Federal Register / Vol. 77, No. 240 / Thursday, December 13, 2012 / Proposed Rules 74129 

information at the FAA, Transport Airplane 

Directorate, 1601 Lind Avenue SW., Renton, 

WA. For information on the availability of 

this material at the FAA, call 425–227–1221. 

Issued in Renton, Washington, on 

December 5, 2012. 

Kalene C. Yanamura, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. 2012–30071 Filed 12–12–12; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0612; FRL–9761–2] 

Approval and Promulgation of 

Implementation Plans; Texas; Public 

Participation for Air Quality Permit 

Applications 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Texas State 

Implementation Plan (SIP) that establish 

the public participation requirements 

for air quality permits. EPA proposes to 

find that these revisions to the Texas 

SIP comply with the Federal Clean Air 

Act (the Act or CAA) and EPA 

regulations and are consistent with EPA 

policies. Texas submitted the public 

participation provisions in four separate 

revisions to the SIP on July 22, 1998; 

October 25, 1999; July 2, 2010; and 

March 11, 2011. EPA is proposing this 

action under section 110 and parts C 

and D of the Clean Air Act (the Act). 

DATES: Comments must be received on 

or before February 11, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2010–0612, by one of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Email: Ms. Adina Wiley at 

wiley.adina@epa.gov. 

• Fax: Ms. Adina Wiley, Air Permits 

Section (6PD–R), at fax number 214– 

665–6762. 

• Mail: Ms. Adina Wiley, Air Permits 

Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

• Hand or Courier Delivery: Ms. 

Adina Wiley, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202–2733. Such deliveries are 

accepted only between the hours of 8:30 

a.m. and 4:30 p.m. weekdays, and not 

on legal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2010– 

0612. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically at 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202. 

The State submittals, which are part of 

the EPA docket, are also available for 

public inspection during official 

business hours by appointment: Texas 

Commission on Environmental Quality 

(TCEQ), Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Adina Wiley, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

214–665–2115; fax number 214–665– 

6762; email address 

wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. 

Table of Contents 

I. Background for Our Proposed Action 

A. What action is EPA proposing? 

B. History of EPA Actions on Texas Public 

Participation for Air Quality Permit 

Applications 

II. Summary of the State Submittals That EPA 

Is Reviewing 

A. July 22, 1998 

B. October 25, 1999 

C. July 2, 2010 

D. March 11, 2011 

E. What are we not addressing in this 

proposed action? 

III. Technical Analysis of the Texas Public 

Participation for Air Quality Permit 

Applications 

A. Public Participation for Prevention of 

Significant Deterioration (PSD) Permit 

Applications 

1. Analysis of Submitted Rules 

2. How do the Texas public notice 

provisions for PSD permit applications 

address the deficiencies identified in the 

proposed LA/LD? 

3. Proposed Findings Specific to the Texas 

Public Participation Provisions for PSD 

Permit Applications 

B. Public Participation for Nonattainment 

New Source Review (NNSR) Permit 

Applications 

1. Analysis of Submitted Rules 

2. Proposed Findings Specific to the Texas 

Public Participation Provisions for NNSR 

Permit Applications 

C. Public Participation for Plant-Wide 

Applicability Limit (PAL) Permit 

Applications 

1. Analysis of Submitted Rules 

2. How do the Texas public notice 

provisions for PAL permit applications 

address the deficiencies identified in the 

proposed LA/LD? 


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1EPA expanded the NSR regulations in 1973 to 

require public participation because EPA 

determined that public participation was necessary 

to maintain air quality as required by the CAA. See 

60 FR 45530, at 45548 (citing 38 FR 15834, 15836 

(1973) and NRDC v. EPA, No. 72–1522 (D.C. Cir.)). 

See also See 61 FR 38250, at 38276 and 38320. 

3. Proposed Findings Specific to the Texas 

Public Participation Provisions for PAL 

Permit Applications 

D. Public Participation for Minor NSR 

Permit Applications 

1. Analysis of Submitted Rules 

2. Minor NSR Public Notice Requirements 

Specific to Two Types of Minor NSR 

Permit Amendment Applications 

i. Identification of the Minor NSR Emission 

Thresholds and Affected Source 

Populations 

ii. How were the ‘‘De Minimis’’ and 

‘‘Insignificant’’ thresholds for minor NSR 

permit amendments established? 

(A). Texas ‘‘De Minimis’’ Thresholds for 

Minor Permit Amendments 

(B). Texas ‘‘Insignificant’’ Thresholds for 

Minor Permit Amendments for Selected 

Agricultural Facilities 

3. How do the Texas public notice 

provisions for minor NSR permit 

applications address the deficiencies 

identified in the proposed LA/LD? 

4. Proposed Findings Specific to the Texas 

Public Participation Provisions for Minor 

NSR Permitting 

E. Public Participation for Permit Renewal 

Applications 

1. Analysis of Submitted Rules 

2. Proposed Findings Specific to the Texas 

Public Participation Provisions for 

Permit Renewal Applications 

F. Does proposed approval of the Texas 

public participation provisions for air 

quality permit applications interfere 

with attainment, reasonable further 

progress, or any other applicable 

requirement of the Act? 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. Background for Our Proposed Action 

A. What action is EPA proposing? 

The Clean Air Act at section 

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

and implement permitting programs for 

attainment and nonattainment areas that 

cover both construction and 

modification of stationary sources. EPA 

codified minimum requirements for 

these State permitting programs 

including public participation and 

notification requirements at 40 CFR 

51.160–51.164. The EPA originally 

adopted these rules prior to the creation 

of the PSD permit program in 1977, 

which has additional detailed public 

participation requirements in 40 CFR 

51.166(q).1

EPA is proposing to approve 

submittals from the State of Texas as 

revisions to the Texas State 

Implementation Plan (SIP) that establish 

the public participation requirements 

for air quality permits. EPA proposes to 

find that these submitted revisions to 

the Texas SIP comply with the CAA and 

EPA regulations and are consistent with 

EPA policies. Texas submitted the 

public participation provisions in four 

separate submittals for approval to EPA 

as revisions to the SIP on July 22, 1998, 

October 25, 1999, July 2, 2010, and 

March 11, 2011. EPA is proposing this 

action under section 110 and parts C 

and D of the Clean Air Act (the Act). 

B. History of EPA Actions on Texas 

Public Participation for Air Quality 

Permit Applications 

The Texas SIP currently addresses 

public notice provisions for air quality 

permits through regulations adopted by 

the State on June 17, 1998, effective July 

8, 1998, at 30 TAC section 116.130— 

Applicability; section 116.131—Public 

Notification Requirements; section 

116.132—Public Notice Format; section 

116.133—Sign Posting Requirements; 

section 116.134—Notification of 

Affected Agencies; section 116.136— 

Public Comment Procedures; and 

section 116.137—Notification of Final 

Agency Action. EPA SIP-approved the 

submitted Sections 116.130, 116.131, 

116.132 (except subsections (c) and (d)), 

116.133 (except subsections (f) and (g)), 

116.134, 116.136, and 116.137 on 

September 18, 2002 (67 FR 58697), 

effective October 18, 2002. EPA SIPapproved the submitted Sections 

116.132(c) and (d) and 116.133(f) and (g) 

on March 10, 2006 (71 FR 12285), 

effective May 9, 2006. 

On November 26, 2008, EPA 

published a proposed limited approval/ 

limited disapproval (LA/LD) of three 

submittals from the State requesting 

approval of them as revisions to the 

Texas SIP pertaining to public notice for 

air quality permits (see 73 FR 72001). 

Our proposed LA/LD encompassed 

revisions submitted by the TCEQ on 

December 15, 1995; July 22, 1998; and 

October 25, 1999. Please see the 

Technical Support Document (TSD) 

accompanying this action for a complete 

list of the sections that were the subject 

of our proposed LA/LD. 

On June 2, 2010, the TCEQ adopted 

amendments to 30 TAC Chapter 39, 

Public Notice; Chapter 55, Requests for 

Reconsideration and Contested Case 

Hearings; Public Comment; and Chapter 

116, Control of Air Pollution by Permits 

for New Construction or Modification; 

and corresponding revisions to the 

Texas SIP. These revised rules were 

submitted for EPA approval as a SIP 

revision on July 2, 2010, to address our 

identified concerns in the proposed LA/ 

LD. 

At that time, TCEQ also adopted and 

submitted to EPA the withdrawal from 

consideration by EPA of revisions to the 

Texas SIP that were previously 

submitted to EPA on October 25, 1999; 

July 31, 2002; and March 9, 2006. Please 

see the July 2, 2010 SIP submittal cover 

letter and the TSD for a complete listing 

of the sections withdrawn. The cover 

letter and TSD can be found in the 

rulemaking docket for this action. To 

summarize the cover letter, on July 2, 

2010, the TCEQ withdrew from EPA’s 

consideration as revisions to the SIP all 

of the public participation rules 

previously submitted, except for three 

subsections: 30 TAC sections 39.411(a) 

and 55.152(b) as adopted in 1999, and 

currently amended 30 TAC section 

39.418(b)(3), submitted to EPA in 1999 

as section 39.418(b)(4). 

Upon receipt of the new public notice 

SIP revision submittal, EPA published a 

withdrawal of our proposed LA/LD on 

November 5, 2010 (see 75 FR 68291). In 

that notice we state that we withdrew 

our proposed LA/LD of 30 TAC sections 

39.201, 39.401, 39.403, 39.405, 39.409, 

39.411, 39.413, 39.418, 39.419, 39.420, 

39.423, 39.601–39.605, 55.1, 55.21, 

55.101, 55.103, 55.150, 55.152, 55.154, 

55.156, 55.200, 55.201, 55.203, 55.205, 

55.209, and 55.211 because these 

sections are no longer before us for 

consideration. Additionally, even 

though the TCEQ left before us for 

review sections 30 TAC 39.411(a), 

39.418(b)(4) and 55.152(b) as adopted 

October 25, 1999, we withdrew our 

proposed LA/LD of these subsections. 

We did not take any further action on 

these three subsections in the November 

5, 2010, notice because we concluded 

that it was the TCEQ’s intent that these 

three subsections be evaluated with the 

entirety of the new public participation 

submittal from July 2, 2010. Our 

rationale for this approach is fully 

explained in our November 5, 2010 

notice, which can be found in the 

docket for this rulemaking. In our 

November 5, 2010 FRN we also 

withdrew our proposed LA/LD of the 

submitted sections 116.111, 116.114, 

116.116, 116.183, 116.312 and 116.740. 

We withdrew our action on these 

submitted sections because they 

included cross-references to the Chapter 

39 public participation rules and we 

again concluded that it was the TCEQ’s 

intent for these sections to be evaluated 

with the entirety of the public 

participation submittal from July 2, 

2010. Our November 5, 2010 FRN did 

not address the submitted repeal of 

section 116.124; nor has TCEQ 

withdrawn this repeal from our 

consideration. Therefore, the October 


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2The Texas Natural Resource Conservation 

Commission is a predecessor agency to the Texas 

Commission on Environmental Quality. In general, this proposed action will refer to the agency as the 

TCEQ. 

25, 1999 submitted repeal of section 

116.124 remains before EPA for review. 

II. Summary of the State Submittals 

That EPA Is Reviewing 

EPA’s proposed approval action today 

addresses portions of four revisions to 

the Texas SIP submitted on July 22, 

1998, October 25, 1999, July 2, 2010, 

and March 11, 2011. 

A. July 22, 1998 

On June 17, 1998, the Texas Natural 

Resource Conservation Commission 2

made general corrections and 

clarifications to 30 TAC Chapter 116— 

Control of Air Pollution by Permits for 

New Construction or Modification. 

Governor George W. Bush submitted 

these amendments to EPA for approval 

as revisions to the Texas SIP in a letter 

dated July 22, 1998. EPA has taken 

several rulemaking actions over the 

years on this submitted SIP revision 

package. However, we have not 

previously addressed the submittal of 

the public participation provisions for 

permit renewal applications at 30 TAC 

116.312. Note that the July 22, 1998 

submittal of section 116.312 included a 

repeal and replacement of section 

116.312 as submitted December 15, 

1995. Therefore, section 116.312 as 

submitted July 22, 1998 remains before 

us for review and supersedes the 

December 15, 1995 submittal. 

B. October 25, 1999 

On September 2 and September 29, 

1999, the TCEQ adopted regulations to 

implement Texas House Bill 801 to 

establish new procedures for public 

participation in environmental 

permitting. Governor George W. Bush 

submitted these amendments to EPA for 

approval as revisions to the Texas SIP 

in a letter dated October 25, 1999. The 

State also submitted the repeal of 

section 116.124 at that time. On July 2, 

2010, the TCEQ formally withdrew from 

our consideration all submitted 

components of the October 25, 1999, 

submittal, with the exception of sections 

39.411(a), 39.418(b)(4), 55.152(b), 

116.111(b), 116.114(a)(2), 

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

116.114(b)(1), 116.114(c)(1)–(3), 

116.116(b)(4) and 116.312. These 

sections were retained for EPA review 

and will be analyzed with the entirety 

of the Public Participation revisions 

submitted on July 2, 2010. 

C. July 2, 2010 

On June 2, 2010, the TCEQ adopted 

new and revised regulations concerning 

Public Notice at 30 TAC Chapter 39; 

Requests for Reconsideration and 

Contested Case Hearings; Public Notice 

at 30 TAC Chapter 55; and Control of 

Air Pollution by Permits for New 

Construction or Modification at 30 TAC 

Chapter 116. Chairman Bryan W. Shaw, 

Ph.D., submitted these amendments to 

EPA for approval as revisions to the 

Texas SIP in a letter dated July 2, 2010. 

The amendments submitted for 

approval as revisions to the Texas SIP 

are as follows: 30 TAC Sections 

39.402(a)(1)–(6), (8), and (10)–(12); 

39.405(f)(3) and (g), (h)(1)(A)–(4), (6), 

(8)–(11), (i) and (j); 39.407; 39.409; 

39.411(e)(1)–(4)(A)(i) and (iii), (4)(B), 

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

(iii) and (iv), (11)(B)–(F), (13) and (15), 

and (f)(1)–(8), (g) and (h); 39.418(a), 

(b)(2)(A) and (c); 39.419(e); 

39.420(c)(1)(A)–(D)(i)(I) and (II), (D)(ii), 

(c)(2), (d)–(e), and (h); 39.601; 39.602; 

39.603; 39.604; 39.605; 55.150; 

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

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

55.156(a), (b), (c)(1), (e) and (g); 

116.114(a)(2)(B), (a)(2)(C), (c)(2), and 

(c)(3); and 116.194. As a result of the 

submitted amendments to 30 TAC 

Sections 39.411(f)(8)(A) and 

39.605(1)(D), the TCEQ requested on 

July 2, 2010, that EPA remove from the 

Texas SIP the corresponding two 

commitments from paragraph 7 of the 

July 17, 1987 Texas PSD Supplement. 

On July 2, 2010, the TCEQ also 

submitted a request to withdraw from 

consideration by the EPA, the new and 

amended rules that were previously 

submitted to EPA for approval as 

revisions to the SIP on October 25, 1999; 

July 31, 2002; and March 9, 2006. The 

TCEQ’s letter withdrew from our 

consideration all sections of the 1999, 

2002, and 2006 submittals except for 30 

TAC sections 39.411(a) and 55.152(b) as 

adopted in 1999, and section 

39.418(b)(3), submitted in 1999 as 

section 39.418(b)(4). 

D. March 11, 2011 

The TCEQ originally adopted 30 TAC 

Section 116.194 on January 11, 2006, to 

establish the public notice provisions 

for PAL permit applications. The TCEQ 

submitted these revisions to EPA on 

February 1, 2006 as a SIP submittal. 

EPA disapproved these provisions for 

PAL public notice on September 15, 

2010. See 75 FR 56424. On March 11, 

2011, the TCEQ resubmitted section 

116.194 as adopted January 11, 2006, in 

addition to the July 2, 2010 amendments 

to section 116.194. Therefore, section 

116.194 as adopted on January 11, 2006, 

and amended on July 2, 2010, remains 

before us for review. 

The following table identifies the 

specific sections that were submitted for 

EPA review and approval into the Texas 

SIP. 

TABLE 1—RULES SUBMITTED IN EACH SIP REVISION SUBMITTAL THAT ARE AFFECTED BY THIS PROPOSED ACTION

Section title Texas rule 

project number State submittal date State adoption date Rules addressed in this action 

30 TAC 39.402—Applicability 

to Air Quality Permits and 

Permit Amendments.

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.402(a)(1)–(3), (a)(6) proposed for approval. 

30 TAC 39.405—General Notice Provisions.2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.405(f)(3) and (g), (h)(1)(A), 

(h)(2)–(h)(4), (h)(6), (h)(8)– 

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

for approval. 

30 TAC 39.407—Mailing Lists 2010–004–039–LS ........ July 2, 2010 .................. September 2, 1999 ....... 39.407 resubmitted on July 2, 

2010. 

30 TAC 39.409—Deadline for 

Public Comment, and Requests for Reconsideration, 

Contested Case Hearing, or 

Notice and Comment Hearing.

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.409 proposed for approval. 


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TABLE 1—RULES SUBMITTED IN EACH SIP REVISION SUBMITTAL THAT ARE AFFECTED BY THIS PROPOSED ACTION— 

Continued 

Section title Texas rule 

project number State submittal date State adoption date Rules addressed in this action 

30 TAC 39.411—Text of Public 

Notice.

99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... 39.411(a) proposed for approval. 

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.411(e)(1)–(4)(A)(i) and (iii), 

(4)(B), (5)(A) and (B), (6)– 

(10), (11)(A)(i), (iii) and (iv), 

(11)(B)–(F), (13) and (15), 

and (f)(1)–(8), (g) and (h) 

proposed for approval. 

30 TAC 39.418—Notice of Receipt of Application and Intent to Obtain Permit.99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... 39.418(b)(4) proposed for approval; note that this section 

was renumbered to 

39.418(b)(3) as a result of 

the July 2010 submittal. 

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.418(a), (b)(2)(A), (b)(3) and 

(c) Proposed for approval. 

30 TAC 39.419—Notice of Application and Preliminary Decision.2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.419(e) proposed for approval. 

30 TAC 39.420—Transmittal of 

the Executive Director’s Response to Comments and 

Decision.

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.420(c)(1)(A)—(D)(i)(I) and 

(II), (D)(ii), (c)(2), (d)–(e) 

proposed for approval. 

30 TAC 39.601—Applicability .. 2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.601 proposed for approval. 

30 TAC 39.602—Mailed Notice 2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.602 proposed for approval. 

30 TAC 39.603—Newspaper 

Notice.

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.603 proposed for approval. 

30 TAC 39.604—Sign-Posting 2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.604 proposed for approval. 

30 TAC 39.605—Notice to Affected Agencies.2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 39.605 proposed for approval. 

30 TAC 55.150—Applicability .. 2010–004–039–LS ........ July 2, 2010 .................. June 14, 2006 ............... 55.150 was adopted in 2006 

but submitted as part of the 

2010 SIP package. 

30 TAC 55.152—Public Comment Period.99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... 55.152(b) proposed for approval. 

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. Subsections 55.152(a)(1), (2), 

(5) and (6) proposed for approval. 

30 TAC 55.154—Public Meetings.2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. Subsections 55.154(a), (b), 

(c)(1)–(3) and (5), (d)–(g) 

proposed for approval. 

30 TAC 55.156—Public Comment Processing.2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. Subsections 55.156(a), (b), 

(c)(1), (e) and (g) proposed 

for approval. 

30 TAC 116.111—General Application.99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... 116.111(b) introductory paragraph and (1) and (2) proposed for approval. 

30 TAC 116.114—Application 

Review Schedule.

99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... Revisions to 116.114(a)(2) introductory paragraph, new 

(a)(2)(A), new (a)(2)(B), revisions to (b)(1), and new 

(c)(1)–(3) proposed for approval. 

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. Revisions to 116.114(a)(2)(B) 

and (a)(2)(C), (c)(2) and revisions to (c)(3) proposed 

for approval. 

30 TAC 116.116—Changes to 

Facilities.

99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... New 116.116(b)(4) proposed 

for approval. 

30 TAC 116.124—Public Notice of Compliance History.98001–116–AI ............... July 22, 1998 ................ SECTION REPEALED .. SECTION PROPOSED FOR 

REPEAL. 

30 TAC 116.194—Public Notification and Comment.2005–010–116–PR ....... February 1, 2006 .......... January 11, 2006 .......... Disapproved by EPA September 15, 2010. See 75 

FR 56424. 

2010–004–039–LS ........ July 2, 2010 .................. June 2, 2010 ................. 116.194(a) and (b) proposed 

for approval. 

2010–008–116–PR ....... March 11, 2011 ............. January 11, 2006 .......... Resubmittal of the January 11, 

2006 adoption of 116.194 

Proposed for approval. 


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TABLE 1—RULES SUBMITTED IN EACH SIP REVISION SUBMITTAL THAT ARE AFFECTED BY THIS PROPOSED ACTION— 

Continued 

Section title Texas rule 

project number State submittal date State adoption date Rules addressed in this action 

30 TAC 116.312—Public Notification and Comment Procedures.98001–116–AI ............... July 22, 1998 ................ June 17, 1998 ............... Repealed previous 116.312 

that was SIP approved; 

New adoption of 116.312 proposed for approval. 

99030–039–AD ............. October 25, 1999 .......... September 2, 1999 ....... Revised to cross-reference 

Chapter 39 procedures. 

E. What are we not addressing in this 

proposed action? 

EPA is severing and taking no action 

on section 116.116(b)(3) as it was 

submitted on October 25, 1999. Section 

116.116(b)(3) applies to the review and 

permitting of constructed and 

reconstructed major sources of 

hazardous air pollutants (HAPs) under 

section 112(g) of the Act and 40 CFR 

Part 63, Subpart B. The process for 

implementing these provisions is 

carried out separately from a SIP. SIPs 

cover criteria pollutants and their 

precursors, as regulated by NAAQS. 

Section 112(g) of the Act regulates 

HAPs, this program is not under the 

auspices of a CAA section 110 SIP, and 

this program should not be approved 

into a SIP. Additionally, the submitted 

section 116.116(b)(3) is severable from 

the remainder of the Texas public 

participation submittals. Because the 

requirements under section 112(g) are 

self-implementing under section 112(g) 

of the Act and under 40 CFR part 63, 

Subpart B, EPA is severing and taking 

no action on section 116.116(b)(3). 

Additionally, EPA is severing and 

taking no action at this time on the 

following public participation 

provisions that were submitted as SIP 

revisions in the July 2, 2010 submittal: 

• Sections 39.402(a)(4) and (a)(5) 

establishing applicability of public 

notice provisions for new Flexible 

Permits and amendments to Flexible 

Permits under 30 TAC Chapter 116. EPA 

finds it appropriate to sever and take no 

action on these Flexible Permit 

provisions because the Flexible Permits 

Program is not currently in the Texas 

SIP. We disapproved the Flexible 

Permits Program on July 15, 2010 (75 FR 

41312). EPA’s disapproval was 

remanded for further action on August 

13, 2012. State of Texas, et al. v. EPA, 

Case No. 10–60614 (5th Circuit, Aug. 13, 

2012). TCEQ has revised its rules for the 

Flexible Permits Program, but the State 

has not yet submitted those revised 

rules. If TCEQ submits revised rules for 

the Flexible Permits Program in the near 

future, EPA will analyze the public 

notice provisions for Flexible Permits 

when we take action on that submittal. 

Alternatively, EPA will analyze and act 

on the public notice provisions for 

Flexible Permits when we address the 

Flexible Permits Program submittal that 

is in front of us for SIP approval. 

• Sections 39.402(a)(10) and 

39.419(e)(3) establishing applicability of 

public notice provisions for applications 

for permits, registrations, licenses, or 

other types of authorizations required to 

construct, operate or authorize a 

component of the Future Gen. We are 

severing and taking no action on Section 

39.420(h) which establishes response to 

comment (RTC) procedures for permit 

applications for Permits for Specific 

Designated Facilities under 30 TAC 

Chapter 116, Subchapter L. EPA finds it 

appropriate to sever and take no action 

on the Future Gen public notice 

provisions and the response to comment 

procedures because we have not yet 

acted on the underlying Future Gen 

permit rules at 30 TAC Chapter 116, 

Subchapter L. We will review and 

analyze the public notice provisions for 

Future Gen when we take action on this 

permit program. 

• Section 39.402(a)(12) establishing 

public participation provisions 

pertaining to change of location of a 

portable facility, consistent with the 

requirements of 30 TAC section 

116.178. EPA has not taken action on 

the underlying permit provisions for the 

Relocations and Changes of Location of 

Portable Facilities. We will analyze the 

public notice provisions for change of 

location of portable facilities when we 

take action on the underlying permit 

provisions at section 116.178. 

• Section 39.405(h)(1)(B) providing 

alternate language newspaper notice 

requirements for permit applications 

that are not air quality permit 

applications. Permit applications that 

are not air quality permit applications 

are beyond the scope of the Texas SIP. 

III. Technical Analysis of the Texas 

Public Participation for Air Quality 

Permit Applications 

The Texas air quality permitting 

program consists of several different 

types of permit actions including 

permits for new major sources or 

modifications subject to PSD or NNSR 

requirements, PAL permit 

authorizations at existing major sources, 

new minor sources or minor 

amendments, and permit renewals. The 

Texas public participation program is 

also tiered, providing different levels 

and scope of public participation to 

correspond with the type of permit 

action. The following sections of this 

proposed action and the accompanying 

TSD will analyze the public 

participation process for each type of 

permit action to determine whether the 

submitted process is consistent with 

federal requirements. 

The Texas public participation 

requirements for air quality permit 

applications are found in three chapters 

of the TAC: Chapters 39, 55, and 116. 

Chapter 39 establishes applicability and 

general processes and requirements for 

the public notice documentation. 

Chapter 55 establishes general 

requirements for public comment 

periods, public meetings and processing 

of public comments. Chapter 116 

provides general timelines for public 

comment period and applicability. Each 

type of air quality permit application 

follows the same general public notice 

procedures as outlined below: 

1. Applicant submits air quality 

permit application to TCEQ. 

2. TCEQ reviews the application and 

determines whether the application is 

administratively complete. During this 

process, the TCEQ has 90 days to 

determine the application is complete or 

request additional information. See 30 

TAC 116.114(a)(1). 

3. Once the application is 

administratively complete, the applicant 

is required to publish the first notice, 

the Notice of Receipt of Application and 

Intent to Obtain Permit (NORI), as 

applicable. See 30 TAC 39.418. The 

NORI is a unique feature of the Texas 

Public Notice Process. The NORI 

provides information to the public about 

the receipt of an application and 

provides basic information about the 

proposed new source or modification 


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such as a description of the location and 

the nature of the proposed activity, a 

description of the public comment 

process, and the location where 

materials will be made available for 

review. The NORI does not provide any 

technical information, but rather serves 

as an indicator of future public notices 

and actions that may be of interest, 

enabling the public to anticipate draft 

permits. The NORI is required for all air 

quality permit applications subject to 

the Chapter 39 public notice provisions 

except for PAL permit applications. 

Note that certain permit amendments 

are exempted from the Chapter 39 

public notice provisions as discussed in 

Section III.D of this proposed action. 

4. TCEQ completes the technical 

review and makes a preliminary 

decision. The TCEQ has 180 days from 

the date a new permit application is 

administratively complete, or 150 days 

from the date a permit amendment 

application is administratively 

complete, to conduct the technical 

review and make a preliminary 

decision. See 30 TAC 116.114(a)(2). 

5. The applicant is required to publish 

the second notice, the Notice of 

Application and Preliminary Decision 

(NAPD) when notified by TCEQ of the 

preliminary decision. See 30 TAC 

39.419. The NAPD notice provides the 

information and notice to the public 

consistent with federal requirements. 

The NAPD provides details about the 

preliminary decision and draft permit 

and the location where applicable air 

quality analyses and other technical 

materials will be made available for 

public review. Additionally for PSD 

permit applications, the NAPD includes 

the degree of increment consumption 

that is expected. The NAPD is required 

for all air quality permit applications 

subject to the Chapter 39 public notice 

provisions with the exception of permit 

renewals. The NAPD may be required 

for permit renewal applications 

depending on the details of the action. 

Note that certain permit amendments 

are exempted from the Chapter 39 

public notice provisions as discussed in 

Section III.D of this proposed action. 

6. The TCEQ files the Executive 

Director’s (ED) draft permit and 

preliminary decision, the preliminary 

determination summary and air quality 

analysis with the chief clerk and the 

clerk posts this information on the 

TCEQ’s Web site. See 30 TAC 39.419(e). 

7. The comment period runs for 30 

days after the last publication of the 

NAPD discussed in Step 5. See 30 TAC 

55.152(a)(1). 

8. A public meeting is held if the ED 

determines there is a substantial or 

significant degree of public interest; if 

the meeting is requested by a member of 

the legislature representing the general 

area of the proposed facility/ 

modification; if a public meeting is 

otherwise required by law; or, in the 

case of a PSD or NNSR permits, the 

meeting is requested by an interested 

person. See 30 TAC 55.154(c). 

9. The ED prepares a response to all 

comments received. See 30 TAC 

55.156(b)(1). 

10. The ED files the response to 

comments with the chief clerk as soon 

as practicable, but not later than 60 days 

after the end of the comment period. See 

30 TAC 55.156(b)(3). 

11. The chief clerk will mail or 

transmit the ED decision and the RTC to 

the applicant, any person who 

submitted comments and any person on 

the mailing list for the permit action. 

See 30 TAC 55.156(c). 

12. The ED will take final action on 

the permit application within one year 

of a complete PSD, NNSR, or PAL 

permit application. The ED will take 

final action on the permit application 

within 150 days of receipt of a permit 

amendment application or 180 days for 

a permit application that is not a PSD/ 

NNSR/PAL application (i.e, application 

for new minor or a renewal application). 

The TCEQ’s one-year clock is based on 

the completion of the technical review 

and the publication of the NAPD as 

provided in Step 5. See 30 TAC 

116.114(c)(3). 

A. Public Participation for Prevention of 

Significant Deterioration (PSD) Permit 

Applications 

1. Analysis of Submitted Rules 

Federal public participation 

requirements for PSD permit 

applications are at 40 CFR 51.160, 

51.161, and 51.166(q). In Texas, 30 TAC 

39.402(a)(2) establishes that the 

requirements found in 30 TAC Chapter 

39, Subchapters H and K apply to 

applications for the new major sources 

or major modifications for facilities 

subject to Chapter 116, Subchapter B, 

Division 6 (PSD permits). Every 

application for a new major source or 

major modification subject to PSD 

permitting requirements will go through 

public notice with both the NORI and 

NAPD. Note that the applicant is legally 

responsible for the publication of the 

NORI and NAPD, using the specific 

notice text provided through regulations 

by the TCEQ. The applicant is also 

legally responsible for providing copies 

of the public notice documents to the 

EPA Regional Office, local air pollution 

control agencies with jurisdiction in the 

county, and air pollution control 

agencies of nearby states that may be 

impacted by the proposed new source or 

modification. The submitted Texas 

public participation rules establish that 

the applicant, rather than the State 

permitting authority, as the legally 

responsible party for satisfying the 

public notice requirements for PSD 

applications. The applicant is required 

to follow the Texas public notice 

regulations, which specify the text for 

the notice documents and specify the 

additional agencies that will receive 

notice. EPA is proposing to find that the 

submitted Texas public participation 

regulations identifying the applicant as 

the legally responsible party meet the 

requirements to provide opportunity for 

public comment and for information 

availability at 40 CFR 51.161 and 

51.166. The NORI and NAPD both 

identify locations where materials, 

including the draft permit and all 

technical materials supporting the 

decision, will be made available for 

public review. The TCEQ will also 

respond to each comment received 

when making a final permit decision. 

The TCEQ will provide opportunity for 

a public meeting on the permit 

application if requested. 

2. How do the Texas public notice 

provisions for PSD permit applications 

address the deficiencies identified in 

the proposed LA/LD? 

On November 26, 2008, EPA 

identified several deficiencies in the 

Texas public participation rules specific 

to new major sources and modifications 

subject to PSD permitting requirements. 

See 73 FR 72001, at 72007–72008. 

Below we reiterate the deficiencies and 

discuss how the revised Texas public 

participation process for PSD 

applications addresses our concerns. 

Please also see section IV.B. of the 

accompanying TSD. 

• The public participation rules do 

not require the TCEQ to provide an 

opportunity for a public hearing for 

interested persons to appear and submit 

written or oral comment on the air 

quality impact of the source, 

alternatives to it, the control technology 

required, and appropriate 

considerations and to provide notice of 

the opportunity for a public hearing, as 

required by 40 CFR 51.166(q)(2)(v). 

In the Texas air permit program, the 

term ‘‘public meeting’’ is equivalent to 

EPA’s term ‘‘public hearing’’. Section 

55.154(a) as submitted July 2, 2010, 

supports this by stating the purpose of 

a public meeting is to take public 

comment. Section 55.154(c)(3) as 

submitted July 2, 2010, specifies that a 

public meeting will be held for PSD 

permit applications when requested by 

interested persons. Additionally, the 


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NAPD notice for the PSD permit 

includes the statement that a public 

meeting will be held upon request by 

interested individuals. See 30 TAC 

39.411(f)(8)(D). The revised public 

participation SIP submittals address 

EPA’s concerns and resolve the 

identified deficiency. 

• The public participation rules do 

not require that the public notice of a 

PSD permit contain the degree of 

increment consumption that is expected 

from the source or modification as 

required by 40 CFR 51.166(q)(2)(iii). 

The revised public participation SIP 

submittals address EPA’s concerns. The 

NAPD notice provisions at 

39.411(f)(8)(A) require the public notice 

document to include the expected 

degree of increment consumption. Note 

that the requirement to public notice the 

expected degree of increment 

consumption was previously part of 

paragraph 7 of the Texas PSD 

Supplement, as submitted to EPA on 

July 17, 1987, and approved as part of 

the Texas PSD SIP. On July 2, 2010, the 

TCEQ officially requested to withdraw 

this provision of the Texas PSD 

Supplement from the Texas SIP and 

requested that EPA approve the 

provision at 39.411(f)(8) into the Texas 

SIP in its place. We are proposing that 

upon final EPA-approval of 30 TAC 

39.411(f)(8) into the Texas SIP, EPA will 

also revise the table at 40 CFR 

52.2270(e) to state that the 

corresponding commitment in 

paragraph 7 of the PSD supplement has 

been removed from the Texas SIP and 

replaced by SIP-approved regulation at 

39.411(f)(8)(A). 

• The public participation rules do 

not require a copy of the public notice 

of a PSD permit to be sent to State and 

local air pollution control agencies, the 

chief executives of the city and county 

where the source would be located and 

any State or Federal Land Manager or 

Indian Governing Body whose lands 

may be affected by emissions from the 

source or modification, as required by 

40 CFR 51.166(q)(2)(iv). 

The revised public participation SIP 

submittals address EPA’s concerns. 

Section 39.605 specifies that the 

applicant will provide a copy of the 

public notice to the list of individuals 

who will receive notice of PSD permit 

applications, consistent with federal 

requirements. Note that the requirement 

to send a copy of the public notice of 

a PSD permit application was 

previously part of paragraph 7 of the 

Texas PSD Supplement, as submitted to 

EPA on July 17, 1987, and approved as 

part of the Texas PSD SIP. On July 2, 

2010, the TCEQ officially requested to 

withdraw this provision of the Texas 

PSD Supplement from the Texas SIP 

and requested that EPA approve the 

provision at 39.605 into the Texas SIP 

in its place. We are proposing that upon 

final EPA-approval of 30 TAC 39.605 

into the Texas SIP, EPA will also revise 

the table at 40 CFR 52.2270(e) to state 

that the corresponding commitment in 

paragraph 7 of the PSD supplement has 

been removed from the Texas SIP and 

replaced by SIP-approved regulation at 

39.605(1)(D). 

• The public participation rules do 

not require that a response to comments 

be available prior to final action on the 

PSD permit, as required by 40 CFR 

51.166(q)(2)(vi) and (viii). 

The current public participation SIP 

submittals address EPA’s concerns and 

resolve the identified deficiency. EPA’s 

PSD rules do not require that a 

permitting authority provide a response 

to comments prior to final action on the 

PSD permit. Rather, EPA’s rules at 40 

CFR 51.166(q)(2)(vi) require that the 

permitting authority consider all timely 

comments and make said comments 

available at the same location as the 

preconstruction materials used in the 

permitting decision. The Texas rules at 

30 TAC 55.156(b)(1) comply with EPA 

regulations by requiring that the TCEQ 

consider all timely, relevant and 

material, or significant public comment 

before an application is approved. 

Further, when making PSD permit 

decisions, 30 TAC 55.156(b)(1) 

specifically requires that the TCEQ ED 

prepare a response to all comments 

received. The Texas rules at 30 TAC 

55.156(b)(1) also require that a response 

to comments document be prepared 

prior to the final action on the permit. 

Interested individuals have access to the 

response to comments document for 

each permitting action through the 

TCEQ’s Web site; the address of which 

is provided in each NAPD notice. The 

RTC includes a summary of each 

comment received. The actual comment 

letters can be obtained from the TCEQ 

offices. 

3. Proposed Findings Specific to the 

Texas Public Participation Provisions 

for PSD Permit Applications 

EPA’s analysis of the Texas public 

participation requirements for PSD 

permit applications demonstrates that 

the submitted provisions are consistent 

with the Act and EPA regulations at 40 

CFR 51.160, 51.161 and 51.166(q). 

Further, the submitted provisions 

address all deficiencies previously cited 

in our November 26, 2008 proposed 

limited approval/limited disapproval of 

Texas public notice requirements. 

Therefore, we propose full approval of 

the Texas public notice provisions for 

PSD permit applications submitted on 

July 22, 1998; October 25, 1999; and 

July 2, 2010. 

B. Public Participation for 

Nonattainment New Source Review 

(NNSR) Permit Applications 

1. Analysis of Submitted Rules 

Federal public participation 

requirements for NNSR permit 

applications are at 40 CFR 51.160 and 

51.161. Submitted section 30 TAC 

39.402(a)(2) establishes that the 

requirements found in 30 TAC Chapter 

39, Subchapters H and K apply to 

applications for new major sources or 

major modifications for facilities subject 

to Chapter 116, Subchapter B, Division 

5 (NNSR permits). Every application for 

a new major source or major 

modification subject to NNSR 

permitting requirements will go through 

public notice with both NORI and 

NAPD. Note that the applicant is legally 

responsible for the publication of the 

NORI and NAPD, using the specific 

notice text provided through regulations 

by the TCEQ. The applicant is also 

legally responsible for providing copies 

of the public notice documents to the 

EPA Regional Office, local air pollution 

control agencies with jurisdiction in the 

county, and air pollution control 

agencies of nearby states that may be 

impacted by the proposed new source or 

modification. The submitted Texas 

public participation rules establish the 

applicant, instead of the State 

permitting authority, as the legally 

responsible party for satisfying the 

public notice requirements for PSD 

applications. The applicant is required 

to follow the Texas public notice 

regulations, which specify the text for 

the notice documents and specify the 

additional agencies that will receive 

notice. EPA is proposing to find that the 

submitted Texas public participation 

regulations identifying the applicant as 

the legally responsible party meet the 

requirements to provide opportunity for 

public comment and for information 

availability at 40 CFR 51.161. The NORI 

and NAPD both identify locations where 

materials, including the draft permit 

and all technical materials supporting 

the decision, will be made available for 

public review. The TCEQ will respond 

to each comment received when making 

a final permit decision. The TCEQ will 

also provide opportunity for a public 

meeting on the permit application if 

requested. 


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2. Proposed Findings Specific to the 

Texas Public Participation Provisions 

for NNSR Permit Applications 

As explained fully in the 

accompanying TSD, EPA finds that the 

public notice process described above 

for NNSR permit applications satisfies 

the federal requirements for public 

notice found at 40 CFR 51.160, 51.161. 

Also, EPA did not identify any NNSRspecific deficiencies in our November 

26, 2008 proposed limited approval/ 

limited disapproval. Therefore, we 

propose full approval of the Texas 

public notice provisions for NNSR 

permit applications submitted on July 

22, 1998; October 25, 1999; and July 2, 

2010. 

C. Public Participation for Plant-Wide 

Applicability Limit (PAL) Permit 

Applications 

1. Analysis of Submitted Rules 

Federal public participation 

requirements for PALs are established at 

40 CFR 51.165(f)(4)(B) and (f)(5) and 

51.166(w)(4)(b) and (w)(5). Each of these 

sections specify that PALs for existing 

major stationary sources shall be 

established, renewed, or increased 

through a procedure that is consistent 

with 40 CFR 51.160 and 51.161. 

Additionally, sections 51.165(f)(5) and 

51.166(w)(5) require the reviewing 

authority provide the public with notice 

of the proposed approval of a PAL 

permit; at least a 30-day period for 

submittal of public comment; and the 

reviewing authority must address all 

material comments before taking final 

action on the permit. Submitted Section 

39.402(a)(8) establishes that the 

requirements found in 30 TAC Chapter 

39, Subchapters H and K apply to 

applications for the establishment or 

renewal of, or an increase in, plant-wide 

applicability limit permits under 30 

TAC Chapter 116, Subchapter C. Unlike 

the public notice provisions for PSD and 

NNSR permit applications, the Texas 

public notice process for PAL permit 

applications only requires publication 

of the NAPD. Because the NORI is a 

unique element to the Texas permit 

program that is not federally required, 

the NAPD is sufficient to satisfy federal 

requirements for notice. The Texas rules 

at 30 TAC 55.152(a)(1) require a 30-day 

comment period following the 

publication of the NAPD. And TCEQ’s 

comment processing procedures at 30 

TAC 55.156(b)(1) require that the TCEQ 

ED prepare a response to all comments 

received for any application for the 

establishment or renewal of, or an 

increase in, a PAL permit. 

2. How do the Texas public notice 

provisions for PAL permit applications 

address the deficiencies identified in 

the proposed LA/LD? 

On November 26, 2008, EPA 

identified several PAL-specific 

deficiencies in the Texas public 

participation rules. See 73 FR 72001, at 

72008. Below we reiterate the 

deficiencies and discuss how the 

revised Texas public participation 

process for PAL applications addresses 

our concerns. Please also see section 

IV.D. of the accompanying TSD. 

• For PALs for existing major 

stationary sources, there is no provision 

that PALs be established, renewed, or 

increased through a procedure that is 

consistent with 40 CFR 51.160 and 

51.161, including the requirement that 

the reviewing authority provide the 

public with notice of the proposed 

approval of a PAL permit and at least 

a 30-day period for submittal of public 

comment, consistent with federal PAL 

rules at 40 CFR 51.165(f)(5) and (11) 

and 51.166(w)(5) and (11). 

The July 2, 2010 public participation 

submittal includes section 39.402(a)(8). 

Section 39.402(a)(8) specifies that the 

Chapter 39 provisions apply to the 

applications for the establishment or 

renewal of, or an increase in, PAL 

permit. Tables IV.D–1 and D–2 in our 

TSD demonstrate that the July 2, 2010 

submittal satisfies requirements at 40 

CFR 51.160 and 161. Table IV.D–3 in 

our TSD demonstrates how the July 2, 

2010 submittal satisfies 40 CFR 

51.165(f)(5) and (11) and 51.166(w)(5) 

and (11). The July 2, 2010 public 

participation submittal addresses EPA’s 

concerns and resolves the identified 

deficiency. 

• For PALs for existing major 

stationary sources, there is no 

requirement that the State address all 

material comments before taking final 

action on the permit, consistent with 40 

CFR 51.165(f)(5) and 51.166(w)(5). 

Sections 39.411(e)(4)(A)(i), 

39.411(f)(1) and 55.156(b)(1) as 

submitted July 2, 2010 satisfy the 

requirement that the TCEQ address all 

comments before approving a PAL 

permit application. The July 2, 2010 

public participation submittal addresses 

EPA’s concerns and resolves the 

identified deficiency. 

• The applicability provision in 

section 39.403 does not include PALs, 

despite the cross-reference to Chapter 

39 in Section 116.194. 

The July 2, 2010 public participation 

submittal included section 39.402(a)(8). 

Section 39.402(a)(8) specifies that the 

Chapter 39 provisions apply to the 

applications for the establishment or 

renewal of, or an increase in, a PAL 

permit. The July 2, 2010 public 

participation SIP submittal addresses 

EPA’s concerns and resolves the 

identified deficiency. 

3. Proposed Findings Specific to the 

Texas Public Participation Provisions 

for PAL Permit Applications 

EPA’s analysis of the Texas public 

participation requirements for PAL 

permit applications demonstrates that 

the submitted provisions are consistent 

with the Act, EPA regulations at 40 CFR 

51.160, 51.161, 51.165(f)(4)(B) and (f)(5) 

and 51.166(w)(f)(4)(b) and (w)(5). 

Further, the submitted rules address all 

deficiencies previously cited in our 

November 26, 2008 proposed limited 

approval/limited disapproval of Texas 

public notice requirements. Therefore, 

we propose full approval of the Texas 

public notice provisions for PAL permit 

applications submitted on July 2, 2010, 

and March 11, 2011. 

D. Public Participation for Minor NSR 

Permit Applications 

1. Analysis of Submitted Rules 

TCEQ’s revised regulations for public 

participation increase opportunities for 

public involvement in Minor NSR 

permitting decisions compared to the 

current SIP-approved provisions. 

TCEQ’s current SIP-approved rules at 30 

TAC 116.130(a) require public notice 

with the NORI and NAPD for every 

application for a new minor source. 

However, for permit amendment 

applications, the current SIP-approved 

rules only require public notice at the 

discretion of the TCEQ Executive 

Director. This means that under the 

existing SIP-approved regulations, many 

permit amendments are not subject to 

public notice requirements, and that 

these rules do not specifically define the 

conditions upon which the Executive 

Director can require public notice. 

TCEQ’s revised rules continue to require 

that all applications for new Minor NSR 

sources go through full public notice 

with the NORI and NAPD, improve the 

public notice opportunities for permit 

amendments, and define conditions for 

use of the Executive Director’s 

discretion. 

TCEQ’s revised rules enhance public 

participation by creating tiered, public 

notice requirements for permit 

amendments. Unlike the existing SIP 

regulations, the revised rules now 

require that most of permit amendments 

go through full public notice with the 

NORI and NAPD. This includes changes 

to the permits that authorize a change in 

the character of emissions or a release 

of an air contaminant not previously 


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3See Ala. Power Co. v. Costle, 636 F.2d 323 (D.C. 

Cir. 1979). 

4New minor permit actions do not include 

Permits-by-Rule (PBRs) or Standard Permits (SPs). 

New minor permit actions are authorized under the 

SIP-approved provisions at 30 TAC Chapter 116, 

Subchapter B. PBRs and SPs are separately 

authorized under SIP-approved provisions at 30 

TAC Chapter 106 and Chapter 116, Subchapter F, 

respectively. Public notice for PBRs and SPs is 

outside the scope of the state’s July 2, 2010 SIP 

submittal or the action today. 

5EPA SIP-approved the Texas permit amendment 

process at 30 TAC 116.116(b)(1) and (b)(2) on 

November 14, 2003 as adopted by the TCEQ on 

August 9, 2000 (see 68 FR 64543). These provisions 

provide that the permit holder shall not vary from 

any representation or permit condition without 

obtaining a permit amendment if the change will 

cause (A) a change in the method of control of 

emissions; (B) a change in the character of the 

emissions; or (C) an increase in the emission rate 

of any air contaminant. Further, any applicant who 

requests permit amendments must receive prior 

approval by the TCEQ ED or the commission. 

Applications for amendments are subject to the 

requirements of 30 TAC 116.111. The current SIP 

requirements of 30 TAC 116.111 were SIP-approved 

by EPA on August 28, 2007 as adopted by the TCEQ 

on August 21, 2002 (see 72 FR 49198). 

6THSC, § 382.020 establishes emission control 

requirements for selected agricultural facilities such 

as cotton gins, corn mills, grain elevators, peanut 

processing and rice drying facilities. THSC 

§ 382.020 applies statewide. 

7EPA SIP-approved the Texas Standard Permit 

process and public participation process on 

November 14, 2003, as adopted by TCEQ on 

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

process for the development of standard permits on 

September 17, 2008, as adopted by TCEQ 

September 20, 2006 (see 73 FR 53716). 

8There are two standard permits applicable to 

concrete batch plants in the Texas Standard Permit 

program at 30 TAC Chapter 116, Subchapter F. As 

discussed previously, EPA approved revisions to 

the public participation process for the 

development of standard permits on September 17, 

2008, as adopted by TCEQ September 20, 2006 (see 

73 FR 53716). Under the Texas SP Program, SPs for 

concrete batch plants with enhanced controls (i.e., 

more extensive controls than adequate suction 

shrouds and filters as specified in the SP) go 

through no further public notice. However, concrete 

batch plants without enhanced controls as 

identified in the SP program are subject to NORI 

and NAPD publication under 30 TAC Chapter 39. 

authorized, and changes that increase 

emissions above certain thresholds. But, 

the new rules retain and refine the 

TCEQ’s director’s discretion provisions 

for two specific types of minor permit 

amendments—for ‘‘de minimis’’ or 

‘‘insignificant’’ activities. For these 

amendments, TCEQ will not 

automatically require an opportunity for 

public participation. TCEQ justified its 

approach for permit amendment 

applications with emissions less than 

these thresholds using de minimis 

principles like those established in 

Alabama Power.3

Despite these thresholds however, the 

TCEQ revised rules vest the TCEQ 

Executive Director with the authority to 

require public notice for an otherwise 

exempt permit amendment if there is (1) 

reasonable likelihood of significant 

public interest in the activity, (2) 

reasonable likelihood for emissions 

impact at a nearby receptor, (3) 

reasonable likelihood of high nuisance 

potential from the operation of the 

facility, or (4) the application involves 

a facility in the lowest classification 

under Texas Water Code, Section 5.753 

and 5.754 and the Compliance History 

Rules at 30 TAC Chapter 60. 

In sum, the applicability of the Texas 

public participation requirements for 

Minor NSR permit applications is 

outlined at 30 TAC 39.402 as follows: 

• New minors—39.402(a)(1). A new 

minor source can be any source 

statewide that submits a permit 

application under Chapter 116, 

Subchapter B that is not subject to the 

requirements for new major sources or 

major modifications for NNSR or PSD at 

Chapter 116, Subchapter B, Divisions 5 

and 6.4

• Air quality amendments 5 under 30 

TAC Chapter 116. Note that a permit 

amendment is a SIP-approved revision 

mechanism for an existing Chapter 116, 

Subchapter B permit. Minor 

amendments can occur at minor sources 

or sources that are major for PSD or 

NNSR whenever: 

(a) A change occurs in the character 

of emissions or release of an air 

contaminant not previously authorized 

under the permit (i.e., change in control 

method or an increase in emission 

rate)—39.402(a)(3)(A); 

(b) The total emissions increase from 

all facilities to be authorized under the 

amended permit at a facility not affected 

by THSC, section 382.020,6 exceeds the 

State’s established ‘‘de minimis’’ 

levels—39.402(a)(3)(B); 

(c) The total emissions increase from 

all facilities to be authorized under the 

amended permit at a facility affected by 

THSC, section 382.020, exceeds the 

State’s established ‘‘insignificant’’ 

levels—39.402(a)(3)(C); or 

(d) Other minor amendments where 

the Executive Director determines 

reasonable likelihood for interest or 

impact—39.402(a)(3)(D)(i)–(iv). 

• Applications for concrete batch 

plants without enhanced controls 

authorized by a standard permit under 

30 TAC Chapter 116, Subchapter F 7— 

39.402(a)(11). 

The notice requirements for each type 

of Minor NSR permit application listed 

above are generally the same—meaning 

that a permit amendment will have the 

same public notice requirements as an 

application for a new minor source. The 

submitted Texas rules generally provide 

that the identified Minor NSR permit 

applications (all new minor sources, 

qualifying minor permit amendments, 

and concrete batch plants without 

enhanced controls authorized by a 

standard permit 8) will go through 

public notice consistent with federal 

requirements at 40 CFR 51.160 and 

51.161. These types of Minor NSR 

permit applications are required to have 

both NORI and NAPD; therefore, the 

public will receive notice of the 

application and have the opportunity to 

comment on the draft permit and 

accompanying technical information. 

Note that the applicant is legally 

responsible for the publication of the 

NORI and NAPD, using the specific 

notice text provided through regulations 

by the TCEQ. The applicant is also 

legally responsible for providing copies 

of the public notice documents to the 

EPA Regional Office, local air pollution 

control agencies with jurisdiction in the 

county, and air pollution control 

agencies of nearby states that may be 

impacted by the proposed new source or 

modification. EPA is proposing to find 

that the submitted Texas public 

participation regulations identifying the 

applicant as the legally responsible 

party meet the requirements to provide 

opportunity for public comment and for 

information availability at 40 CFR 

51.161. The NORI and NAPD both 

identify locations where materials, 

including the draft permit and all 

technical materials supporting the 

decision, will be made available for 

public review. The TCEQ will respond 

to each comment received when making 

a final permit decision. The TCEQ will 

also provide opportunity for a public 

meeting on the permit application if 

requested. 

2. Minor NSR Public Notice 

Requirements Specific to Two Types of 

Minor NSR Permit Amendment 

Applications 

As explained above, the submitted 

Texas public participation provisions 

create a tiered program, wherein two 

certain types of Minor NSR amendment 

applications that have been defined by 

TCEQ as ‘‘de minimis’’ or 

‘‘insignificant’’ will not automatically 

require public notice. The following 

outlines the specific thresholds that 

qualify as ‘‘de minimis’’ or 

‘‘insignificant’’ under the revised rules, 

and the basis for TCEQ’s determination. 

i. Identification of the Minor NSR 

Emission Thresholds and Affected 

Source Populations 

• Thresholds are only used for permit 

amendment applications. Applications 

for new Minor NSR sources are now 

required by these submitted rules to go 


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through the public procedures of the 

NORI and NAPD. The minor permit 

amendment applications are further 

divided based on the amount of 

emission increases at issue and whether 

the facility is affected by THSC section 

382.020. 

• THSC section 382.020 applies to an 

agricultural facility such as corn mill, 

cotton gin, feed mill, grain elevator, 

peanut processing facility or rice drying 

facility. 

Æ Section 39.402(a)(3)(B) provides 

that if the permit amendment 

application is not for an affected 

agricultural facility then the public 

notice provided through the NORI and 

NAPD apply, unless the total emissions 

increase from all facilities authorized in 

the amendment does not exceed any of 

the following levels established by the 

State as ‘‘de minimis’’ levels: 

D 50 TPY CO 

D 10 TPY SO2

D 0.6 TPY lead 

D 5 TPY of NOX, VOC, PM, or any 

other contaminant except carbon 

dioxide, water, nitrogen, methane, 

ethane, hydrogen, and oxygen. 

Æ Section 39.402(a)(3)(C) provides 

that if the permit amendment is for an 

affected agricultural facility, then the 

public notice requirements of the NORI 

and NAPD apply, unless the total 

emissions increase from all authorized 

facilities in the amendment does not 

exceed any of the following thresholds 

established by the State as 

‘‘insignificant’’ thresholds: 

D 250 TPY CO or NOX

D 25 TPY of VOC, SO2, PM or any 

other air contaminant except CO2, H2O, 

N2, CH4, C2H6, H2 and O2. 

D A new major stationary source or 

major modification threshold as defined 

in section 116.12 of this title 

D A new major stationary source or 

major modification threshold, as 

defined in 40 CFR 52.21 under the PSD 

requirements 

• If the permit amendment 

application includes proposed 

emissions increases of any air 

contaminant above the identified 

threshold then the amendment 

application is required to go through 

notice pursuant to Chapter 39 

requirements. That means the permit 

amendment application will go through 

the NORI and NAPD publication 

process. 

ii. How were the ‘‘De minimis’’ and 

‘‘Insignificant’’ thresholds for minor 

NSR permit amendments established? 

(A). Texas ‘‘De Minimis’’ Thresholds for 

Minor Permit Amendments 

The thresholds established by the 

State as ‘‘de minimis’’ thresholds apply 

to all minor permit amendment 

applications, except those for affected 

agricultural facilities. The Texas ‘‘de 

minimis’’ thresholds submitted on July 

2, 2010, were originally adopted by the 

TCEQ in 2001 after a rulemaking 

process consistent with the Texas 

Administrative Procedure Act, Texas 

Government Code, Chapter 2001. TCEQ 

solicited, received and responded to 

comments during the 2001 rulemaking 

process. The TCEQ provided further 

opportunity to comment on the scope of 

its minor NSR program, and on the 

selected ‘‘de minimis’’ thresholds 

during the proposal of the July 2010 

rulemaking, but there were no 

additional comments on the ‘‘de 

minimis’’ threshold values. 

During the State’s rulemaking process 

for the current Texas public 

participation rules that have been 

submitted to the EPA, the TCEQ 

reviewed its rationale for the scope of 

the minor NSR program and its rationale 

for the selection of the ‘‘de minimis’’ 

thresholds. TCEQ found that the 

rationale developed in 2001 was still 

relevant and factual; therefore the 

rationale was resubmitted as part of the 

July 2, 2010 Public Participation SIP 

submittal. The TCEQ presents the 

rationale for the selection of the ‘‘de 

minimis’’ thresholds in the June 18, 

2010 Texas Register, pages 5226–5228. 

The ‘‘de minimis’’ thresholds are 

generally based on EPA’s significant 

emission rates and significant impact 

levels (which are themselves a 

percentage of the applicable NAAQS) 

that together are used to determine 

whether a proposed source or 

modification will have a significant 

impact. The TCEQ also accounted for all 

averaging periods for each NAAQS in 

the development of the ‘‘de minimis’’ 

thresholds. 

For example, in developing the ‘‘de 

minimis’’ threshold for SO2, the TCEQ 

noted that EPA’s federal significance 

level of 40 TPY was based on a design 

value concentration of 4% of the 24- 

hour NAAQS. See 45 FR 52675, at 

52705–52710 (August 7, 1980), for 

further information on how EPA 

established the significance levels for 

criteria pollutants. The TCEQ 

determined that a ‘‘de minimis’’ 

emission rate of 10 TPY is more 

appropriate because it is based on a 

design value concentration of 1% of the 

lowest significant impact level (SIL) to 

NAAQS ratio that would trigger a 

detailed air quality analysis for any of 

the three SO2 NAAQS averaging 

periods. 

Within the scope of the Texas Minor 

NSR program, the ‘‘de minimis’’ 

thresholds distinguish those minor 

permit amendment applications that 

require full review from those that may 

not. But, the thresholds do not affect 

any part of the technical review of these 

minor permit amendment applications 

or the requirement to comply with other 

requirements such as application of 

required control technology, reporting 

when required to the emissions 

inventory, and analysis of monitoring 

data. Additionally, being below the ‘‘de 

minimis’’ threshold does not override 

any notice or technical requirements for 

PSD, NNSR or new Minor NSR permit 

applications. We propose to find that 

TCEQ provided an adequate 

demonstration to show that their 

selected ‘‘de minimis’’ thresholds for 

permit amendments are based on 

insignificant emission rates and 

insignificant emissions impact. 

(B). Texas ‘‘Insignificant’’ Thresholds 

for Minor Permit Amendments for 

Selected Agricultural Facilities 

The thresholds selected by the State 

and called ‘‘insignificant’’ thresholds 

apply only to minor permit amendment 

applications for affected agricultural 

facilities. TCEQ originally adopted the 

‘‘insignificant’’ thresholds submitted on 

July 2, 2010, for minor permit 

amendment applications at affected 

agricultural facilities in 2001 after a 

rulemaking process consistent with the 

Texas Administrative Procedure Act, 

Texas Government Code, Chapter 2001. 

TCEQ solicited, received, and 

responded to comments during the 2001 

rulemaking process. The TCEQ 

provided further opportunity to 

comment on the selected ‘‘insignificant’’ 

thresholds during the proposal of the 

July 2010 rulemaking but received no 

additional comments on the 

‘‘insignificant’’ threshold values. 

During the rulemaking process for the 

current Texas public participation rules, 

the TCEQ reviewed the rationale for the 

selection of the ‘‘insignificant’’ 

thresholds. TCEQ found that the 

rationale developed in 2001 was still 

relevant and factual; therefore the 

rationale was resubmitted as part of the 

July 2, 2010 Public Participation SIP 

submittal. The TCEQ presents the 

rationale for the selection of the 

‘‘insignificant’’ thresholds in the June 

18, 2010 Texas Register, pages 5228– 

5230. TCEQ states that its discretionary 

public participation program for 

selected agricultural facilities with 

emissions increases below the State’s 

defined ‘‘insignificant’’ thresholds is 

‘‘intended to focus the attention of the 

public and the commission on emission 

increases that could have a greater 

potential for public interest and 


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9For 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. 

questions regarding impacts to public 

health and welfare.’’ 

TCEQ further provided a review of the 

sources subject to THSC 382.020 from 

September 2001 through March 2010. 

This review indicates that the TCEQ 

processed 356 permit amendment 

applications for subject agricultural 

facilities. These agricultural facilities 

are located in approximately 88 

counties, many of which are rural areas 

in west Texas, and many of these 

applications were associated with 

cotton gins. These amendment 

applications accounted for about 10% of 

the amendment applications for all 

types of facilities (not just these selected 

agricultural facilities) processed during 

that time period. The primary pollutant 

of concern in these applications is 

particulate matter (PM). No area in 

Texas is designated as nonattainment 

for PM2.5 (or PM less than 2.5 microns 

in diameter). El Paso, Texas is 

designated as nonattainment for PM10

(or PM less than 10 microns in 

diameter); but the designation is based 

on historical transport of particulate 

emissions from the Ciudad Juarez, 

Mexico area. See 59 FR 02532, January 

18, 1994. TCEQ reviewed dispersion 

modeling results from 1990 and 1994 

and found that El Paso would be in 

attainment for the PM standards, but for 

the emissions transport from Ciudad 

Juarez. Because the TCEQ has issued no 

nonattainment or PSD permits for 

agricultural facilities in the El Paso area 

and none of the permit amendment 

applications during the applicable time 

period were for facilities in El Paso 

County, the TCEQ has determined that 

PM emissions generated by the 

handling, loading, unloading, drying, 

manufacturing or processing of grain, 

seed, legumes or vegetable fibers are not 

of concern in El Paso. Further, the TCEQ 

has only issued one PSD permit 

statewide for an agricultural facility 

under THSC 382.020, and that is for a 

brewery. Therefore, TCEQ concluded 

that the ‘‘insignificant’’ thresholds for 

agricultural facilities would not 

negatively impact the El Paso area or 

any other area in Texas. 

Like, the selected ‘‘de minimis’’ 

thresholds, the state’s chosen 

‘‘insignificant’’ thresholds are used to 

distinguish those agricultural facilities 

for which permit amendments require 

full review from those that may not. 

However, within the scope of Texas’s 

revised rules, the thresholds do not 

affect any part of the technical review of 

these permit amendment applications; 

or the requirement to continue to 

comply with other requirements such as 

application of appropriate control 

technology, reporting when required to 

the emissions inventory, and analysis of 

monitoring data. Further, the 

discretionary public notice for minor 

permit amendments at selected 

agricultural facilities does not override 

any notice or technical requirements for 

PSD, NNSR or new Minor NSR permit 

applications. We believe that TCEQ 

provided an adequate demonstration to 

show that their selected ‘‘insignificant’’ 

thresholds for permit amendments for 

selected agricultural facilities are 

limited in scope, apply to a limited 

subcategory of sources, and represent a 

small subset of the permit amendment 

universe. We propose to find this 

demonstration meets 40 CFR 51.160 and 

51.161. 

3. How do the Texas public notice 

provisions for minor NSR permit 

applications address the deficiencies 

identified in the proposed LA/LD? 

The Federal requirements for Minor 

NSR permit applications and public 

notice requirements are at 40 CFR 

51.160 and 161. These requirements 

establish the minimum requirements for 

approvability of a state’s Minor NSR 

SIP, which a state develops to prevent 

construction and modification of 

stationary sources from interfering with 

an area’s ability to achieve compliance 

with a NAAQS. These requirements 

generally require 30 days public review 

for all sources subject to the Minor NSR; 

however, these requirements also allow 

a State to identify the types and sizes of 

facilities, buildings, structures, or 

installations, which will require full 

preconstruction review by justifying the 

basis for the State’s determination of the 

proper scope of its program.9

Importantly, our decision to approve a 

State’s scope of its Minor NSR program 

must consider the individual air quality 

concerns of each jurisdiction, and 

therefore will vary from state to state. 

On November 26, 2008, EPA 

identified several Minor NSR-specific 

deficiencies in the Texas public 

participation rules. See 73 FR 72001, at 

72007. Below we reiterate the 

deficiencies and discuss how the 

revised Texas public participation 

process for Minor NSR applications 

submitted for EPA approval on July 2, 

2010, address our concerns. In sum, as 

discussed more fully in the following 

section, we propose to find that that the 

July 2, 2010 submitted Tiered public 

participation requirements improve 

upon the existing SIP-approved 

requirements for public notice, that the 

rules resolve the concerns we expressed 

in November 2008, and that the 

regulations satisfy the requirements of 

51.160 and 51.161. 

Please note that the July 2, 2010 

public participation SIP submittal 

reorganized and restructured some of 

the previous rule language. As such, the 

italicized passages below contain 

references to specific rule citations and 

provisions that do not have a direct 

corollary to the July 2, 2010 rules before 

us now. See the discussion in section 

I.B of this proposed action for a history 

of the Texas Public Participation rule 

submittals. The bulleted list and 

subsequent analysis demonstrates that 

the deficiencies EPA previously 

identified on November 26, 2008, have 

been addressed through the current 

public participation submittal of July 2, 

2010. Please also see section IV.E. of the 

accompanying TSD. 

• Under section 39.419(e) for new or 

modified Minor NSR sources or minor 

modifications at major sources, the 

rules do not require public notice and 

the opportunity for comment on the 

State’s analysis of the effect of 

construction or modification on ambient 

air quality, including the agency’s 

proposed approval or disapproval, as 

required by 40 CFR 51.161(a) and (b), 

unless a contested case hearing is 

requested and not withdrawn after 

notice of application and intent to 

obtain a permit (NORI) is published. 

The July 2, 2010 public participation 

SIP submittal has expanded the 

requirement to publish the NAPD to all 

new minor sources or minor 

modifications under Chapter 116, 

Subchapter B. See 30 TAC 39.419(e). As 

demonstrated in the accompanying 

TSD, the NAPD notice is consistent with 

40 CFR 51.161(a) and (b) to provide 

notice and opportunity to comment on 

the state’s analysis and the preliminary 

determination. The public participation 

provisions submitted July 2, 2010 

address the identified deficiency. 

• Under section 39.402(a)(3)(C) [Note 

that during the proposed LA/LD the 

section we cited was section 

39.403(b)(8), this section number was 

changed to 39.402(a)(3)(C) when the 

rule was submitted July 2, 2010], for a 

Minor NSR permit amendment or minor 

modification under section 116.116(b), 

(where there is a change in the method 

of control of emissions; a change in the 

character of the emissions; or an 

increase in the emission rate of any air 

contaminant) the existing SIP requires 

the permit holder to apply for and 

receive approval of a permit 

amendment. However, the revised rules 


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[submitted October 25, 1999] do not 

require any public participation as 

required by 40 CFR 51.161(a) and (b) 

unless the change involves construction 

of a new facility or modification of an 

existing facility that results in an 

increase in allowable emissions equal to 

or greater than 250 tpy of CO or NOX; 

or 25 tpy of VOC or SO2 or PM10; or 25 

tpy of any other air contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and oxygen 

or other changes within the discretion of 

the Executive Director. 

The concern as stated at the time of 

our proposed LA/LD was that a permit 

amendment below the identified 

thresholds would not receive public 

notice. Nonetheless, as explained above, 

EPA recognizes a State’s ability to tailor 

the scope of its minor NSR program as 

necessary to achieve and maintain the 

NAAQS. As outlined above, the State 

justified the scope of its regulatory 

program, and thus the permit 

applications for which full public 

review is necessary using de minimis 

principles like those established in 

Alabama Power to identify amendments 

that are not environmentally significant. 

Specifically, it identified ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds for 

which review with public participation 

may or may not be necessary depending 

on whether the amendment triggers 

public review under the specified 

Executive Director’s criteria. 

• Under section 39.419(e)(1)(C), for 

any amendment, modification or 

renewal of a major or minor source 

which requires a permit application, the 

rules do not require public notice and 

the opportunity for comment on the 

State’s analysis of the effect of 

construction or modification on ambient 

air quality, including the agency’s 

proposed approval or disapproval, as 

required by 40 CFR 51.161(a) and (b), if 

the amendment, modification, or 

renewal would not result in an increase 

in allowable emissions and would not 

result in the emission of an air 

contaminant not previously emitted 

unless the application involves a facility 

for which the applicant’s compliance 

history contains violations that are 

unresolved and that constitute a 

recurring pattern of egregious conduct 

which demonstrates a consistent 

disregard for the regulatory process, 

including the failure to make a timely 

and substantial attempt to correct the 

violations. 

At the time of the November 26, 2008 

proposed limited approval/limited 

disapproval, section 39.419 included 

subsection (e)(1)(C) which exempted 

minor NSR permit applications from 

publication of the second notice, or 

NAPD. In response to our proposed 

limited approval/limited disapproval, 

the TCEQ expanded the publication of 

the NAPD to cover Minor NSR permit 

applications and specified Minor NSR 

permit amendment applications. The 

July 2, 2010 public notice SIP submittal 

requires NORI and NAPD public notice 

for all new minor sources and all permit 

amendments above identified ‘‘de 

minimis’’ and ‘‘insignificant’’ emission 

thresholds. For permit amendment 

applications with emissions less than 

these thresholds, the TCEQ justified its 

approach using de minimis principles 

like those established in Alabama 

Power. See the June 18, 2010 Texas 

Register, pages 5224–5230. 

Additionally, requiring NORI and NAPD 

notice for amendments above a 

specified emissions threshold is more 

stringent than the existing SIP; which 

only requires public notice of minor 

amendments at the discretion of the 

Executive Director. The July 2, 2010 SIP 

submittal addresses the identified 

concerns. 

• Section 39.403(b)(8), Applicability, 

of the revised rule refers to two State 

statutory provisions, THSC section 

382.0518 (preconstruction permit) and 

section 382.055 (review and renewal of 

preconstruction permit). For clarity, and 

for approvability into the SIP, section 

39.403(b) should be revised to refer to 

the corresponding sections of the Texas 

SIP. 

Subsequent to our withdrawal of the 

proposed rule, EPA has determined that 

this provision does not contravene 

federal requirements. Generally, we do 

not approve cross-references that are not 

otherwise SIP-approved. But, in these 

instances, the statutory provisions serve 

to provide more clarity to the subset of 

sources identified in the rule language. 

Note that since the time of the proposed 

limited approval/limited disapproval, 

TCEQ has withdrawn from our 

consideration the prior version of 

Chapter 39 that was submitted for SIP 

approval, and resubmitted a new 

version of Chapter 39. The sections 

discussing Applicability of the public 

participation program that include 

cross-references to statutes are now 

located at Section 39.402(a)(3)(B) and 

(C). In this instance, the statute 

mentioned is THSC section 382.020 

concerning agricultural facilities. 

Inclusion of the statutory citation to 

THSC section 382.020 provides 

additional clarity to the submitted 

provision. 

4. Proposed Findings Specific to the 

Texas Public Participation Provisions 

for Minor NSR Permitting 

We propose to find that the July 2, 

2010 submitted public notice 

provisions, including the tiered public 

participation approach for permit 

amendments, improve upon the existing 

SIP-approved requirements for public 

notice by expanding opportunities for 

public involvement in minor NSR 

permitting decision. We further propose 

to find that TCEQ’s demonstrations in 

the July 2, 2010 public notice SIP 

submittal adequately justify the scope of 

activities that require full review with 

public participation, because it 

potentially excludes only those permit 

amendments that meet the state’s 

selected ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds that the State 

has shown are environmentally 

insignificant. Accordingly, EPA 

proposes to find that TCEQ’s tiered 

public participation program satisfies 

the provisions of 51.160(e) and 51.161. 

Moreover, we also propose to find that 

the TCEQ revised rules for discretionary 

public notice are approvable, because 

the provisions adequately confine 

Executive Director discretion by 

authorizing the use of discretion under 

specified criteria that are consistent 

with the goals and purposes of the Act 

to provide an adequate opportunity for 

informed public participation. EPA is 

proposing to find that the submitted 

Texas public participation regulations 

identifying the applicant as the legally 

responsible party also meet the 

requirements to provide opportunity for 

public comment and for information 

availability at 40 CFR 51.161, because 

the NORI and NAPD both identify 

locations where materials, including the 

draft permit and all technical materials 

supporting the decision will be made 

available for public review and the 

required information is submitted to 

EPA. 

Finally, as explained above, we 

propose to find that the submitted 

provisions address all deficiencies we 

previously cited in our November 26, 

2008 proposed limited approval/limited 

disapproval of Texas public notice 

requirements. Accordingly, we propose 

full approval of the Texas public notice 

provisions for Minor NSR permit 

applications submitted on July 22, 1998; 

October 25, 1999; and July 2, 2010. 

E. Public Participation for Permit 

Renewal Applications 

1. Analysis of Submitted Rules 

EPA SIP-approved the Texas 

provisions for renewal of Title I permits 

at 30 TAC Chapter 116, Subchapter D, 


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Sections 116.310–116.315, on March 10, 

2006 (71 FR 12285), with revisions 

approved on March 20, 2009 (74 FR 

11851), March 11, 2010 (75 FR 11464) 

and November 14, 2011 (76 FR 70354). 

Therefore, permit renewals issued under 

30 TAC Chapter 116, Subchapter D are 

SIP-approved Title I permits and we 

have evaluated the public participation 

requirements for said permits. Section 

39.402(a)(6) establishes that the 

requirements found in 30 TAC Chapter 

39, Subchapters H and K apply to 

applications for renewal of Chapter 116 

permits. Section 116.312, Public 

Notification and Comment Procedures 

specific to permit renewals, provides a 

cross-reference to the public 

participation rules under Chapter 39. 

Generally, permit renewal applications 

are required to publish NORI and 

provide a 15-day comment period. In 

some instances, permit renewal 

applications will be required to publish 

NAPD and provide a 30-day comment 

period. The TCEQ is required to 

respond to any comments received and 

provide a response to comments with 

the final permit decision. Under the 

Texas SIP-approved permit renewal 

process, a Title I permit is required to 

be renewed every ten years. A permit 

renewal application is approved based 

upon a demonstration in the renewal 

application that the permitted facility 

will operate in accordance with all 

requirements and conditions of the 

existing permit, including 

representations in the application to 

construct, any subsequent amendments, 

any previously granted renewal, and the 

compliance history of the facility. Parts 

C and D of the Act and EPA’s federal 

NSR requirements regulate 

preconstruction of sources and neither 

prohibit, nor require Title I permits 

(PSD/NNSR/Minor NSR) to be 

periodically renewed. As such, the 

State’s renewals provisions go beyond 

the minimum requirements of the Act. 

While neither the Act nor EPA’s 

regulations address the public notice of 

permit renewals, we propose to find that 

approval of public notice for permit 

renewals will enhance the SIP-approved 

renewals program. 

2. Proposed Findings Specific to the 

Texas Public Participation Provisions 

for Permit Renewal Applications 

As explained fully in the 

accompanying TSD, EPA proposes to 

find that the public notice process 

described above for permit renewal 

applications satisfies the federal 

requirements for public notice found at 

40 CFR 51.160 and 51.161 and is 

consistent with the requirements at 

section 110(a)(2)(C) of the Act to 

provide continued implementation and 

enforcement of the NSR SIP permitting 

program. EPA did not identify any 

renewal-specific deficiencies in our 

November 26, 2008 proposed limited 

approval/limited disapproval. 

Therefore, we propose full approval of 

the Texas public notice provisions for 

permit renewal applications submitted 

on July 22, 1998; October 25, 1999; and 

July 2, 2010. 

F. Does proposed approval of the Texas 

public participation provisions for air 

quality permit applications interfere 

with attainment, reasonable further 

progress, or any other applicable 

requirement of the Act? 

Section 110(l) of the CAA states: 

Each revision to an implementation 

plan submitted by a State under this Act 

shall be adopted by such State after 

reasonable notice and public hearing. 

The Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 171), or any other applicable 

requirement of this Act. 

Thus, under section 110(l), the 

regulations submitted as a SIP revision 

for public participation for air quality 

permit applications must meet the 

procedural requirements of section 

110(l) by demonstrating that the State 

followed all necessary procedural 

requirements such as providing 

reasonable notice and public hearing of 

the SIP revision. Additionally, the SIP 

revision must demonstrate that the 

adopted rules will not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the CAA. We propose to 

find that the TCEQ satisfied all 

procedural requirements pursuant to 

section 110(l) as detailed in our 

accompanying TSD. 

Public participation in air quality 

permitting is a requirement of the CAA. 

EPA regulations at 40 CFR Part 51, 

sections 51.160 and 51.161 provide the 

general requirements that all air quality 

permits must address; sections 

51.165(f)(5) and 51.166(w)(5) provide 

the requirements specific to PAL 

permitting; and section 51.166(q) 

provides further public notice 

provisions specific to PSD permitting. 

As discussed in this proposed action 

and in the accompanying TSD, EPA 

proposes that the public notice 

processes as submitted by the TCEQ 

satisfy the minimum requirements of 40 

CFR 51.160, 51.161, and where 

applicable, 51.165 and 51.166. 

Additionally, we propose that TCEQ 

provided an adequate demonstration to 

show that the Minor NSR public notice 

tiers and exemptions will assure the 

NAAQS are achieved and that the tiers 

and exemptions meet the de minimis 

principles set forth in Alabama Power. 

Our review and analysis demonstrates 

that the submitted regulations are at 

least as stringent as the minimum 

federal requirements and existing SIP 

requirements; and in some instances the 

Texas program provides notice beyond 

the minimum federal requirements. The 

act of providing notice on air quality 

permit applications consistent with the 

provisions submitted by the TCEQ on 

July 22, 1998; October 25, 1999; July 2, 

2010; and March 11, 2011 will provide 

more visibility and detail of the air 

permitting process. The Texas Public 

Participation SIP submittals satisfy 

section 110(l) of the CAA. 

IV. Proposed Action 

Under section 110 and parts C and D 

of the Act, and for the reasons stated 

above, EPA proposes to approve the 

following revisions to the Texas SIP: 

• 30 TAC Section 116.312 and the 

repeal of 30 TAC Section 116.124 as 

submitted on July 22, 1998. 

• 30 TAC Sections 39.411(a); 

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

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

and (c)(1)–(3); 116.116(b)(4); and 

116.312 as submitted on October 25, 

1999. 

• 30 TAC Sections 39.402(a)(1)–(3), 

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

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

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

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

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

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

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

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

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

39.603; 39.604; 39.605; 55.150; 

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

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

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

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

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

• 30 TAC Section 116.194 as adopted 

January 11, 2006 and resubmitted on 

March 11, 2011. 

Note that EPA is proposing to approve 

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

and 39.605(1)(D) that will replace two 

provisions of the Texas SIP, found in 

the Texas PSD SIP Supplement. Upon 

finalization of this action, EPA will 

revise the table at 40 CFR 52.2270(e) to 

reflect these approvals. 

Consistent with the analysis 

presented in today’s proposed notice 

and the accompanying TSD, EPA is 

severing and taking no action on the 

following provisions submitted on July 


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74142 Federal Register / Vol. 77, No. 240 / Thursday, December 13, 2012 / Proposed Rules 

2, 2010: 30 TAC Sections 39.402(a)(4), 

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

39.402(a)(12), 39.405(h)(1)(B), 

39.419(e)(3), 39.420(h). EPA is also 

severing and taking no action on the 

following provisions submitted on 

October 25, 1999: 30 TAC Sections 

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

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this notice 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: November 30, 2012. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2012–30098 Filed 12–12–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2011–0002; Internal 

Agency Docket No. FEMA–B–1100 and 

FEMA–B–1222] 

Proposed Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Proposed rule; correction. 

SUMMARY: On May 25, 2010 and October 

6, 2011, FEMA published in the Federal 

Register a proposed rule that contained 

an erroneous table. This notice provides 

corrections to those tables, to be used in 

lieu of the information previously 

published. The table provided here 

represents the flooding sources, location 

of referenced elevations, effective and 

modified elevations, and communities 

affected for Iron County, Utah, and 

Incorporated Areas. Specifically, it 

addresses the following flooding 

sources: Coal Creek, Coal Creek 

Overflow, Coal Creek to Fiddlers Split, 

Cross Hollow, Greens Lake, North 

Airport Canal, Old Quichapa Creek 

Lower, Old Quichapa Creek Upper, 

Parowan Creek, Quichapa Channel, 

Quichapa West, Red Creek, Shurtz 

Creek, Shurtz Creek Shallow, Squaw 

Creek and Water Canyon. 

DATES: Comments are to be submitted 

on or before March 13, 2013. 

ADDRESSES: You may submit comments, 

identified by Docket No. FEMA–B–1100 

and FEMA–B–1222, to Luis Rodriguez, 

Chief, Engineering Management Branch, 

Federal Insurance and Mitigation 

Administration, Federal Emergency 

Management Agency, 500 C Street SW., 

Washington, DC 20472, (202) 646–4064 

or (email) luis.rodriguez3@dhs.gov. 

FOR FURTHER INFORMATION CONTACT: Luis 

Rodriguez, Chief, Engineering 

Management Branch, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street SW., Washington, DC 20472, 

(202) 646–4064 or (email) 

luis.rodriguez3@dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) publishes proposed 

determinations of Base (1% annualchance) Flood Elevations (BFEs) and 

modified BFEs for communities 

participating in the National Flood 

Insurance Program (NFIP), in 

accordance with section 110 of the 

Flood Disaster Protection Act of 1973, 

42 U.S.C. 4104, and 44 CFR 67.4(a). 

These proposed BFEs and modified 

BFEs, together with the floodplain 

management criteria required by 44 CFR 

60.3, are minimum requirements. They 

should not be construed to mean that 

the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These proposed elevations are used to 

meet the floodplain management 

requirements of the NFIP and also are 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in those 

buildings. 

Correction 

In the proposed rule published at 75 

FR 29238 and 76 FR 62006, in the May 

25, 2010 and October 6, 2011, issues of 

the Federal Register, respectively, 

FEMA published a table under the 

authority of 44 CFR 67.4. The tables, 

entitled ‘‘Iron County, Utah, and 

Incorporated Areas’’ addressed the 

following flooding sources: Coal Creek, 

Coal Creek Overflow, Coal Creek to 

Fiddlers Split, Cross Hollow, Greens 

Lake, North Airport Canal, Old 

Quichapa Creek Lower, Old Quichapa 

Creek Upper, Parowan Creek, Quichapa 

Channel, Quichapa West, Red Creek, 


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