TECHNICAL SUPPORT DOCUMENT 

Texas Public Participation for Air Quality Permit Applications 

December 12, 2012 

Revisions to 30 TAC Chapter 39 submitted July 2, 2010 

Revisions to 30 TAC Chapter 55 submitted July 2, 2010 

Revisions to 30 TAC Chapter 116 submitted June 22, 1998; October 25, 1999; July 2, 2010 and 

March 11, 2011 

No material in this submittal package was designated as Confidential Business Information. 

FOR FURTHER INFORMATION CONTACT: 

Adina Wiley United States Environmental Protection Agency Region 6, Air Permits Section 

(6PD-R), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, (214) 665-2115
i 

Table of Contents 

December 12, 2012 

I. Introduction .............................................................................................................................. Page 1 

A. What are we addressing in this action? .............................................................................. Page 1

B. What are we not addressing in this action? ........................................................................ Page 3 

II. History of Texas Public Participation Submittals and EPA’s Actions ..................................... Page 5 

A. Existing SIP-Approved Public Participation Rules ........................................................... Page 5 

B. EPA’s Proposed Limited Approval/Limited Disapproval ................................................. Page 5 

C. TCEQ’s July 2, 2010 Public Participation SIP Submittal .................................................. Page 6 

D. EPA’s Withdrawal of Proposed Limited Approval/Limited Disapproval ......................... Page 7 

E. TCEQ’s March 11, 2011 SIP Submittal of 30 TAC Section 116.194 ............................... Page 7 

III. Summary of Texas Public Participation SIP Submittals .......................................................... Page 8 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals .................................. Page 12 

A. 40 CFR Part 51, Appendix V Evaluation of the July 2, 2010 SIP Submittal ..................... Page 13 

B. Evaluation of the Public Participation Requirements for Major Sources and Modifications Subject 

to PSD Permitting Requirements ....................................................................................... Page 19 

1. Public Participation Process ........................................................................................ Page 19 

2. Analysis of Requirements in 40 CFR Part 51 Specific to PSD Sources ..................... Page 20 

3. Analysis of Revisions to the Texas PSD Supplement ................................................. Page 44 

4. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified in EPA’s 

Proposed LA/LD?........................................................................................................ Page 46

5. Findings for Public Participation for PSD Permit Applications ................................. Page 47 

C. Evaluation of the Public Participation Requirements for Major Sources and Modifications Subject 

to NNSR Permitting Requirements .................................................................................... Page 48 

1. Public Participation Process ........................................................................................ Page 48 

2. Analysis of Requirements in 40 CFR Part 51 Specific to NNSR ................................ Page 49 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified in EPA’s 

Proposed LA/LD?........................................................................................................ Page 65

4. Findings for Public Participation for NNSR Permit Applications .............................. Page 65 

D. Evaluation of the Public Participation Process of Applications for PAL Permit Applications

 ........................................................................................................................................... Page 66 

1. Public Participation Process ........................................................................................ Page 66 

2. Analysis of Requirements in 40 CFR Part 51 Specific to PALs ................................. Page 67 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified in EPA’s 

Proposed LA/LD?........................................................................................................ Page 78

4. Findings for Public Participation for PAL Permit Applications .................................. Page 79 

E. Evaluation of the Public Participation Process for Sources and Modifications Subject to Minor 

NSR Permitting .................................................................................................................. Page 80 

1. Public Participation Process ........................................................................................ Page 81 

2. Analysis of Requirements in 40 CFR Part 51 Specific to PALs ................................. Page 82 

a. Does every permit application for a new minor source or minor modification go through 

public notice? ........................................................................................................ Page 97

b. Minor NSR Public Notice Requirements Specific to Two Types of Minor NSR Permit 

Amendment Applications ..................................................................................... Page 100 

i. Identification of the Minor NSR Emission Thresholds and Affected Source 

Populations .................................................................................................. Page 100 

ii. How were the “De minimis” and “Insignificant” Thresholds for Minor NSR Permit 

Amendments Established? .......................................................................... Page 101 

(A) Texas “De Minimis” Thresholds for Minor Permit Amendments ........ Page 101 

(B) Texas “Insignificant” Thresholds for Minor Permit Amendments for Selected 

Agricultural Facilities ........................................................................... Page 102 
ii 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified in EPA’s 

Proposed LA/LD?........................................................................................................ Page 103 

4. Findings for Public Participation for Minor NSR Permit Applications ....................... Page 105 

F. Evaluation of the Public Participation Process for Permit Renewal Applications ............. Page 106 

1. Public Participation Process ........................................................................................ Page 106 

2. Analysis of Requirements in 40 CFR Part 51 Specific to Permit Renewals ............... Page 107 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified in EPA’s 

Proposed LA/LD?........................................................................................................ Page 120 

4. Findings for Public Participation for Permit Renewal Applications ............................ Page 121 

G. Evaluation of the Pending Revisions to Chapter 39 .......................................................... Page 122 

H. Evaluation of the Pending Revisions to Chapter 55 .......................................................... Page 145 

I. Evaluation of the Pending Revisions to Chapter 116 ........................................................ Page 149 

J. Does Approval of Texas’s Public Participation SIP Submittal Interfere with Attainment, 

Reasonable Further Progress, or Any Other Applicable Requirement of the Act? ........... Page 161 

V. Conclusion ................................................................................................................................ Page 162 

 
1 

I. Introduction 

A. What are we addressing in this action? 

This technical support document (TSD) reviews severable portions of four proposed 

revisions to the Texas State Implementation Plan (SIP) pertaining to public participation for 

Texas air quality permit applications. This review will determine if the revisions are 

consistent with the requirements of the Clean Air Act and EPA’s policy and guidance. The 

following four SIP revisions are the subject of this TSD: 

December 15, 1995

 On November 16, 1995, the Texas Natural Resource Conservation Commission1 adopted 

revisions to the Texas SIP relating to Permit Renewals. Governor George W. Bush 

submitted these amendments as revisions to the Texas SIP in a letter dated December 15, 

1995. 

 This submittal includes revisions to 30 TAC 116.312. This section was repealed and 

readopted on June 17, 1998, and resubmitted July 22, 1998 

July 22, 1998

 On June 17, 1998, the Texas Natural Resource Conservation Commission adopted 

revisions to the Texas SIP to make 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 as revisions to the Texas SIP in 

a letter dated July 22, 1998. 

 EPA has taken several rulemaking actions over the years on this SIP package. However, 

we have yet to address the adoption 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. 

October 25, 1999 

 On September 2 and September 29, 1999, the Texas Natural Resource Conservation 

Commission adopted revisions to the Texas SIP to implement Texas House Bill 801 to 

establish new procedures for public participation in environmental permitting. Governor 

George W. Bush submitted these amendments as revisions to the Texas SIP in a letter 

dated October 25, 1999. The TCEQ also submitted the repeal of section 116.124 at this 

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 

 

1

 The Texas Natural Resource Conservation Commission is a predecessor agency to the Texas Commission on 

Environmental Quality. In general, this TSD will refer to the agency as the TCEQ. 
2 

retained for EPA review and will be analyzed with the entirety of the Public Participation 

revisions submitted on July 2, 2010. 

July 2, 2010

 On June 2, 2010, the TCEQ adopted amendments to the Texas SIP 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 116.2

 Chairman Bryan W. 

Shaw, PhD, submitted these amendments as revisions to the Texas SIP in a letter dated 

July 2, 2010. 

 The amendments submitted as revisions to the Texas SIP are as follows: 30 TAC §§ 

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

o 39.405(f)(3) and (g), (h)(1)(A)-(4), (6), (8)-(11), (i) and (j) 

o 39.407 

o 39.409 

o 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) 

o 39.418(a), (b)(2)(A) and (c) 

o 39.419(e) 

o 39.420(c)(1)(A) – (D)(i)(I) and (II), (D)(ii), (c)(2), (d)-(e), and (h) 

o 39.601 

o 39.602 

o 39.603 

o 39.604 

o 39.605 

o 55.150 

o 55.152(a)(1), (2), (5) and (6) 

o 55.154(a), (b), (c)(1)-(3) and (5), and (d)-(g) 

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

o 116.114(a)(2)(B), (a)(2)(C), (c)(2), and (c)(3) 

o 116.194 

 On June 2, 2010, the TCEQ also adopted the withdrawal from consideration by the EPA, the 

new and amended rules that were previously submitted as revisions to the SIP on October 25, 

1999; July 31, 2002; and March 9, 2006. The TCEQ withdrew from our consideration all 

sections of the 1999, 2002, and 2006 submittals except for 30 TAC §§ 39.411(a) and 

55.152(b) as adopted in 1999, and § 39.418(b)(3), submitted in 1999 as § 39.418(b)(4). 

 As a result of the amendments to 30 TAC §§ 39.411(f)(8)(A) and 39.605(1)(D), the TCEQ 

requested on July 2, 2010, that EPA remove the corresponding two commitments from 

paragraph 7 of the July 17, 1987 Texas PSD Supplement. 

March 11, 2011

 On January 11, 2006, the TCEQ adopted amendments to the Texas SIP at 30 TAC Chapter 

116 to implement NSR reform. These amendments included the establishment of the 

 

2

 This TSD will collectively refer to the July 2, 2010, submitted revisions to the Texas SIP and the three remaining 

sections from the October 25, 1999 submittal as the Texas Public Participation submittal. 
3 

permitting program for plant-wide applicability permits and the associated public notice 

provisions for PALs at section 116.194. Chairman Kathleen Hartnett White submitted these 

amendments as revisions to the Texas SIP in a letter dated February 1, 2006. 

 EPA disapproved the February 1, 2006 NSR reform submittal, including PALs and the PAL 

public notice provision at section 116.194 on September 15, 2010. 

 On March 11, 2011, the TCEQ resubmitted the February 1, 2006 submittal of section 

116.194 in addition to the July 2, 2010 amendments to section 116.194. 

 Section 116.194 as adopted January 11, 2006 therefore remains before us for review. 

B. What are we not addressing in this 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 HAPs under § 112 of the Act and 40 CFR Part 63, Subpart B. The 

process for implementing these provisions is carried our separately from the Texas SIP. Because 

the requirements under section 112(g) are self-implementing under section 112 of the Act and 

under 40 CFR part 63, Subpart B, EPA is severing and taking no action on section 116.116(b)(3). 

On June 2, 2010, the TCEQ also adopted revisions concerning Compliance History at 30 TAC 

Chapter 60. These revisions to 30 TAC Chapter 60 were not submitted as a SIP revision and are 

not before EPA for review. Accordingly, we will not review the revisions to 30 TAC Chapter 60 

in this TSD. 

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 
4 

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. 

 
5 

II. History of Texas Public Participation Submittals and EPA’s Actions 

A. Existing SIP-Approved Public Participation Rules 

The existing SIP-approved regulations pertaining to public notice for air quality permits are as 

follows: 30 TAC § 116.130 – Applicability; § 116.131 – Public Notification Requirements; § 

116.132 – Public Notice Format; § 116.133 – Sign Posting Requirements; § 116.134 – 

Notification of Affected Agencies; § 116.136 – Public Comment Procedures; and § 116.137 – 

Notification of Final Agency Action. These regulations were all adopted by the TNRCC on June 

17, 1998, effective July 8, 1998. EPA SIP-approved Sections 116.130, 116.131, 116.132 (except 

subsections (c) and (d)), 116.133 (except subsections (f) and (g)), 116.134, 116.136, and 116.137 

on September 18, 2002 (67 FR 58697) effective October 18, 2002. EPA SIP-approved Sections 

116.132(c) and (d) and 116.133(f) and (g) on March 10, 2006 (71 FR 12285) effective May 9, 

2006. 

B. EPA’s Proposed Limited Approval/Limited Disapproval 

On November 26, 2008, EPA published a proposed limited approval/limited disapproval 

(LA/LD) of three subsequent 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 on October 25, 1999. These SIP packages 

included the following rules: 

 The December 15, 1995, submittal includes Texas’ submittal of TAC, Title 30, Chapter 116, 

Subchapter D, section 116.312 – Public Notification and Comment Procedures. 

 The July 22, 1998, submittal includes Texas’ submittal of repeal and re-adoption (with nonsubstantive revisions) of 30 TAC section 116.312 – Public Notification and Comment 

Procedures. 

 The October 25, 1999, submittal includes the following revisions related to this action. 

o New rules affecting 30 TAC Chapter 39 – Public Notice – are as follows: section 39.201 

– Application for a Preconstruction Permit; section 39.401 – Purpose; section 39.403 – 

Applicability; section 39.405 – General Notice provisions; section 39.409 – Deadline for 

Public Comment, Requests for Reconsideration, Contested Case Hearing, or Notice and 

Comment hearing; section 39.411 – Text of Public Notice; section 39.413 – Mailed 

Notice; section 39.418 – Notice of Receipt of Application and Intent to Obtain Permit; 

section 39.419 – Notice of Application and Preliminary Determination; section 39.420 – 

Transmittal of the Executive Director’s Response to Comments and Decision; section 

39.423 – Notice of Contested Case Hearing; section 39.601 – Applicability; section 

39.602 – Mailed Notice; section 39.603 – Newspaper Notice; section 39.604 – SignPosting; section 39.605 – Notice to Affected Agencies. 

o New rules affecting 30 TAC Chapter 55 – Requests for Reconsideration and Contested 

Case Hearing – are as follows: Section 55.1 – Applicability; section 55.21 Requests for 

Contested Case Hearing, Public Comment; section 55.101 – Applicability; section 55.103 

– Definitions; section 55.150 – Applicability; section 55.152 – Public Comment Period; 

section 55.154 – Public Meetings; section 55.156 – Public Comment Processing; section 

55.200 – Applicability; section 55.201 – Requests for Reconsideration and Contested 

Case Hearing; section 55.203 – Determination of Affected Person; section 55.205 – 

Request by Group or Association; section 55.209 – Processing Requests for 
6 

Reconsideration or Contested Case Hearing; and section 55.211 – Commission Action or 

Requests for Reconsideration and Contested Case Hearing. 

o Rule revisions affecting 30 TAC Chapter 116 – Control of Air Pollution by Permits for 

New Construction and Modification are as follows: section 116.111 – General 

Application; section 116.114 – Application Review Schedule; section 116.116 – Changes 

to Facilities; section 116.183 – Public Notice Requirements; section 116.312 – Public 

Notification and Comment Procedures; and section 116.740 – Public Notice. 

o Repeal of 30 TAC section 116.124 – Public Notice of Compliance History. 

C. TCEQ’s July 2, 2010 Public Participation SIP Submittal 

 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; 

Chapter 60, Compliance History; and Chapter 116, Control of Air Pollution by Permits for 

New Construction or Modification; and corresponding revisions to the Texas SIP. 

 On July 2, 2010, the TCEQ submitted these new and amended sections regarding public 

participation to EPA as SIP revisions. 

 At that time, TCEQ also adopted the withdrawal from consideration by EPA for revisions to 

the Texas SIP that were previously submitted to EPA as revisions to the SIP on October 25, 

1999; July 31, 2002; and March 9, 2006. 

o The sections submitted to EPA in 1999 were 30 TAC sections 39.201; 39.401; 

39.403(a) and (b)(8) – (10); 39.405(f)(1) and (g); 39.409; 39.411(a), (b)(1) – (6) 

and (8) – (10) and (c)(1) – (6) and (d); 39.413(9), (11), (12) and (14); 39.418(a) 

and (b)(3) and (4); 39.419(a), (b), (d), and (e); 39.420(a), (b), and (c)(3) and (4); 

39.423(a) and (b); 39.601; 39.602; 39.603; 39.604; and 39.605. 

o The sections submitted to EPA in 2002 were new 30 TAC section 39.404, and 

amended sections 39.411, 39.419, 39.420, 39.603, 39.604 and 39.606. 

o The sections submitted to EPA in 2005 were amended 30 TAC sections 

39.403(b)(8) – (10) and new (f); 39.411(a), (b)(1) – (6), (8) – (10), (c)(1) – (6) and 

(d); 39.419(a), (b), (d) and (e); and 39.420(a), (b) and (c)(3) and (4). 

o In 2005, the TCEQ also submitted the repeal of 30 TAC section 39.404 and the 

adoption of new section 39.404, and the withdrawal of sections 39.411, 39.419, 

and 39.420 as submitted to EPA in 2002. 

 Also on June 2, 2010, the TCEQ adopted the withdrawal of the following rules, which were 

submitted as SIP revisions on October 25, 1999: 30 TAC sections 55.1; 55.21(a) – (d), (e)(2), 

(3) and (12), (f) and (g); 55.101(a), (b), (c)(6) – (8); 55.103; 55.150; 55.152(a)(1), (2) and 

(5); 55.154; 55.156; 55.200; 55.201(a) – (h); 55.203; 55.205; 55.209; and 55.211. 

 Therefore, on July 2, 2010, the TCEQ withdrew from EPA’s consideration as revisions to the 

SIP all of the rules specified previously in this paragraph, 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). 

 
7 

D. EPA’s Withdrawal of Proposed Limited Approval/Limited Disapproval 

EPA published a withdrawal of our proposed LA/LD on November 5, 2010 (see 75 FR 68291). 

In this notice we state that we are withdrawing 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 sections 116.111, 

116.114, 116.116, and 116.312. We withdrew our action on these 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 proposed repeal of section 116.124; nor has 

TCEQ withdrawn this repeal from our consideration. Therefore, the October 25, 1999 proposed 

repeal of section 116.124 remains before EPA for review. 

E. TCEQ’s March 11, 2011 SIP Submittal of 30 TAC Section 116.194 

The TCEQ originally adopted 30 TAC Section 116.194 on January 11, 2006, to establish the 

public notice provisions for PAL permit applications. EPA disapproved these provisions for PAL 

public notice in our September 15, 2010 disapproval of Texas NSR Reform. 

On March 11, 2011, the TCEQ resubmitted the February 1, 2006 submittal of section 116.194 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.
8 

III. Summary of Texas Public Participation Submittals

This technical support document (TSD) reviews severable portions of four proposed revisions to 

the Texas State Implementation Plan (SIP) pertaining to public participation for Texas air quality 

permits. The following is a list of the specific sections and subsections from each submittal that 

will be considered for inclusion in the Texas SIP. 

July 22, 1998

EPA has acted on the majority of the July 22, 1998 amendments to Chapter 116. Of interest to 

public participation is the repeal and replacement of the December 12, 1995 adoption of the 

public participation provisions for permit renewal applications at section 116.312. Note that 

because the July 22, 1998 submittal included the repeal and replacement of section 116.312 as 

adopted December 15, 1995, our review will begin with section 116.312 as adopted and 

submitted on July 22, 1998. 

October 25, 1999

The TCEQ withdrew from our consideration the majority of this submittal on July 2, 2010. The 

sections remaining for our review and action are summarized below: 

 Section 39.411(a) – Section 39.411 generally provides the text that a permit applicant will 

use for public notice. Section 39.411(a) specifically states that an applicant will use the 

provided text for notice documents, but the executive director may approve changes to notice 

text before notice is given. 

 Section 39.418(b)(4) – Section 39.418 generally provides the requirements for the TCEQ 

Notice of Receipt of Application and Intent to Obtain Permit (referred to as the “First 

Notice” or NORI). Section 39.418(b)(4) specifically requires the NORI notice to include the 

text specified in section 39.411(b). Note that this section was adopted as section 

39.418(b)(4), but is now section 39.418(b)(3) due to changes in section numbering. 

 Section 55.152(b) – Section 55.152 generally provides information about the length of the 

public comment period. Section 55.152(b) specifically extends the public comment period to 

the close of any public meeting. 

 Section 116.111(b) cross-references to the Chapter 39 public participation requirements for 

all permit applications. 

 Sections 116.114(a)(2), (a)(2)(A), (a)(2)(B), and (a)(2)(C) provide the review schedule for 

permit applications based on the type of permit application. 

 Section 116.114(b)(1) updates the provisions to void a permit application to cross-reference 

the Chapter 39 public notice provisions. 

 Sections 116.114(c)(1) – (c)(3) outline the requirements for communicating permit decisions 

and cross-reference to the public notice requirements in Chapter 39. 

 Section 116.116(b)(4) requires that a permit amendment application use the public notice 

provisions in Chapter 39. 

 Section 116.124 has been repealed by the TCEQ. 

 Section 116.312 provides the public notice requirements for permit renewal applications. 

July 2, 2010

30 TAC Chapter 39 – Public Notice 

Subchapter H: Applicability and General Provisions 
9 

 Section 39.402 – Applicability to Air Quality Permits and Permit Amendments. Section 

39.402 outlines the applicability of the Chapter 39 public notice provisions to specific types 

of permit applications. The TCEQ submitted as SIP revisions sections 39.402(a)(1)-(6), (8), 

and (10)-(12). These sections identify the types of permitting actions that are subject to the 

Chapter 39 public notice procedures – including PSD, major NNSR, and Minor NSR permits 

and permit amendments. Note that Chapter 39 Public Notice procedures apply to all types of 

Texas permitting, not just air quality permits. Only the specific subsections identified above 

have been submitted for inclusion in the Texas SIP. This TSD will only review the 

subsections of Chapter 39 with respect to air quality permits that have been submitted to the 

SIP. 

 Section 39.405 – General Notice Provisions. Section 39.405 provides the general public 

notice requirements germane to the Texas permitting program. The TCEQ submitted sections 

39.405 (f)(3) and (g), (h)(1)-(4), (6), (8)-(11), (i) and (j) as revisions to the Texas SIP. These 

sections generally state that any air quality permit application required to publish notice 

under Chapter 39, Subchapters H and K will comply with the Newspaper Notice 

requirements in section 39.603. Additionally, section 39.405(g) identifies the type of 

information the applicant must make available for review. Section 39.405(h) provides 

requirements for alternative language newspaper notice postings. Section 39.405(i) provides 

information about what happens when an applicant fails to publish the required notice. 

Section 39.405(j) gives the affidavit requirements for air quality permit applications. 

 Section 39.407 – Mailing Lists. Section 39.407 was not revised during the June 2010 

rulemaking, but it has been submitted with the July 2, 2010 SIP submittal to be considered in 

conjunction with the remainder of the revised rules. This section was adopted by the TCEQ 

on September 2, 1999, effective September 23, 1999. This section provides that the chief 

clerk will maintain mailing lists of persons requesting notice of an application. 

 Section 39.409 – Deadline for Public Comment, and Requests for Reconsideration, Contested 

Case Hearing, or Notice and Comment Hearing. Section 39.409 provides a cross-reference to 

30 TAC Chapter 55, Section 55.152 to establish the deadline to file public comment on any 

air quality permit application noticed under Chapter 39. 

 Section 39.411 – Text of Public Notice. Section 39.411 gives the basic text requirements for 

the public notices required under Chapter 39. Because Chapter 39 covers all Texas permit 

programs, the TCEQ only submitted sections 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), which specifically pertain to air quality permits, as revisions to the Texas SIP. Section 

39.411(e) provides the text requirements for the Notice of Receipt of Application and Intent 

to Obtain Permit (referred to as the Texas First Notice or the NORI). Section 39.411(f) 

provides the text requirements for the Notice of Application and Preliminary Decision 

(referred to as the Texas Second Notice or NAPD). Note that as previously discussed, 

39.411(a) was not submitted on July 2, 2010, but was retained for our review from a previous 

submission. 

 Section 39.418 – Notice of Receipt of Application and Intent to Obtain Permit. Section 

39.418 establishes the requirements for publishing the first notice or NORI. TCEQ has 

submitted this entire section for SIP review. Note that as previously discussed, 39.418(b)(3) 

was not submitted on July 2, 2010, but was retained for our review from a previous 

submission. 
10 

 Section 39.419 – Notice of Application and Preliminary Decision. Section 39.419 establishes 

the requirements for publishing the second notice or NAPD. For this section, TCEQ has only 

submitted 39.419(e) because this subsection establishes the NAPD requirements for air 

applications. 

 Section 39.420 – Transmittal of the Executive Director’s Response to Comments and 

Decision. Section 39.420 provides the steps that the TCEQ ED will follow in transmitting the 

Response to Comments (RTC) and final decision on a permit. The subsections specific to air 

quality permits that have been submitted as revisions to the Texas SIP are subsections 

39.420(c)(1)(A) – (D)(i)(I) and (II), (D)(ii), (c)(2), (d)-(e), and (h). 

30 TAC Chapter 39 – Public Notice 

Subchapter K: Public Notice of Air Quality Permit Applications

 Section 39.601 – Applicability. Section 39.601 describes the Applicability of the Chapter 39, 

Subchapter K provisions for public notice for air quality permits. Section 39.601 identifies 

that air quality permit application declared administratively complete before September 1, 

1999 are subject to the requirements of Chapter 116, Subchapter B, Division 3 (the current 

SIP-approved public notice provisions). All other air quality permit applications are subject 

to Chapter 39, Subchapter K. 

 Section 39.602 – Mailed Notice. Section 39.602 details the procedures that must be followed 

by the TCEQ chief clerk when mailing notice of an air quality permit application. The entire 

section was submitted for inclusion into the SIP. 

 Section 39.603 – Newspaper Notice. The entirety of section 39.603 was submitted as a SIP 

revision and details the requirements of the newspaper public notice for an air quality permit 

application. This section provides information on the timing and text that the notice must 

contain. 

 Section 39.604 – Sign-Posting. Provisions in section 39.604 describe the sign-posting 

location and verbiage requirements that must be followed for air quality permit applications. 

The entire section was submitted for inclusion in the Texas SIP. 

 Section 39.605 – Notice to Affected Agencies. Section 39.605 identifies the individuals who 

receive notification in addition to the required newspaper notification or sign-posting of an 

air quality permit application. 

30 TAC Chapter 55 – Requests for Reconsideration and Contested Case Hearings; Public 

Comment 

Subchapter E: Public Comment and Public Meetings 

 Section 55.150 – Applicability. Section 55.150 was adopted by the TCEQ on June 14, 2006, 

effective July 5, 2006. This section was not revised in the June 2010 rulemaking, but has 

been submitted with the July 2, 2010, SIP submittal to be reviewed in conjunction with the 

revised public notice provisions for air quality permits. Section 55.150 establishes that 

requirements in 30 TAC Chapter 55, Subchapter E apply only to applications filed under 

Texas Water Code, Chapter 26, 27, or 32 or Texas Health and Safety Code, Chapter 361 or 

382 that are declared administratively complete on or after September 1, 1999. 

 Section 55.152 – Public Comment Period. Subsections 55.152(a)(1), (2), (5) and (6) have 

been submitted for inclusion in the Texas SIP. These provisions establish the time period for 

public comments for air quality permit applications. 
11 

 Section 55.154 – Public Meetings. Subsections 55.154(a), (b), (c)(1)-(3) and (5), (d)-(g) have 

been submitted for inclusion in the Texas SIP. These subsections establish when a public 

meeting for an air quality permit application will occur and the type of notice that must be 

provided prior to the public meeting. 

 Section 55.156 – Public Comment Processing. Subsections 55.156(a), (b), (c)(1), (e) and (g) 

have been submitted for inclusion in the Texas SIP. These subsections establish the 

procedures that the TCEQ chief clerk and executive director will follow in responding to 

comments received during the comment period or at a public meeting. 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction or 

Modification 

Subchapter B – New Source Review Permits

 Section 116.114 – Application Review Schedule. Section 116.114 provides the timing for 

TCEQ’s review of air quality permit applications. The entirety of this section has been 

submitted for inclusion in the Texas SIP. 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction or 

Modification 

Subchapter C – Plant-Wide Applicability Limits 

 Section 116.194 – Public Notice and Comment. Section 116.194 provides the procedures for 

public notice and comment of PAL applications under 30 TAC Chapter 116, Subchapter C. 

The TCEQ received written comments from 25 organizations/individuals, including EPA Region 

6 on the proposed revisions to Chapters 39, 55 and 116. The TCEQ also received oral testimony 

from one individual during the January 25, 2010, public meeting. TCEQ’s responses to EPA’s 

comments will be discussed in detail in section IV.J of this document. 

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. The original adoption cited specific sections of 

Chapter 39 for applicability. 

 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.
12 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

The SIP submittals providing the Texas Public Participation provisions for air quality permits are 

evaluated for compliance with the relevant requirements of the Act and Title 40 of the Code of 

Federal Regulations (40 CFR) part 51 – Requirements for Preparation, Adoption, and Submittal 

of Implementation Plans. These requirements include, but are not limited to the following: 

1. §110(a)(2)(C) of the Act which provides:

(C) include a program to provide for the regulation of the modification and construction 

of any stationary source within the areas covered by the plan as necessary to assure that 

national ambient air quality standards are achieved, including a permit program as 

required in parts C and D;

2. §110(l) of the Act which provides:

(l) Plan Revisions. – Each revision to an implementation plan submitted by a State under 

this chapter 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 the chapter.

3. 40 CFR 51.160 – Legally enforceable procedures. The regulatory text of 40 CFR 51.160 

is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e14c7616ca&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.1&idno=40

4. 40 CFR 51.161 – Public availability of information. The regulatory text of 40 CFR 

51.161 is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e14c7616ca&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.2&idno=40

5. 40 CFR 51.165 – Permit requirements. The regulatory text of 40 CFR 51.165 is available 

on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=feed49ec24fac67402c2bf6fa403850d&rgn=div8&view=text&node=40:

2.0.1.1.2.6.8.6&idno=40.

6. 40 CFR 51.166 – Prevention of significant deterioration of air quality. The regulatory text 

of 40 CFR 51.166 is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=0dbbe52d31085f8454d6cbf1412e1557&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.7&idno=40.

7. Other applicable requirements of the Act, 40 CFR part 51, and applicable policy and 

guidance will be identified in the evaluation where appropriate. 

Specifically, the July 2, 2010 submittal is first reviewed for completeness as a SIP submittal 

under Part 51, Appendix V, and is then compared with the general requirements for SIP 

preparation, adoption and submittal at 40 CFR Part 51.3

 This will be followed by a detailed 

 

3

 EPA has separately reviewed the October 25, 1999, submittal to the Texas SIP for completeness with respect to 40 

CFR Part 51. Our determination that this submittal is complete with respect to the requirements of 40 CFR Part 51 
13 

analysis of the public participation provisions for the different types of air quality permit 

applications to ensure all federal requirements at 40 CFR Part 51, Subpart I for public notice for 

air permitting is satisfied. Then we review the Texas public participation requirements with 

respect to the current SIP-approved public participation provisions. Finally, the July 2, 2010, 

submittal is reviewed with respect to section 110(l) of the CAA to determine whether the 

proposed revisions interfere with any applicable CAA provisions. These analyses produce a 

written evaluation used to make a determination of whether or not the July 2, 2010 Texas Public 

Participation SIP submittal is in agreement with the CAA, other EPA policies or guidance. 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

A. Part 51, Appendix V Evaluation of the July 2, 2010 SIP Submittal 

The criteria for completeness determination are found in Appendix V to Part 51 - Criteria for 

determining the completeness of plan submissions and are outlined below: 

1.0 Purpose: This appendix V sets forth the minimum criteria for determining whether a 

State implementation plan submitted for consideration by EPA is an official submission 

for purposes of review under § 51.103. 

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails to 

meet the criteria set forth in this appendix V, and request corrective action, identifying 

the component(s) absent or insufficient to perform a review of the submitted plan. 

1.2 The EPA shall inform the submitting official whether or not a plan submission meets the 

requirements of this appendix V within 60 days of EPA's receipt of the submittal, but no 

later than 6 months after the date which the State was required to submit the plan or 

revision. If a completeness determination is not made by 6 months from receipt of a 

submittal, the submittal shall be deemed complete by operation of law on the date 6 

months from receipt. A determination of completeness under this paragraph means that 

the submission is an official submission for purposes of §51.103. 

The attached checklist outlines the basic criteria included under 2.1, 2.2, and 2.3 of Appendix V. 

 remains unchanged, regardless of our proposed LA/LD. See 73 FR 72001 and the associated rulemaking docket 

EPA-R06-OAR-2007-0209. 
14 

SIP Completeness Checklist for the July 2, 2010 SIP Submittal

Rule Log No: 2010-004-039-LS 

Administrative Materials (2.1) 

1. The package is sent with a formal submittal letter from the Governor or his or her 

designee requesting EPA's approval of the revision. 

The SIP revision was submitted by a letter from Bryan W. Shaw, PhD, Chairman of the 

TCEQ, dated July 2, 2010. The SIP submittal was received by EPA Region 6 Air 

Planning Section on July 10, 2012. 

2. Evidence is included that the State has adopted the revision in the State code or body of 

regulations, or that the State has issued the permit, order, consent agreement (hereafter 

document) in final form. This evidence would include the date of adoption or final 

issuance and the effective date of revision, if different from adoption/issuance date. 

The revisions were adopted by the TCEQ on June 2, 2010, and became effective June 24, 

2010. 

3. Evidence is included that the State has necessary legal authority under State law to adopt 

and implement the revision, e.g., a citation of the appropriate State authority. 

The authority for promulgating changes to the Texas State Implementation is found in the 

Texas Clean Air Act, Chapter 382 of the Texas Health and Safety Code. 

4. A copy is included of the actual regulation or document submitted for approval and 

incorporation by reference into the SIP including an indication of the changes made to the 

existing approved plan where applicable. The submittal shall be a copy of the official 

State regulation document signed, stamped, and dated by the appropriate State official 

indicating that it is fully enforceable by the State. The effective date of the regulation 

document shall, whenever possible, be indicated in the document itself. 

 

The July 2, 2010, submittal included a copy of the official State regulation document, 

submitted by Chairman Shaw. 

5. Evidence is included that the State followed all the procedural requirements of its laws 

and/or its constitution in the conducting and completing the adoption/issuance of the 

plan. 

The SIP submittal package included a certification demonstrating the SIP submittal was 

developed pursuant to 40 CFR 51.104. 
15 

6. Evidence is included that public notice was given of the proposed changes consistent 

with the procedures approved by EPA, including the date of publication of such notice, 

(e.g., notarized or certified copies of any public notices published in newspapers). (The 

notice should be at least 30 days prior to the public hearing(s). 

Notices of public hearings were published in the following newspapers on the date listed: 

 Austin American Statesman: December 11, 2009 

 Fort Worth Star-Telegram 

 Houston Chronicle 

TCEQ conducted a public hearing in Austin, Texas, on January 25, 2010. 

TCEQ also provided publication in the Texas Register of the proposed rulemaking (35 

TexReg 306) and public hearing notice (35 TexReg 398) on January 15, 2010. 

7. A certification is included indicating that public hearing(s) was/were held in accordance 

with the information provided in the public notice(s) and the State's laws and 

constitution, if applicable. 

An order adopting revisions to the SIP was included. This order states that the public 

hearing was conducted pursuant to Texas Health and Safety Code § 382.017, Texas 

Government Code Chapter 2001, and 40 CFR § 51.102. 

8. A compilation of public comments and the State's response is included. 

The SIP submittal package did include a compilation of comments and the State’s 

response to comments. TCEQ received written testimony from 25 parties during the 

comment period, including EPA Region 6. TCEQ received oral testimony from one party 

during the January 25, 2010 public hearing. 

Technical Support (2.2) 

The State should include the following technical information in its SIP revision request package. 

1. Identification of all regulated pollutants affected by the revision is included. 

The SIP submittal revises the public notice and participation provisions for the Texas air 

permits program – therefore the SIP revision affects permits for all regulated pollutants. 

2. Identification of the locations of affected sources including the EPA 

attainment/nonattainment designation of the locations and the status of the attainment 

plan for the affected area(s) is included. 

The provisions for public notice and participation in Texas air permitting will apply 

statewide. 
16 

3. Quantification of the changes in SIP allowable emissions from the affected sources is 

included. (Examples include estimates of changes in current actual emissions from 

affected sources and/or, where appropriate, quantification of changes in actual emissions 

from affected sources through calculations of the differences between certain baseline 

levels and allowable emissions anticipated if the revisions were approved.) 

The provisions for public notice and participation do not need to include quantification 

of the changes in SIP allowable emissions from the affected sources. These public 

participation provision do not change any of the permitting mechanisms that have 

already been submitted and acted upon by EPA such as the PSD or NNSR programs that 

are SIP-approved. 

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration and 

visibility as applicable would be protected if the revision were approved and 

implemented. 

The public participation provisions that are the subject of this SIP revision do not need to 

include a demonstration that NAAQS/PSD increments/RFP demonstration, etc. will be 

protected. The subject revision does not alter any of the SIP-approved permit 

mechanisms or SIP compliance demonstrations already in place. 

5. FOR REDESIGNATIONS: 

 a. Is there a fully approved maintenance plan for the primary ambient air quality 

standards for at least 10 years as required by §175A of the Clean Air Act? 

 Not applicable. 

 b. Are contingency measures included? 

 Not applicable. 

6. Modeling information, if applicable, is required to support the proposed revision. 

Modeling information is not necessary to support the analysis and review of the proposed 

public notice and participation provisions. However, as discussed later in this document, 

the proposed revisions do require certain permit applicants to provide the air quality 

modeling results for a specific project during the public comment period. 

7. Evidence is included where necessary, that emission limitations are based on continuous 

emission reduction technology (e.g., add-on controls, industrial/process equipment 

designs, reformulated materials, etc.). 

Appropriate emission limitations will be established in individual permits. The SIP 

revision under review in this document only establishes public notice and participation 
17 

provisions for individual permits. The SIP revision does not need to include a discussion 

of emission limitations. 

8. Evidence is included indicating that a SIP revision contains emission limitations, work 

practice standards, and recordkeeping/reporting requirements to ensure stated emission 

levels. 

Appropriate recordkeeping/reporting requirements will be established in each individual 

permit such that the necessary emission limitations, work practice standards are in place 

to ensure stated emission levels. This information is not necessary for inclusion in the 

public notice provisions under review in this SIP revision b/c this SIP addresses how 

each individual permit will be open for public review and inspection, and the general 

requirements for inclusion – not the substance of each permit. 

9. Compliance/enforcement strategies including how compliance will be determined in 

practice (including at what frequency). 

Compliance/enforcement of the NSR permitting program will be determined on a permitby-permit basis and not through the public participation SIP revision. 

10. As appropriate, special economic and technological justifications are included per 

applicable EPA policies or an explanation why such justifications are not necessary 

should be included. For example, requests for alternative RACT may require such 

justification. 

 These justifications are not necessary for this SIP revision. 

The July 2, 2010 SIP submittal (Rule Project No. 2010-004-039-LS) meets the completeness 

criteria established in 40 CFR part 51, Appendix V.
18 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

The Texas air quality permitting program consists of several different types of permit actions, or 

tiers – new major sources or modifications subject to PSD or NNSR requirements, PAL permit 

authorizations at existing major sources, new minor sources or minor modifications, 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 TSD will analyze the public participation process for each type of permit action to 

determine whether the submitted process is consistent with federal requirements. 

 
19 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

B. Evaluation of the Public Participation Process for Major Sources and Modifications 

Subject to PSD Permitting Requirements

Federal public participation requirements for PSD permit applications are at 40 CFR 51.160, 

51.161, and 51.166(q). 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). This 

section of the TSD will determine whether the submitted Texas public participation requirements 

for PSD permit applications satisfy the federal requirements for public notice of PSD permit 

applications. 

1. Public Participation Process 

The following steps provide a general overview of the Texas public notice process for a PSD 

permit application. 

1. Applicant submits PSD 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 publishes the first 

notice, the Notice of Receipt of Application and Intent to Obtain Permit (NORI). 

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 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. 

4. TCEQ completes the technical review and makes a preliminary decision. The 

TCEQ has 180 days from the date the application is administratively complete to 

conduct the technical review and make a preliminary decision. See 30 TAC 

116.114(a) and (c). 

5. The applicant publishes the second notice, the Notice of Application and 

Preliminary Decision (NAPD) when notified by TCEQ of the preliminary 

decision. See 30 TAC 39.419(e). 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. For PSD permit applications, the NAPD includes the 

degree of increment consumption that is expected. 

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 on the TCEQ’s website. See 30 TAC 39.419. 
20 

7. The comment period runs for 30 days after the last publication of the NAPD. 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 interest or if the meeting is requested by an interested person or a 

member of the legislature representing the general area of the proposed 

facility/modification. 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 shall file 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 application. See 30 TAC 116.114(c)(3). While not explicitly 

identified in the rule language, the TCEQ’s one-year clock is based on the 

completion of the technical review and the publication of the NAPD. 

2. Analysis of Requirements in 40 CFR 51 Specific to PSD Sources 

Tables IV.B-1, B-2, and B-3 provide line-item comparisons of the PSD requirements of §§ 

51.160, 51.161 and 51.166(q) and the comparable Texas Public Participation requirements as 

they apply to PSD permit applications. Where appropriate, the “Analysis” column of the 

following table will identify if EPA submitted substantive comments (i.e., not identifying 

typographical errors) on the public participation requirements specific to PSD permit 

applications in our February 16, 2010 comment letter, and provide a summation and/or analysis 

of the TCEQ response to the submitted comment. EPA’s February 16, 2010, comment letter is 

included in the rulemaking docket for this action. 

Table IV.B-1: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas PSD Permitting Provisions Analysis 

(a) Each plan must set forth legally 

enforceable procedures that enable 

the State or local agency to 

determine whether the construction 

or modification of a facility, 

building, structure or installation, or 

combination of these will result in – 

(1) A violation of applicable 

portions of the control 

strategy; or 

(2) Interference with 

attainment or maintenance 

of a national standard in the 

State in which the proposed 

source (or modification) is 

located or in a neighboring 

State. 

§116.161. Source Located in an 

Attainment Area with a Greater 

than De Minimis Impact.

The commission may not issue a 

permit to any new major stationary 

source or major modification located 

in an area designated as attainment 

or unclassifiable, for any National 

Ambient Air Quality Standard 

(NAAQS) under FCAA, §107, if 

ambient air impacts from the 

proposed source would cause or 

contribute to a violation of any 

NAAQS. In order to obtain a permit, 

the source must reduce the impact of 

its emissions upon air quality by 

obtaining sufficient emission 

reductions to eliminate the predicted 

EPA SIP-approved the provisions 

for sources located in an attainment 

area with a greater than de minimis 

impact on September 18, 2002, as 

adopted by the TCEQ on June 17, 

1998 (see 67 FR 58697). 

 

Note 30 TAC 116.161 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas PSD program is SIP-approved 

with the necessary legally 

enforceable procedures that enable 

the TCEQ to protect the NAAQS. 
21 

Table IV.B-1: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas PSD Permitting Provisions Analysis 

exceedances of the NAAQS. A 

major source or major modification 

will be considered to cause or 

contribute to a violation of a 

NAAQS when the emissions from 

such source or modification would, 

at a minimum, exceed the de minimis 

impact levels specified in §101.1 of 

this title (relating to Definitions) at 

any locality that is designated as 

nonattainment or is predicted to be 

nonattainment for the applicable 

standard. 

The TCEQ is able to determine 

whether the construction or 

modification of a facility will result 

in violations of the control strategy 

or interference with the NAAQS 

when the “emissions from such 

source or modification would, at a 

minimum, exceed the de minimis 

impact levels specified in §101.1 of 

this title (relating to Definitions) at 

any locality that is designated as 

nonattainment or is predicted to be 

nonattainment for the applicable 

standard.” 

(b) Such procedures must include 

means by which the State or local 

agency responsible for final decision 

making on an application for 

approval to construct or modify will 

prevent such construction or 

modification if – 

(1) It will result in a violation 

of applicable portions of 

the control strategy; or 

(2) It will interfere with 

attainment or maintenance 

of a national standard 

§116.161. Source Located in an 

Attainment Area with a Greater 

than De Minimis Impact.

The commission may not issue a 

permit to any new major stationary 

source or major modification located 

in an area designated as attainment 

or unclassifiable, for any National 

Ambient Air Quality Standard 

(NAAQS) under FCAA, §107, if 

ambient air impacts from the 

proposed source would cause or 

contribute to a violation of any 

NAAQS. In order to obtain a permit, 

the source must reduce the impact of 

its emissions upon air quality by 

obtaining sufficient emission 

reductions to eliminate the predicted 

exceedances of the NAAQS. A 

major source or major modification 

will be considered to cause or 

contribute to a violation of a 

NAAQS when the emissions from 

such source or modification would, 

at a minimum, exceed the de minimis 

impact levels specified in §101.1 of 

this title (relating to Definitions) at 

any locality that is designated as 

nonattainment or is predicted to be 

nonattainment for the applicable 

standard. 

EPA SIP-approved the provisions 

for sources located in an attainment 

area with a greater than de minimis 

impact on September 18, 2002, as 

adopted by the TCEQ on June 17, 

1998 (see 67 FR 58697). 

 

Note that 30 TAC 116.161 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas PSD program is SIP-approved 

with the necessary legally 

enforceable procedures that enable 

the TCEQ to protect the NAAQS. 

The TCEQ is not authorized to issue 

a permit in an attainment or 

unclassifiable area if ambient air 

impacts from the proposed source 

are predicted to cause or contribute 

to a violation of the NAAQS. 

(c) The procedures must provide for 

the submission, by the owner or 

operator of the building, facility, 

structure, or installation to be 

constructed or modified, of such 

information on – 

(1) The nature and amounts of 

emissions to be emitted by 

39.411. Text of Public Notice. 

(e) When NORI by publication or 

mail is required by Subchapter H and 

K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection. 

(1) the name and address of the 

PSD permit applications are subject 

to both first (NORI) and second 

(NAPD) notice. The text of the 

NORI will provide the general 

information about the proposed 

source or modification. The text of 

the NAPD, along with the 

preliminary decision and draft 
22 

Table IV.B-1: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas PSD Permitting Provisions Analysis 

it or emitted by associated 

mobile sources; 

(2) The location, design, 

construction, and operation 

of such facility, building, 

structure, or installation as 

may be necessary to permit 

the State or local agency to 

make the determination 

referred to in paragraph (a) 

of this section. 

agency and the telephone number of 

an agency contact from whom 

interested persons may obtain further 

information; 

(2) the name, address, and telephone 

number of the applicant and a 

description of the manner in which a 

person may contact the applicant for 

further information; 

(3) a brief description of the location 

and nature of the proposed activity; 

(4) a brief description of public 

comment procedures 

... 

(f) When NAPD by publication or 

mail is required by Subchapters H 

and K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection: 

(1) the information required by 

subsection (e) of this section 

[information in the NORI notice]; 

(2) a summary of the ED’s 

preliminary decision and whether the 

ED has prepared a draft permit; 

... 

(8) in addition to the requirements in 

paragraphs (1) – (7) of this 

subsection, for air quality permit 

applications filed on or after the 

effective date of this section for 

permits under Chapter 116, 

Subchapter B, Divisions 5 and 6: 

(A) as applicable, the degree of 

increment consumption 

(B) a statement that the state’s air 

quality analysis is available for 

comment 

... 

permit, will provide the more 

detailed information used by the 

TCEQ in making the permit 

decision. The excerpts from 30 TAC 

39.411(e) and (f) demonstrate the 

factual information that must be part 

of a notice. 

Additionally, as the PSD permitting 

authority in Texas, the TCEQ has 

the authority to request the 

information necessary to properly 

review a permit application and 

make a decision on said application. 

The TCEQ must make a finding of 

administrative completeness within 

90 days of receiving the application; 

the final decision on any application 

must be made within one year of the 

completion of the technical review 

(i.e, the publication of the NAPD). 

(d)The procedures must provide that 

approval of any construction or 

modification must not affect the 

responsibility to the owner or 

operator to comply with applicable 

portions of the control strategy. 

§116.115. General and Special 

Conditions. 

(b) General conditions. Holders of 

permits, special permits, standard 

permits, and special exemptions shall 

comply with the following: 

(2) the following general 

conditions if the permit or 

amendment is issued or 

amended on or after August 16, 

1994, regardless of whether 

they are specifically stated 

within the permit document. 

EPA SIP-approved the general and 

special conditions for Chapter 116 

permitting on April 2, 2010, as 

adopted by the TCEQ on August 20, 

2003 (see 75 FR 16671). 

Note that 30 TAC 116.115 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas PSD program is SIP-approved 
23 

Table IV.B-1: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas PSD Permitting Provisions Analysis 

(H) Compliance with rules. 

(i) Acceptance of a 

permit by an applicant 

constitutes an 

acknowledgment and 

agreement that the 

permit holder will 

comply with all rules, 

regulations, and orders 

of the commission 

issued in conformity 

with the TCAA and 

the conditions 

precedent to the 

granting of the permit.

(ii) If more than one 

state or federal rule or 

regulation or permit 

condition are 

applicable, the most 

stringent limit or 

condition shall govern 

and be the standard by 

which compliance 

shall be demonstrated.

(iii) Acceptance 

includes consent to the 

entrance of 

commission 

employees and agents 

into the permitted 

premises at reasonable 

times to investigate 

conditions relating to 

the emission or 

concentration of air 

contaminants, 

including compliance 

with the permit. 

with the necessary legal procedures 

providing that approval of any 

construction or modification does 

not affect the owner/operator’s 

responsibility to comply with 

applicable portions of the control 

strategy. 

(e) The procedures must identify 

types and sizes of facilities, 

buildings, structures, or installations 

which will be subject to review 

under this section. The plan must 

discuss the basis for determining 

which facilities will be subject to 

review. 

§116.160. Prevention of 

Significant Deterioration 

Requirements 

(a) Each proposed new major source 

or major modification in an 

attainment or unc1assifiable area 

shall comply with the requirements 

of this section. The owner or 

operator of a proposed new or 

modified facility that will be a new 

major stationary source for the 

prevention of significant 

deterioration air contaminant shall 

meet the additional requirements of 

EPA SIP-approved the provisions 

for the Texas PSD program for 

determining the types and sizes of 

facilities subject to review on 

September 15, 2010, as adopted by 

the TCEQ on June 2, 2010 (see 75 

FR 55978). 

Note that 30 TAC 116.160 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 
24 

Table IV.B-1: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas PSD Permitting Provisions Analysis 

subsection (c)( 1) - (4) of this 

section. 

(b) The de minimis threshold test 

(netting) is required for all 

modifications to existing major 

sources of federally regulated new 

source review pollutants, unless the 

proposed emissions increases 

associated with a project, without 

regard to decreases, are less than 

major modification thresholds for the 

pollutant identified in 40 Code of 

Federal Regulations (CFR) 

§52.21(b)(23). 

(c) In applying the de 

minimis threshold test (netting), if 

the net emissions increases are 

greater than the major modification 

levels for the pollutant identified in 

40 CFR 52.21(b)(23), the following 

requirements apply. 

... 

Texas PSD program satisfies the 

requirements of 40 CFR 51.160(e). 

Through 30 TAC 116.160(a) – (c), 

the Texas PSD program establishes 

the size thresholds for new major 

sources and major modifications 

subject to PSD review. 

 (f)The procedures must discuss the 

air quality data and the dispersion or 

other air quality modeling used to 

meet the requirements of this 

subpart. 

(1) All applications of air quality 

modeling involved in this subpart 

shall be based on the applicable 

models, data bases, and other 

requirements specified in appendix 

W of this part (Guideline on Air 

Quality Models). 

(2) Where an air quality model 

specified in appendix W of this part 

is inappropriate, the model may be 

modified or another model 

substituted. Such a modification or 

substitution of a model may be made 

on a case-by-case basis or, where 

appropriate, on a generic basis for a 

specific State program. Written 

approval of the Administrator must 

be obtained for any modification or 

substitution. In addition, use of a 

modified or substituted model must 

be subject to notice and opportunity 

for public comment under 

procedures set forth in § 51.102. 

§116.160. Prevention of 

Significant Deterioration 

Requirements. 

(d) All estimates of ambient 

concentrations required under this 

subsection shall be based on the 

applicable air quality models and 

modeling procedures specified in the 

EPA Guideline on Air Quality 

Models, as amended, or models and 

modeling procedures currently 

approved by the EPA for use in the 

state program, and other specific 

provisions made in the prevention of 

significant deterioration state 

implementation plan. If the air 

quality impact model approved by 

the EPA or specified in the guideline 

is inappropriate, the model may be 

modified or another model 

substituted on a case-by-case basis, 

or a generic basis for the state 

program, where appropriate. Such a 

change shall be subject to notice and 

opportunity for public hearing and 

written approval of the administrator 

of the EPA. 

EPA SIP-approved the provisions 

for PSD ambient air quality 

modeling at 30 TAC 116.160(d) on 

September 15, 2010, as adopted by 

the TCEQ on June 2, 2010 (see 75 

FR 55978). 

Note that 30 TAC 116.160 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas PSD program satisfies the 

requirements of 40 CFR 51.160(f). 
25 

Table IV.B-1 above demonstrates that the Texas public participation requirements specific to 

PSD permit applications for major new sources or major modifications at existing sources satisfy 

the federal requirements found at 40 CFR 51.160. 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(a) The legally enforceable 

procedures in §51.160 must also 

require the State or local agency to 

provide opportunity for public 

comment on information submitted 

by owners and operators. The public 

information must include the 

agency's analysis of the effect of 

construction or modification on 

ambient air quality, including the 

agency's proposed approval or 

disapproval. 

39.405. General Notice Provisions. 

(g) Copy of application. The 

applicant shall make a copy of the 

application available for review and 

copying at a public place in the 

county in which the facility is 

located or proposed to be located. 

... 

The copy of the application must 

comply with the following. 

(1) A copy of the 

administratively complete 

application must be 

available for review and 

copying beginning on the 

first day of newspaper 

publication of NORI and 

remain available for the 

publications’ designated 

comment period. 

(2) A copy of the complete 

application (including any 

subsequent revisions to the 

application) and ED’s 

preliminary decision must 

be available for review and 

copying beginning on the 

first day of newspaper 

publication required by this 

section and remain available 

until the commission has 

taken action on the 

application or the 

commission refers issues to 

SOAH. 

(3) Where applicable, for air 

quality permit applications 

filed on or after the 

effective date of this section 

(June 24, 2010) the 

applicant shall also make 

available the ED’s draft 

permit, preliminary 

determination summary and 

air quality analysis for 

review and copying 

beginning on the first day of 

Section 39.405 requires that the 

application, subsequent revisions to 

the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 

Section 55.152 provides at least a 30 

day comment period after the last 

publication of the NAPD. 

Section 39.405 satisfies the 

requirements at § 51.161(a) for 

which materials are made available 

for public comment for PSD 

permits. 

Section 55.152 ensures that the 

public is provided the opportunity to 

comment consistent with § 

51.161(a). 

Additionally, public notice of PSD 

permit applications is more stringent 

then federal requirements because 

PSD permit applications are subject 

to both NORI and NAPD notice. 
26 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

newspaper publication 

required by 39.419 for 

NAPD and remain available 

until the commission has 

taken action on the 

application or referred to 

SOAH 

§ 55.152. Public Comment Period 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(b) For purposes of paragraph (a) of 

this section, opportunity for public 

comment shall include, as a 

minimum— 

(1) Availability for public 

inspection in at least one 

location in the area affected 

of the information 

submitted by the owner or 

operator and of the State or 

local agency's analysis of 

the effect on air quality; 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or proposed 

location. 

 39.405(g)(1) requires the 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

applicant to make available for 

review the air quality analysis for 

applications submitted after the 

effective date of the rule, June 24, 

2010. 

39.411. Text of Public Notice. 

(f) The chief clerk shall mail NAPD 

to those listed in § 39.602. When 

NAPD is required by Subchapters H 

Section 39.405 satisfies the 

requirements at § 51.161(b)(1) for 

public inspection in at least one 

location in the affected area of the 

information submitted by the 

owner/operator and the air quality 

analysis for the PSD permit 

application. 

Section 39.411(f)(8)(B) requires that 

the NAPD provide notification to 

the public that the air quality 

analysis is available for comment, 

consistent with § 51.161(b)(1). 
27 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

and K of this chapter, the text of the 

notice must include: 

... 

(8)in addition to the requirements in 

paragraphs (1)-(7) of this subsection, 

for air quality permit applications 

filed on or after the effective date of 

this section for permits under 

Chapter 116, Subchapter B, 

Divisions 5 and 6 (PSD and NNSR): 

... 

(B) a statement that the state’s air 

quality analysis is available for 

comment. 

(2) A 30-day period for 

submittal of public 

comment; and 

39.409. Deadline for Public 

Comment, and for Requests for 

Reconsideration, Contested Case 

Hearing, or Notice and Comment 

Hearing. 

Notice given under this chapter will 

specify any applicable deadline to 

file public comment specified under 

§ 55.152 of this title and, if 

applicable, any deadlines to file 

requests for reconsideration, 

contested case hearing, or notice and 

comment hearing. After the 

deadline, final action on an 

application may be taken under 

Chapter 50. 

39.411(f): The chief clerk shall mail 

Notice of Application and 

Preliminary Decision to those listed 

in §39.602 of this title (relating to 

Mailed Notice). When notice of 

application and preliminary decision 

by publication or by mail is required 

by Subchapters H and K of this 

chapter for air quality permit 

applications, the text of the notice 

must include the information in this 

subsection: 

... 

(5) the deadline to file 

comments or request a 

public meeting. The notice 

should include a statement 

that a public meeting will be 

held by the executive 

director if requested by a 

member of the legislature 

PSD permits are subject to both 

NORI “first” notice and NAPD 

“second” notice. The NORI gives a 

30 day notice on the application. 

After the TCEQ completes the 

technical analysis, the draft decision 

along with the air quality analysis 

and other technical documents are 

available for another 30 day notice 

period for the NAPD. 

PSD permit applications are subject 

to NAPD notice requirements. 

Section 39.411(f)(5) specifies that 

the NAPD must include a statement 

that the comment period will be for 

at least 30 days following the 

publication of the NAPD. 

 

Section 55.152 generally provides 

that comment period is 30 days after 

the last publication of the NAPD. 

Sections 39.411(f)(5) and 55.152 

satisfies the requirements of § 

51.161(b)(2) by specifying a 30-day 

comment period. 

On February 16, 2010, EPA 

commented that 39.411(f)(5) did not 

clearly provide for a 30-day 

comment period. The TCEQ revised 

the rule as a result of our comments 

to specify that the public comment 

period will be for at least thirty days 

following the NAPD. 

Also on February 16, 2010, EPA 
28 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

who represents the general 

area where the facility is to 

be located or there is 

substantial public interest in 

the proposed activity. The 

notice must include a 

statement that the comment 

period will be for at least 

thirty days following 

publication of the Notice of 

Application and Preliminary 

Decision; 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

provided information pertaining to 

our own experiences providing 

comments on Texas PSD permit 

applications and recommended that 

the TCEQ consider including a date 

specific in the NAPD to enable the 

public to more readily identify the 

end date of the comment period. The 

TCEQ declined to revise the rule in 

response to this comment. While 

EPA continues to believe that 

identifying a date specific would 

more clearly identify the end of a 

comment period; the Texas rules as 

adopted and submitted provide the 

minimum thirty day comment period 

consistent with federal requirements. 

Further, because the TCEQ public 

participation process for PSD permit 

applications includes a NORI and 

NAPD, the public will receive the 

opportunity to comment on the 

application twice, which is more 

stringent than the federal PSD 

requirements. 

(3) A notice by prominent 

advertisement in the area 

affected of the location of 

the source information and 

analysis specified in 

paragraph (b)(1) of this 

section. 

39.418(c) NORI and 39.419(e)(1) 

NAPD follow requirements of 

Chapter 39, Subchapter K. 

Subchapter K 

39.603. Newspaper Notice. 

(a) NORI under §39.419 is required 

to be published no later than 30 days 

after the executive director declares 

an application administratively 

complete. This notice must contain 

the text as required by §39.411(e). 

(b) NAPD under §39.419 is required 

to be published within 33 days after 

the chief clerk has mailed the 

preliminary decision concurrently 

with the NAPD to the applicant. 

This notice must contain the text 

required at § 39.411(f). 

(c) General newspaper notice 

requires notice to be published in a 

newspaper of general circulation in 

PSD permits are subject to both 

NORI and NAPD. Therefore, we 

use the requirements at 39.418, 

39.419 and 39.603(b). 

Subchapter K provides requirements 

for Mailed Notice, Newspaper 

publication, and sign posting. 

Newspaper notice is the traditional 

vehicle used by EPA to prominently 

advertise a proposed source. Section 

39.603(c) requires publication in a 

newspaper of general circulation in 

the municipality in which the 

facility is located or proposed to be 

located, or in the municipality 

nearest the location or proposed 

location. Section 39.603(c) further 

requires that within the newspaper, 

the applicant must provide 2 

separate notifications with the 
29 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

the municipality in which the facility 

is located or is proposed to be 

located or in the municipality nearest 

to the location or proposed location 

of the facility, unless otherwise 

specified. Section 39.603(c) further 

requires that within the newspaper, 

the applicant must provide 2 separate 

notifications with the required 

material. 

39.604. Sign Posting. 

(a) At the applicant’s expense, a sign 

or signs must be placed at the site of 

the existing or proposed facility 

declaring the filing of an application 

for a permit and stating the manner 

in which the commission may be 

contacted for further information. 

required material. Section 39.603 

satisfies the prominent 

advertisement requirements of 

51.161. 

Historically, EPA has not 

considered sign posting as necessary 

for prominent advertisement. 

Therefore, any Texas provisions 

requiring sign postage are more 

stringent than federal requirements 

for prominent advertisement. 

TCEQ originally adopted sign 

posting requirements at 30 TAC 

116.133 on August 16, 1993. EPA 

SIP-approved these provisions on 

September 18, 2002 (see 67 FR 

58697) as strengthening the SIP 

because federal notice provisions 

neither require nor prohibit sign 

posting. Subsequently, TCEQ 

adopted alternate language sign 

posting provisions at 30 TAC 

116.133, effective July 8, 1998. 

EPA SIP approved these alternate 

language sign posting provisions on 

March 10, 2006 (see 71 FR 12285) 

as strengthening the SIP. The sign 

posting provisions at 39.604 are not 

substantively different from the SIPapproved sign posting provisions at 

116.133. 

(c) Where the 30-day comment 

period required in paragraph (b) of 

this section would conflict with 

existing requirements for acting on 

requests for permission to construct 

or modify, the State may submit for 

approval a comment period which is 

consistent with such existing 

requirements. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(2) 15 days after the last 

publication of the NORI, or 

30 days after NAPD if a 

second notice is required for 

Section 39.419(e) requires NAPD 

for all air quality permit applications 

– except for renewals. Therefore, 

PSD permits require NAPD notice 

and the comment period will end 30 

days after the last publication of the 

NAPD. 

Public notice for permit renewal 

applications will be discussed in 

section IV.F of this TSD. 

Note that Section 55.152(a)(2) does 

not apply to public notice for PSD 

permits. Analysis of section 

55.152(a)(2) for other types of 

Texas permits applications will be 

discussed in separate analyses. 
30 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

a permit renewal under 

Chapter 116 or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted 

under Chapter 116, 

subchapter F, unless the 

plant is to be temporarily 

located in or contiguous to 

the right-of-way of a public 

works project; 

 (5) the time specified in 

commission rules for other 

specific types of 

applications; or 

(6) as extended by the ED 

for good cause. 

 

(d) A copy of the notice required by 

paragraph (b) of this section must 

also be sent to the Administrator 

through the appropriate Regional 

Office, and to all other State and 

local air pollution control agencies 

having jurisdiction in the region in 

which such new or modified 

installation will be located. The 

notice also must be sent to any other 

agency in the region having 

responsibility for implementing the 

procedures required under this 

subpart. For lead, a copy of the 

notice is required for all point 

sources. The definition of point for 

lead is given in §51.100(k)(2). 

39.605. Notice to Affected 

Agencies. 

In addition to the requirements in § 

39.405(f)(3) of this title: 

(1) When newspaper notices are 

published under this section, the 

applicant shall furnish a copy of 

the notices and affidavit to: 

(A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county in 

which the construction is to 

occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may be 

adversely affected by the 

emissions from the new or 

modified facility; and 

(D).If notice is for an 

application filed on or after 

the effective date of this 

section for a PSD or NNSR 

permit, 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 

For air quality permits, Section 

39.605 requires that copies of 

newspaper notices and sign posting 

verification be sent to the Region 6 

RA, state and local air pollution 

control agencies, and Federal or 

State Land Managers or Indian 

Governing Body. 

PSD permit applications for a new 

major source or major modification 

are subject to the notice 

requirements of Section 39.605. 

Therefore, when a PSD permit 

applicant will emit lead above the 

significant levels (0.6 tpy as 

established at 40 CFR 

51.165(a)(1)(x)(A)) this information 

will also be provided to the affected 

agencies as specified in 39.605, 

consistent with the requirements of 

51.161(d). 
31 

Table IV.B-2: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements at 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

the source or modification. 

(2) When sign posting is required 

under this section, the applicant 

shall furnish a copy of sign 

posting verification, within 10 

business days after the end of 

the comment period associated 

with the notice under § 39.418 

to: 

(A). The chief clerk; 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

Table IV.B-2 above demonstrates that the Texas public participation requirements specific to 

PSD permit applications for major new sources or major modifications at existing sources satisfy 

the federal requirements found at 40 CFR 51.161. 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

40 CFR 51.166 Texas Public Participation 

Provisions 

Comments 

(q) Public participation. The plan 

shall provide that— 

(1) The reviewing authority 

shall notify all applicants within 

a specified time period as to the 

completeness of the application 

or any deficiency in the 

application or information 

submitted. In the event of such 

a deficiency, the date of receipt 

of the application shall be the 

date on which the reviewing 

authority received all required 

information. 

116.114. Application Review 

Schedule 

(a) Review schedule. The executive 

director shall review permit 

applications in accordance with the 

following. 

(1) Notice of completion or 

deficiency. The executive director 

shall mail written notification 

informing the applicant that the 

application is complete or that it 

is deficient within 90 days of 

receipt of the application for a 

new permit, or amendment to a 

permit or special permit. 

(A) If the application is 

deficient, the notification 

must state: 

(i) the additional 

information required; and 

(ii) the intent of the 

executive director to void 

the application if 

information for a 

complete application is 

not submitted. 

EPA SIP-approved section 

116.114(a) and (a)(1) on September 

18, 2002 (67 FR 58697) as adopted 

by the TCEQ on June 17, 1998. 

The SIP-approved sections 

116.114(a) and (a)(1) satisfy 40 

CFR 51.166(q)(1) because they 

specify that the notice of completion 

or deficiency will be made within 90 

days of receipt of application. 

TCEQ has not revised the SIPapproved sections 116.114(a) and 

(a)(1). 
32 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

(B) Additional information 

may be requested within 60 

days of receipt of the 

information provided in 

response to the deficiency 

notification. 

(2) Within one year after receipt 

of a complete application, the 

reviewing authority shall: 

(i) Make a preliminary 

determination whether 

construction should be 

approved, approved with 

conditions, or disapproved. 

116.114. Application Review 

Schedule (current SIP-approved 

section 116.114) 

(a) Review schedule. The 

executive director shall review 

permit applications in accordance 

with the following. 

... 

(2) Decision to approve or 

disapprove the application. 

 The executive director shall 

mail written notice to the 

applicant of his decision to 

approve or not approve the 

application. If the applicant 

has provided public 

notification as required by the 

executive director, and no 

requests for public hearing or 

public meeting on the 

proposed facility have been 

received, the executive 

director shall send notice 

within: 

(A). 180 days of receipt of a 

completed permit 

application; or 

(B). 150 days of receipt of a 

permit amendment or 

special permit 

amendment. 

EPA SIP-approved section 

116.114(a)(2) on September 18, 

2002 (67 FR 58697) as adopted by 

the TCEQ on June 17, 1998. 

The SIP-approved 116.114(a)(2) 

satisfies 40 CFR 51.166(q)(2)(i) 

because it requires notice of 

preliminary decision within at most 

180 days from receipt of a 

completed application. This is more 

stringent than the EPA requirement 

of 1 year. 

Texas has adopted revisions to 

section 116.114(a)(2), (b)(1), and (c) 

on September 2, 1999, and 

submitted these revisions as SIP 

revisions on October 25, 1999. EPA 

proposed LA/LD of these revisions 

on November 26, 2008 (73 FR 

72001). EPA withdrew our proposed 

LA/LD on November 5, 2010 (75 

FR 68291). Consequently the 

revisions to 116.114(a)(2), (b)(1), 

and (c) remain before us for review. 

Texas adopted revisions to section 

116.114(a)(2)(C) and (c)(2) on June 

2, 2010, and submitted these 

revisions as SIP revisions on July 2, 

2010 (as part of the public 

participation submittal). EPA has 

taken no action to date on these 

revisions to 116.114, therefore they 

remain before us for review. 

The revisions to section 

116.114(a)(2) submitted on October 

25, 1999, and July 1, 2010, are also 

approvable as consistent with 40 

CFR 51.166(q)(2)(i). The time 

frame has not changed from the SIPapproved version; the preliminary 

decision is still made within at most 

§116.114. Application Review 

Schedule. 

(currently adopted State program)

(a) Review schedule. The 

executive director shall review 

permit applications in 

accordance with the following. 

... 

(2) Preliminary decision to 

approve or disapprove the 

application. The executive 

director shall conduct a 
33 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

technical review and send 

written notice to the applicant 

of the preliminary decision to 

approve or not approve the 

application within 180 days 

from receipt of a completed 

permit application or 150 days 

from receipt of a completed 

permit amendment. If the 

applicant has provided Notice 

of Receipt of Application and 

Intent to Obtain Permit public 

notification as required by the 

executive director under 

Chapter 39 of this title (relating 

to Public Notice), one of the 

following shall apply: 

(A). if comments are received 

on the proposed facility 

and replied to by the 

executive director in 

accordance with §39.420 of 

this title (relating to 

Transmittal of the 

Executive Director's 

Response to Comments 

and Decision) and §55.156 

of this title (relating to 

Public Comment 

Processing); and 

(B). if no requests for public 

hearing or public meeting 

on the proposed facility 

have been received or the 

application is otherwise 

exempt under §39.419(e) 

of this title (relating to 

Notice of Application and 

Preliminary Decision), the 

executive director shall 

send a copy of the 

Preliminary Decision to the 

applicant; or 

(C). if Notice of Application 

and Preliminary Decision 

is required under 

§39.419(e) of this title, the 

executive director shall 

authorize this notice and 

send copies to the applicant 

and all other persons are 

required under §39.602 of 

this title (relating to Mailed 

Notice). 

180 days from receipt of a complete 

application. The revisions to 

116.114(a)(2) outline when the 

second notice (NAPD) is required 

under Texas rules. Note that for 

PSD permits a NAPD is required so 

the ED will follow 

116.114(a)(2)(C). 

Because section 116.114 was 

submitted as part of the public 

participation submittal, we will 

include the 1999 and 2010 

submittals in our public participation 

action. 
34 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

(ii) Make available in at 

least one location in each 

region in which the 

proposed source would be 

constructed a copy of all 

materials the applicant 

submitted, a copy of the 

preliminary determination, 

and a copy or summary of 

other materials, if any, 

considered in making the 

preliminary determination. 

Summary of section 39.405(g): 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or proposed 

location. 

 39.405(g)(1) requires the 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

applicant to make available for 

review the air quality analysis for 

applications submitted after the 

effective date of the rule (June 

24, 2010). 

Section 39.411(f): 

The chief clerk shall mail Notice of 

Application and Preliminary 

Decision to those listed in §39.602 of 

this title (relating to Mailed Notice). 

When notice of application and 

preliminary decision by publication 

or by mail is required by Subchapters 

H and K of this chapter for air 

quality permit applications, the text 

of the notice must include the 

information in this subsection: 

1. the information required by 

subsection (e) of this section; 

2. a summary of the executive 

director's preliminary decision 

and whether the executive 

director has prepared a draft 

permit; 

3. the location, at a public place in 

the county with internet access 

in which the facility is located 

or proposed to be located, at 

which a copy of the complete 

application and the executive 

director's draft permit and 

preliminary decision are 

available for review and 

copying; 

Section 39.405 requires that the 

application, subsequent revisions to 

the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 

Section 39.405 satisfies the 

requirements at § 51.166(q)(2)(ii) 

for which materials are made 

available for public comment for 

PSD permits. 

Because PSD permit applications 

are subject to NAPD notice 

requirements, section 39.411(f) also 

satisfies the requirements at 

51.166(q)(2)(ii) by specifying the 

contents for the public notice text. 

Under 39.411(f)(3), each NAPD will 

provide the location of a public 

place in the county where an 

individual can access the TCEQ 

website. From the TCEQ website, 

the individual can then access the 

materials submitted by the applicant, 

a copy of the preliminary 

determination, and all other 

materials considered by the TCEQ 

in the permitting process. 

On February 16, 2010, EPA 

commented that section 39.411(f)(3) 

needed to be revised to address the 

requirements at 51.166(q)(2)(ii). 

TCEQ revised the rule in response 

to this comment to require the 

location of a public facility with 

internet access be included in each 

NAPD notice. 

On February 16, 2010, EPA 

commented that there was a 

typographical error in section 

39.411(e). The TCEQ revised the 

rule in response to this comment. 
35 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

(iii) Notify the public, by 

advertisement in a 

newspaper of general 

circulation in each region in 

which the proposed source 

would be constructed, of 

the application, the 

preliminary determination, 

the degree of increment 

consumption that is 

expected from the source or 

modification, and of the 

opportunity for comment at 

a public hearing as well as 

written public comment. 

Section 39.603. Newspaper Notice. 

(a) NORI under § 39.418 is required 

to be published no later than 30 

days after the ED declares an 

application administratively 

complete. This notice must 

contact text as required in § 

39.411(e). This notice is not 

required by PAL permit 

applications. 

(b) NAPD under § 39.419 is required 

to be published within 33 days 

after the chief clerk has mailed the 

preliminary decision concurrently 

with the NAPD to the applicant. 

This notice must contain text as 

required in § 39.411(f). 

(c) General newspaper notice. 

Unless otherwise specified, when 

this chapter requires published 

notice of an air quality permit 

application, the applicant shall 

publish notice in a newspaper of 

general circulation in the 

municipality in which the facility 

is located or is proposed to be 

located or in the municipality 

nearest to the location or proposed 

location of the facility, as follows: 

(1) One notice must be in the 

public notice section of the 

newspaper and must comply 

with § 39.411(e)-(g). 

(2) [Provides requirements for 

another notice in a prominent 

location in the same 

newspaper issue.] 

Section 39.411. Text of public 

notice. 

(f)The chief clerk shall mail NAPD 

to those listed in 39.602. When 

NAPD is required, the text of the 

notice must include: 

... 

(8) In addition to the requirements 

in paragraphs (1)-(7) of this 

subsection, for air quality permit 

applications filed on or after the 

effective date of this section for 

permits under Chapter 116, 

Subchapter B, Divisions 5 and 6: 

Section 39.603 requires newspaper 

notice in a newspaper of general 

circulation. Section 39.603 satisfies 

the requirements of 40 CFR 

51.166(q)(2)(iii) regarding the type 

of newspaper to use for notice. 

Section 39.411(f)(8) requires the 

NAPD to include the degree of 

increment consumption and that the 

ED will hold a public meeting at the 

request of any interested person. 

Section 55.154 further explains that 

a public meeting is intended for 

taking public comment. These two 

sections satisfy the notice 

requirements for increment 

consumption and the opportunity for 

comment at a public hearing, 

consistent with the requirement of 

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

As previously discussed, section 

39.405(g) generally provides 

notification requirements of the 

application and the opportunity for 

comment consistent with 40 CFR 

51.166(q)(2)(iii). 
36 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

(A) as applicable, the degree 

of increment consumption 

that is expected from the 

source or modification; 

(B) a statement that the 

state’s air quality analysis is 

available for comment; 

(C) the deadline to request a 

public meeting; 

(D) a statement that the ED 

will hold a public meeting at 

the request of any interested 

person; and 

(E) a statement that the ED’s 

draft permit and preliminary 

decision, preliminary 

determination summary, and 

air quality analysis are 

available electronically on the 

commission’s web site at the 

time of publication of the 

NAPD. 

Section 55.154. Public Meetings. 

(a) A public meeting is intended for 

the taking of public comment, and 

is not a contested case under the 

Texas Administrative Procedure 

Act. 

(iv) Send a copy of the 

notice of public comment 

to the applicant, the 

Administrator and to 

officials and agencies 

having cognizance over the 

location where the 

proposed construction 

would occur as follows: 

Any other State or local air 

pollution control agencies, 

the chief executives of the 

city and county where the 

source would be located; 

any comprehensive 

regional land use planning 

agency, and any State, 

Federal Land Manager, or 

Indian Governing body 

whose lands may be 

affected by emissions from 

the source or modification. 

39.605. Notice to Affected 

Agencies. 

In addition to the requirements in § 

39.405(f)(3) of this title: 

(3) When newspaper notices are 

published under this section, the 

applicant shall furnish a copy of 

the notices and affidavit to: 

(A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county in 

which the construction is to 

occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may be 

adversely affected by the 

emissions from the new or 

modified facility; and 

(D).If notice is for an 

application filed on or after 

the effective date of this 

Section 39.605 satisfies the 

requirements for notification to 

other officials consistent with 

51.166(q)(2)(iv). The notification to 

affected officials of the sign posting 

is more stringent than federal 

requirements. 

EPA commented on February 16, 

2010 that the proposed section 

39.605 did not require notification to 

a comprehensive land use planning 

agency, consistent with 40 CFR 

51.166(q)(2)(iv). We stated that 

TCEQ should determine whether 

another state agency could fulfill the 

same role as a comprehensive 

regional land use planning agency, 

and thus be provided notice. In the 

Response to Comments portion of 

the July 2, 2010 SIP submittal, the 

TCEQ explains that there is not a 

comprehensive land use agency in 

Texas, nor is there another agency 

with comparable function. The 
37 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

section for a PSD or NNSR 

permit, 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. 

(4) When sign posting is required 

under this section, the applicant 

shall furnish a copy of sign 

posting verification, within 10 

business days after the end of 

the comment period associated 

with the notice under § 39.418 

to: 

(A). The chief clerk; 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

TCEQ also indicated in the event a 

comprehensive regional land use 

planning agency was created, the 

public participation rules would be 

revised to provide adequate notice, 

consistent with the PSD 

requirements. This response 

addresses our concerns. 

(v) Provide opportunity for 

a public hearing for 

interested persons to appear 

and submit written or oral 

comments on the air quality 

impact of the source, 

alternatives to it, the 

control technology 

required, and other 

appropriate considerations. 

Section 39.411. Text of Public 

Notice. 

 (f)(8)(D) requires the NAPD to 

include a statement that the ED will 

hold a public meeting at the request 

of any interested person. 

(g) When notice of a public meeting 

by publication or by mail is required 

for air quality permit applications 

filed on or after the effective date of 

this section, the text of the notice 

must include: 

(1) The information required by 

(e)(1)-(3), (4)(A), (6), (8), 

(9), and (15); 

(2) The date, time, and place of 

the public meeting, and a 

brief description of the nature 

and purpose of the meeting, 

including the applicable rules 

and procedures; and 

(3) A brief description of the 

public comment procedures, 

including a description of the 

manner in which comments 

regarding the ED’s draft 

permit and preliminary 

decision, and as applicable, 

preliminary determination 

summary, and air quality 

analysis may be submitted 

Sections 39.411(f)(8)(D), (g), and 

55.154 satisfy the requirement at § 

51.166(q)(2)(v) to provide 

opportunity for public hearing for 

interested persons. 

Note in Texas that a public meeting 

is equivalent to the public hearing 

outlined in the PSD program. 
38 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

Section 55.154. Public Meetings. 

(a) A public meeting is intended for 

the taking of public comment, and 

is not a contested case under the 

Texas Administrative Procedure 

Act. 

(c) At any time, the ED or Office of 

Public Assistance may hold 

public meetings. The ED or 

Office of Public Assistance shall 

hold a public meeting if: 

(3) For applications filed on or 

after the effective date of this 

section, for PSD and NNSR 

permits subject to Chapter 

116, Subchapter B, an 

interested person requests a 

public meeting regarding the 

ED’s draft permit or air 

quality analysis; a public 

meeting held in response to a 

request under this paragraph 

will be held after NAPD is 

published; 

(vi) Consider all written 

comments submitted within 

a time specified in the 

notice of public comment 

and all comments received 

at any public hearing(s) in 

making a final decision on 

the approvability of the 

application. The reviewing 

authority shall make all 

comments available for 

public inspection in the 

same locations where the 

reviewing authority made 

available preconstruction 

information relating to the 

proposed source or 

modification. 

Section 39.411. Text of Public 

Notice. 

(f) The chief clerk shall mail NAPD 

to those listed in § 39.602. When 

NAPD is required by Subchapters H 

and K of this chapter, the text of the 

notice must include: 

(3) The location, at a public place 

in the county with internet access 

in which the facility is located or 

proposed to be located, at which a 

copy of the complete application 

and the ED’s draft permit and 

preliminary decision are available 

for review and copying. 

Section 39.419. Notice of 

Application and Preliminary 

Decision. 

(e) For air applications the following 

apply: 

(1) Air quality permit applications 

that are filed on or after the 

effective date of this section are 

subject to this paragraph. ... After 

technical review is complete for 

40 CFR 51.166(q)(2)(vi) has two 

distinct requirements: 1) the 

reviewing authority must consider 

all timely comments in making a 

final decision, and 2) the reviewing 

authority must make the comments 

available for inspection in the same 

locations that preconstruction 

information was provided. 

Section 55.156(b)(1) requires the 

ED to respond to all comments 

received on PSD and PAL permit 

applications filed after June 24, 

2010. This satisfies § 

51.166(q)(2)(vi) to consider and 

respond to comments. 

Section 39.411(f)(3) requires the 

NAPD to provide a public location 

with internet access for the complete 

application, the draft permit, and 

preliminary decision are available 

for review. Section 39.419(e)(1) 

requires that the chief clerk will post 

to the commission’s website the 
39 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

applications subject to the 

requirements of PSD and NNSR 

in Chapter 116, Subchapter B, the 

ED shall file the ED’s draft permit 

and preliminary decision, the 

preliminary determination 

summary and air quality analysis, 

with the chief clerk and the chief 

clerk shall post these on the 

commission’s web site. 

39.420. Transmittal of the 

Executive Director’s Response to 

Comments and Decision. 

(c)When required by and subject to 

§55.156 of this title, for air 

quality permit applications, after 

the close of the comment period, 

the chief clerk shall: 

... 

2) For applications subject to 

the requirements for PSD and 

Nonattainment permits in 

Chapter 116, Subchapter B, 

make available by electronic 

means on the commission’s 

web site the ED’s draft 

permit and preliminary 

decision, the ED’s response 

to public comments, and as 

applicable, preliminary 

determination summary and 

air quality analysis. 

Section 55.156. Public Comment 

Processing. 

(b) If comments are received, the 

following procedures apply to the 

ED. 

(1) Before an application is 

approved, the ED shall 

prepare a response to all 

timely, relevant and material, 

or significant public 

comment, whether or not 

withdrawn, and specify if the 

comment has been 

withdrawn. Before any air 

quality permit application for 

PSD or NNSR permit or for 

applications for PALs, filed 

on or after the effective date 

of this section, is approved, 

the ED shall prepare a 

draft permit, preliminary decision, 

preliminary determination summary, 

and air quality analysis. Section 

39.420(c)(2) requires for PSD and 

NNSR permit applications that the 

chief clerk will make available the 

ED’s draft permit and preliminary 

decision, the ED’s response to 

public comments, and as applicable, 

preliminary determination summary 

and air quality analysis. Section 

55.156(g) requires that the TCEQ 

make available the ED’s decision 

and the RTC for each permit 

application on the TCEQ’s website. 

Because the NAPD must provide a 

public location with internet access, 

the requirement that the RTC and 

other materials be available on the 

commission’s website satisfies the 

51.166(q)(2)(vi) to make the 

materials available in the same 

location. 

It is important to note that the TCEQ 

only makes the RTC available, 

which includes a summary of each 

comment received but not the actual 

comment. The actual comments can 

be obtained by request from the 

TCEQ. 

Even though the Texas regulations 

do not require that the actual 

comment(s) be made available, we 

find that the regulations satisfy the 

intent of 51.166(q)(2)(vi). The 

Texas RTC, which is available 

electronically and includes a 

summary of each comment, is 

sufficient to provide access to each 

comment received, consistent with 

the requirements of 

51.166(q)(2)(vi). Additionally, the 

actual comments can be obtained at 

the TCEQ’s offices. 

Note that EPA commented in our 

February 16, 2010 letter that the 

TCEQ needed to make all comments 

available for public inspection at the 

same location as the preconstruction 

materials. We also provided 
40 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

response to all comments 

received. The response shall 

specify the provisions of the 

draft permit that have been 

changed in response to public 

comment and the reasons for 

the change. 

(c) After the ED files the RTC, the 

chief clerk shall mail the ED’s 

decision, the RTC and 

instructions for requesting the 

commission reconsider the ED’s 

decision or hold a contested case 

hearing. The chief clerk shall 

provide the information required 

by this section to the applicant, 

any person who submitted 

comments during the public 

comment period, any person on a 

mailing list for the permit action, 

any person who filed a timely 

request for contested case hearing. 

(g) Notwithstanding the requirements 

in § 39.420, the commission shall 

make available by electronic 

means on the commission’s 

website the ED’s decision and the 

RTC. 

comments that the Texas rules did 

not clearly provide that the final 

determination would be made 

available at the same location as the 

preconstruction materials. The 

TCEQ revised the rules as a result of 

our comments and responded in the 

RTC portion of the July 2, 2010 SIP 

submittal. The TCEQ revised the 

requirements for NAPD text to 

include the location of a public 

facility with internet access; 

therefore the public will be able to 

access the TCEQ website where the 

permit RTC, final determination and 

all preconstruction materials are 

made available. After further 

consideration of the adopted and 

submitted provisions, we find that 

including a location with public 

internet access in the NAPD is 

sufficient to address our identified 

concerns. The public will be able to 

access the RTC and all other 

relevant materials via the TCEQ 

website. The RTC will provide a 

summary of each comment 

submitted and the public can request 

copies of the actual comments at the 

TCEQ offices. 

(vii) Make a final 

determination whether 

construction should be 

approved, approved with 

conditions, or disapproved. 

116.114. Application Review 

Schedule (current SIP-approved 

section 116.114) 

(a) Review schedule. The executive 

director shall review permit 

applications in accordance with the 

following. 

... 

(2) Decision to approve or 

disapprove the application. 

 The executive director shall 

mail written notice to the 

applicant of his decision to 

approve or not approve the 

application. If the applicant 

has provided public 

notification as required by 

the executive director, and 

no requests for public 

hearing or public meeting 

on the proposed facility 

have been received, the 

executive director shall send 

notice within: 

EPA SIP-approved section 

116.114(a)(2) on March 8, 2010 (75 

FR 10416) effective May 7, 2010, as 

adopted by the TCEQ August 20, 

2003, effective September 14, 2003. 

SIP-approved section 116.114(a)(2) 

satisfies the requirement to make a 

final determination on an air quality 

permit application at 40 CFR 

51.166(q)(2)(vii). 

Texas has adopted revisions to 

section 116.114(a)(2), (b)(1), and (c) 

on September 2, 1999, and 

submitted these revisions as SIP 

revisions on October 25, 1999. EPA 

proposed LA/LD of these revisions 

on November 26, 2008 (73 FR 

72001). EPA withdrew our proposed 

LA/LD on November 5, 2010 (75 

FR 68291). Consequently the 

revisions to 116.114(a)(2), (b)(1), 

and (c) remain before us for review. 
41 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

(A). 180 days of receipt of a 

completed permit 

application; or 

(B). 150 days of receipt of a 

permit amendment or 

special permit 

amendment. 

Texas adopted revisions to section 

116.114(a)(2)(C) and (c)(2) on June 

2, 2010, and submitted these 

revisions as SIP revisions on July 2, 

2010 (as part of the public 

participation submittal). EPA has 

taken no action to date on these 

revisions to 116.114; therefore they 

remain before us for review. 

NOTE: The revisions to section 

116.114(a)(2) submitted on October 

25, 1999, and July 1, 2010, are also 

approvable as consistent with 40 

CFR 51.166(q)(2)(i). The time 

frame has not changed from the SIPapproved version; the preliminary 

decision is still made within at most 

180 days from receipt of a complete 

application. The revisions to 

116.114(a)(2) outline when the 

second notice (NAPD) is required 

under Texas rules. Note that for 

PSD permits a NAPD is required so 

the ED will follow 

116.114(a)(2)(C). 

Because section 116.114 was 

submitted as part of the public 

participation submittal, we will 

include the 1999 and 2010 

submittals in our public participation 

action. 

§116.114. Application Review 

Schedule. 

(currently adopted state program)

(a) Review schedule. The 

executive director shall review 

permit applications in 

accordance with the following. 

... 

(2) Preliminary decision to 

approve or disapprove the 

application. The executive 

director shall conduct a 

technical review and send 

written notice to the applicant 

of the preliminary decision to 

approve or not approve the 

application within 180 days 

from receipt of a completed 

permit application or 150 days 

from receipt of a completed 

permit amendment. If the 

applicant has provided Notice 

of Receipt of Application and 

Intent to Obtain Permit public 

notification as required by the 

executive director under 

Chapter 39 of this title (relating 

to Public Notice), one of the 

following shall apply: 

(A). if comments are received 

on the proposed facility 

and replied to by the 

executive director in 

accordance with §39.420 of 

this title (relating to 

Transmittal of the 

Executive Director's 

Response to Comments 
42 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

and Decision) and §55.156 

of this title (relating to 

Public Comment 

Processing); and 

(B). if no requests for public 

hearing or public meeting 

on the proposed facility 

have been received or the 

application is otherwise 

exempt under §39.419(e) 

of this title (relating to 

Notice of Application and 

Preliminary Decision), the 

executive director shall 

send a copy of the 

Preliminary Decision to the 

applicant; or 

(C). if Notice of Application 

and Preliminary Decision 

is required under 

§39.419(e) of this title, the 

executive director shall 

authorize this notice and 

send copies to the applicant 

and all other persons are 

required under §39.602 of 

this title (relating to Mailed 

Notice). 

(viii) Notify the applicant 

in writing of the final 

determination and make 

such notification available 

for public inspection at the 

same location where the 

reviewing authority made 

available preconstruction 

information and public 

comments relating to the 

source. 

39.420. Transmittal of the 

Executive Director’s Response to 

Comments and Decision. 

(2)When required by and subject to 

§55.156 of this title, for air 

quality permit applications, after 

the close of the comment period, 

the chief clerk shall: 

1)Transmit to the people listed in 

subsection (d) the following 

information: 

i. The ED’s decision; 

ii. The ED’s response to public 

comments; 

iii. Instructions for requesting 

that the commission 

reconsider the ED’s decision; 

and 

iv. Instructions for requesting a 

contested case hearing 

[paraphrased] 

... 

2) For applications subject to 

the requirements for PSD and 

Nonattainment permits in 

40 CFR 51.166(q)(2)(viii) has two 

distinct requirements: 1) the 

reviewing authority must notify the 

applicant in writing of the final 

decision, and 2) the reviewing 

authority must make the final 

determination available for 

inspection in the same locations that 

preconstruction information was 

provided. 

Section 39.420 requires that the 

chief clerk will transmit the ED’s 

final decision to the applicant. 

Section 39.420 satisfies 40 CFR 

51.166(q)(2)(viii) with respect to 

notification of the final 

determination to the applicant. 

 

Section 39.420 also requires the 

chief clerk to notify the persons on 

the mailing list, anyone who 

submitted comments, or anyone who 

requested a timely contested case 

hearing. Additionally, the final 

decision will be posted on the TCEQ 
43 

Table IV.B-3: Analysis of the Texas Public Participation Requirements for PSD Permit Applications with the 

Requirements of 40 CFR 51.166 

Chapter 116, Subchapter B, 

make available by electronic 

means on the commission’s 

web site the ED’s draft 

permit and preliminary 

decision, the ED’s response 

to public comments, and as 

applicable, preliminary 

determination summary and 

air quality analysis. 

(3) The following persons shall 

be sent the information 

listed in subsection (c) of 

this section: 

1)The applicant; 

2)Any person who requested to be 

on the mailing list for the 

permit action; 

3)Any person who submitted 

comments during the public 

comment period; 

4)Any person who timely filed a 

request for a contested case 

hearing; 

5)Office of the Public Interest 

Counsel; and 

6)Office of Public Assistance. 

website. 

Because PSD permit applications 

are subject to the NAPD 

requirements at 39.419, the public 

notice document must identify a 

public location with internet access 

where the application and associated 

materials can be viewed. Because 

the NAPD specifies that the public 

location must have access to the 

internet, it is sufficient for TCEQ to 

post the final determination on the 

TCEQ website. Therefore, sections 

39.419 and 39.420 satisfy the 

requirement at 51.166(q)(2)(viii) 

that the final determination be 

available publicly in the same 

location as the preconstruction 

information. 

On February 16, 2010, EPA 

commented that the Texas public 

participation proposal did not clearly 

provide that the final determination 

would be available in the same 

location as the preconstruction 

materials. The TCEQ revised the 

NAPD text to require the location of 

a public facility with internet access; 

therefore the public can access the 

TCEQ website and obtain the final 

determination along with all the 

preconstruction materials. This 

addition to the NAPD text addresses 

our identified concerns. 

Table IV.B-3 above demonstrates that the Texas public participation requirements specific to 

PSD permit applications for major new sources or major modifications at existing sources satisfy 

the federal requirements found at 40 CFR 51.166. 

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, is 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 
44 

receive notice. It is recommended that EPA publish a proposed approval finding 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 section-by-section analysis provided in Tables IV.B-1, B-2, and B-3 of the federal PSD 

public participation requirements with the corresponding Texas requirements for public 

participation of PSD permit applications has shown that the Texas program satisfies all federal 

requirements for public notice for PSD permits. It is recommended that EPA publish a proposed 

approval of the Texas public participation program for PSD permit applications. 

3. Analysis of Revisions to the Texas PSD Supplement 

On July 17, 1987, the Texas Air Control Board (TACB) (TACB is a predecessor agency to the 

TNRCC, which is now the TCEQ) provided commitments to the EPA regarding implementation 

of the Texas PSD program. These commitments are more commonly referred to as the Texas 

PSD Supplement. A copy of the PSD Supplement is available in the rulemaking docket for this 

action. 

On July 2, 2010, the TCEQ adopted amendments to 30 TAC Chapter 39.411(f)(8)(A) and 

39.605(1)(D), which implement two commitments made in paragraph 7 of the Texas PSD 

Supplement. In the July 2, 2010, submittal the TCEQ officially withdrew the two commitments 

in paragraph 7 from the Texas SIP PSD Supplement and requested that EPA SIP-approve 

39.411(f)(7)(A) and 39.605(1)(D) in their place. The TCEQ’s request to withdraw these two 

commitments from paragraph 7 of the Texas PSD Supplement is in direct response to a comment 

made by EPA on the proposed Public Participation rulemaking on February 16, 2010. Note that 

the submittal letter dated July 2, 2010, included a typographical error requesting that EPA SIPapprove 39.411(f)(7)(A) instead of 39.411(f)(8)(A) as a replacement to the Texas PSD 

Supplement. Because the TCEQ submitted section 39.411(f)(8)(A) for SIP-review and there is 

not a section 39.411(f)(7)(A), we believe the TCEQ’s intent is clear and are proceeding without 

further clarification from the TCEQ on this matter. 

Table IV.B-4 compares the SIP-approved PSD supplement provision, with the newly adopted 

Texas provisions to ensure that withdrawal of the PSD supplement provisions will not result in 

relaxation of the approved Texas SIP. 

Table IV.B-4: Analysis of the Texas PSD Supplement Provisions with the July 2, 2010 Adoption 

Texas PSD Supplement Provisions July 2, 2010 Public Participation 

Provisions 

Analysis 

7. Notification 

The TACB will ensure that 

additional notification procedures 

associated with the PSD permitting 

program in Texas are conducted as 

follows: 

a) the degree of expected increment 

consumption from the source or 

modification will be included in the 

39.411(f)(8)(A): 

f) The chief clerk shall mail Notice 

of Application and Preliminary 

Decision to those listed in § 39.602 

of this title (Mailed Notice). When 

notice of application and preliminary 

decision by publication or mail is 

required by Subchapters H and K of 

this chapter for air quality permit 

Newly adopted provisions at 30 

TAC 39.411(f)(8)(A) require that the 

NAPD second notice publishes the 

degree of increment consumption 

expected from the source. 

The provision at 30 TAC 

39.411(f)(8)(A) is consistent with 

requirements of 40 CFR 
45 

Table IV.B-4: Analysis of the Texas PSD Supplement Provisions with the July 2, 2010 Adoption 

Texas PSD Supplement Provisions July 2, 2010 Public Participation 

Provisions 

Analysis 

public notice, as required under 40 

CFR 51.166(q)(2)(iii). 

applications, the text of the notice 

must include the information in this 

subsection: 

... 

(8) In addition to the requirements in 

paragraphs (1)-(7) of this subsection, 

for air quality permit applications 

filed on or after the effective date of 

this section for permits under 

Chapter 116, Subchapter B, 

Divisions 5 and 6 of this title: 

(A) as applicable, the degree of 

increment consumption that is 

expected from the source or 

modification. 

51.166(q)(2)(iii). Additionally, EPA 

is in agreement that the adoption of 

this language adequately replaces 

the withdrawn component of the 

Texas PSD Supplement. 

b) A copy of the public notice will 

be sent to any comprehensive 

regional land planning agency and to 

any other affected agencies, as 

required under 40 CFR 

51.166(a)(2)(iv). 

§ 39.605(1)(D) 

In addition to the requirements in § 

39.405(f)(3) of this title (relating to 

General Notice Provisions): 

(1) When newspaper notices are 

published under this section, 

the applicant shall furnish a 

copy of the notices and 

affidavit to: 

(D)if notice is for an 

application filed on or after the 

effective date of this section for 

a Prevention of Significant 

Deterioration or Nonattainment 

permit under Chapter 116, 

Subchapter B of this title, 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; 

Newly adopted provisions at 30 

TAC 39.605 satisfy the requirements 

for notification to other officials 

consistent with 51.166(q)(2)(iv). 

EPA commented on February 16, 

2010 that the TCEQ did not include 

a comprehensive land use planning 

agency in the list of agencies that 

will receive a copy of the public 

notice documents. In the RTC for 

the Public Participation rulemaking, 

the TCEQ explained that Texas does 

not have a comprehensive land use 

planning agency nor is there another 

agency that fulfills a similar 

function. Therefore, it is not 

necessary for the Texas Public 

Participation rules to provide notice 

to a non-existent agency. However, 

if in the future a comprehensive land 

use planning agency or equivalent 

agency is created, it will be 

incumbent upon the TCEQ to update 

their public participation rules to 

include said agency. TCEQ’s 

response adequately addressed 

EPA’s concern. 

EPA is in agreement that the 

adoption of 39.605 (1)(D) 

adequately replaces the withdrawn 

component of the Texas PSD 

Supplement. 

The section-by-section analysis in Table IV.B-4 above has verified that the adoption of sections 

39.411(f)(8)(A) and 39.605(1)(D) are consistent with federal PSD public participation 

requirements. Further, these newly adopted provisions adequately replace the withdrawn 
46 

components of the Texas PSD Supplement. It is recommended that upon finalization of this 

proposed rulemaking that EPA amend 40 CFR 52.2270(e) to state that two commitments in 

paragraph 7 of the supplement have been removed and replaced by SIP-approved regulations at 

39.411(f)(8)(A) and 39.605(1)(D). 

4. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified 

in EPA’s Proposed LA/LD? 

Section IV.B of EPA’s November 26, 2008, proposed limited approval/limited disapproval of the 

Texas Public Participation program for air quality permits, identified several deficiencies in the 

Texas public participation rules specific to major sources and modifications subject to PSD 

permitting requirements. Table IV.B-5 below identifies each PSD-specific deficiency and 

whether the current SIP revisions for public participation resolve the deficiency. 

Table IV.B-5: Analysis of the Current Public Participation SIP Submittals with respect to the identified 

deficiencies in the proposed LA/LD 

PSD-Specific Deficiencies Identified in the LA/LD 

73 FR 72001, at 72007-08 

November 26, 2008 

Evaluation of Current Public Participation SIP 

Submittals 

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). 

Table IV.B-3 of this TSD provides details as to how the 

current rules satisfy the requirements in 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) supports this by stating the purpose of 

a public meeting is to take public comment. Section 

55.154(c)(3) specifies that a public meeting will be held 

for PSD permit applications when requested by 

interested persons. Additionally, the NAPD notice for 

the PSD permit includes the statement that a public 

meeting will be held upon request by interested 

individuals. 

The current 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). 

Table IV.B-3 of this TSD provides details as to how the 

current rules satisfy the requirements in 40 CFR 

51.166(q)(2)(iii). 

The NAPD notice provisions at 39.411(f)(8) require the 

notice document to include the expected degree of 

increment consumption. 

The current public participation SIP submittals address 

EPA’s concerns and resolve the identified deficiency. 

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 

Table IV.B-3 of this TSD provides details as to how the 

current rules satisfy the requirements in 40 CFR 

51.166(q)(2)(iv). 

Section 39.605 identifies the list of individuals who will 

receive notice of PSD permit applications. 

The current public participation SIP submittals address 
47 

Table IV.B-5: Analysis of the Current Public Participation SIP Submittals with respect to the identified 

deficiencies in the proposed LA/LD 

PSD-Specific Deficiencies Identified in the LA/LD 

73 FR 72001, at 72007-08 

November 26, 2008 

Evaluation of Current Public Participation SIP 

Submittals 

by 40 CFR 51.166(q)(2)(iv). EPA’s concerns and resolve the identified deficiency. 

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). 

Table IV.B-3 of this TSD provides details as to how the 

current rules satisfy the requirements in 40 CFR 

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

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 require that the TCEQ consider all 

comments received (timely, relevant and material, or 

significant public comment) when making PSD permit 

decisions. Further, the TCEQ rules require that a 

response to comments document be prepared prior to the 

final action on the permit. Both of these requirements 

are more stringent than the federal requirements. 

Interested individuals have access to the response to 

comments document for each permitting action through 

the TCEQ’s website; 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. 

The current public participation SIP submittals address 

EPA’s concerns and resolve the identified deficiency. 

The analysis in Table IV.B-5 above has verified that the current Texas public participation 

program for air quality permits for PSD sources addresses all deficiencies identified in EPA’s 

proposed LA/LD. 

5. Findings for Public Participation 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, it is recommended that 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. 
48 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

C. Evaluation of the Public Participation Process for Major Sources and Modifications 

Subject to NNSR Permitting Requirements

Federal public participation requirements for NNSR permit applications are at 40 CFR 51.160 

and 51.161. 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 5 (NNSR permits). This section will 

determine if the Texas public participation requirements for NNSR permit applications submitted 

for SIP review satisfies the federal requirements.

1. Public Participation Process 

The following steps provide a general overview of the Texas public notice process for a PSD 

permit application. 

1. Applicant submits NNSR 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 publishes the first 

notice, the Notice of Receipt of Application and Intent to Obtain Permit (NORI). 

See 30 TAC 39.418(e). 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 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. 

4. TCEQ completes the technical review and makes a preliminary decision. The 

TCEQ has 180 days from the date the application is administratively complete to 

conduct the technical review and make a preliminary decision. See 30 TAC 

116.114(b). 

5. The applicant publishes the second notice, the Notice of Application and 

Preliminary Decision (NAPD) when notified by TCEQ of the preliminary 

decision. See 30 TAC 39.419(e). 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. 

6. The TCEQ files the ED’s draft permit and preliminary decision, the preliminary 

determination summary and air quality analysis with the chief clerk and the clerk 

posts on the TCEQ’s website. See 30 TAC 39.419. 

7. The comment period runs for 30 days after the last publication of the NAPD. See 

30 TAC 55.152(a)(1). 
49 

8. A public meeting is held if the ED determines there is a substantial or significant 

degree of interest or if the meeting is requested by an interested person or a 

member of the legislature representing the general area of the proposed 

facility/modification. 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 shall file 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 NNSR application. See 30 TAC 116.114(c)(3). While not explicitly 

identified in the rule language, the TCEQ’s one-year clock is based on the 

completion of the technical review and the publication of the NAPD. 

2. Analysis of Requirements in 40 CFR 51 Specific to NNSR Sources 

Tables IV.C-1 and C-2 provides a line-item comparison of the NNSR requirements of §§ 51.160 

and 51.161 and the comparable Texas Public Participation provisions. Where appropriate, the 

“Analysis” column of the following table will identify if EPA submitted substantive comments 

(i.e., not identifying typographical errors) on the public participation requirements specific to 

NNSR permit applications in our February 16, 2010 comment letter, and provide a summation 

and/or analysis of the TCEQ response to the submitted comment. EPA’s February 16, 2010, 

comment letter is included in the rulemaking docket for this action. 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

(a) Each plan must set forth legally 

enforceable procedures that enable 

the State or local agency to 

determine whether the construction 

or modification of a facility, 

building, structure or installation, or 

combination of these will result in – 

(1) A violation of applicable 

portions of the control 

strategy; or 

(2) Interference with 

attainment or maintenance 

of a national standard in the 

State in which the proposed 

source (or modification) is 

located or in a neighboring 

State. 

§116.111. General Application. 

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include: 

(2) information which demonstrates 

that emissions from the facility, 

including any associated dockside 

vessel emissions, meet all of the 

following. 

(A) Protection of public health and 

welfare. 

 (i) The emissions from 

the proposed facility will comply 

with all rules and regulations of the 

commission and with the intent of 

the TCAA, including protection of 

the health and property of the public. 

(H) Nonattainment review. If the 

proposed facility is located in a 

nonattainment area, it shall comply 

EPA most recently SIP-approved the 

General Application provisions for 

the Texas NNSR permit program on 

August 28, 2007, as adopted by the 

TCEQ on August 21, 2002 (see 72 

FR 49198). 

Note 30 TAC 116.111(a) was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with the necessary legally 

enforceable procedures that enable 

the TCEQ to protect the NAAQS. 

Section 116.111(a)(2)(A) requires 

that the application for a permit 

must demonstrate protection of 
50 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

with all applicable requirements in 

this chapter concerning 

nonattainment review. 

public health and welfare. Section 

116.111(a)(2)(A)(i) requires that 

emissions from the proposed facility 

will comply with all rules and 

regulations of the TCEQ and the 

TCAA. Further, section 

116.111(a)(2)(H) requires any 

proposed facility in a nonattainment 

area to comply with all applicable 

requirements in Chapter 116 

concerning nonattainment. These 

provisions satisfy the requirements 

of 51.160(a). 

The applicable requirements for 

NNSR permitting in Chapter 116 are 

at 30 TAC 116.150 and 116.151. 

EPA most recently SIP-approved 

revisions to section 116.150 for 

ozone nonattainment areas on March 

20, 2009, as adopted by the TCEQ 

on August 20, 2003 (see 74 FR 

11851). EPA SIP-approved 

provisions for non-ozone 

nonattainment areas in section 

116.151 on July 17, 2000, as 

adopted by TCEQ on March 18, 

1998 (see 65 FR 43986). 

(b) Such procedures must include 

means by which the State or local 

agency responsible for final decision 

making on an application for 

approval to construct or modify will 

prevent such construction or 

modification if – 

(1) It will result in a violation 

of applicable portions of 

the control strategy; or 

(2) It will interfere with 

attainment or maintenance 

of a national standard 

§116.150. New Major Source or 

Major Modification in Ozone 

Nonattainment Areas.

(a) This section applies to all new 

source review authorizations for new 

construction or modification of 

facilities or emission units that will 

be located in any area designated as

nonattainment for ozone under 42 

United States Code (USC), §§ 7407 

et seq. as of the date of issuance of 

the permit, unless the following 

apply on the date of issuance of the 

permit; 

(1) The United States 

Environmental Protection 

Agency (EPA) has made a 

finding of attainment; 

(2) The EPA has approved the 

removal of nonattainment 

New Source Review (NSR) 

requirements from the area; 

(3) The EPA has determined 

that Prevention of 

Significant Deterioration 

EPA has SIP-approved the NNSR 

Permitting Requirements at 116.150 

and 116.151. EPA most recently 

SIP-approved revisions to section 

116.150 and 116.151 on October 25, 

2012, as submitted by the TCEQ on 

July 25, 2012. See 75 FR 65119. 

Note 30 TAC 116.150 and 116.151 

were not revised or resubmitted with 

the Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with the necessary legally 

enforceable procedures that enable 

the TCEQ to protect the NAAQS. 

As the NNSR permitting authority 

in Texas, the TCEQ has established 

the criteria by which NNSR permits 

will be issued in both ozone 

nonattainment areas and 

nonattainment areas for pollutants 
51 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

requirements apply in the 

area; or 

(4) The EPA determins that 

nonattainment NSR is no 

longer required for purposes 

of antibacksliding. 

(b) The owner or operator of a 

proposed new major stationary 

source , as defined in § 116.12 of this 

title (relating to Nonattainment and 

Prevention of Significant 

Deterioration Review Definitions) of 

volatile organic compound (VOC) 

emissions or nitrogen oxides (NOX) 

emissions, or the owner or operator 

of an existing major stationary 

source of VOC or NOX emissions 

that will undergo a major 

modification , as defined in § 116.12 

of this title with respect to VOC or 

NOX, shall meet the requirements of 

subsection (d)(1) - (4) of this section, 

except as provided in subsection (e) 

of this section. Table I, located in the 

definition of major modification in 

§116.12 of this title, specifies the 

various classifications of 

nonattainment along with the 

associated emission levels that 

designate a major stationary source 

and significant level for those 

classifications. 

(c)Except as noted in subsection (e) 

of this section regarding NOX, the de 

minimis threshold test (netting) is 

required for all modifications to 

existing major sources of VOC or 

NOX, unless at least one of the 

following conditions are met: 

(1) The proposed emissions 

increases associated with a 

project, without regard to 

decreases, is less than five 

tons per year (tpy) of the 

individual nonattainment 

pollutant in areas classified 

under Federal Clean Air Act 

(FCAA), Title I, Part D, 

Subpart 2 (42 USC, 7511) 

classified as Serious or 

Severe; 

other than ozone. These criteria 

include the requirement to use 

LAER, offsets, and demonstrate 

compliance with other facilities 

from the same owner. EPA 

approved these NNSR permitting 

provisions as appropriate to protect 

the NAAQS, consistent with 40 

CFR 51.160(b) and the CAA when 

we SIP-approved the NNSR 

program. These provisions satisfy 

the requirements of 51.160(b). 
52 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

(2) the proposed emissions 

increases associated with a 

project, without regard to 

decreases, is less than 40 

tpy of the individual 

nonattainment pollutant in 

areas classified under 

FCAA, Title I, Part D, 

Subpart 1 (42 USC, §7502) 

and for those under FCAA, 

Title I, Part D, Subpart 2 

(42 USC, §7511) classified 

as Marginal or Moderate; or 

(3) The project emissions 

increases are less than the 

significant level state in 

Table I located in the 

definition of major 

modification in § 116.12 of 

this title and when coupled 

with project actual 

emissions decreases for the 

same pollutant, summed as

the project net, are less than 

or equal to zero tons per 

year. 

(d) In applying the de minimis 

threshold test, if the net emissions 

increases are greater than the 

significant levels stated in Table I 

located in the definition of major 

modification in § 116.12 of this title, 

the following requirements apply. 

(1) The proposed facility or 

emissions unit shall comply 

with the lowest achievable 

emission rate (LAER) as 

defined in §116.12 of this 

title for the nonattainment 

pollutants for which the 

facility or emissions unit is a 

new major source or major 

modification except as 

provided in paragraph (3)(B) 

of this subsection and except 

for existing major stationary 

sources that have a potential 

to emit (PTE) of less than 

100 tpy of the applicable 

nonattainment pollutant. For 

these sources, Best Available 
53 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

Control Technology (BACT) 

can be substituted for LAER. 

LAER shall otherwise be 

applied to each new facility 

or emissions unit and to each 

existing facility or emissions 

unit at which the net 

emissions increase will occur 

as a result of a physical 

change or change in method 

of operation of the unit. 

(2) All major stationary sources 

owned or operated by the 

applicant (or by any person 

controlling, controlled by, or 

under common control with 

the applicant) in the state 

must be in compliance or on 

a schedule for compliance 

with all applicable state and 

federal emission limitations 

and standards. 

(3) At the time the new or 

modified facility or emissions 

unit or facilities or emissions 

units commence operation, 

the emissions increases from 

the new or modified facility 

or emissions unit or facilities 

or emissions units must be 

offset. The proposed facility 

or emissions unit shall use the 

offset ratio for the 

appropriate nonattainment 

classification as defined in 

§116.12 of this title and 

shown in Table I located in 

the definition of major 

modification in §116.12 of 

this title. Internal offsets that 

are generated at the source 

and that otherwise meet all 

creditability criteria can be 

applied as follows. 

A. Major stationary sources 

located in a serious or 

severe ozone 

nonattainment area with 

a PTE of less than 100 

tpy of an applicable 
54 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

nonattainment pollutant 

are not required to 

undergo Nonattainment 

New Source Review 

under this section, if the 

project increases are 

offset with internal 

offsets at a ratio of at 

least 1.3 to 1. 

B. Major stationary sources 

located in a serious or 

severe ozone 

nonattainment area with 

a PTE of greater than or 

equal to 100 tpy of an 

applicable nonattainment 

pollutant can substitute 

federal BACT (as 

identified in § 

116.160(c)(1)(A) of this 

title (relating to 

Prevention of Significant 

Deterioration 

Requirements) for 

LAER, if the project 

increases are offset with 

internal offsets at a ratio 

of at least 1.3 to 1. 

Internal offsets used in 

this manner can also be 

applied to satisfy the 

offset requirement. 

(4) In accordance with the 

FCAA, the permit 

application shall contain an 

analysis of alternative sites, 

sizes, production processes, 

and control techniques for 

the proposed source. The 

analysis must demonstrate 

that the benefits of the 

proposed location and 

source configuration 

significantly outweigh the 

environmental and social 

costs of that location. 

§116.151. New Major Source or 

Major Modification in 

Nonattainment Areas Other Than 
55 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

Ozone. 

(a) This section applies to 

applications for new construction or 

modification of facilities or 

emissions units located in a 

designated nonattainment area for an 

air contaminant other than ozone. 

The owner or operator of a proposed 

new or modified facility or emissions 

unit that will be a new major 

stationary source for that 

nonattainment air contaminant, or the 

owner or operator of an existing 

major stationary source that will 

undergo a major modification with 

respect to that nonattainment air 

contaminant, will meet the additional 

requirements of subsection (c)(1) - 

(4) of this section. Table I located in 

the definition of major modification 

in §116.12 of this title (relating to 

Nonattainment and Prevention of 

Significant Deterioration Review 

Definitions) specifies the various 

classifications of nonattainment 

along with the associated emission 

levels that designate a major 

stationary source. 

(b) The de minimis threshold test 

(netting) is required for all 

modifications to existing major 

sources of federally regulated new 

source review pollutants, unless the 

proposed emissions increases 

associated with a project, without 

regard to decreases, are less than the 

major modification threshold for the 

pollutant identified in Table I located 

in the definition of major 

modification in § 116.12 of this title. 

(c)In applying the de minimis

threshold test, if the net emissions 

increases are greater than the major 

modification levels state in Table I 

located in the definition of major 

modification in § 116.12 of this title, 

the following requirements apply. 

1) The proposed facility or 

emissions unit shall comply 

with the lowest achievable 

emission rate (LAER) as 

defined in §116.12 of this 

title for the nonattainment 
56 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

pollutants for which the 

facility is a new major source 

or major modification. 

 LAER shall be applied to 

each new facility or 

emissions unit and to each 

existing facility or emissions 

unit at which the net 

emissions increase will occur 

as a result of a physical 

change or change in method 

of operation of the unit. 

2) All major stationary sources 

owned or operated by the 

applicant (or by any person 

controlling, controlled by, or 

under common control with 

the applicant) in the state 

shall be in compliance or on a 

schedule for compliance with 

all applicable state and 

federal emission limits and 

standards. 

3) At the time the new or 

modified facility or emissions 

unit or facilities or emissions 

units commence operation, 

the emission increases from 

the new or modified facility 

or emissions unit or facilities 

or emissions units shall be 

offset. The proposed facility 

or emissions unit shall use the 

offset ratio for the 

appropriate nonattainment 

classification as defined in 

§116.12 of this title and 

shown in Table I located in 

the definition of major 

modification in §116.12 of 

this title. 

4) In accordance with the 

Federal Clean Air Act, the 

permit application shall 

contain an analysis of 

alternative sites, sizes, 

production processes, and 

control techniques for the 

proposed source. The 

analysis shall demonstrate 

that the benefits of the 

proposed location and source 

configuration significantly 
57 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

outweigh the environmental 

and social costs of that 

location. 

(b) The procedures must 

provide for the submission, by the 

owner or operator of the building, 

facility, structure, or installation to 

be constructed or modified, of such 

information on – 

(1) The nature and amounts of 

emissions to be emitted by 

it or emitted by associated 

mobile sources; 

(2) The location, design, 

construction, and operation 

of such facility, building, 

structure, or installation as 

may be necessary to permit 

the State or local agency to 

make the determination 

referred to in paragraph (a) 

of this section. 

39.411. Text of Public Notice. 

(e) When NORI by publication or 

mail is required by Subchapter H and 

K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection. 

(1) the name and address of the 

agency and the telephone number of 

an agency contact from whom 

interested persons may obtain further 

information; 

(2) the name, address, and telephone 

number of the applicant and a 

description of the manner in which a 

person may contact the applicant for 

further information; 

(3) a brief description of the location 

and nature of the proposed activity; 

(4) a brief description of public 

comment procedures 

... 

(f) When NAPD by publication or 

mail is required by Subchapters H 

and K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection: 

(1) the information required by 

subsection (e) of this section 

[information in the NORI notice]; 

(2) a summary of the ED’s 

preliminary decision and whether the 

ED has prepared a draft permit; 

... 

(8) in addition to the requirements in 

paragraphs (1) – (7) of this 

subsection, for air quality permit 

applications filed on or after the 

effective date of this section for 

permits under Chapter 116, 

Subchapter B, Divisions 5 and 6: 

(A) as applicable, the degree of 

increment consumption 

(B) a statement that the state’s air 

quality analysis is available for 

comment 

... 

NNSR permit applications are 

subject to both first (NORI) and 

second (NAPD) notice. The text of 

the NORI will provide the general 

information about the proposed 

source or modification. The text of 

the NAPD, along with the 

preliminary decision and draft 

permit, will provide the more 

detailed information used by the 

TCEQ in making the permit 

decision. The excerpts from 30 TAC 

39.411(e) and (f) demonstrate the 

factual information that must be part 

of a notice. 

Additionally, as the NNSR 

permitting authority in Texas, the 

TCEQ has the authority to request 

the information necessary to 

properly review a permit application 

and make a decision on said 

application. The TCEQ must make a 

finding of administrative 

completeness within 90 days of 

receiving the application; the final 

decision on any application must be 

made within one year of the 

completion of the technical review 

(i.e, the publication of the NAPD). 

Section 39.411 satisfies the 

requirements of 51.160(c). 

(c) The procedures must 

provide that approval of any 

§116.115. General and Special 

Conditions. 

EPA most recently SIP-approved the 

general and special conditions for 
58 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

construction or modification must 

not affect the responsibility to the 

owner or operator to comply with 

applicable portions of the control 

strategy. 

(b) General conditions. Holders of 

permits, special permits, standard 

permits, and special exemptions shall 

comply with the following: 

(2) the following general conditions 

if the permit or amendment is issued 

or amended on or after August 16, 

1994, regardless of whether they are 

specifically stated within the permit 

document. 

(H) Compliance with rules. 

(i) Acceptance of a permit by an 

applicant constitutes an 

acknowledgment and agreement that 

the permit holder will comply with 

all rules, regulations, and orders of 

the commission issued in conformity 

with the TCAA and the conditions 

precedent to the granting of the 

permit. 

(ii) If more than one state or federal 

rule or regulation or permit condition 

are applicable, the most stringent 

limit or condition shall govern and 

be the standard by which compliance 

shall be demonstrated. 

(iii) Acceptance includes consent to 

the entrance of commission 

employees and agents into the 

permitted premises at reasonable 

times to investigate conditions 

relating to the emission or 

concentration of air contaminants, 

including compliance with the 

permit. 

Chapter 116 permitting on April 2, 

2010, as adopted by the TCEQ on 

August 20, 2003 (see 75 FR 16671). 

Note that 30 TAC 116.115 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with the necessary legally 

procedures providing that approval 

of any construction or modification 

does not affect the owner/operator’s 

responsibility to comply with 

applicable portions of the control 

strategy as required by 51.160(d). 

(d) The procedures must 

identify types and sizes of facilities, 

buildings, structures, or installations 

which will be subject to review 

under this section. The plan must 

discuss the basis for determining 

which facilities will be subject to 

review. 

See above for the text of 116.150 

and 116.151. 

EPA has SIP-approved the NNSR 

Permitting Requirements at 116.150 

and 116.151. EPA most recently 

SIP-approved revisions to section 

116.150 and 116.151 on October 25, 

2012, as submitted by the TCEQ on 

July 25, 2012. See 75 FR 65119. 

Note 30 TAC 116.150 and 116.151 

were not revised or resubmitted with 

the Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with such that the Texas 

SIP identifies the facilities subject to 

NNSR review. 
59 

Table IV.C-1: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas NNSR Permitting Provisions Analysis 

Sections 116.150 and 116.151 

provide that major stationary 

sources or modifications are subject 

to NNSR permitting – consistent 

with 40 CFR 51.160(e). 

(f)The procedures must discuss the 

air quality data and the dispersion or 

other air quality modeling used to 

meet the requirements of this 

subpart. 

(1) All applications of air quality 

modeling involved in this subpart 

shall be based on the applicable 

models, data bases, and other 

requirements specified in appendix 

W of this part (Guideline on Air 

Quality Models). 

(2) Where an air quality model 

specified in appendix W of this part 

is inappropriate, the model may be 

modified or another model 

substituted. Such a modification or 

substitution of a model may be made 

on a case-by-case basis or, where 

appropriate, on a generic basis for a 

specific State program. Written 

approval of the Administrator must 

be obtained for any modification or 

substitution. In addition, use of a 

modified or substituted model must 

be subject to notice and opportunity 

for public comment under 

procedures set forth in § 51.102. 

§116.111. General Application. 

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include: 

(2) information which demonstrates 

that emissions from the facility, 

including any associated dockside 

vessel emissions, meet all of the 

following. 

... 

(J) Air dispersion modeling. 

Computerized air dispersion 

modeling may be required by the 

executive director to determine air 

quality impacts from a proposed new 

facility or source modification. 

EPA most recently SIP-approved the 

General Application provisions for 

the Texas NNSR permit program on 

August 28, 2007, as adopted by the 

TCEQ on August 21, 2002 (see 72 

FR 49198). 

Note 30 TAC 116.111(a) was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with the ability to require 

air dispersion modeling as 

applicable under 51.160(f). 

Note that air dispersion modeling is 

typically not required of NNSR 

permits; but, in the situations where 

it would be necessary, the TCEQ 

has the authority to require 

dispersion modeling. The PSD 

program where air dispersion 

modeling is a requirement of the 

application, is SIP-approved to 

require modeling consistent with 40 

CFR Part 51, Appendix W. 

Table IV.C-1 above demonstrates that the public participation requirements specific to NNSR 

permit applications for major new sources or major modifications at existing sources satisfy the 

federal requirements found at 40 CFR 51.160. 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(a) The legally enforceable 

procedures in §51.160 must also 

require the State or local agency to 

provide opportunity for public 

comment on information submitted 

by owners and operators. The public 

39.405. General Notice Provisions. 

(g) Copy of application. The 

applicant shall make a copy of the 

application available for review and 

copying at a public place in the 

county in which the facility is 

Section 39.405 requires that the 

application, subsequent revisions to 

the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 
60 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

information must include the 

agency's analysis of the effect of 

construction or modification on 

ambient air quality, including the 

agency's proposed approval or 

disapproval. 

located or proposed to be located. 

... 

The copy of the application must 

comply with the following. 

(1) A copy of the 

administratively complete 

application must be 

available for review and 

copying beginning on the 

first day of newspaper 

publication of NORI and 

remain available for the 

publications’ designated 

comment period. 

(2) A copy of the complete 

application (including any 

subsequent revisions to the 

application) and ED’s 

preliminary decision must 

be available for review and 

copying beginning on the 

first day of newspaper 

publication required by this 

section and remain available 

until the commission has 

taken action on the 

application or the 

commission refers issues to 

SOAH. 

(3) Where applicable, for air 

quality permit applications 

filed on or after the 

effective date of this 

section( June 24, 2010) the 

applicant shall also make 

available the ED’s draft 

permit, preliminary 

determination summary and 

air quality analysis for 

review and copying 

beginning on the first day of 

newspaper publication 

required by 39.419 for 

NAPD and remain available 

until the commission has 

taken action on the 

application or referred to 

SOAH 

§ 55.152. Public Comment Period 

(a) Public Comments must be filed 

Section 55.152 provides at least a 30 

day comment period after the last 

publication of the NAPD. Further, 

because NNSR permits are subject 

to NORI and NAPD notice 

requirements, the public is afforded 

the opportunity to comment on the 

application and related materials 

twice in the permitting process, 

which is more stringent than the 

federal NNSR requirements. 

Section 39.405 satisfies the 

requirements at § 51.161(a) for 

which materials are made available 

for public comment for NNSR 

permits. 

Section 55.152 ensures that the 

public is provided the opportunity to 

comment consistent with § 

51.161(a). 
61 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(b) For purposes of paragraph (a) of 

this section, opportunity for public 

comment shall include, as a 

minimum— 

(1) Availability for public 

inspection in at least one 

location in the area affected 

of the information 

submitted by the owner or 

operator and of the State or 

local agency's analysis of 

the effect on air quality; 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or proposed 

location. 

 39.405(g)(1) requires the 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

applicant to make available for 

review the air quality analysis for 

applications submitted after the 

effective date of the rule, June 24, 

2010. 

39.411. Text of Public Notice. 

(f) The chief clerk shall mail NAPD 

to those listed in § 39.602. When 

NAPD is required by Subchapters H 

and K of this chapter, the text of the 

notice must include: 

... 

(8)in addition to the requirements in 

paragraphs (1)-(7) of this subsection, 

for air quality permit applications 

filed on or after the effective date of 

this section for permits under 

Chapter 116, Subchapter B, 

Divisions 5 and 6 (PSD and NNSR): 

... 

Section 39.405 satisfies the 

requirements at § 51.161(b)(1) for 

public inspection in at least one 

location in the affected area of the 

information submitted by the 

owner/operator and the air quality 

analysis for the NNSR permit 

application. 

Section 39.411(f)(8)(B) requires that 

the NAPD provide notification to 

the public that the air quality 

analysis is available for comment, 

consistent with § 51.161(b)(1). 
62 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(B) a statement that the state’s air 

quality analysis is available for 

comment. 

(2) A 30-day period for 

submittal of public 

comment; and 

39.409. Deadline for Public 

Comment, and for Requests for 

Reconsideration, Contested Case 

Hearing, or Notice and Comment 

Hearing. 

Notice given under this chapter will 

specify any applicable deadline to 

file public comment specified under 

§ 55.152 of this title and, if 

applicable, any deadlines to file 

requests for reconsideration, 

contested case hearing, or notice and 

comment hearing. After the 

deadline, final action on an 

application may be taken under 

Chapter 50. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

NNSR permits are subject to both 

NORI “first” notice and NAPD 

“second” notice. The NORI gives a 

30 day notice on the application. 

After the TCEQ completes the 

technical analysis, the draft decision 

along with the air quality analysis 

and other technical documents are 

available for another 30 day notice 

period. 

Section 55.152 generally provides 

that the close of the public comment 

period is 30 days after the last 

publication of the NAPD. 

Section 55.152 satisfies the 

requirements of § 51.161(b)(2). 

(3) A notice by prominent 

advertisement in the area 

affected of the location of 

the source information and 

analysis specified in 

paragraph (b)(1) of this 

section. 

39.419(e)(1) NAPD follows 

requirements of Chapter 39, 

Subchapter K. 

Subchapter K 

39.603. Newspaper Notice. 

(b) NAPD under §39.419 is required 

to be published within 33 days after 

the chief clerk has mailed the 

preliminary decision concurrently 

with the NAPD to the applicant. 

This notice must contain the text 

required at § 39.411(f). 

(c) General newspaper notice. Unless 

otherwise specified, when this 

NNSR permits are subject to both 

NORI and NAPD. Therefore, we 

use the requirements at 39.418, 

39.419 and 39.603(b). 

Subchapter K provides requirements 

for Mailed Notice, Newspaper 

publication, and sign posting. 

Newspaper notice is the traditional 

vehicle used by EPA to prominently 

advertise a proposed source. Section 

39.603(c) requires publication in a 

newspaper of general circulation in 

the municipality in which the 

facility is located or proposed to be 
63 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

chapter requires published notice of 

an air quality permit application, the 

applicant shall publish notice in a 

newspaper of general circulation in 

the municipality in which the facility 

is located or is proposed to be 

located or in the municipality nearest 

to the location or proposed location 

of the facility. 

39.604. Sign Posting. 

(a) At the applicant’s expense, a sign 

or signs must be placed at the site of 

the existing or proposed facility 

declaring the filing of an application 

for a permit and stating the manner 

in which the commission may be 

contacted for further information. 

located, or in the municipality 

nearest the location or proposed 

location. Section 39.603(c) further 

requires that within the newspaper, 

the applicant must provide 2 

separate notifications with the 

required material. Section 39.603 

satisfies the prominent 

advertisement requirements of 

51.161. 

Historically, EPA has not 

considered or used sign posting as 

prominent advertisement. Therefore 

any Texas provisions requiring sign 

postage are more stringent than 

federal requirements for prominent 

advertisement. 

TCEQ originally adopted sign 

posting requirements at 30 TAC 

116.133 on August 16, 1993. EPA 

SIP-approved these provisions on 

September 18, 2002 (see 67 FR 

58697) as strengthening the SIP 

because federal notice provisions 

neither require nor prohibit sign 

posting. Subsequently, TCEQ 

adopted alternate language sign 

posting provisions at 30 TAC 

116.133, effective July 8, 1998. 

EPA SIP approved these alternate 

language sign posting provisions on 

March 10, 2006 (see 71 FR 12285) 

as strengthening the SIP. The sign 

posting provisions at 39.604 are not 

substantively different from the SIPapproved sign posting provisions at 

116.133. 

(c) Where the 30-day comment 

period required in paragraph (b) of 

this section would conflict with 

existing requirements for acting on 

requests for permission to construct 

or modify, the State may submit for 

approval a comment period which is 

consistent with such existing 

requirements. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

Section 39.419(e) requires NAPD 

for all air quality permit applications 

– except for renewals. Therefore, 

NNSR permits require NAPD notice 

and the comment period will end 30 

days after the last publication of the 

NAPD. 
64 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

application not otherwise 

specified in this section. 

(5) the time specified in 

commission rules for other 

specific types of 

applications; or 

(6) as extended by the ED 

for good cause. 

(d) A copy of the notice required by 

paragraph (b) of this section must 

also be sent to the Administrator 

through the appropriate Regional 

Office, and to all other State and 

local air pollution control agencies 

having jurisdiction in the region in 

which such new or modified 

installation will be located. The 

notice also must be sent to any other 

agency in the region having 

responsibility for implementing the 

procedures required under this 

subpart. For lead, a copy of the 

notice is required for all point 

sources. The definition of point for 

lead is given in §51.100(k)(2). 

39.605. Notice to Affected 

Agencies. 

In addition to the requirements in § 

39.405(f)(3) of this title: 

(5) When newspaper notices are 

published under this section, the 

applicant shall furnish a copy of 

the notices and affidavit to: 

(A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county in 

which the construction is to 

occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may be 

adversely affected by the 

emissions from the new or 

modified facility; and 

(D).If notice is for an 

application filed on or after 

the effective date of this 

section for a PSD or NNSR 

permit, 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. 

(6) When sign posting is required 

under this section, the applicant 

shall furnish a copy of sign 

posting verification, within 10 

business days after the end of 

the comment period associated 

with the notice under § 39.418 

to: 

(A). The chief clerk; 

For air quality permits, Section 

39.605 requires that copies of 

newspaper notices and sign posting 

verification be sent to the R6 RA, 

state and location air pollution 

control agencies, and Federal or 

State Land Managers or Indian 

Governing Body. 

NNSR permit applications for a new 

major source or major modification 

are subject to the notice 

requirements of Section 39.605. 

Therefore, when a NNSR permit 

applicant will emit lead above the 

significant levels (0.6 tpy as 

established at 40 CFR 

51.165(a)(1)(x)(A)) this information 

will also be provided to the affected 

agencies as specified in 39.605, 

consistent with the requirements of 

51.161(d). 
65 

Table IV.C-2: Analysis of the Texas Public Participation Requirements for NNSR Permit Applications with 

the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

Table IV.C-2 above demonstrates that the public participation requirements specific to NNSR 

permit applications for major new sources or major modifications at existing sources satisfy the 

federal requirements found at 40 CFR 51.161. 

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, is the legally responsible party for satisfying the public notice requirements 

for NNSR 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. It is recommended that EPA publish a proposed approval finding 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 section-by-section analysis provided in Tables IV.C-1 and C-2 of the federal NNSR public 

participation requirements with the corresponding Texas requirements for public participation of 

NNSR permit applications has shown that the Texas program satisfies all federal requirements 

for public notice for NNSR permits. It is recommended that EPA publish a proposed approval of 

the Texas public participation program for NNSR permit applications. 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified 

in EPA’s Proposed LA/LD? 

EPA’s November 26, 2008, proposed limited approval/limited disapproval of the Texas Public 

Participation program for air quality permits did not identify any concerns specific to major 

sources or modifications subject to NNSR permitting requirements. 

4. Findings for Public Participation Process for NNSR Permit Applications 

EPA finds that the public notice process described above for NNSR permit applications satisfies 

the federal requirements for public notice found at 40 CFR 51.160, 51.161. Also, EPA did not 

identify any NNSR-specific deficiencies in our November 26, 2008 proposed limited 

approval/limited disapproval. Therefore, it is recommended to 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. 

 
66 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

D. Evaluation of the Public Participation Process of PAL Permit Applications 

Federal public participation requirements for PALs are established at 40 CFR 51.165(f)(5) and 

51.166(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 and at least a 

30-day period for submittal of public comment. The reviewing authority must address all 

material comments before taking final action on the permit.

Where are the Texas Provisions for PALs? 

30 TAC 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. 

1. Public Participation Process 

The following steps provide a general overview of the Texas public notice process for the 

establishment or renewal of, or an increase in PAL Permit Applications 

1. Applicant submits PAL 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. TCEQ completes the technical review and makes a preliminary decision. The 

TCEQ has 180 days from the date the application is administratively complete to 

conduct the technical review and make a preliminary decision. See 30 TAC 

116.114(b). 

4. The applicant publishes 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. 

5. The TCEQ files the ED’s draft permit and preliminary decision, the preliminary 

determination summary and air quality analysis with the chief clerk and the clerk 

posts on the TCEQ’s website. See 30 TAC 39.419. 

6. The comment period runs for 30 days after the last publication of the NAPD. See 

30 TAC 55.152(a)(1). 

7. A public meeting is held if the ED determines there is a substantial or significant 

degree of interest or if the meeting is requested by an interested person or a 

member of the legislature representing the general area of the proposed 

facility/modification. See 30 TAC 55.154(c). 

8. The ED prepares a response to all comments received. See 30 TAC 55.156(b)(1). 
67 

9. The ED shall file 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). 

10. 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). 

11. The ED will take final action on the permit application within one year of a 

complete PAL application. See 30 TAC 116.114(c)(3). While not explicitly 

identified in the rule language, the TCEQ’s one-year clock is based on the 

completion of the technical review and the publication of the NAPD. 

2. Analysis of Requirements in 40 CFR 51 Specific to PALs 

The analysis below in Tables IV.D-1, D-2, and D-3, is a line-item comparison of the PAL 

requirements of §§ 51.160, 51.161, 51.165 and 51.166 and the comparable Texas Public 

Participation provisions. Note that this analysis only reviews the public participation procedures 

used by an applicant applying for a PAL permit and does not evaluate the substantive Texas PAL 

permit requirements with respect to federal requirements. EPA has separately evaluated and 

proposed approval of the Texas PAL permit provisions in a separate action. See 77 FR 36964, 

June 20, 2012. The following analysis demonstrates that how the Texas Public Participation 

Requirements apply to PAL permit applications. This TSD includes action on 30 TAC 116.194, 

which is the provision in the PAL permit requirements that specifies that the public participation 

for PAL permit applications will be conducted using Chapter 39 procedures. EPA did not act on 

116.194 in our proposed action on NSR Reform, which addressed the substantive PAL 

requirements; believing it would be more appropriate to include with our review and analysis of 

the Chapter 39 public participation requirements. 

Table IV.D-1: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permitting Provisions Analysis 

(a) Each plan must set forth legally 

enforceable procedures that enable 

the State or local agency to 

determine whether the construction 

or modification of a facility, 

building, structure or installation, or 

combination of these will result in – 

(1) A violation of applicable 

portions of the control 

strategy; or 

(2) Interference with 

attainment or maintenance 

of a national standard in the 

State in which the proposed 

source (or modification) is 

located or in a neighboring 

State. 

§116.111. General Application. 

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include: 

(2) information which demonstrates 

that emissions from the facility, 

including any associated dockside 

vessel emissions, meet all of the 

following. 

(A) Protection of public health and 

welfare. 

 (i) The emissions from 

the proposed facility will comply 

with all rules and regulations of the 

commission and with the intent of 

the TCAA, including protection of 

the health and property of the public. 

EPA most recently SIP-approved the 

General Application provisions for 

the Texas PSD and NNSR permit 

program on August 28, 2007, as 

adopted by the TCEQ on August 21, 

2002 (see 72 FR 49198). 

Note 30 TAC 116.111(a) was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with the necessary legally 

enforceable procedures that enable 

the TCEQ to protect the NAAQS. 

Section 116.111(a)(2)(A) requires 

that the application for a permit must 
68 

Table IV.D-1: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permitting Provisions Analysis 

demonstrate protection of public 

health and welfare. And, 

116.111(a)(2)(A)(i) requires that 

emissions from the proposed facility 

will comply with all rules and 

regulations of the TCEQ and the 

TCAA. 

These provisions satisfy the 

requirements of 51.160(a). 

(b) Such procedures must include 

means by which the State or local 

agency responsible for final decision 

making on an application for 

approval to construct or modify will 

prevent such construction or 

modification if – 

(1) It will result in a violation 

of applicable portions of 

the control strategy; or 

(2) It will interfere with 

attainment or maintenance 

of a national standard 

See the provisions of 116.161 in 

Table IV.B-2 for PSD permit 

requirements. 

See the provisions of 116.150 and 

116.151 in Table IV.B-4 for NNSR 

permit requirements. 

40 CFR 51.165(f) and 51.166(w) 

state that PALs can only be used at 

existing major stationary sources. 

Therefore, we can rely on the SIPapproved permit requirements for 

the Texas PSD and NNSR programs 

as described in Tables IV.B-2 and 

IV.B-4 to demonstrate that the PAL 

provisions (if adopted by the TCEQ 

consistent with federal 

requirements) satisfies 51.160(b). 

Note that the TCEQ has adopted a 

provision at 30 TAC 116.180(a)(5) 

which limits PAL permits to 

existing major stationary sources. 

This provision was adopted on 

February 9, 2011, and submitted to 

EPA on March 11, 2011. EPA 

finalized our approval of these PAL 

provisions on October 25, 2012. See 

77 FR 65119. 

(c) The procedures must provide for 

the submission, by the owner or 

operator of the building, facility, 

structure, or installation to be 

constructed or modified, of such 

information on – 

(1) The nature and amounts of 

emissions to be emitted by 

it or emitted by associated 

mobile sources; 

(2) The location, design, 

construction, and operation 

of such facility, building, 

structure, or installation as 

may be necessary to permit 

the State or local agency to 

make the determination 

referred to in paragraph (a) 

of this section. 

39.411. Text of Public Notice. 

(e) When NORI by publication or 

mail is required by Subchapter H and 

K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection. 

(1) the name and address of the 

agency and the telephone number of 

an agency contact from whom 

interested persons may obtain further 

information; 

(2) the name, address, and telephone 

number of the applicant and a 

description of the manner in which a 

person may contact the applicant for 

further information; 

(3) a brief description of the location 

and nature of the proposed activity; 

(4) a brief description of public 

comment procedures 

Per section 39.603(a), the 

requirements of NORI publication at 

39.418 do not apply to PALs (see 35 

TexReg 5205 for an explanation). 

PALs are not subject to the TCEQ 

“first notice” but are subject to the 

requirements of the NAPD, or the 

“second notice”. 

The requirements for NAPD 

publication at 39.411(f) satisfy 

51.160(c). 

Additionally, as the permitting 

authority in Texas, the TCEQ has 

the authority to request the 

information necessary to properly 

review a permit application and 

make a decision on said application. 

The TCEQ must make a finding of 

administrative completeness within 
69 

Table IV.D-1: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permitting Provisions Analysis 

... 

(f) When NAPD by publication or 

mail is required by Subchapters H 

and K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection: 

(1) the information required by 

subsection (e) of this section 

[information in the NORI notice]; 

(2) a summary of the ED’s 

preliminary decision and whether the 

ED has prepared a draft permit; 

90 days of receiving the application; 

the final decision on any application 

must be made within one year of the 

completion of the technical review 

(i.e, the publication of the NAPD). 

(d)The procedures must provide that 

approval of any construction or 

modification must not affect the 

responsibility to the owner or 

operator to comply with applicable 

portions of the control strategy. 

§116.115. General and Special 

Conditions. 

(b) General conditions. Holders of 

permits, special permits, standard 

permits, and special exemptions shall 

comply with the following: 

(2) the following general conditions 

if the permit or amendment is issued 

or amended on or after August 16, 

1994, regardless of whether they are 

specifically stated within the permit 

document. 

(H) Compliance with rules. 

(i) Acceptance of a permit by an 

applicant constitutes an 

acknowledgment and agreement that 

the permit holder will comply with 

all rules, regulations, and orders of 

the commission issued in conformity 

with the TCAA and the conditions 

precedent to the granting of the 

permit. 

(ii) If more than one state or federal 

rule or regulation or permit condition 

are applicable, the most stringent 

limit or condition shall govern and 

be the standard by which compliance 

shall be demonstrated. 

(iii) Acceptance includes consent to 

the entrance of commission 

employees and agents into the 

permitted premises at reasonable 

times to investigate conditions 

relating to the emission or 

concentration of air contaminants, 

including compliance with the 

permit. 

EPA most recently SIP-approved the 

general and special conditions for 

Chapter 116 permitting on April 2, 

2010, as adopted by the TCEQ on 

August 20, 2003 (see 75 FR 16671). 

Note that 30 TAC 116.115 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas PSD/NNSR program is SIPapproved with the necessary legally 

procedures providing that approval 

of any construction or modification 

does not affect the owner/operators 

responsibility to comply with 

applicable portions of the control 

strategy as required by 51.160(d). 

(e) The procedures must identify 

types and sizes of facilities, 

buildings, structures, or installations 

See the text provided in Table IV.B2 for PSD permit requirements at 

116.160. 

40 CFR 51.165(f) and 51.166(w) 

state that PALs can only be used at 

existing major stationary sources. 
70 

Table IV.D-1: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permitting Provisions Analysis 

which will be subject to review 

under this section. The plan must 

discuss the basis for determining 

which facilities will be subject to 

review. 

See the text provided in Table IV.B4 for NNSR permit requirements at 

116.150 and 116.151. 

Therefore, we can rely on the SIPapproved permit requirements for 

the Texas PSD and NNSR programs 

as described in Tables IV.B-2 and 

IV.B-4 to demonstrate that the PAL 

provisions proposed for approval on 

June 20, 2012 should satisfy 

51.160(e). 

(f)The procedures must discuss the 

air quality data and the dispersion or 

other air quality modeling used to 

meet the requirements of this 

subpart. 

(1) All applications of air quality 

modeling involved in this subpart 

shall be based on the applicable 

models, data bases, and other 

requirements specified in appendix 

W of this part (Guideline on Air 

Quality Models). 

(2) Where an air quality model 

specified in appendix W of this part 

is inappropriate, the model may be 

modified or another model 

substituted. Such a modification or 

substitution of a model may be made 

on a case-by-case basis or, where 

appropriate, on a generic basis for a 

specific State program. Written 

approval of the Administrator must 

be obtained for any modification or 

substitution. In addition, use of a 

modified or substituted model must 

be subject to notice and opportunity 

for public comment under 

procedures set forth in § 51.102. 

§116.111. General Application. 

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include: 

(2) information which demonstrates 

that emissions from the facility, 

including any associated dockside 

vessel emissions, meet all of the 

following. 

... 

(J) Air dispersion modeling. 

Computerized air dispersion 

modeling may be required by the 

executive director to determine air 

quality impacts from a proposed new 

facility or source modification. 

40 CFR 51.165(f) and 51.166(w) 

state that PALs can only be used at 

existing major stationary sources. 

Therefore, we can rely on the SIPapproved permit requirements for 

the Texas PSD and NNSR programs 

as described in Tables IV.B-2 and 

IV.B-4 to demonstrate that the PAL 

provisions proposed for approval on 

June 20, 2012, should satisfy 

51.160(f). EPA most recently SIPapproved the General Application 

provisions for the Texas PSD and 

NNSR permit program on August 

28, 2007, as adopted by the TCEQ 

on August 21, 2002 (see 72 FR 

49198). 

Note 30 TAC 116.111(a) was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NNSR program is SIPapproved with the ability to require 

air dispersion modeling as 

applicable. 

Note that air dispersion modeling is 

typically not required of NNSR 

permits. But, in the situations where 

it would be the TCEQ has the 

authority to require dispersion 

modeling. The PSD program where 

air dispersion modeling is a 

requirement of the application, is 

SIP-approved to require modeling 

consistent with 40 CFR Part 51, 

Appendix W. 

Table IV.D-1 above demonstrates that the public participation requirements specific to PAL 

permit applications for major new sources or major modifications at existing sources satisfy the 

federal requirements found at 40 CFR 51.160. 
71 

Table IV.D-2: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Comments 

(a) The legally enforceable 

procedures in §51.160 must also 

require the State or local agency to 

provide opportunity for public 

comment on information submitted 

by owners and operators. The public 

information must include the 

agency's analysis of the effect of 

construction or modification on 

ambient air quality, including the 

agency's proposed approval or 

disapproval. 

39.405. General Notice Provisions. 

(g) Copy of application. The 

applicant shall make a copy of the 

application available for review and 

copying at a public place in the 

county in which the facility is 

located or proposed to be located. ... 

The copy of the application must 

comply with the following. 

(1) A copy of the 

administratively complete 

application must be 

available for review and 

copying beginning on the 

first day of newspaper 

publication of NORI and 

remain available for the 

publications’ designated 

comment period. 

(2) A copy of the complete 

application (including any 

subsequent revisions to the 

application) and ED’s 

preliminary decision must 

be available for review and 

copying beginning on the 

first day of newspaper 

publication required by this 

section and remain available 

until the commission has 

taken action on the 

application or the 

commission refers issues to 

SOAH. 

(3) Where applicable, for air 

quality permit applications 

filed on or after the 

effective date of this section 

[June 24, 2010] the 

applicant shall also make 

available the ED’s draft 

permit, preliminary 

determination summary and 

air quality analysis for 

review and copying 

beginning on the first day of 

newspaper publication 

required by 39.419 for 

NAPD and remain available 

until the commission has 

Section 39.405 requires that the 

application, subsequent revisions to 

the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 

Section 39.405 satisfies the 

requirements at § 51.161(a). 

Section 55.152 ensures that the 

public is provided the opportunity to 

comment consistent with § 

51.161(a). 
72 

Table IV.D-2: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Comments 

taken action on the 

application or referred to 

SOAH 

§ 55.152. Public Comment Period 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last publication 

of the NORI, or 30 days after the 

NAPD if a second notice is 

required, for an air quality permit 

application not otherwise specified 

in this section. 

(b) For purposes of paragraph (a) of 

this section, opportunity for public 

comment shall include, as a 

minimum— 

(1) Availability for public 

inspection in at least one 

location in the area affected 

of the information 

submitted by the owner or 

operator and of the State or 

local agency's analysis of 

the effect on air quality; 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or proposed 

location. 

 39.405(g)(1) requires the 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

applicant to make available for 

review the air quality analysis for 

applications submitted after the 

effective date of the rule (August 

2010). 

Section 39.405 satisfies the 

requirements at § 51.161(b)(1) for 

public inspection in at least one 

location in the affected area of the 

information submitted by the 

owner/operator and the air quality 

analysis. 

(2) A 30-day period for 

submittal of public 

comment; and 

39.409. Deadline for Public 

Comment, and for Requests for 

Reconsideration, Contested Case 

Hearing, or Notice and Comment 

Hearing. 

Notice given under this chapter will 

specify any applicable deadline to 

file public comment specified under 

§ 551.152 of this title and, if 

applicable, any deadlines to file 

requests for reconsideration, 

contested case hearing, or notice and 

Per section 39.603(a), the 

requirements of NORI publication at 

39.418 do not apply to PALs (see 35 

TexReg 5205 for an explanation). 

PALs are not subject to the TCEQ 

“first notice” but are subject to the 

requirements of the NAPD, or the 

“second notice”. 

Section 55.152 generally provides 

that comment period is 30 days after 

the last publication of the NAPD. 
73 

Table IV.D-2: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Comments 

comment hearing. After the 

deadline, final action on an 

application may be taken under 

Chapter 50. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(2) 15 days after the last 

publication of the NORI, or 

30 days after NAPD if a 

second notice is required for 

a permit renewal under 

Chapter 116 or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted 

under Chapter 116, 

subchapter F, unless the 

plant is to be temporarily 

located in or contiguous to 

the right-of-way of a public 

works project; 

 (5) the time specified in 

commission rules for other 

specific types of 

applications; or 

(6) as extended by the ED 

for good cause. 

Section 55.152 satisfies the 

requirements of § 51.161(b)(2). 

(3) A notice by prominent 

advertisement in the area 

affected of the location of 

the source information and 

analysis specified in 

paragraph (b)(1) of this 

section. 

39.419(e)(1) NAPD follows 

requirements of Chapter 39, 

Subchapter K. 

Subchapter K 

39.603. Newspaper Notice. 

(b) NAPD under §39.419 is required 

to be published within 33 days after 

the chief clerk has mailed the 

preliminary decision concurrently 

Because PALs are not subject to the 

requirements for NORI at 39.418, 

we use the requirements for NAPD 

at 39.419 and 39.603(b). 

Subchapter K provides requirements 

for Mailed Notice, Newspaper 

publication, and sign posting. 

Newspaper publication and sign 

posting could be considered 
74 

Table IV.D-2: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Comments 

with the NAPD to the applicant. 

This notice must contain the text 

required at § 39.411(f). 

(c) General newspaper notice. Unless 

otherwise specified, when this 

chapter requires published notice of 

an air quality permit application, the 

applicant shall publish notice in a 

newspaper of general circulation in 

the municipality in which the facility 

is located or is proposed to be 

located or in the municipality nearest 

to the location or proposed location 

of the facility. 

39.604. Sign Posting. 

(a) At the applicant’s expense, a sign 

or signs must be placed at the site of 

the existing or proposed facility 

declaring the filing of an application 

for a permit and stating the manner 

in which the commission may be 

contacted for further information. 

prominent advertisement in affected 

location. 

Newspaper notice is the traditional 

vehicle used by EPA for prominent 

advertisement of a proposed source. 

Section 39.603(c) requires 

publication in a newspaper of 

general circulation in the 

municipality in which the facility is 

located or proposed to be located, or 

in the municipality nearest the 

location or proposed location. 

Section 39.603(c) further requires 

that within the newspaper, the 

applicant must provide 2 separate 

notifications with the required 

material. 

Historically, EPA has not 

considered or used sign posting as 

prominent advertisement. A search 

of the NSR policy/guidance 

database does not yield any 

documents pertaining to or 

establishing minimum signage 

requirements. Therefore, any Texas 

provisions requiring sign postage are 

more stringent than federal 

requirements for prominent 

advertisement. 

TCEQ originally adopted sign 

posting requirements at 30 TAC 

116.133 on August 16, 1993. EPA 

SIP-approved these provisions on 

September 18, 2002 (see 67 FR 

58697) as strengthening the SIP 

because federal notice provisions 

neither require nor prohibit sign 

posting. Subsequently, TCEQ 

adopted alternate language sign 

posting provisions at 30 TAC 

116.133, effective July 8, 1998. 

EPA SIP approved these alternate 

language sign posting provisions on 

March 10, 2006 (see 71 FR 12285) 

as strengthening the SIP. The sign 

posting provisions at 39.604 are not 

substantively different from the SIPapproved sign posting provisions at 

116.133. 
75 

Table IV.D-2: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Comments 

(c) Where the 30-day comment 

period required in paragraph (b) of 

this section would conflict with 

existing requirements for acting on 

requests for permission to construct 

or modify, the State may submit for 

approval a comment period which is 

consistent with such existing 

requirements. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(5) the time specified in 

commission rules for other 

specific types of 

applications; or 

(6) as extended by the ED 

for good cause. 

Section 39.419(e) requires NAPD 

for all air quality permit applications 

– except for renewals. Therefore, 

PALs require NAPD notice and the 

comment period will end 30 days 

after the last publication of the 

NAPD. 

Note that Section 55.152(a)(2) does 

not apply to public notice for PALs. 

Analysis of section 55.152(a)(2) for 

other types of Texas permits will be 

discussed in separate analyses. 

 

(d) A copy of the notice required by 

paragraph (b) of this section must 

also be sent to the Administrator 

through the appropriate Regional 

Office, and to all other State and 

local air pollution control agencies 

having jurisdiction in the region in 

which such new or modified 

installation will be located. The 

notice also must be sent to any other 

agency in the region having 

responsibility for implementing the 

procedures required under this 

subpart. For lead, a copy of the 

notice is required for all point 

sources. The definition of point for 

lead is given in §51.100(k)(2). 

39.605. Notice to Affected 

Agencies. 

In addition to the requirements in § 

39.405(f0(3) of this title: 

(7) When newspaper notices are 

published under this section, the 

applicant shall furnish a copy of 

the notices and affidavit to: 

(A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county in 

which the construction is to 

occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may be 

adversely affected by the 

emissions from the new or 

modified facility; and 

(D).If notice is for an 

application filed on or after 

the effective date of this 

section for a PSD or NNSR 

permit, the chief executives 

of the city and county 

where the source would be 

located, and any State or 

For air quality permits, Section 

39.605 requires that copies of 

newspaper notices and sign posting 

verification be sent to the R6 RA, 

state and location air pollution 

control agencies, and Federal or 

State Land Managers or Indian 

Governing Body. 

A PAL can be established for any 

regulated NSR pollutant, which 

includes lead. See 40 CFR 

52.21(b)(50). Therefore, the Texas 

rules must require that any permit 

application with a PTE of > 5TPY 

lead (definition of lead point source 

at 51.100(k)(2)) will send 

notification to the R6 RA, and the 

other state/location agencies with 

jurisdiction in the affected area. 

Pursuant to 40 CFR 51.165(f) and 

51.166(w), PALs can only be used 

for existing major sources. 

Therefore, we can rely on the SIPapproved PSD and NNSR 

permitting provisions to ensure that 

a PAL permit will satisfy 51.161(d) 

for lead provisions. 
76 

Table IV.D-2: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Comments 

Federal Land Manager, or 

Indian Governing Body 

whose lands may be 

affected by emissions from 

the source or modification. 

(8) When sign posting is required 

under this section, the applicant 

shall furnish a copy of sign 

posting verification, within 10 

business days after the end of 

the comment period associated 

with the notice under § 39.418 

to: 

(A). The chief clerk; 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

PAL permit applications at an 

existing major PSD or NNSR source 

are subject to the notice 

requirements of Section 39.605. 

Therefore, when a PAL permit 

applicant will emit lead above the 

significant levels (0.6 tpy as 

established at 40 CFR 

51.165(a)(1)(x)(A)) this information 

will also be provided to the affected 

agencies as specified in 39.605, 

consistent with the requirements of 

51.161(d). 

Table IV.D-2 above demonstrates that the public participation requirements specific to PAL 

permit applications for major new sources or major modifications at existing sources satisfy the 

federal requirements found at 40 CFR 51.161. 

Table IV.D-3: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.165 and 51.166 

40 CFR 51.165 and 40 CFR 51.166 Texas Public Participation 

Provisions 

Comments 

40 CFR 51.165(f)(5) and 

51.166(w)(5) 

The reviewing authority must 

address all material comments 

before taking final action on the 

permit. 

40 CFR 51.165(f)(11)(iii): The PAL 

permit shall be revised to reflect the 

increased PAL level pursuant to the 

public notice requirements of 

paragraph (f)(5) of this section. 

40 CFR 51.166(w)(11)(iii): The 

PAL permit shall be revised to 

reflect the increased PAL level 

pursuant to the public notice 

requirements of paragraph (w)(5) of 

this section. 

 

39.411. Text of Public Notice. 

(f) The chief clerk shall mail NAPD 

to those listed in 39.602. When 

NAPD is required by Subchapters 

and K for air quality permit 

applications, the text of the notice 

must include the information in this 

subsection: 

(1) the information required by 

subsection (e) of this section... 

39.411(e)(4) requires that the public 

notice must include a brief 

description of the public comment 

procedures: 

(A) a statement that the ED will 

respond to: 

(i) all comments regarding 

applications for PSD and 

NNSR permits under 

Chapter 116, Subchapter B 

and PAL permits under 

Chapter 116 filed on or after 

the effective date of this 

section. 

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

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

satisfy the requirement in 40 CFR 

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

the TCEQ address all comments 

before approving a PAL permit. 

The TCEQ is required to address all 

comments received (timely, relevant 

and material, or significant public 

comment) on a PAL permit 

application. Further, the TCEQ rules 

require that a response to comments 

document be prepared prior to the 

final action on the permit. Both of 

these requirements are more 

stringent than the federal 

requirements. Interested individuals 

have access to the response to 

comments document for each 

permitting action through the 

TCEQ’s website; the address of 

which is provided in each NAPD 

notice. The RTC includes a 

summary of each comment received. 
77 

Table IV.D-3: Analysis of the Texas Public Participation Requirements for PAL Permit Applications with the 

Requirements of 40 CFR 51.165 and 51.166 

40 CFR 51.165 and 40 CFR 51.166 Texas Public Participation 

Provisions 

Comments 

55.156. Public Comment 

Processing. 

(b) If comments are received, the 

following procedures apply to the 

ED. 

(1) Before an application is 

approved, the ED shall prepare 

a response to all timely, 

relevant and material, or 

significant public comment, 

whether or not withdraw, and 

specify if the comment was 

withdrawn. Before any air 

quality permit application for a 

PSD or NNSR permit or for 

applications for the 

establishment or renewal of, or 

an increase in, a PAL, filed on 

or after the effective date of this 

section, is approved, the ED 

shall prepare a response to all 

comments received. The 

response shall specify the 

provisions of the draft permit 

that have been changed in 

response to public comment 

and the reasons for the change. 

The actual comment letters can be 

obtained from the TCEQ offices. 

Therefore, the Texas public 

participation provisions for PAL 

permits are more stringent than the 

federal requirements. 

Table IV.D-3 above demonstrates that the public participation requirements specific to PAL 

permit applications for major new sources or major modifications at existing sources satisfy the 

PAL-specific public notice federal requirements found at 40 CFR 51.165 and 51.166. 

Note that the applicant is legally responsible for the publication of the 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, is the legally responsible party for satisfying the public notice requirements for PAL 

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. It is recommended that EPA publish a proposed approval finding 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. 
78 

The section-by-section analysis in Tables IV.D-1, D-2, and D-3, of the federal PAL public 

participation requirements with the corresponding Texas requirements for public participation of 

PAL permit applications has shown that the Texas program, submitted July 2, 2010, satisfies all 

federal requirements for public notice for PAL permits. It is recommended that EPA publish a 

proposed approval of the Texas public participation program for PAL permit applications. 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified 

in EPA’s Proposed LA/LD? 

Section IV.C of EPA’s November 26, 2008, proposed limited approval/limited disapproval of the 

Texas Public Participation program for air quality permits, identified several deficiencies in the 

Texas public participation rules specific to major sources and modifications subject to PAL 

permitting requirements. Table IV.D-4 below identifies each PAL-specific deficiency and 

whether the current SIP revisions for public participation resolve the deficiency. 

Table IV.D-4: Analysis of the Current Public Participation SIP Submittals with respect to the identified 

deficiencies in the proposed LA/LD 

PAL-Specific Deficiencies Identified in the LA/LD 

73 FR 72001, 72007 

November 26, 2008 

Evaluation of Current Public Participation SIP 

Submittals 

For PALs for existing major stationary, 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 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, PAL 

permit. Tables IV.D-1 and D-2 above demonstrate that 

the July 2, 2010 submittal satisfies requirements at 

51.160 and 161. Table IV.D-3 above demonstrates how 

the July 2, 2010 submittal satisfies 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 (w)(5). 

Per the discussion above in Table IV.D-3 in this TSD, 

the provisions at Sections 39.411(e)(4)(A)(i), 

39.411(f)(1) and 55.156(b)(1) satisfy the requirement 

that the TCEQ address all comments before approving a 

PAL permit. 

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, PAL 

permit. 

The July 2, 2010 public participation SIP submittal 

addresses EPA’s concerns and resolve the identified 

deficiency. 
79 

The analysis in Table IV.D-4 above has verified that the current Texas public participation 

program for PAL applications at existing major sources addresses all deficiencies identified in 

EPA’s proposed LA/LD. 

4. Findings for Public Participation for PAL Permit Applications 

The analysis presented above 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, it is recommended to propose full approval of the Texas public notice provisions for 

PAL permit applications submitted on July 2, 2010, and March 11, 2011. 

 
80 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

E. Evaluation of the Public Participation Process for Sources and Modifications 

Subject to Minor NSR Permitting Requirements 

Federal public participation requirements for Minor NSR permit applications are at 40 CFR 

51.160 and 161. 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 amendments5

 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 382.0206

, 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 F7

 - 39.402(a)(11). 

 

4

 New minor permit actions do not include Permits-by-Rule (PBRs) or Standard Permits (SPs). New minor permit 

actions are authorized under the SIP-approved provisions at 30 TAC Chapter 116, Subchapter B. PBRs and SPs are 

separately authorized under SIP-approved provisions at 30 TAC Chapter 106 and Chapter 116, Subchapter F, 

respectively. Public notice for PBRs and SPs is outside the scope of the state’s July 2, 2010 SIP submittal or the 

action today. 

5

 EPA SIP-approved the Texas permit amendment process at 30 TAC 116.116(b)(1) and (b)(2) on November 14, 

2003 as adopted by the TCEQ on August 9, 2000 (see 68 FR 64543). These provisions provide that the permit 

holder shall not vary from any representation or permit condition without obtaining a permit amendment if the 

change will cause (A) a change in the method of control of emissions; (B) a change in the character of the emissions; 

or (C) an increase in the emission rate of any air contaminant. Further, any applicant who requests permit 

amendments must receive prior approval by the TCEQ ED or the commission. Applications for amendments are 

subject to the requirements of 30 TAC 116.111. The current SIP requirements of 30 TAC 116.111 were SIPapproved by EPA on August 28, 2007 as adopted by the TCEQ on August 21, 2002 (see 72 FR 49198). 

6

 THSC, § 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. 7

 EPA SIP-approved the Texas Standard Permit process and public participation process on November 14, 2003, as 

adopted by TCEQ on December 16, 1999 (see 68 FR 64543). EPA also SIP-approved revisions to the public 

participation process for the development of standard permits on September 17, 2008, as adopted by TCEQ 

September 20, 2006 (see 73 FR 53716). 
81 

The notice requirements for each type of Minor NSR permit application listed above is generally 

the same – meaning that a permit amendment will have the same public notice requirements as 

an application for a new minor source. The following analysis is confined solely to the 

approvability of the public participation requirements. This analysis may discuss the types of 

permits for illustrative purposes only; this analysis does not imply an action or future action by 

EPA on the approvability of a specific type of permit or the Minor NSR program as a whole. 

Rather, this analysis will determine if the public participation provisions are adequate under the 

CAA. This analysis may be used later in future EPA actions to supplement a review of the Minor 

NSR program or the review of a specific type of Minor NSR permit. 

1. Public Participation Process 

The following steps provide a general overview of the Texas public notice process for a Minor 

NSR permit application. 

1. Applicant submits Minor NSR 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 publishes the first 

notice, the Notice of Receipt of Application and Intent to Obtain Permit (NORI). 

See 30 TAC 39.418(e). 

4. TCEQ completes the technical review and makes a preliminary decision. The 

TCEQ has 180 days from the date the application is administratively complete to 

conduct the technical review and make a preliminary decision. See 30 TAC 

116.114(b). 

5. The applicant publishes the second notice, the Notice of Application and 

Preliminary Decision (NAPD) when notified by TCEQ of the preliminary 

decision. See 30 TAC 39.419. 

6. The TCEQ files the ED’s draft permit and preliminary decision, the preliminary 

determination summary and air quality analysis with the chief clerk and the clerk 

posts on the TCEQ’s website. See 30 TAC 39.419. 

7. The comment period runs for 30 days after the last publication of the NAPD. See 

30 TAC 55.152(a)(1). Note that there are some exceptions to the comment period 

for minor source concrete batch plants as discussed below in Table IV.E-1 and E2. The exceptions to the comment period for permit renewal applications will be 

discussed in Section IV.F of this TSD. 

8. A public meeting is held if the ED determines there is a substantial or significant 

degree of interest or if the meeting is requested by an interested person or a 

member of the legislature representing the general area of the proposed 

facility/modification. 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 shall file 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). 
82 

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 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). See 30 TAC 

116.114(c)(3). While not explicitly identified in the rule language, the TCEQ’s 

issuance clock is based on the completion of the technical review and the 

publication of the NAPD. 

2. Analysis of Requirements in 40 CFR 51 Specific to Minor NSR Sources 

Tables IV.E-1 and E-2 provides a line-item comparison of the Minor NSR requirements of §§ 

51.160 and 51.161 and the comparable Texas Public Participation provisions. Where appropriate, 

the “Analysis" column of the following table will identify if EPA submitted substantive 

comments (i.e., not identifying typographical errors) on the public participation requirements 

specific to Minor NSR permit applications in our February 16, 2010 comment letter, and provide 

a summation and/or analysis of the TCEQ response to the submitted comment. EPA’s February 

16, 2010, comment letter is included in the rulemaking docket for this action. 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

(a) Each plan must set forth legally 

enforceable procedures that enable 

the State or local agency to 

determine whether the construction 

or modification of a facility, 

building, structure or installation, or 

combination of these will result in – 

(1) A violation of applicable 

portions of the control 

strategy; or 

(2) Interference with 

attainment or maintenance 

of a national standard in the 

State in which the proposed 

source (or modification) is 

located or in a neighboring 

State. 

§116.111. General Application. 

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include: 

(2) information which demonstrates 

that emissions from the facility, 

including any associated dockside 

vessel emissions, meet all of the 

following. 

(A) Protection of public health and 

welfare. 

 (i) The emissions from 

the proposed facility will comply 

with all rules and regulations of the 

commission and with the intent of 

the TCAA, including protection of 

the health and property of the public. 

EPA most recently SIP-approved the 

General Application provisions for 

the Texas NSR permit program on 

August 28, 2007, as adopted by the 

TCEQ on August 21, 2002 (see 72 

FR 49198). 

Note 30 TAC 116.111(a) was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NSR program is SIPapproved with the necessary legally 

enforceable procedures that enable 

the TCEQ to protect the NAAQS. 

Section 116.111(a)(2)(A) requires 

that the application for a permit or 

permit amendment must 

demonstrate protection of public 

health and welfare. Section 

116.111(a)(2)(A)(i) requires that 

emissions from the proposed facility 

will comply with all rules and 

regulations of the TCEQ and the 

TCAA. Therefore, 116.111 

continues to satisfy the requirements 
83 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

of 51.160(a). 

(b) Such procedures must include 

means by which the State or local 

agency responsible for final decision 

making on an application for 

approval to construct or modify will 

prevent such construction or 

modification if – 

(1) It will result in a violation 

of applicable portions of 

the control strategy; or 

(2) It will interfere with 

attainment or maintenance 

of a national standard 

§116.111. General Application. 

As adopted by TNRCC August 21, 

2002.

Approved by EPA August 28, 2007 

(72 FR 49198).

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include:

(1) a completed Form PI-1 

General Application signed by 

an authorized representative of 

the applicant. All additional 

support information specified 

on the form must be provided 

before the application is 

complete; 

(2) information which 

demonstrates that emissions 

from the facility, including any 

associated dockside vessel 

emissions, meet all of the 

following. 

(A) Protection of public 

health and welfare. 

(i) The emissions from 

the proposed facility 

will comply with all 

rules and regulations 

of the commission and 

with the intent of the 

TCAA, including 

protection of the health 

and property of the 

public. 

(ii) For issuance of a 

permit for construction 

or modification of any 

facility within 3,000 

feet of an elementary, 

junior high/middle, or 

senior high school, the 

commission shall 

consider any possible 

adverse short-term or 

long-term side effects 

that an air contaminant 

or nuisance odor from 

the facility may have 

on the individuals 

As the Minor NSR permitting 

authority in Texas, the TCEQ has 

established the criteria by which 

Minor NSR permits will be issued. 

These criteria (SIP-approved at 

116.111(a) ) include the requirement 

that the applicant demonstrate that 

emissions from the facility comply 

with all rules and regulations 

necessary to protect human health 

and the environment. 

The TCEQ has the authority to 

receive application materials and 

review these materials for technical 

merit. If the technical justifications 

for the permit application are not 

valid, then the TCEQ has the 

authority to not issue the permit. 

EPA approved these Minor NSR 

permitting provisions as appropriate 

to protect the NAAQS, consistent 

with 40 CFR 51.160(b) and the 

CAA when we SIP-approved the 

Minor NSR program. 
84 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

attending the 

school(s). 

(B) Measurement of 

emissions. The proposed 

facility will have provisions 

for measuring the emission 

of significant air 

contaminants as determined 

by the executive director. 

 This may include the 

installation of sampling 

ports on exhaust stacks and 

construction of sampling 

platforms

in accordance with 

guidelines in the "Texas 

Natural Resource 

Conservation Commission 

(TNRCC) Sampling 

Procedures Manual." 

(C) Best available control 

technology (BACT). The 

proposed facility will utilize 

BACT, with consideration 

given to the technical 

practicability and economic 

reasonableness of reducing 

or eliminating the emissions 

from the facility. 

(D) New Source 

Performance Standards 

(NSPS). The emissions 

from the proposed facility 

will meet the requirements 

of any applicable NSPS as 

listed under Title 40 Code 

of Federal Regulations 

(CFR) Part 60, promulgated 

by the EPA under FCAA, 

§111, as amended. 

(E) National Emission 

Standards for Hazardous 

Air Pollutants (NESHAP). 

 The emissions from the 

proposed facility will meet 

the requirements of any 

applicable NESHAP, as 

listed under 40 CFR Part 

61, promulgated by EPA 

under FCAA, §112, as 

amended. 

(F) NESHAP for source 

categories. The emissions 
85 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

from the proposed facility 

will meet the requirements 

of any applicable maximum 

achievable control 

technology standard as 

listed under 40 CFR Part 

63, promulgated by the EPA 

under FCAA, §112 or as 

listed under Chapter 113, 

Subchapter C of this title 

(relating to National 

Emissions Standards for 

Hazardous Air Pollutants 

for Source Categories 

(FCAA §112,40 CFR 63)) 

(G) Performance 

demonstration. The 

proposed facility will 

achieve the performance 

specified in the permit 

application. The applicant 

may be required to submit 

additional engineering data 

after a permit has been 

issued in order to 

demonstrate further that the 

proposed facility will 

achieve the performance 

specified in the permit 

application. In addition, 

dispersion modeling, 

monitoring, or stack testing 

may be required. 

(H) Nonattainment review. 

 If the proposed facility is 

located in a nonattainment 

area, it shall comply with all 

applicable requirements in 

this chapter concerning 

nonattainment review. 

(I) Prevention of Significant 

Deterioration (PSD) review. 

 If the proposed facility is 

located in an attainment 

area, it shall comply with all 

applicable requirements in 

this chapter concerning PSD 

review. 

(J) Air dispersion modeling. 

Computerized air dispersion 

modeling may be required 

by the executive director to 

determine air quality 
86 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

impacts from a proposed 

new facility or source 

modification. In 

determining whether to 

issue, or in conducting a 

review of, a permit 

application for a 

shipbuilding or ship repair 

operation, the commission 

will not require and may not 

consider air dispersion 

modeling results predicting 

ambient concentrations of 

non-criteria air 

contaminants over coastal 

waters of the state. The 

commission shall determine 

compliance with noncriteria 

ambient air contaminant 

standards and guidelines at 

land-based off-property 

locations. 

(K) NOT IN SIP – 

RELATES TO 

HAZARDOUS AIR 

POLLUTANTS

(L) Mass cap and trade 

allowances. If subject to 

Chapter 101, Subchapter H, 

Division 3, of this title 

(relating to Mass Emissions 

Cap and Trade Program), 

the proposed facility, group 

of facilities, or account must 

obtain allowances to 

operate. 

(c) The procedures must provide for 

the submission, by the owner or 

operator of the building, facility, 

structure, or installation to be 

constructed or modified, of such 

information on – 

(1) The nature and amounts of 

emissions to be emitted by 

it or emitted by associated 

mobile sources; 

(2) The location, design, 

construction, and operation 

of such facility, building, 

structure, or installation as 

may be necessary to permit 

the State or local agency to 

make the determination 

39.411. Text of Public Notice. 

(e) When NORI by publication or 

mail is required by Subchapter H and 

K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection. 

(1) the name and address of the 

agency and the telephone number of 

an agency contact from whom 

interested persons may obtain further 

information; 

(2) the name, address, and telephone 

number of the applicant and a 

description of the manner in which a 

person may contact the applicant for 

further information; 

Minor NSR permit applications are 

subject to both first (NORI) and 

second (NAPD) notice. The text of 

the NORI will provide the general 

information about the proposed 

source or modification. The text of 

the NAPD, along with the 

preliminary decision and draft 

permit, will provide the more 

detailed information used by the 

TCEQ in making the permit 

decision. The excerpts from 30 TAC 

39.411(e) and (f) demonstrate the 

factual information that must be part 

of a notice. 

Additionally, as the Minor NSR 
87 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

referred to in paragraph (a) 

of this section. 

(3) a brief description of the location 

and nature of the proposed activity; 

(4) a brief description of public 

comment procedures 

... 

(f) When NAPD by publication or 

mail is required by Subchapters H 

and K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection: 

(1) the information required by 

subsection (e) of this section 

[information in the NORI notice]; 

(2) a summary of the ED’s 

preliminary decision and whether the 

ED has prepared a draft permit; 

... 

(8) in addition to the requirements in 

paragraphs (1) – (7) of this 

subsection, for air quality permit 

applications filed on or after the 

effective date of this section for 

permits under Chapter 116, 

Subchapter B, Divisions 5 and 6: 

(A) as applicable, the degree of 

increment consumption 

(B) a statement that the state’s air 

quality analysis is available for 

comment 

... 

permitting authority in Texas, the 

TCEQ has the authority to request 

the information necessary to 

properly review a permit application 

and make a decision on said 

application. The TCEQ must make a 

finding of administrative 

completeness within 90 days of 

receiving the application; the final 

decision on any amendment 

application must be made within 

150 days of a complete application, 

other permit applications are within 

180 days. Therefore, 39.411(e) and 

(f) satisfy the requirements of 

51.160(c). 

(d)The procedures must provide that 

approval of any construction or 

modification must not affect the 

responsibility to the owner or 

operator to comply with applicable 

portions of the control strategy. 

§116.115. General and Special 

Conditions. 

(b) General conditions. Holders of 

permits, special permits, standard 

permits, and special exemptions shall 

comply with the following: 

(2) the following general conditions 

if the permit or amendment is issued 

or amended on or after August 16, 

1994, regardless of whether they are 

specifically stated within the permit 

document. 

(H) Compliance with rules. 

(i) Acceptance of a permit by an 

applicant constitutes an 

acknowledgment and agreement that 

the permit holder will comply with 

all rules, regulations, and orders of 

the commission issued in conformity 

with the TCAA and the conditions 

precedent to the granting of the 

permit. 

EPA most recently SIP-approved the 

general and special conditions for 

Chapter 116 permitting on April 2, 

2010, as adopted by the TCEQ on 

August 20, 2003 (see 75 FR 16671). 

Note that 30 TAC 116.115 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas Minor NSR program is SIPapproved with the necessary legally 

enforceable procedures providing 

that approval of any construction or 

modification does not affect the 

owner/operator’s responsibility to 

comply with applicable portions of 

the control strategy. Section 116.115 

continues to satisfy the requirements 

of 51.160(d). 
88 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

(ii) If more than one state or federal 

rule or regulation or permit condition 

are applicable, the most stringent 

limit or condition shall govern and 

be the standard by which compliance 

shall be demonstrated. 

(iii) Acceptance includes consent to 

the entrance of commission 

employees and agents into the 

permitted premises at reasonable 

times to investigate conditions 

relating to the emission or 

concentration of air contaminants, 

including compliance with the 

permit. 

(e) The procedures must identify 

types and sizes of facilities, 

buildings, structures, or installations 

which will be subject to review 

under this section. The plan must 

discuss the basis for determining 

which facilities will be subject to 

review. 

See above for the requirements in 

§ 116.111.

Additionally, see below for 

requirements of § 116.111(b) – 

submitted October 25, 1999 and 

pending review in this TSD. 

116.111 

(b) In order to be granted a permit, 

amendment, or special permit 

amendment, the owner or 

operator must comply with the 

following notice requirements. 

(1) Applications declared 

administratively complete 

before September 1, 1999, are 

subject to the requirements of 

Chapter 116, Subchapter B, 

Division 3 (relating to Public 

Notification and Comment 

Procedures) (effective March 2 

1, 1999). 

(2) Applications declared 

administratively complete on or 

after September 1, 1999, are 

subject to the requirements of 

Chapter 39 of this title (relating 

to Public Notice) and Chapter 

55 of this title (relating to 

Request for Reconsideration 

and Contested Case Hearings; 

Public Comment). Upon 

request by the owner or 

operator of a facility which 

previously has received a 

permit or special permit from 

the commission, the executive 

director or designated 

As the Minor NSR permitting 

authority in Texas, the TCEQ has 

established the criteria by which 

Minor NSR permits will be issued. 

These criteria (SIP-approved at 

116.111(a) ) include the requirement 

that the applicant demonstrate that 

emissions from facility comply with 

all rules and regulations necessary to 

protect human health and the 

environment. Note that under the 

Texas SIP, all increases in emissions 

will be permitted – either as major 

or minor NSR permit or meet the 

criteria for authorization as a permit 

by rule or standard permit. 

Additionally, the General 

Application provisions at 116.111(b) 

provide that Minor NSR 

applications that are 

administratively complete after 

September 1, 1999 comply with the 

Chapter 39 Public Notice 

requirements. As will be detailed 

later, the Public Notice provisions at 

Chapter 39 require the applicant to 

identify the facility that will be 

subject to review and provide 

opportunity for comment. Minor 

NSR applications are subject to 

NORI and NAPD permitting so the 

submitted requirements at 39.418 

and 39.419 apply to Minor NSR. 

The TCEQ has the authority to 

receive application materials and 

review these materials for technical 
89 

Table IV.E-1: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor Permitting Provisions Analysis 

representative may exempt the 

relocation of such facility from 

the provisions in Chapter 39 of 

this title if there is no indication 

that the operation of the facility 

at the proposed new location 

will significantly affect ambient 

air quality and no indication 

that operation of the facility at 

the proposed new location will 

cause a condition of air 

pollution.

merit. If the technical justifications 

for the permit application are not 

valid, then the TCEQ has the 

authority to not issue the permit. 

EPA approved these Minor NSR 

permitting provisions as appropriate 

to protect the NAAQS, consistent 

with 40 CFR 51.160(b) and the 

CAA when we SIP-approved the 

Minor NSR program. Section 

116.111 satisfies the requirements of 

51.160(e). 

(f)The procedures must discuss the 

air quality data and the dispersion or 

other air quality modeling used to 

meet the requirements of this 

subpart. 

(1) All applications of air quality 

modeling involved in this subpart 

shall be based on the applicable 

models, data bases, and other 

requirements specified in appendix 

W of this part (Guideline on Air 

Quality Models). 

(2) Where an air quality model 

specified in appendix W of this part 

is inappropriate, the model may be 

modified or another model 

substituted. Such a modification or 

substitution of a model may be made 

on a case-by-case basis or, where 

appropriate, on a generic basis for a 

specific State program. Written 

approval of the Administrator must 

be obtained for any modification or 

substitution. In addition, use of a 

modified or substituted model must 

be subject to notice and opportunity 

for public comment under 

procedures set forth in § 51.102. 

§116.111. General Application. 

(a) In order to be granted a permit, 

amendment, or special permit 

amendment, the application must 

include: 

(2) information which demonstrates 

that emissions from the facility, 

including any associated dockside 

vessel emissions, meet all of the 

following. 

... 

(J) Air dispersion modeling. 

Computerized air dispersion 

modeling may be required by the 

executive director to determine air 

quality impacts from a proposed new 

facility or source modification. 

EPA most recently SIP-approved the 

General Application provisions for 

the Texas NSR permit program on 

August 28, 2007, as adopted by the 

TCEQ on August 21, 2002 (see 72 

FR 49198). 

Note 30 TAC 116.111(a) was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NSR program is SIPapproved with the ability to require 

air dispersion modeling as 

applicable. 

Minor NSR permit applications are 

subject to both NORI and NAPD 

notice – therefore any technical 

information such as dispersion 

modeling or source impact analysis 

will be available for public review 

and comment. Section 116.111 

continues to satisfy the requirements 

of 51.160(f). 

Table IV.E-1 above demonstrates that the public participation requirements specific to new 

minor sources or minor modifications as existing sources satisfy the federal requirements found 

at 40 CFR 51.160. 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(a) The legally enforceable 

procedures in §51.160 must also 

39.405. General Notice Provisions. 

(g) Copy of application. The 

Section 39.405 requires that the 

application, subsequent revisions to 
90 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

require the State or local agency to 

provide opportunity for public 

comment on information submitted 

by owners and operators. The public 

information must include the 

agency's analysis of the effect of 

construction or modification on 

ambient air quality, including the 

agency's proposed approval or 

disapproval. 

applicant shall make a copy of the 

application available for review and 

copying at a public place in the 

county in which the facility is 

located or proposed to be located. 

... 

The copy of the application must 

comply with the following. 

(4) A copy of the 

administratively complete 

application must be 

available for review and 

copying beginning on the 

first day of newspaper 

publication of NORI and 

remain available for the 

publications’ designated 

comment period. 

(5) A copy of the complete 

application (including any 

subsequent revisions to the 

application) and ED’s 

preliminary decision must 

be available for review and 

copying beginning on the 

first day of newspaper 

publication required by this 

section and remain available 

until the commission has 

taken action on the 

application or the 

commission refers issues to 

SOAH. 

(6) Where applicable, for air 

quality permit applications 

filed on or after the 

effective date of this 

section( June 24, 2010) the 

applicant shall also make 

available the ED’s draft 

permit, preliminary 

determination summary and 

air quality analysis for 

review and copying 

beginning on the first day of 

newspaper publication 

required by 39.419 for 

NAPD and remain available 

until the commission has 

taken action on the 

application or referred to 

SOAH 

the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 

Section 39.405 satisfies the 

requirements at § 51.161(a) for 

which materials are made available 

for public comment for Minor NSR 

permit applications. 

Section 55.152 provides at least a 

30-day comment period after the last 

publication of the NAPD. Because 

Minor NSR permit applications are 

subject to NORI and NAPD notice 

requirements, the public is afforded 

the opportunity to comment on the 

application and related materials 

twice in the permitting process, 

which is more stringent than the 

federal requirements for Minor 

NSR. Section 55.152 ensures that 

the public is provided the 

opportunity to comment consistent 

with § 51.161(a). 

Note that concrete batch plants 

without enhanced controls that are 

authorized through a standard permit 

are afforded only a 15-day notice 

period under 55.152(a)(2). This 

shortened time period is addressed 

in this table for § 51.161(c). 

Note that renewals will be addressed 

separately in Section IV.F of this 

TSD. 
91 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

§ 55.152. Public Comment Period 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

 (2) 15 days after the last 

publication of Notice of 

Receipt of Application and 

Intent to Obtain Permit 

under §39.418 of this title, 

or 30 days after Notice of 

Application and Preliminary 

Decision if a second notice 

is required under §39.419 of 

this title, for a permit 

renewal under Chapter 116 

of this title (relating to 

Control of Air Pollution by 

Permits for New 

Construction or 

Modification) or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted by 

the commission under 

Chapter 116, Subchapter F 

of this title (relating to 

Standard Permits), unless 

the plant is to be 

temporarily located in or 

contiguous to the right-ofway of a public works 

project; 

(b) For purposes of paragraph (a) of 

this section, opportunity for public 

comment shall include, as a 

minimum— 

(1) Availability for public 

inspection in at least one 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or proposed 

location. 

 39.405(g)(1) requires the 

Section 39.405 satisfies the 

requirements at § 51.161(b)(1) for 

public inspection in at least one 

location in the affected area of the 

information submitted by the 

owner/operator and the air quality 
92 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

location in the area affected 

of the information 

submitted by the owner or 

operator and of the State or 

local agency's analysis of 

the effect on air quality; 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

applicant to make available for 

review the air quality analysis for 

applications submitted after the 

effective date of the rule, June 24, 

2010. 

analysis for the Minor NSR permit 

application. 

(2) A 30-day period for 

submittal of public 

comment; and 

39.409. Deadline for Public 

Comment, and for Requests for 

Reconsideration, Contested Case 

Hearing, or Notice and Comment 

Hearing. 

Notice given under this chapter will 

specify any applicable deadline to 

file public comment specified under 

§ 551.152 of this title and, if 

applicable, any deadlines to file 

requests for reconsideration, 

contested case hearing, or notice and 

comment hearing. After the 

deadline, final action on an 

application may be taken under 

Chapter 50. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(2) 15 days after the last 

publication of Notice of 

Receipt of Application and 

Intent to Obtain Permit 

under §39.418 of this title, 

Minor NSR permit applications are 

subject to both NORI “first” notice 

and NAPD “second” notice. The 

NORI gives a 30 day notice on the 

application. After the TCEQ 

completes the technical analysis, the 

draft decision along with the air 

quality analysis and other technical 

documents are available for another 

30 day notice period. 

Section 55.152 generally provides 

that comment period is 30 days after 

the last publication of the NAPD. 

Because Minor NSR permit 

applications are subject to NORI 

and NAPD notice requirements, the 

public is afforded the opportunity to 

comment on the application and 

related materials twice in the 

permitting process, which is more 

stringent than the federal 

requirements for Minor NSR. 

Section 55.152 ensures that the 

public is provided the opportunity to 

comment consistent with § 

51.161(a). 

Note that concrete batch plants 

without enhanced controls that are 

authorized through a standard permit 

are afforded only a 15-day notice 

period under 55.152(a)(2). This 

shortened time period is addressed 

in this table for § 51.161(c). 

Note that renewals will be addressed 
93 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

or 30 days after Notice of 

Application and Preliminary 

Decision if a second notice 

is required under §39.419 of 

this title, for a permit 

renewal under Chapter 116 

of this title (relating to 

Control of Air Pollution by 

Permits for New 

Construction or 

Modification) or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted by 

the commission under 

Chapter 116, Subchapter F 

of this title (relating to 

Standard Permits), unless 

the plant is to be 

temporarily located in or 

contiguous to the right-ofway of a public works 

project; 

separately in Section IV.F of this 

TSD. 

Section 55.152 satisfies the 

requirements of § 51.161(b)(2). 

(3) A notice by prominent 

advertisement in the area 

affected of the location of 

the source information and 

analysis specified in 

paragraph (b)(1) of this 

section. 

39.419(e)(1) NAPD follows 

requirements of Chapter 39, 

Subchapter K. 

Subchapter K 

39.603. Newspaper Notice. 

(a) NORI under §39.419 is required 

to be published no later than 30 days 

after the executive director declares 

an application administratively 

complete. This notice must contain 

the text as required by §39.411(e).

(b) NAPD under §39.419 is required 

to be published within 33 days after 

the chief clerk has mailed the 

preliminary decision concurrently 

with the NAPD to the applicant. 

This notice must contain the text 

required at § 39.411(f). 

(c) General newspaper notice 

requires notice to be published in a 

newspaper of general circulation in 

the municipality in which the facility 

is located or is proposed to be 

located or in the municipality nearest 

to the location or proposed location 

of the facility, unless otherwise 

specified. Section 39.603(c) further 

Minor NSR permit applications are 

subject to both NORI and NAPD. 

Therefore, we use the requirements 

at 39.418, 39.419 and 39.603(b). 

Subchapter K provides requirements 

for Mailed Notice, Newspaper 

publication, and sign posting. 

Newspaper notice is the traditional 

vehicle used by EPA to prominently 

advertise a proposed source. Section 

39.603(c) requires publication in a 

newspaper of general circulation in 

the municipality in which the 

facility is located or proposed to be 

located, or in the municipality 

nearest the location or proposed 

location. Section 39.603(c) further 

requires that within the newspaper, 

the applicant must provide 2 

separate notifications with the 

required material. Section 39.603 

satisfies the prominent 

advertisement requirements of 

51.161. 

Historically, EPA has not 
94 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

requires that within the newspaper, 

the applicant must provide 2 separate 

notifications with the required 

material. 

39.604. Sign Posting. 

(a) At the applicant’s expense, a sign 

or signs must be placed at the site of 

the existing or proposed facility 

declaring the filing of an application 

for a permit and stating the manner 

in which the commission may be 

contacted for further information. 

considered or used sign posting as 

prominent advertisement. Therefore 

any Texas provisions requiring sign 

postage are more stringent than 

federal requirements for prominent 

advertisement. 

TCEQ originally adopted sign 

posting requirements at 30 TAC 

116.133 on August 16, 1993. EPA 

SIP-approved these provisions on 

September 18, 2002 (see 67 FR 

58697) as strengthening the SIP 

since federal notice provisions 

neither require nor prohibit sign 

posting. Subsequently, TCEQ 

adopted alternate language sign 

posting provisions at 30 TAC 

116.133, effective July 8, 1998. 

EPA SIP approved these alternate 

language sign posting provisions on 

March 10, 2006 (see 71 FR 12285) 

as strengthening the SIP. The sign 

posting provisions at 39.604 are not 

substantively different from the SIPapproved sign posting provisions at 

116.133. 

(c) Where the 30-day comment 

period required in paragraph (b) of 

this section would conflict with 

existing requirements for acting on 

requests for permission to construct 

or modify, the State may submit for 

approval a comment period which is 

consistent with such existing 

requirements. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 

30 days after the NAPD if a 

second notice is required, 

for an air quality permit 

application not otherwise 

specified in this section. 

(2) 15 days after the last 

publication of the NORI, or 

30 days after NAPD if a 

second notice is required for 

a permit renewal under 

Chapter 116 or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted 

Section 39.419 establishes that the 

NAPD applies to Minor NSR 

applications. Section 55.152(a) 

provides generally a 30-day 

comment period following the 

publication of the NAPD. The 

exception to this is the 15-day 

period authorized in 55.152(a)(2) for 

renewals (covered elsewhere in this 

TSD) and concrete batch plants 

without enhanced controls 

authorized by a standard permit. 

Is it appropriate to provide a 15-day 

notice period for concrete batch 

plants without enhanced controls 

authorized by a standard permit? 

40 CFR 51.161(c) anticipates that 

permitting authorities may find it 

necessary to shorten the 30-day 

comment period. To receive 

approval the permitting authority 

must submit demonstration that the 

revised approval period is consistent 
95 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

under Chapter 116, 

subchapter F, unless the 

plant is to be temporarily 

located in or contiguous to 

the right-of-way of a public 

works project; 

with existing requirements. The 

TCEQ has determined that concrete 

batch plants without enhanced 

controls that are authorized by a 

Standard Permit under Chapter 116, 

Subchapter F can receive a 15-day 

notice period. This shortened notice 

period is necessary for the nature of 

the facility, which must be operated 

in a short time window. In general, 

EPA SIP-approved the Standard 

Permit process requiring no 

additional notice beyond the 

development of the standard permit 

itself. So, the requirement to have 

15-day notice in addition to the SIPapproved notice process for standard 

permits provides for further public 

participation. Further, EPA provides 

states broad discretion in 

determining the scope of their Minor 

NSR programs. As such, EPA finds 

that the 15-day notice window for 

concrete batch plants subject to the 

Chapter 116, Subchapter F standard 

permit is sufficient and satisfies 40 

CFR 51.161(c). 

(d) A copy of the notice required by 

paragraph (b) of this section must 

also be sent to the Administrator 

through the appropriate Regional 

Office, and to all other State and 

local air pollution control agencies 

having jurisdiction in the region in 

which such new or modified 

installation will be located. The 

notice also must be sent to any other 

agency in the region having 

responsibility for implementing the 

procedures required under this 

subpart. For lead, a copy of the 

notice is required for all point 

sources. The definition of point for 

lead is given in §51.100(k)(2). 

39.605. Notice to Affected 

Agencies. 

In addition to the requirements in § 

39.405(f)(3) of this title: 

(9) When newspaper notices are 

published under this section, the 

applicant shall furnish a copy of 

the notices and affidavit to: 

(A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county in 

which the construction is to 

occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may be 

adversely affected by the 

emissions from the new or 

modified facility; and 

(D).If notice is for an 

application filed on or after 

the effective date of this 

For air quality permits, Section 

39.605 requires that copies of 

newspaper notices and sign posting 

verification be sent to the R6 RA, 

state and location air pollution 

control agencies, and Federal or 

State Land Managers or Indian 

Governing Body. 

Section 39.605 satisfies 40 CFR 

51.161(d). 
96 

Table IV.E-2: Analysis of the Texas Public Participation Requirements for Minor NSR Permit Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

section for a PSD or NNSR 

permit, 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. 

(10)When sign posting is required 

under this section, the applicant 

shall furnish a copy of sign 

posting verification, within 10 

business days after the end of 

the comment period associated 

with the notice under § 39.418 

to: 

(A). The chief clerk; 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

Table IV.E-2 above demonstrates that the public participation requirements specific to Minor 

NSR permit applications for new sources or minor modifications at existing sources satisfy the 

federal requirements found at 40 CFR 51.161. 

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, is the legally responsible party for satisfying the public notice requirements 

for Minor NSR 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. It is recommended that EPA publish a proposed approval finding 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 section-by-section analysis provided in Tables IV.E-1 and E-2 of the federal Minor NSR 

public participation requirements with the corresponding Texas requirements for public 

participation of Minor NSR permit applications has shown that the Texas program satisfies all 

federal requirements for public notice for Minor NSR permits. It is recommended that EPA 

publish a proposed approval of the Texas public participation program for Minor NSR permit 

applications. 
97 

a. Does every permit application for a new minor source or minor modification go 

through public notice? 

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 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.

8

 

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. 

The following table identifies the different types of Minor NSR actions and the type of public 

notice that is required under the existing SIP and how the public notice requirements are changed 

in the July 2, 2010 Public Notice SIP Submittal. 

Table IV.E-3: Analysis of Public Notice Requirements in the Existing SIP and the July 2, 2010 Public Notice 

Submittal for the Different Types of Minor NSR Permitting Actions 

Type of Minor NSR Permit or 

Action 

Public Notice Required per SIP Public Notice Required per July 2, 

2010 Public Notice SIP Submittal 

New minor source permit NORI required. NORI and NAPD required. 

 

8

 See Ala. Power Co. v. Costle, 636 F.2d 323 (D.C.Cir. 1979). 
98 

Table IV.E-3: Analysis of Public Notice Requirements in the Existing SIP and the July 2, 2010 Public Notice 

Submittal for the Different Types of Minor NSR Permitting Actions 

Type of Minor NSR Permit or 

Action 

Public Notice Required per SIP Public Notice Required per July 2, 

2010 Public Notice SIP Submittal 

(also referred to as an individual 

permit or case-by-case 

determination) under 

Chapter 116, Subchapter B but not 

subject to PSD or NNSR rules 

NAPD only provided if contested 

case hearing requested within 

appropriate time frame 

Amendments under Chapter 116, 

Subchapter B when the amendment 

involves: 

Note: The following are all types of permit amendments – therefore there is 

a permitting action associated with each. 

The demarcation is whether there is public notice associated with each type 

of permit amendment. 

A. A change in character of 

emissions or release of an air 

contaminant not previously 

authorized under the permit 

116.130(a) – public notice for a 

permit amendment application is at 

the discretion of the ED. 

NORI and NAPD required. 

B. A facility not affected by 

THSC § 382.020, where the 

total emissions increase from 

all facilities to be authorized 

under the amended permit 

exceeds public notice de 

minimis levels by being 

greater than any of the 

following levels: 

(i). 50 TPY CO 

(ii). 10 TPY SO2

(iii). 0.6 TPY lead; or 

(iv). 5 TPY NOX, VOC, PM 

or any other air 

contaminant except 

CO2, H2O, N2, CH4, 

C2H6, H2 and O2. 

116.130(a) – public notice for a 

permit amendment application is at 

the discretion of the ED. 

A facility affected by THSC § 

382.020 is an agricultural facility 

such as corn mill, cotton gin, feed 

mill, grain elevator, peanut 

processing facility or rice drying 

facility. 

The existing SIP states that a permit 

amendment application at a facility 

other than one of the above 

agricultural facilities only goes to 

public notice at the discretion of the 

ED. That means some actions may 

receive notice while others do not. It 

could also mean that some actions 

receive NORI notice and others 

receive NORI and NAPD or no 

notice at all. There is no requirement 

or criteria for consistency between 

decisions. 

NORI and NAPD required 

A facility affected by THSC § 

382.020 is an agricultural facility 

such as corn mill, cotton gin, feed 

mill, grain elevator, peanut 

processing facility or rice drying 

facility. 

Therefore, under the new rules, a 

facility other than one of the 

agricultural facilities listed above, 

that applies for a permit amendment 

and will exceed one of the indicated 

“de minimis” thresholds must go 

through NORI and NAPD notice. 

If the permit amendment application 

does not exceed one of the identified 

thresholds there is no requirement 

for notice but the change is 

memorialized through the permit 

amendment. The ED does have 

discretion to require NORI and 

NAPD publication for amendments 

that do not automatically receive 

notice. 

C. A facility affected by THSC § 

382.020, where the total 

emissions increase from all 

facilities to be authorized 

under the amended permit 

exceeds significant levels for 

public notice by being greater 

than any of the following 

levels: 

(i). 250 TPY CO or NOX

(ii). 25 TPY of VOC, SO2, 

116.130(a) – public notice for a 

permit amendment application is at 

the discretion of the ED. 

A facility affected by THSC § 

382.020 is an agricultural facility 

such as corn mill, cotton gin, feed 

mill, grain elevator, peanut 

processing facility or rice drying 

facility. 

NORI and NAPD required. 

A facility affected by THSC § 

382.020 is an agricultural facility 

such as corn mill, cotton gin, feed 

mill, grain elevator, peanut 

processing facility or rice drying 

facility. 

Therefore, under the new rules, a 

permit amendment application at 
99 

Table IV.E-3: Analysis of Public Notice Requirements in the Existing SIP and the July 2, 2010 Public Notice 

Submittal for the Different Types of Minor NSR Permitting Actions 

Type of Minor NSR Permit or 

Action 

Public Notice Required per SIP Public Notice Required per July 2, 

2010 Public Notice SIP Submittal 

PM or any other air 

contaminant except CO2, 

H2O, N2, CH4, C2H6, H2

and O2. 

(iii). A new major stationary 

source or major 

modification threshold as 

defined in § 116.12 of 

this title 

(iv). A new major stationary 

source or major 

modification threshold, 

as defined in 40 CFR 

52.21 under the PSD 

requirements 

The existing SIP states that a permit 

amendment application at one of the 

above agricultural facilities only 

goes to public notice at the 

discretion of the ED. That means 

some actions may receive notice 

while others do not. It could also 

mean that some actions receive 

NORI notice and others receive 

NORI and NAPD or no notice at all. 

There is no requirement or criteria 

for consistency between decisions. 

one of the above agricultural 

facilities that exceeds the 

“insignificant” levels indicated must 

go through public notice using both 

NORI and NAPD. 

If the permit amendment application 

at one of the subject agricultural 

facilities has proposed emissions 

below those “insignificant” 

thresholds, there is no requirement 

for notice but the change is 

memorialized through the permit 

amendment. The ED does have 

discretion to require NORI and 

NAPD publication for amendments 

that do not automatically receive 

notice. 

D. Other amendments when the 

executive director determines 

that: 

(i). There is reasonable 

likelihood for emissions 

to impact a nearby 

sensitive receptor; 

(ii). There is reasonable 

likelihood of high 

nuisance potential from 

the operation of the 

facilities; 

(iii). The application involves 

a facility in the lowest 

classification under TWC 

§ 5.753 and 5.754 and 

Chapter 60; or 

(iv). There is reasonable 

likelihood of significant 

public interest in a 

proposed activity. 

116.130(a) – public notice for a 

permit amendment application is at 

the discretion of the ED. 

NORI and NAPD required. 

The new rules provide additional 

clarity for when the executive 

director can require public notice. In 

addition to the other types of 

amendments that must go through 

public notice, the identified criteria 

define when the ED has discretion to 

require public notice for the sources 

discussed above that would 

otherwise be exempt from public 

notice. 

Concrete Batch Plants without 

Enhanced Controls 

Established under Chapter 116, 

Subchapter F but required to use 

Chapter 39 public notice 

This is a SP, but is required to have 

individual notice pursuant to the 

TCAA and Chapter 39. 

NORI and NAPD required for the 

individual SP. 

Note that the following three types of Minor NSR Permit Actions are provided solely for context. Public notice 

requirements for each of these permitting actions is already SIP-approved and outside the scope of the July 2, 2010 

submittal. 

Standard Permits 

Chapter 116, Subchapter F 

Notice required under Chapter 116, 

Subchapter F when the SP is 

created; no required when an 

individual source applies for a SP 

No change to existing SIP; SPs are 

outside the scope of the July 2, 2010 

submittal 
100 

Table IV.E-3: Analysis of Public Notice Requirements in the Existing SIP and the July 2, 2010 Public Notice 

Submittal for the Different Types of Minor NSR Permitting Actions 

Type of Minor NSR Permit or 

Action 

Public Notice Required per SIP Public Notice Required per July 2, 

2010 Public Notice SIP Submittal 

Permits by Rule 

Chapter 106 

Notice required under Chapter 106 

when the permit by rule (PBR) is 

created; not when an individual 

source applies for a PBR 

No change to existing SIP; PBRs are 

outside the scope of the July 2, 2010 

submittal 

Permit Alteration 

116.116(c) 

No public notice required for a 

permit alteration pursuant to 

116.116(c). 

No change to existing SIP; 

alterations are outside the scope of 

the July 2, 2010 submittal 

b. 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 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. 

o 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: 

 50 TPY CO 

 10 TPY SO2

 0.6 TPY lead 

 5 TPY of NOX, VOC, PM, or any other contaminant except carbon 

dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen. 

o 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: 

 250 TPY CO or NOX

 25 TPY of VOC, SO2, PM or any other air contaminant except CO2, H2O, 

N2, CH4, C2H6, H2 and O2. 
101 

 A new major stationary source or major modification threshold as defined 

in section 116.12 of this title 

 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 
102 

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 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 
103 

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. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified 

in EPA’s Proposed LA/LD? 

Section IV.A of EPA’s November 26, 2008, proposed limited approval/limited disapproval of 

the Texas Public Participation program for air quality permits, identified several deficiencies in 

the Texas public participation rules specific to new minor sources and minor modifications. 

Table IV.E-3 below identifies each Minor NSR-specific deficiency and whether the current SIP 

revisions for public participation resolve the deficiency. 

Table IV.E-4: Analysis of the Current Public Participation SIP Submittals with respect to the identified 

deficiencies specific to Minor NSR permitting in the proposed LA/LD 

Minor NSR-Specific Deficiencies Identified in the 

LA/LD 

73 FR 72001, 72007 

November 26, 2008 

Evaluation of Current Public Participation SIP 

Submittals 

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 39.419(e). As 

previously demonstrated in the 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. 

Under section 39.402(a)(3)(b) [Note that during the 

proposed LA/LD the section we cited was section 

39.403(b)(8)], for a Minor NSR permit amendment or 

minor modification under section 116.116(b), (where 

there is a change in the method of control of emissions; a 

Upon withdrawal of the proposed LA/LD, EPA 

determined that this provision does not contravene 

federal requirements. The concern as stated was that a 

permit amendment below the identified thresholds 

would not receive any public notice. EPA recognizes 
104 

Table IV.E-4: Analysis of the Current Public Participation SIP Submittals with respect to the identified 

deficiencies specific to Minor NSR permitting in the proposed LA/LD 

Minor NSR-Specific Deficiencies Identified in the 

LA/LD 

73 FR 72001, 72007 

November 26, 2008 

Evaluation of Current Public Participation SIP 

Submittals 

change in the character of the emissions; or an increase 

in the emission rate of any air contaminant) the existing 

SIP requires the permit holder to apply for and receive 

approval of a permit amendment. However, the revised 

rules do not require an 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. 

that there are permitting mechanisms that have been 

SIP-approved to require no public notice below those 

permitting thresholds – i.e, PBRs and standard permits. 

Further, because states are given broad deference to 

develop and implement their Minor NSR programs, a 

state can provide a tiered public notice program as long 

as adequate demonstration is made to EPA. 

As discussed previously, the demonstrations provided in 

the July 2, 2010 public notice SIP submittal adequately 

justify the creation of the public notice tiers consistent 

with 40 CFR 51.161(a) and (b). 

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 proposed LA/LD, 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 LA/LD, the TCEQ 

expanded the publication of the NAPD to cover Minor 

NSR permit amendment applications. The July 2, 2010 

public notice SIP submittal requires NORI and NAPD 

public notice for amendments above identified emission 

thresholds. Below those thresholds, the TCEQ has 

provided adequate demonstration that public notice is 

not necessary. This approach is consistent with EPA’s 

broad deference to a state’s ability to develop and 

implement a Minor NSR program. 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 amendments at the discretion of the Executive 

Director. 

Also, section 39.403(b)(8), Applicability, of the revised 

rule refers to two State statutory provisions, THSC 

section 382.0518 (preconstruction permit) and section 

382.055 (review and renewal of preconstruction permit). 

For clarity, and for approvability into the SIP, section 

39.403(b) should be revised to refer to the corresponding 

sections of the Texas SIP. 

Upon withdrawal of the proposed rule, we have 

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 LA/LD, 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 § 39.402(a)(3)(B) and (C). In this instance, the 

statute mentioned is THSC § 382.020 concerning 
105 

Table IV.E-4: Analysis of the Current Public Participation SIP Submittals with respect to the identified 

deficiencies specific to Minor NSR permitting in the proposed LA/LD 

Minor NSR-Specific Deficiencies Identified in the 

LA/LD 

73 FR 72001, 72007 

November 26, 2008 

Evaluation of Current Public Participation SIP 

Submittals 

agricultural facilities. 

The analysis in Table IV.E-4 above has verified that the current Texas public participation 

program for Minor NSR permitting actions addresses all deficiencies identified in EPA’s 

proposed LA/LD. 

4. Findings for Public Participation for Minor NSR Permit Applications 

The preceding analysis demonstrates 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. Additionally, the submitted provisions address 

all deficiencies we previously cited in our November 26, 2008 proposed limited approval/limited 

disapproval of Texas public notice requirements. It is recommended that 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. 
106 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

F. Evaluation of the Public Participation Process for Permit Renewal Applications 

There are no federal requirements for a Title I permit (PSD/NNSR/Minor NSR) to be renewed; 

and correspondingly, no public participation requirements specific to Title I permit renewals. 

However, EPA approved the Texas provisions for renewal of Title I permits at 30 TAC Chapter 

116, Subchapter D, 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 under 30 TAC Chapter 116, 

Subchapter D are considered SIP-approved Title I permits and the public participation for said 

permits must be evaluated. 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. 

This section of the TSD will determine whether the submitted Texas public participation 

requirements for permit renewal applications satisfy the federal requirements for public notice. 

This TSD will not review the SIP-approved permit renewal process, only the public notification 

procedures. 

1. Public Participation Process 

The following steps provide a general overview of the Texas public notice process for a permit 

renewal applications. 

1. TCEQ notifies permit holder that permit is scheduled for review. This notification 

occurs no less than 180 days before the permit expires. See 30 TAC 116.310. 

2. Applicant submits the permit renewal application. See 30 TAC 116.315. 

3. 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). 

4. Once the application is administratively complete, the applicant publishes the first 

notice, the Notice of Receipt of Application and Intent to Obtain Permit (NORI). 

See 30 TAC 39.418(e). 

5. TCEQ completes the technical review and makes a preliminary decision within 

180 days from receipt of a completed permit application. See 30 TAC 

116.114(a)(2). 

6. The comment period runs for 15 days after the last publication of the NORI. See 

30 TAC 55.152(a)(2). Generally, permit renewal applications do not publish 

second notice (NAPD). However, if the renewal includes an increase in allowable 

emissions and results in the emission of air contaminants not previously emitted, a 

second notice, NAPD, must be published. See 30 TAC 39.419(e)(1). If the NAPD 

is required, the comment period runs for 30 days from the date of NAPD 

publication. See 55.152(a)(2). 

7. A public meeting is held if the ED determines there is a substantial or significant 

degree of interest or if the meeting is requested by a member of the legislature 

representing the general area of the proposed facility/modification. See 30 TAC 

55.154(c)(1) and (2). If a public meeting is held, the comment period 

automatically extends to the close of the public meeting. See 30 TAC 55.152(b). 
107 

8. The ED prepares a response to all timely, relevant and material, or significant 

public comments received. See 30 TAC 55.156(b)(1). 

9. The ED shall file 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). 

10. 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). 

11. The ED will take final action on the permit application within 180 days of receipt 

of a complete permit renewal application. See 30 TAC 116.114(c)(3). 

2. Analysis of Requirements in 40 CFR 51 Specific to Permit Renewal Applications 

Tables IV.F-1 and F-2 provides a line-item comparison of the requirements of §§ 51.160 and 

51.161 and the comparable Texas Public Participation provisions for permit renewal 

applications. Note that EPA did not submit substantive comments on the public notice provisions 

for permit renewal applications in our February 6, 2010, comment letter. 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

(a) Each plan must set forth legally 

enforceable procedures that enable 

the State or local agency to 

determine whether the construction 

or modification of a facility, 

building, structure or installation, or 

combination of these will result in – 

(1) A violation of applicable 

portions of the control 

strategy; or 

(2) Interference with 

attainment or maintenance 

of a national standard in the 

State in which the proposed 

source (or modification) is 

located or in a neighboring 

State. 

§116.311. Permit Renewal 

Application. 

(a) In order to be granted a permit 

renewal, the permit holder shall 

submit information in support of the 

application which demonstrates that: 

(1) dockside vessel emissions 

associated with the facility will 

comply with all rules and 

regulations of the commission 

and with the intent of the 

TCAA, including protection of 

the health and property of the 

public and minimization of 

emissions to the extent possible, 

consistent with good air 

pollution practices. 

(2) the facility is being operated 

in accordance with all 

requirements and conditions of 

the existing permit, including 

representations in the 

application for permit to 

construct and subsequent 

amendments, and any 

previously granted renewal, 

unless otherwise authorized for 

a qualified facility; 

(3) the facility meets the 

requirements of any applicable 

New Source Performance 

EPA SIP-approved the Permit 

Renewal Application provisions at 

30 TAC 116.311(a)(2) on March 10, 

2006 (see 71 FR 12285). The EPA 

SIP-approved the remainder of 

116.311(a),[ with the exception of 

116.311(a)(6)], 116.311(b) and 

116.311(c) on November 14, 2011 

(see 76 FR 70354). 

Note 30 TAC 116.311 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas permit renewal program is 

SIP-approved with the necessary 

legally enforceable procedures that 

enable the TCEQ to protect the 

NAAQS. 

Section 116.311 requires that the 

permit renewal applicant 

demonstrate that the facility is being 

operated in accordance with all 

requirements and conditions of the 

existing permit (which is protective 

of the NAAQS) and must 

demonstrate, where applicable, 

compliance with NSPS, MACT, 
108 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

Standards as listed under Title 

40 Code of Federal Regulations 

(CFR) Part 60, promulgated by 

the EPA under the authority of 

the FCAA,§111, as amended; 

(4) the facility meets the 

requirements of any applicable 

emission standard for hazardous 

air pollutants as listed under 

Title 40 CFR Part 61, 

promulgated by EPA under the 

authority of the FCAA, §112, as 

amended; and 

(5) the facility meets the 

requirements of any applicable 

maximum achievable control 

technology standard as listed 

under 40 CFR Part 63, 

promulgated by the EPA under 

FCAA, §112 or as listed under 

Chapter 113, Subchapter C of 

this title (relating to National 

Emissions Standards for 

Hazardous Air Pollutants for 

Source Categories (FCAA 

§112, 40 CFR 63)). 

(6) NOT IN SIP. 

(b) In addition to the requirements 

in subsection (a) of this section, if 

the commission determines it 

necessary to avoid a condition of air 

pollution or to ensure compliance 

with otherwise applicable federal or 

state air quality control 

requirements, then: 

(1) the applicant may be 

required to submit additional 

information regarding the 

emissions from the facility and 

their impacts on the 

surrounding area; and 

(2) the commission shall 

impose as a condition for 

renewal only those 

requirements the executive 

director determines to be 

economically reasonable and 

technically practicable 

considering the age of the 

facility and the impact of its 

emissions on the surrounding 

area. 

(c) A compliance history review 

NESHAP requirements. Therefore, 

116.311 satisfies the requirements of 

51.160(a). 
109 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

must be conducted in accordance 

with Chapter 60 of this title (relating 

to Compliance History). 

(b) Such procedures must include 

means by which the State or local 

agency responsible for final decision 

making on an application for 

approval to construct or modify will 

prevent such construction or 

modification if – 

(1) It will result in a violation 

of applicable portions of 

the control strategy; or 

(2) It will interfere with 

attainment or maintenance 

of a national standard 

§116.314. Review Schedule. 

(a) Renewal of permit. The executive 

director shall renew a permit and 

notify the permit holder in writing if 

it is determined that the facility 

meets the requirements of this 

subchapter. 

(b) Denial of renewal. Prior to 

denial, the executive director shall 

provide notice to the permit holder 

with a report which describes the 

basis for denial. 

(1) If denial is based on failure 

to meet the requirements of 

§116.311(a) or (b) of this title 

(relating to Permit Renewal 

Application), the report shall 

establish a schedule for 

compliance with the renewal 

requirements. 

(A) The report shall be 

forwarded to the permit 

holder no later than 180 

days after the commission 

receives a completed 

application. 

(B) The permit shall be 

renewed if the requirements 

are met according to the 

schedule specified in the 

report. The executive 

director shall notify the 

permit holder in writing of 

the permit renewal. 

EPA SIP-approved the Permit 

Renewal Review Schedule 

provisions at 30 TAC 116.314 on 

November 14, 2011 (see 76 FR 

70354). 

Note 30 TAC 116.314 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas permit renewal program is 

SIP-approved with the necessary 

legally enforceable procedures that 

enable the TCEQ to protect the 

NAAQS. 

Section 116.314(a) requires that the 

TCEQ renew the permit if the 

facility meets the requirements of 

the Permit Renewal provisions 

(Chapter 116, Subchapter D). In our 

November 14, 2011 final rule, EPA 

SIP-approved the Permit Renewal 

provisions as consistent with the 

CAA. Therefore, issuance of a 

permit renewal consistent with this 

subchapter will not interfere with 

attainment or maintenance of a 

NAAQS. Section 116.314(b) 

provides the TCEQ the ability to 

deny a permit renewal if the existing 

facility is not in compliance for 

renewal requirements. 

(c) The procedures must provide for 

the submission, by the owner or 

operator of the building, facility, 

structure, or installation to be 

constructed or modified, of such 

information on – 

(1) The nature and amounts of 

emissions to be emitted by 

it or emitted by associated 

mobile sources; 

(2) The location, design, 

construction, and operation 

of such facility, building, 

structure, or installation as 

§116.312. Public Notification and 

Comment Procedures.

As adopted by TACB August 16, 

1993 effective September 13, 1993 

(6-31).

Approved by EPA March 10, 2006 

(71 FR 12285) effective May 9, 

2006.

The Executive Director shall mail a 

written notification to the permit 

holder within 30 days of receipt of a 

completed application for permit 

review and renewal, as determined 

EPA SIP-approved the renewal 

public notice provisions on March 

10, 2006 (see 71 FR 12285), as 

adopted by the TCEQ on August 16, 

1993. The SIP-approved provisions 

cross reference the existing SIPapproved public notice provisions at 

30 TAC Chapter 116.130, 116.131, 

116.132, 116.133, 116.134, 116.136, 

and 116.137. 

Since our SIP-approval of this 1993 

cross-reference language, the TCEQ 

has adopted and submitted revised 
110 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

may be necessary to permit 

the State or local agency to 

make the determination 

referred to in paragraph (a) 

of this section. 

by the Executive Director of the 

Texas Air Control Board (TACB). 

The notification will acknowledge 

receipt of the application and require 

the applicant to provide public notice 

of the application for permit renewal 

according to §116.132 of this title 

(relating to Public Notice Format) 

and §116.133 of this title (relating to 

sign Posting Requirements). All 

requirements pertaining to signs and 

public notification in §116.132 of 

this title and §116.133 of this title 

(relating to Sign Posting 

Requirements). All requirements 

pertaining to signs and public 

notification in §116.132 of this title 

and §116.133 of this title and to 

public comments in §116.136 of this 

title (relating to Public Comment 

Procedures), which apply to 

proposed construction, proposed 

facilities, and permit applications 

shall apply likewise to proposed 

renewals, existing facilities, and 

renewal applications. The sign 

heading required under 

§116.133(a)(2) of this title shall read 

"PROPOSED RENEWAL OF AIR 

QUALITY PERMIT." When 

newspaper notices are published in 

accordance with §116.132 of this 

title, the applicant for permit renewal 

shall furnish a copy of such notices 

and dates of publication to the TACB 

in Austin and all local air pollution 

control agencies with jurisdiction in 

the county in which the facility is 

located. Along with such notices 

furnished to the TACB, the applicant 

shall certify that the signs required 

by §116.133 of this title have been 

posted in accordance with the 

provisions of that paragraph. 

public notice procedures for permit 

renewals which cross-reference the 

public notice provisions at 30 TAC 

Chapter 39 that were adopted and 

submitted as a SIP revision in the 

October 25, 1999 submittal. 

The October 25, 1999 submittal of 

116.312 states that the applicant will 

use the Chapter 39 procedures to 

public notice the renewal 

application. 

Section 39.411(e) provides the 

requirements for NORI notice text, 

which includes the nature and 

amount of contaminants and the 

information about the facility; thus 

satisfying the requirements at 40 

CFR 51.160(c). 
111 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

§116.312. Public Notification and 

Comment Procedures. 

Adopted September 2, 1999 

Submitted as SIP October 25, 1999

The executive director shall mail a 

written notice to the permit holder 

within 30 days after receipt of a 

complete application. The notice will 

confirm receipt of the application 

and shall require the applicant to 

provide public notice of the 

application for permit renewal in 

accordance with Chapter 39 of this 

title (relating to Public Notice). 

(d)The procedures must provide that 

approval of any construction or 

modification must not affect the 

responsibility to the owner or 

operator to comply with applicable 

portions of the control strategy. 

§116.115. General and Special 

Conditions. 

(b) General conditions. Holders of 

permits, special permits, standard 

permits, and special exemptions shall 

comply with the following: 

(2) the following general conditions 

if the permit or amendment is issued 

or amended on or after August 16, 

1994, regardless of whether they are 

specifically stated within the permit 

document. 

(H) Compliance with rules. 

(i) Acceptance of a permit by an 

applicant constitutes an 

acknowledgment and agreement that 

the permit holder will comply with 

all rules, regulations, and orders of 

the commission issued in conformity 

with the TCAA and the conditions 

precedent to the granting of the 

permit. 

(ii) If more than one state or federal 

rule or regulation or permit condition 

are applicable, the most stringent 

limit or condition shall govern and 

be the standard by which compliance 

shall be demonstrated. 

(iii) Acceptance includes consent to 

the entrance of commission 

employees and agents into the 

permitted premises at reasonable 

times to investigate conditions 

relating to the emission or 

concentration of air contaminants, 

including compliance with the 

permit. 

EPA SIP-approved the general and 

special conditions for Chapter 116 

permitting on April 2, 2010, as 

adopted by the TCEQ on August 20, 

2003 (see 75 FR 16671). 

Note that 30 TAC 116.115 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NSR program is SIPapproved with the necessary legally 

procedures providing that approval 

of any construction or modification 

does not affect the owner/operator’s 

responsibility to comply with 

applicable portions of the control 

strategy. 

Renewing a Chapter 116 permit 

under the SIP-approved TX NSR 

program will not change the 

applicability of 116.115. Therefore, 

116.115 continues to satisfy the 

requirements of 51.160(d). 
112 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

(e) The procedures must identify 

types and sizes of facilities, 

buildings, structures, or installations 

which will be subject to review 

under this section. The plan must 

discuss the basis for determining 

which facilities will be subject to 

review. 

§116.315. Permit Renewal 

Submittal. 

(a) With the exception of subsections 

(b) and (c) of this section, an 

application for renewal must be 

submitted at least six months, but no 

earlier than 18 months, prior to 

expiration of the permit or the permit 

will expire. 

(b) With executive director approval, 

the application may be submitted 

before or after the time period 

specified in subsection (a) of this 

section. 

(c) A renewal application with 

appropriate fee may be submitted at 

the same time as an amendment 

application to modify an existing 

facility as long as it is submitted not 

more than three years before the 

permit's expiration date and the 

amendment is subject to public 

notice requirements under Texas 

Health and Safety Code, §382.056, 

Notice of Intent to Obtain Permit or 

Permit Review; Hearing. 

(d) Any permit issued: 

(1) before December 1, 1991, is 

subject for review 15 years after 

the date of issuance; 

(2) on or after December 1, 

1991, is subject for review 

every ten years after the date of 

issuance; or 

(3) at non-federal sources on or 

after December 1, 1991, may, 

for cause, contain a provision 

requiring renewal between five 

and ten years. 

On March 11, 2010, EPA SIPapproved the permit renewal 

submittal requirements at 30 TAC 

116.315 as adopted by the TCEQ on 

May 7, 2008. See 75 FR 11464. 

Note that 30 TAC 116.315 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NSR program is SIPapproved with the necessary 

provisions to identify when a permit 

renewal is required. 

Therefore, 116.315 continues to 

satisfy the requirements of 

51.160(e). 

(f)The procedures must discuss the 

air quality data and the dispersion or 

other air quality modeling used to 

meet the requirements of this 

subpart. 

(1) All applications of air 

quality modeling involved in 

this subpart shall be based on 

the applicable models, data 

bases, and other requirements 

specified in appendix W of this 

part (Guideline on Air Quality 

Models). 

(2) Where an air quality model 

§116.311. Permit Renewal 

Application. 

Paragraph 116.311(a)(2) is as 

adopted by TNRCC April 6, 1994 

effective May 4, 1994 and approved 

by EPA March 10, 2006 (71 FR 

12285) effective May 9, 2006 

Rest of section 116.311 is as adopted 

by TNRCC August 21, 2002 

effective September 12, 2002 

Approved by EPA November 14, 

2011 (76 FR 70354) effective 

EPA SIP-approved the Permit 

Renewal Application provisions for 

the Texas NSR permit program on 

March 10, 2006 and November 14, 

2011. 

Note 30 TAC 116.311 was not 

revised or resubmitted with the 

Texas requirements for public 

participation for air quality permit 

applications. This language is 

provided to demonstrate that the 

Texas NSR program is SIPapproved with the ability to 
113 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

specified in appendix W of this 

part is inappropriate, the model 

may be modified or another 

model substituted. Such a 

modification or substitution of a 

model may be made on a caseby-case basis or, where 

appropriate, on a generic basis 

for a specific State program. 

Written approval of the 

Administrator must be obtained 

for any modification or 

substitution. In addition, use of 

a modified or substituted model 

must be subject to notice and 

opportunity for public comment 

under procedures set forth in § 

51.102. 

December 14, 2011 

Not in SIP: Paragraph 116.311(a)(6)

(a) In order to be granted a permit 

renewal, the permit holder shall 

submit information in support of the 

application which demonstrates that: 

(1) dockside vessel emissions 

associated with the facility will 

comply with all rules and 

regulations of the commission 

and with the intent of the 

TCAA, including protection of 

the health and property of the 

public and minimization of 

emissions to the extent possible, 

consistent with good air 

pollution practices.

(2) The facility is being 

operated in accordance with all 

requirements and conditions of 

the existing permit, including 

representations in the 

application for permit to 

construct and subsequent 

amendments, and any 

previously granted renewal.

(3) the facility meets the 

requirements of any applicable 

New Source Performance 

Standards as listed under Title 

40 Code of Federal Regulations 

(CFR) Part 60, promulgated by 

the EPA under the authority of 

the FCAA, §111, as amended;

(4) the facility meets the 

requirements of any applicable 

emission standard for hazardous 

air pollutants as listed under 

Title 40 CFR Part 61, 

promulgated by EPA under the 

authority of the FCAA, §112, as 

amended; and

(5) the facility meets the 

requirements of any applicable 

maximum achievable control 

technology standard as listed 

under 40 CFR Part 63, 

promulgated by the EPA under 

FCAA, §1l2 or as listed under 

Chapter 113, Subchapter C of 

necessary information to show that 

the air quality is protected. The 

permit holder is required to submit 

data demonstrating compliance with 

applicable standards. Further, the 

TCEQ is also authorized at 

116.311(b) to require the submission 

of additional information regarding 

the source and impact on 

surrounding areas if deemed 

necessary. 
114 

Table IV.F-1: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications with 

the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Permit Renewal Provisions Analysis 

this title (relating to National 

Emissions Standards for 

Hazardous Air Pollutants for 

Source Categories (FCAA 

§112, 40 CFR 63)).

(6) NOT IN SIP 

(b) In addition to the requirements 

in subsection (a) of this section, if 

the commission determines it 

necessary to avoid a condition of air 

pollution or to ensure compliance 

with otherwise applicable federal or 

state air quality control 

requirements, then: 

(1) the applicant may be 

required to submit additional 

information regarding the 

emissions from the facility and 

their impacts on the 

surrounding area; and

(2) the commission shall 

impose as a condition for 

renewal only those 

requirements the executive 

director determines to be 

economically reasonable and 

technically practicable 

considering the age of the 

facility and the impact of its 

emissions on the surrounding 

area.

 

(c) A compliance history review 

must be conducted in accordance 

with Chapter 60 of this title (relating 

to Compliance History). 

Table IV.F-1 above demonstrates that the public participation requirements specific to permit 

renewal applications satisfy the federal requirements found at 40 CFR 51.160. 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(a) The legally enforceable 

procedures in §51.160 must also 

require the State or local agency to 

provide opportunity for public 

comment on information submitted 

by owners and operators. The public 

information must include the 

§116.312. Public Notification and 

Comment Procedures. 

Adopted September 2, 1999 

Submitted as SIP October 25, 1999

The executive director shall mail a 

written notice to the permit holder 

There are no federal requirements 

for Title I permit renewals or public 

notice of Title I permit renewals. 

Therefore, any public notice 

requirements for permit renewal 

applications adopted by the TCEQ 

and approved into the Texas SIP by 
115 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

agency's analysis of the effect of 

construction or modification on 

ambient air quality, including the 

agency's proposed approval or 

disapproval. 

within 30 days after receipt of a 

complete application. The notice will 

confirm receipt of the application 

and shall require the applicant to 

provide public notice of the 

application for permit renewal in 

accordance with Chapter 39 of this 

title (relating to Public Notice).

§ 39.405. General Notice 

Provisions. 

(g) Copy of application. The 

applicant shall make a copy of the 

application available for review and 

copying at a public place in the 

county in which the facility is 

located or proposed to be located. 

... 

The copy of the application must 

comply with the following. 

(a) A copy of the 

administratively complete 

application must be 

available for review and 

copying beginning on the 

first day of newspaper 

publication of NORI and 

remain available for the 

publications’ designated 

comment period. 

(b) A copy of the complete 

application (including any 

subsequent revisions to the 

application) and ED’s 

preliminary decision must 

be available for review and 

copying beginning on the 

first day of newspaper 

publication required by this 

section and remain available 

until the commission has 

taken action on the 

application or the 

commission refers issues to 

SOAH. 

§ 55.152. Public Comment Period 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

EPA are more stringent than federal 

requirements. 

Section 116.312 as submitted on 

October 25, 1999 as a SIP revision 

requires public notification of permit 

renewal applications to go through 

the Chapter 39 process. 

Section 39.405 requires that the 

application, subsequent revisions to 

the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 

Section 55.152 provides at least a 

15-day comment period following 

the last publication of the NORI for 

permit renewal applications, unless 

a NAPD is required and then the 

comment period is 30 days after the 

last publication of the NAPD. 

Section 39.405 satisfies the 

requirements at § 51.161(a) for 

which materials are made available 

for public comment for permit 

renewal applications. 

Section 55.152 ensures that the 

public is provided the opportunity to 

comment on permit renewal 

applications consistent with § 

51.161(a). 

30 TAC Sections 39.405, 55.152, 

and 116.312 satisfy the requirements 

of 40 CFR 51.161(a) with respect to 

permit renewal applications. 
116 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, or 30 

days after the NAPD if a 

second notice is required, for an 

air quality permit application 

not otherwise specified in this 

section. 

 (2) 15 days after the last 

publication of Notice of Receipt 

of Application and Intent to 

Obtain Permit under §39.418 of 

this title, or 30 days after Notice 

of Application and Preliminary 

Decision if a second notice is 

required under §39.419 of this 

title, for a permit renewal under 

Chapter 116 of this title 

(relating to Control of Air 

Pollution by Permits for New 

Construction or Modification) 

or a concrete batch plant 

without enhanced controls 

authorized by a air quality 

standard permit adopted by the 

commission under Chapter 116, 

Subchapter F of this title 

(relating to Standard Permits), 

unless the plant is to be 

temporarily located in or 

contiguous to the right-of-way 

of a public works project 

(b) For purposes of paragraph (a) of 

this section, opportunity for public 

comment shall include, as a 

minimum— 

(1) Availability for public 

inspection in at least one 

location in the area affected of 

the information submitted by 

the owner or operator and of the 

State or local agency's analysis 

of the effect on air quality; 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or proposed 

location. 

 39.405(g)(1) requires the 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

Section 39.405 satisfies the 

requirements at § 51.161(b)(1) for 

public inspection in at least one 

location in the affected area of the 

information submitted by the 

owner/operator and the ED’s 

preliminary decision. In the event a 

NAPD is required, the air quality 

analysis will also be made available 

for review. The NAPD is not 

required for all permit renewals, so 

the air quality analysis is not 

required to be made available for all 

permit renewals. However, there are 

no federal requirements for the 

renewal of Title I permits. When 
117 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

applicant to make available for 

review the air quality analysis for 

applications submitted after the 

effective date of the rule, June 24, 

2010, if NAPD is required 

EPA granted SIP-approval of the 

TX Chapter 116 permit renewal 

program, we did so as a requirement 

that was more stringent than federal 

requirements. Accordingly, there are 

no federal requirements for public 

participation of a permit renewal. 

Section 39.405(g) satisfies 40 CFR 

51.161(b)(1) with respect to permit 

renewal applications. 

(2) A 30-day period for 

submittal of public comment; 

and 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

 (2) 15 days after the last 

publication of Notice of Receipt 

of Application and Intent to 

Obtain Permit under §39.418 of 

this title, or 30 days after Notice 

of Application and Preliminary 

Decision if a second notice is 

required under §39.419 of this 

title, for a permit renewal under 

Chapter 116 of this title 

(relating to Control of Air 

Pollution by Permits for New 

Construction or Modification) 

or a concrete batch plant 

without enhanced controls 

authorized by a air quality 

standard permit adopted by the 

commission under Chapter 116, 

Subchapter F of this title 

(relating to Standard Permits), 

unless the plant is to be 

temporarily located in or 

contiguous to the right-of-way 

of a public works project 

Section 55.152(a)(2) provides for a 

15-day comment period on permit 

renewal applications. 

There are no federal requirements 

for the renewal of Title I permits, 

and consequently no federal 

requirements for the public notice of 

Title I permit renewals. When EPA 

granted SIP-approval of the TX 

Chapter 116 permit renewal 

program, we did so as a requirement 

that was more stringent than federal 

requirements. Accordingly, there are 

no federal requirements for public 

participation of a permit renewal. 

Providing 15 day notice is more 

stringent than federal requirements, 

provides the public opportunity to 

review the documentation. And, if a 

public hearing is requested, the 

comment period will extend to the 

close of the public meeting based on 

30 TAC 55.152 and 55.154 

provisions. 

 

(3) A notice by prominent 

advertisement in the area 

affected of the location of the 

source information and analysis 

specified in paragraph (b)(1) of 

this section. 

§ 39.418 Notice of Receipt of 

Application and Intent to Obtain a 

Permit 

(c) For air quality permit 

applications, except 

applications for plant-wide 

applicability permits under 

Chapter 116, Subchapter C of 

Permit renewal applications are 

generally only subject to the 

requirements for NORI publication, 

and therefore would be subject to 

requirements at 39.603(a) and (c). 

Subchapter K provides requirements 

for Mailed Notice, Newspaper 
118 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

this title, the applicant shall 

provide notice as specified in 

Subchapter K of this chapter. 

Specifically publication in the 

newspaper must follow the 

requirements under § 39.603 of 

this title, sign posting must 

follow the requirements under § 

39.604 of this title, and the 

chief clerk shall mail notice 

according to § 39.602 of this 

title. The applicant shall also 

follow the requirements as 

applicable under § 39.405(h) of 

this title. 

§ 39.603 Newspaper Notice 

(a) Notice of Receipt of 

Application and Intent to 

Obtain Permit under § 39.418 

of this title is required to be 

published no later than 30 days 

after the executive director 

declares an application 

administratively complete. This 

notice must contain text as 

required by § 39.411(e). 

... 

(c) General newspaper notice. 

Unless otherwise specified, 

when this chapter requires 

published notice of an air 

quality permit application, the 

applicant shall publish notice in 

a newspaper of general 

circulation in the municipality 

in which the facility is located 

or is proposed to be located or 

in the municipality nearest to 

the location or proposed 

location. 

publication, and sign posting. 

Newspaper notice is the traditional 

vehicle used by EPA to prominently 

advertise a proposed source. Section 

39.603(c) requires publication in a 

newspaper of general circulation in 

the municipality in which the 

facility is located or proposed to be 

located, or in the municipality 

nearest the location or proposed 

location. Section 39.603(c) further 

requires that within the newspaper, 

the applicant must provide 2 

separate notifications with the 

required material. Section 39.603 

satisfies the prominent 

advertisement requirements of 

51.161(b)(3). 

(c) Where the 30-day comment 

period required in paragraph (b) of 

this section would conflict with 

existing requirements for acting on 

requests for permission to construct 

or modify, the State may submit for 

approval a comment period which is 

consistent with such existing 

requirements. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

 (2) 15 days after the last 

publication of the NORI, or 

30 days after NAPD if a 

Permit renewal applications are 

afforded a 15 day public notice after 

the last day of the NORI 

publication. In the event a second 

notice (NAPD) is required then the 

comment period will be 30 days 

after the publication of the NAPD. 

40 CFR 51.161(c) is not applicable 

to public notice for Title I permit 

renewal applications. 
119 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

second notice is required for 

a permit renewal under 

Chapter 116 or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted 

under Chapter 116, 

subchapter F, unless the 

plant is to be temporarily 

located in or contiguous to 

the right-of-way of a public 

works project; 

 

(d) A copy of the notice required by 

paragraph (b) of this section must 

also be sent to the Administrator 

through the appropriate Regional 

Office, and to all other State and 

local air pollution control agencies 

having jurisdiction in the region in 

which such new or modified 

installation will be located. The 

notice also must be sent to any other 

agency in the region having 

responsibility for implementing the 

procedures required under this 

subpart. For lead, a copy of the 

notice is required for all point 

sources. The definition of point for 

lead is given in §51.100(k)(2). 

39.605. Notice to Affected 

Agencies. 

In addition to the requirements in § 

39.405(f)(3) of this title: 

(1) When newspaper notices are 

published under this section, 

the applicant shall furnish a 

copy of the notices and 

affidavit to: 

(A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county in 

which the construction is to 

occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may be 

adversely affected by the 

emissions from the new or 

modified facility; and 

(D).If notice is for an 

application filed on or after 

the effective date of this 

section for a PSD or NNSR 

permit, 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. 

(2) When sign posting is required 

under this section, the applicant 

For air quality permits, Section 

39.605 requires that copies of 

newspaper notices and sign posting 

verification be sent to the R6 RA, 

state and location air pollution 

control agencies, and Federal or 

State Land Managers or Indian 

Governing Body. 

Section 39.605 satisfies 40 CFR 

51.161(d) for permit renewal 

applications. 
120 

Table IV.F-2: Analysis of the Texas Public Participation Requirements for Permit Renewal Applications 

with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

shall furnish a copy of sign 

posting verification, within 10 

business days after the end of 

the comment period associated 

with the notice under § 39.418 

to: 

(A). The chief clerk; 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

Table IV.F-2 above demonstrates that the public participation requirements specific to permit 

renewal applications satisfy the federal requirements found at 40 CFR 51.161. 

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, is the legally responsible party for satisfying the public notice requirements 

for permit renewal 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. It is recommended that EPA publish a proposed approval finding 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 section-by-section analysis provided in Tables IV.F-1 and F-2 of the federal public 

participation requirements with the corresponding Texas requirements for public participation of 

permit renewal applications has shown that the Texas program satisfies all federal requirements 

for public notice for renewal applications. It is recommended that EPA publish a proposed 

approval of the Texas public participation program for permit renewal applications. 

3. Does the Current Public Participation SIP Submittal Satisfy the Concerns Identified 

in EPA’s Proposed LA/LD? 

EPA’s November 26, 2008, proposed limited approval/limited disapproval of the Texas Public 

Participation program for air quality permits did not identify any concerns specific to public 

notice of permit renewal applications. 

 
121 

4. Findings for Public Participation for Permit Renewal Applications 

The analysis presented above demonstrates that the public notice process 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, it is recommended that 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.
122 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

G. Evaluation of Revisions to Chapter 39 

1. What Sections are before us for review? 

On July 2, 2010, the TCEQ withdrew from our consideration the sections of 30 TAC Chapter 39 

that were submitted on October 25, 1999, July 31, 2002 and March 9, 2006. The exception to 

that is section 39.411(a) submitted in 1999 and section 39.418(b)(4) adopted in 1999 and that is 

now listed as 39.418(b)(3). Sections 39.411(a) and 39.418(b)(3) remain in front of us for review. 

Also on July 2, 2010, the TCEQ adopted and submitted the following sections of 30 TAC 

Chapter 39 as revisions to the Texas SIP for public participation: 

 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 

 The TCEQ also submitted 30 TAC 39.407 as part of the July 2, 2010 public participation 

package. 

2. There are no sections of 30 TAC Chapter 39 currently approved into the Texas SIP. 

Therefore, the following table will identify the exact provisions submitted for SIPapproval on July 2, 2010. As discussed above there are two provisions, sections 39.411(a) 

and 39.418(b)(3), that were originally adopted and submitted in 1999. These sections are 

identified below with the correct dates. All other entries are from the June 2, 2010 

adoption and corresponding July 2, 2010 submittal package. 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

§ 39.402. Applicability to Air Quality Permits and Permit Amendments

(a) As specified in those subchapters, Subchapters H and K of this 

chapter (relating to Applicability and General Provisions; and 

Public Notice of Air Quality Permit Applications, respectively) 

apply to applications for:

Section 39.402(a) is approvable. This 

section establishes applicability of the 

Chapter 39 public participation 

requirements. 
123 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

1) new air quality permits under Chapter 116, Subchapter B of 

this title (relating to New Source Review Permits);

Section 39.402(a)(1) is approvable. This 

section establishes applicability of the 

public participation requirements for 

applications for new minor sources or 

minor modifications. 

2) a new major source or a major modification for facilities 

subject to the requirements of Chapter 116, Subchapter B, 

Division 5 or 6 of this title (relating to New Source Review 

Permits, Nonattainrnent Review Permits and Prevention of 

Significant Deterioration Permits);

Section 39.402(a)(2) is approvable. This 

section establishes applicability of the 

public participation requirements for 

PSD and NNSR subject sources and 

modifications. 

3) air quality permit amendments under Chapter 116,Subchapter 

B of this title when the amendment involves:

Section 39.402(a)(3)(A) – (D) is 

approvable. This section establishes 

applicability of the public participation 

requirements for applications for permit 

amendments. This section provides clear 

and replicable criteria for which 

amendments will receive public notice. 

As explained previously in section IV.E 

of this TSD, this is a strengthening of the 

existing SIP language, which only 

requires public notice for amendment 

applications at the discretion of the 

TCEQ Executive Director. 

(A). a change in character of emissions or release of an air 

contaminant not previously authorized under the permit;

(B). a facility not affected by THSC, §382.020, where the total 

emissions increase from all facilities to be authorized 

under the amended permit exceeds public notice de 

minimis levels by being greater than any of the following 

levels:

(i). 50 tpy of carbon monoxide (CO);

(ii). ten tpy of sulfur dioxide (SO,);

(iii). 0.6 tons per year (tpy) of lead; or 

(iv). five tpy of nitrogen oxides (NOx), volatile 

organic compounds (VOC), particulate matter 

(PM), or any other air contaminant except carbon 

dioxide, water, nitrogen, methane, ethane,

hydrogen, and oxygen;

(C). a facility affected by THSC, §382.020, where the total 

emissions increase from all facilities to be authorized 

under the amended permit exceeds significant levels for 

public notice by being greater than any of the following 

levels:

(i). 250 tpy of CO or NOx;

(ii). 25 tpy of VOC, SO, PM, or any other air 

contaminant except carbon dioxide, water, 

nitrogen, methane, ethane, hydrogen, and oxygen;

(iii). a new major stationary source or major 

modification threshold as defined in §116.12 of 

this title (relating to Nonattainment and 

Prevention of Significant Deterioration Review 

Definitions); or

(iv). a new major stationary source or major 

modification threshold, as defined in 40 Code of 

Federal Regulations (CFR), §52.21, under the 

new source review requirements of the Federal 

Clean Air Act (FCAA), Part C (Prevention of 

Significant Deterioration); or

(D). other amendments when the executive director determines that:

(i). there is a reasonable likelihood for emissions to 

impact a nearby sensitive receptor;
124 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(ii). there is a reasonable likelihood of high nuisance 

potential from the operation of the facilities;

(iii). the application involves a facility in the lowest 

classification under Texas Water Code, §5.753 and 

§5.754 and the commission's rules in Chapter 60 of 

this title (relating to Compliance History); or

(iv). there is a reasonable likelihood of significant public 

interest in a proposed activity;

4) new air quality flexible permits under Chapter 116, Subchapter G of 

this title (relating to Flexible Permits);

EPA is severing and taking no action on 

sections 39.402(a)(4) and (a)(5) as 

submitted July 2, 2010. 

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. 

5) air quality permit amendments to flexible permits under Chapter 

116, Subchapter G of this title when the amendment involves:

(A). change in character of emissions or release of an air 

contaminant not previously authorized under the permit;

(B). a facility not affected by THSC, §382.020, where the total 

emissions increase from all facilities to be authorized under the 

amended permit exceeds public notice de minimis levels by 

being greater than any of the following levels:

(i). 50 tpy of carbon monoxide (CO);

(ii). ten tpy of sulfur dioxide (SO,);

(iii). 0.6 tons per year (tpy) of lead; or

(iv). five tpy of nitrogen oxides (N0x), volatile organic 

compounds (VOC), particulate matter (PM), or any 

other air contaminant except carbon dioxide, water, 

nitrogen, methane, ethane, hydrogen, and oxygen;

(C). a facility affected by THSC, §382.020, where the total 

emissions increase from all facilities to be authorized under 

the amended permit exceeds significant levels for public 

notice by being greater than any of the following levels:

(i). 250 tpy of CO or NOx;

(ii). 25 tpy of VOC, SO, PM, or any other air 

contaminant except carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and oxygen;

(iii). a new major stationary source or major modification 

threshold as defined in §116.12 of this title; or 

(iv). a new major stationary source or major modification 

threshold, as defined in 40 Code of Federal 

Regulations (CFR), §52.21, under the new source 

review requirements of the Federal Clean Air Act 

(FCAA), Part C (Prevention of Significant 

Deterioration); or

(D). other amendments when the executive director determines 

that:

(i). there is a reasonable likelihood for emissions to 

impact a nearby sensitive receptor;

(ii). there is a reasonable likelihood of high nuisance 

potential from the operation of the facilities;

(iii). the application involves a facility in the lowest 

classification under Texas Water Code, §5.753 and 

§5.754 and the commission's rules in Chapter 60 of 

this title; or 
125 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(iv). there is a reasonable likelihood of significant public 

interest in a proposed activity;

6) renewal of air quality permits under Chapter 116, Subchapter D of 

this title (relating to Permit Renewals);

Section 39.402(a)(6) is approvable and 

establishes applicability of the public 

participation requirements for air quality 

permit renewal applications. 

8) applications for the establishment or renewal of, or an increase in, a 

plant-wide applicability limit permit under Chapter 116, Subchapter 

C of this title (relating to Plant-Wide Applicability Limits).

Section 39.402(a)(8) is approvable and 

establishes applicability of the public 

participation requirements for PAL 

applications. 

10) applications for permits, registrations, licenses, or other type of 

authorization required to construct, operate, or authorize a 

component of the FutureGen project as defined in §91.30 of this 

title (relating to Definitions), submitted on or before January 1,

2018, are subject to the public notice requirements of Chapter 91 of 

this title (relating to Alternative Public Notice and Public 

Participation Requirements for Specific Designated Facilities) in 

addition to the requirements of this chapter, unless otherwise 

specified in Chapter 91 of this title.

EPA is severing and taking no action on 

section 39.402(a)(10) as submitted July 

2, 2010. 

Section 39.402(a)(10) establishes 

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 

FutureGen. EPA finds it appropriate to 

sever and take no action on the Future 

Gen public notice provisions because we 

have not yet acted on the underlying 

Future Gen permit rules. We will review 

and analyze the public notice provisions 

for Future Gen when we take action on 

the permit program. 

11) concrete batch plants without enhanced controls authorized by an 

air quality standard permit adopted by the commission under 

Chapter 116, Subchapter F of this title (relating to Standard 

Permits), unless the plant is to be temporarily located in or 

contiguous to the right-of-way of a public works project; and

Section 39.402(a)(11) is approvable. 

This section establishes applicability of 

the public participation provisions for air 

quality permits for concrete batch plants 

without enhanced controls. 

12) change of location or relocation of a portable facility, consistent 

with the requirements of §116.178 of this title (relating to 

Relocations and Changes of Location of Portable Facilities).

EPA is severing and taking no action on 

section 39.402(a)(12). 

Section 39.402(a)(12) establishes public 

participation provisions pertaining to 

change of location of a portable facility, 

consistent with the requirements of 30 

TAC § 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 § 

116.178. 

§ 39.405. General Notice Provisions
126 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(f) Published notice. When this chapter requires notice to be published 

under this subsection:

3) air quality permit applications required by Subchapters H and 

K of this chapter (relating to Applicability and General 

Provisions and Public Notice of Air Quality Permit 

Applications, respectively) to publish notice shall comply with 

the requirements of §39.603 of this title (relating to Newspaper 

Notice).

Section 39.405(f)(3) establishes that 

public notice must comply with the 

requirements for newspaper notice at 

section 39.603. 

Section 39.405(f)(3) is necessary to meet 

the prominent advertisement 

requirements in 40 CFR 51.160, 51.161 

and 51.166. 

Section 39.405(f)(3) is approvable. 

(g) Copy of application. The applicant shall make a copy of the 

application available for review and copying at a public place in the 

county in which the facility is located or proposed to be located. If 

the application is submitted with confidential information marked 

as confidential by the applicant, the applicant shall indicate in the 

public file that there is additional information in a confidential file. 

The copy of the application must comply with the following.

1) A copy of the administratively complete application must be 

available for review and copying beginning on the first day of 

newspaper publication of Notice of Receipt of Application and 

Intent to Obtain Permit and remain available for the 

publications' designated comment period.

2) A copy of the complete application (including any subsequent 

revisions to the application) and executive director's 

preliminary decision must be available for review and copying 

beginning on the first day of newspaper publication required by 

this section and remain available until the commission has 

taken action on the application or the commission refers issues 

to State Office of Administrative Hearings; and

3) where applicable, for air quality permit applications filed on or 

after the effective date of this section, the applicant shall also 

make available the executive director's draft permit, 

preliminary determination summary and air quality analysis for 

review and copying beginning on the first day of newspaper 

publication required by §39.419 of this title (relating to Notice 

of Application and Preliminary Decision) and remain available 

until the commission has taken action on the application or the 

commission refers issues to State Office of Administrative 

Hearings.

Section 39.405(g)(1)-(3) satisfies the 

requirements of 40 CFR 51.160, 51.161, 

and 51.166 for the type of information 

the applicant must provide and how the 

information must be made available to 

the public. 

Sections 39.405(g)(1)-(3) are 

approvable. 
127 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(h) Alternative language newspaper notice.

1) Applicability. The following are subject to this subsection:

(A). Air quality permit applications that are declared 

administratively complete by the executive director on or 

after September 1, 1999, are subject to this subsection; and

(B). Permit applications other than air quality permit 

applications that are required to comply with §39.418 or 

§39.419 of this title (relating to Notice of Receipt of 

Application and Intent to Obtain Permit; and Notice of 

Application and Preliminary Decision) that are filed on or 

after November 30, 2005 are subject to the requirements of 

this subsection.

2) This subsection applies whenever notice is required to be

published under §39.418 or §39.419 of this title, and either the 

elementary or middle school nearest to the facility or proposed 

facility is required to provide a bilingual education program as 

required by Texas Education Code, Chapter 29, Subchapter B, 

and 19 TAC §89.1205(a) (relating to Required Bilingual 

Education and English as a Second Language Programs) and 

one of the following conditions is met:

(A).students are enrolled in a program at that school;

(B). students from that school attend a bilingual education

program at another location; or

(C). the school that otherwise would be required to provide a 

bilingual education program has been granted an exception 

from the requirements to provide the program as provided 

for in 19 TAC §89.1207(a) (relating to Exceptions and 

Waivers).

3) Elementary or middle schools that offer English as a second 

language under 19 TAC §89.1205(e), and are not otherwise 

affected by 19 TAC §89.1205(a), will not trigger the 

requirements of this subsection.

4) The notice must be published in a newspaper or publication 

that is published primarily in the alternative languages in which 

the bilingual education program is or would have been taught, 

and the notice must be in those languages.

Continued in next row of table... 

There are no federal requirements for 

alternative language newspaper notice 

for public notice of air permit 

applications. However, EPA previously 

approved alternative language 

newspaper notice provisions in section 

116.132(c). The provisions at 39.405(h) 

are substantively identical to the existing 

SIP requirements and apply to permit 

applications deemed administratively 

complete after September 1, 1999. 

Therefore, there is no backsliding of 

sign-posting requirements. 

Section 39.405(h) is approvable as a SIP 

strengthening measure that provides 

additional public notice beyond federal 

requirements. 

EPA is severing from our action section 

39.405(h)(1)(B) because it applies to 

permit applications other than air quality 

permit applications, which are beyond 

the scope of the Texas SIP. 
128 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(h) Alternative language newspaper notice. [CONTINUED]

6) For notice required to be published in a newspaper or 

publication under §39.603 of this title, relating to air quality 

permits, the newspaper or publication must be of general 

circulation in the municipality or county in which the facility is 

located or is proposed to be located, and the notice must be 

published as follows.

(A). One notice must be published in the public notice section 

of the newspaper and must comply with the applicable 

portions of §39.41l of this title (relating to Text of Public 

Notice).

(B). Another notice with a total size of at least six column 

inches, with a vertical dimension of at least three inches 

and a horizontal dimension of at least two column widths, 

or a size of at least 12 square inches, must be published in 

a prominent location elsewhere in the same issue of the

newspaper. This notice must contain the following 

information:

(i). permit application number;

(ii). company name;

(iii). type of facility;

(iv). description of the location of the facility; and

(v). a note that additional information is in the public 

notice section of the same issue.

8) The requirements of this subsection are waived for each 

language in which no publication exists, or if the publisher’s of 

all alternative language publications refuse to publish the 

notice. If the alternative language publication is published less 

frequently than once a month, this notice requirement may be 

waived by the executive director on a case-by-case basis.

9) Notice under this subsection will only be required to be

published within the United States.

10) Each alternative language publication must follow the 

requirements of this chapter that are consistent with this 

subsection.

11) If a waiver is received under this subsection on an air quality 

permit application, the applicant shall complete a verification 

and submit it as required under §39.605(3) of this title (relating 

to Notice to Affected Agencies). If a waiver is received under 

this subsection on a waste or water quality application, the 

applicant shall complete a verification and submit it to the chief 

clerk and the executive director.

There are no federal requirements for 

alternative language newspaper notice 

for public notice of air permit 

applications. However, EPA previously 

approved alternative language 

newspaper notice provisions in section 

116.132(c). The provisions at 39.405(h) 

are substantively identical to the existing 

SIP requirements and apply to permit 

applications deemed administratively 

complete after September 1, 1999. 

Therefore, there is no backsliding of 

sign-posting requirements. 

Section 39.405(h) is approvable as a SIP 

strengthening measure that provides 

additional public notice beyond federal 

requirements. 

EPA is severing from our action section 

39.405(h)(1)(B) because it applies to 

permit applications other than air quality 

permit applications, which are beyond 

the scope of the Texas SIP. 
129 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(i) Failure to publish notice of air quality permit applications. If the 

chief clerk prepares a newspaper notice that is required by 

Subchapters H and K of this chapter for air quality permit 

applications and the applicant does not cause the notice to be 

published within 45 days of mailing of the notice from the chief 

clerk, or, for Notice of Receipt of Application and Intent to Obtain 

Permit, within 30 days after the executive director declares the 

application administratively complete, or fails to submit the copies 

of notices or affidavit required in subsection (j) of this section, the 

executive director may cause one of the following actions to occur.

1) The chief clerk may cause the notice to be published and the 

applicant shall reimburse the agency for the cost of publication.

2) The executive director may suspend further processing or 

return the application. If the application is resubmitted within 

six months of the date of the return of the application, it will be 

exempt from any application fee requirements.

There are no specific federal 

requirements that are comparable to 

those found in section 39.405(i) for 

failure to publish notice of air quality 

permit applications. However, the EPA 

finds that this section is an essential 

element for the implementation of the 

Texas air permit application public 

notice process and therefore strengthens 

the SIP by providing assurance that 

notice will be published timely – either 

by the applicant or the TCEQ. 

Section 39.405(i) is approvable. 

(j) Notice and affidavit for air quality permit applications. When 

Subchapters H and K of this chapter require an applicant for an air 

quality permit action to publish notice, the applicant must file a 

copy of the published notice and a publisher's affidavit with the 

chief clerk certifying facts that constitute compliance with the 

requirement. The deadline to file a copy of the published notice 

which shows the date of publication and the name of the newspaper 

is ten business days after the last date of publication. The deadline 

to file the affidavit is 30 calendar days after the last date of 

publication for each notice. Filing an affidavit certifying facts that 

constitute compliance with notice requirements creates a rebuttable 

presumption of compliance with the requirement to publish notice. 

When the chief clerk publishes notice under subsection (i) of this 

section, the chief clerk shall file a copy of the published notice and 

a publisher's affidavit.

Section 39.405(j) is a necessary element 

of the Texas air permit public notice 

process because it provides for 

verification that public notice has been 

published consistent with the 

requirements in Chapter 39. 

Section 39.405(j) is approvable as 

consistent with 40 CFR 51.160, 51.161 

and 51.166. 

§ 39.407. Mailing Lists. 

The chief clerk shall maintain mailing lists of persons requesting notice 

of an application. Persons, including participants in past agency permit 

proceedings, may request in writing to be on a mailing list. The chief 

clerk may from time to time request confirmation that persons on a list 

wish to remain on the list, and may delete from the list the name of any 

person who fails to respond to such request.

Section 39.407 is a necessary element of 

the Texas air permit public notice 

process because it establishes that the 

TCEQ will maintain a mailing list of 

interested persons for air quality permit 

actions. 

Section 39.407 is approvable as 

consistent with 40 CFR 51.160, 51.161 

and 51.166. 

§ 39.409. Deadline for Public Comment, and for Requests for 

Reconsideration, Contested Case Hearing, or Notice and Comment 

Hearing. 

Notice given under this chapter will specify any applicable deadline to 

file public comment specified under §55.152 of this title (relating to 

Public Comment Period) and, if applicable, any deadlines to file 

requests for reconsideration, contested case hearing, or notice and 

comment hearing. After the deadline, final action on an application may 

be taken under Chapter 50 of this title (relating to Action on 

Applications and Other Authorizations).

Section 39.409 is a necessary element of 

the Texas air permit public notice 

process because it requires the notice to 

clearly identify the end of the public 

comment period. 

Section 39.409 is approvable as 

consistent with 40 CFR 51.160, 51.161 

and 51.166. 
130 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

The submitted language at Section 

39.409 references the Texas Contested 

Case Hearing (CCH) process and 30 

TAC Chapter 50 provisions. Neither the 

CCH Process or Chapter 50 have been 

submitted for SIP review; therefore they 

are beyond the scope of our review. 

However, we are approving the 

references to the CCH process and 

Chapter 50 in section 39.409 because 

inclusion of notice of these processes 

will assist the public in their review. 

TCEQ’s use of the CCH Process and 

Chapter 50 in this instance does not 

incorporate either CCH or the provisions 

of Chapter 50 into the Texas SIP. 

§39.411. Text of Public Notice. 

Adopted by the TCEQ on September 2, 1999 

Submitted for SIP approval on October 25, 1999 

(a) Applicants shall use notice text provided and approved by the 

agency. The executive director may approve changes to notice text 

before notice being given.

Section 39.411(a) is approvable. This 

section requires the applicant to use the 

notice text provided by the TCEQ. 

Section 39.411(a) does provide that the 

TCEQ executive director may approve 

changes to the notice text before 

publication, but it is incumbent upon the 

ED to only approve changes consistent 

with federal requirements of 40 CFR 

51.160, 51.161 and 51.166. 

See Sections IV.B-F for a discussion of 

how section 39.411 satisfies minimum 

federal requirements for the text of the 

public notice for each type of permit 

application. 

Section 39.411(a) is approvable. 

§39.411. Text of Public Notice. 

(e) When Notice of Receipt of Application and Intent to Obtain Permit 

by publication or by mail is required by Subchapters H and K of 

this chapter for air quality permit applications, the text of the notice 

must include the information in this subsection.

Sections 39.411(e)(1)-(3) satisfies 

requirements at 51.160 to identify the 

information that must be submitted for 

each application so that the permitting 

authority can ensure protection of the 

NAAQS. 

Sections 39.411(e)(1)-(3) are 

approvable. 

1) the name and address of the agency and the telephone number 

of an agency contact from whom interested persons may obtain 

further information;

2) the name, address, and telephone number of the applicant and a 

description of the manner in which a person may contact the 

applicant for further information;

3) a brief description of the location and nature of the proposed 

activity;

4) a brief description of public comment procedures, including:

(A). a statement that the executive director will respond to:

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

(4)(B) and (5)(A) and (B) satisfy the 
131 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(i). all comments regarding applications for Prevention 

of Significant Deterioration and Nonattainment 

permits under Chapter 116, Subchapter B of this 

title (relating to New Source Review Permits) and 

Plant-wide Applicability Limit permits under 

Chapter 116 of this title (relating to Control of Air 

Pollution by Permits for New Construction or 

Modification) filed on or after the effective date of 

this section;

(iii). for all other air quality permit applications, 

comments raising issues that are relevant and 

material or otherwise significant; and

(B). a statement in the notice for any air quality permit 

application for which there is an opportunity for a 

contested case hearing, that only disputed factual issues 

that are relevant and material to the commission's decision 

that are raised during the comment period can be 

considered if a contested case hearing is granted;

requirements at 40 CFR 51.160, 51.161 

and 51.166 for to clearly identify the 

public comment procedures to ensure the 

permitting authority and public know 

how to accept and provide timely 

comments. 

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

(4)(B) and (5)(A) and (B) are 

approvable. 

5) a brief description of procedures by which the public may 

participate in the final permit decision and, if applicable, how 

to request a public meeting, contested case hearing, 

reconsideration of the executive director's decision, a notice 

and comment hearing, or a statement that later notice will 

describe procedures for public participation, printed in a font 

style or size that clearly provides emphasis and distinguishes it 

from the remainder of the notice. Where applicable, the notice 

should include a statement that a public meeting will be held by 

the executive director if requested by a member of the 

legislature who represents the general area where the facility is 

to be located if there is substantial public interest in the 

proposed activity when requested by any interested person for 

the following applications that are filed on or after the effective 

date of this section:

(A). air quality permit applications subject to the requirements 

for Prevention of Significant Deterioration and 

Nonattainment in Chapter 116, Subchapter B of this title;

(B). applications for the establishment or renewal of, or an 

increase in, a plant-wide applicability limit subject to 

Chapter 116 of this title; and

6) the application or permit number; Section 39.411(e)(6) requires relevant 

information to be submitted by the 

permit applicant consistent with 40 CFR 

51.160, 51.161 and 51.166. 

Section 39.411(e)(6) is approvable. 

7) if applicable, a statement that the application or requested 

action is subject to the Coastal Management Program and must 

be consistent with the Coastal Management Program goals and 

policies;

Section 39.411(e)(7) requires relevant 

information that must be considered by 

the TCEQ to be submitted by the permit 

applicant consistent with 40 CFR 

51.160, 51.161 and 51.166. 
132 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

Section 39.411(e)(7) is approvable. 

8) the location, at a public place in the county in which the facility 

is located or proposed to be located, at which a copy of the 

application is available for review and copying;

Section 39.411(e)(8) requires the public 

notice to identify the location where 

information is available for review 

consistent with 40 CFR 51.160, 51.161 

and 51.166. 

Section 39.411(e)(8) is approvable. 

9) a description of the procedure by which a person may be placed 

on a mailing list in order to receive additional information 

about the application;

Section 39.411(e)(9) establishes 

procedures for the implementation of the 

Texas public participation process 

through mailing lists. The mailing lists 

will provide for more outreach and 

greater dissemination of information. 

Section 39.411(e)(9) is approvable. 

10) at a minimum, a listing of criteria pollutants for which 

authorization is sought in the application which are regulated 

under national ambient air quality standards (NAAQS) or under 

state standards in Chapters Ill, 112, 113, 115, and 117of this 

title (relating to Control of Air Pollution from Visible 

Emissions and Particulate Matter, Control of Air Pollution 

from Sulfur Compounds, Standards of Performance for 

Hazardous Air Pollutants and for Designated Facilities and 

Pollutants, Control of Air Pollution from Volatile Organic 

Compounds, and Control of Air Pollution from Nitrogen 

Compounds);

Section 39.411(e)(10) requires relevant 

information that must be considered by 

the TCEQ to be submitted by the permit 

applicant consistent with 40 CFR 

51.160, 51.161 and 51.166. 

Section 39.411(e)(7) is approvable. 

11) If notice is for any air quality permit application except those 

listed in paragraph (12) of this subsection, the following 

information must be printed in a font style or size that clearly 

provides emphasis and distinguishes it from the remainder of 

the notice:

(A). a statement that a person who may be affected by 

emissions of air contaminants from the facility or proposed 

facility is entitled to request a contested case hearing from 

the commission within the following specified time 

periods;

(i). for air quality permit applications subject to the 

requirements for Prevention of Significant 

Deterioration and Nonattainment permits in Chapter 

116, Subchapter B of this title a statement that a 

request for a contested case hearing must be received 

by the commission by the end of the comment period 

or within 30 days after the mailing of the executive 

director's response to comments;

(iii). for renewals of air quality permits that would not 

result in an increase in allowable emissions and would 

not result in the emission of an air contaminant not 

previously emitted and the application does not 

involve a facility for which the applicant's compliance 

history is in the lowest classification under Texas 

Sections 39.411(e)(11)(A)(i), (iii) and 

(iv) establish the notice text 

requirements that must be used to notify 

the public about the Texas Contested 

Case Hearing Process and the comment 

period deadlines. The Texas Contested 

Case Hearing process under 30 TAC 

Chapter 80 is not part of the Texas SIP, 

nor has it been submitted for SIP review. 

However, EPA finds that prominent 

advertisement via newspaper of the 

process for requesting a CCH, the 

necessary timing of such a request, and 

notification when an application is 

referred to CCH strengthens the SIP and 

affords the public more information 

about a specific action. TCEQ’s use of 

the CCH Process in this instance does 

not incorporate CCH into the Texas SIP. 

Sections 39.411(e)(11)(A)(i), (iii) and 

(iv) are approvable. 
133 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

Water Code, §5.753 and §5.754 and the commission's 

rules in Chapter 60 of this title (relating to Compliance 

History), a statement that a request for a contested 

case hearing must be received by the commission 

before the close of the 15-day comment period 

provided in response to the last publication of Notice 

of Receipt of Application and Intent to Obtain Permit; 

or

(iv). for all air quality permit applications other than those 

in clauses (i) - (iii) of this subparagraph, a statement 

that a request for a contested case hearing must be 

received by the commission before the close of the 30-

day comment period provided in response to the last 

publication of Notice of Receipt of Application and 

Intent to Obtain Permit. If no hearing requests are 

received by the end of the 30-day comment period 

following the last publication of Notice of Receipt of 

Application and Intent to Obtain Permit, there is no 

further opportunity to request a contested case 

hearing. If any hearing requests are received before 

the close of the 30-day comment period following the 

last publication of Notice of Receipt of Application 

and Intent to Obtain Permit, the opportunity to file a 

request for a contested case hearing is extended to 30 

days after the mailing of the executive director's 

response to comments;

11) If notice is for any air quality permit application except those 

listed in paragraph (12) of this subsection, the following 

information must be printed in a font style or size that clearly 

provides emphasis and distinguishes it from the remainder of 

the notice: [NOTE subparagraph (11) is repeated for clarity] 

(B). a statement that a request for a contested case hearing must 

be received by the commission;

(C). a statement that a contested case hearing request must 

include the requester's location relative to the proposed 

facility or activity;

(D). a statement that a contested case hearing request should 

include a description of how the requestor will be 

adversely affected by the proposed facility or activity in a 

manner not common to the general public, including a 

description of the requestor's uses of property which may 

be impacted by the proposed facility or activity;

(E). a statement that only relevant and material issues raised 

during the comment period can be considered if a 

contested case hearing request is granted; and

(F). if notice is for air quality permit applications described in 

subparagraph (A)(iv) of this paragraph, a statement that 

when no hearing requests are timely received the applicant 

shall publish a Notice of Application and Preliminary 

Decision that provides an opportunity for public comment 

and to request a public meeting.

Sections 39.411(e)(11)(B) – (F), and 

39.411(e)(13) establish the notice text 

requirements that must be used to notify 

the public about the Texas Contested 

Case Hearing Process and the comment 

period deadlines. The Texas Contested 

Case Hearing process under 30 TAC 

Chapter 80 is not part of the Texas SIP, 

nor has it been submitted for SIP review. 

However, EPA finds that prominent 

advertisement via newspaper of the 

process for requesting a CCH, the 

necessary timing of such a request, and 

notification when an application is 

referred to CCH strengthens the SIP and 

affords the public more information 

about a specific action. TCEQ’s use of 

the CCH Process in this instance does 

not incorporate CCH into the Texas SIP. 

Sections 39.411(e)(11)(B) – (F) and 

39.411(e)(13) are approvable. 
134 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

13) notification that a person residing within 440 yards of a 

concrete batch plant without enhanced controls under a 

standard permit adopted by the commission under Chapter 116, 

Subchapter F of this title (relating to Standard Permits) is an 

affected person who is entitled to request a contested case 

hearing;

15) any additional information required by the executive director or 

needed to satisfy federal public notice requirements.

Section 39.411(e)(15) provides the 

TCEQ the authority to require public 

notice of any additional information 

deemed necessary to satisfy federal 

requirements at 40 CFR 51.160, 51.161 

and 51.166. 

Section 39.411(e)(15) is approvable. 

(f) The chief clerk shall mail Notice of Application and Preliminary 

Decision to those listed in §39.602 of this title (relating to Mailed 

Notice). When notice of application and preliminary decision by 

publication or by mail is required by Subchapters H and K of this 

chapter for air quality permit applications, the text of the notice 

must include the information in this subsection:

1) the information required by subsection (e) of this section;

2) a summary of the executive director's preliminary decision and 

whether the executive director has prepared a draft permit;

3) the location, at a public place in the county with internet access 

in which the facility is located or proposed to be located, at 

which a copy of the complete application and the executive 

director's draft permit and preliminary decision are available 

for review and copying;

4) a brief description of public comment procedures, including a 

description of the manner in which comments regarding the 

executive director's draft permit and preliminary decision, 

preliminary determination summary, and air quality analysis 

may be submitted, or a statement in the notice for any air 

quality permit application for which there is an opportunity for 

contested case hearing, that only relevant and material issues 

raised during the comment period can be considered if a 

contested case hearing is granted. The public comment 

procedures must be printed in a font style or size that clearly 

provides emphasis and distinguishes it from the remainder of 

the notice;

5) the deadline to file comments or request a public meeting. The 

notice should include a statement that a public meeting will be 

held by the executive director if requested by a member of the 

legislature who represents the general area where the facility is 

to be located or there is substantial public interest in the 

proposed activity. The notice must include a statement that the 

comment period will be for at least thirty days following 

publication of the Notice of Application and Preliminary 

Decision;

6) if the application is subject to final approval by the executive 

director under Chapter 50 of this title, a statement that the 

The requirements for NAPD text at 

section 39.411(f) satisfy the federal 

requirements for public notification at 40 

CFR 51.160, 51.161, and 51.166. The 

NAPD must include all the information 

published in the NORI as well as 

information about the preliminary 

decision and supporting materials. 

Section 39.411(f) is approvable. 
135 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

executive director may issue final approval of the application 

unless a timely contested case hearing request or a timely 

request for reconsideration (if applicable) is filed with the chief 

clerk after transmittal of the executive director's decision and 

response to public comment;

7) If the executive director prepares a Response to Comments as 

required by §55.156 of this title (relating to Public Comment 

Processing), the chief clerk will make the executive director's 

response to public comments available on the commission's 

Web site;

8) in addition to the requirements in paragraphs (1) - (7) of this 

subsection, for air quality permit applications filed on or after 

the effective date of this section for permits under Chapter 116, 

Subchapter B, Divisions 5 and 6 of this title (relating to 

Prevention of Significant Deterioration Review and 

Nonattainment Review):

(A). as applicable, the degree of increment consumption that is 

expected from the source or modification;

(B). a statement that the state's air quality analysis is available 

for comment;

(C). the deadline to request a public meeting;

(D). a statement that the executive director will hold a public 

meeting at the request of any interested person; and

(E). a statement that the executive director's draft permit and 

preliminary decision, preliminary determination summary, 

and air quality analysis are available electronically on the 

commission's Web site at the time of publication of the 

Notice of Application and Preliminary Decision; and

(g) When notice of a public meeting by publication or by mail is 

required by Subchapters H and K of this chapter for air quality 

permit applications filed on or after the effective date of this 

section, the text of the notice must include the information in this 

subparagraph. Air quality permit applications filed before the 

effective date of this section are governed by the rules in 

Subchapters H and K of this chapter as they existed immediately 

before the effective date of this section, and those rules are 

continued in effect for that purpose.

1) the information required by subsection (e)(l) - (3), (4)(A), (6), 

(8), (9), and (15) of this section;

2) the date, time, and place of the public meeting, and a brief 

description of the nature and purpose of the meeting, including 

the applicable rules and procedures; and

3) a brief description of public comment procedures, including a 

description of the manner in which comments regarding the

executive director's draft permit and preliminary decision, and, 

as applicable, preliminary determination summary, and air 

quality analysis may be submitted and a statement in the notice 

for any air quality permit application for which there is an 

opportunity for contested case hearing, that only relevant and 

material issues raised during the comment period can be 

considered if a contested case hearing is granted.

Section 39.411(g) establishes the 

requirements for notification of a public 

meeting. A public meeting in the Texas 

public participation program is 

equivalent to EPA’s public hearing. 

Notification of the public meeting is 

consistent with the requirements at 40 

CFR 51.160, 51.161 and 51.166. 

Section 39.411(g) is approvable. 
136 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(h) When notice of a contested case hearing under Chapter 80 of this 

title (relating to Contested Case Hearings) by publication or by mail 

is required by Subchapters H and K of this chapter for air quality 

permit applications, the text of the notice must include the 

following information:

1) the information required by subsection (e)(l) - (3), (6), (9) and 

(15) of this section; and

2) the date, time, and place of the hearing, and a brief description 

of the nature and purpose of the hearing, including the 

applicable rules and procedures.

The Texas Contested Case Hearing 

process under 30 TAC Chapter 80 is not 

part of the Texas SIP, nor has it been 

submitted for SIP review. However, 

EPA finds that prominent advertisement 

via newspaper of when an application is 

referred to the CCH process strengthens 

the SIP and affords the public more 

information about a specific action. 

TCEQ’s use of the CCH Process in this 

instance does not incorporate CCH into 

the Texas SIP. 

Section 39.411(h) is approvable. 

§39.418. Notice of Receipt of Application and Intent to Obtain Permit. There are no federal requirements 

comparable to the publication of notice 

of the receipt of an application. 

Therefore, the NORI process in Texas is 

an additional opportunity for the public 

to receive notification of the permit 

application – beyond the minimum 

federal requirements. 

Sections 39.418(a), (b)(2)(A), (b)(3) and 

(c) are approvable as SIP strengthening 

measures. 

Note that because the NORI (or public 

notice on an application) is not a federal 

requirement it is appropriate that the 

TCEQ has exempted PAL applications 

from the publication of the NORI in 

section 39.418(c). 

(a) When the executive director determines that an application is 

administratively complete, the chief clerk shall mail this 

determination concurrently with the Notice of Receipt of 

Application and Intent to Obtain Permit to the applicant.

(b) Not later than 30 days after the executive director declares an 

application administratively complete:

2) the chief clerk shall mail Notice of Receipt of Application and 

Intent to Obtain Permit to those listed in §39.413 of this title 

(relating to Mailed Notice), and to:

(A). the state senator and representative who represent the 

general area in which the facility is located or proposed to 

be located; and

§39.418. Notice of Receipt of Application and Intent to Obtain Permit. 

Adopted by the TCEQ on September 2, 1999 and submitted initially as 

39.418(b)(4) on October 25, 1999. 

Revisions adopted and submitted on July 2, 2010 as 39.418(b)(3):

(b) Not later than 30 days after the executive director declares an 

application administratively complete:

3) the notice must include the applicable information required by 

§39.411(b) of this title (relating to Text of Public Notice).

(c) For air quality permit applications, except applications for plantwide applicability limit permits under Chapter 116, Subchapter C of 

this title (relating to Plant-Wide Applicability Limits), the applicant 

shall provide notice as specified in Subchapter K of this chapter 

(relating to Public Notice of Air Quality Permit Applications). 

Specifically, publication in the newspaper must follow the 

requirements under §39.603 of this title (relating to Newspaper 

Notice), sign posting must follow the requirements under §39.604 

of this title (relating to Sign-Posting), and the chief clerk shall mail 

notice according to §39.602 of this title (relating to Mailed Notice). 

The applicant shall also follow the requirements, as applicable, 

under §39.40s(h) of this title.
137 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

§39.419. Notice of Application and Preliminary Decision. 

(e) For air applications the following apply.

1) Air quality permit applications that are filed on or after the 

effective date of this section, are subject to this paragraph. 

Applications filed before the effective date of this section are 

governed by the rules as they existed immediately before the 

effective date of this section, and those rule are continued in 

effect for that purpose. After technical review is complete for 

applications subject to the requirements for Prevention of 

Significant Deterioration and Nonattainment permits in Chapter 

116, Subchapter B of this title (relating to New Source Review 

Permits), the executive director shall file the executive 

director's draft permit and preliminary decision, the preliminary 

determination summary and air quality analysis, with the chief 

clerk and the chief clerk shall post these on the commission's 

Web site. Notice of Application and Preliminary Decision must 

be published as specified in Subchapter K of this chapter 

(relating to Public Notice of Air Quality Permit Applications) 

and, as applicable, under §39.405(h) of this title, unless the 

application is for any renewal application of an air quality 

permit that would not result in an increase in allowable 

emissions and would not result in the emission of an air 

contaminant not previously emitted and the application does 

not involve a facility for which the applicant's compliance 

history is in the lowest classification under Texas Water Code, 

§5.753 and §5.754 and the commission's rules in Chapter 60 of 

this title (relating to Compliance History).

2) If notice under this section is required, the chief clerk shall mail 

notice according to §39.602 of this title (relating to Mailed 

Notice).

Requirements for the publication of the 

NAPD are consistent with the minimum 

federal requirements for notice on a 

permit decision at 40 CFR 51.160, 

51.161 and 51.166. 

Note that the NAPD is not required for 

every permit renewal application. Since 

there are no federal requirements for 

Title I permit renewal or public notice of 

such permit renewals, Section 39.419(e) 

is sufficient for permit renewal 

applications. 

See section IV.B – F of this TSD for a 

discussion of how the NAPD process 

satisfies public notice requirements for 

specific types of permit applications. 

Sections 39.419(e)(1) and (2) are 

approvable. 

§39.419. Notice of Application and Preliminary Decision. 

(e) For air applications the following apply.

3) If the applicant is seeking authorization by permit, registration, 

license, or other type of authorization required to construct, 

operate, or authorize a component of the FutureGen project as 

defined in §91.30 of this title (relating to Definitions), any 

application submitted on or before January 1, 2018, shall be 

subject to the public notice and participation requirements in 

Chapter 116, Subchapter L of this title (relating to Permits for 

Specific Designated Facilities).

Section 39.419(e)(3) is NOT IN SIP. 

EPA is severing and taking no action on 

this provision because it provides for 

public notice of FutureGen projects. As 

noted previously in this TSD, it is 

appropriate to sever section 39.419(e)(3) 

because we have not yet acted on the 

underlying FutureGen permit rules. We 

will review and analyze the public notice 

provisions for Future Gen when we take 

action on the permit program. 

§39.420. Transmittal of the Executive Director’s Response to Comments and Decision.

(c) When required by and subject to §55.156 of this title, for air quality 

permit applications, after the close of the comment period, the chief 

clerk shall:

Sections 39.420(c)(1)(A) – (D)(i)(I) and 

(II), (D)(ii) establish the procedures for 

responding to comments received and 

how the TCEQ will make available the 

comments and the TCEQ response to 

comments. These requirements are 

consistent with those at 40 CFR 51.160, 

51.161 and 51.166. 

1) transmit to the people listed in subsection (d) of this section the 

following information:

(A). the executive director's decision;

(B). the executive director's response to public comments;

(C). instructions for requesting that the commission reconsider 
138 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

the executive director's decision: and

(D). instructions, which include the statements in clause (ii) of 

this subparagraph, for requesting a contested case hearing 

for applications:

(i). for the following types of applications:

I. permit applications which are subject to the 

requirements for Prevention of Significant 

Deterioration and Nonattainment permits in Chapter 

116, Subchapter B of this title (relating to New Source 

Review Permits) as described in §39.402(a)(2) of this 

title (relating to Applicability to Air Quality Permits 

and Permit Amendments); 

II. permit and permit amendment applications which are 

not subject to the requirements for Prevention of 

Significant Deterioration and Nonattainment permits 

in Chapter 116, Subchapter B of this title, and for 

which hearing requests were received by the end of 

the 30-day comment period following the final 

publication of Notice of Receipt of Application and 

Intent to Obtain Permit, and these requests were not 

withdrawn as described in:

(a) §39.402(a)(1), (3), (11) and (12) of this 

title; and

(b) §39.402(a)(4) and (5) of this title;

(ii). the following statements must be included:

I. a statement that a person who may be affected by 

emissions of air contaminants from the facility or 

proposed facility is entitled to request a contested case 

hearing from the commission;

II. that a contested case hearing request must include the 

requestor's location relative to the proposed facility or 

activity;

III. that a contested case hearing request should include a 

description of how and why the requestor will be 

adversely affected by the proposed facility or activity 

in a manner not common to the general public, 

including a description of the requestor's uses of 

property which may be impacted by the proposed 

facility or activity;

IV. that only relevant and material disputed issues of fact 

raised during the comment period can be considered if 

a contested case hearing request is granted; and

V. that a contested case hearing request may not be based 

on issues raised solely in a comment withdrawn by the 

commenter in writing by filing a withdrawal letter 

with the chief clerk prior

to the filing of the Executive Director's Response to 

Comment; and

Sections 39.420(c)(1)(A) – (D)(i)(I) and 

(II), (D)(ii) are approvable. 

2) for applications subject to the requirements of requirements for 

Prevention of Significant Deterioration and Nonattainment 

permits in Chapter 116, Subchapter B of this title, make 

Section 39.420(c)(2) establishes the 

procedures for responding to comments 

received and how the TCEQ will make 
139 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

available by electronic means on the commission's Web site the 

executive director's draft permit and preliminary decision, the 

executive director's response to public comments, and as 

applicable, preliminary determination summary and air quality 

analysis.

available the comments and the TCEQ 

response to comments. These 

requirements are consistent with those at 

40 CFR 51.160, 51.161 and 51.166. 

Section 39.420(c)(2) is approvable. 

(d) The following persons shall be sent the information listed in 

subsection (c) of this section:

1) the applicant;

2) any person who requested to be on the mailing list for the 

permit action;

3) any person who submitted comments during the public 

comment period;

4) any person who timely filed a request for a contested case 

hearing;

5) Office of the Public Interest Counsel; and

6) Office of Public Assistance.

Section 39.420(d) establishes the 

procedures for responding to comments 

received and how the TCEQ will make 

available the comments and the TCEQ 

response to comments. These 

requirements are consistent with those at 

40 CFR 51.160, 51.161 and 51.166. 

Section 39.420(d) is approvable. 

(e) For air quality permit applications which meet the following 

conditions, items listed in subsection (c)(l)(C) and (D) of this 

section are not required to be included in the transmittals:

1) applications for which no timely hearing request is submitted in 

response to the Notice of Receipt of Application and Intent to 

Obtain a Permit;

2) applications for which one or more timely hearing requests are 

submitted in response to the Notice of Receipt of Application 

and Intent to Obtain Permit and for which this is the only 

opportunity to request a hearing, and all of the requests are 

withdrawn before the date the preliminary decision is issued; or

3) the application is for any renewal application that 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 is in the lowest classification 

under Texas Water Code, §5.753 and §5.754 and the 

commission's rules in Chapter 60 of this title (relating to 

Compliance History).

Section 39.420 (e) establishes the 

procedures for responding to comments 

received and how the TCEQ will make 

available the comments and the TCEQ 

response to comments. These 

requirements are consistent with those at 

40 CFR 51.160, 51.161 and 51.166. 

Section 39.420(e) is approvable. 

(h) For applications for air quality permits under Chapter 116, 

Subchapter L of this title (relating to Permits for Specific 

Designated Facilities), the chief clerk will not transmit the item 

listed in subsection (a)(4) of this section.

EPA is severing section 39.420(h) from 

this action. 

Section 39.420(h) will NOT BE IN SIP. 

Section 39.420(h) cross-references the 

air permitting procedures of Chapter 

116, Subchapter L for Permits for 

Specific Designated Facilities. EPA 

finds it appropriate to sever and take no 

action on the public notice provisions for 

Permits for Specific Designated 

Facilities because we have not yet acted 

on the underlying Chapter 116, 

Subchapter L permitting rules. We will 
140 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

review and analyze the public notice 

provisions when we take action on the 

permit program. 

§39.601. Applicability. 

Air quality permit applications or registrations that are declared 

administratively complete before September 1, 1999 are subject to the 

requirements of Chapter 116, Subchapter B, Division 3 (relating to 

Public Notification and Comment Procedures) (effective March 21, 

1999) or (effective December 24, 1998). Air quality permit applications 

or registrations that are declared administratively complete by the 

executive director on or after September 1, 1999 are subject to this 

subchapter.

Section 39.601 is approvable as 

establishing applicability of the Chapter 

39 sections submitted for SIP approval 

to air quality permit applications. 

§39.602. Mailed Notice. 

(a) When this chapter requires notice for air quality permit applications, 

the chief clerk shall mail notice to:

1) the applicant;

2) persons on a relevant mailing list kept under §39.407 of this 

title (relating to Mailing Lists); 

3) persons who filed public comment or hearing requests on or 

before the deadline for filing public comment or hearing 

requests; and 

4) any other person the executive director or chief clerk may elect 

to include.

Section 39.602(a) satisfies the mailed 

notice requirements in 40 CFR 51.161. 

Section 39.602(a) is approvable. 

(b) When Notice of Receipt of Application and Intent to Obtain Permit 

is required, mailed notice shall be sent to the state senator and 

representative who represent the area in which the facility is or will 

be located.

There are no federal requirements 

comparable to the publication of notice 

of the receipt of an application. 

Therefore, the NORI process in Texas is 

an additional opportunity for the public 

to receive notification of the permit 

application – beyond the minimum 

federal requirements. Providing mailed 

notice of the NORI to the state senator is 

beyond the minimum requirements for 

notice and mailed notice. 

Sections 39.602(b) is approvable. 

§39.603. Newspaper Notice.

(a) Notice of Receipt of Application and Intent to Obtain Permit under 

§39.4l8 of this title (relating to Notice of Receipt of Application and 

Intent to Obtain Permit) is required to be published no later than 30 

days after the executive director declares an application 

administratively complete. This notice must contain the text as 

required by §39.411(e) of this title (relating to Text of Public 

Notice). This notice is not required for Plant-wide Applicability 

Limit permit applications.

Section 39.603(a) is approvable, 

consistent with the federal requirements. 

This section requires the NORI to be 

published within 30 days of an 

administratively complete application. 

The notice must contain the information 

in 39.411(e), which has been shown to 

satisfy the federal requirements at 

51.160, 51.161 and 51.166. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 
141 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

the different types of air permit 

applications in the Texas program. 

(b) Notice of Application and Preliminary Decision under §39.419 of 

this title (relating to Notice of Application and Preliminary 

Decision) is required to be published within 33 days after the chief 

clerk has mailed the preliminary decision concurrently with the 

Notice of Application and Preliminary Decision to the applicant. 

This notice must contain the text as required by §39.411(f) of this 

title.

Section 39.603(b) is approvable, 

consistent with the federal requirements. 

This section requires the NAPD to be 

published within 33 days of a 

preliminary decision. 

The notice must contain the information 

in 39.411(f), which has been shown to 

satisfy the federal requirements at 

51.160, 51.161 and 51.166. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 

(c) General newspaper notice. Unless otherwise specified, when this 

chapter requires published notice of an air quality permit 

application, the applicant shall publish notice in a newspaper of 

general circulation in the municipality in which the facility is 

located or is proposed to be located or in the municipality nearest to 

the location or proposed location of the facility, as follows.

1) One notice must be published in the public notice section of the 

newspaper and must comply with §39.411(e) - (g) of this title.

2) Another notice with a total size of at least six column inches, 

with a vertical dimension of at least three inches and a 

horizontal dimension of at least two column widths, or a size of 

at least 12 square inches, must be published in a prominent 

location elsewhere in the same issue of the newspaper. This 

notice must contain the following information:

(A). permit application number;

(B). company name;

(C). type of facility;

(D). description of the location of the facility; and 

(E). a note that additional information is in the public 

notice section of the same issue.

Section 39.603(c) is approvable, 

consistent with the federal requirements 

to provide prominent advertisement in 

51.160, 51.161 and 51.166. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 

(d) Alternative publication procedures for small businesses.

1) The applicant does not have to comply with subsection (c)(2) 

of this section if all of the following conditions are met:

(A). the applicant and source meets the definition of a 

small business stationary source in Texas Water Code, 

§5.l35 including, but not limited to, those which:

(i). are not a major stationary source for federal air 

quality permitting;

(ii). do not emit 50 tons or more per year of any 

regulated air pollutant;

(iii). emit less than 75 tons per year of all regulated air 

pollutants combined; and

(iv). are owned or operated by a person that employs 

100 or fewer individuals; and

Section 39.603(d) provides alternate 

publication procedures for small 

businesses by allowing a source that 

meets the federal definition of small 

business to publish only one newspaper 

notice as required under 39.603(c)(1) in 

the public notice section of the 

newspaper. The small business is 

exempted from the requirement to 

publish a second notice elsewhere in the 

newspaper consistent with section 

39.603(c)(2). 

EPA finds that this exemption from the 
142 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

(B). if the applicant's site meets the emission limits in 

106.4 of this title (relating to Requirements for 

Permitting by Rule) it will be considered to not have a 

significant effect on air quality.

2) The executive director may post information regarding pending 

air permit applications on its website, such as the permit 

number, company name, project type, facility type, nearest city, 

county, date public notice authorized, information on comment 

periods, and information on how to contact the agency for 

further information.

additional publication of the public 

notice for a small business is an 

acceptable approach to implementing a 

state’s NSR program. While the small 

business is exempted from publication of 

a second notice, it is important to note 

that the small business must meet the 

minimum federal requirements for notice 

consistent with 39.603(c)(1). 

Section 39.603(d) is approvable. 

(e) If an air application is referred to State Office of Administrative 

Hearings for a contested case hearing under Chapter 80 of this title 

(relating to Contested Case Hearings), the applicant shall publish 

notice once in a newspaper as described in subsection (c) of this 

section, containing the information under §39.411(h) of this title. 

This notice must be published and affidavits filed with the chief 

clerk no later than 30 days before the scheduled date of the hearing.

The Texas Contested Case Hearing 

process under 30 TAC Chapter 80 is not 

part of the Texas SIP, nor is it required 

to be part of the Texas SIP. However, 

EPA finds that prominent advertisement 

via newspaper of when an application is 

referred to the CCH process strengthens 

the SIP and affords the public more 

information about a specific action. 

TCEQ’s use of the CCH process in this 

instance does not incorporate CCH into 

the Texas SIP. 

Section 39.603(e) is approvable. 

§39.604. Sign-Posting. 

(a) At the applicant's expense, a sign or signs must be placed at the site 

of the existing or proposed facility declaring the filing of an 

application for a permit and stating the manner in which the 

commission may be contacted for further information. Such signs 

must be provided by the applicant and must substantially meet the 

following requirements:

1) Signs must consist of dark lettering on a white background and 

must be no smaller than 18 inches by 28 inches and all lettering 

must be no less than 1-1/2 inches in size and block printed 

capital lettering; 

2) Signs must be headed by the words listed in the following 

subparagraph:

(A). "PROPOSED AIR QUALITY PERMIT" for new 

permits and permit amendments; or 

(B). "PROPOSED RENEWAL OF AIR QUALITY 

PERMIT" for permit renewals.

3) Signs must include the words "APPLICATION NO." and the 

number of the permit application. More than one application 

number may be included on the signs if the respective public 

comment periods coincide; 

4) Signs must include the words "for further information contact"; 

5) Signs must include the words "Texas Commission on 

Environmental Quality" and the address of the appropriate 

commission regional office;

6) Signs must include the telephone number of the appropriate 

There are no federal requirements for 

sign-posting for public notice. However, 

EPA previously approved sign-posting 

provisions in section 116.133. The 

provisions at 39.604 are substantively 

identical to the existing SIP requirements 

and apply to permit applications deemed 

administratively complete after 

September 1, 1999. Therefore there is no 

backsliding of sign-posting 

requirements. 

Section 39.604 is approvable as a SIP 

strengthening measure that provides 

additional public notice. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 
143 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

commission office;

(b) The sign or signs must be in place by the date of publication of the 

Notice of Receipt of Application and Intent to Obtain Permit and 

must remain in place and legible throughout that public comment 

period. The applicant shall provide a verification that the sign 

posting was conducted according to this section.

(c) Each sign placed at the site must be located within ten feet of every 

property line paralleling a public highway, street, or road. Signs 

must be visible from the street and spaced at not more than 1,500-

foot intervals. A minimum of one sign, but no more than three signs 

must be required along any property line paralleling a public 

highway, street, or road. The executive director may approve 

variations from these requirements if it is determined that 

alternative sign posting plans proposed by the applicant are more 

effective in providing notice to the public. This section's sign 

requirements do not apply to properties under the same ownership 

that are noncontiguous or separated by intervening public highway, 

street, or road, unless directly involved by the permit application.

(d) The executive director may approve variations from the 

requirements of this subsection if the applicant has demonstrated 

that it is not practical to comply with the specific requirements of 

this subsection and alternative sign posting plans proposed by the 

applicant are at least as effective in providing notice to the public. 

The approval from the executive director under this subsection must 

be received before posting signs for purposes of satisfying the 

requirements of this section.

(e) Alternative language sign posting is required whenever alternative 

language newspaper notice would be required under §39.405(h) of 

this title (relating to General Notice Provisions). The applicant shall 

post additional signs in each alternative language in which the 

bilingual education program is taught. The alternative language 

signs must be posted adjacent to each English language sign 

required in this section. The alternative language sign posting 

requirements of this subsection must be satisfied without regard to 

whether alternative language newspaper notice is waived under 

§39.405(h)(8) of this title. The alternative language signs must meet 

all other requirements of this section.

§39.605. Notice to Affected Agencies.

In addition to the requirements in §39.405(f)(3) of this title (relating to

General Notice Provisions):

1) when newspaper notices are published under this section, the 

applicant shall furnish a copy of the notices and affidavit to:

(A). the EPA regional administrator in Dallas;

(B). all local air pollution control agencies with jurisdiction in 

the county in which the construction is to occur;

(C). the air pollution control agency of any nearby state in 

which air quality may be adversely affected by the 

emissions from the new or modified facility; and

(D). if notice is for an application filed on or after the effective 

date of this section for a Prevention of Significant 

Section 39.605 is approvable. 

The requirements at section 39.605 are 

consistent with those at 51.160, 51.161 

and 51.166 to provide notice to affected 

agencies. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 
144 

Table G.1 – Annotation of Submitted Revisions to 30 TAC Chapter 39 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

Deterioration or Nonattainment permit under Chapter 116, 

Subchapter B of this title (relating to New Source Review 

Permits), 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;

2) when sign posting is required under this section, the applicant 

shall furnish a copy of sign posting verification, within 10 

business days after the end of the comment period associated 

with the notice under §39.418 of this title (relating to Notice of 

Receipt of Application and Intent to Obtain Permit), to:

(A). the chief clerk;

(B). the executive director; and

(C). those listed in paragraph (1 )(A) - (C) of this section; and

3) when alternative language waiver verification are required 

under this section, the applicant shall furnish a copy to those 

listed in paragraph (2)(A) - (C) of this section.
145 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

H. Evaluation of Pending Revisions to Chapter 55 

1. What Sections are before us for review? 

On July 2, 2010, the TCEQ withdrew from our consideration the sections of 30 TAC Chapter 55 

that were submitted on October 25, 1999, July 31, 2002 and March 9, 2006. The only exception 

is section 55.152(b) as adopted September 29, 1999 and submitted on October 25, 1999. This 

section remains before us for review. 

Also on July 2, 2010, the TCEQ adopted and submitted the following sections of 30 TAC 

Chapter 55 as revisions to the Texas SIP for public participation: 

 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) 

 The TCEQ also resubmitted 30 TAC 55.150 as part of the July 2, 2010 public 

participation package. 

2. There are currently no sections of 30 TAC Chapter 55 currently approved into the Texas 

SIP. Therefore the following table will identify the exact provisions submitted for SIPapproval on July 2, 2010. 

Table H.1 – Annotation of Submitted Revisions to 30 TAC Chapter 55 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

§55.150. Applicability. 

This subchapter applies only to applications filed under Texas Water 

Code, Chapter 26, 27, or 32 or Texas Health and Safety Code, Chapter 

361 or 382 that are declared administratively complete on or after 

September 1, 1999.

Note that this provision was adopted by 

the TCEQ on June 14, 2006; but was 

submitted on July 2, 2010 for 

consideration with the entire public 

participation package. 

Section 55.150 is approvable as 

establishing applicability of the Chapter 

55 sections submitted for SIP approval 

to air quality permit applications. 
146 

Table H.1 – Annotation of Submitted Revisions to 30 TAC Chapter 55 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

 §55.152. Public Comment Period. 

(a) Public comments must be filed with the chief clerk within the time 

period specified in the notice. The public comment period shall end 

30 days after the last publication of the Notice of Application and 

Preliminary Decision, except that the time period shall end:

1) 30 days after the last publication of Notice of Receipt of 

Application and Intent to Obtain Permit under §39.418 of this 

title (relating to Notice of Receipt of Application and Intent to 

Obtain Permit), or 30 days after Notice of Application and 

Preliminary Decision if a second notice is required under 

§39.419 of this title (relating to Notice of Application and 

Preliminary Decision), for an air quality permit application not 

otherwise specified in this section;

2) 15 days after the last publication of Notice of Receipt of 

Application and Intent to Obtain Permit under §39.418 of this 

title, or 30 days after Notice of Application and Preliminary 

Decision if a second notice is required under §39.419 of this 

title, for a permit renewal under Chapter 116 of this title 

(relating to Control of Air Pollution by Permits for New 

Construction or Modification) or a concrete batch plant without 

enhanced controls authorized by a air quality standard permit 

adopted by the commission under Chapter 116, Subchapter F of 

this title (relating to Standard Permits), unless the plant is to be 

temporarily located in or contiguous to the right-of-way of a 

public works project;

5) the time specified in commission rules for other specific types of 

applications; or

6) as extended by the executive director for good cause.

Sections 55.152(a)(1), (a)(2), (a)(5) and 

(a)(6) are approvable as consistent with 

public notice requirements for minimum 

public comment periods at 40 CFR 

51.160, 51.161 and 51.166. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 

§55.152. Public Comment Period. 

Adopted by the TCEQ on September 29, 1999 and submitted October 

25, 1999:

(b) The public comment period shall automatically be extended to the 

close of any public meeting.

Section 55.152(b) is approvable as 

consistent with public notice 

requirements at 40 CFR 51.160, 51.161 

and 51.166. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 

§55.154. Public Meetings. New provisions at section 55.154(a), (b), 

(c)(1), (c)(2), (c)(3), (c)(5), (d) – (g) are 

approvable. These provisions establish 

the Texas requirements for public 

meetings that are required under the 

public notice provisions in Chapter 39. 

The public meeting requirements are 

consistent with the federal requirements 

for public hearings, at 51.160, 51.161 

and 51.166. 

See sections IV.B-F of this TSD for a 

(a) A public meeting is intended for the taking of public comment, and 

is not a contested case under the Texas Administrative Procedure 

Act.

(b) During technical review of the application, the applicant, in 

cooperation with the executive director, may hold a public meeting 

in the county in which the facility is located or proposed to be 

located in order to inform the public about the application and 

obtain public input.

(c) At any time, the executive director or Office of Public Assistance 

may hold public meetings. The executive director or Office of 

Public Assistance shall hold a public meeting if:
147 

Table H.1 – Annotation of Submitted Revisions to 30 TAC Chapter 55 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

1) the executive director determines that there is a substantial or 

significant degree of public interest in an application;

2) a member of the legislature who represents the general area in 

which the facility is located or proposed to be located requests 

that a public meeting be held;

3) for applications filed on or after the effective date of this 

section, for Prevention of Significant Deterioration and 

Nonattainment permits subject to Chapter 116, Subchapter B of 

this title (relating to New Source Review Permits), an 

interested person requests a public meeting regarding the 

executive director's draft permit or air quality analysis; a public 

meeting held in response to a request under this paragraph will 

be held after Notice of Application and Preliminary Decision is 

published; applications filed before the effective date of this 

section for Prevention of Significant Deterioration and 

Nonattainrnent permits subject to Chapter 116, Subchapter B of 

this title are governed by the rules as they existed immediately 

before the effective date of this section, and those rules are 

continued in effect for that purpose;

5) when a public meeting is otherwise required by law.

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 

(d) Notice of the public meeting shall be given as required by 

§39.411(d) or (g) of this title (relating to Text of Public Notice), as 

applicable.

(e) The applicant shall attend any public meeting held by the executive 

director or Office of Public Assistance.

(f) A tape recording or written transcript of the public meeting shall be 

made available to the public.

(g) The executive director will respond to comments as required by 

§55.156(b) and (c) of this title (relating to Public Comment 

Processing).

§55.156. Public Comment Processing. Sections 55.156(a), (b)(1)-(3), (c), (c)(1), 

(e)(1)-(4), and (g) are approvable. These 

provisions establish how the TCEQ will 

respond to public comments submitted 

on air quality permit applications. 

Section 55.156 is consistent with the 

minimum federal requirements for 

public comment processing and 

responding to comments at 51.160, 

51.161 and 51.166. 

See sections IV.B-F of this TSD for a 

discussion of how this section applies to 

the different types of air permit 

applications in the Texas program. 

(a) The chief clerk shall deliver or mail to the executive director, the 

Office of Public Interest Counsel, the Office of Public Assistance, 

the director of the Alternative Dispute Resolution Office, and the 

applicant copies of all documents filed with the chief clerk in 

response to public notice of an application.

(b) If comments are received, the following procedures apply to the 

executive director.

1) Before an application is approved, the executive director shall 

prepare a response to all timely. relevant and material, or 

significant public comment, whether or not withdrawn, and 

specify if a comment has been withdrawn. Before any air 

quality permit application for a Prevention of Significant 

Deterioration or Nonattainment permit subject to Chapter 116, 

Subchapter B of this title (relating to New Source Review 

Permits) or for applications for the establishment or renewal of, 

or an increase in, a plant-wide applicability limit permit under 

Chapter 116 of this title (relating to Control of Air Pollution by 

Permits for New Construction or Modification), filed on or 

after the effective date of this section, is approved, the 
148 

Table H.1 – Annotation of Submitted Revisions to 30 TAC Chapter 55 

Note that only provisions submitted for SIP review are included in the table below 

Under Review for SIP Approval 

Adopted by the TCEQ on June 2, 2010 

Submitted for SIP approval on July 2, 2010 

Comments 

executive director shall prepare a response to all comments 

received. The response shall specify the provisions of the draft 

permit that have been changed in response to public comment 

and the reasons for the changes.

2) The executive director may call and conduct public meetings, 

under §55.154 of this title (relating to Public Meetings), in 

response to public comment.

3) The executive director shall file the response to comments with 

the chief clerk within the shortest practical time after the 

comment period ends, not to exceed 60 days.

(c) After the executive director files the response to comments, the 

chief clerk shall mail (or otherwise transmit) the executive director's 

decision, the executive director's response to public comments, and 

instructions for requesting that the commission reconsider the 

executive director's decision or hold a contested case hearing. The 

chief clerk shall provide the information required by this section to 

the applicant, any person who submitted comments during the 

public comment period, any person who requested to be on the 

mailing list for the permit action, any person who timely filed a 

request for a contested case hearing in response to the Notice of 

Receipt of Application and Intent to Obtain a Permit for an air 

application, the Office of Public Interest Counsel, and the Office of 

Public Assistance. Instructions for requesting reconsideration of the 

executive director's decision or requesting a contested case hearing 

are not required to be included in this transmittal for the 

applications listed in:

1) §39.420(e) of this title (relating to Transmittal of the Executive 

Director's Response to Comments and Decision); and

(e) The instructions sent under §39.420(c) of this title regarding how to 

request a contested case hearing shall include at least the following 

statements:

1) that a contested case hearing request must include the 

requestor's location relative to the proposed facility or activity;

2) that a contested case hearing request should include a 

description of how and why the requestor will be adversely 

affected by the proposed facility or activity in a manner not 

common to the general public, including a description of the 

requestor's uses of property which may be impacted by the 

proposed facility or activity;

3) that only relevant and material disputed issues of fact raised 

during the comment period can be considered if a contested 

case hearing request is granted; and

4) that a contested case hearing request may not be based on 

issues raised solely in a comment withdrawn by the commenter 

in writing by filing a withdrawal letter with the chief clerk prior 

to the filing of the Executive Director's Response to Comment.

(g) Notwithstanding the requirements in §39.420 of this title, the 

commission shall make available by electronic means on the 

commission's Web site the executive director's decision and the 

executive director's response to public comments.
149 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

I. Evaluation of Revisions to Chapter 116 

1. What Sections are before us for review? 

EPA’s November 26, 2008, proposed limited approval/limited disapproval of the Texas Public 

Participation program included proposed limited approval/limited disapproval on the following 

sections of 30 TAC Chapter 116: 

 30 TAC 116.111 – General Application as submitted on October 25, 1999 

 30 TAC 116.114 – Application Review Schedule as submitted on October 25, 1999 

 30 TAC 116.116 – Changes to Facilities as submitted on October 25, 1999 

 30 TAC 116.124 – Public Notice of Compliance History, section repealed on October 25, 

1999 

 30 TAC 116.312 – Public Notification and Comment Procedures as submitted on 

December 15, 1995 and revised June 22, 1998, and October 25, 1999 

On November 5, 2010, we published a withdrawal of our November 26, 2008 proposed LA/LD 

(including sections 116.111, 116.114, 116.116, and 116.312), based on the July 2, 2010 SIP 

submittal from TCEQ establishing new public participation provisions. As explained in the 

November 5, 2010 notice, the TCEQ did not withdraw from our consideration the revisions to 30 

TAC 116.111, 116.114, 116.116, and 116.312 – therefore those sections remain before us for 

review and will be addressed in this TSD in relation to the new public participation provisions 

submitted on July 2, 2010. 

Additionally, the TCEQ adopted and submitted revisions to the following sections of Chapter 

116 with the July 2, 2010 Public Participation SIP: 

 30 TAC 116.114(a)(2)(B), (a)(2)(C), (c)(2), and (c)(3) – Application Review Schedule 

 30 TAC 116.194 – Public Notice and Comment 

2. Annotated Tables for Chapter 116 Provisions 

30 TAC 116.111 – General Application

 Section 116.111 was most recently SIP-approved as adopted by the TCEQ on August 21, 

2002. See 72 FR 49198, August 28, 2007. This does not include 116.111(a)(2)(K) or 

116.111(b). 

 EPA is taking no action on 116.111(a)(2)(K) as part of the SIP because this section 

addresses requirements for HAPs under 40 CFR Part 63. 

 Section 116.111(b) was adopted and submitted in the October 25, 1999 SIP submittal. 

Because EPA never acted on this portion of the submittal and TCEQ did not withdraw, 

this section remains before EPA for review. 

Table I.1 – Evaluation of Revisions to 30 TAC 116.111 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

Current SIP 30 TAC 116.111 No pending revisions to section 
150 

Table I.1 – Evaluation of Revisions to 30 TAC 116.111 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

As adopted by TNRCC August 21, 2002 

Approved by EPA August 28, 2007 (72 FR 49198) 

NOT IN SIP: Paragraph(a)(2)(K) and paragraph (b). 

(a) In order to be granted a permit, amendment, or special permit 

amendment, the application must include: 

(1) a completed Form PI-1 General Application signed by an 

authorized representative of the applicant. All additional support 

information specified on the form must be provided before the 

application is complete; 

(2) information which demonstrates that emissions from the facility, 

including any associated dockside vessel emissions, meet all of the 

following. 

(A) Protection of public health and welfare. 

(i) The emissions from the proposed facility will comply 

with all rules and regulations of the commission and with 

the intent of the TCAA, including protection of the health 

and property of the public 

(ii) For issuance of a permit for construction or 

modification of any facility within 3,000 feet of an 

elementary, junior high/middle, or senior high school, the 

commission shall consider any possible adverse short-term 

or long-term side effects that an air contaminant or 

nuisance odor from the facility may have on the 

individuals attending the school(s). 

(B) Measurement of emissions. The proposed facility will have 

provisions for measuring the emission of significant air 

contaminants as determined by the executive director. This 

may include the installation of sampling ports on exhaust 

stacks and construction of sampling platforms in accordance 

with guidelines in the "Texas Natural Resource Conservation 

Commission (TNRCC) Sampling Procedures Manual." 

(C) Best available control technology (BACT). The proposed 

facility will utilize BACT, with consideration given to the 

technical practicability and economic reasonableness of 

reducing or eliminating the emissions from the facility. 

(D) New Source Performance Standards (NSPS). The 

emissions from the proposed facility will meet the requirements 

of any applicable NSPS as listed under Title 40 Code of 

Federal Regulations (CFR) Part 60, promulgated by the EPA 

under FCAA, §111, as amended. 

(E) National Emission Standards for Hazardous Air Pollutants 

(NESHAP). The emissions from the proposed facility will 

meet the requirements of any applicable NESHAP, as listed 

under 40 CFR Part 61, promulgated by EPA under FCAA, 

§112, as amended. 

(F) NESHAP for source categories. The emissions from the 

proposed facility will meet the requirements of any applicable 

maximum achievable control technology standard as listed 

under 40 CFR Part 63, promulgated by the EPA under FCAA, 

§112 or as listed under Chapter 113, Subchapter C of this title 

(relating to National Emissions Standards for Hazardous Air 

116.111(a) are under review in this 

TSD. This section is provided for 

context. 
151 

Table I.1 – Evaluation of Revisions to 30 TAC 116.111 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

Pollutants for Source Categories (FCAA §112,40 CFR 63)). 

(G) Performance demonstration. The proposed facility will 

achieve the performance specified in the permit application. 

The applicant may be required to submit additional engineering 

data after a permit has been issued in order to demonstrate 

further that the proposed facility will achieve the performance 

specified in the permit application. In addition, dispersion 

modeling, monitoring, or stack testing may be required. 

(H) Nonattainment review. If the proposed facility is located in 

a nonattainment area, it shall comply with all applicable 

requirements in this chapter concerning nonattainment review. 

(I) Prevention of Significant Deterioration (PSD) review. If the 

proposed facility is located in an attainment area, it shall 

comply with all applicable requirements in this chapter 

concerning PSD review. 

(J) Air dispersion modeling. Computerized air dispersion 

modeling may be required by the executive director to 

determine air quality impacts from a proposed new facility or 

source modification. In determining whether to issue, or in 

conducting a review of, a permit application for a shipbuilding 

or ship repair operation, the commission will not require and 

may not consider air dispersion modeling results predicting 

ambient concentrations of non-criteria air contaminants over 

coastal waters of the state. The commission shall determine 

compliance with noncriteria ambient air contaminant standards 

and guidelines at land-based off-property locations. 

(K) NOT IN SIP 

(L) Mass cap and trade allowances. If subject to Chapter 101, 

Subchapter H, Division 3, of this title (relating to Mass 

Emissions Cap and Trade Program), the proposed facility, 

group of facilities, or account must obtain allowances to 

operate. 

Revisions Submitted October 25, 1999 to 116.111(b) 

(b) In order to be granted a permit, amendment, or special permit 

amendment, the owner or operator must comply with the following notice 

requirements.

1. Applications declared administratively complete before 

September 1, 1999, are subject to the requirements of Chapter 

116, Subchapter B, Division 3 (relating to Public Notification 

and Comment Procedures) (effective March 21, 1999).

2. Applications declared administratively complete on or after 

September 1, 1999, are subject to the requirements of Chapter 

39 of this title (relating to Public Notice) and Chapter 55 of this 

title (relating to Request for Reconsideration and Contested 

Case Hearings; Public Comment). Upon request by the owner 

or operator of a facility which previously has received a permit 

or special permit from the commission, the executive director 

or designated representative may exempt the relocation of such 

facility from the provisions in Chapter 39 of this title if there is 

no indication that the operation of the facility at the proposed 

new location will significantly affect ambient air quality and no 

New section 116.111(b) submitted 

October 25, 1999 is approvable. 

These new provisions identify 

which public notice procedures 

apply to a given permit application 

based on date. 

Previously in sections IV.B-F of this 

TSD we have evaluated the public 

notice provisions at Chapter 39 as 

consistent with federal requirements 

for public notice of PSD, NNSR and 

Minor NSR permit applications at 

40 CFR 51.160, 51.161, and 51.166. 
152 

Table I.1 – Evaluation of Revisions to 30 TAC 116.111 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

indication that operation of the facility at the proposed new 

location will cause a condition of air pollution.

Section 116.114 – Application Review Schedule

 Section 116.114(a), (a)(1), (a)(2), (b), (b)(1) is SIP-approved as adopted by the TCEQ on 

June 17, 1998. See 67 FR 58697, September 18, 2002. 

 Section 116.114(a)(3) and (a)(4) are SIP-approved as adopted by the TCEQ on December 

19, 2007. See 75 FR 10416, March 8, 2010. 

 Section 116.114(b)(2) is SIP-approved as adopted by the TCEQ on August 20, 2003. See 

75 FR 10416, March 8, 2010. 

 This TSD addresses revisions to section 116.114(a)(2), (a)(2)(A), (a)(2)(B), (b)(1), and 

(c)(1)-(3) submitted October 25, 1999 and section 116.114(a)(2)(B), (a)(2)(C), (c)(2) and 

(c)(3) submitted July 2, 2010 as noted below. 

Table I.2 – Evaluation of Revisions to 30 TAC 116.114 

Rule Language – Note that existing SIP language is presented as regular 

text. Revisions submitted October 25, 1999 are presented using standard 

underline/strikeout conventions. Revisions submitted July 2, 2010 are 

presented using a double underline/strikeout convention.

Comments 

a. Review schedule. The executive director shall review permit 

applications in accordance with the following. 

SIP-approved as adopted by the 

TCEQ on June 17, 1998. See 67 FR 

58697, September 18, 2002. 

No revisions to 116.114(a) under 

consideration in this TSD. 

1. Notice of completion or deficiency. The executive director shall 

mail written notification informing the applicant that the application 

is complete or that it is deficient within 90 days of receipt of the 

application for a new permit, or amendment to a permit or special 

permit. 

SIP-approved as adopted by the 

TCEQ on June 17, 1998. See 67 FR 

58697, September 18, 2002. 

No revisions to 116.114(a)(1) under 

A. If the application is deficient, the notification must state: consideration in this TSD. 

i. the additional information required; and 

ii. the intent of the executive director to void the 

application if information for a complete application is 

not submitted. 

B. Additional information may be requested within 60 days of 

receipt of the information provided in response to the 

deficiency notification. 
153 

Table I.2 – Evaluation of Revisions to 30 TAC 116.114 

Rule Language – Note that existing SIP language is presented as regular 

text. Revisions submitted October 25, 1999 are presented using standard 

underline/strikeout conventions. Revisions submitted July 2, 2010 are 

presented using a double underline/strikeout convention.

Comments 

2. Preliminary decision Decision to approve or disapprove the 

application. The executive director shall conduct a technical review 

and send mail written notice to the applicant of the preliminary his

decision to approve or not approve the application within 180 days 

from receipt of a completed permit application or 150 days from 

receipt of a completed permit amendment. If the applicant has 

provided Notice of Receipt of Application and Intent to Obtain 

Permit public notification as required by the executive director 

under Chapter 39 of this title (relating to Public Notice), one of the 

following shall apply: , and no requests for public hearing or public 

meeting on the proposed facility have been received, the executive 

director shall send notice within:

A. if comments are received on the proposed facility and replied to 

by the executive director in accordance with §39.420 of this 

title (relating to Transmittal of the Executive Director’s 

Response to Comments and Decision) and §55.156 of this title 

(relating to Public Comment Processing); and 180 days of 

receipt of a completed permit application; or

B. if no requests for public hearing or public meeting on the 

proposed facility have been received or the application is 

otherwise exempt under §39.419(e) of this title (relating to 

Notice of Application and Preliminary Decision), the executive 

director shall send a copy of the Preliminary Decision to the 

applicant; or 150 days of receipt of a permit amendment or 

special permit amendment.

C. if Notice of Application and Preliminary Decision is required 

under §39.419(e) §39.419(d) of this title (relating to Notice of 

Application and Preliminary Decision), the executive director 

shall authorize this notice and send copies to the applicant and 

all other persons are required under §39.602 of this title 

(relating to Mailed Notice).

The following revisions to 

116.114(a)(2)(A) – (C) are 

approvable. The provisions of this 

subsection identify when the 

preliminary permit decision will be 

made on a permit application and 

cross-reference the public notice 

provisions at Chapter 39. Permit 

decision timelines are consistent 

with the requirements in 40 CFR 

51.160, 51.161 and 51.166. 

Revisions to 116.114(a)(2) were 

submitted October 25, 1999. 

Revisions to 116.114(a)(2)(A) and 

were submitted October 25, 1999. 

Revisions to 116.114(a)(2)(B) were 

submitted October 25, 1999 and 

July 2, 2010. 

Revisions to 116.114(a)(2)(C) were 

submitted October 25, 1999 and 

July 2, 2010. 

These revisions through the July 2, 

2010 submittal are approvable. 

3. Review schedule for Advanced Clean Energy Projects. In addition 

to the applicable requirements and deadlines specified in 

subsections (a) - (c) of this section, the following deadlines apply to 

permit applications for advanced clean energy projects as defined in 

Texas Health and Safety Code, §382.003. Definitions: 

A. As authorized by federal law, not later than nine months after 

the executive director declares an application for a permit 

under this chapter for an advanced clean energy project to be 

administratively complete, the executive director shall 

complete its technical review of the application. 

B. The commission shall issue a final order issuing or denying the 

permit not later than nine months after the executive director 

declares the application technically complete. The commission 

may extend this deadline up to three months if it determines 

that the number of complex pending applications for permits 

under this chapter will prevent the commission from meeting 

this deadline without creating an extraordinary burden on the 

resources of the commission. 

SIP-approved as adopted by the 

TCEQ on December 19, 2007. See 

75 FR 10416, March 8, 2010. 

No revisions to 116.114(a)(3) under 

consideration in this TSD. 
154 

Table I.2 – Evaluation of Revisions to 30 TAC 116.114 

Rule Language – Note that existing SIP language is presented as regular 

text. Revisions submitted October 25, 1999 are presented using standard 

underline/strikeout conventions. Revisions submitted July 2, 2010 are 

presented using a double underline/strikeout convention.

Comments 

4. Refund of permit fee. 

A. If the time limits provided in this section to process an 

application are exceeded, the applicant may appeal in writing to 

the executive director for a refund of the permit fee. 

B. The permit fee shall be reimbursed if it is determined by the 

executive director that the specified period was exceeded 

without good cause, as provided in Texas Civil Statutes, Article 

6252-13b.1, §3. 

SIP-approved as adopted by the 

TCEQ on December 19, 2007. See 

75 FR 10416, March 8, 2010. 

No revisions to 116.114(a)(4) under 

consideration in this TSD. 

b. Voiding of deficient application. SIP-approved as adopted by the 

TCEQ on June 17, 1998. See 67 FR 

58697, September 18, 2002. 

1. An applicant shall make a good faith effort to submit, in a timely 

manner, adequate information which demonstrates that the 

requirements for obtaining a permit or permit amendment are met in 

response to any deficiency notification issued by the executive 

director under the provisions of this section, or Chapter 39 

§116.131 of this title (relating to Public Notice Applicability).

Revisions to 116.114(b)(1) were 

submitted October 25, 1999 and 

July 2, 2010. 

These revisions collectively update 

the cross-reference from 116.131 to 

the public notice provisions at 

Chapter 39. These revisions are 

approvable. 

2. If an applicant fails to make such good faith effort after two written 

notices of deficiency, the executive director shall void the 

application and notify the applicant of the voidance and the 

remaining deficiencies in the voided application. If a new 

application is submitted within six months of the voidance, it shall 

meet the requirements of §116.111 of this title (relating to General 

Application) but will be exempt from the requirements of §116.140 

of this title (relating to Applicability). 

SIP-approved as adopted by the 

TCEQ on June 17, 1998. See 67 FR 

58697, September 18, 2002. 

No revisions to 116.114(b)(2) under 

consideration in this TSD. 

c. Notification of executive director’s decision. Revisions to 116.114(c)(1) were 

submitted October 25, 1999. 

Section 116.114(c)(1)(A)-(D) 

outlines when the TCEQ provides 

notice of decision to the applicant, 

consistent with requirements in 

51.160, 51.161, and 51.166. These 

revisions are approvable. 

1. Notification to Applicant. The executive director or the chief clerk 

shall send to the applicant the decision to approve or not approve 

the application if:

A. no timely requests for reconsideration, contested case hearing, 

or public meeting the proposed facility have been received; or

B. if hearing requests have been received and withdrawn before 

the executive director’s Preliminary Decision; or

C. the application is for any amendment, modification, or renewal 

application that would not result in an increase in allowable 

emissions and would not result in the emission of an air 

contaminant not previously emitted; and

D. the applicant has satisfied all public notification requirements 

of Chapter 39 of this title.

2. Notification to commenters. Persons Except for initial issuance of 

voluntary emission reduction permits and electric generating facility 

permits, persons submitting written comments under Chapter 39 of 

this title shall be sent the executive director’s final action and given 

an explanation of the opportunity to file a motion under §50.139 of 

this title (relating to Motion to Overturn Executive Director’s 

Decision) at the same time that the applicant is notified. If the 

number of interested persons who have requested notification 

Revisions to 116.114(c)(2) were 

submitted October 25, 1999 and 

July 2, 2010. 

Section 116.114(c)(2) provides that 

all commenters submitting written 

comments will receive notification 

of the final permit action, consistent 
155 

Table I.2 – Evaluation of Revisions to 30 TAC 116.114 

Rule Language – Note that existing SIP language is presented as regular 

text. Revisions submitted October 25, 1999 are presented using standard 

underline/strikeout conventions. Revisions submitted July 2, 2010 are 

presented using a double underline/strikeout convention.

Comments 

makes it impracticable for the commission to notify those persons 

by mail, the commission shall notify those persons by publication 

using the method prescribed by §382.031(a) of the Texas Health 

and Safety Code.

with federal requirements at 51.160, 

51.161 and 51.166. These revisions 

are approvable. 

3. Time Limits. The executive director shall send notification of final 

action within:

Revisions to 116.114(c)(3) were 

submitted October 25, 1999 and 

July 2, 2010. 

Section 116.114(c)(3)(A)-(C) 

provides timelines for permit 

issuance consistent with 

requirements at 51.160, 51.161 and 

51.166. These revisions are 

approvable. 

A. one year after receipt of a complete PSD or nonattainment 

permit application, or a complete permit application for an 

action under Subchapter C of this chapter (relating to PlantWide Applicability Limits);

B. 180 days of receipt of a completed permit or permit renewal 

application; or

C. 150 days of receipt of a permit amendment or special permit 

amendment application.

Section 116.116 – Changes to Facilities

 Portions of 30 TAC 116.116 have been SIP-approved by EPA. 

 The most recent SIP-approval was November 2, 2011, as adopted by TCEQ September 

15, 2010. See 76 FR 67600. 

 This SIP-approval did NOT include: Paragraphs (b)(3) and (b)(4) and subsection (e). 

Table I.3 – Evaluation of Revisions to 30 TAC 116.116 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

a. Representations and conditions. The following are the conditions upon 

which a permit, special permit, or special exemption are issued: 

SIP-approved as adopted by the 

TCEQ on September 15, 2010. See 

76 FR 67600, November 2, 2011. 

No revisions to 116.116(a) under 

review in this TSD. Language 

provided solely for context. 

1. representations with regard to construction plans and operation 

procedures in an application for a permit, special permit, or special 

exemption; and 

2. any general and special conditions attached to the permit, special 

permit, or special exemption itself. 

b. Permit amendments. SIP-approved as adopted by the 

TCEQ on September 15, 2010. See 

76 FR 67600, November 2, 2011. 

No revisions to 116.116(b)(1) or 

(b)(2) under review in this TSD. 

Language provided solely for 

context. 

1. Except as provided in subsection (e) of this section, 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. 

2. Any person who requests permit amendments must receive prior 

approval by the executive director or the commission. Applications 

must be submitted with a completed Form PI-1 and are subject to 

the requirements of §116.111 of this title (relating to General 

Application). 

3. Any person who applies for an amendment to a permit to construct 

or reconstruct an affected source (as defined in §116.15(1) of this 

title (relating to Section 112(g) Definitions)) under Subchapter C of 

EPA is severing section 

116.116(b)(3) from this action. 
156 

Table I.3 – Evaluation of Revisions to 30 TAC 116.116 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

this chapter (relating to Hazardous Air Pollutants: Regulations 

Governing Constructed or Reconstructed Major Sources (FCAA, 

§112(g), 40 CFR Part 63)) shall comply with the provisions in 

Chapter 39 of this title (relating to Public Notice).

Section 116.116(b)(3) will NOT BE 

IN SIP. 

Section 112(g) of the Act applies to 

the review and permitting of 

constructed and reconstructed major 

sources of HAPs under § 112 of the 

Act and 40 CFR Part 63, Subpart B. 

The process for implementing these 

provisions is carried our separately 

from the Texas SIP. Because the 

requirements under section 112(g) 

are self-implementing under section 

112 of the Act and under 40 CFR 

part 63, Subpart B, EPA is severing 

and taking no action on section 

116.116(b)(3). 

4. Any person who applies for an amendment to a permit to construct 

a new facility or modify an existing facility shall comply with the 

provisions in Chapter 39 of this title.

Section 116.116(b)(4) is approvable 

consistent with the requirements of 

40 CFR 51.165 and 51.166. Section 

IV.E of this TSD demonstrates how 

the public participation requirements 

for permit amendment applications 

in Chapter 39 satisfy the minimum 

federal public notice requirements. 

c. Permit alteration. SIP-approved as adopted by the 

TCEQ on September 15, 2010. See 

76 FR 67600, November 2, 2011. 

No revisions to 116.116(c) under 

review in this TSD. Language 

provided solely for context. 

1. A permit alteration is: 

A. a decrease in allowable emissions; or 

B. any change from a representation in an application, general 

condition, or special condition in a permit that does not cause: 

i. a change in the method of control of emissions; 

ii. a change in the character of emissions; or 

iii. an increase in the emission rate of any air 

contaminant. 

2. Requests for permit alterations that must receive prior approval by 

the executive director are those that: 

A. result in an increase in off-property concentrations of air 

contaminants; 

B. involve a change in permit conditions; or 

C. affect facility or control equipment performance. 

3. The executive director shall be notified in writing of all other permit 

alterations not specified in paragraph (2) of this subsection. 

4. A request for permit alteration shall include information sufficient 

to demonstrate that the change does not interfere with the owner or 

operator's previous demonstrations of compliance with the 

requirements of §116.111(a)(2)(C) of this title. 

5. Permit alterations are not subject to the requirements of 

§116.111(a)(2)(C) of this title. 

d. Permits by rule under Chapter 106 of this title (relating to Permits by 

Rule) in lieu of permit amendment or alteration. 

SIP-approved as adopted by the 

TCEQ on September 15, 2010. See 
157 

Table I.3 – Evaluation of Revisions to 30 TAC 116.116 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

1. A permit amendment or alteration is not required if the changes to 

the permitted facility qualify for an exemption from permitting or 

permit by rule under Chapter 106 of this title unless prohibited by 

permit condition as provided in §116.115 of this title (relating to 

General and Special Conditions). 

76 FR 67600, November 2, 2011. 

No revisions to 116.116(d) under 

review in this TSD. Language 

provided solely for context. 

2. All changes authorized under Chapter 106 of this title to a permitted 

facility shall be incorporated into that facility's permit when the 

permit is amended or renewed. 

e. Use of credits. Notwithstanding any other subsection of this section, 

discrete emission reduction credits may be used to exceed permit 

allowables as described in §101.376(b) of this title (relating to Discrete 

Emission Credit Use) if all applicable conditions of §101.376 of this 

title are met. This subsection does not authorize any physical changes to 

a facility. 

SIP-approved as adopted by the 

TCEQ on September 15, 2010. See 

76 FR 67600, November 2, 2011. 

No revisions to 116.116(e) under 

review in this TSD. Language 

provided solely for context. 

Section 116.124 – Public Notice of Compliance History

 Section 116.124, as adopted by the TCEQ on June 17, 1998, was SIP-approved on 

September 18, 2002. See 67 FR 58697. 

 Since the time of our SIP-approval, the TCEQ submitted a repeal of section 116.124 on 

October 25, 1999. 

 We proposed to repeal section 116.124 from the SIP on November 26, 2008 in our 

proposed LA/LD on Texas Public Participation. As stated previously we withdrew our 

proposed LA/LD on November 5, 2010 but did not address the impact of our withdrawal 

on the proposed repeal of section 116.124. Therefore, the repeal of section 116.124 

remains before us for action. 

Table I.4 – Evaluation of Revisions to 30 TAC 116.124 

Rule Language – Note that existing SIP language is presented as regular 

text. Submitted revisions are presented using standard underline/strikeout 

conventions.

Comments 

§116.124. Public Notice of Compliance History.

When public notice is required under §116.131 of this title (relating to Public 

Notification Requirements), the applicant shall include the following 

statement in the notice: "The facility's compliance file, if any exists, is 

available for public review in the regional office of the Texas Natural 

Resource Conservation Commission." SECTION REPEALED 

It is recommended that 30 TAC 

Section 116.124 be repealed from 

the Texas SIP. 

Section 116.124 provides additional 

requirements for public notice under 

116.131. Section 116.131 has been 

superseded by the requirements for 

public notice in 30 TAC Chapter 39. 

We have shown in sections IV.B-F 

of this TSD that the requirements in 

Chapter 39 satisfy the minimum 

federal requirements for public 

notice. 
158 

Section 116.194 – Public Notice and Comment

 TCEQ initially adopted the provisions for PAL public notice on February 1, 2006 with 

the adoption of the PAL permit provisions. The initial public notice provisions crossreferenced specific sections of Chapter 39. EPA disapproved section 116.194 on 

September 15, 2010. See 75 FR 56424. 

 Since our disapproval, TCEQ resubmitted section 116.194 as adopted on February 1, 

2006. Further revisions were submitted on July 2, 2010, that replace the previous version 

from 2006 to broadly reference the public participation requirements of Chapter 39. 

 EPA is taking separate action on the PAL permitting provisions. We proposed approval 

of the PAL permitting provisions on June 20, 2012 as part of our proposed approval of 

Texas NSR Reform. See 77 FR 36964. We finalized approval of the PAL permitting 

provisions on October 25, 2012. See 77 FR 65119. 

Table I.5 – Evaluation of Revisions to 30 TAC 116.194 

§116.194 . Public Notification and 

Comment 

Submitted for SIP approval on 

February 1, 2006 and resubmitted 

March 11, 2011 

§116.194 . Public Notification and 

Comment 

Submitted for SIP approval on 

July 2, 2010 

Comments 

Applications for initial issuance of 

plant-wide applicability limit 

permits under this division are 

subject only to Sections 39.401, 

39.405, 39.407, 39.409, 39.41 1, 

39.419, 39.420, and 39.601 - 39.605 

of this title (relating to Purpose; 

General Notice Provisions; Mailing 

Lists; Deadline for Public Comment, 

and for Requests for 

Reconsideration, Contested 

Case Hearing, or Notice and 

Comment Hearing; Text of Public 

Notice; Notice of Application and 

Preliminary Decision; Transmittal of 

the Executive Director's Response to 

Comments and Decision; 

Applicability; Mailed Notice; 

Newspaper Notice; Sign-Posting; 

and Notice to Affected Agencies, 

respectively), except that any 

reference to requests for 

reconsideration or contested case 

hearings in section 39.409 or 

Section 39.41 1 of this title shall not 

apply. Nothing in this section 

exempts 

an applicant for a new source review 

permit from the requirements of 

Subchapter B of this chapter 

(relating to New Source Review 

Permits). 

a. Applications for establishment 

or renewal of, or an increase in, 

a plant-wide applicability limit 

permit under this division are 

subject to the notice and 

comment requirements in 

Chapter 39 of this title (relating 

to Public Notice). Applications 

for initial issuance of plantwide applicability limit permits 

under this division are subject 

only to §§ 39.401, 39.405, 

39.407, 39.409, 39.411, 39.419, 

39.420, and 39.601-39.605 of 

this title (relating to Purpose; 

General Notice Provisions; 

Mailing Lists; Deadline for 

Public Comment, and for 

Requests for Reconsideration, 

Contested Case hearing or 

Notice and Comment Hearing; 

Text of Public Notice; Notice 

of Application and Preliminary 

Decision; Transmittal of the 

Excutive Director’s Response 

to Comments and Decision; 

Applicability; Mailed Notice; 

Newspaper Notice; Sign 

Posting; and Notice to Affected 

Agencies, respectively), except 

that any reference to requests 

for reconsideration or contested 

case hearings in 39.409 or 

39.411 of this title shall not 

The revisions to section 116.194 

through the July 2, 2010 submittal 

are approvable. 

The 2010 revisions establish two 

subsections (a) and (b) from the 

initial adoption language. Subsection 

(a) replaces the section specific 

citations with a broad crossreference the public notice 

requirements in Chapter 39, which 

have been shown in section IV.D of 

this TSD, to satisfy the federal 

requirements for public notice of 

PAL permit applications consistent 

with 40 CFR 51.165 and 51.166. 

Subsection (b) moves the last 

sentence of the 2006 provision to a 

new section. Subsection (b) provides 

assurances that PAL public notice 

requirements cannot exempt a 

source from NSR permitting 

requirements under Chapter 116, 

Subchapter B. 

The submitted revisions to 

subsections 116.194(a) and (b) are 

approvable. 
159 

Table I.5 – Evaluation of Revisions to 30 TAC 116.194 

§116.194 . Public Notification and 

Comment 

Submitted for SIP approval on 

February 1, 2006 and resubmitted 

March 11, 2011 

§116.194 . Public Notification and 

Comment 

Submitted for SIP approval on 

July 2, 2010 

Comments 

apply.

b. Nothing in this section exempts 

an applicant for a new source 

review permit from the 

requirements of Subchapter B 

of this chapter (relating to New 

Source Review Permits). 

Section 116.312 – Public Notification and Comment Procedures

 The existing SIP-approved language was approved by EPA on March 10, 2006 as 

adopted by the TCEQ on August 16, 1993. See 71 FR 12285. 

 The TCEQ submitted revisions on December 15, 1995, June 22, 1998 and October 25, 

1999. 

 We proposed LA/LD of these revisions on November 26, 2008. We withdrew our 

proposed LA/LD on these submittals on November 5, 2010. As such, the revisions to 

116.312 submitted December 15, 1995, June 22, 1998 and October 25, 1999 remain 

before us for review. 

 Note, that the June 22, 1998 submittal included a repeal and replace of the previous 

versions of section 116.312, including the 1993 version that is currently SIP-approved. 

Therefore, we need to evaluate the repeal of the 1993 version. Additionally, the 

December 15, 1995 submittal is no longer before us for action as a result of the repeal. 

Table I.6 – Evaluation of Revisions to 30 TAC 116.312 

§116.312 . Public Notification and Comment Procedures. 

SIP-approved March 10, 2006. See 71 FR 12285. 

Adopted by the TCEQ on August 16, 1993. 

Comments 

The Executive Director shall mail a written notification to the permit holder 

within 30 days of receipt of a completed application for permit review and 

renewal, as determined by the Executive Director of the Texas Air Control 

Board (TACB). The notification will acknowledge receipt of the application 

and require the applicant to provide public notice of the application for 

permit renewal according to §116.132 of this title (relating to Public Notice 

Format) and §116.133 of this title (relating to sign Posting Requirements). 

All requirements pertaining to signs and public notification in §116.132 of 

this title and §116.133 of this title (relating to Sign Posting Requirements). 

All requirements pertaining to signs and public notification in §116.132 of 

this title and §116.133 of this title and to public comments in §116.136 of 

this title (relating to Public Comment Procedures), which apply to proposed 

construction, proposed facilities, and permit applications shall apply likewise 

to proposed renewals, existing facilities, and renewal applications. The sign 

heading required under §116.133(a)(2) of this title shall read "PROPOSED 

RENEWAL OF AIR QUALITY PERMIT." When newspaper notices are 

published in accordance with §116.132 of this title, the applicant for permit 

renewal shall furnish a copy of such notices and dates of publication to the 

TACB in Austin and all local air pollution control agencies with jurisdiction 

in the county in which the facility is located. Along with such notices 

This version of section 116.312 was 

repealed by the TCEQ on June 22, 

1998. 

The June 22, 1998 repeal is 

approvable. 
160 

Table I.6 – Evaluation of Revisions to 30 TAC 116.312 

furnished to the TACB, the applicant shall certify that the signs required by 

§116.133 of this title have been posted in accordance with the provisions of 

that paragraph. SECTION REPEALED. 

§116.312 . Public Notification and 

Comment Procedures. 

Submitted for SIP approval on 

July 22, 1998 

§116.312 . Public Notification and 

Comment Procedures. 

Submitted for SIP approval on 

October 25, 1999 

Comments 

a. The executive director shall 

mail a written notice to the 

permit holder within 30 days 

after receipt of a complete 

application. The notice will 

confirm receipt of the 

application and shall require the 

applicant to provide public 

notice of the application for 

permit renewal in accordance 

with Subchapter B of this 

chapter (relating to New Source 

Review Permits).

The executive director shall mail a 

written notice to the permit holder 

within 30 days after receipt of a 

complete application. The notice will 

confirm receipt of the application 

and shall require the applicant to 

provide public notice of the 

application for permit renewal in 

accordance with Chapter 39 of this 

title (relating to Public Notice). 

Subchapter B of this chapter 

(relating to New Source Review 

Permits).

The revisions to section 116.312 

submitted through October 25, 1999 

are approvable. These revisions 

require that permit renewal 

applications be public noticed 

consistent with the requirements in 

Chapter 39. 

We have previously shown in 

section IV.F of this TSD that the 

requirements in Chapter 39 specific 

to permit renewal applications are 

consistent with 40 CFR 51.160 and 

a. The sign heading required under 51.161. 

§116.133(a)(2) of this title 

(relating to Sign Posting 

Requirements) shall read 

"PROPOSED RENEWAL OF 

AIR QUALITY PERMIT."

b. The sign heading required under 

§116.133(a)(2) of this title 

(relating to Sign Posting 

Requirements) shall read 

"PROPOSED RENEWAL OF 

AIR QUALITY PERMIT."

 
161 

IV. Technical Evaluation of the Texas Public Participation SIP Submittals

J. Does Approval of Texas’s Public Participation SIP Submittals Interfere with 

Attainment, Reasonable Further Progress, or Any Other Applicable Requirement of 

the Act? 

This section 110(l) analysis will consider the Texas Public Participation Program for air quality 

permit applications, in its entirety – i.e, the sections remaining for our review from October 25, 

1999, and the entirety of the July 2, 2010 SIP submittal. Viewed as a complete program, these 

rules establish the rules governing public participation including the required verbiage of the 

notice documents and the timing of the notice processes for all Texas air quality permit 

applications. 

Section 110(l) of the Clean Air Act 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. Our 

analysis presented previously in this TSD demonstrates that the TCEQ satisfied all procedural 

requirements pursuant to section 110(l). 

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 previously in the TSD, EPA demonstrates 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, the 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 

 
162 

V. Conclusion 

The technical analysis provided in the preceding sections has compared the applicable sections 

of the CAA and 40 CFR Part 51 to severable portions of four revisions to the Texas SIP 

submitted on July 22, 1998, October 25, 1999, July 2, 2010, and March 11, 2011 for the 

establishment and implementation of the Texas public participation program for air quality 

permit applications. This analysis found that the adoption of the submitted revisions is consistent 

with the federal public notice requirements. It is recommended that a proposed approval of the 

following sections be published: 

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 

NOT IN SIP: 

39.405(h)(1)(B) 

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 

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 

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 
163 

Section Title Texas Rule 

Project Number 

State 

Submittal Date 

State Adoption 

Date 

Rules Addressed in this 

Action 

Permit 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) proposed for 

approval 

30 TAC 116.114 – 

Application 

99030-039-AD October 25, 

1999 

September 2, 1999 116.114(a)(2), (a)(2)(A), 

(a)(2)(B), (b)(1), and (c)(1)-
164 

Section Title Texas Rule 

Project Number 

State 

Submittal Date 

State Adoption 

Date 

Rules Addressed in this 

Action 

Review Schedule (3) proposed for approval 

2010-004-039-LS July 2, 2010 June 2, 2010 116.114(a)(2)(B), (a)(2)(C), 

(c)(2) and (c)(3) proposed 

for approval 

30 TAC 116.116 – 

Changes to 

Facilities 

99030-039-AD October 25, 

1999 

September 2, 1999 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 REPEALED 

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 

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 

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 PSD SIP Supplement. Upon finalization of this action, it is 

recommended that the table at 40 CFR 52.2270(e) be revised to reflect these approvals. 

Note that EPA is severing and taking no action on the following sections. It is recommended that 

the amendatory language table at 40 CFR 52.2270 clearly identify that the following are not in 

the Texas SIP. 

 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) 

 116.111(a)(2)(K) 

 116.116(b)(3).