8368 Federal Register / Vol. 79, No. 29 / Wednesday, February 12, 2014 / Proposed Rules 

1On September 1, 2002, the Texas Legislature 

(House Bill 2912) formally changed the name of 

Texas Natural Resource Conservation Commission 

to the Texas Commission on Environmental 

Quality. 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. This proposed 

rulemaking is promulgated under the 

authority described in Subtitle VII, Part, 

A, Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This proposed regulation is 

within the scope of that authority as it 

would establish Class E airspace at 

Nashville International Airport, 

Nashville, TN. 

This proposal will be subject to an 

environmental analysis in accordance 

with FAA Order 1050.1E, 

‘‘Environmental Impacts: Policies and 

Procedures’’ prior to any FAA final 

regulatory action. 

Lists of Subjects in 14 CFR Part 71: 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment: 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND CLASS E AIRSPACE 

AREAS; AIR TRAFFIC SERVICE 

ROUTES; AND REPORTING POINTS 

■ 1. The authority citation for part 71 

continues to read as follows: 

Authority: 49 U.S.C. 106(g); 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of Federal Aviation 

Administration Order 7400.9X, Airspace 

Designations and Reporting Points, 

dated August 7, 2013, effective 

September 15, 2013, is amended as 

follows: 

Paragraph 6003 Designated as an Extension 

to a Class C Surface Area 

* * * * * 

ASO TN E3 Nashville, TN [New] 

Nashville International Airport, TN 

(Lat. 36°07′31′′ N., long. 86°40′35′′ W.) 

Nashville VORTAC 

(Lat. 36°07′62′′ N., long. 86°40′95′′ W.) 

That airspace extending upward from the 

surface extending from the 5-mile radius of 

the Nashville International Airport to an 

11.7-mile radius southeast of the airport, 

from the Nashville VORTAC 161° radial 

clockwise to the 195° radial, and to an 8.9- 

mile radius southwest of the airport from the 

195° radial of the VORTAC clockwise to the 

231° radial of the VORTAC. 

Issued in College Park, Georgia, on 

February 4, 2014. 

Eric Fox, 

Acting Manager, Operations Support Group, 

Eastern Service Center, Air Traffic 

Organization. 

[FR Doc. 2014–03045 Filed 2–11–14; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0542; FRL–9906–37– 

Region 6] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

State Implementation Plan; Flexible 

Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to 

conditionally approve revisions to the 

Texas New Source Review (NSR) State 

Implementation Plan (SIP) submitted by 

the Texas Commission on 

Environmental Quality (TCEQ) 1 and its 

predecessor, the Texas Natural Resource 

Conservation Commission (TNRCC), on 

November 29, 1994; March 13, 1996; 

July 22, 1998; October 25, 1999; 

September 11, 2000; April 12, 2001; July 

31, 2002, September 4, 2002; October 4, 

2002; September 25, 2003; July 2, 2010; 

October 5, 2010; and October 21, 2013. 

These revisions to the Texas SIP 

establish the Flexible Permit Program. 

The flexible permit program is a minor 

NSR permit program which functions as 

an alternative to the traditional 

preconstruction permit program that is 

authorized in Title 30 of the Texas 

Administrative Code (30 TAC) Chapter 

116, Subchapter B. The flexible permit 

program is intended to eliminate the 

need for owners or operators of 

participating facilities to submit an 

amendment application each time 

certain types of operational or physical 

changes are made at a permitted facility. 

EPA is proposing to conditionally 

approve the Flexible Permit Program as 

initially submitted in November 1994 

and amended through the October 21, 

2013, as consistent with federal 

requirements for minor NSR programs. 

Final approval of the Texas Flexible 

Permit Program is contingent upon 

TCEQ adopting and submitting to EPA 

an approvable SIP revision addressing 

the commitments made by the TCEQ in 

its October 21, 2013, Flexible Permits 

Commitment Letter. EPA is proposing 

this action under Section 110 and part 

C of the Clean Air Act (CAA or the Act). 

DATES: Comments must be received on 

or before March 14, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2013–0542, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. 

• Email: Ms. Stephanie Kordzi at 

kordzi.stephanie@epa.gov. 

• Fax: Ms. Stephanie Kordzi, Air 

Permits Section (6PD–R), at fax number 

214–665–6762. 

• Mail or delivery: Ms. Stephanie 

Kordzi, Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2013– 

0542. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through http://www.regulations.gov or 

email, if you believe that it is CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means that EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to EPA without going 

through http://www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment along with any disk or CD– 

ROM submitted. If EPA cannot read 

your comment due to technical 

difficulties and cannot contact you for 

clarification, EPA may not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters and any form of encryption 

and should be free of any defects or 


tkelley on DSK3SPTVN1PROD with PROPOSALS
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viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http://

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

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available at 

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

hard copy materials, please schedule an 

appointment with the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Stephanie Kordzi (6PD–R), Air Permits 

Section, Environmental Protection 

Agency, Region 6, 1445 Ross Avenue 

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

2733. Telephone (214) 665–7520, fax 

(214) 665–6762, email at 

kordzi.stephanie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. 

Table of Contents 

I. Background for Our Proposed Action 

II. Summary of State SIP Submittals for the 

Flexible Permit Program 

A. November 29, 1994 Submittal 

B. March 13, 1996 Submittal 

C. July 22, 1998 Submittal 

D. October 25, 1999 Submittal 

E. September 11, 2000 Submittal 

F. April 12, 2001 Submittal 

G. July 31, 2002 Submittal 

H. September 4, 2002 Submittal 

I. October 4, 2002 Submittal 

J. September 25, 2003 Submittal 

K. July 2, 2010 Submittal 

L. October 5, 2010 Submittal 

M. October 21, 2013 Submittal 

N. Overview of the Flexible Permit 

Program and Establishment of the 

Emission Cap 

III. What action is EPA proposing? 

A. What is a conditional approval? 

B. What are the commitments? 

IV. EPA’s Evaluation of the Texas Flexible 

Permit Program as a Minor NSR Program 

A. Federal Requirements for Enforceability 

of the Minor NSR Program 

1. Identifying the New Facilities and/or 

Modifications for Inclusion in a Flexible 

Permit 

2. Inclusion of Appropriate Monitoring and 

Recordkeeping Requirements in Flexible 

Permits 

3. Additional Elements Specific to 

Emissions Caps 

4. Provisions To Ensure the Flexible Permit 

Program Is a Minor NSR Program 

5. Provisions To Ensure the Flexible Permit 

Program Demonstrates Compliance 

B. Federal Requirements for Public Notice 

of Minor NSR Permitting 

1. Overview of the Texas Public 

Participation Process for Applications for 

New Flexible Permits and Flexible 

Permit Amendments 

2. Analysis of the Submitted Public 

Participation Rules for Flexible Permits 

as Minor NSR Requirements 

3. Minor NSR Public Notice Requirements 

Specific to Two Types of Minor NSR 

Flexible Permit Amendment 

Applications 

i. Identification of the Minor NSR Emission 

Thresholds and Affected Source 

Populations 

ii. Discussion of the ‘‘De minimis’’ and 

‘‘Insignificant’’ Thresholds for Minor 

NSR Flexible Permit Amendments 

4. How do the Texas Public Notice 

Provisions for Applications for New and 

Amended Flexible Permits address the 

concerns identified in EPA’s November 

26, 2008 Proposed Limited Approval/

Limited Disapproval for Texas public 

participation? 

5. Proposed Findings Specific to the Texas 

Public Participation Provisions for the 

Flexible Permit Program 

C. Does proposed approval of the Texas 

Flexible Permit Program interfere with 

attainment, reasonable further progress, 

or any other applicable requirement of 

the act? 

D. TCEQ’s Interpretive Letter 

E. Summary of EPA’s Evaluation of the 

Flexible Permit Program as a Minor NSR 

Program 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background for Our Proposed Action 

On September 23, 2009, EPA 

proposed to disapprove revisions to the 

SIP submitted by the State of Texas that 

relate to the Flexible Permit Program. 

On July 15, 2010, EPA took final action 

on that proposal disapproving Texas’ 

Flexible Permit Program. 75 FR 41312. 

This disapproval action is the only 

action taken by EPA on the flexible 

permit program. EPA has never taken 

any other action to approve the flexible 

permit program submittals. Below is a 

summary of our grounds for initially 

disapproving the Flexible Permit 

Program as a Minor NSR SIP revision. 

We originally found that: 

• It had no express regulatory 

prohibition clearly limiting its use to 

Minor NSR and had no regulatory 

provision clearly prohibiting the use of 

this submitted Program from 

circumventing the Major NSR SIP 

requirements. 

• It was not an enforceable NSR 

program. 

• It lacked requirements necessary for 

enforcement and assurance of 

compliance. 

• It lacked the necessary more 

specialized monitoring, recordkeeping 

and reporting (MRR) requirements 

required for this type of Minor NSR 

program (a compliance emission cap) to 

ensure accountability and provide a 

means to determine compliance. 

• The types of monitoring were not 

specified in the rule. 

• It lacked specific, established 

implementation procedures for 

establishing the emissions cap in a 

Minor NSR Flexible Permit. 

• It did not ensure the terms and 

conditions of Major NSR SIP permits are 

retained. Holders of Major NSR SIP 

permits were not prohibited from using 

the submitted Program’s allowable 

based emissions cap. The Clean Air Act 

prohibits the use of an allowable based 

cap for Major NSR SIP permittees. 

For a more detailed discussion of our 

rationale for the disapproval see 75 FR 

41312 (July 15, 2010). Upon finalization 

of the rule several parties appealed the 

decision to the Fifth Circuit Court of 

Appeals. 

In July and August of 2010 the State 

of Texas, Texas Oil & Gas Association, 

Texas Association of Manufacturers, 

and Business Coalition for Clean Air 

(BCCA) Appeal Group all filed petitions 

with the Fifth Circuit Court of Appeals 

seeking to overturn EPA’s disapproval 

of the Flexible Permit Program. During 

the same time period the Environmental 

Defense Fund (‘‘EDF’’) and 

Environmental Integrity Project (‘‘EIP’’) 

moved for leave to intervene in support 

of EPA’s disapproval. Their request to 

intervene was granted by the Court. 

While the challenge was pending, the 

state adopted a modified flexible 

permits regulation, but did not submit it 

to EPA. 

On August 13, 2012, the Fifth Circuit 

Court of Appeals granted the 

petitioner’s review, vacated our 

disapproval of the Texas Flexible Permit 

Program and remanded the matter back 

to EPA for further review. After the 

Court remanded the Flexible Permit 

Rule to EPA, the State, in a letter dated 

September 12, 2012, requested that we 

take action on the original Flexible 

Permit program submittal package in 

accordance with the ruling of the Fifth 

Circuit Court of Appeals. Following 

discussions with EPA, on September 24, 

2013, Texas formally adopted and 

approved this SIP revision which is 

comprised of the original submittal that 

EPA took its disapproval action on as 

well as rule additions that EPA believes 

are essential to the program’s 

approvability. On October 21, 2013, 

Texas formally submitted to EPA this 

proposed revision to the SIP. EPA is 

today proposing to conditionally 


tkelley on DSK3SPTVN1PROD with PROPOSALS
8370 Federal Register / Vol. 79, No. 29 / Wednesday, February 12, 2014 / Proposed Rules 

2This October 21, 2013 submittal, including the 

Texas Order dated September 26, 2013, and the 

accompanying cover letter (available in the docket 

for this rulemaking), essentially resubmits all 

relevant portions of the prior Flexible Permits 

submittals and therefore constitutes the entire 

Flexible Permit Program. 

approve the October 21, 2013, 

submittal.2

II. Summary of State SIP Submittals for 

the Flexible Permit Program 

The TCEQ has developed and 

submitted the Flexible Permit Program 

as a series of revisions to the Texas 

minor NSR Permit program. The TCEQ 

developed the Flexible Permit Program 

in 1994 and has adopted several 

amendments and submitted these as 

revisions to the Texas minor NSR SIP 

program since that time. As discussed in 

the Section I Background of this 

rulemaking, EPA is proposing 

conditional approval of the October 21, 

2013, SIP revision approved by TCEQ 

and submitted for EPA review. The 

following is a brief summary of each of 

the SIP revisions pertaining to the 

Flexible Permit Program that is subject 

to our proposed conditional approval. 

A. November 29, 1994 Submittal 

On October 19, 1994, the TNRCC, 

predecessor to the TCEQ, adopted 

revisions to the Texas SIP to establish 

and implement the Flexible Permit 

Program in Texas. The TCEQ adopted 

the rule for Flexible Permits at 30 Texas 

Administrative Code (TAC) Chapter 

116, Subchapter G—Flexible Permits; 

adding Flexible Permit Definitions at 30 

TAC Chapter 116, Subchapter A, 

Section 116.13—Flexible Permit 

Definitions; and revising the Permit 

Application provisions at 30 TAC 

Chapter 116, Subchapter B, Section 

116.110(a) to authorize the use of a 

Flexible Permit for construction of any 

new minor facility and minor 

modification of any existing facility. 

Note that some portions of the 

November 29, 1994, submittal were later 

repealed and replaced in the July 22, 

1998, submittal. 

B. March 13, 1996 Submittal 

On February 14, 1996, the TNRCC 

adopted revisions to the Texas SIP to 

modify air permit application 

procedures and evaluation criteria to 

provide more operational flexibility to 

facilities. This submittal specifically 

included revisions to the definition of 

‘‘modification of existing facility’’ in the 

General Definitions for Air Permitting at 

30 TAC Section 116.10(F) to address 

modifications under Flexible Permits. 

This submittal of 30 TAC Section 

116.10(F) for ‘‘modification of existing 

facility’’ was later repealed and replaced 

in the July 22, 1998, SIP submittal and 

is therefore not before EPA for review. 

C. July 22, 1998 Submittal 

On June 17, 1998, the TNRCC adopted 

severable revisions that included the 

repeal and replacement of portions of 

the November 29, 1994, submittal and 

the entirety of the March 13, 1996 

submittal. Specific to Flexible Permits, 

the July 22, 1998, submittal included a 

new definition of ‘‘modification of 

existing facility,’’ at 30 TAC Section 

116.10(9)(F); repeal of and new Flexible 

Permit Definitions at 30 TAC Section 

116.13 and Section 116.110; and 

amendments to the 30 TAC Sections 

116.710, 116.711, 116.714, 116.715, 

116.721, 116.730, 116.740, and 116.750. 

The definitions in section 116.13 were 

non-substantive. An operations 

certification requirement for flexible 

permits was removed from 116.110. The 

amendments to the remaining sections 

added or clarified language regarding 

BACT, compliance with FCAA Section 

112(g), or were non-substantive changes. 

D. October 25, 1999 Submittal 

On September 2, 1999, the TNRCC 

adopted revisions to the Texas SIP to 

implement Texas House Bill 801 to 

establish new procedures for public 

participation in environmental 

permitting. The TNRCC submitted these 

amendments as revisions to the Texas 

SIP in a letter dated October 25, 1999. 

The October 25, 1999, submittal 

included revisions to the Flexible 

Permits public participation provisions 

at 30 TAC Section 116.740. 

E. September 11, 2000 Submittal 

On August 9, 2000, the TNRCC 

adopted amendments to 30 TAC 

Chapters 101, 106, and 116 to 

implement the remaining requirements 

of Senate Bill 766 from the 76th 

Legislature. This included amendments 

to Chapter 116, Subchapter G, 30 TAC 

Sections 116.710, 116.715, 116.721, 

116.722, and 116.750. The amendments 

to 30 TAC Chapters 101 and 116 

implement the remaining requirements 

of Senate Bill 766 from the 76th 

Legislature. The amendments tripled 

emission fees for grandfathered facilities 

with emissions in excess of 4,000 tons 

per year after September 1, 2001, 

updated public participation 

requirements for the issuance of 

standard permits, and made 

nonsubstantive changes to other related 

provisions. 

F. April 12, 2001 Submittal 

On March 7, 2001, the TNRCC 

adopted revisions to Subchapter G, 30 

TAC Sections 116.711 and 116.715. The 

amendments supplement the cap and 

trade program for the Houston/

Galveston (HGA) ozone nonattainment 

area by clarifying that any source of 

emissions of nitrogen oxides (NOX) in 

the HGA area that uses certain permits, 

including flexible permits, must obtain 

allowances for those emissions if the 

facility, or group of facilities, has a 

collective design capacity to emit ten 

tons or more of NOX per year and is 

subject to an emission standard in 30 

TAC Section Chapter 117 and by 

allowing the use of NOX allowances to 

meet the correlating portion of 

emissions offset requirements. 

G. July 31, 2002 Submittal 

On May 22, 2002, the TNRCC adopted 

amendments to Chapter 39, Public 

Notice, and Chapter 116, Control of Air 

Pollution by Permits for New 

Construction or Modification. The 

adopted changes concern requirements 

of procedures for the permitting of 

grandfathered facilities and an incentive 

program for the reduction of emissions 

of nitrogen oxides for certain types of 

facilities. 

H. September 4, 2002 Submittal 

On August 21, 2002, the TNRCC 

adopted revisions re-defining 

‘‘modification of existing facility’’ from 

30 TAC Section 116.10(9)(F) to 30 TAC 

Section 116.10(11)(F). The revisions 

also clarified permit renewal 

application content requirements and 

implemented new compliance history 

evaluation requirements for permit 

renewals. 

I. October 4, 2002 Submittal 

On September 25, 2002, the TCEQ 

adopted amendments to various fee 

rules in Chapters 101, 106, and 116 

including 116.750, Flexible Permit Fee, 

and corresponding revisions to the SIP. 

The increases were established to 

provide sufficient funding to meet the 

current appropriation levels for air 

program activities and to meet 

operational funding requirements for 

the Title V programs of the commission. 

J. September 25, 2003 Submittal 

On August 20, 2003, the TCEQ 

adopted revisions to Subchapter G, 30 

TAC Section 116.715. The revisions 

require emission reductions to be 

certified as emission reduction credits 

under 30 TAC Chapter 101, Subchapter 

H, except future internal offsets which 

will continue to be certified under 

Chapter 116. 


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K. July 2, 2010 Submittal 

On June 2, 2010, the TCEQ adopted 

amendments to the Texas regulations 

concerning Public Notice at 30 TAC 

Chapter 39; Requests for 

Reconsideration and Contested Case 

Hearings; Public Notice at 30 TAC 

Chapter 55; and Control of Air Pollution 

by Permits for New Construction or 

Modification at 30 TAC Chapter 116. 

This particular rule package was 

submitted to EPA on July 2, 2010, after 

the EPA’s final disapproval of the 

pending package of proposed SIP 

revisions before it, and is not part of the 

October 21, 2013, submittal, which 

included only the program in effect as 

of September 13, 2003 and select 2010 

rule amendments. 

The July 2, 2010 submittal included 

30 TAC 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. 

On December 13, 2012, EPA proposed 

to approve the July 2, 2010, Public 

Participation SIP Revision. In doing so, 

EPA severed the Flexible Permit public 

participation provisions at 30 TAC 

Section 39.402(a)(4) and (a)(5). We also 

indicated it was our intent to address 

the revisions to Chapter 39 for Flexible 

Permits at the time we proposed action 

on the Flexible Permit program. On 

January 6, 2014, EPA finalized our 

approval of the July 2, 2010, Public 

Participation SIP revision; our final 

approval severed and did not address 

the public participation provisions at 30 

TAC Sections 39.402(a)(4) and (a)(5) 

specific to Flexible Permits. EPA now 

finds it appropriate to address the July 

2, 2010, submittal of 30 TAC Section 

39.402(a)(4) and (a)(5) because we are 

addressing the entirety of the Flexible 

Permit program and the revisions of the 

associated Flexible Permits public 

participation provisions at 30 TAC 

Section 116.740. 

L. October 5, 2010 Submittal 

On September 15, 2010, the TCEQ 

adopted amendments to Section 

116.10(9)(E) to change a portion of the 

definition for ‘‘modification of existing 

facility’’. Only this specific regulatory 

definition is being acted on in this 

action because it directly affects the 

flexible permit rule. The entire 

submittal package consisted of new and 

amended sections prepared in response 

to EPA’s disapproval of the TCEQ rules 

that implemented the state’s qualified 

facilities program. The October 5, 2010, 

submittal came in after the EPA’s final 

disapproval of July 15, 2010, and is not 

part of the October 21, 2013, submittal, 

which included only the program in 

effect as of September 13, 2003, and 

select 2010 rule amendments. 

M. October 21, 2013 Submittal 

On September 24, 2013, the TCEQ 

adopted and approved for submission to 

EPA the Flexible Permit Program at 30 

TAC Chapter 116, Subchapter G. The 

EPA received the formal submission on 

October 21, 2013. The entire SIP 

submittal included the flexible permit 

rules first adopted by the TCEQ in 

November 1994 in Chapter 116, 

Subchapter G to establish the flexible 

permit minor new source review 

program. Some of the rules were 

repealed and readopted in 1998, and 

various amendments to the rules that 

were adopted in 1999–2003. The 

package also contained revisions as 

adopted on December 14, 2010, which 

included 30 TAC Sections 116.13(3) and 

(5); 116.711(2)(M), and paragraphs (iv) 

and (vii); 116.715(c)(5)(A) & (B), 

116.715(6)(A)(i) and (ii), 116.715(d), 

except the text ‘‘The permit shall 

specify which of the monitoring options 

under paragraph (2)(A)–(E) of this 

subject shall be used to determine 

compliance for facilities subject to 

monitoring under this subsection,’’ 

116.715(d)(1), 116.715(f); 116.716(a), 

116.716(c), 116.716(d) and 116.716(e), 

with repeal of earlier Sections 

116.716(d) and 116.716(e). 

Further, the submittal included 

various provisions that EPA believes are 

essential to its approvability. These 

include: Definitions for emission cap 

and individual emission limitation; 

discussion on maintaining terms, 

conditions, and representations of any 

Subchapter B permits that will be 

superseded by or incorporated into the 

flexible permit; inclusion of 

requirements for monitoring and 

calculations for demonstration of 

compliance with emission caps and 

individual emission limits; revised 

requirements for recordkeeping of 

information and data sufficient to 

demonstrate continuous compliance 

with emission caps and individual 

emission limits; requirements that 

monitoring systems used to determine 

compliance with pollutant emissions in 

terms of mass per unit of time must be 

based on sound science and meet 

generally acceptable scientific 

procedures for data quality and 

manipulation; and provisions 

addressing how to develop emission 

caps based upon application of current 

best available control technology at 

expected maximum capacity. Further, 

references to insignificant emission 

factors were removed since they are no 

longer allowed when calculating 

emission caps. And finally, new 

requirements for developing individual 

emission limitations in flexible permits 

were also included which require 

permits to identify all facilities subject 

to either emission caps or individual 

emission limits. 

Table 1 below summarizes the 

changes that are in the SIP revision 

submittals. A summary of EPA’s 

evaluation of each Section and the basis 

for our proposed conditional approval 

of the Flexible Permit Program as a 

minor NSR permit program is included 

in this rulemaking. The accompanying 

Technical Support Document (TSD) 

includes a detailed evaluation of the 

submittals and our rationale. The TSD 

may be accessed online at 

www.regulations.gov, Docket No. EPA– 

R06–OAR–2013–0542. 

TABLE 1—SUMMARY OF EACH FLEXIBLE PERMIT SIP SUBMITTAL AFFECTED BY THIS ACTION

Title of SIP submittal 

Date 

submitted 

to EPA 

Date of State 

adoption Regulations affected 

Flexible Permits ............................................................ 11/29/1994 11/16/1994 Amendment to 30 TAC Section 116.110 

Adoption of New 30 TAC Section 116.13 and New 

Subchapter G, 30 TAC Sections 116.710, 116.711, 

116.714, 116.715, 116.716, 116.717, 116.718, 

116.720, 116.721, 116.722, 116.730, 116.740, 

116.750, and 116.760. 

Qualified Facilities and Modifications to Existing Facilities.3/13/1996 2/14/1996 Amendment of 30 TAC Section 116.10 to add new 

definition of ‘‘modification of existing facility’’ at (F). 


tkelley on DSK3SPTVN1PROD with PROPOSALS
8372 Federal Register / Vol. 79, No. 29 / Wednesday, February 12, 2014 / Proposed Rules 

3 ‘‘Account’’ for NSR purposes is defined at 30 

TAC Section 101.1(1), second sentence, as ‘‘any 

combination of sources under common ownership 

or control and located on one or more contiguous 

properties, or properties contiguous except for 

intervening roads, railroads, rights-of-way, 

waterways, or similar divisions.’’ This definition is 

approved as part of the Texas SIP (March 30, 2005 

(70 FR 16129)). 

TABLE 1—SUMMARY OF EACH FLEXIBLE PERMIT SIP SUBMITTAL AFFECTED BY THIS ACTION—Continued 

Title of SIP submittal 

Date 

submitted 

to EPA 

Date of State 

adoption Regulations affected 

NSR Rule Amendments; section 112(g) Rule Review 

for Chapter 116.

7/22/1998 6/17/1998 Repeal and new 30 TAC Section 116.10(9)(F), 

116.13 and 116.110(a)(3) adopted. 

Amendments to Subchapter G, 30 TAC Sections 

116.710, 116.711, 116.714, 116.715, 116.721, 

116.730, 116.740 and 116.750. 

Public Participation (HB 801) ....................................... 10/25/1999 9/2/1999 Amendment to Subchapter G, 30 TAC Section 

116.740. 

Air Permits (SB–766)—Phase II ................................... 9/11/2000 8/9/2000 Amendments to Subchapter G, 30 TAC Sections 

116.710, 116.715, 116.721, 116.722, and 116.750. 

Emissions Banking and Trading ................................... 4/12/2001 3/7/2001 Amendments to Subchapter G, 30 TAC Sections 

116.711 and 116.715. 

House Bill 3040: Shipyard Facilities and NSR Maintenance Emissions.9/4/2002 8/21/2002 Amendment to 30 TAC Section 116.10, re-designating 30 TAC Sections 116.10(9)(F) to 

116.10(11)(F). 

Amendments to Subchapter G, 30 TAC Sections 

116.711 and 116.715. 

Air Fees ........................................................................ 10/4/2002 9/25/2002 Amendments to Subchapter G, 30 TAC Section 

116.750. 

Offset Certification, New Source Review Permitting 

Processes and Extensions for Construction.

9/25/2003 8/20/2003 Amendment to Subchapter G, 30 TAC Section 

116.715 

Public Notice Applicability to Air Quality Permits and 

Permit Amendments.

7/2/2010 6/2/2010 New Chapter 39.402(a)(4) and (a)(5) establishing applicability of the Chapter 39 public notice provisions 

to applications for new and amended Flexible Permits. 

BACT and Qualified Facility Air Permit Program ......... 10/5/2010 9/15/2010 Amendments to 30 TAC Section 116.10(9)(E) only in 

this action. 

Flexible Permit Program ............................................... 10/21/2013 12/14/2010 Amendments to 30 TAC Sections 116.13(3) and (5); 

116.711(2)(M)(iv) & (vii); 116.715(c)(5)(A) & (B), 

116.715(c)(6)(A), (c)(6)A)(i) and (ii), 116.715(d), except specific text; 116.715(f), excluding 715(f)(2)(A), 

116.716(a), 116.716(c), (c)(1)(A) and (B), 

116.716(c)(2), 116.716(c)(3), 116.716(c)(4), and 

116.716(d)[new] and (e) and the repeal of 

116.716(d). 

Grandfathered Facilities ............................................... 5/22/2002 ........................ Withdrawal 30 TAC Sections 116.793–116.802 and 

116.804–116.807, adopted May 22, 2002, except 

Section 116.794(11), 116.795(f) and 116.799(a), 

which were returned to the Commission by letter 

from EPA dated June 29, 2011; and Section 

116.803, adopted August 21, 2002. 

N. Overview of the Flexible Permit 

Program and Establishment of the 

Emission Cap 

The Flexible Permit Program is a 

minor NSR permitting program 

developed to provide additional 

flexibility to the regulated community. 

As is evident in the preceding Section, 

the Flexible Permit program has been 

revised and evolved over time and 

various sections have been submitted to 

EPA for approval but then repealed and 

withdrawn. To provide context to our 

proposed conditional approval we 

provide the following summary of the 

key features of the Texas Flexible Permit 

Program, as it exists before us for review 

and as described in this preamble. 

Importantly, Texas has also submitted 

an interpretive letter, dated December 9, 

2013, discussed more fully below, that 

gives Texas’ interpretations of 

provisions of its submittal that, in some 

cases, EPA is relying on in this proposal 

to conditionally approve the package. 

For more information about the 

Program, please see the SIP revisions 

submitted by Texas, the interpretive 

letter, and the accompanying TSD for 

this proposed action, which are 

available in the docket for this action. 

Pursuant to the submitted Flexible 

Permit Program, only one Flexible 

Permit may be issued for an account 

site.3 See submitted 30 TAC Section 

116.710(a)(1). Therefore, a Flexible 

Permit cannot cover sources at more 

than one account. See submitted 30 

TAC Section 116.710(a)(4). A person 

may qualify for a Flexible Permit for 

construction of a new facility at the 

account site. 30 TAC Section 

116.110(a)(3) and 30 TAC Section 

116.710(a)(1). A person may qualify for 

a Flexible Permit for a modification of 

an existing facility at the account site. 

30 TAC Sections 116.110(a)(3) and 

116.710(a)(1). To ensure that there is no 

confusion when we use the term 

‘‘facility’’ in regard to Texas rules, the 

EPA is providing the explanation given 

by the TCEQ regarding how TCEQ 

defines the term. TCEQ has explicitly 

defined the term ‘‘facility’’ in 

accordance with the definition under 

the Texas Health and Safety Code 

Section 382.003(6) and 30 TAC Section 

116.10(6). The TCEQ translates EPA’s 

term of ‘‘emission unit’’ (generally) to 

mean ‘‘facility’’ under their rules and 

provides a detailed explanation of the 

term in its formal comments to the EPA 

on the EPA’s earlier proposed 

disapproval of the Texas Flexible 


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4Texas adopted a revised NSR State rule on July 

27, 1972, to add the requirement that a proposed 

new facility and proposed modification utilize at 

least best available control technology (BACT), with 

consideration to the technical practicability and 

economical reasonableness of reducing or 

eliminating the emissions from the facility. EPA 

approved the revised 603.16 into the Texas SIP, 

presently codified in the Texas SIP at 30 TAC 

Section 116.111(a)(2)(C). For more information, 

please see the 74 FR 48450 (September 23, 2009), 

concerning the Texas Qualified Facilities State 

Program and the General Definitions. The Texas SIP 

has been revised since our initial approval of 30 

TAC 116.111(a)(2)(C). The Texas PSD Program at 30 

TAC 116.160(c)(1)(A) incorporates the Federal PSD 

BACT definition at 40 CFR 52.21(b)(12). EPA 

approved the current Texas PSD program provision 

on September 15, 2010, as revised by the July 16, 

2010 SIP submittal. See 75 FR 55978. Upon EPA’s 

September 15, 2010, approval of the Texas PSD SIP 

submittals, both EPA and Texas interpreted the SIP 

BACT provision now codified in the SIP at 30 TAC 

Section 116.111(a)(2)(C) as being a minor NSR SIP 

requirement for minor NSR permits, and thus 

applicable to the Texas Minor NSR Flexible Permits 

Program. 

Permits Program. The comments are 

contained in Docket ID No. EPA–R06– 

OAR–2005–TX–0032 in 

www.regulations.gov. Under Major NSR, 

EPA uses the term ‘‘emissions unit’’ 

(generally) when referring to part of a 

‘‘stationary source’’. 

A Flexible Permit holder may make a 

change, through a NSR SIP case-by-case 

permit amendment (codified in the SIP 

at 30 TAC Section 116.116(b)) or a 

Flexible Permit amendment. See 

submitted 30 TAC Section 116.710(a)(2). 

In lieu of either of these two options, the 

Flexible Permit holder may qualify to 

make the change by obtaining coverage 

for a minor NSR SIP permit by rule 

authorization, codified in the SIP at 30 

TAC Section 116.116(d). 

If the holder of a Flexible Permit 

wishes to construct a new minor facility 

at the location where the permit is 

issued, he may qualify for a Flexible 

Permit amendment. See submitted 30 

TAC Section 116.710(a)(3). This is 

analogous to the minor NSR SIP process 

of using a minor NSR SIP Permit by 

Rule or a minor NSR SIP permit, for 

authorization to construct a new facility 

on the site. 

Texas already has an approved NSR 

SIP under Subchapter B, which defines 

a change to an existing facility as one 

that would cause a change in the 

method of control of emissions; a 

change in the character of the emissions; 

or an increase in the emission rate of 

any air contaminant. 30 TAC Section 

116.116(b)(1). Such a change is required 

under the SIP to be authorized under a 

minor NSR SIP permit amendment. If 

the change is a decrease in allowable 

emissions; or any change from a 

representation in an application, general 

condition, or special condition in a 

permit that does not cause a change in 

the method of control of emissions; a 

change in the character of emissions; or 

an increase in the emission rate of any 

air contaminant (30 TAC Section 

116.116(c)(1)), the change may be 

authorized without public notification 

requirements through a SIP-approved 

minor NSR permit alteration or by 

obtaining coverage under an existing 

minor NSR SIP approved permit by rule 

or standard permit. 30 TAC Section 

116.116(b) and (d). 

The submitted Program at 30 TAC 

Section 116.721(a) has the same first 

two SIP-approved definitions for a 

change to an existing facility: One that 

would cause either a change in the 

method of control of emissions or a 

change in the character of the emissions. 

It, however, has a different definition for 

the third type of change. Rather than the 

change being ‘‘an increase in the 

emission rate,’’ it is a change that is a 

‘‘significant increase in emissions.’’ 

Submitted 30 TAC Section 116.718 

defines a ‘‘significant increase in 

emissions.’’ First, the increase in 

emissions must come from a facility 

with a Flexible Permit and second, there 

is no significant increase if the increase 

does not exceed either the emission cap 

or individual emission limitation. 

The submitted Flexible Permit 

program at 30 TAC Chapter 116, 

Subchapter G establishes an aggregated 

emission limit, based upon the 

application of available technology that 

limits emissions, as provided under the 

minor NSR SIP and known as best 

available control technology (BACT) 4 at 

expected maximum capacity (or a 

different limitation based on the 

emission level that would result from 

the application of a more stringent 

required emission control) for each 

covered facility, i.e., an emission cap is 

determined. The cap for a specific 

criteria pollutant addresses emissions 

from each covered facility with its 

individually calculated emission rates. 

The total sum of the covered facilities’ 

calculated emission rates is the 

emission cap. In other words, the 

emission cap is a limit on the potential 

to emit (PTE). 

An emission cap established in a 

Flexible Permit enables the holder to 

have more operational flexibility than 

would be allowed under SIP-approved 

minor NSR Permits, which impose unitspecific mass emission limits. See 

submitted 30 TAC Section 116.716. 

Under the submitted 30 TAC Section 

116.716(a), Texas may establish an 

emission cap for a specific pollutant by 

calculating the total emissions for all of 

the facilities covered by a Flexible 

Permit, using the application of minor 

NSR SIP BACT at expected maximum 

capacity for each covered facility. 

Nevertheless, where the existing control 

for a facility is more stringent than the 

application of minor NSR SIP BACT, 

e.g., NSPS, NESHAPS, or a control 

strategy rule, then that level of control 

for that facility is used in the calculation 

methodologies for determining the cap. 

See submitted 30 TAC Section 

116.715(c)(9) and (10). Alternatively, 

Texas will also set an individual 

emission limitation in the same Flexible 

Permit for each pollutant covered by an 

emission cap for the covered facilities to 

ensure the protection of human health 

and the environment as may be required 

by a state or federal rule. See submitted 

30 TAC Section 116.716(b). 

In the version of the Flexible Permit 

program that was the subject of the July 

15, 2010, disapproval, the calculation 

methodologies for the cap and the 

individual emission limitations 

included allowing for inclusion of an 

‘‘Insignificant Emissions Factor’’ (of up 

to nine percent) in the summation. 

However, the package submitted for 

EPA approval that we are acting on 

today revised the definition of emission 

cap to omit such a provision. See 

submitted (and revised with this action) 

new 30 TAC Section 116.13(3). 

Under the submitted Flexible Permit 

Program, a pollutant’s cap must be 

decreased if one of the facilities (defined 

by Texas to generally mean an 

‘‘emissions unit’’) under the Flexible 

Permit shuts down for longer than 6 

months. See submitted 30 TAC Section 

116.716(f)(1), first sentence. If a new 

facility is brought into the Flexible 

Permit, the cap must be readjusted to 

accommodate its calculated emission 

rates. See submitted 30 TAC Section 

116.716(f)(3). The cap must be adjusted 

downward for any facility covered by a 

Flexible Permit if that facility becomes 

subject to any new State or Federal 

regulation. See submitted 30 TAC 

Section 116.716(f)(4). A readjustment of 

the cap required by any new State or 

Federal regulation must be made the 

next time the Flexible Permit is either 

amended or altered. If an amendment to 

a Flexible Permit is not required to meet 

the new regulation, the permittee must 

submit a request for a permit alteration 

within sixty days of making the change, 

describing how compliance with the 

new requirement will be demonstrated. 

See submitted 30 TAC Section 

116.716(f)(4), third sentence. 

Under submitted 30 TAC Section 

116.717, a Flexible Permit may include 

an implementation schedule for the 

installation of additional controls to 

meet an emissions cap for a pollutant. 

The section also provides that if a 

schedule to install additional controls is 


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5This submittal does not include the submitted 

rules for implementing Section 112(g) of the Clean 

Air Act that were identified and returned by the 

EPA to the TCEQ on June 29, 2011. This submittal 

also does not include those rules that were 

withdrawn by the TCEQ as identified in the October 

21, 2013, submittal cover letter. EPA’s position on 

section 112(g) of the CAA is that the EPA does not 

delegate section 112(g) requirements in our MACT 

delegations, nor do we approve them into the SIP. 

Instead, the State must certify to EPA that the state 

program satisfies all applicable requirements. 

included in the Flexible Permit and a 

facility subject to such a schedule is 

taken out of service, the emission cap 

contained in the Flexible Permit will be 

readjusted to reflect the period the unit 

is out of service. Unless a special 

provision in the Flexible Permit 

specifies the method of readjustment of 

the emission cap, the facility must 

obtain a permit amendment or 

alteration, as appropriate. 

III. What action is EPA proposing? 

The EPA is proposing to conditionally 

approve the Texas Flexible Permit 

Program, as submitted by Texas on 

October 21, 2013, and as contained in 

30 TAC Chapter 116—Control of Air 

Pollution by Permits for New 

Construction or Modification. This 

action follows a decision made by the 

Fifth Circuit Court on August 3, 2012, 

which vacated EPA’s previous 

disapproval and remanded it back to the 

EPA for further reconsideration. Texas 

v. EPA, 690 F.3d 670 (Fifth Cir. 2012). 

The present submittal includes the 

original SIP package dated November 

29, 1994, which was addressed by the 

court, and certain specified revisions as 

submitted by TCEQ on October 21, 

2013. In addition, the following 

regulations under Chapter 116 including 

30 TAC Section 116.110(a)(3) on July 

22, 1998, and the definition in 30 TAC 

Section 116.10(11)(F) submitted on July 

22, 1998, for ‘‘modification of existing 

facility’’ are included as part of this 

package. EPA is also proposing to 

conditionally approve the public 

participation applicability provisions at 

30 TAC Section 39.402(a)(4) and (a)(5) 

submitted on July 2, 2010. 

In order to better understand how the 

submitted program will be 

implemented, EPA asked for an 

interpretive letter from the State 

detailing how certain aspects of the 

program will be operated. Based upon 

our evaluation of the submittals and 

further informed by the letter, EPA has 

concluded that the Flexible Permit 

Program as submitted October 21, 2013, 

in conjunction with the conditions 

included in the December 9, 2013, 

commitment letter, does meet the 

requirements of the CAA section 110(a) 

which requires each State to include a 

Minor NSR program in its SIP that 

meets the 40 CFR part 51 Subpart I 

requirements, including legally 

enforceable procedures for a minor NSR 

program.5

Table 2 below summarizes each 

regulatory citation that is affected by 

this action. 

TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION

Section Title 

Date submitted to EPA 

as SIP 

amendment 

Date adopted 

by State Comments 

Chapter 39: Public Notice 

Section 39.402 ....... Applicability to Air 

Quality Permits and 

Permit Amendments.

July 2, 2010 June 2, 2010 30 TAC Section 39.402(a)(4) and 39.402(a)(5) specific to flexible 

permits only. 

Chapter 116: Control of Air Pollution by Permits for New Construction or Modification 

Subchapter A: Definitions 

Section 116.10 ....... General Definitions .... 03/13/1996 ... 2/14/1996 ..... Definition of ‘‘modification of existing facility’’ at 30 TAC Section 

116.10(F). 

07/22/1998 ... 6/17/1998 ..... Definition of ‘‘modification of existing facility’’ at 30 TAC Section 

116.10(9)(F). 

9/4/2002 ....... 8/21/2002 ..... Redesignation of the Definition of ‘‘modification of existing facility’’ from 30 TAC Section 116.10(9)(F) to 116.10(11)(F). 

10/5/2010 ..... 9/15/2010 ..... Renumbered definition (9)(E) for ‘‘modification of existing facility’’. 

Section 116.13 ....... Flexible Permit Definitions.11/29/1994 ... 11/16/1994 ... Initial adoption. 

7/22/1998 ..... 6/17/1998 ..... Resubmitted 116.13 definitions for (1) emission cap-emission 

limit, (2) expected maximum capacity, and (3) individual emission limitation. 

10/21/2013 ... 12/14/2010 ... • Revised definition of ‘‘emission cap’’ at 30 TAC Section 

116.13(1). 

• Revised definition of ‘‘individual emission limitation’’ at 30 TAC 

Section 116.13(3) and (5). Deleted reference to ‘‘insignificant 

factor’’ formally found in 30 TAC Section 116.13. 

Subchapter B: New Source Review Permits 

Division 1: Permit Application 

Section 116.110 ..... Applicability ................ 11/29/1994 ... 11/16/1994 ... 30 TAC Section 116.110(a) specific to flexible permits only. 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Section 116.110(a)(3) applicability criteria. 

Subchapter G: Flexible Permits 

Section 116.710 ..... Applicability ................ 11/29/1994 ... 11/16/1994 ... Initial adoption. 


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TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title 

Date submitted to EPA 

as SIP 

amendment 

Date adopted 

by State Comments 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Section 116.710 subsections (a), (b), (c), and 

(d)—Applicability criteria. 

9/11/2000 ..... 8/9/2000 ....... Resubmittal 30 TAC Section 116.710. 

Section 116.711 ..... Flexible Permit Application.11/29/1994 ... 11/16/1994 ... Initial adoption. 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Sections 116.711 (1)–(13)—Flexible permit application requirements. 

4/12/2001 ..... 3/7/2001 ....... Resubmittal 30 TAC Section 116.711. 

9/4/2002 ....... 8/21/2002 ..... Revised 30 TAC Sections 116.711 (8), (9), (10), and (11). 

10/21/2013 ... 12/14/2010 ... Revised 30 TAC Section 116.711(2)(M) [introductory text], and 

paragraphs (iv) and (vii). It was submitted in the package as 

30 TAC Section 116.711(13)(D) which requires permit applicants to provide a description of EPNs included in emission 

cap and 30 TAC Section 116.711(13)(E)(vii) which ensures 

PSD terms and conditions are retained in the flexible permit. 

Section 116.714 ..... Application Review 

Schedule.

11/29/1994 ... 11/16/1994 ... Initial adoption. 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Section 116.714. 

Section 116.715 ..... General and Special 

Conditions.

11/29/1994 ... 11/16/1994 ... Initial adoption. 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Section 116.715 subsections (a) and (c)(1)– 

(10)—General conditions applying to all flexible permit holders. 

9/11/2000 ..... 8/9/2000 ....... Revised 30 TAC Section 116.715 subsections (a)–(d). 

4/12/2001 ..... 3/7/2001 ....... Revised 30 TAC Sections 116.715(a) and (c)(3)(A), (c)(3)(B), 

and (c)(3)C). 

9/4/2002 ....... 8/21/2002 ..... Revised 30 TAC Section 116.715 subsections (c)(1) and (c)(4). 

9/25/2003 ..... 8/20/2003 ..... Revised 30 TAC Section 116.715 subsection (c)(3)(C)(9). 

10/21/2013 ... 12/14/2010 ... • Revised 30 TAC Sections 116.715(c)(5)(A) & (B)—monitoring 

requirements must be specified in permits for compliance with 

emission caps. 

• Revised 30 TAC Section 116.715(c)(6)(A)(i) & (ii)—recordkeeping for demonstrating emission cap and individual emission limitation calculations. 

• Revised 30 TAC Section 116.715(d)(1)—monitoring must 

demonstrate compliance based on sound science. 

Section 116.716 ..... Emission Caps and 

Individual Emission 

Limitations.

11/29/1994 ... 11/16/1994 ... Initial adoption. 

10/21/2013 ... 12/14/2010 ... Revised 30 TAC Sections 116.716(a), 116.716(c), 116.716(d), 

and 116.716(e) on establishing an emission cap and individual 

emission limits. 

Section 116.717 ..... Implementation 

Schedule for Additional Controls.

11/29/1994 ... 11/16/1994 ... Initial adoption. 

Section 116.718 ..... Significant Emission 

Increase.

11/29/1994 ... 11/16/1994 ... Initial adoption. 

Section 116.720 ..... Limitation on Physical 

and Operational 

Changes.

11/29/1994 ... 11/16/1994 ... Initial adoption. 

Section 116.721 ..... Amendments and Alterations.11/29/1994 ... 10/19/1994 ... Initial adoption. 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Sections 116.721(a), (b)(2), (d)(1), and (d)(2)— 

Amendments and alterations for flexible permits. 

9/11/2000 ..... 8/9/2000 ....... Resubmittal 30 TAC Section 116.721. 

Section 116.722 ..... Distance Limitations ... 11/29/1994 ... 10/19/1994 ... Initial adoption. 

9/11/2000 ..... 8/9/2000 ....... Revised reference citation in Section. 

Section 116.730 ..... Compliance History .... 11/29/1994 ... 10/19/1994 ... Initial adoption 

10/21/2013 ... 12/14/2010 ... 30 TAC Section 116.730 withdrawn. 

Section 116.740 ..... Public Notice and 

Comment.

11/29/1994 ... 10/19/1994 ... Initial adoption. 

7/22/1998 ..... 6/17/1998 ..... Revised Section. 

10/25/1999 ... 9/2/1999 ....... Revised 30 TAC Section 116.740(a). 

10/21/2013 ... 12/14/2010 ... • Revised resubmittal. 

• 30 TAC Section 116.740(b) withdrawn. 

Section 116.750 ..... Flexible Permit Fee .... 11/29/1994 ... 10/19/1994 ... Initial adoption 

7/22/1998 ..... 6/17/1998 ..... Revised 30 TAC Sections 116.750(b)–(d). 

9/11/2000 ..... 8/9/2000 ....... Revised 30 TAC Section 116.750(d). 

10/4/2002 ..... 9/25/2002 ..... Revised 30 TAC Section 116.750(b)–(c). 


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6 John Calcagni’s July 1992, Memorandum, 

‘‘Processing of State Implementation Plan (SIP) 

Submittals’’, to Directors. 

TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title 

Date submitted to EPA 

as SIP 

amendment 

Date adopted 

by State Comments 

10/21/2013 ... 12/14/2010 ... Revised resubmittal. 

Section 116.760 ..... Flexible Permit Renewal.11/29/1994 ... 10/19/1994 ... Initial adoption. 

Section 116.765 ..... Compliance Schedule 10/21/2013 ... 12/14/2010 ... Submittal 30 TAC Section 116.765(b) and (c). 

A. What is a conditional approval? 

Section 110(k) of the Act governs 

EPA’s actions addressing SIP 

submissions. Where EPA finds that a 

SIP submission is not fully approvable, 

we may choose to use a conditional 

approval as provided under Section 

110(k)(4). In this case EPA may 

conditionally approve the plan based on 

a commitment from the State to adopt 

specific corrections to the Flexible 

Permit Program by a date certain, but no 

later than 1 year after the approval of 

the revision. Guidance on the use of 

conditional approvals was addressed by 

EPA in 1992 in a memorandum from 

John Calcagni.6 This guidance was 

followed in the development by the 

TCEQ of their submittal of October 21, 

2013 and was the basis for their detailed 

letter of commitment. A copy of TCEQ’s 

letter of commitment and the Calcagni 

memo are available in the docket to this 

rulemaking. Upon TCEQ fully satisfying 

their commitment and subsequent final 

action by EPA, the Flexible Permit 

Program for the first time will become 

a fully approved federally enforceable 

requirement in the Texas State 

Implementation Plan. The TCEQ, in its 

letter of December 9, 2013, committed to 

adopt by November 30, 2014, certain 

changes to the rules contained in the 

SIP submittal. 

Once EPA determines that all the 

conditions in the commitment letter 

have been met, EPA will publish in the 

Federal Register a determination that 

converts the conditional approval to a 

full approval and provides a copy of the 

Flexible Permit Program as revised to 

meet the conditions. However, if the 

State fails to submit a SIP revision 

reflecting its December 9, 2013, 

commitments by November 30, 2014, or 

if EPA determines that the submitted 

SIP revision does not address the 

commitments, then in accordance with 

110(k)(4) of the CAA, the conditional 

approval converts to a disapproval 

action. In that case, EPA would issue a 

letter to the TCEQ converting the 

conditional approval of the Flexible 

Permit Program to disapproval. Because 

the Flexible Permit Program is a 

discretionary variation of the SIP 

approved minor program and was not 

submitted to address a mandatory 

requirement of the Act, disapproval of 

the program would not trigger sanctions 

under Section 179(b) or start a Federal 

Implementation Plan clock. 

B. What are the commitments? 

TCEQ provided a commitment letter 

on December 9, 2013, to EPA that 

provides that the commission will 

subsequently submit amended rules that 

are consistent with the rulemaking 

requirements of the Texas 

Administrative Procedure Act. This 

action is necessary because some of the 

rules were repealed and readopted in 

1998, and amendments to the rules were 

adopted in the 1999 to 2003 timeframe. 

The rulemaking would also include the 

repeal of text adopted in 2010 but not 

part of the submission by the 

Commission on September 24, 2013. 

More specifically, Texas will also make 

rule changes to ensure that all 

regulatory citations in the package are 

labeled and referenced correctly and 

placed in proper sequence. Without the 

renumbering and referencing effort, 

incorrect references in the rules could 

result in applicable requirements being 

overlooked and not being incorporated 

into Flexible Permits during their 

preparation or modification. Further, 

the rules could cite to incorrect 

requirements not applying to the 

entities regulated through the Flexible 

Permit Program. The TCEQ has 

committed to providing a SIP submittal 

by November 30, 2014, that will 

reformat, reorganize and renumber the 

Flexible Permit Program into a cohesive 

rule that will ensure that the rules are 

properly structured within and 

according to the rulemaking 

requirements of the Texas 

Administrative Procedure Act and the 

Texas Administrative Code. It will also 

include the repeal of text adopted in 

2010 that was not part of the submittal 

adopted by the Commission on 

September 24, 2013. This commitment 

letter is available in the docket for this 

rulemaking. All the necessary 

substantive provisions of the flexible 

permit program were included in the 

submissions and the conditions address 

formatting and style requirements in 

state law. The changes that Texas will 

be making will not materially alter the 

submitted program described in this 

proposal. 

IV. EPA’s Evaluation of the Texas 

Flexible Permit Program as a Minor 

NSR Program 

The Act at Section 110(a)(2)(C) 

requires states to develop and submit to 

EPA for approval into the state SIP, 

preconstruction review programs 

applicable to new and modified 

stationary sources of air pollutants for 

attainment and nonattainment areas that 

cover both major and minor new 

sources and modifications, collectively 

referred to as the New Source Review 

(NSR) SIP. The CAA NSR SIP program 

is composed of three separate programs: 

Prevention of Significant Deterioration 

(PSD), Nonattainment New Source 

Review (NNSR), and Minor NSR. PSD is 

established in part C of title I of the 

CAA and applies in areas that meet the 

National Ambient Air Quality Standards 

(NAAQS), i.e., ‘‘attainment areas’’, as 

well as areas where there is insufficient 

information to determine if the area 

meets the NAAQS, i.e., ‘‘unclassifiable 

areas.’’ The NNSR SIP program is 

established in part D of title I of the 

CAA and applies in areas that are not in 

attainment of the NAAQS, i.e., 

‘‘nonattainment areas.’’ The Minor NSR 

SIP program addresses construction or 

modification activities that do not emit, 

or have the potential to emit, more than 

certain major source thresholds and 

thus do not qualify as ‘‘major’’ and 

applies regardless of the designation of 

the area in which a source is located. 

EPA regulations governing the criteria 

that states must satisfy for EPA approval 

of the NSR programs as part of the SIP 

are contained in 40 CFR 51.160–51.166. 

Regulations specific to minor NSR 

programs are contained in 40 CFR 

51.160–51.164. In addition, there are 

several provisions in 40 CFR Part 51 


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that apply generally to all SIP revisions. 

The TCEQ has developed the Flexible 

Permit Program as a component of the 

Texas Minor NSR program; therefore, 

we evaluated the Texas Flexible Permit 

Program as submitted in October 21, 

2013, and the commitment letter against 

the federal requirements for minor NSR 

programs. EPA’s evaluation is also 

informed by an interpretive letter sent 

by TCEQ on December 9, 2013, 

clarifying certain aspects of the 

program. In an earlier Federal Register 

proposed action, EPA articulated its 

position on the use of interpretive 

letters in evaluating SIPs: 

EPA believes that the use of interpretive 

letters to clarify perceived ambiguity in the 

provisions in a SIP submission is a 

permissible and sometimes necessary 

approach under the CAA. Used correctly, and 

with adequate documentation in the Federal 

Register and the docket for the underlying 

rulemaking action, reliance on interpretive 

letters can serve a useful purpose and still 

meet the enforceability concerns of the 

Petitioner. Regulated entities, regulators, and 

the public can readily ascertain the existence 

of interpretive letters relied upon in the 

EPA’s approval that would be useful to 

resolve any perceived ambiguity. By virtue of 

being part of the stated basis for the EPA’s 

approval of that provision, the interpretive 

letters necessarily establish the correct 

interpretation of any arguably ambiguous SIP 

provision. In addition, reliance on 

interpretive letters to address concerns about 

perceived ambiguity can often be the most 

efficient and timely way to resolve concerns 

about the correct meaning of regulatory 

provisions. Both air agencies and the EPA are 

required to follow time- and resourceintensive administrative processes in order to 

develop and evaluate SIP submissions. It is 

reasonable for the EPA to exercise its 

discretion to use interpretive letters to clarify 

concerns about the meaning regulatory 

provisions, rather than to require air agencies 

to reinitiate a complete administrative 

process merely to resolve perceived 

ambiguity in a provision in a SIP submission. 

In particular, the EPA considers this an 

appropriate approach where reliance on such 

an interpretive letter allows the air agency 

and the EPA to put into place SIP provisions 

that are necessary to meet important CAA 

objectives and for which unnecessary delay 

would be counterproductive. (78 FR 12460, 

12475, February 22, 2013). Texas’ 

interpretive letter is in the docket for this 

action and is discussed throughout this 

notice. 

As we stated above, 40 CFR 51.160 

establishes the enforceable procedures 

that all minor NSR programs must 

include. We will address the specific 

requirements for enforceability in 

Section A below. 40 CFR 51.161 

establishes the public notice 

requirements for minor NSR programs. 

We will address the public notice 

requirements more fully in a following 

Section B. Sections 51.160–51.164 

require that a SIP revision demonstrate 

that the adopted rules will not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the CAA. We will 

address the specific requirements for 

permitting activities that ensure 

attainment more fully in a following 

Section C. 

EPA notes that in response to its final 

disapproval on the Flexible Permits 

Rule on July 15, 2010, the TCEQ 

adopted, on December 14, 2010, revised 

Sections of the Texas Administrative 

Code which resulted in changes to 

Chapter 116. In recent discussions with 

EPA, the State agreed to submit for our 

consideration portions of those rules in 

conjunction with the prior submittal 

addressed in EPA’s July 15, 2010, 

action. A discussion of the portion of 

the applicable December 14, 2010, rule 

that was included in the submittal 

package is also included in the section 

A.(1–5) below. 

A. Federal Requirements for 

Enforceability of the Minor NSR 

Program 

The Federal requirements for 

enforceability are found in 42 U.S.C. 

7410(a)(2)(A) and 42 U.S.C. 

7410(a)(2)(C) as interpreted by the EPA 

guidance discussed below. The EPA has 

several regulations that address all SIPs 

and SIP revisions. In addition to the 

generally applicable rules discussed 

below, the requirement for 

enforceability of a minor NSR program 

is found at 40 CFR 51.160. This rule 

specifically requires the state or local 

agency to have the authority to prevent 

the construction of a facility or 

modification that will cause a violation 

of applicable portions of the control 

strategy or interfere with attainment or 

maintenance of a NAAQS. To 

accomplish this goal, the state’s minor 

NSR program must include the means 

by which the state agency will review 

proposed new construction or 

modification projects to determine that 

such projects will not interfere with the 

control strategy or cause a violation of 

a NAAQS. The minor NSR program 

must include the following in 

accordance with 40 CFR 51.160(c): 

• The minor NSR program must 

provide for the submission, by the 

owner or operator of the building, 

facility, structure or installation to be 

constructed or modified, such 

information on the nature and amounts 

of emissions to be emitted by it or 

emitted by associated mobile sources; 

and the design, construction and 

operation of such facility, building, 

structure, or installation as may be 

necessary to allow the permitting 

authority to make a determination on 

approvability. 

• The minor NSR program must 

provide that approval of any 

construction or modification must not 

affect the responsibility of the owner or 

operator to comply with applicable 

portions of the control strategy. 

• The minor NSR program must 

include procedures to identify the types 

and sizes of facilities, buildings, 

structures, or installations which will be 

subject to review. The minor NSR 

program must also discuss the basis for 

determining which facilities will be 

subject to review. 

• The minor NSR program must also 

discuss the air quality data and the 

dispersion or other air quality modeling 

used to make approval decisions. 

The Court in its Opinion stated that 

in disapproving the Texas Flexible 

Permit Program, the EPA failed to 

explain or tie replicability, clarity and, 

in general, elements of the enforcement 

guidance to standards provided for in 

the CAA. See, 690 F.3d 670, 683–4. 42 

U.S.C. 7410(a)(2) provides that a SIP 

must include enforceable emission 

limitations. It is this CAA requirement 

that the SIP be enforceable that provides 

the legal basis for requiring that a 

program meet criteria necessary for 

enforceability. Enforceability is required 

by the Act and without it the EPA, the 

states, and the citizens who wish to 

determine whether or not a regulated 

entity is in compliance, and then to 

enjoin any violations, will find it 

difficult to take action to ensure 

compliance. Being able to enforce 

permits and rules adequately provides 

interested parties the ability to return 

regulated entities to compliance. The 

collection of penalties both penalizes 

the offender and provides deterrence of 

future violations. Without adequate 

enforceability, EPA cannot ensure that a 

program submitted to be approved into 

the SIP will be protective of the 

NAAQS. See, 42 U.S.C. 7410(l). Minor 

sources have the potential to impact the 

NAAQS. EPA acknowledged this in the 

1986 rulemaking establishing the 

current version of 40 CFR 51.160–164 

(the minor source rules). The EPA stated 

that ‘‘The very fact that such [minor] 

sources are subject to review indicates 

that it would be appropriate to require 

that EPA be notified of permitting 

actions on such sources [minor] for 

oversight purposes. Moreover, a large 

number of minor sources could have a 

significant cumulative effect on air 

quality.’’ See, 51 FR 40656, 40658 


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7These sources include minor sources as well as 

major sources seeking minor modifications to their 

facilities. 

8See 57 FR 13498, April 16, 1992. This is the 

General Preamble to the 1990 CCA Amendments 

which was meant to act as guidance for the State 

in making revisions to their NSR programs. It 

references the above memorandum as establishing 

the enforceability criteria for writing rules and 

permitting. See also Pgs, 13541, 13548. 

9See 67 FR 80186, 80190–80191 December 31, 

2002. 

November 7, 1986. These sources 7 have 

historically included some of the largest 

refinery and petrochemical companies 

in the State. These large sources very 

frequently have the need for minor NSR 

changes to their permits. The Appendix 

to the TSD contains a list of companies 

provided by the TCEQ on December 18, 

2013, that currently have or historically 

had coverage under a flexible permit 

issued prior to the rules becoming SIP 

approved. 

In addition to ensuring protection of 

the NAAQS, enforceability is required 

by the Act and in several regulations 

that are applicable to minor source 

programs as well as to all SIPs and SIP 

revisions. 42 U.S.C. 7410(a)(2) provides 

that a SIP must include enforceable 

emission limitations and control 

measures, coupled with methods for 

maintaining and analyzing data on air 

quality. EPA’s regulations implementing 

this provision require that: 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. In 

addition, 42 U.S.C. 7410(a)(2)(C) 

specifically provides that a program be 

established to provide for the 

enforcement of emission limitations. 

While the statute provides for 

considerably broader discretion for 

States to craft minor source programs, it 

does not in any way distinguish the 

requirement for enforceability between 

major and minor source programs. 

Indeed, since (as noted above), very 

large major sources obtain many minor 

source permits for construction and 

modification of emissions units, the 

collection of such permits at such 

sources should reflect similar levels of 

enforceability. Congress recognized this 

in establishing the Title V operating 

permit program, which collects all 

permits into a single comprehensive 

document, and requires the permitting 

authority to remedy past flaws related to 

permit enforceability. In addition, the 

following regulatory provisions lay out 

the framework for requirements for 

enforceability in SIPs, and in particular 

minor source programs. Certainly the 

statute makes no such distinction nor do 

the regulations. 40 CFR 51.160 provides 

in relevant part that each plan must set 

forth legally enforceable procedures that 

enable the State or local agency to 

determine whether there is violation of 

applicable portions of the control 

strategy. 40 CFR 51.281 provides, in 

relevant part, that emission limitations 

and other measures adopted by the state 

as rules and regulation must be 

enforceable by the State Agency. 40 CFR 

51.212(c) provides for an enforceable 

test method for each emission 

limitation. The Court discussed only the 

requirements found in 40 CFR 51.160– 

164, relating specifically to minor 

source permitting as applicable in this 

matter. However, all SIPs and SIP 

revisions must also comply with some 

additional requirements, found in part 

51 such as Subparts F, K, L and O. Thus, 

enforceability is a significant element in 

the Act and our regulations. 

EPA has, from time to time, also 

issued guidance that provides the 

Agency’s interpretation of what it means 

to be enforceable under the Act and 

implementing regulations. 

One of the central documents that sets 

forth our interpretation is the September 

23, 1987, Memorandum from J. Craig 

Potter, Assistant Administrator for Air 

and Radiation, and Thomas L. Adams 

Jr., Assistant Administrator for 

Enforcement and Compliance 

Monitoring, entitled ‘‘Review of State 

Implementation Plans and Revisions for 

Enforceability and Legal Sufficiency.’’ 8

In the memorandum, we explain that 

submitted rules that are clearly worded, 

clear as to who must comply, and 

explicit in their applicability to 

regulated sources are appropriate means 

for achieving the statutory enforcement 

requirement. Appropriate testing, 

recordkeeping, reporting, and 

monitoring provisions are necessary to 

establish how compliance will be 

determined and be sufficient to ensure 

that the NAAQS and PSD increments 

are protected. Attached to this 

memorandum was an implementation 

guidance which included a section 

entitled ‘‘SIP APPROVABILITY 

CHECKLIST—ENFORCEABILITY’’ 

regarding how to specifically evaluate 

proposed rules and ensure they are 

enforceable. 

On November 3, 1993, EPA’s John S. 

Seitz, Director, Office of Air Quality 

Planning and Standards, issued a 

memorandum titled ‘‘Approaches to 

Creating Federally-Enforceable 

Emissions Limits.’’ While its purpose 

was to give guidance as to how 

permitting authorities could create 

permit programs that would allow 

sources that would otherwise be major 

sources to be considered ‘‘minor’’ for 

the purposes of title V permitting and 

various other requirements of the Act, it 

also further articulates EPA’s 

interpretation of statutes and regulations 

as it relates to creating emissions limits 

that are legally and practically 

enforceable. It is EPA’s longstanding 

interpretation of 42 U.S.C. 7410(a)(2) of 

the CAA that in general federal 

enforceability has two parts: legal 

enforceability and practical 

enforceability. 

A requirement is ‘‘legally 

enforceable’’ if some authority (as well 

a citizen) has the right to enforce the 

restriction. Practical enforceability for a 

source-specific permit will be achieved 

if the permit’s provisions specify: (1) A 

technically accurate limitation and the 

portions of the source subject to the 

limitation; (2) the time period for the 

limitation (hourly, daily, monthly, and 

annual limits such as rolling annual 

limits); and (3) the method to determine 

compliance, including appropriate 

monitoring, recordkeeping, and 

reporting. For rules and general permits 

that apply to categories of sources, 

practical enforceability additionally 

requires that the provisions: (1) Identify 

the types or categories of sources that 

are covered by the rule; (2) where 

coverage is optional, provide for notice 

to the permitting authority of the 

source’s election to be covered by the 

rule; and (3) specify the enforcement 

consequences relevant to the rule. 

‘‘Enforceable as a practical matter’’ will 

be achieved if a requirement is both 

legally and practically enforceable.9 The 

above cited guidance and Federal 

Register notices demonstrate that EPA 

has consistently interpreted enforceable 

requirements of the CAA in the manner 

explained above, i.e., that they must be 

both legally and practically enforceable. 

We believe the Flexible Permit program 

before us today meets our interpretation 

of enforceable under the CAA. 

The provisions from the October 21, 

2013 submittal needed to ensure legal 

and practical enforceability are 

discussed in numbers 1–5 below. 

1. Identifying the New Facilities and/or 

Modifications for Inclusion in a Flexible 

Permit 

One key feature of an enforceable 

minor NSR program is the ability to 


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10See, 75 FR 41312, 41317. 

easily identify the facilities and 

modifications subject to the program. 

See, 40 CFR 51.160(e). For the Flexible 

Permit program, the establishment and 

identification of the facilities subject to 

the emission cap is crucial to proper 

implementation of the program. To 

provide for legally enforceable emission 

caps, the TCEQ adopted amendments to 

30 TAC Section 116.711(2)(M) on 

December 14, 2010, and included them 

in the package submitted for EPA 

approval on October 21, 2013. The 

submitted package requires permit 

applicants provide a complete 

description of the facilities (with their 

individually defined emission point 

numbers) included in an emissions cap. 

The package also allows a permit 

applicant to establish an emission cap 

for all facilities at an account, including 

every facility at the account, or to 

establish an emission cap comprised of 

a designated group of facilities at the 

account. Section 116.716(a) allows 

permit applicants full flexibility to 

designate facilities for inclusion in an 

emission cap as they see fit, without 

restriction on the type or location of the 

facility, as long as it (1) complies with 

the definition of account and 30 TAC 

Section 116.716(a) as submitted; (2) 

provides that emission caps be 

established for a pollutant for all 

facilities at an account or a designated 

group of facilities at an account. Finally, 

30 TAC Section 116.716(c) as submitted, 

includes text to ensure that the rules 

include procedures for establishing an 

emissions cap. See 35 TexReg 11936– 

11941. 

2. Inclusion of Appropriate Monitoring 

and Recordkeeping Requirements in 

Flexible Permits 

In addition to establishing the 

facilities and modifications subject to 

the minor NSR program, the SIP must 

require sufficient monitoring, 

recordkeeping, and reporting (MRR) to 

demonstrate that the source or 

modification as permitted will not result 

in a violation of the control strategy or 

an applicable NAAQS and is 

enforceable. One of the rationales for 

our original disapproval was that the 

program afforded excessively broad 

discretion to the director regarding 

whether or not to include MRR 

conditions in a Flexible Permit. See, 75 

FR 41312, 413213. Subsequent to the 

Fifth Circuit’s vacatur of our 

disapproval of the MRR and director’s 

discretion provisions in the original 

Flexible Permit program, EPA, in a 

separate rulemaking action, has more 

clearly articulated the Agency’s long 

standing interpretation of the CAA as it 

relates to the use of director discretion 

in SIPs. 

On February 22, 2013, in a proposed 

action involving how excess emissions 

would be treated in state rules by 

sources during periods of startup, 

shutdown, or malfunction (SSM), EPA 

extensively discusses the use of 

director’s discretion in SIPs. For the full 

discussion of this issue please see 78 FR 

12460, February 22, 2013, and the 

accompanying SSM legal memo: 

‘‘Memorandum to Docket EPA–HQ– 

OAR–2012–0322 Statutory, Regulatory, 

and Policy Context for this Rulemaking 

February 4, 2013.’’ In these documents 

EPA articulates the rationale for its 

longstanding interpretation that the 

CAA does not allow ‘‘director’s 

discretion’’ provisions in SIPs if they 

provide unbounded discretion to 

determine what requirements apply to 

sources, in ways that would amount to 

case-specific revisions of the SIP 

without meeting the statutory 

requirements of the CAA for SIP 

revisions. See, 78 FR 12460, 12474. 

The EPA has explained that director’s 

discretion provisions can be acceptable 

if such provisions are sufficiently 

specific, provide for sufficient public 

process, and are sufficiently bounded, 

so that it is possible to anticipate at the 

time of the EPA’s approval of the SIP 

provision how that provision will 

actually be applied and that the preauthorized exercise of director’s 

discretion will not interfere with other 

CAA requirements, such as providing 

for attainment and maintenance of the 

NAAQS. See, 78 FR 12460, 12485. In 

the EPA’s judgment, the revised Flexible 

Permit Rule before us today is 

sufficiently bounded, provides for 

public participation, protects the 

NAAQS, and is enforceable. 

The disapproved package had 

provided that a source should have 

provisions for measuring emissions of 

air contaminants ‘‘as determined by the 

Executive Director,’’ and imposed no 

additional substantive requirements for 

such measurements and did not prevent 

the Director from exempting the source 

from any requirements at all. Thus, it 

did not comport with the requirements 

specified in EPA’s recent notice. The 

revised Flexible Permit Rule, as 

submitted in October 2013, does not 

contain any provision that could 

constitute or authorize a complete 

variance or an exemption from 

monitoring. The State in its interpretive 

letter clearly confirms that its rules do 

not allow for an exemption from 

monitoring requirements. The 

requirements for monitoring are general 

in nature but are sufficiently bounded to 

be approvable. In particular, TCEQ 

adopted amendments to 30 TAC Section 

116.715(d)(1) to satisfy EPA concerns 

about the exercise of director’s 

discretion. Section 116.715(d)(1) 

provides that the ‘‘monitoring system 

must accurately determine all emissions 

of the pollutants in terms of mass per 

unit of time. Any monitoring system 

authorized for use in the permit must be 

based on sound science and meet 

generally acceptable scientific 

procedures for data quality and 

manipulation.’’ As explained in the 

TCEQ interpretive letter, this 

monitoring condition clearly constrains 

the director’s discretion. As such, it is 

consistent with the guidelines for 

director’s discretion provisions set forth 

in the EPA guidance just described. 

The newly submitted rule tracks very 

closely with the monitoring provisions 

set forth in EPA’s major source 

Plantwide Applicability Limitation 

(PAL) provisions in the federal PSD 

regulations (PAL). EPA’s PSD PAL 

provisions at 40 CFR 52.21(aa)(12) 

specify monitoring requirements for 

PAL permits and requires that all 

monitoring systems authorized for use 

in a PAL permit must be based on sound 

science and meet generally acceptable 

scientific procedures for data quality 

and manipulation. 

Moreover, in our original disapproval 

for the Flexible Permit Program, we 

cited to the PAL rule as an appropriate 

way to for the director to establish 

monitoring requirements.10 As noted 

above, TCEQ also submitted an 

interpretive letter clarifying how this 

provision in the program operates and 

demonstrates it is consistent with EPA 

requirements. In sum, these provisions 

effectively impose necessary substantive 

requirements on MRR provisions. 

The newly submitted Flexible Permit 

Program expands the MRR provisions to 

ensure enforceability of the program. 30 

TAC Section 116.715(c)(5)(A) requires 

each flexible permit to specify 

requirements for monitoring or 

demonstrating compliance with 

emission caps and individual emission 

limits in the flexible permit. 30 TAC 

Section 116.715(c)(5)(B) requires each 

flexible permit to specify emission 

calculation methods for calculating 

annual and short term emissions for 

each pollutant. We find that these 

provisions of the Flexible Permit 

Program were included in the revised 

SIP submission by the TCEQ on October 

21, 2013, See, 35 TexReg 11938–11939. 

These provisions establish that the 

overall program, and in particular the 

MRR provisions, provide for sufficient 

public process, and are sufficiently 


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bounded. It is possible to anticipate how 

the provision will actually be applied 

and that the pre-authorized exercise of 

director’s discretion will not interfere 

with other CAA requirements. They also 

ensure that the limits on director’s 

discretion are legally enforceable. See 

40 CFR 51.160 (requiring that minor 

source program include enforceable 

procedures.). 

3. Additional Elements Specific to 

Emissions Caps 

EPA has also concluded that the 

program, as submitted, contains other 

specialized provisions needed to ensure 

enforceability. Once the cap is 

established the facilities are then able to 

make changes without permit revisions 

provided the emissions are below the 

established emissions caps. The TCEQ 

has consistently defined the flexible 

permit program as a new type of minor 

NSR permit program which functions as 

an alternative to the traditional 

preconstruction permits that are 

authorized in Chapter 116, Subchapter 

B, NSR Permits. The TCEQ states that 

flexible permits were designed to 

exchange flexibility for further emission 

reductions without relaxation of unit 

specific control requirements. In its 

submittal, the TCEQ has included 

provisions in 30 TAC Section 

116.715(c)(5)(A) that satisfy the 

requirements that each flexible permit 

specify requirements for monitoring or 

demonstrating compliance with 

emission caps and individual emission 

limits in the flexible permit; 30 TAC 

Section 116.715(c)(5)(B) as submitted 

satisfies the requirement that each 

flexible permit specify emission 

calculation methods for calculating 

annual and short term emissions for 

each pollutant; and 30 TAC Section 

116.715(d)(1) to satisfy the requirements 

concerning accountability/

enforceability. Each of these 

amendments to the Flexible Permit 

Program was submitted as a SIP revision 

by the TCEQ on October 21, 2013. See, 

35 TexReg 11938–11939. 

4. Provisions To Ensure the Flexible 

Permit Program Is a Minor NSR Program 

Because the Flexible Permit program 

can be used for both true minor sources 

and for minor modifications at existing 

major sources, the program must 

include provisions to ensure that major 

NSR requirements are protected and 

that the Flexible Permit Program cannot 

be used to circumvent the requirements 

of either PSD or NNSR review. The 

TCEQ adopted provisions on December 

14, 2010, to further clarify the major 

NSR permitting programs. The TCEQ 

adopted amendments to 30 TAC Section 

116.711(2)(M)(vii) to specify that the 

flexible permit application must 

identify any terms, conditions, and 

representations in any Subchapter B 

permit which will be superseded by or 

incorporated under a flexible permit 

and provide an analysis of how the 

conditions and control requirements of 

a Subchapter B permit will be carried 

forward in the proposed flexible permit. 

Texas revised 30 TAC Section 

116.716(c)(2) to require facilities subject 

to lowest achievable emission rate 

(LAER) in accordance with Subchapter 

B, be included in a separate emissions 

cap or provided with individual 

emission limitations. This provision 

ensures that sources subject to LAER are 

fully controlled as required by federal 

NSR regulations. Each of these 

amendments to the Flexible Permit 

Program was submitted as a SIP revision 

by the TCEQ on October 21, 2013. Each 

of these amendments to the Flexible 

Permit Program ensures that the 

program is for minor NSR actions and 

that for any minor amendments to a 

major source, the source will retain its 

major source requirements (i.e., cannot 

be used to circumvent the major source 

requirements). Our evaluation of this 

issue is also informed by the Fifth 

Circuit Court of Appeals decision in 

Texas v. EPA, 690 F3d 670, (5th Cir 

2013) in which the Court overturned our 

disapproval of the rule. One of the major 

rationales of our earlier disapproval was 

that the Program might allow major 

sources to evade Major NSR. The EPA 

found that the Flexible Permit Program 

‘‘has no express regulatory prohibition 

clearly limiting its use to Minor NSR 

and has no regulatory provision clearly 

prohibiting the use of this submitted 

Program from circumventing the Major 

NSR SIP requirements.’’ See, 75 FR 

41312, 41,313. The Court dismissed 

EPA’s concern and expressly ruled that 

this was a program limited to minor 

sources only. ‘‘The Flexible Permit 

Program does not allow Major NSR 

evasion because it affirmatively requires 

compliance with Major NSR’’. Texas v. 

EPA, 690 F3d 670, 678. TCEQ included, 

as part of their October 21, 2013, 

submittal 30 TAC Sections 

116.711(8)&(9) which require 

compliance with PSD and 

Nonattainment review if it is found that 

those provisions apply. 

5. Provisions To Ensure the Flexible 

Permit Program Demonstrates 

Compliance 

An emissions cap program such as the 

Flexible Permit Program must include 

provisions for calculating compliance 

on a 12-month rolling average and 

against applicable short term limits in 

order to meet the requirement of Section 

302(k) of the CAA that the source be 

able to demonstrate continuous 

compliance. Appropriate emission 

calculations will ensure that permit 

conditions are protective of the control 

strategy and the applicable NAAQS. To 

provide for this, the TCEQ submitted 

amendments to the Flexible Permit 

Program on October 21, 2013, to 30 TAC 

Section 116.715(c)(5) to address 

monitoring, calculations, and 

equivalency of methods so that each 

flexible permit shall specify 

requirements for monitoring or 

demonstrating compliance with 

emission caps and individual emission 

limits in the flexible permit and revised 

30 TAC Section 116.715(c)(6)(A)(i) so 

that emission caps and individual 

emission limitation calculations are 

based on a 12-month rolling average and 

emission caps and individual emission 

limitation calculations correspond to 

any short term emission limitations. 

B. Federal Requirements for Public 

Notice of Minor NSR Permitting 

The requirements for public notice of 

minor NSR permitting are outlined at 40 

CFR 51.160 and 51.161. The legally 

enforceable approval procedures for 

Minor NSR programs at 40 CFR 51.160 

must require the permitting authority to 

provide opportunity for public comment 

on information submitted by sources 

and the agency’s analysis of the effects 

of the proposed source on ambient air, 

including its proposed approval or 

disapproval. See, 40 CFR 51.161(a). The 

opportunity for public comment must 

include, at a minimum, a 30-day 

comment period on the information 

submitted by the applicant and the 

permitting authority’s analysis of the 

effect of the proposed application on air 

quality. This information must be 

noticed by prominent advertisement in 

the area affected by the proposed source 

and available for public inspection in at 

least one location in the area affected. 

See, 40 CFR 51.161(b). 

1. Overview of the Texas Public 

Participation Process for Applications 

for New Flexible Permits and Flexible 

Permit Amendments 

The Texas public participation 

process covers the variety of air quality 

permit applications processed by the 

TCEQ including applications for 

permits for new major sources or 

modifications subject to PSD or NNSR 

requirements and minor NSR permit 

actions such as Flexible Permits. EPA 

has separately reviewed and approved 

the public participation process for 

major sources and modifications subject 

to PSD/NNSR requirements, PAL permit 


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11THSC, § 382.020 establishes emission control 

requirements for selected agricultural facilities such 

as cotton gins, corn mills, grain elevators, peanut 

processing, or rice drying facilities. 

authorizations at existing major sources, 

new minor sources or minor 

amendments, and permit renewals. See 

our final rule dated January 6, 2014, 

approving the Texas public 

participation requirements for these 

permit actions as consistent with the 

requirements of the CAA and 40 CFR 

51.160–51.166. See 79 FR 551. In 

today’s action we are only reviewing the 

Texas public participation program 

specific to applications for new and 

amended Flexible Permits pursuant to 

Chapter 116, Subchapter G. The public 

participation requirements for Flexible 

Permits are found at 30 TAC Section 

116.740, which requires any applicant 

for a new Flexible Permit or amendment 

to a Flexible Permit to comply with the 

requirements established in Chapter 39 

related to Public Notice. Among other 

Sections that apply to both flexible 

permit applications and other 

applications, Chapter 39 separately 

applies the public participation process 

to applications for new Flexible Permits 

at 30 TAC Section 39.402(a)(4) and 

applications for amendments to a 

Flexible Permit at 30 TAC Section 

39.402(a)(5). Because the Flexible 

Permits program is a minor NSR 

authorization, our evaluation of the 

public participation specific to flexible 

permits will be based on minor NSR 

public participation requirements of 40 

CFR 51.161. 

The following process is used to 

publish notice of an application for a 

new Flexible Permit or an amendment 

to a Flexible Permit.: 

1. Applicant submits air quality 

permit application for new or amended 

Flexible Permit to TCEQ. See 30 TAC 

Section 116.711. 

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 116.714, which cross-references 

the requirements at30 TAC Section 

116.114(a)(1). 

3. Once the application is 

administratively complete, the applicant 

is required to publish the first notice, 

the Notice of Receipt of Application and 

Intent to Obtain Permit (NORI), as 

applicable. See 30 TAC Section 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. The NORI is required for all 

new applications for Flexible Permits at 

30 TAC Section 39.402(a)(4) and most 

applications for amendments to Flexible 

Permits at 30 TAC 39.402(a)(5). Note 

that certain applications for Flexible 

Permit amendments are exempted from 

the Chapter 39 public notice provisions 

as discussed in this proposed action at 

Section IV.B.3. 

4. TCEQ completes the technical 

review and makes a preliminary 

decision. The TCEQ has 180 days from 

the date a new Flexible Permit 

application is administratively 

complete, or 150 days from the date a 

Flexible Permit amendment application 

is administratively complete, to conduct 

the technical review and make a 

preliminary decision. See 30 TAC 

116.714, which cross-references the 

requirements at 30 TAC Section 

116.114(a)(2). 

5. The applicant is required to publish 

the second notice, the Notice of 

Application and Preliminary Decision 

(NAPD) when notified by TCEQ of the 

preliminary decision. See 30 TAC 

Section 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. NAPD is 

required for all air quality permit 

applications for new Flexible Permits 

and most Flexible Permit applications 

subject to the Chapter 39 public notice 

provisions. Note that certain 

applications for Flexible Permit 

amendments are exempted from the 

Chapter 39 public notice provisions as 

discussed in Section V.A.3. of the TSD 

accompanying this proposed action at 

section IV.B.3. 

6. The TCEQ files the Executive 

Director’s (ED) draft permit and 

preliminary decision, the preliminary 

determination summary and air quality 

analysis with the chief clerk and the 

clerk posts this information on the 

TCEQ’s Web site. See 30 TAC Section 

39.419(e). 

7. The comment period runs for 30 

days after the last publication of the 

NAPD discussed in Step 5. See 30 TAC 

Section 55.152(a)(1). 

8. A public meeting is held if the ED 

determines there is a substantial or 

significant degree of public interest; if 

the meeting is requested by a member of 

the legislature representing the general 

area of the proposed facility/

modification; if a public meeting is 

otherwise required by law. See 30 TAC 

Section 55.154(c). 

9. The ED prepares a response to all 

comments received. See 30 TAC Section 

55.156(b)(1). 

10. The ED files the response to 

comments with the chief clerk as soon 

as practicable, but not later than 60 days 

after the end of the comment period. See 

30 Section TAC Section 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 Section 55.156(c). 

12. The ED will take final action on 

the permit application within 150 days 

of receipt of a Flexible Permit 

amendment application or 180 days for 

a new Flexible Permit application. The 

TCEQ’s one-year clock is based on the 

completion of the technical review and 

the publication of the NAPD as 

provided in Step 5. See 30 TAC 116.714, 

which cross-references the requirements 

at 30 TAC Section 116.114(c)(3). 

2. Analysis of the Submitted Public 

Participation Rules for Flexible Permits 

as Minor NSR Requirements 

The Texas public participation 

requirements for Flexible Permit 

applications are outlined at 30 TAC 

Section 39.402 and apply to the 

following types of permits. 

• New flexible permits under Chapter 

116, Subchapter G—30 TAC Section 

39.402(a)(4). 

• Amendments to flexible permits 

under Chapter 116, Subchapter G when 

the amendment involves: 

(a) A change in 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)—30 TAC 

Section 39.402(a)(5)(A); 

(b) The total emissions increase from 

all facilities to be authorized under the 

amended Flexible Permit at a facility 

not affected by THSC, section 382.020,11

exceeds the State’s established ‘‘de 

minimis’’ levels—30 TAC Section 

39.402(a)(5)(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 


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found in 30 TAC Section 

39.402(a)(5)(C); or 

(d) Other minor amendments to 

Flexible Permits where the Executive 

Director determines reasonable 

likelihood for interest or impact—30 

TAC Section 39.402(a)(5)(D)(i)–(iv). 

Despite the thresholds established in 

30 TAC Sections 39.402(a)(5)(B) and (C), 

the TCEQ rules at 30 TAC Section 

39.402(a)(5)(D) vest the TCEQ Executive 

Director with the authority to require 

public notice for an otherwise exempt 

Flexible 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, Sections 5.753 

and 5.754 and the Compliance History 

Rules at 30 TAC Chapter 60. This type 

of Director’s Discretion is appropriate 

for a minor source program because the 

exercise of that discretion is bounded by 

the four criteria identified above, and 

because the discretion allows the 

director to increase requirements rather 

than to authorize exceptions to those 

requirements. See 78 FR at 12585–86 

and the discussion above at IV, A, 2. 

The notice requirements for each type 

of Flexible Permit application listed 

above are generally the same, meaning 

that an application for a new Flexible 

Permit and an application to amend a 

Flexible Permit will have the same 

public notice requirements. The 

submitted Texas rules generally provide 

that all applications for new Flexible 

Permits and applications for qualifying 

Flexible Permit amendments will go 

through public notice using the Texas 

NORI and NAPD notices. Therefore, the 

public will receive notice of the 

application and have the opportunity to 

comment on the draft permit and 

accompanying technical information. 

Note that the applicant is legally 

responsible for the publication of the 

NORI and NAPD, using the specific 

notice text provided through regulations 

by the TCEQ. The applicant is also 

legally responsible for providing copies 

of the public notice documents to the 

EPA Regional Office, local air pollution 

control agencies with jurisdiction in the 

county, and air pollution control 

agencies of nearby states that may be 

impacted by the proposed new source or 

modification. The NORI and NAPD both 

identify locations where materials, 

including the draft permit and all 

technical materials supporting the 

decision, will be made available for 

public review. The TCEQ will respond 

to each comment received when making 

a final permit decision. The TCEQ will 

also provide opportunity for a public 

meeting on the permit application if 

requested. On January 6, 2014, the EPA 

approved the Texas Public Participation 

rule, which includes the general notice 

requirements of the NORI and NAPD as 

consistent with federal requirements at 

40 CFR 51.160 and 51.161. See 79 FR 

551. See docket EPA–R06–OAR–2010– 

0612 in www. regulations.gov. EPA 

views the public participation 

applicability provisions at 30 TAC 

Sections 39.402(a)(4) and (a)(5) as 

integral to the functionality and 

implementation of the Texas Flexible 

Permits Program. As such, it is 

inappropriate to give full approval for 

these public participation provisions 

that apply to the Texas Flexible Permits 

Program until the underlying program is 

fully approved. Additionally, fully 

approving these public participation 

provisions without full approval of the 

underlying Flexible Permits Program 

may create confusion for the public and 

the regulated community. Therefore, we 

propose to find it appropriate to 

conditionally approve the notice 

provisions consistent with our actions 

on the underlying Flexible Permits 

Program. In today’s notice we are 

proposing to conditionally approve the 

applicability requirements at 30 TAC 

Sections 39.402(a)(4) and (a)(5) that 

require an applicant to follow the NORI 

and NAPD processes for applications for 

new and amended Flexible Permits. 

3. Minor NSR Public Notice 

Requirements Specific to Two Types of 

Minor NSR Flexible Permit Amendment 

Applications 

As explained above, the submitted 

Texas public participation provisions 

create a tiered program, wherein two 

certain types of Minor NSR Flexible 

Permit 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 

Flexible Permits Emission Thresholds 

and Affected Source Populations 

• Thresholds are only used for 

Flexible Permit amendment 

applications. Applications for new 

Minor NSR Flexible Permits are 

required by these submitted rules to go 

through the public procedures of the 

NORI and NAPD. The applications for 

amendments to Flexible Permits 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 

agricultural facilities such as corn mill, 

cotton gin, feed mill, grain elevator, 

peanut processing facility or rice drying 

facility. 

Æ 30 TAC Section 39.402(a)(5)(B) 

provides that if the application for the 

amendment of a Flexible Permit 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 Flexible Permit 

amendment does not exceed any of the 

following levels established by the State 

as ‘‘de minimis’’ levels: 

D 50 tons per year (TPY) carbon 

monoxide (CO) 

D 10 TPY sulfur dioxide (SO2) 

D 0.6 TPY lead (Pb) 

D 5 TPY of NOX, volatile organic 

compounds (VOC), particulate matter 

(PM), or any other contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and oxygen. 

Æ 30 TAC Section 39.402(a)(5)(C) 

provides that if the amendment for a 

Flexible Permit 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 Flexible Permit amendment does not 

exceed any of the following thresholds 

established by the State as 

‘‘insignificant’’ thresholds: 

D 250 TPY CO or NOX

D 25 TPY of VOC, SO2, PM or any 

other air contaminant except carbon 

dioxide, water, nitrogen, methane, 

ethane, hydrogen, and oxygen. 

D A new major stationary source or 

major modification threshold as defined 

in 30 TAC Section 116.12 of this title 

D A new major stationary source or 

major modification threshold, as 

defined in 40 CFR 52.21 under the PSD 

requirements 

• If the Flexible 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 Flexible 

Permit amendment application will go 

through the NORI and NAPD 

publication process. 

ii. Discussion of the ‘‘De minimis’’ and 

‘‘Insignificant’’ Thresholds for Minor 

NSR Flexible Permit Amendments 

The thresholds established by the 

State as ‘‘de minimis’’ thresholds at 30 


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12Email from Janis Hudson, TCEQ to Adina 

Wiley, EPA titled ‘‘Flexible Permit Amendment 

Applications’’ dated September 11, 2013. 

13Email from Janis Hudson, TCEQ to Adina 

Wiley, EPA, titled ‘‘Flexible Permit Amendment 

Applications—Clarification’’ dated October 23, 

2013. 

TAC Section 39.402(a)(5)(B) apply to all 

minor NSR Flexible Permit amendment 

applications, except those for affected 

agricultural facilities. The thresholds 

selected by the State at 30 TAC Section 

39.402(a)(5)(C), and called 

‘‘insignificant’’ thresholds, apply only to 

minor NSR Flexible Permit amendment 

applications for affected agricultural 

facilities. 

Within the scope of the Texas Minor 

NSR program, the ‘‘de minimis’’ and 

‘‘insignificant’’ thresholds distinguish 

those minor Flexible 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 NSR 

Flexible Permit amendment 

applications or the requirement to 

comply with other requirements such as 

application of required control 

technology, reporting when required to 

the emissions inventory, and analysis of 

monitoring data. Additionally, being 

below the ‘‘de minimis’’ or 

‘‘insignificant’’ threshold does not 

override any notice or technical 

requirements for PSD, NNSR or new 

Minor NSR Flexible Permit 

applications. 

In our January 6, 2014, final 

rulemaking approving Texas public 

participation, we found that TCEQ 

provided an adequate demonstration to 

show that their selected ‘‘de minimis’’ 

and ‘‘insignificant’’ thresholds for Minor 

NSR permitting are adequate to meet 

federal requirements for Minor NSR. See 

79 FR 551. The State’s demonstration is 

also applicable to the thresholds as they 

apply to minor amendments to existing 

Flexible Permits. TCEQ also provided 

supplemental information concerning 

the Flexible Permit holders’ use of these 

thresholds since they were adopted by 

the State.12 13 The supplemental data are 

also included in the docket for this 

rulemaking. Our analysis of this 

supplemental information demonstrates 

that from Fiscal Year 1994 through 

Fiscal Year 2013, the TCEQ issued only 

one Flexible Permit to a facility that 

would be classified as an agricultural 

facility under THSC 382.020. This 

agricultural facility never applied for a 

flexible permit amendment and has 

subsequently gone through the de-flex 

process. Consequently, there are no 

existing Flexible Permits for affected 

agricultural sources; therefore the 

‘‘insignificant’’ thresholds are not 

available for use for any current flexible 

permit holders. Additionally, this 

supplemental information demonstrates 

that prior to Texas Fiscal Year 2002, 

flexible permit amendments issued to 

non-agricultural facilities did not go 

through public notice. Fiscal Year 2002 

represents the time period where TCEQ 

adopted and implemented the ‘‘de 

minimis’’ and ‘‘insignificant’’ 

thresholds. Since the time of adoption 

and implementation at the state level of 

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

thresholds in Fiscal Year 2002, the 

TCEQ records indicate that 326 

amendments to flexible permits have 

been issued. Of the 326 applications for 

amendments to Flexible Permits, 135 

applications have been required to go 

through notice due to the application of 

the thresholds. Our analysis of this 

supplemental information leads us to 

conclude that the application of the ‘‘de 

minimis’’ and ‘‘insignificant’’ thresholds 

specific to applications for Flexible 

Permit amendments increases the 

opportunity for public notice and 

participation in Texas. In the TSD for 

this rulemaking, we have included 

EPA’s full analysis of the State’s 

rationale for these thresholds and a 

discussion of the supplemental data 

provided by TCEQ. We propose to find 

this demonstration meets 40 CFR 51.160 

and 51.161. 

4. How do the Texas public notice 

provisions for applications for new and 

amended flexible permits address the 

concerns identified in EPA’s November 

26, 2008 proposed limited approval/

limited disapproval for Texas public 

participation? 

On November 26, 2008, EPA 

identified two deficiencies in the Texas 

public participation rules specific to 

applications for new Flexible Permits 

and amendments to Flexible Permits. 

See 73 FR 72001, at 72008. Below we 

reiterate the deficiencies and discuss 

how the revised Texas public 

participation process for applications 

for new Flexible Permits and 

amendments to Flexible Permits 

addresses our concerns. 

• For initial issuance of a flexible 

permit to establish a minor NSR 

applicability cap or an increase in a 

flexible permit cap, the rules do not 

require 30-day notice and comment on 

information submitted by the owner or 

operator and the agency’s analysis of the 

effect of the permit on ambient air 

quality, including the agency’s proposed 

approval or disapproval as required by 

40 CFR 51.161. 

The public participation requirements 

specific to applications for new Flexible 

Permits and amendments to Flexible 

Permits at 30 TAC Sections 39.402(a)(4) 

and (a)(5) address the deficiency 

identified on November 26, 2008. All 

applications for new Flexible Permits 

are required at 30 TAC Section 

39.402(a)(4) to go through public notice 

as specified in Chapter 39; which means 

that all applications for new Flexible 

Permits must publish the NORI 

pursuant to 30 TAC Section 39.418 and 

the NAPD pursuant to 30 TAC Section 

39.419. The public notice process for a 

new Flexible Permit will run through 

two different publication dates. The first 

public notice announces the company 

has applied to the TCEQ for a flexible 

permit. This date is initially published 

first using the NORI. The second public 

notice announces the release of the draft 

permit. The entire public notice period 

runs through the end of the second 30- 

day comment period on the draft 

permit. The date may be extended 

through the date of any public meeting 

that was scheduled wherein the public 

can review TCEQ’s analysis and 

preliminary determination. All 

applications for amendments to Flexible 

Permits are required at 30 TAC Section 

39.402(a)(5) to go through public notice 

as specified in Chapter 39 using the 

NORI and NAPD process if the 

amendment will exceed the ‘‘de 

minimis’’ or ‘‘insignificant’’ thresholds. 

• Where PSD and NNSR terms and 

conditions are modified or eliminated 

when the permit is incorporated into a 

flexible permit, the rules do not require 

public participation consistent with 40 

CFR 51.161 and 51.166(q). 

As explained in Section IV.A.4 of this 

proposed rulemaking, the TCEQ 

adopted amendments to 30 TAC Section 

116.711(2)(M)(vii) to specify that the 

flexible permit application must 

identify any terms, conditions, and 

representations in any Subchapter B 

permit which will be superseded by or 

incorporated under a flexible permit 

and provide an analysis of how the 

conditions and control requirements of 

a Subchapter B permit will be carried 

forward in the proposed flexible permit. 

This amendment to the Flexible Permit 

Program was submitted as a SIP revision 

by the TCEQ on October 21, 2013, and 

will ensure that the Flexible Permit 

Program is for minor NSR actions only 

and will not circumvent the major 

source requirements. 

Section 30 TAC Section 39.402(a)(4) 

provides that an application for a new 

flexible permit must go through Chapter 

39 public notice. Therefore, where a 

new flexible permit application will 

supersede or incorporate any term, 

condition, and/or representation of a 

Subchapter B permit, this information 

will be available for review and 


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comment during the required NORI and 

NAPD publication for an application for 

a new flexible permit. Similarly, 30 TAC 

Section 39.402(a)(5)(A)–(C) requires that 

an application for an amendment to a 

flexible permit application must go 

through Chapter 39 public notice if the 

amendment is for an air contaminant 

not previously authorized or the 

amendment exceeds the identified ‘‘de 

minimis’’ or ‘‘insignificant’’ thresholds. 

The TCEQ Executive Director also has 

the discretion under 30 TAC Section 

39.402(a)(5)(D) to require notice for an 

application for a Flexible Permit 

amendment that would not otherwise be 

required to provide notice. 

5. Proposed Findings Specific to the 

Texas Public Participation Provisions 

for the Flexible Permit Program 

EPA proposes to find that TCEQ’s 

public participation program 

requirements specific to applications for 

new Flexible Permits and applications 

for amendments to Flexible Permits at 

30 TAC Sections 39.402(a)(4) and (5) 

satisfy the provisions of 40 CFR 

51.160(e) and 51.161. Moreover, we also 

propose to find that the TCEQ revised 

rules for discretionary public notice for 

new Flexible Permits and applications 

for amendments to Flexible Permits are 

approvable, because the provisions 

adequately confine Executive Director 

discretion by authorizing the use of 

discretion under specified criteria that 

are consistent with the goals and 

purposes of the Act to provide an 

adequate opportunity for informed 

public participation. EPA is proposing 

to find that the submitted Texas public 

participation regulations identifying the 

applicant as the legally responsible 

party also meet the requirements to 

provide opportunity for public comment 

and for information availability at 40 

CFR 51.161, because the NORI and 

NAPD both identify locations where 

materials, including the draft permit 

and all technical materials supporting 

the decision will be made available for 

public review and the required 

information is submitted to EPA. 

Finally, as explained above, we 

propose to find that the submitted 

provisions address all deficiencies 

specific to public notice for Flexible 

Permits that we previously cited in our 

November 26, 2008, proposed limited 

approval/limited disapproval of Texas 

public notice requirements. However, 

EPA views the public participation 

applicability provisions at 30 TAC 

Sections 39.402(a)(4) and (a)(5) as 

integral to the functionality and 

implementation of the Texas Flexible 

Permits Program. As such, it is 

inappropriate to give full approval for 

these public participation provisions 

that apply to the Texas Flexible Permits 

Program until the underlying program is 

fully approved. Additionally, fully 

approving these public participation 

provisions without full approval of the 

underlying Flexible Permits Program 

may create confusion for the public and 

the regulated community. Therefore, we 

propose to find it appropriate to 

conditionally approve the notice 

provisions consistent with our actions 

on the underlying Flexible Permits 

Program. Accordingly, we propose 

conditional approval of the Texas public 

notice provisions at 30 TAC Sections 

39.402(a)(4) and (a)(5) for applications 

for new Flexible Permits and 

applications for amendments to Flexible 

Permits as submitted on July 2, 2010. 

Additionally, we propose conditional 

approval of the public participation 

requirement in the Flexible Permit 

Program at 30 TAC Section 116.740 as 

initially submitted on November 29, 

1994; and further revised on July 22, 

1998; October 25, 1999; and October 21, 

2013. 

C. Does proposed approval of the Texas 

Flexible Permit Program interfere with 

attainment, reasonable further progress, 

or any other applicable requirement of 

the Act? 

Under Section 110(l) of the CAA, the 

regulations submitted as a SIP revision 

adopting and implementing the Texas 

Flexible Permit Program must meet the 

procedural requirements of Section 

110(l) by demonstrating that the State 

followed all necessary procedural 

requirements such as providing 

reasonable notice and public hearing of 

the SIP revision. Additionally, the SIP 

revision must demonstrate that the 

adopted rules will not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the CAA. We propose to 

find that the TCEQ satisfied all 

requirements pursuant to Section 110(l). 

See Section IV.A. of the accompanying 

TSD developed in support of this action 

including the sections Administrative 

Materials (2.1) and Technical Support 

(2.2). 

The regulation of minor sources is a 

requirement of the CAA and EPA’s 

regulations at 40 CFR 51.160–51.164. As 

discussed in this proposed action and in 

the accompanying TSD, EPA proposes 

that the Flexible Permit Program as 

submitted October 21, 2013, satisfies the 

minimum requirements for minor NSR 

programs, including adequate 

provisions for enforceability and public 

participation to ensure protection of the 

control strategy and any applicable 

NAAQS. The Flexible Permit Program 

also contains sufficient safeguards to 

prevent circumvention of major NSR 

permitting requirements. Therefore, we 

propose that the Flexible Permit 

Program is protective of the NAAQS and 

applicable control strategy requirements 

and satisfies the requirements of 110(l) 

of the Act. 

D. TCEQ’s Interpretive Letter 

Below are excerpts from the December 

9, 2013, interpretive letter (letter) 

provided by the TCEQ. This letter was 

requested by EPA to clarify perceived 

ambiguity in certain provisions in the 

SIP submission and to also describe 

how the program will be implemented. 

The full text of the letter can be found 

in the Docket for this action. We believe 

this letter clarifies the following aspects 

of the Flexible Permit Program and 

supports our determination that the 

Submittal is conditionally approvable. 

• EPA asked for clarification on how 

director discretion is used in the rule in 

establishing monitoring and 

recordkeeping. The letter states that 

director discretion does not act as a 

variance to the monitoring and 

recordkeeping requirements. Texas 

asserts in its letter that ‘‘TCEQ does not 

allow an exemption or waiver from 

these statutory and regulatory 

monitoring and recordkeeping 

requirements.’’ They further assert that 

the ‘‘monitoring condition is bounded 

by the requirement to be based on sound 

science and meet generally acceptable 

scientific procedures for data quality 

and manipulation. The sampling 

methods and procedures are those 

generally recognized in the field of air 

pollution or new methods or procedures 

with demonstrated scientific 

applicability.’’ Whatever the 

requirements the Executive Director 

imposes, permit holders must maintain 

information ‘‘sufficient to demonstrate 

continuous compliance’’ with the 

emission caps and individual limits. 30 

TAC Section 116.715(c)(6). We agree 

with TCEQ that this ensures the 

Program’s enforceability and conclude 

that the information in the letter 

supports our proposed conditional 

approval. 

• EPA asked for clarification 

regarding how pollution control 

equipment should be maintained and 

operated during startup/shutdown. The 

State explained in its letter that the 

process works as follows: ‘‘The Flexible 

Permit Program (FPP) requires controls 

to be operated during normal facility 

operation. This rule may be construed to 

require operation of emission controls 

only during routine facility operations, 

potentially exempting sources during 


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startups or shutdowns (not 

malfunctions), but that is accurate only 

to the extent that the permit only 

authorizes routine operations. Emission 

limits for startups and shutdowns, 

appropriately modeled during permit 

development, may be authorized and be 

subject to a separate emissions cap in 

the flexible permit. The TCEQ does not 

authorize malfunctions, and therefore 

those emissions are not subject to any 

use of control equipment, although the 

control equipment must be used where 

feasible, to minimize emissions where 

possible during periods of unauthorized 

emissions. Excess emissions that occur 

during unauthorized startups, 

shutdowns or malfunctions are not 

excused by the FPP.’’ We agree with 

TCEQ that this interpretation of their 

rule adequately addresses startups, 

shutdowns, and malfunctions and 

conclude that the information in the 

letter supports our proposed conditional 

approval. EPA asked for clarification on 

how the Texas SIP approved alternative 

permitting mechanisms may be used to 

alter a flexible permit. Also we wanted 

to understand in detail that any such 

changes, using alternative permit 

mechanisms (Standard permits or 

Permits by Rule (PBR)), would not be 

allowed if they violate the terms of an 

existing flexible permit. For example, if 

the flexible permit contains a 100 tpy 

cap then a facility (see Section II.M. 

regarding an explanation of how TCEQ 

defines ‘‘facility’’) should not be able to 

use a PBR to get authorization to 

increase emissions by 10 tons without 

amending the flexible permit. The State 

responded, in part, that ‘‘Either of these 

authorizations may be used for facilities 

that are subject to a flexible permit cap, 

but the Standard Permit or PBR limits 

must be contained within the flexible 

permit cap, and cannot be used to relax 

or minimize any existing permit 

condition (such as recordkeeping, 

monitoring, reporting, testing, BACT, 

etc.). If one of these authorizations was 

allowed without being part of the 

emissions subject to the cap, such an 

approach would circumvent the basis 

used to establish the flexible permit, 

and could potentially affect the control 

technology, monitoring and testing 

requirements that were used to establish 

the emission cap.’’ In addition, Texas 

explained that ‘‘standard permits and 

PBRs cannot be used to alter compliance 

obligations in a flexible permit. Further, 

if more than one state or federal rule or 

regulation or permit conditions are 

applicable, the most stringent limit or 

condition shall govern and be the 

standard by which compliance shall be 

demonstrated’’. We agree with TCEQ 

that this clarification about how 

alternative permitting mechanisms may 

be used to alter a flexible permit 

resolves our concern and conclude that 

the information in the letter supports 

our proposed conditional approval. EPA 

asked for clarification on the 

relationship between an issued permit 

and the permit application. Specifically, 

do the Texas rules require the permit 

application be updated with the permit 

terms so there is never a situation where 

compliance with the permit application 

would not be the same as compliance 

with the permit? In response Texas 

stated, ‘‘The permit application, and all 

the representations in it, is part of the 

permit when it is issued and as such is 

enforceable. If more than one state or 

federal rule or regulation or flexible 

permit condition are applicable, then 

the most stringent limit or condition 

shall govern and be the standard by 

which compliance shall be 

demonstrated. The permit application is 

not updated after permit issuance 

except as necessary to demonstrate that 

the facilities can comply with the 

performance specified in the permit.’’ In 

addition, Texas stated, ‘‘As is the case 

with all TCEQ air quality permits, the 

permit application, which is part of the 

issued permit, continues to be read 

together with any permit changes made 

via an alteration or amendment.’’ We 

agree with TCEQ that this clarification 

about the relationship between an 

issued permit and the permit 

application resolves our concern and 

conclude that the information in the 

letter supports our proposed conditional 

approval. 

• EPA asked for clarification on how 

the State uses BACT to create the 

emissions cap. We specifically 

requested an interpretation on how 

BACT will be established and 

implemented for facilities (see 

discussion on TCEQ’s definition of 

‘‘facility’’) constructed prior to 1972 

(commonly referred to as grandfathered 

facilities); facilities constructed after 

1971 that will be under an emissions 

cap; and facilities that are subject to 

PSD permit requirements. In relevant 

part, Texas stated that with regard to 

grandfathered facilities, there are no 

longer any grandfathered facilities, for 

state permitting purposes, in Texas. At 

the time the Texas Clean Air Act 

(TCAA) was amended in 2001 to require 

these facilities to be permitted (or shut 

down), each had to install BACT that 

was at least ten years old. For facilities 

constructed after 1971, the TCEQ’s NSR 

permit rules require new or modified 

major or minor sources meet BACT 

regardless of whether there is or will be 

a cap in a minor NSR permit. The cap 

is established using a current BACT 

analysis, and, although minor sources 

may not have to add controls, removal 

of existing controls (which would be 

backsliding under the SIP) is not 

allowed. Therefore, all facilities under 

the cap must meet overall/collective 

BACT. When a new facility is 

authorized, the new facility must meet 

the current BACT level at the time it is 

authorized regardless of whether it is 

subject to an emissions cap. For 

facilities that are subject to a cap, BACT 

is evaluated for any new facility that is 

proposed to be added to what is already 

authorized under the cap. When 

existing facilities are modified, and the 

existing facilities are authorized under 

an existing emissions cap, BACT is 

reviewed and the cap is adjusted 

accordingly. Emission limitation caps 

are developed based on the potential to 

emit after the application of BACT (or, 

if applicable, lowest achievable 

emission rate) emission controls. 

Further, allowable emission limits, 

expressed as a cap for an individual 

facility, are expressed in terms of annual 

(tons per year) or short-term (e.g., 

pounds per hour) units. BACT is 

typically expressed in terms of a mass 

emission calculation, such as pounds 

per million British thermal units (lb/

MMBtu) or parts per million (ppm). 

Establishment of caps after application 

of the appropriate control technology 

does not relax the control technology.’’ 

We agree with TCEQ that this 

clarification about how BACT is used to 

create an emissions cap resolves our 

concern and conclude that the 

information in the letter supports our 

proposed conditional approval. 

• EPA asked for clarification on how 

the Flexible Permit Program relates to 

major source permitting. In response 

Texas stated, ‘‘facilities subject to PSD 

or non-attainment NSR requirements 

must meet control technology 

determined in accordance with SIP 

approved 30 TAC Chapter 116, 

Subchapter B requirements and 

removal, avoidance or circumvention of 

control equipment is not allowed for 

facilities subject to PSD or nonattainment NSR. We agree with TCEQ 

that this interpretation further supports 

that the Flexible Permit Program does 

not allow circumvention of major NSR 

and conclude that the information in the 

letter supports our proposed conditional 

approval. 

E. Summary of EPA’s Evaluation of the 

Flexible Permit Program as a Minor NSR 

Program 

For the reasons presented above, EPA 

finds that the Flexible Permit Program, 


tkelley on DSK3SPTVN1PROD with PROPOSALS
8386 Federal Register / Vol. 79, No. 29 / Wednesday, February 12, 2014 / Proposed Rules 

as submitted on October 21, 2013, is 

limited to minor NSR permitting. EPA 

finds that the program satisfies the 

federal requirements for minor NSR 

programs and contains sufficient 

enforceable safeguards to ensure that the 

NAAQS and applicable control 

strategies are protected. Further, the 

Flexible Permit Program prevents 

circumvention of major NSR 

requirements by stating at 30 TAC 

Section 116.716(c)(1)(A) that if a new 

source or modification subject to either 

a flexible permit or flexible permit 

amendment is subject to major NSR 

requirements, either PSD or NNSR, 

under 30 TAC Chapter 116, Subchapter 

B, then the major NSR permitting 

requirements will apply. 

Therefore, the EPA is proposing to 

conditionally approve the Flexible 

Permit Program based on the 

commitment from the TCEQ to adopt 

and submit Flexible Permit Program SIP 

revisions by November 30, 2014, that 

will reformat and organize the full 

program into a cohesive, 

understandable, and enforceable 

program as TCEQ proposed to do in its 

December 9, 2013, commitment letter. 

V. Proposed Action 

EPA proposes to conditionally 

approve the Texas Flexible Permit 

Program that was originally submitted 

as a revision to the Texas Minor NSR 

SIP Permit Program on November 29, 

1994. We also proposed to conditionally 

approve the Texas Flexible Permit 

Program as further amended on March 

13, 1996; July 22, 1998; October 25, 

1999; September 11, 2000; April 12, 

2001; July 31, 2002, September 4, 2002; 

October 4, 2002; September 25, 2003; 

July 2, 2010; October 5, 2010; and 

October 21, 2013. Our proposed 

conditional approval of the Texas 

Flexible Permit Program is conditioned 

on the TCEQ adopting and submitting a 

SIP revision addressing the December 9, 

2013, commitment letter provided by 

the TCEQ. The commitment states that 

TCEQ will submit amended rules that 

are properly structured and consistent, 

as discussed earlier, with the actions 

taken by the Commission on September 

24, 2013, and with rulemaking 

requirements of the Texas 

Administrative Procedure Act by 

November 30, 2014. EPA has made the 

preliminary determination that the 

Flexible Permit Program is conditionally 

approvable as a minor NSR permit 

program in accordance with the CAA 

Section 110 and part C, and EPA 

regulations at 40 CFR 51.160–51.164 for 

the reasons presented above and in our 

accompanying TSD. EPA invites the 

public to make comments on all aspects 

of the EPA proposed conditional 

approval of the Texas Flexible Permit 

Program, and to submit them by the 

Date listed above. 

EPA proposes to conditionally 

approve the specific revisions to the 

Texas SIP identified below. 

• Revisions to 30 TAC Section 

39.402(a)(4) and (a)(5)—Applicability to 

applications for new and amended 

Flexible Permits—submitted July 2, 

2010. 

• Revisions to 30 TAC Section 

116.10—General Definitions—submitted 

March 13, 1996; Repealed, adopted and 

submitted July 22, 1998; Redesignated 

and submitted October 4, 2002; 

Amended 116.10(9)(E)—submitted 

October 5, 2010. 

• Revisions to 30 TAC Section 

116.13—Flexible Permit Definitions— 

submitted November 29, 1994; 

Repealed, adopted and submitted July 

22, 1998; Adopted revisions submitted 

October 21, 2013. 

• Revisions to 30 TAC Section 

116.110—Applicability—submitted 

November 29, 1994; Section 

116.110(a)(3) Repealed, adopted and 

submitted July 22, 1998. 

• Revisions to 30 TAC Section 

116.710—Applicability—submitted 

November 29, 1994; Revised and 

submitted July 22, 1998; Revised and 

submitted September 11, 2000. 

• Revisions to 30 TAC Section 

116.711—Flexible Permit Application— 

submitted November 29, 1994; Revised 

and submitted July 22, 1998; Added, 

redesignated and submitted April 12, 

2001; Designated, added, revised and 

submitted September 4, 2002; and 

Adopted revisions submitted October 

21, 2013. 

• Revisions to 30 TAC Section 

116.714—Application Review 

Schedule—submitted November 29, 

1994; Revised and submitted July 22, 

1998. 

• Revisions to 30 TAC Section 

116.715—General and Special 

Conditions—Submitted November 29, 

1994; Revised and submitted July 22, 

1998; Revised and submitted September 

11, 2000; Revised and submitted April 

12, 2001; Revised and submitted 

September 4, 2002; Revised and 

submitted September 25, 2003. 

• Revisions to 30 TAC Section 

116.716—Emission Caps and Individual 

Emission Limitations—submitted 

November 29, 1994; and Adopted 

revisions submitted October 21, 2013. 

• Revisions to 30 TAC Section 

116.717—Implementation Schedule for 

Additional Controls—submitted 

November 29, 1994. 

• Revisions to 30 TAC Section 

116.718—Significant Emission 

Increase—submitted November 29, 

1994. 

• Revisions to 30 TAC Section 

116.720—Limitation on Physical and 

Operational Changes—submitted 

November 29, 1994. 

• Revisions to 30 TAC Section 

116.721—Amendments and 

Alterations—submitted November 29, 

1994; Revised and submitted July 22, 

1998; Revised and submitted September 

11, 2000. 

• Revisions to 30 TAC Section 

116.722—Distance Limitations— 

submitted November 29, 1994; Revised 

and submitted September 11, 2000. 

• 30 TAC Section 116.730— 

Compliance History—submitted 

November 29, 1994; Withdrawn October 

21, 2013. 

• Revisions to 30 TAC Section 

116.740(a)—Public Notice and 

Comment—submitted November 29, 

1994; Designated, added and submitted 

July 22, 1998; Revised and submitted 

October 25, 1999; and Adopted 

revisions submitted October 21, 2013. 

• Revisions to 30 TAC Section 

116.750—Flexible Permit Fee— 

submitted November 29, 1994; Revised 

and submitted July 22, 1998; Revised 

and submitted September 11, 2000; 

Revised and submitted October 4, 2002; 

and Adopted revisions submitted 

October 21, 2013. 

• Revisions to 30 TAC Section 

116.760 Flexible Permit Renewal— 

submitted November 29, 1994. 

• Revisions to 30 TAC Section 

116.765—Compliance Schedule— 

submitted October 21, 2013. 

Those regulatory sections that were 

identified as being withdrawn by the 

TCEQ in the October 21, 2013, submittal 

and identified in the cover letter to the 

package are also identified below: 

• 30 TAC Section 116.711(3) (last 

sentence only) and (11), as amended 

August 21, 2002, and all earlier versions 

withdrawn October 21, 2013. 

• Adopted revisions submitted 

October 21, 2013. 30 TAC Section 

116.715(a), only with regard to the text 

‘‘or Subchapter C of this chapter 

(relating to Hazardous Air Pollutants: 

Regulations Governing Constructed or 

Reconstructed Major Sources (FCAA 

Section 112(g), 40 CFR Part 63))’’, as 

amended August 21, 2002, and all 

earlier versions withdrawn on October 

21, 2013. 

• 30 TAC Section 116.715(c)(6) as 

amended August 20, 2003, and all 

earlier versions withdrawn October 21, 

2013. 30 TAC Section 116.716(a) and 

(d), as adopted November 16, 1994, 

withdrawn October 21, 2013. 


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Federal Register / Vol. 79, No. 29 / Wednesday, February 12, 2014 / Proposed Rules 8387 

• 30 TAC Section 116.730 adopted 

November 16, 1994, and repealed and 

readopted June 17, 1998. 

• 30 TAC Section 116.740(b), adopted 

June 17, 1998, and amended September 

2, 1999, withdrawn October 21, 2013. 30 

TAC Section 116.803, adopted August 

21, 2002, withdrawn October 21, 2013. 

If the conditional approval of the 

Texas Flexible Permit Program is 

finalized following EPA’s review of 

comments received and the TCEQ 

satisfies the terms of the commitment 

letter, the TCEQ will then submit a SIP 

revision to the EPA for review which 

must contain all the terms of the 

commitment letter. If the EPA 

determines that the TCEQ has met all 

the conditions, we will make such a 

finding in the Federal Register. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds and Incorporation 

by reference. 

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

Dated: January 29, 2014. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2014–03119 Filed 2–11–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 225, and 252 

RIN 0750–AH94 

Defense Federal Acquisition 

Regulation Supplement: Clauses With 

Alternates—Foreign Acquisition 

(DFARS Case 2013–D005) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

create separate prescriptions for the 

basic clause as well as each alternate in 

each set of foreign acquisition-related 

provisions/clauses with one or more 

alternates. In addition, the proposed 

rule would include the full text of each 

provision or clause alternate. 

DATES: Comment Date: Comments on 

the proposed rule should be submitted 

in writing to the address shown below 

on or before April 14, 2014, to be 

considered in the formation of a final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2013–D005, 

using any of the following methods: 

Æ Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2013–D005’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2013– 

D005.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2013– 

D005’’ on your attached document. 

Æ Email: dfars@mail.mil. Include 

DFARS Case 2013–D005 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD(AT&L)DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP/DARS, Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to amend the 

DFARS to add a separate prescription 

for the basic clause as well as each 

alternate. In addition, the proposed rule 

would include the full text of each 

provision/clause alternate. For clarity, 

the preface of the alternate will continue 

to explain what portions of that 

alternate are different from the basic 

provision/clause. Separate prescriptions 

for the basic and alternates of DFARS 

provisions and clauses will facilitate the 

use of automated contract writing 

systems. The proposed rule will not 

revise the prescriptions in any 

substantive way or change the 

applicability of the provisions/clauses 

or their alternates. 


tkelley on DSK3SPTVN1PROD with PROPOSALS