 

Comment 43: UT Law Clinic 

commented that current Texas law gives 

the applicant for an air permit the sole 

authority to initially determine the 

confidentiality of materials in its own 

application and requires TCEQ to seek 

an opinion from the Texas AG before 

disclosing any information labeled as 

confidential by an applicant. As a result, 

nonconfidential information that is 

necessary to provide full public 

participation on an application and that 

is required to be available in a public 

location during the full public comment 

period may be unavailable until after 

the close of a comment period. Further, 

Texas’ rules do not ensure that 

emissions data labeled as confidential 

information will be made available for 

public comment before the 30-day 

comment period expires. The 

withholding of emissions data as 

confidential also creates a problem with 

respect to the enforceability of minor 

NSR limits created through permits by 

rule. This compounds the public 

participation issue because, even after 

the fact, affected communities will not 

be able to find out what changes were 

authorized by a minor permit. 

Response 43: The concerns raised by 

the commenter about the application of 

the Texas CBI laws are outside the scope 

of today’s rulemaking. This concern 

raises issues regarding the 

implementation of the Texas SIP and is 

not relevant to the particular public 

participation rules being acted upon 

today. The public participation rules 

acted upon today maintain the SIP’s 

public participation requirements for 

major NSR and expand the SIP’s public 

participation requirements for minor 

NSR. The availability of emissions data 

is not the subject of these rules. As 

discussed previously in Comment/

Response 42, the Texas NSR public 

participation SIP rules already require 

that emissions data be made available 

for public review during the comment 

period. The Texas relevant legal 

authorities in the SIP and later continue 

to affirm that emissions data is not 

confidential and must be released to the 

public. If EPA discovers evidence to 

support the determination that the 

TCEQ or permit applicants are 

misapplying the existing Texas NSR 

public participation SIP rules in an 

attempt to prevent the public from 

having a meaningful opportunity to 

comment on emissions data, then EPA 

could address this issue on a permit by 

permit basis using its oversight 

authority in implementation of the 

Texas air permit program or other CAA 

remedy mechanism such as a failure to 

implement action. No changes were 

made to today’s final rule as a result of 

this comment. 

Comment 44: The UT Law Clinic also 

submitted portions of a supplement to a 

petition filed in 2009 by the commenter 

and other groups that raises concerns 

with Texas CBI laws and public 

participation. 

Response 44: EPA disagrees that the 

submitted portions of the January 5, 

2009 Supplement (Supplement to 

Citizen Petition for Action Pursuant to 

the Clean Air Act Regarding 

Inadequacies of the Texas Sip and 

Federal Operating Permit Program and 

Failure to Enforce the Plan and State 

Permitting Programs) relating to 

confidential document and CBI are 

relevant to the public participation 

rulemaking in front of us. EPA reviewed 

the resubmitted 2009 petition 

supplement and the associated 

attachments. We isolated the following 

discrete comments relating to 

confidential documents and CBI. We are 

responding to each of these comments 

below to demonstrate that the petition, 

petition supplement and relevant 

attachments are no longer applicable to 

the July 2, 2010 public participation SIP 

submittal that we are approving in 

today’s final action. Further, our 

responses to the following comments 

satisfy EPA’s obligations to respond on 

these specific issues from the 2009 

petition supplement. 

• Comment 44A: The Texas Health 

and Safety Code prohibits the TCEQ 

from disclosing to the public of any 

information ‘‘relating to secret processes 

or methods of manufacture or 

production that is identified as 

confidential when submitted.’’ 

TEX.HEALTH & SAFETY CODE 

§ 382.041. It also prohibits TCEQ from 

disclosing such information to EPA 

unless EPA has entered into an 

agreement to treat ‘‘information 

identified as confidential as though it 

had been submitted by the originator of 

the information with an appropriate 

claim of confidentiality under federal 

law.’’ Id. This section unlawfully 

requires TCEQ to defer to an applicant’s 

or permittee’s determination of what 

constitutes confidential information. It 

limits public and EPA access to 

information, such as emissions data, 

that is public information under the 

federal Clean Air Act. It also purports to 

require EPA to agree to limits on public 

disclosure of information beyond those 

limits authorized by federal law. 

• Comment 44B: Further, in practice, 

this provision results in TCEQ referring 

any and all requests for information 

marked by the applicant as confidential 

to the Texas AG’s office. Often a 

response from the AG’s Office as to 

whether information truly qualifies as 

confidential cannot be obtained until it 

is too late to use the information for its 

intended purpose. It is routine for 

companies to mark as confidential 

information regarding their calculations 

of emission estimates, therefore, 

preventing the public from determining 

whether such emissions are realistic. 

Æ Response 44A and 44B: EPA 

disagrees with the commenter that this 

issue is relevant to EPA’s approval of 

the public participation rules as 

submitted July 2, 2010. As outlined in 

Comment/Response 42 and 43, the EPA 

considers that ‘‘emissions data’’ as 

defined in 40 CFR 2.302 must be 

publicly available information pursuant 

to the Texas SIP and relevant legal 

authorities. If EPA discovers evidence to 

support the determination that the 

TCEQ or permit applicants are 

misapplying the Texas SIP rules in an 

attempt to prevent the public from 

having a meaningful opportunity to 

comment on emissions data, then EPA 

could address this issue on a permit by 

permit basis using its oversight 

authority in implementation of the 

Texas air permit program or other CAA 

remedy mechanism such as a failure to 

implement action. No revisions were 

made to the final rule as a result of this 

comment. 

Comment 45: UT Law Clinic 

commented that the face of Texas’ 


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public notices do not identify the date 

that the public comment period closes. 

Instead, the notice normally states that 

the comment period ends a certain 

number of days after publication. 

Response 45: EPA agrees that having 

a specific date would assist the public 

in easily identifying the close of the 

comment period. However, there is no 

federal requirement for a date specific 

end date to be included in the public 

notice. The Texas public notice 

requirements specifying a 30-day 

comment period meets the minimum 

federal requirements at 40 CFR 51.161 

and 51.166 as applicable. No revisions 

were made to the final rule as a result 

of this comment. 

Comments Regarding Judicial Review 

Comment 46: The UT Law Clinic 

commented that the current 

requirements to participate in a 

contested case hearing in Texas are 

overly burdensome and therefore 

provide inadequate judicial review of 

air permitting decisions. Judicial review 

of the TCEQ’s air permitting decisions 

appears to be limited to persons who 

participated in a contested case hearing. 

Friends of Canyon Lake, Inc. v. 

Guadalupe-Blanco River Auth., 96 

SW.3d 519, 526–27 (Tex. App.-Austin 

2002, pet. denied); see also, Rawls v. 

TCEQ, 2007 WL 1849096 (Tex. App.- 

Eastland 2007). In order to qualify for a 

contested case hearing, a member of the 

public must satisfy TCEQ’s definition of 

‘‘an affected person.’’ Since a person 

must request a contested case hearing 

before seeking judicial review of an air 

permitting decision, the availability of 

judicial review for a large percentage of 

air permitting actions at TCEQ is 

limited. 

Response 46: The Texas Contested 

Case Hearing (CCH) process is outside 

the scope of our proposed rulemaking 

for the July 2, 2010 public participation 

submittal. The TCEQ did not submit the 

CCH process for SIP review and 

approval, therefore EPA is not taking 

action on the CCH process in this 

action. No revisions were made to the 

final rule as a result of this comment. 

Comments Regarding Past Public Notice 

Inadequacies 

Comment 47: UT Law Clinic 

commented that approval of these rules 

[July 2, 2010 public participation rules] 

would exacerbate public participation 

inadequacies that Texas communities 

have complained about for years. To 

illustrate the past inadequacies, the UT 

Law Clinic also submitted portions of a 

petition filed in 2008 and a supplement 

to the petition filed in 2009 by the 

commenter and other groups that raises 

problems with the Texas public 

participation process, some of which 

will be exacerbated by EPA’s approval. 

Response 47: EPA disagrees that the 

submitted portions of the August 28, 

2008 petition (Citizen Petition for 

Action Pursuant to the CAA Regarding 

Inadequacies of the Texas SIP and 

Federal Operating Permit Program and 

Failure to Enforce the Plan and State 

Permitting Programs) and the January 5, 

2009 Supplement (Supplement to 

Citizen Petition for Action Pursuant to 

the Clean Air Act Regarding 

Inadequacies of the Texas Sip and 

Federal Operating Permit Program and 

Failure to Enforce the Plan and State 

Permitting Programs) relating to public 

participation are relevant to the 

rulemaking in front of us. EPA reviewed 

the resubmitted 2008 petition, 2009 

petition supplement, and the associated 

attachments. We isolated the following 

discrete comments relating to public 

participation. We are responding to each 

of these comments below to 

demonstrate that the petition, petition 

supplement and relevant attachments 

are no longer applicable to the July 2, 

2010 public participation SIP submittal 

that we are approving in today’s final 

action. Further, our responses to the 

following comments satisfies EPA’s 

obligations to respond on these specific 

issues from the 2008 petition and 2009 

petition supplement. 

• Comment 47A: EPA has informed 

Texas that its public participation rules 

are not consistent with Part 51. 

Deficiencies in the rules include that the 

notice of the draft permit is not required 

for many permitting actions involving 

minor sources or minor modifications at 

major sources. Texas’ rules do not 

require public notice and comment on 

the State’s preliminary analysis and 

draft permits for permitting actions 

involving construction or modification 

of minor sources, or for minor 

modifications at major sources if a 

public hearing is not requested in 

response to the ‘‘first notice,’’ or is 

withdrawn, or the application involves 

no increase in allowable (rather than 

actual) emissions or emissions of new 

contaminants. 

Æ Response 47A: This comment is no 

longer relevant. The commenter is 

referencing EPA’s proposed limited 

approval/limited disapproval of the 

Texas public participation program 

published on November 26, 2008. EPA 

withdrew our proposed LA/LD on 

November 5, 2010, after the TCEQ 

adopted and submitted revised public 

participation rules. The rules submitted 

as revisions to the Texas SIP on July 2, 

2010, require that all permit 

applications for new minor sources go 

through the NORI and NAPD, regardless 

of a public hearing request. This 

requirement will ensure that the draft 

minor permit is available for review and 

comment. The revised rules also require 

minor permit amendment applications 

to go through NORI and NAPD if the 

amendment is for a change in the 

character of emissions or the release of 

an air contaminant not previously 

authorized, or if the amendment 

exceeds the public notice ‘‘de minimis’’ 

or ‘‘insignificant’’ thresholds. No 

changes were made to the final rule as 

a result of this comment. 

• Comment 47B: EPA has informed 

Texas that its public participation rules 

are not consistent with Part 51. 

Deficiencies in the rules include that 

public notice is not required for all 

permit amendments, and initial and 

amended flexible permits. Chapter 

116.116(b) amendments and flexible 

permit issuances and amendments, 

including those that may alter terms and 

conditions of existing major NSR 

authorizations, are not required to meet 

Part 51 notice requirements unless 

emissions exceed certain thresholds. 

These thresholds are not 

environmentally insignificant. 

Æ Response 47B: The commenter is 

referencing EPA’s proposed limited 

approval/limited disapproval of the 

Texas public participation program 

published on November 26, 2008. EPA 

withdrew our proposed LA/LD on 

November 5, 2010, after the TCEQ 

adopted and submitted revised public 

participation rules. The July 2, 2010 

public participation submittal included 

revised public participation procedures 

specific to applications for initial and 

amended flexible permits. As explained 

in Comment/Response 6, EPA is taking 

no action at this time on the public 

participation rules submitted on July 2, 

2010, applicable to Flexible Permit 

applications. Insofar as this comment 

concerns permit amendments not 

related to Flexible Permits, as explained 

in Comments/Responses 17–19, the 

revised rules require full public notice 

for all permit amendments above 

identified public notice ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds. No 

changes were made to the final rule as 

a result of this comment. 

• Comment 47C: EPA has informed 

Texas that its public participation rules 

are not consistent with Part 51. 

Deficiencies in the rules include the 

notice of draft permit not required for 

all Plantwide Applicability Limit (PAL) 

Permits and agency preliminary 

determinations. In addition, Texas’ rules 

do not require the agency to respond to 

comments before taking action on PAL 

applications. 


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Æ Response 47C: This comment is no 

longer relevant. The commenter is 

referencing EPA’s proposed limited 

approval/limited disapproval of the 

Texas public participation program 

published on November 26, 2008. EPA 

withdrew our proposed LA/LD on 

November 5, 2010, after the TCEQ 

adopted and submitted revised public 

participation rules. The rules submitted 

as revisions to the Texas SIP on July 2, 

2010, require that all permit 

applications for PAL permit 

applications go through NAPD notice. 

This requirement will ensure that the 

draft PAL permit is available for review 

and comment. The revised public 

participation rules also require that the 

TCEQ will respond to all comments 

received before a PAL permit is issued. 

No changes were made to the final rule 

as a result of this comment. 

• Comment 47D: EPA has informed 

Texas that its public participation rules 

are not consistent with Part 51. 

Deficiencies in the rules include that 

Texas’ rules and exhaustion of 

administrative remedies requirements 

limit state court judicial appeals. 

Æ Response 47D: This comment is no 

longer relevant. The commenter is 

referencing EPA’s proposed limited 

approval/limited disapproval of the 

Texas public participation program 

published on November 26, 2008. EPA 

withdrew our proposed LA/LD on 

November 5, 2010, after the TCEQ 

adopted and submitted revised public 

participation rules on July 2, 2010. See 

Comment/Response 46 above for a 

discussion of judicial review. No 

changes were made to the final rule as 

a result of this comment. 

• Comment 47E: EPA has informed 

Texas that its public participation rules 

are not consistent with Part 51. 

Deficiencies in the rules include that the 

De Minimis Facilities rules at 30 TAC 

116.119 allow the agency to exempt 

categories of sources, as well as 

individual facilities, from permitting 

and public participation requirements 

without first requiring SIP approval of 

those exemptions. 

Æ Response 47E: The TCEQ has not 

submitted the provisions for permitting 

of De Minimis Facilities at 30 TAC 

116.119 for SIP review. Therefore, 

public participation requirements 

relevant to permitting under 30 TAC 

116.119 are outside the scope of today’s 

final action. No changes were made to 

the final rule as a result of this 

comment. 

• Comment 47F: EPA has informed 

Texas that its public participation rules 

are not consistent with Part 51. 

Deficiencies in the rules include that the 

TCEQ can exempt relocation of a facility 

from public participation requirements 

if ‘‘there is no indication that operation 

of the facility at the proposed new 

location will significantly affect ambient 

air quality and no indication that 

operation of the facility at the proposed 

new location will cause a condition of 

air pollution.’’ 

Æ Response 47F: The commenter is 

referencing EPA’s proposed limited 

approval/limited disapproval of the 

Texas public participation program 

published on November 26, 2008. EPA 

withdrew our proposed LA/LD on 

November 5, 2010, after the TCEQ 

adopted and submitted revised public 

participation rules. The July 2, 2010 

public participation submittal included 

revised public participation procedures 

specific to portable facilities and 

relocation of portable facilities. As 

explained in Comment/Response 6, EPA 

is taking no action at this time on the 

public participation rules submitted on 

July 2, 2010, applicable to portable 

facilities. No changes were made to the 

final rule as a result of this comment. 

• Comment 47G: Texans are not given 

notice of the TCEQ’s actual decision and 

the documentation supporting that 

decision. Without adequate notice of an 

agency’s proposed permitting action, 

subsequent participation opportunities 

are often meaningless. An example is 

Texas’ notice for refinery Maintenance, 

Startup and Shutdown (MSS) permits. 

At the time of public notice, the TCEQ 

had not yet decided how to act on the 

applications, and had not yet even 

decided the process for determining 

which applications might trigger federal 

NSR. Yet despite this lack of 

information, the public notice period 

ran and the opportunity for public 

participation was closed. Clearly, this is 

not effective notice. 

Æ Response 47G: This comment is no 

longer relevant. The commenter is 

referencing provisions of the previous 

Texas public participation rules that 

were the subject of EPA’s proposed 

limited approval/limited disapproval on 

November 26, 2008. Under this previous 

version of the state public participation 

rules submitted to EPA for approval as 

part of the SIP, MSS emissions that were 

major modifications subject to PSD/

NNSR permitting were required to 

follow the public participation 

requirements for PSD/NNSR. However, 

if the MSS emissions were minor, these 

emissions could be authorized through 

a minor permit amendment. Under 

these submitted rules, the applications 

for minor permit amendments were only 

required to go through the NORI 

publication so the public would not 

have had the opportunity to review a 

draft permit. The TCEQ adopted revised 

rules that were submitted on July 2, 

2010. These rules, which are the subject 

of today’s final action, require most 

minor permit amendment applications 

go through full public notice with both 

a NORI and NAPD publication. Under 

this current scenario, the public would 

have the opportunity to review a draft 

permit. No changes were made to the 

final rule as a result of this comment. 

• Comment 47H: EPA should take the 

following action on the Texas SIP 

submittals for Public Participation: (1) 

Concurrently propose disapproval of 

Texas’ current SIP submittal and 

disapproval, pursuant to § 7410(k)(5), of 

Texas’ SIP approved public 

participation rule. Both disapprovals are 

necessary to start the sanctions clock 

and ensure that Texas complies with 40 

CFR Part 51; and (2) in the alternative, 

concurrently propose limited approval 

and disapproval of Texas SIP submittal. 

The limited approval should require 

Texas to use authority under Tex. 

Health and Safety Code § 382.056(p) to 

provide 30 days notice and opportunity 

to comment on all draft permits; and 

should specify rule changes required to 

assure Part 51 notice for all permitting 

actions. Final action on the limited 

approval and limited disapproval 

should occur at the same time to ensure 

that the sanctions clock is started. 

Æ Response 47H: This comment is no 

longer relevant. The commenter 

requested these actions in August 28, 

2008, as remedies for perceived 

inadequacies in the Texas public 

participation provisions that were in 

effect at the time. Since the August 28, 

2008, petition EPA has proposed limited 

approval/limited disapproval of the 

state rules in question. As a result of the 

proposed limited approval/limited 

disapproval, the TCEQ adopted revised 

public participation rules and submitted 

those for SIP review and approval on 

July 2, 2010. The previous version of the 

rules was withdrawn from our 

consideration and is no longer in effect. 

The analysis in our proposed approval 

of the July 2, 2010, public notice 

submittal and the accompanying TSD 

provides our rationale for full approval 

of the revised public participation rules 

as consistent with minimum federal 

requirements of the CAA and 40 CFR 

51.160—51.166. No changes were made 

as a result of this comment. 

Comment 48: UT Law Clinic also 

resubmitted comments it provided on 

January 26, 2009 regarding EPA’s 

proposed limited approval/limited 

disapproval of the Texas Public 

Participation program. 

Response 48: EPA disagrees that the 

submitted portions of the January 5, 

2009 Supplement (Supplement to 


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12EPA SIP-approved the Texas Standard Permit 

process and public participation process on 

November 14, 2003, as adopted by the TCEQ on 

December 16, 1999 (see 68 FR 64543). EPA also SIPapproved revisions to the public participation 

process for the development of standard permits on 

September 17, 2008, as adopted by the TCEQ on 

September 20, 2006 (see 73 FR 53716). 

13EPA SIP-approved the Texas Permit by Rule 

process on November 14, 2003 (see 68 64543) as 

adopted by the TCEQ on August 9, 2000 and March 

7, 2001. 

Citizen Petition for Action Pursuant to 

the Clean Air Act Regarding 

Inadequacies of the Texas Sip and 

Federal Operating Permit Program and 

Failure to Enforce the Plan and State 

Permitting Programs) relating to public 

participation are relevant to the 

rulemaking in front of us. EPA reviewed 

the resubmitted 2009 petition 

supplement and isolated the following 

discrete comments relating to public 

participation. We are responding to each 

of these comments below to 

demonstrate that the petition 

supplement is no longer applicable to 

the July 2, 2010 public participation SIP 

submittal that we are approving in 

today’s final action. Further, our 

responses to the following comments 

satisfy EPA’s obligations to respond on 

these specific issues from the 2009 

petition supplement. 

• Comment 48A: UT Law Clinic 

commented that EPA’s recent public 

participation proposal [November 26, 

2008 proposed LA/LD] provides an 

example of the difficulty in dealing with 

one piece of the Texas program without 

a comprehensive evaluation of the 

entire program. UT Law Clinic noted 

that, while they largely agree with EPA’s 

assessment of the public participation 

rules it analyzed, the proposal fails to 

comprehensively evaluate whether 

Texas’ whole program meets federal 

public participation requirements. 

There are a number of Texas rules that 

allow sources to authorize new 

emissions and emission increases 

without meeting minimum federal 

public participation requirements of 

Part 51. 40 CFR Part 51. These include: 

de minimis air contaminants, permits by 

rule, alterations, qualified facilities and 

standard permits. Some of these rules, 

such as those regarding alterations, have 

already been approved into the SIP 

despite their suffering from the same 

illegalities identified by EPA in the 

current SIP public participation 

proposal. These provisions should be 

removed from the SIP. Others, such as 

those regarding de minimis emissions, 

have never been submitted for SIP 

approval, yet are currently implemented 

by TCEQ. A true evaluation of whether 

Texas public participation requirements 

meet federal standards necessitates a 

review of the public participation 

requirements applicable to all minor 

and major permitting actions. 

Æ Response 48A: This comment is not 

relevant to today’s final rulemaking. The 

commenter provided these comments 

based on EPA’s November 26, 2008, 

proposed limited approval/limited 

disapproval, which was subsequently 

withdrawn on November 5, 2010 after 

the TCEQ adopted and submitted 

revised public participation rules. 

However it is important to note that 

EPA can only evaluate for SIP approval 

those provisions that are submitted for 

review and approval by the state and 

our evaluation is limited to whether the 

state’s submittal complies with the 

relevant requirements in the CAA and 

federal regulations. CAA 110(k)(3). The 

commenter is correct that there are 

several avenues in the Texas NSR SIP 

through which a permit can be 

modified—for minor sources and minor 

modifications, they are minor permit 

amendments, standard permits, permits 

by rule and permit alterations. The 

commenter is also correct that only a 

minor permit amendment application 

goes through public notice and 

comment on an individual case-by-case 

permit basis, if the minor modification 

is above either of the ’’de minimis’’ or 

‘‘insignificant’’ thresholds or is for a 

change in character of emissions or 

release of an air contaminant not 

previously authorized under the permit. 

EPA has previously evaluated and SIPapproved the Texas Standard Permit 

(SP) program at 30 TAC Chapter 116, 

Subchapter F and the Texas Permit by 

Rule (PBR) program at 30 TAC Chapter 

106 as consistent with minimum federal 

requirements, including public 

participation at 40 CFR 51.160–51.161, 

for minor NSR. The minor NSR SP and 

PBR SIP programs require the TCEQ to 

develop the base SP or PBR through a 

public notice and comment procedure, 

but the individual uses of the SP or PBR 

do not go through notice. We note that 

even though the commenter has 

concerns about the application of the 

minor NSR SP or PBR SIP programs in 

Texas, these provisions have not been 

submitted as part of the July 2, 2010 

public participation package and are not 

before EPA for review. Therefore, the 

public participation provisions for the 

minor NSR SP and PBR SIP programs 

are outside the scope of today’s 

rulemaking, as is the implementation of 

these two programs.12 13 Permit 

alterations have been SIP-approved at 

30 TAC 116.116 as a method to 

streamline the permit revisions process 

for specified types of revisions. The 

permit alteration provisions at 30 TAC 

116.116 were not submitted as part of 

the July 2, 2010 SIP submittal and 

therefore are outside the scope of 

today’s rulemaking. EPA disapproved 

the Texas Qualified Facility program on 

April 14, 2010 (see 75 FR 19468). Texas 

revised the Qualified Facility program 

and resubmitted for SIP review and 

approval on October 5, 2010, and EPA 

will act on that submittal in a separate 

rulemaking. The Qualified Facility 

program was submitted separate from 

the public participation submittal of 

July 2, 2010, and is therefore outside the 

scope of today’s rulemaking. The 

commenter is correct that the de 

minimis permitting provisions (as 

previously noted these are in the Texas 

state rules at 30 TAC 116.119) have 

never been submitted to EPA for review 

and approval into the SIP; and are 

therefore outside the scope of today’s 

rulemaking. The current Texas NSR SIP 

requires that any increase in emissions 

requires a permit to construct or modify. 

No changes were made to the final rule 

as a result of this comment. 

• Comment 48B: A thorough review 

of Texas’ statutory and regulatory law 

affecting public participation is the only 

way to ensure that Texas actually 

implements a public participation 

program that is consistent with the Act. 

EPA cannot merely assume Texas will 

implement only those public 

participation provisions that are SIP 

approved. 

Æ Response 48B: As discussed 

previously, EPA’s authority to review 

and approve revisions to SIPs is limited 

to the provisions that are submitted. 

CAA 110(k)(3). EPA reviews the TCEQ’s 

statutory authority to ensure TCEQ has 

the authority to adopt, implement, and 

enforce the submitted provisions, be 

they in the form of rules, orders, control 

measures, etc., and that its authority has 

been properly exercised. TCEQ also 

submits a particular statutory provision 

for inclusion in the SIP if there is no 

corresponding rule, measure, or order 

for implementation. In this action, we 

thoroughly reviewed the rules 

submitted to us for approval as part of 

the SIP and their associated statutory 

provisions. The submitted rules stand 

on their own and do not require us to 

include the statutory provisions as part 

of the Texas NSR SIP. No changes were 

made to the final rule as a result of this 

comment. 

• Comment 48C: TCEQ’s mailing lists 

are inadequate. Texas maintains mailing 

lists for those persons who wish to 

receive mailed notice of TCEQ 

permitting actions. Such lists, however, 

are inadequate for most purposes. The 

public can either be placed on a mailing 

list to receive notice of all permitting 

actions for all media in a county, or it 


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can be placed on a mailing list for a 

particular permit number. TCEQ does 

not offer the option of being placed on 

a mailing list for a facility or source, 

which is what most members of the 

public would be interested in. Being 

placed on a list for all applications in a 

county results in receiving a flood of 

notices. Being on a list for a specific 

permit may deprive the public of notice 

of action on other permits and 

authorizations related to the facility or 

of new permits for the facility. 

Æ Response 48C: There are no federal 

requirements for a permitting authority 

to maintain mailing lists or to provide 

targeted mailings with respect to either 

specific activities or facilities. 

Therefore, any mailing lists maintained 

by the TCEQ go beyond minimum 

federal requirements. However, we 

continue to encourage the TCEQ to 

listen to public feedback on the mailing 

list and revise the procedures and 

options accordingly to ensure that the 

mailing lists are serving the public as 

intended. No changes were made to the 

final rule as a result of this comment. 

III. Final Action 

After careful consideration of the 

comments received and the responses to 

each comment provided above, and 

under section 110 and parts C and D of 

the Act, EPA is approving the following 

revisions to the Texas SIP: 

• 30 TAC Section 116.312 and the 

repeal of 30 TAC Section 116.124 as 

submitted on July 22, 1998. 

• 30 TAC Sections 39.411(a); 

39.418(b)(4); 55.152(b); 116.111(b); 

116.114(a)(2), (a)(2)(A), (a)(2)(B), (b)(1), 

and (c)(1)–(3); 116.116(b)(4); and 

116.312 as submitted on October 25, 

1999. 

• 30 TAC Sections 39.402(a)(1)–(3), 

(a)(6); 39.405 (f)(3) and (g), (h)(1)(A), 

(h)(2)–(h)(4), (h)(6), (h)(8)–(h)(11), (i) 

and (j); 39.407; 39.409; 39.411(e)(1)– 

(4)(A)(i) and (iii), (4)(B), (5)(A) and (B), 

(6)–(10), (11)(A)(i), (iii) and (iv), (11)(B)– 

(F), (13) and (15), and (f)(1)–(8), (g) and 

(h); 39.418(a), (b)(2)(A), (b)(3) and (c); 

39.419(e); 39.420(c)(1)(A)–(D)(i)(I) and 

(II), (D)(ii), (c)(2), (d)–(e); 39.601; 39.602; 

39.603; 39.604; 39.605; 55.150; 

55.152(a)(1), (2), (5) and (6); 55.154(a), 

(b), (c)(1)–(3) and (5), (d)–(g); 55.156(a), 

(b), (c)(1), (e) and (g); 116.114(a)(2)(B), 

(a)(2)(C), (c)(2) and (c)(3); and 116.194(a) 

and (b) as submitted on July 2, 2010. 

• 30 TAC Section 116.194 as adopted 

January 11, 2006 and resubmitted on 

March 11, 2011. 

Note that EPA is approving provisions 

at 30 TAC 39.411(f)(8)(A) and 

39.605(1)(D) that will replace two 

provisions of the Texas SIP, found in 

the Texas PSD SIP Supplement at 

Paragraphs 7(a) and 7(b) of Board Order 

87–09. In this final action we are also 

revising the table at 40 CFR 52.2270(e) 

to reflect these approvals. 

Consistent with the analysis 

presented in our December 13, 2012, 

proposed notice and the accompanying 

TSD, our final action does not include 

the following provisions submitted on 

July 2, 2010: 30 TAC Sections 

39.402(a)(4), 39.402(a)(5), 39.402(a)(10), 

39.402(a)(12), 39.419(e)(3), 39.420(h). 

These provisions remain before EPA 

and will be addressed in a separate 

rulemaking. 

Additionally, our final action does not 

include 30 TAC Sections 

116.111(a)(2)(K) and 116.116(b)(3), as 

submitted on October 25, 1999. These 

provisions were returned to the TCEQ 

on June 29, 2011, because they are 

outside the scope of the Texas SIP. 

IV. Statutory and Executive Order 

Reviews. 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by March 7, 2014. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposed of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 


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matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: November 25, 2013. 

Ron Curry, 

Regional Administrator, Region 6. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 1. In § 52.2270: 

■ a. Amend the table in paragraph (c) 

by: 

■ i. Adding a new centered heading 

‘‘Chapter 39—Public Notice’’ followed 

by a new centered heading ‘‘Subchapter 

H—Applicability and General 

Provisions’’ followed by new entries for 

sections 39.402, 39.405, 39.407, 39.409, 

39.411, 39.418–39.420 in numerical 

order; and adding a new centered 

heading for ‘‘Subchapter K—Public 

Notice of Air Quality Applications’’ 

followed by entries for sections 39.601– 

39.605. 

■ ii. Immediately following the newly 

added entry for Section 39.605 by 

adding a new centered heading 

‘‘Chapter 55—Requests for 

Reconsideration and Contested Case 

Hearings; Public Comment’’ followed by 

a new centered heading for ‘‘Subchapter 

E—Public Comment and Public 

Meetings’’ followed by new entries for 

sections 55.150, 55.152, 55.154, and 

55.156; 

■ iii. Revising the entries for sections 

116.111, 116.114, 116.116, and 116.312; 

and removing the entry for section 

116.124; and adding an entry for 

116.194 in numerical order. 

■ b. Amend the second table in 

paragraph (e) by revising the entry for 

‘‘Revisions for Prevention of Significant 

Deterioration and Board Orders No. 85– 

07, 87–09, and 88–08’’. 

The revisions and additions read as 

follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

Chapter 39—Public Notice 

Subchapter H—Applicability and General Provisions 

Section 39.402 ......... Applicability to Air Quality Permits and 

Permit Amendments.

6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 39.402(a)(1)–(3), and 

(a)(6). 

Section 39.405 ......... General Notice Provisions ...................... 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 39.405(f)(3) and (g), 

(h)(1)(A), (h)(2)–(h)(4), (h)(6), (h)(8)– 

(h)(11), (i) and (j). 

Section 39.407 ......... Mailing Lists ............................................ 9/2/1999 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 39.409 ......... Deadline for Public Comment, and Requests for Reconsideration, Contested 

Case Hearing, or Notice and Comment Hearing.

6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 39.411 ......... Text of Public Notice .............................. 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 39.411(a), 39.411(e)(1)– 

(4)(A)(i) and (iii), (4)(B), (e)(5)(A), 

(e)(5)(B), (e)(6)–(10), (e)(11)(A)(i), 

(e)(11)(A)(iii), (e)(11)(A)(iv), 

(e)(11)(B)–(F), (e)(13), (e)(15), (f)(1)– 

(8), (g), and (h). 

Section 39.418 ......... Notice of Receipt of Application and Intent to Obtain Permit.6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 39.418(a), (b)(2)(A), (b)(3) 

and (c). 

Section 39.419 ......... Notice of Application and Preliminary 

Determination.

6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 39.419(e) (e)(1) and (e)(2). 

Section 39.420 ......... Transmittal of the Executive Director’s 

Response to Comments and Decision.

6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 39.420(c)(1)(A)–(D)(i)(I) 

and (D)(i)(II), (D)(ii), (c)(2), and (d)– 

(e). 


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572 Federal Register / Vol. 79, No. 3 / Monday, January 6, 2014 / Rules and Regulations 

EPA APPROVED REGULATIONS IN THE TEXAS SIP—Continued 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

Subchapter K– Public Notice of Air Quality Applications 

Section 39.601 ......... Applicability ............................................. 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 39.602 ......... Mailed Notice .......................................... 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 39.603 ......... Newspaper Notice .................................. 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 39.604 ......... Sign-Posting ............................................ 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 39.605 ......... Notice to Affected Agencies ................... 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Chapter 55—Requests for Reconsideration and Contested Case Hearings; Public Comment 

Subchapter E—Public Comment and Public Meetings 

Section 55.150 ......... Applicability ............................................. 6/14/2006 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 55.152 ......... Public Comment Period .......................... 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 55.152(a)(1), (a)(2), (a)(5), 

(a)(6), and (b). 

Section 55.154 ......... Public Meetings ...................................... 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 55.154(a), (b), (c)(1)–(3) 

and (5), and (d)–(g). 

Section 55.156 ......... Public Comment Processing .................. 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

SIP includes 55.156(a), (b), (c)(1), (e) 

and (g). 

* * * * * * * 

Section 116.111 ....... General Application ................................ 8/21/2002 1/6/2014 [Insert FR 

page number 

where document 

begins].

The SIP does not include paragraphs 

(a)(2)(K). 

Section 116.114 ....... Application Review Schedule ................. 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

Section 116.116 ....... Changes to Facilities .............................. 9/15/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

The SIP does not include 116.116(b)(3) 

and 116.116(e). 

* * * * * * * 

Section 116.194 ....... Public Notification and Comment ........... 6/2/2010 1/6/2014 [Insert FR 

page number 

where document 

begins].

* * * * * * * 

Section 116.312 ....... Public Notification and Comment Procedures.9/2/1999 1/6/2014 [Insert FR 

page number 

where document 

begins].


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Federal Register / Vol. 79, No. 3 / Monday, January 6, 2014 / Rules and Regulations 573 

EPA APPROVED REGULATIONS IN THE TEXAS SIP—Continued 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

* * * * * (e) * * * 

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP provision Applicable geographic or 

nonattainment area 

State submittal/effective date 

EPA approval date Comments 

* * * * * * * 

Revisions for Prevention 

of Significant Deterioration and Board Orders 

No. 85–07, 87–09, and 

88–08.

Statewide ....................... 12/11/85, 

10/26/87, 

9/29/88 

06/4/92, 57 FR 28098 Ref 52.2299(c)(73). 

For Board Order 87–09, the provisions at paragraphs 7(a) and 7(b) have been replaced by 

EPA’s SIP-approval of 30 TAC 39.411(f)(8)(A) 

and 39.605(1)(D). See 1/6/14 [Insert FR page 

number where document begins] 

* * * * * * * 

* * * * * 

[FR Doc. 2013–30229 Filed 1–3–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2013–0564; FRL–9905–09- 

Region 4] 

Approval and Promulgation of 

Implementation Plans; Florida: NonInterference Demonstration for 

Removal of Federal Low-Reid Vapor 

Pressure Requirement 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State of 

Florida’s August 15, 2013, State 

Implementation Plan (SIP) revision to 

the State’s approved maintenance plans 

addressing the 1997 8-hour ozone 

national ambient air quality standards 

(NAAQS). Florida’s revision provides 

updated modeling and demonstrates 

that the Southeast Florida, Tampa Bay 

and Jacksonville areas would continue 

to maintain the 1997 8-hour ozone 

NAAQS if the currently applicable 

Federal Reid Vapor Pressure (RVP) 

standard for gasoline of 7.8 pounds per 

square inch (psi) was modified to a less 

stringent standard of 9.0 psi for 

Broward, Dade, Duval, Hillsborough, 

Palm Beach and Pinellas Counties 

(hereafter also referred to as the 

‘‘Maintenance Plan Areas’’) during the 

high-ozone season. The State included a 

technical demonstration with the 

August 15, 2013, SIP revision 

demonstrating that the less-stringent 

RVP in these Areas would not interfere 

with continued maintenance of the 1997 

8-hour ozone NAAQS or any other 

applicable standard. Approval of the 

State’s August 15, 2013, SIP revision is 

a prerequisite for EPA’s consideration of 

an amendment to the regulations to 

remove the Maintenance Plan Areas 

from the list of areas that are currently 

subject to the Federal 7.8 psi RVP 

requirements. EPA has determined that 

Florida’s August 15, 2013, SIP revision 

with respect to the revised modeling 

and associated technical demonstration, 

and with respect to the use of updated 

models, is consistent with the 

applicable provisions of the Clean Air 

Act (CAA or Act). Should EPA decide 

to remove the subject portions of the 

Maintenance Plan Areas from those 

areas subject to the 7.8 psi Federal RVP 

requirements, such action will occur in 

a subsequent rulemaking. Also, on 

November 29, 2012, Florida requested 

removal of the existing SIP references to 

the previously-implemented inspection 

and maintenance programs in the 

Maintenance Plan Areas. Based upon a 

noninterference demonstration provided 

by the State, EPA previously approved 

revisions to remove the emission 

reduction credits associated with this 

program from the SIP. Through this 

action, EPA is now removing the 

specific SIP references to the defunct 

inspection and maintenance program 

based upon the State’s earlier 

demonstration of noninterference. 

DATES: This rule is effective February 5, 

2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2013–0564. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Sean Lakeman, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. The 


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