Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules 72001 

rule would have an insignificant 

economic impact on a few small 

entities. The proposed rule would likely 

affect fewer than 100 of the 2,800 

community residential care facilities 

approved for referral of veterans under 

the regulations. Also, the additional 

costs for compliance with the proposed 

rule would constitute an 

inconsequential amount of the 

operational costs of such facilities. 

Accordingly, pursuant to 5 U.S.C. 

605(b), this rule is exempt from the 

initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.005, Grants to States for Construction 

of State Home Facilities; 64.007, Blind 

Rehabilitation Centers; 64.008, Veterans 

Domiciliary Care; 64.009, Veterans 

Medical Care Benefits; 64.010, Veterans 

Nursing Home Care; 64.011, Veterans 

Dental Care; 64.012, Veterans 

Prescription Service; 64.013, Veterans 

Prosthetic Appliances; 64.014, Veterans 

State Domiciliary Care; 64.015, Veterans 

State Nursing Home Care; 64.016, 

Veterans State Hospital Care; 64.018, 

Sharing Specialized Medical Resources; 

64.019, Veterans Rehabilitation Alcohol 

and Drug Dependence; 64.022, Veterans 

Home Based Primary Care. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Claims, Day care, Dental health, Drug 

abuse, Foreign relations, Government 

contracts, Grant programs—health, 

Grant programs—veterans, Health care, 

Health facilities, Health professions, 

Health records, Homeless, Incorporation 

by reference, Medical and dental 

schools, Medical devices, Medical 

research, Mental health programs, 

Nursing homes, Philippines, Reporting 

and recordkeeping requirements, 

Scholarships and fellowships, Travel 

and transportation expenses, Veterans. 

Approved: September 19, 2008. 

James B. Peake, 

Secretary of Veterans Affairs. 

For the reasons set out in the 

preamble, VA proposes to amend 38 

CFR part 17 as set forth below: 

PART 17—MEDICAL 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 38 U.S.C. 501, 1721, and as 

stated in specific sections. 

§ 17.62 [Amended] 

2. Amend § 17.62 by removing 

paragraph (b) and redesignating 

paragraphs (c) through (g) as paragraphs 

(b) through (f), respectively. 

3. Amend § 17.63 by: 

a. In paragraph (a)(2), removing 

‘‘Office of Regulations Management 

(02D). Room 1154,’’ and adding, in its 

place, ‘‘Office of Regulation Policy and 

Management (02REG), Room 1068,’’ and 

by revising the first sentence. 

b. Revising paragraph (a)(3). 

c. Removing and reserving paragraph 

(b). 

d. In paragraph (g), removing 

‘‘specified in the statement of needed 

care’’. 

e. In paragraph (i), removing 

paragraph (i)(2)(i) and redesignating 

paragraphs (i)(2)(ii) and (i)(2)(iii) as 

paragraphs (i)(2)(i) and (i)(2)(ii), 

respectively. 

The revisions read as follows: 

§ 17.63 Approval of community residential 

care facilities. 

* * * * * 

(a) * * * 

(2) Meet the requirements of chapters 

1–11, 32–33, and 43 and Appendix A of 

the NFPA 101, the National Fire 

Protection Association’s Life Safety 

Code (2006 edition), and NFPA 101A, 

Guide on Alternative Approaches to Life 

Safety (2007 edition). * * * 

(3) Have safe and functioning systems 

for heating and/or cooling, as needed (a 

heating or cooling system is deemed to 

be needed if VA determines that, in the 

county, parish, or similar jurisdiction 

where the facility is located, a majority 

of community residential care facilities 

or other extended care facilities have 

one), hot and cold water, electricity, 

plumbing, sewage, cooking, laundry, 

artificial and natural light, and 

ventilation. 

* * * * * 

§ 17.64 [Removed] 

4. Remove and reserve § 17.64. 

5. Revise § 17.65 to read as follows: 

§ 17.65 Approvals and provisional 

approvals of community residential care 

facilities. 

(a) An approval of a facility meeting 

all of the standards in 38 CFR 17.63 

based on the report of a VA inspection 

and any findings of necessary interim 

monitoring of the facility shall be for a 

12-month period. 

(b) The approving official, based on 

the report of a VA inspection and on 

any findings of necessary interim 

monitoring of the facility, may provide 

a community residential care facility 

with a provisional approval if that 

facility does not meet one or more of the 

standards in 38 CFR 17.63, provided 

that the deficiencies do not jeopardize 

the health or safety of the residents, and 

that the facility management and VA 

agree to a plan of correcting the 

deficiencies in a specified amount of 

time. A provisional approval shall not 

be for more than 12 months and shall 

not be for more time than VA 

determines is reasonable for correcting 

the specific deficiencies. 

(c) An approval may be changed to a 

provisional approval or terminated 

under the provisions of §§ 17.66 through 

17.71 because of a subsequent failure to 

meet the standards of § 17.63 and a 

provisional approval may be terminated 

under the provisions of §§ 17.66 through 

17.71 based on failure to meet the plan 

of correction or failure otherwise to 

meet the standards of § 17.63. 

(Authority: 38 U.S.C. 1730.) 

[FR Doc. E8–28122 Filed 11–25–08; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–0209; FRL–8745–5] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to Chapters 39, 55, and 116 

Which Relate to Public Participation on 

Permits for New and Modified Sources 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing 

simultaneous limited approval and 

limited disapproval of revisions to the 

applicable implementation plan for the 

State of Texas which relate to public 

participation on air permits for new and 

modified sources. With noted 

exceptions, this proposed limited 

approval and limited disapproval affects 

portions of SIP revisions submitted by 

Texas on December 15, 1995; July 22, 

1998; and the SIP revisions submitted 

October 25, 1999. EPA is taking 

comments on this proposal and plans to 

follow with a final action. 

DATES: Any comments must arrive by 

January 26, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2007–0209, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 


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1Texas submitted subsequent revisions to 

Chapter 39 on July 31, 2002; and March 9, 2006. 

These changes are parts of separate SIP revisions 

which are currently under review. EPA will address 

these changes to Chapter 39 in separate actions. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Stanley M. Spruiell at 

spruiell.stanley@epa.gov. 

• Fax: Mr. Stanley M. Spruiell, Air 

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

214–665–7263. 

• Mail: Stanley M. Spruiell, Air 

Permits Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

• Hand or Courier Delivery: Stanley 

M. Spruiell, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202–2733. Such deliveries are 

accepted only between the hours of 8 

a.m. and 4 p.m. weekdays except for 

legal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2007– 

0209. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittals are also available 

for public inspection at the State Air 

Agency listed below during official 

business hours by appointment: 

Texas Commission on Environmental 

Quality, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7212; fax number 

214–665–7263; e-mail address 

spruiell.stanley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the 

following terms have the meanings 

described below: 

• ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

• ‘‘NSR’’ means new source review. 

• ‘‘PSD’’ means prevention of 

significant deterioration of air quality, 

as established under 40 CFR 51.166. 

• ‘‘NNSR’’ means nonattainment area 

new source review. 

• ‘‘Act’’ and ‘‘CAA’’ mean the Clean 

Air Act. 

• ‘‘SIP’’ means State Implementation 

Plan. 

• ‘‘TSD’’ means Technical Support 

Document for this action. 

• ‘‘PAL’’ means Plantwide 

Applicability Limitation, as established 

under 40 CFR 51.165(f) or 51.166(w). 

• ‘‘NAAQS’’ means National Ambient 

Air Quality Standards, as established 

under 40 CFR part 50. 

Table of Contents 

I. What regulations did Texas submit for 

inclusion into the SIP? 

II. What are we proposing? 

III. How do the revised rules strengthen the 

existing SIP? 

IV. What are the rule deficiencies? 

V. Do Texas’ public participation rules meet 

federal requirements? 

VI. Other Public Participation Concerns 

VII. Why are we taking no action on some 

provisions of the submittal? 

VIII. Public Comment and Proposed Action 

IX. Statutory and Executive Order Reviews 

I. What regulations did Texas submit 

for inclusion into the SIP? 

On October 25, 1999, Texas submitted 

revisions to Chapters 39, 55, and 116 

which include rules that relate to public 

participation on air permits for 

authorization of new and modified 

sources, including amendments and 

renewals. In addition, portions of the 

submittals dated December 15, 1995, 

and July 22, 1998, contain provisions 

relevant to this action. Hereafter, we 

refer to these submittals as the ‘‘revised 

rules.’’ These SIP packages include the 

following rules: 

A. The December 15, 1995, submittal 

includes Texas’ submittal of section 

116.312—Public Notification and 

Comment Procedures. Section II.A of 

this preamble contains additional 

information on the December 15, 1995, 

submittal. 

B. The July 22, 1998, submittal 

includes Texas’ submittal of repeal and 

readoption (with nonsubstantive 

revisions) of section 116.312—Public 

Notification and Comment Procedures. 

Section II.A of this preamble contains 

additional information on the July 22, 

1998, submittal. 

C. The October 25, 1999, submittal 

includes the following revisions related 

to this action. Section II.A of this 

preamble contains additional 

information on the October 25, 1999, 

submittal. 

• New rules affecting Chapter 39— 

Public Notice 1—are as follows: Section 

39.201—Application for a 

Preconstruction Permit; section 

39.401—-Purpose; section 39.403— 

Applicability; section 39.405—General 

Notice Provisions; section 39.409— 

Deadline for Public Comment, Requests 

for Reconsideration, contested Case 

Hearing, or Notice and Comment 

Hearing; section 39.411—Text of Public 

Notice; section 39.413—Mailed Notice; 

section 39.418—Notice of Receipt of 

Application and Intent to Obtain Permit; 


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2Section 382.0518 and section 382.055 of the 

THSC currently apply to permit applications, 

modifications and renewals under Chapter 116 of 

the Texas SIP for minor and major new source 

review permits. 

3Note that EPA has not acted on the definition 

of ‘‘modification of an existing facility’’ at section 

116.10 and so it is not currently part of the 

approved SIP. 

4Section 39.403(b)(8) refers to emission 

quantities defined in section 106.4(a)(1) of this title 

(relating to Requirements for Permitting by Rule) for 

sources defined in sections 106.4(a)(2) and (3). The 

defined emission quantities in Section 106.4 are 

emissions equal to or greater than 250 tpy of CO or 

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

of any other air contaminant except carbon dioxide, 

water, nitrogen, methane, ethane, hydrogen, and 

oxygen. 

5Note that this provision also refers to the 

emission quantities defined in Section 106.4 of the 

SIP. 

6The provisions of Subchapter C were later 

recodified into Subchapter E in a separate SIP 

submittal. We will address this recodification in a 

separate action. Also see section VII.A of this 

document for further discussion on the provision 

for hazardous air pollutants. 

7See discussion in section VI.G of this preamble 

for further information on public notice for concrete 

batch plants. 

section 39.419—Notice of Application 

and Preliminary Determination; section 

39.420—Transmittal of the Executive 

Director’s Response to Comments and 

Decision; section 39.423—Notice of 

Contested Case Hearing; section 

39.601—Applicability; section 39.602— 

Mailed Notice; section 39.603— 

Newspaper Notice; section 39.604— 

Sign-Posting; and section 39.605— 

Notice to Affected Agencies. 

• New rules affecting Chapter 55— 

Requests for Reconsideration and 

Contested Case Hearing—are as follows: 

Section 55.1—Applicability; section 

55.21—Requests for Contested Case 

Hearing, Public Comment; section 

55.101—Applicability; section 55.103— 

Definitions; section 55.150— 

Applicability; section 55.152—Public 

Comment Period; section 55.154— 

Public Meetings; section 55.156—Public 

Comment Processing; section 55.200— 

Applicability; section 55.201—Requests 

for Reconsideration and Contested Case 

Hearing; section 55.203—Determination 

of Affected Person; section 55.205— 

Request by Group or Association; 

section 55.209—Processing Requests for 

Reconsideration or Contested Case 

Hearing; and section 55.211— 

Commission Action or Requests for 

Reconsideration and Contested Case 

Hearing. 

• Rules revisions affecting Chapter 

116—Control of Air Pollution by 

Permits for New Construction and 

Modification are—as follows: Section 

116.111—General Application; section 

116.114—Application Review Schedule; 

section 116.116—Changes to Facilities; 

section 116.183—Public Notice 

Requirements; section 116.312—Public 

Notification and Comment Procedures; 

and section 116.740—Public Notice. 

• Texas submitted repeal of the 

following regulation: section 116.124— 

Public Notice of Compliance History. 

The existing SIP-approved regulations 

which relate to public participation for 

air quality permits are as follows: 

Sections 116.130—Applicability; 

116.131—Public Notification 

Requirements; 116.132—Public Notice 

Format; 116.133—Sign Posting 

Requirements; 116.134—Notification of 

Affected Agencies; 116.136—Public 

Comment Procedures; and 116.137— 

Notification of Final Agency Action. 

These regulations will now apply to air 

quality permits declared 

administratively complete before 

September 1, 1999. EPA proposes to add 

a notation, in addition to the 

applicability statement at section 39.403 

of the revised rule, to this effect to the 

existing SIP. In addition, section 

116.312—Public Notification and 

Comment Procedures, which applies to 

permit renewals, was amended to 

replace cross references to the public 

notification procedures in sections 

116.130 through 116.137 with a cross 

reference to applicable procedure in 

Chapter 39. 

The revised rules will replace the 

existing SIP rules for public 

participation for air quality permits 

declared administratively complete on 

or after September 1, 1999. The Texas 

public participation procedures were 

previously located in the subchapter of 

the SIP applicable to each type of 

permitting action. Chapter 39 of the 

Texas Administrative Code (TAC) 

consolidates public participation 

requirements for most air quality 

permitting actions (as well as permits 

issued under other environmental 

statutes). Applicability of the rules in 

Chapter 39 to different types of air 

permits is determined by the general 

applicability statement in subchapter H. 

Additional requirements that are 

specific to air quality permits are found 

in subchapter K. Section 39.403(b) lists 

the types of air quality permits subject 

to the public participation requirements 

in Chapter 39: 

• Air quality permits under Texas 

Health and Safety Code (THSC), Section 

382.0518 (preconstruction permit) and 

Section 382.055 (review and renewal of 

preconstruction permit).2 See section 

39.403(8). 

• Applications for permit 

amendments to air quality permits 

under Section 116.116(b) (changes to 

facilities) that involve construction of a 

new facility; modification of an existing 

facility (as defined in Section 116.10) 3

that results in an increase in allowable 

emissions equal to or greater than 250 

tons per year (tpy) of carbon monoxide 

(CO) or nitrogen oxides (NOX); or 25 tpy 

of volatile organic compounds (VOC) or 

sulfur dioxide (SO2) or inhalable 

particulate matter (PM10); or 25 tpy of 

any other air contaminant except carbon 

dioxide, water, nitrogen, methane, 

ethane, hydrogen, and oxygen; or other 

changes within the discretion of the 

Executive Director.4 See section 

39.403(8). 

• Initial issuance of flexible permits 

under Chapter 116, Subchapter G, and 

amendments to flexible permits under 

Sections 116.710(a)(2) and (3) that 

involve construction of a new facility, 

modification of an existing facility that 

results in an increase in allowable 

emissions equal to or greater than 250 

tpy of CO or NOX; or 25 tpy of VOC or 

SO2 or PM10; or 25 tpy of any other air 

contaminant except carbon dioxide, 

water, nitrogen, methane, ethane, 

hydrogen, and oxygen or other changes 

within the discretion of the Executive 

Director.5 See section 39.403(8). 

• Applications for construction or 

reconstruction subject to Chapter 116, 

Subchapter C for hazardous air 

pollutants.6 See section 39.403(9). 

• Concrete batch plants under 

Chapter 106 unless the facility is to be 

temporarily located in or contiguous to 

the right of way of a public works 

project. See section 39.403(10).7

• The Chapter 39 requirements also 

apply to PALs through a cross-reference 

at section 116.194. 

II. What are we proposing? 

A. Our Proposal 

We have evaluated the revised rules 

for enforceability and consistency with 

the CAA, 40 CFR Part 51, and EPA 

policy and guidance. We have 

determined that the revised rules 

contain some provisions that meet or 

exceed federal requirements. We have 

also determined that some provisions 

are not consistent with federal 

requirements and therefore, are not fully 

approvable. The deficient provisions of 

the revised rule are not separable from 

the remainder of the rule. As authorized 

in sections 110(k)(3) and 301(a) of the 

Act, we are proposing simultaneous 

limited approval and limited 

disapproval of the revised rules. We are 

proposing limited approval because the 

rules, as a whole, strengthen the existing 

SIP and facilitate enforcement of the 

State’s public participation 

requirements. We are simultaneously 

proposing limited disapproval because 

the provisions identified in section IV of 


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8See letter in the docket for this action from 

Glenn Shankle, Executive Director of TCEQ, to 

Larry Starfield, Deputy Regional Administrator for 

EPA Region 6, dated June 13, 2008, noting that 

action on TCEQ’s public participation rule was 

necessary to resolve issues in another pending SIP 

submission. 

this preamble are not consistent with 

applicable federal requirements. Final 

limited approval will incorporate the 

revised rule in its entirety into the Texas 

SIP. We are not acting on the provisions 

of the submittal discussed in section VII 

of this notice. Note that some of the 

public participation rules we are 

considering today apply to other rules 

that have not yet been approved into the 

SIP. For example, we have not proposed 

action on Texas’ NSR PAL, flexible 

permit, qualified facility or NSR reform 

rules, however some of the rules we are 

considering today are applicable to 

them. These other rules will be 

reviewed in separate actions. Our action 

on any provision of this rule which 

refers to or implements a provision that 

EPA has not approved does not imply 

EPA proposed action on the pending 

rule. The Chapter 39 revised rules 

consolidate public participation 

requirements applicable to the pending 

rules. Final action on the revised rule 

will facilitate review of the pending 

rules.8

Except where noted below, EPA 

proposes limited approval and limited 

disapproval (LALD) of the following 

regulations: 

State citation Title Current SIP status State submittal 

dates Type of SIP revision Proposed action 

Chapter 39—Public Notice 

Subchapter D—Public Notice of Air Quality Permits 

Section 39.201 .............. Application for a 

Preconstruction

Permit.

Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Subchapter H—Applicability and General Provisions 

Section 39.401 .............. Purpose ....................... Not in existing SIP ...... 10/25/99 New rule ...................... LALD.

Section 39.403 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule State did not 

submit paragraphs 

(b)(1) through (b)(7).

No action on paragraph (b)(9). See 

section VII. 

LALD. The SIP will not 

include paragraphs 

(b)(1) through (b)(7) 

and (b)(9). 

Section 39.405 .............. General Notice Provisions.Not in existing SIP ...... 10/25/99 New rule. State did not 

submit subsections 

(a) through (e) and 

paragraph (f)(2).

LALD. The SIP will not 

include subsections 

(a) through (e) and 

paragraph (f)(2). 

Section 39.409 .............. Deadline for Public 

Comment, Requests 

for Reconsideration, 

Contested Case 

Hearing, or Notice of 

Comment Hearing.

Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Section 39.411 .............. Text of Public Notice ... Not in existing SIP ...... 10/25/99 New rule. State did not 

submit paragraph 

(b)(7).

No action on paragraphs (b)(11), 

(b)(13), (b)(14), and 

(c)(7). See section 

VII. 

LALD. The SIP will not 

include paragraphs 

(b)(7), (b)(11), 

(b)(13), (b)(14), and 

(c)(7). 

Section 39.413 .............. Mailed Notice .............. Not in existing SIP ...... 10/25/99 New rule. State did not 

submit paragraphs 

(1) through (8), (10), 

and (13).

LALD. The SIP will not 

include paragraphs 

(1) through (8), (10), 

and (13). 

Section 39.418 .............. Notice of Receipt of 

Application and Intent to Obtain Permit.

Not in existing SIP ...... 10/25/99 New rule. State did not 

submit paragraphs 

(b)(1) through (b)(2).

LALD. The SIP will not 

include paragraphs 

(b)(1) through (b)(2). 

Section 39.419 .............. Notice of Application 

and Preliminary Determination.

Not in existing SIP ...... 10/25/99 New rule. State did not 

submit subsection (c).

LALD. The SIP will not 

include subsection 

(c). 

Section 39.420 .............. Transmittal of Executive Director’s Response to Comments 

and Decision.

Not in existing SIP ...... 10/25/99 New rule. State did not 

submit paragraph 

(c)(2) and subsection 

(e).

LALD. The SIP will not 

include paragraph 

(c)(2) and subsection 

(e). 

Section 39.423 .............. Notice of Contested 

Case Hearing.

Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Subpart K—Public Notice for Air Quality Permits 

Section 39.601 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... LALD.

Section 39.602 .............. Mailed Notice .............. Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Section 39.603 .............. Newspaper Notice ....... Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 


jlentini on PROD1PC65 with PROPOSALS
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State citation Title Current SIP status State submittal 

dates Type of SIP revision Proposed action 

Section 39.604 .............. Sign-Posting ................ Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Section 39.605 .............. Notice to Affected 

Agencies.

Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Chapter 55—Requests for Reconsideration and Contested Case Hearing 

Subchapter A—Applicability 

Section 55.1 .................. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Subchapter B—Requests, Public Comment 

Section 55.21 ................ Requests for Contested Case Hearing, 

Public Comment.

Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Subchapter D—Applicability and Definitions 

Section 55.101 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Section 55.103 .............. Definitions ................... Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Subchapter E—Public Comment and Public Meetings 

Section 55.150 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... LALD.

Section 55.152 .............. Public Comment Period.Not in existing SIP ...... 10/25/99 New rule. State did not 

submit paragraphs 

(a)(3) through (a)(5).

LALD. The SIP will not 

include paragraphs 

(a)(3) through (a)(5). 

Section 55.154 .............. Public Meetings ........... Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Section 55.156 .............. Public Comment Processing.Not in existing SIP ...... 10/25/99 New rule ...................... LALD. 

Subchapter F—Requests for Reconsideration and Contested Case Hearing; Public Comment 

Section 55.200 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Section 55.201 .............. Requests for Reconsideration and Contested Case Hearing.Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Section 55.203 .............. Determination of Affected Person.Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Section 55.205 .............. Request by Group or 

Association.

Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Section 55.209 .............. Processing Requests 

for Reconsideration 

or Contested Case 

Hearing.

Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

Section 55.211 .............. Commission Action on 

Requests for Reconsideration and Contested Case Hearing.

Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section 

VII. 

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

Subchapter B—New Source Review Permits 

Division 1—Permit Application 

Section 116.111 ............ General Application ..... In existing SIP as approved 8/28/07, 72 

FR 41998.

The existing SIP does 

not include paragraph (a)(2)(K) and 

subsection (b). 

10/25/99 Redesignated pre-existing text as subsection (a). This 

change was approved 9/6/06, 71 FR 

52664.

Added new subsection 

(b). 

LALD to add new subsection (b). The SIP 

will not include paragraph (a)(2)(K). 

Section 116.114 ............ Application Review 

Schedule.

In existing SIP as approved 9/18/02, 67 

FR 58709.

10/25/99 Revision to paragraphs 

(a)(2), (b)(1), and 

(b)(2); and the addition of new subsection (c).

LALD for all submitted 

SIP revisions. 


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State citation Title Current SIP status State submittal 

dates Type of SIP revision Proposed action 

Section 116.116 ............ Changes to Facilities .. In existing SIP as approved 11/14/03, 68 

FR 64548.

The existing SIP does 

not include sections 

116.116(b)(3), (b)(4), 

(e), and (f). 

10/25/99 Revised subsection (d) 

and paragraphs 

(d)(1) and (d)(2). 

This change was approved 11/14/03, 68 

FR 64548.

Added new paragraph 

(b)(4). 

LALD for addition of 

paragraph (b)(4). 

The SIP will not include paragraph 

(b)(3) and subsections (e) through 

(f). 

Division 2—Compliance History 

Section 116.124 ............ Public Notice of Compliance History Section.In existing SIP as approved 9/18/02, 67 

FR 58709.

10/25/99 Section repealed ......... Removal of section 

116.124 from the 

SIP. 

Subchapter C—Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, § 112(g), 40 CFR 

Part 63) 

Section 116.183 ............ Public Notice Requirements.Not in existing SIP ...... 7/22/98 EPA took no action on 

section 116.183 as 

submitted 7/22/98. 

See 67 FR 58699 (9/ 

18/02).

No action on revision 

to section 116.183 

as submitted 10/25/ 

99. See section VII. 

10/25/99 Revision to change 

cross reference from 

sections 116.130 

through 116.137 to 

applicable provisions 

in Chapter 39.

Subchapter D—Permit Renewals 

Section 116.312 ............ Public Notification and 

Comment Procedures.

In existing SIP as approved 3/10/06, 71 

FR 12285.

12/15/95 and 

7/22/98 

7/22/98 submittal repealed and revised 

pre-existing section.

Changes were nonsubstantive housekeeping changes to 

include cross references to current 

rule. 

LALD for changes submitted 12/15/95, 7/ 

22/98, and 10/25/99. 

10/25/99 Revised to change 

cross reference from 

Chapter 116 to 

Chapter 39.

Subchapter G—Flexible Permits 

Section 116.740 ............ Public Notice ............... Not in existing SIP ...... 10/25/99 Revised to change 

cross reference from 

Chapter 116 to 

Chapter 39.

No action. See section 

VII. 

B. What is limited approval and limited 

disapproval? 

Under section 110(k)(3) of the CAA, 

EPA may fully approve or fully 

disapprove a State submittal. Where 

portions of the State submittal are 

separable, EPA may approve the 

portions of the submittal that meet the 

requirements of the CAA, and 

disapprove the portions of the submittal 

that do not meet the requirements of the 

CAA. When a submittal is not separable, 

EPA can adopt a limited approval and 

limited disapproval consistent with 

section 301(a) and 110(k)(3) of the Act. 

A limited approval action applies to 

the entire rule because EPA finds that 

approval of the entire rule will 

strengthen the State’s SIP. In proposing 

a limited approval, EPA simultaneously 

proposes a limited disapproval of the 

submittal because it contains 

deficiencies and, as such, does not fully 

meet all of the requirements of the Act. 

Under a final limited approval, the 

State’s entire submittal is incorporated 

into the SIP and becomes fully federally 

enforceable. Where the submittal 

addresses a mandatory requirement of 

the Act, final limited disapproval starts 

a sanctions clock and a federal 

implementation plan (FIP) clock. Under 

section 179(a), if EPA disapproves a 

submittal of a requirement under the 

CAA, based on the submittal’s failure to 

meet one or more of the elements 

required by the Act, the sanctions set 

forth in section 179(b) become 

applicable, unless the deficiency has 

been corrected within 18 months of 

disapproval. Section 179(b) of the Act 

and 40 CFR 52.31 of our regulations 

provide two sanctions available to the 

Agency: increasing the offset 

requirements and withholding highway 

funding. Moreover, the final limited 

disapproval may trigger a 24-month 


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clock to adopt a FIP requirement under 

section 110(c). If the State submits an 

approvable rule revision during the 

sanction clock period, EPA may propose 

approval of the rule and take interim 

final action, effective upon publication, 

to stay the sanctions. Final approval of 

the rule revision correcting the 

deficiency terminates the FIP clock. 

III. How do the revised rules strengthen 

the existing SIP? 

The SIP revisions submitted on 

December 15, 1995; July 22, 1998; and 

October 25, 1999, as a whole, strengthen 

the SIP compared to the corresponding 

provisions in the existing SIP. Below is 

a summary of some revisions that 

strengthen the SIP. The TSD includes 

detailed analyses of how the SIP is 

strengthened. 

• The general requirement for 

publishing notice in section 116.130(a) 

was changed by section 39.418 to 

provide a uniform time for publication 

of the notice of the application (within 

30 days of determination of 

administrative completeness). 

• Previously, permit amendments 

were subject to notice at the discretion 

of the Executive Director of TCEQ, 

without specific criteria included in the 

rule (section 116.130(a)). This provision 

was removed, thus requiring notice of 

amendment applications (section 

39.403(b)(8)). 

• Previously, a copy of the 

application was required to be available 

for public inspection in Austin, TX, and 

the appropriate regional offices of the 

TCEQ (sections 116.131(b) and 

116.132(7)). The revised rules also 

require a copy of the notice to be placed 

in a public place, available for 

inspection and copying, in the 

municipality in or nearest to the 

location of the facility that is the subject 

of the application. See section 39.405. 

• The revised rules add the 

opportunity to request a public meeting 

and allow the Executive Director to 

determine whether significant public 

interest exists to hold a public meeting. 

If held, a written response is provided 

to oral comments made together with 

any timely written comments. In 

addition, this response to comments 

(RTC) is considered by the Commission 

if it considers any contested case 

hearing requests in a Commission 

Meeting. The RTC is provided to all 

commenters and persons who request to 

be on a mailing list related to the 

application. See sections 39.420, 55.152, 

55.154, and 55.156. 

• Notice of preliminary decision and 

draft permit was extended from 

applying only to NNSR and PSD permits 

(see section 116.132(a)(6)) to any minor 

permit or permit amendment for which 

a contested case hearing is requested by 

an affected person in response to the 

Notice of Receipt of Application and 

Intent to Obtain a Permit. See section 

39.419. 

• Note also that the Texas rule 

contains some provisions that exceed 

federal requirements, such as sign 

posting (section 39.604), a ‘‘display 

type’’ newspaper notice (section 

39.603(c)(2)), and alternate language 

notice in newspaper and sign posting 

(sections 39.405(h) and 39.604(e)). 

IV. What are the rule deficiencies? 

Notwithstanding the fact that these 

rules strengthen the existing SIP, they 

do not meet all of the minimum 

applicable federal requirements that 

relate to public participation. Each 

notation below is discussed in detail in 

Section V. 

A. New or Modified Minor NSR Sources 

Generally, the minor NSR public 

participation rules identified below do 

not require any initial public 

participation for some permitting 

actions or do not require the TCEQ to 

provide the agency’s air quality analysis 

and proposal to approve or disapprove 

the permit in other permitting actions. 

• Under section 39.419(e), for new or 

modified minor NSR sources or minor 

modifications at major sources, the rules 

do not require public notice and the 

opportunity for comment on the State’s 

analysis of the effect of construction or 

modification on ambient air quality, 

including the agency’s proposed 

approval or disapproval, as required by 

40 CFR 51.161(a) and (b), unless a 

contested case hearing is requested and 

not withdrawn after notice of 

application and intent to obtain a permit 

is published. 

• Under section 39.403(b)(8), for a 

minor NSR permit amendment or minor 

modification under section 116.116(b), 

(where there is a change in the method 

of control of emissions; a change in the 

character of the emissions; or an 

increase in the emission rate of any air 

contaminant) the existing SIP requires 

the permit holder to apply for and 

receive approval of a permit 

amendment. However, the revised rules 

do not require any public participation 

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

unless the change involves construction 

of a new facility or modification of an 

existing facility that results in an 

increase in allowable emissions equal to 

or greater than 250 tpy of CO or NOX; 

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

tpy of any other air contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and oxygen 

or other changes within the discretion of 

the Executive Director. 

• Under section 39.419(e)(1)(C), for 

any amendment, modification, or 

renewal of a major or minor source 

which requires a permit application, the 

rules do not require public notice and 

the opportunity for comment on the 

State’s analysis of the effect of 

construction or modification on ambient 

air quality, including the agency’s 

proposed approval or disapproval, as 

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

the amendment, modification, or 

renewal would not result in an increase 

in allowable emissions and would not 

result in the emission of an air 

contaminant not previously emitted 

unless the application involves a facility 

for which the applicant’s compliance 

history contains violations that are 

unresolved and that constitute a 

recurring pattern of egregious conduct 

which demonstrates a consistent 

disregard for the regulatory process, 

including the failure to make a timely 

and substantial attempt to correct the 

violations. 

• Also, section 39.403(b)(8), 

Applicability, of the revised rule refers 

to two State statutory provisions, THSC 

section 382.0518 (preconstruction 

permit) and section 382.055 (review and 

renewal of preconstruction permit). For 

clarity and for approvability into the 

SIP, section 39.403(b) should be revised 

to refer to the corresponding sections of 

the Texas SIP. 

B. Projects Subject to PSD 

The revised rules do not contain the 

following requirements for projects 

subject to the regulations for PSD: 

• For a new or modified source 

subject to PSD, the revised rules do not 

require the TCEQ to provide an 

opportunity for a public hearing for 

interested persons to appear and submit 

written or oral comment on the air 

quality impact of the source, 

alternatives to it, the control technology 

required, and appropriate 

considerations and to provide notice of 

the opportunity for a public hearing, as 

required by 40 CFR 51.166(q)(v) and 

section 165(a)(2) of the Act. 

• For a new or modified source 

subject to PSD, the revised rules do not 

require that the public notice of a PSD 

permit contain the degree of increment 

consumption that is expected from the 

source or modification as required by 40 

CFR 51.166(q)(iii) and CAA section 

165(a)(2). 

• For a new or modified source 

subject to PSD, the revised rules do not 

require a copy of the public notice of a 

PSD permit to be sent to State and local 

air pollution control agencies, the chief 


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executives of the city and county where 

the source would be located and any 

State or Federal Land Manager or Indian 

Governing Body whose lands may be 

affected by emissions from the source or 

modification, as required by 40 CFR 

51.166(q)(iv). 

• For a new or modified source 

subject to PSD, the rules do not require 

that response to comments be available 

prior to final action on the PSD permit, 

as required by 40 CFR 51.166(q)(vi) and 

(viii). 

• For a new or modified source 

subject to PSD, the revised rules do not 

contain a definition of a final appealable 

decision for a PSD permit. We request 

further information about how and 

when commenters are informed of the 

Agency’s final decision, access to 

response to comments and timing for 

judicial appeal, in order to provide an 

opportunity for State court judicial 

review. 

C. Project for a PAL 

The revised rules do not meet the 

following provisions for PALs: 

• For PALs for existing major 

stationary sources, there is no provision 

that PALs be established, renewed, or 

increased through a procedure that is 

consistent with 40 CFR 51.160 and 

51.161, including the requirement that 

the reviewing authority provide the 

public with notice of the proposed 

approval of a PAL permit and at least a 

30-day period for submittal of public 

comment, consistent with the Federal 

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

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

• For PALs for existing major 

stationary sources, there is no 

requirement that the State address all 

material comments before taking final 

action on the permit, consistent with 40 

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

• The applicability provision in 

section 39.403 does not include PALs, 

despite the cross-reference to Chapter 39 

in Section 116.194. 

D. Project for a Flexible Permit 

The rules do not meet the following 

provisions for Flexible Permits: 

• For initial issuance of a flexible 

permit to establish a minor NSR 

applicability cap or an increase in a 

flexible permit cap, the rules do not 

require 30-day notice and comment on 

information submitted by the owner or 

operator and the agency’s analysis of the 

effect of the permit on ambient air 

quality, including the agency’s proposed 

approval or disapproval as required by 

40 CFR 51.161. 

• Where PSD and NNSR terms and 

conditions are modified or eliminated 

when the permit is incorporated into a 

flexible permit, the rules do not require 

public participation consistent with 40 

CFR 51.161 and 51.166(q). 

V. Do Texas’s public participation rules 

meet federal requirements? 

A. Minor NSR Regulatory Requirements 

1. What public participation 

requirements for minor NSR programs 

are necessary for approval of the SIP 

revision? 

The CAA at section 110(a)(2)(C) 

requires states to include a minor NSR 

program in their SIP to regulate 

modifications and new construction of 

stationary sources within the area as 

necessary to assure the national ambient 

air quality standards (NAAQS) are 

achieved. EPA’s implementing 

regulations at 40 CFR 51.160–51.164 are 

intended to ensure that new source 

growth is consistent with maintenance 

of the NAAQS. 40 CFR 51.160(e) 

requires states to identify types and 

sizes of facilities which will be subject 

to review under their minor NSR 

program. For sources identified under 

§ 51.160(e), § 51.160(a) requires that the 

SIP include legally enforceable 

procedures that enable the State or local 

agency to determine whether 

construction or modification of a 

facility, building, structure or 

installation, or combination of these 

will result in a violation of applicable 

portions of the control strategy; or 

interference with attainment or 

maintenance of a national standard in 

the State in which the proposed source 

(or modification) is located or in a 

neighboring State. 

Sources subject to the legally 

enforceable procedures under 40 CFR 

51.160(a) are also subject to the 

minimum public participation 

requirements at 40 CFR 51.161, entitled 

Public Availability of Information. In 

particular, 40 CFR 51.161(a) requires a 

State to provide the opportunity for 

public comments on information 

submitted by owners and operators. 40 

CFR 51.161(a) also requires the public 

information to include the agency’s 

analysis of the effect of construction or 

modification on ambient air quality, 

including the agency’s proposed 

approval or disapproval. 40 CFR 

51.161(b) requires that the State ensure 

availability of the information submitted 

by the owner or operator and the State’s 

analysis of the effect on air quality for 

public inspection in at least one 

location in the affected area, that the 

State provide a 30-day public comment 

period on that information and that 

notice of the public comment period 

should be by prominent advertisement 

in the area affected. 

The minor NSR program is also 

important as a tool to implement 

changes related to major NSR, such as 

to adopt enforceable limitations on 

hours of operation and rates of 

production or the installation of 

pollution control equipment to limit 

potential to emit (PTE) to avoid major 

source applicability thresholds of NSR 

or title V permitting requirements. The 

minor NSR program also authorizes 

minor modifications at major sources, 

including netting demonstrations 

required by the PSD and NNSR major 

source program, or to establish a PAL to 

determine PSD or NNSR applicability. 

EPA recognizes that, under the 

applicable Federal regulations, states 

have broad discretion to determine the 

scope of their minor NSR programs as 

needed to attain and maintain the 

NAAQS. The State has significant 

discretion to tailor minor NSR 

requirements that are consistent with 

the requirements of Part 51. The State 

may also provide a rationale for why the 

rules are at least as stringent as the Part 

51 requirements where the revisions are 

different from Part 51. For further 

information, see recent SIP actions in 

other States concerning minor NSR 

approvals and disapprovals, such as 68 

FR 2891 (January 22, 2003), where EPA 

approved Oregon’s minor NSR program 

establishing categories of minor NSR 

permit actions. However, EPA 

disapproved or gave less than full 

approval to minor NSR public 

participation requirements that 

provided a blanket exemption from one 

or more public notice requirements of 

Part 51 to all minor NSR permitting 

actions. See 65 FR 2042 (January 13, 

2000), disapproval of West Virginia 

minor NSR provisions providing 15-day 

public comment period for certain 

minor NSR permitting actions or 65 FR 

2048 (January 13, 2000), limited 

approval of Delaware minor NSR public 

participation requirements because it 

strengthened the SIP, but limited 

disapproval of the rule due to less than 

30-day comment period. See also the 

proposed approval of Review of New 

Sources and Modifications in Indian 

Country at 71 FR 48696 (August 21, 

2006) and 72 FR 45378 (August 14, 

2007), approval of Alaska minor NSR 

public participation provisions. 

2. What are the Texas minor NSR 

program public participation 

requirements? 

In general, the revised rules provide 

for two types of public notice and 

comment processes. These two public 

notices are Notice of Application and 

Intent to Obtain a Permit under section 

39.418 (first notice) and Notice of 


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9Section 55.23, Request by Group or Association, 

was not submitted in this SIP revision. 

Application and Preliminary Decision 

(second notice) under section 39.419 

and subchapter K. The first notice 

requires the permittee to publish notice 

of the permit application and provide a 

copy of the administratively complete 

application in the public record 

available for public comment. An 

administratively complete application 

may, but is not required to, contain the 

applicant’s information on the air 

quality impacts from the facility. Under 

Section 39.419(e)(1)(B), no further 

notice is required for minor NSR 

permits unless a contested case hearing 

is requested and not withdrawn before 

the second notice is published. Under 

section 55.21, a contested case hearing 

may be requested by: (1) The 

Commission; (2) the Executive Director; 

(3) the applicant; (4) affected persons, 

when authorized by law; and (5) for 

applications for air quality permits, or 

standard exemptions required to 

provide public notice, a legislator from 

the general area of the proposed facility. 

The request must identify the person’s 

personal justiciable interest affected by 

the application, including the 

requestor’s location and distance 

relative to the activity that is the subject 

of the application and how and why the 

requestor believes he or she will be 

affected by the activity in a manner not 

common to members of the general 

public. Requirements for a group or 

association to request a contested case 

hearing are found in section 55.23.9 A 

contested case hearing is an evidentiary 

hearing before an administrative law 

judge at the State Office of 

Administrative Hearings (SOAH). If a 

contested case hearing is requested, the 

permittee must publish notice of the 

opportunity to comment on the 

complete application and the State’s 

analysis of air quality impacts and the 

State’s proposal to approve or 

disapprove the permit. 

Section 39.418 of the revised rule 

requires the applicant for a minor NSR 

permit new source or modification, 

amendments or renewal under Chapter 

116 to publish Notice of Receipt of 

Application and Intent to Obtain Permit 

(first notice) within 30 days after the 

Executive Director determines the 

application to be administratively 

complete. (The rule does not provide a 

definition of administrative 

completeness.) Under sections 

55.152(a)(1) and (2), 39.405(f)(1), and 

39.603, the notice of 30-day public 

comment period (15 days for renewals) 

must be published in a newspaper of 

general circulation in the municipality 

in which the facility is located or is 

proposed to be located or in the 

municipality nearest to the location or 

proposed location of the facility and 

State the end date of the public 

comment period. Section 39.405(e) 

requires the applicant to provide a copy 

of the notice to the TCEQ within 10 

business days from the last date of 

publication. The applicant must also 

post a sign at the site of the existing or 

proposed facility declaring the filing of 

an application for a permit under 

section 39.604. The TCEQ is required to 

mail a copy of the notice to the State 

senator and representative who 

represent the area in which the facility 

is or will be located, the applicant, 

persons on a relevant mailing list, and 

any other person the Executive Director 

or Chief Clerk may elect to include 

under sections 39.413 and 39.602. The 

applicant is required to mail a copy of 

the notice to EPA, all local air pollution 

control agencies with jurisdiction in the 

county in which the construction is to 

occur, and the air pollution control 

agency of any nearby State in which air 

quality may be adversely affected by the 

emissions from the new or modified 

facility under section 39.605. The 

applicant is also required to make a 

copy of the application available for 

review and copying at a public place in 

the county in which the facility is 

located or proposed to be located. The 

applicant must indicate when 

confidential business information is 

excluded from the public file. See 

section 39.405(g). The public record 

available during the comment period 

includes the administratively complete 

permit application and any other 

documents submitted by the applicant, 

as required by section 39.405(g). 

If a contested case hearing is 

requested by persons identified in 

section 55.21 or 55.23 in response to the 

Notice of Receipt of Application and 

Intent to Obtain Permit, and the request 

is not withdrawn before the date the 

preliminary decision is issued, section 

39.419 requires the applicant to publish 

Notice of Application and Preliminary 

Decision (second notice) of issuance or 

modification of a minor NSR action and 

provide a 30-day notice and comment 

period on the public record, which 

includes the draft permit and the State’s 

analysis of its preliminary decision to 

approve or disapprove the permit. 

For minor and major sources 

authorized under section 116.116(b) of 

the approved SIP, a permittee must 

apply for and receive a prior permit 

amendment which authorizes a 

permittee to vary from terms of a permit 

if the change involves a change in the 

method of control of emissions, a 

change in the character of the emissions, 

or an increase in the emission rate of 

any air contaminant. Section 

39.403(b)(8) requires public notice and 

the opportunity for comment only if the 

permit amendment involves 

construction of a new facility or 

modification of an existing facility that 

results in an increase in allowable 

emissions equal to or greater than 250 

tpy of CO or NOX; or 25 tpy of VOC or 

SO2 or PM10; or 25 tpy of any other air 

contaminant except carbon dioxide, 

water, nitrogen, methane, ethane, 

hydrogen, and oxygen or other changes 

within the discretion of the Executive 

Director. Therefore, permit amendments 

authorized under section 116.116(b) are 

not subject to any public participation 

requirements unless the amendment 

involved an emission increase of 

allowable emission above the thresholds 

in section 39.403(b)(8). 

Under section 39.419(e)(1)(C), any 

amendment, modification, or renewal 

for a major or minor source that requires 

a permit application and would not 

result in an increase in allowable 

emissions and would not result in the 

emission of an air contaminant not 

previously emitted, is not required to 

provide second notice (which includes 

public notice and the opportunity for 

comment on the State’s second notice 

which includes analysis of the effect of 

construction or modification on ambient 

air quality and includes the agency’s 

proposed approval or disapproval) 

unless the application involves a facility 

for which the applicant’s compliance 

history contains violations that are 

unresolved and that constitute a 

recurring pattern of egregious conduct 

which demonstrates a consistent 

disregard for the regulatory process, 

including the failure to make a timely 

and substantial attempt to correct the 

violations. Therefore, amendments, 

modifications or renewals for minor or 

major sources are not required to 

provide an air quality analysis or the 

State’s proposal to approve or 

disapprove the permit unless there was 

an increase in allowable emissions or 

the release of a new air contaminant. 

3. Does the Texas minor NSR public 

participation rule meet federal 

requirements for approval? 

The revised rules meet or exceed 

federal requirements for minor NSR 

public participation with four 

exceptions as described below. 

First, under section 39.419(e)(1)(B), 

the requirement at 40 CFR 51.161(a) to 

provide opportunity for public comment 

on the State’s analysis of the effect of 

construction or modification on ambient 

air quality from new minor sources or 


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10See NSR Reform ruling, New York v. EPA, 413 

F.3d 3 (D.C. Cir. June 24, 2005). The court held that 

the major NSR modification requirement, which 

incorporates by reference CAA § 111(a)(4), 

‘‘unambiguously defines ‘increases’ in terms of 

actual emissions.’’ 

11See also correspondence between EPA Region 

6 and TCEQ in the docket for this action. 

minor modification identified under 40 

CFR 51.160, including the State’s 

proposed approval or disapproval, is not 

met. Sources regulated under 40 CFR 

51.160 are subject to the public 

participation requirements of 40 CFR 

51.161. Under the Texas rule, sources 

subject to minor NSR requirements must 

publish the first notice, Notice of 

Receipt of Application and Intent to 

Obtain Permit, and provide a 30-day 

notice and comment period on the 

administratively complete permit 

application only. The publically 

available information during the 

comment period does not include and, 

the public notice fails to inform the 

public how to obtain, the State’s 

analysis of air quality impacts and 

proposal to approve or disapprove the 

application. The public record for the 

first notice is required to contain only 

a copy of the administratively complete 

permit application as required by 

section 39.405(g). As a result, the public 

does not have an opportunity to 

adequately review and comment upon 

the potential air quality effects from the 

source and on the State’s proposed 

action on the application. In order to 

obtain the State’s air quality analysis, an 

interested person must request a 

contested case hearing. However, 

sections 55.21(b) and 55.23 limit who 

may request a contested case hearing 

before SOAH and so some members of 

the public may not be able to review 

and comment on air quality impacts 

from the facility. The request for a 

contested case hearing must be filed 

within the first notice public comment 

period and must be based solely upon 

information in the administratively 

complete application. EPA has 

concluded that the burden of requesting 

an evidentiary administrative hearing 

based solely on the information in the 

permit application does not provide the 

public with the minimum public 

information required by 40 CFR 

51.161(a) and (b). 

Second, section 39.403(b)(8) excludes 

permit amendments authorized by 

section 116.116(b) from any public 

participation requirements of Chapter 

39, including the requirement to publish 

the first notice, unless the change 

involves construction of a new facility 

or modification of an existing facility 

that results in an increase in allowable 

emissions equal to or greater than 250 

tpy of CO or NOX; or 25 tpy of VOC or 

SO2 or PM10; or 25 tpy of any other air 

contaminant except carbon dioxide, 

water, nitrogen, methane, ethane, 

hydrogen, and oxygen or other changes 

within the discretion of the Executive 

Director. Changes that result in an 

increase in emissions are subject to a 

permit amendment under sections 

116.110 or 116.116(a) or (b) of the 

approved SIP. As stated, section 

39.403(b)(8) provides an exemption 

from public participation for sources 

otherwise required to obtain a permit 

amendment. As discussed in more 

detail above, sources regulated under 40 

CFR 51.160(a) are subject to the minimal 

public participation requirements in 40 

CFR 51.160(a) and (b). We also have 

concerns that this provision does not 

exclude public participation 

requirements for major modifications 

subject to PSD or NNSR permitting 

requirements, which are based on actual 

rather than allowable emissions and 

may be interpreted to apply to those 

permitting actions.10 EPA has 

concluded that 39.403(b)(8) fails to 

provide the minimum public 

participation requirements of 40 CFR 

51.161. 

Third, under section 39.419(e)(1)(c), 

for any amendment, modification, or 

renewal application for a minor or major 

source, the revised rules do not require 

second notice, which includes the 

State’s air quality analysis, unless the 

change would result in an increase in 

allowable emissions and would not 

result in the emission of an air 

contaminant not previously emitted. 

The requirement at 40 CFR 51.161(a) to 

provide opportunity for public comment 

on the State’s analysis of the effect of 

modification on ambient air quality 

from minor sources identified under 40 

CFR 51.160, including State’s proposed 

approval or disapproval, is not met. We 

recognize that States may tailor minor 

NSR programs to allow permit 

amendments for certain minor sources 

required to be based upon increases in 

allowable emissions. However, section 

39.419(e)(1)(C) applies to major and 

minor sources required to obtain a 

permit amendment under Chapter 116 

of the approved SIP. As described in the 

previous paragraph, sources required to 

obtain a permit under 40 CFR 51.160(a) 

are subject to the public participation 

requirements of 40 CFR 51.161. Under 

40 CFR 51.161, a modification 

application for a major or minor source 

regulated under the SIP is subject to 

public notice and opportunity for public 

comment on the State’s air quality 

analysis and proposal to approve or 

disapprove the permit. We also have 

concerns that this provision does not 

exclude public participation 

requirements for major modifications 

subject to PSD or NNSR permitting 

requirements, which are based on actual 

rather than allowable emissions and 

may be interpreted to apply to those 

permitting actions. EPA has concluded 

that section 39.419(e)(1)(c) fails to 

provide the minimum public 

participation requirements of 40 CFR 

51.161. 

Fourth, section 39.403(b) 

(Applicability) of the revised rule refers 

to two State statutory provisions, THSC 

section 382.0518 (preconstruction 

permit) and section 382.055 (review and 

renewal of preconstruction permit). For 

clarity and for approvability into the 

SIP, we recommend that section 

39.403(b) be revised to refer to the 

corresponding sections of the Texas SIP. 

In summary, EPA has determined that 

the Texas minor NSR public 

participation rules do not require that 

the publicly available information 

include the State’s analysis of air quality 

impacts or the State’s decision to 

approve or disapprove the permit. EPA’s 

review of section 39.419(e)(1)(A) and (B) 

indicates that public notice of the 

State’s analysis of air quality impacts for 

minor new sources or minor 

modifications is not required unless a 

contested case hearing is requested. We 

are concerned that the rules at sections 

55.21 and 55.23 limit who may request 

a contested case hearing. In other words, 

the first notice (Notice of Application 

and Intent to Obtain a Permit) does not 

contain the agency’s analysis of the 

effect of construction or modification on 

ambient air quality, including the 

agency’s proposed approval or 

disapproval as required by 40 CFR 

51.161(b). The only way to obtain that 

information is by requesting a contested 

case hearing and the rules limit which 

members of the public can do so. 

Moreover, we believe that the State’s 

requirement to submit a request for an 

evidentiary administrative hearing in 

order to obtain the air quality analysis 

is too large a burden for potential 

commenters, may exclude some 

interested persons, and is not consistent 

with the minimum requirements of 40 

CFR 51.161(a) and (b). We note that 

Texas did not provide a demonstration 

of how the Chapter 39 and 55 rules for 

public participation for minor NSR 

sources regulated under the SIP meet 

the public participation requirements of 

40 CFR Part 51 with this SIP 

submittal.11


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12See Staff of the Subcommittee on 

Environmental Pollution of the Senate Committee 

on Environment and Public Works, 95th Congress, 

1st Session, A Section-by-section Analysis of S. 252 

and S. 253, Clean Air Act Amendments 36 (1977), 

reprinted in 5 Legislative History of the Clean Air 

Act Amendments of 1977 (1977 Legislative History) 

3892 (1977). 

13EPA’s final approval of the Texas PSD program 

(57 FR 28093, June 24, 1992) included a 

supplemental document that provided an 

enforceable commitment from Texas to implement 

the requirements of 40 CFR 51.166(q)(iii) (state the 

Continued 

B. PSD Regulatory Requirements 

1. What public participation 

requirements for PSD programs are 

necessary for approval of the SIP 

revision? 

The PSD provisions of the CAA 

emphasize the importance of public 

participation in permitting decisions. 

See section 160(5) of the CAA. The 

criteria for approval of a PSD program 

are set out in Section 165 of the CAA 

and 40 CFR 51.166. The requirements 

for public participation for an approved 

PSD program are found at 40 CFR 

51.166(q). States may incorporate these 

requirements by reference or establish 

equivalent provisions. Section 307(b) of 

the CAA expressly provides an 

opportunity for judicial review of PSD 

permitting decisions when EPA is the 

permitting authority. In a federal PSD 

program, any member of the public who 

has participated in the public comment 

process and meets the threshold 

standing requirements of Article III of 

the U.S. Constitution may petition for 

administrative review of the permit 

within 30 days of issuance before the 

Environmental Appeals Board (EAB) 

and ultimately seek judicial review of 

the administrative disposition of the 

permit. We interpret the statute and 

regulations to require, at a minimum, an 

opportunity for State court judicial 

review of PSD permits under an 

approved PSD program. See 61 FR 1880, 

1882 (Jan. 24, 1996) and 72 FR 72617, 

72619 (December 21, 2007). The 

legislative history of the 1977 CAA 

amendments supports this 

interpretation.12 Although permits 

issued under SIP approved programs are 

not subject to appeal to EPA’s EAB, 

those actions are instead subject to the 

opportunities for review and appeal 

provided under State law. 

40 CFR 51.166(q) requires, in part, 

that the permitting authority make 

available all the materials submitted by 

the applicant, a copy of the preliminary 

determination and a copy or summary 

of other materials considered in making 

the determination. The State must notify 

the public, by advertisement in a 

newspaper of general circulation, of the 

application, the preliminary 

determination, the degree of increment 

consumed, and of the opportunity to 

comment at a public hearing or in 

writing. The State must also provide a 

copy of the notice to any other State or 

local air pollution control agencies, the 

chief executive of the city and county 

where the source would be located, any 

regional land use planning agency, any 

State or Federal Land Manager or Indian 

Governing body whose lands may be 

affected. The State must also provide an 

opportunity for public hearing for 

interested persons to appear and submit 

written or oral comments on the air 

quality impacts of the source, 

alternatives to it, the control technology 

required, and other appropriate 

considerations. See CAA section 

165(a)(2). The State must also consider 

all written and oral comments in 

making a final permitting decision and 

make all comments available for public 

inspection. 

2. What are the Texas PSD program 

public participation requirements? 

Under section 39.419, for sources 

subject to PSD or nonattainment NSR 

review the applicant must publish 

notice of two 30-day public comment 

periods, Notice of Application and 

Intent to Obtain a Permit (first notice) 

and Notice of Application and 

Preliminary Decision (second notice). 

The applicant must also mail a copy of 

the notices to the EPA Regional 

Administrator in Dallas, all local air 

pollution control agencies with 

jurisdiction in the county in which the 

construction is to occur, the air 

pollution control agency of any nearby 

State in which air quality may be 

adversely affected by the emissions from 

the new or modified facility, the 

applicant, persons who filed comments 

or hearing requests before the deadline, 

persons on a mailing list under Section 

39.407 and the State senator or 

representative from the region where the 

source will be located. Under section 

55.154, TCEQ may provide a public 

meeting if the Executive Director 

determines that there is a substantial or 

significant degree of public interest in 

an application or if a member of the 

legislature who represents the general 

area in which the facility is located or 

proposed to be located requests that a 

public meeting be held. 

Texas provides an opportunity for 

judicial review of PSD permitting 

decisions under THSC 382.032, which 

states that a person affected by a ruling, 

order, decision, or other act of the 

Commission or of the Executive 

Director, if an appeal to the Commission 

is not provided, may appeal the action 

by filing a petition in a district court of 

Travis County. The petition must be 

filed within 30 days after the date of the 

Commission’s or the Executive 

Director’s action or, in the case of a 

ruling, order, or decision, within 30 

days after the effective date of the 

ruling, order or decision. Note that 

Texas law requires exhaustion of 

administrative remedies, including 

requesting a contested case hearing, to 

appeal to State court. 

3. Do the Texas PSD public 

participation requirements meet federal 

requirements for approval? 

The Texas PSD program, including 

the public participation provisions, was 

approved in 1992. See 54 FR 52823, 826 

(December 22, 1989 and 57 FR 28093 

(June 24, 1992). This SIP revision 

replaces the public participation rules 

adopted under the approved PSD 

program and therefore, we review the 

rules for consistency with federal PSD 

requirements of 40 CFR 51.166(q). Our 

review of Chapters 39 and 55 indicates 

that the Texas rules meet or exceed 

federal requirements with the following 

exceptions. We have not identified 

provisions to satisfy the following 

federal requirements: 

• A requirement that the State 

provide an opportunity for a public 

hearing for interested persons to appear 

and submit written or oral comment on 

the air quality impact of the source, 

alternatives to it, the control technology 

required, and appropriate 

considerations, along with public notice 

of the public hearing as required by 40 

CFR 51.166(q)(v) and section 165(a)(2) 

of the CAA. The provision in section 

55.154 that provides the Executive 

Director with discretion to hold a public 

meeting if the Executive Director 

determines that there is a substantial or 

significant degree of public interest in 

an application is not consistent with the 

federal requirements. Under the Texas 

rule, the decision to grant a public 

hearing is within the Executive 

Director’s discretion and must be based 

upon substantial or significant public 

interest. In contrast, the CAA provides 

for the opportunity of interested persons 

to request a public hearing and public 

notice of that opportunity. Under 

section 55.154, the public is not 

guaranteed notice of such opportunity 

or that such an opportunity will be 

provided on request. 

• A requirement that the public 

notice of a PSD permit contain the 

degree of increment consumption that is 

expected from the source or 

modification as required by 40 CFR 

51.166(q)(iii).13


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degree of increment consumption in the public 

notice) and 51.166(q)(iv) (mail notice to affected 

agencies). The supplement remains a part of the 

Texas SIP. See 40 CFR 52.2270, EPA Approved 

Nonregulatory Provisions and Quasi-Regulatory 

Measures in the Texas SIP. We cite these 

requirements as missing from the Texas submittal 

because the adoption of Chapters 39 and 55 

replaced all existing public participation 

requirements for PSD permits under the Texas PSD 

program as State law and seeks to repeal existing 

SIP PSD public participation requirements 

applicable to permit applications complete on or 

after September 1, 1999. Texas did not address the 

SIP supplement in its submittal. For several 

reasons, we believe these PSD requirements should 

be included as regulatory, rather than quasiregulatory, requirements of the SIP. Given that the 

applicant rather than Texas publishes notice and 

sends the notice to affected agencies, we believe 

regulatory provisions in Chapter 39 would provide 

more clarity to the applicant and the public to 

ensure compliance with these requirements than a 

document that does not explicitly appear in the SIP. 

Also, we believe this approach will avoid confusion 

since section 39.605 of the revised rules lists some, 

but not all, agencies that must be notified under 

§ 51.166(q)(iv). 

14 Ibid. at 13. 

15The TCEQ permitting database can be accessed 

at http://www4.tceq.state.tx.us/cid/CCD/ 

index.cfm?fuseaction=main.SearchPublicNotice. 

16Texas’ regulations for PALs are not in the 

existing Texas SIP. EPA will address approvability 

of the entire PAL requirements in a separate action. 

17Section 39.407 was not submitted as a SIP 

revision. See discussion of the cross references to 

non-SIP rules in section VII.A of this preamble. 

18See letter from Glenn Shankle, Executive 

Director of TCEQ, to Larry Starfield, Deputy 

Regional Administrator for EPA Region 6, dated 

June 13, 2008, noting that action on TCEQ’s public 

participation rule was necessary to resolve issues in 

another pending SIP submission. 

• A requirement to provide a copy of 

the public notice of a PSD permit to be 

sent to State and local air pollution 

control agencies, the chief executives of 

the city and county where the source 

would be located and any State or 

Federal Land Manager or Indian 

Governing Body whose lands may be 

affected by emissions from the source or 

modification, as required by 40 CFR 

51.166(q)(iv) and CAA 165(d).14

• A requirement that response to 

comments be available prior to final 

action on the PSD permit, as required by 

40 CFR 51.166(q)(vi) and (viii) and to 

facilitate the appeals process. 

• For a new or modified source 

subject to PSD, the revised rules do not 

contain a definition of a final appealable 

decision for a PSD permit. We request 

further information about how and 

when the commenters are informed of 

the Agency’s final decision, access to 

response to comments and timing for 

judicial appeal, in order to provide an 

opportunity for State court judicial 

review. 

We request comments on an 

additional issue related to PSD permit 

public notice requirements. Under the 

approved SIP and under the revised 

rule, Texas requires the permit 

applicant to publish public notice for an 

air permit and to mail a copy of the 

notice to TCEQ and EPA. Although the 

federal PSD rules at 40 CFR 51.166(q)(2) 

State ‘‘* * * the reviewing authority 

shall * * * provide notice,’’ we believe 

Texas has authority to delegate 

responsibility to publish notice to the 

applicant. Under Section 39.405(e), 

TCEQ allows 10 business days for the 

applicant to notify TCEQ and EPA that 

the public notice has been published. A 

review of the TCEQ permitting database 

indicates TCEQ generally receives a 

copy of the public notice within two 

weeks after the date of publication.15

EPA has experienced delays in receiving 

the PSD public notice and we have 

received complaints from citizens that it 

is often not possible to identify the start 

and end date of a public comment 

period until much of the comment 

period has passed. While we believe 

that TCEQ does have authority to 

delegate responsibility to publish notice 

of a PSD permit to the applicant, we 

request comments on how the public 

information can be made available to 

ensure that interested persons can fully 

participate in the public comment 

process in accordance with the intent of 

the Act. 

C. PAL Regulatory Requirements 

1. What public participation 

requirements for PALs are necessary for 

approval?16

The Federal PAL rules at 40 CFR 

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

and (11) require PALs for existing major 

stationary sources to be established, 

renewed, or increased through a 

procedure that is consistent with 40 

CFR 51.160 and 51.161, including the 

requirement that the reviewing 

authority provide the public with notice 

of the proposed approval of a PAL 

permit and at least a 30-day period for 

submittal of public comment. The State 

must address all material comments 

before taking final action on the permit. 

2. What are the public participation 

requirements under the Texas PAL rule? 

Texas PAL rules address public 

participation in section 116.194, which 

states: 

Applications for initial issuance of plantwide applicability limit permits under this 

division are subject only to §§ 39.401, 39.405, 

39.407 17, 39.409, 39.411, 39.419, 39.420, and 

39.605 of this title (relating to Purpose; 

General Notice Provisions; Mailing Lists; 

Deadline for Public Comment, and for 

Requests for Reconsideration, Contested Case 

Hearing, or Notice of Contested case Hearing; 

Text of Public Notice; Notice of Application 

and Preliminary Decision; Transmittal of the 

Executive Director’s Response to Comments 

and Decision; Applicability; Mailed Notice; 

Newspaper Notice; Sign-Posting; and Notice 

to Affected Agencies, respectively), except 

that any requests for reconsideration or 

contested case hearings in §§ 39.409 or 

39.411 of this title shall not apply. Nothing 

in this section exempts an applicant for a 

new source review permit from the 

requirements of Subchapter B of this chapter 

(relating to New Source Review). 

3. How does the Texas PAL rule meet 

Federal requirements for approval? 

We are addressing public 

participation for PALs in this notice to 

facilitate our review of the Texas PAL 

rule SIP submittal that cross-references 

Chapter 39, even though the PAL rule 

was adopted after the revised rules.18

We note that Texas did not make any 

revisions related to PALs to Chapter 39. 

The applicability section in Chapter 

39.403 does not include PALs, despite 

the cross-reference to Chapter 39 in 

Section 116.194. Therefore, the two 

rules are not consistent. We believe 

Texas must revise the applicability 

section in Chapter 39.403 in order to 

make the Chapter 39 public 

participation requirements applicable to 

new permitting rules, such as the PAL 

rule. 

Our review of the Chapter 39 

requirements applicable to PALs 

indicates that public participation for 

initial issuance, renewal, or increase of 

a PAL is not consistent with the Federal 

requirements. Section 39.419(e)(3) does 

not require PAL permit applications to 

provide public notice and comment on 

the Agency’s preliminary analysis and 

the draft permit unless a contested case 

hearing is requested. We have identified 

no provisions which address renewal or 

increase of a PAL. Furthermore, Texas 

provided no demonstration of how 

section 116.194, which cross references 

Chapter 39 requirements, is consistent 

with the Federal PAL rules at 40 CFR 

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

and (11). We have not identified 

provisions in Chapter 39 to comply with 

the following requirements of 40 CFR 

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

and (11): 

• Public participation requirements 

for PALs existing major stationary 

sources to be established, renewed, or 

increased through a procedure that is 

consistent with 40 CFR 51.160 and 

51.161. 

• A requirement that the reviewing 

authority provide the public with notice 

of the proposed approval of a PAL 

permit and at least a 30-day period for 

submittal of public comment. 


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19Texas’ rules for Flexible Permits are not in the 

existing Texas SIP. EPA is reviewing the Texas’ SIP 

submittal which relates to Flexible Permits and will 

address its concerns in a separate action. 

20Report prepared by EPA Office of Air Quality 

Planning and Standards and OPEI at http:// 

www.epa.gov/ttn/oarpg/t5/memoranda/ 

iap_eier.pdf. 

21Section 39.603(e)(1) refers to § 39.601(a)(2), 

which is not in the submitted rule. On July 31, 

2002, Texas submitted a revision to Section 39.603 

which revised subsection (e) to refer to paragraph 

(c)(2) rather than paragraph (a)(2). EPA is reviewing 

the July 31, 2002, SIP submittal and will address 

this change in a separate action. Paragraph (c)(2) 

refers to a different larger display notice that must 

be published in the same issue of the newspaper as 

the primary notice published under paragraph 

(c)(1). 

• A provision to require the State to 

address all material comments before 

taking final action on the PAL permit. 

• An applicability provision in 

section 39.403 that subjects PALs to the 

requirements of Chapter 39. 

D. Flexible Permits 

1. What are the public participation 

requirements for Flexible Permits 

necessary for approval? 19

EPA has recognized that States may 

provide a site-wide cap to determine 

minor NSR applicability, similar to the 

Federal PAL rule for major NSR 

applicability. See our proposed rule for 

Review of New Sources and 

Modifications in Indian Country, 71 FR 

48696. 48705 or Evaluation of 

Implementation Experiences with 

Innovative Air Permits, Summary 

Report,20 which discuss minor NSR 

applicability caps and public 

participation requirements at 40 CFR 

51.160–51.164. 40 CFR 51.161(b) 

requires that the State ensure 

availability of the information submitted 

by the owner or operators and the 

State’s analysis of the effect on air 

quality and proposal for approval or 

disapproval in at least one location in 

the affected area, that the State provide 

a 30-day public comment period on that 

information and that notice of the 

public comment period should be by 

prominent advertisement in the area 

affected. 

2. What are the public participation 

requirements under the Texas Flexible 

Permit rule? 

Section 39.403(b)(8)(A) and (B) states 

that initial issuance of a flexible permit 

is not required to comply with the 

public participation requirements of 

Chapter 39 unless the action involves 

new construction or an increase in 

allowable emissions equal to or greater 

than 250 tpy of CO or NOX; or 25 tpy 

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

other air contaminant except carbon 

dioxide, water, nitrogen, methane, 

ethane, hydrogen, and oxygen. 

When a flexible permit is established 

under the Texas rules in Subchapter G 

of Chapter 116, PSD or NNSR terms may 

be revised or eliminated when they are 

incorporated into the flexible permit. 

The rule does not provide for public 

participation for initial issuance of a 

flexible permit unless the action 

involves new construction or an 

increase in allowable emissions equal to 

or greater than 250 tpy of CO or NOX; 

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

tpy of any other air contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and oxygen. 

3. Do the public participation 

requirements for Texas flexible permits 

meet the Federal requirements for 

approvability? 

Sections 39.403(b)(8)(A) and (B), as 

they apply to the initial issuance of 

flexible permits do not meet the 

requirements in 40 CFR 51.161(a) and 

(b). Section 39.403 (Public Notice 

Applicability) fails to require 30-day 

public notice and comment on the 

State’s analysis of the effects on ambient 

air quality and its proposed approval or 

disapproval. PSD and NNSR permit 

terms and conditions are not revised 

with public process required by sections 

51.161(a) and (b) and 51.166(q). 

VI. Other Public Participation Concerns 

A. Cross References to Non-SIP Rules 

and Regulations 

The following provisions cross 

reference to rules that are not in the 

federally approved SIP, nor submitted to 

EPA for SIP approval: 

• Section 39.201(a)(1). Cross 

references to Chapter 30. 

• Section 39.403(b)(8). Cross 

reference to State statutory provisions in 

THSC section 382.0518 and section 

382.055 of the Texas Health and Safety 

Code. 

• Section 39.403(b)(8). Cross 

references to Chapter 116, Subchapter 

G, sections 116.710(a)(2) and (3). 

• Section 39.403(b)(8)(B). Cross 

reference to section 116.10(9). 

• Section 39.409. Cross references to 

Chapter 50. 

• Section 39.411(b)(10)—1st 

sentence. Cross references to 

§ 39.403(b)(11). 

• Section 39.413(11). Cross references 

to section 39.407. 

• Section 39.419(e)(4). Cross 

references to § 90.30. 

Approving a rule which cross 

references to a non-SIP provision is 

problematic because: (1) It could imply 

tacit approval of the non-SIP provision, 

without EPA’s review of the cross 

referenced provision to verify whether it 

meets the requirements of the Act and 

of 40 CFR part 51; and (2) if the State 

later revises the cross referenced nonSIP provision, the revised cross 

referenced provision could be 

interpreted to be enforceable under the 

SIP even if such provision, as revised, 

does not meet the requirements of the 

Act and of 40 CFR part 51. Furthermore, 

there is no demonstration whether these 

cross referenced provisions are 

separable from the rules that are 

submitted. Texas should either remove 

the cross references to the non-SIP 

provisions or submit the cross 

referenced provisions to EPA for SIP 

approval. Note that our action on any 

provision which refers to or implements 

a provision that EPA has not approved 

does not imply EPA proposed approval 

of such non-SIP requirement. 

B. Use of Undefined Acronyms. 

Several sections use the acronyms 

‘‘APA’’ ‘‘SOAH’’ and ‘‘WQMP.’’ 

However, we do not see where these 

terms are defined. 

C. Cross References to Obsolete 

Provision for Permits by Rule for 

Concrete Batch Plants 

The following provisions cross 

reference to public notice provision for 

permit by rule for concrete batch plants: 

section 39.403(a)(3) and (b)(10); section 

39.411(a)(10)(iv)(C); section 39.601; and 

section 55.152(a)(2). TCEQ has repealed 

all permits by rule for concrete batch 

plants and replaced them with a 

Standard Permit for concrete batch 

plants. This change is discussed in 

EPA’s approval of this action at 71 FR 

13549 (March 16, 2006). Texas has not 

revised these provisions in Chapters 39 

and 55 to reflect the change that EPA 

approved March 16, 2006. 

D. Cross Reference to Section 116.10(9) 

Section 39.303(b)(8)(B) cross 

references section 116.10(9) which is 

the definition of ‘‘modification of 

existing facility’’ (later recodified as 

section 116.10(11)). Texas submitted 

this definition in separate SIP 

submittals which are currently under 

review. EPA will address this definition 

in a separate action. 

E. Alternative Publication Procedures 

for Small Businesses 

Section 39.603(e) provides an 

alternative requirement to publish a 

notice under section 39.603(a)(2)21 if the 

applicant and source meet the definition 

of a small business stationary source in 

section 382.0365 of the Texas Health 

and Safety Code including, but not 


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22These provisions were recodified from 

Subchapter C to Subchapter E of Chapter 116 in a 

SIP revision submitted February 1, 2006. EPA is 

currently reviewing the February 1, 2006, revisions 

and will address this provision in a separate action. 

limited to, those which: are not a major 

stationary source for federal air quality 

permitting; do not emit 50 or more tpy 

of any regulated pollutant; do not emit 

75 or more tpy of all regulated 

pollutants; are owned or operated by a 

person that employs 100 or fewer 

individuals; and if the applicant’s site 

meets emission limits in section 

106.4(a), it will be considered to not 

have an effect on air quality. If all of the 

above conditions are met, the Executive 

Director may post information pending 

permit applications on its Web site, 

such as the permit number, project type, 

facility type, nearest city, county, date 

public notice authorized, information 

on comment periods, and information 

on how to contact the agency for further 

information. 

The existing SIP has no provision for 

alternative public notice for small 

businesses. As a relaxation of the 

existing SIP, we request that Texas 

provide a demonstration of how this 

provision is consistent with section 

110(l) of the Act. Section 30.603(e)(1)(A) 

refers to a definition of ‘‘small business 

stationary source in section 382.0365 of 

the Texas Health and Safety Code. For 

clarity and approvability into the SIP, 

§ 39.603(e) should be revised to refer to 

corresponding provisions of the Texas 

SIP. 

F. Relaxation of Sign Posting 

Requirements Under Section 39.604 

We have identified two provisions 

which relax the sign posting 

requirements of the existing SIP. 

• Section 39.604(c) includes a 

provision that the section’s sign posting 

requirements do not apply to properties 

under the same ownership which are 

noncontiguous and/or separated by 

intervening public highway, street, or 

road, unless directly involved by the 

permit application. This exclusion from 

the sign posting requirements is not in 

the existing SIP. As a relaxation of the 

existing SIP, we request that Texas 

provide a demonstration how this 

provision is consistent with section 

110(l) of the Act. 

• Section 116.133(f)(1) provides that 

if the nearest elementary or middle 

school has waived out of the 

requirements of 19 TAC section 

89.1205(a) under 19 TAC section 

89.1205(g), the alternate language signs 

shall be published in the alternate 

languages in which the bilingual 

education program would have been 

taught had the school not waived out of 

the bilingual education program. We do 

not see where this provision is included 

in the revised rules. Because omission 

of this provision is a relaxation of the 

existing SIP, we request that Texas 

provide a demonstration how omission 

of this provision is consistent with 

section 110(l) of the Act. 

VII. Why are we taking no action on 

some provisions of the submittal? 

A. Provisions Which Implement Section 

112(G) of the Act 

There are cross references to Chapter 

116, Subchapter C22 of this title relating 

to Hazardous Air Pollutants: 

Regulations Governing Constructed or 

Reconstructed Major Sources (FCAA, 

§ 112(g), 40 Code of Federal Regulations 

Part 63)) in the following provisions: 

sections 39.403(b)(9); 39.419(e)(3)(C); 

and 116.183. In an EPA SIP approval 

published September 18, 2002, we 

addressed the § 112(g) provisions (then 

located in Subchapter C of Chapter 116). 

We stated: 

We are taking no action on Subchapter C 

of Chapter 116—Hazardous Air Pollutants: 

Regulations Governing Constructed or 

Reconstructed Major Sources (FCAA Section 

112(g), 40 CFR part 63) as submitted in 1998. 

The program for reviewing and permitting 

constructed and reconstructed major sources 

of HAP is regulated under section 112 of the 

Act and under 40 CFR part 63, subpart B. 

Under these provisions, States establish caseby-case determinations of maximum 

achievable control technology for new and 

reconstructed sources of HAP. The process 

for these provisions is carried out separately 

from the SIP activities. For the reasons 

discussed above, we are not approving 

Subchapter C of [Chapter] 116 as submitted 

in 1998. 

67 FR 58699 (September 18, 2002). 

Section 112(g) of the Act applies to 

the review and permitting of 

constructed and reconstructed major 

sources of hazardous air pollutants 

(HAP) under § 112 of the Act and 40 

CFR part 63, subpart B. The process for 

implementing these provisions is 

carried out separately from the SIP. 

Because the requirements under section 

112(g) are self-implementing under 

section 112 of the Act and under 40 CFR 

part 63, subpart B, EPA will take no 

action on sections 39.403(b)(9), 

39.419(e)(3)(C), and 116.183. 

B. Provisions Which Do Not Relate to 

Air Quality Permits 

Texas submitted the following 

provisions to EPA for SIP approval 

which do not relate to air quality 

permits or to provisions that are not in 

the approved SIP: 

• Section 39.411(b)(11)—Applies to 

radioactive material licenses under 

Chapter 336; 

• Section 39.411(b)(13)—Applies to 

municipal solid waste applications; 

• Section 39.411(b)(14)—Applies to 

class 3 modifications of hazardous 

industrial solid waste permits; 

• Section 39.411(c)(7)—Applies to 

radioactive material licenses under 

Chapter 336 

• Section 39.419(d)—Subsection (d) 

only relates to subsection (c), which was 

not submitted; 

Because these provisions do not relate 

to air quality permitting or to any 

applicable requirement of the Clean Air 

Act, they are outside the scope of the 

SIP. The TCEQ should withdraw these 

provisions from this SIP submittal 

package. Consequently, EPA will take 

no action these provisions. 

C. Portions of Chapter 55 

The revised rules submitted to EPA 

include selected provisions from 

Chapter 55, Requests for 

Reconsideration and Contested Case 

Hearing. The existing SIP does not 

contain provisions which implement 

Texas’ air permitting administrative 

appeal process. Note that PSD permits 

issued by EPA or States with a delegated 

PSD program provide appeal to the 

Environmental Appeals Board under 40 

CFR Part 124. EPA interprets the CAA 

to require the opportunity for State 

court review under a State approved 

PSD program, as discussed in section 

V.B. of this notice, but the Act does not 

specifically require an administrative 

appeal process for an approved SIP PSD 

program. The requirements under 40 

CFR part 124 are not applicable to State 

approved PSD programs. Therefore, we 

are taking no action today on the 

portions of this SIP submittal that relate 

to requests for reconsideration or 

contested case hearings. Specifically, we 

are taking no action today on section 

55.1—Applicability; section 55.21— 

Requests for Contested Case Hearing, 

Public Comment; section 55.101— 

Applicability; section 55.103— 

Definitions; section 55.150— 

Applicability; section 55.201—Requests 

for Reconsideration and Contested Case 

Hearing; section 55.203—Determination 

of Affected Person; section 55.205— 

Request by Group or Association; 

section 55.209—Processing Requests for 

Reconsideration or Contested Case 

Hearing; and section 55.211— 

Commission Action or Requests for 

Reconsideration and Contested Case 

Hearing. 

We propose to grant limited approval 

and limited disapproval to Subchapter E 

of Chapter 55 related to Public 

Comment and Public Meetings 

including sections 55.150— 

Applicability; section 55.152—Public 


jlentini on PROD1PC65 with PROPOSALS
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Comment Period; section 55.154— 

Public Meetings; section 55.156—Public 

Comment Processing. 

D. Revisions to Section 116.740—Public 

Notice 

The October 25, 1999, SIP submittal 

includes revisions to section 116.740— 

Public Notice in Chapter 116, 

Subchapter G which relates to Flexible 

Permits. This submittal revised earlier 

SIP submittals of this section as 

submitted November 29, 1994, and July 

22, 1998. EPA is currently reviewing the 

November 29, 1994, and July 22, 1998, 

SIP submittals and will propose 

appropriate action on section 116.740 in 

a separate action. EPA will take no 

action on section 116.740 at this time. 

VIII. Public Comment and Proposed 

Action 

Under the CAA sections 110(k)(3) and 

301(a) for the reasons stated above, EPA 

is proposing simultaneous limited 

approval and limited disapproval of 

portions of the SIP revisions identified 

in section II.A which Texas submitted 

on December 15, 1995; July 22, 1998; 

and October 25, 1999. EPA is taking no 

action on certain sections as identified 

in section VII because they are outside 

the scope of the SIP or because they 

revise a prior SIP submittal which is 

currently under review for approval or 

disapproval in a separate action. As 

discussed in this proposal, we have 

identified the following inconsistencies 

between the Texas revised rules and 

minimum Federal requirements for 

public participation. In summary, the 

provisions which preclude full approval 

of the revised rules include, but may not 

be limited to, the following: 

A. Provisions Relating to Public 

Participation for Projects Subject to 

Minor NSR 

• Section 39.419(e) fails to require the 

State’s air quality analysis and proposed 

approval or disapproval in the publicly 

available information for new or 

modified minor NSR sources or minor 

modifications at major sources, 

• Section 39.403(b)(8) fails to require 

any public participation for a minor 

NSR permit amendment or minor 

modification under section 116.116(b), 

unless the change involves construction 

of a new facility or modification of an 

existing facility that results in an 

increase in allowable emissions equal to 

or greater than 250 tpy of CO or NOX; 

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

tpy of any other air contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and oxygen 

or other changes within the discretion of 

the Executive Director. 

• Section 39.419(e)(1)(C) fails to 

require the State’s air quality analysis 

and proposed approval or disapproval 

in the publicly available information, 

for any permit amendment, 

modification, or renewal application of 

a major or minor source, unless the 

action would result in an increase in 

allowable emissions and would not 

result in the emission of an air 

contaminant not previously emitted. 

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

references to two State statutory 

provisions, THSC Section 382.0518 

(preconstruction permit) and section 

382.055 (review and renewal of 

preconstruction permit) which are not 

part of the SIP. 

B. Provisions Relating to Public 

Participation for Projects Subject to PSD 

• The revised rules do not provide 

opportunity for a public hearing for 

interested persons to appear and submit 

written or oral comment on the air 

quality impact of the source, 

alternatives to it, the control technology 

required, and appropriate 

considerations and to provide notice of 

the opportunity for a public hearing for 

a PSD permit. 

• Public notice of a PSD permit is not 

required by the revised rules to contain 

the degree of increment consumption 

that is expected from the source or 

modification. 

• There is no requirement in the 

revised rules that a copy of the public 

notice of a PSD permit to be sent to 

State and local air pollution control 

agencies, the chief executives of the city 

and county where the source would be 

located and any State or Federal Land 

Manager or Indian Governing Body 

whose lands may be affected by 

emissions from the source or 

modification. 

• There is no requirement in the 

revised rules that response to comments 

be available prior to final action on the 

PSD permit. 

• There is no definition of a final 

appealable decision for a PSD permit in 

the revised rules. We request further 

information about how and when the 

commenters are informed of the 

Agency’s final decision and how 

commenters are informed of access to 

response to comments and timing for 

judicial appeal, in order to provide an 

opportunity for State court judicial 

review. 

C. Provisions Relating to Public 

Participation for Projects Subject to 

PALs 

• There is no requirement in the 

revised rules that PALs be established, 

renewed, or increased through a 

procedure that is consistent with 40 

CFR 51.160 and 51.161, including the 

requirement that the reviewing 

authority provide the public with notice 

of the proposed approval of a PAL 

permit and at least a 30-day period for 

submittal of public comment, consistent 

with the Federal PAL rules at 40 CFR 

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

• There is no requirement in the 

revised rules that the State address all 

material comments before taking final 

action on the PAL permit, consistent 

with 40 CFR 51.166(w)(5). 

• There is no reference to PALs in the 

applicability section in Chapter 39.403. 

D. Provisions Relating to Public 

Participation for Projects Subject to 

Flexible Permits 

• For initial issuance of a flexible 

permit to establish a minor NSR 

applicability cap or an increase in a 

flexible permit cap, there is no 

requirement in the revised rules for 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. 

• Where PSD and NNSR terms and 

conditions are modified or eliminated 

when the permit is incorporated into a 

flexible permit, there is no requirement 

in the revised rules for public 

participation consistent with 40 CFR 

51.161 and 51.166(q). 

E. Other Concerns 

• The issues identified in section VII 

of this preamble. 

We are proposing simultaneous 

limited approval and limited 

disapproval of the revised rules because 

we have determined that the rules 

strengthen the existing SIP, but do not 

meet the minimum public participation 

requirements of the Act and our 

regulations. We request comments on 

this proposal. After review and response 

to public comment, EPA plans to take 

final action on the revised rules. Final 

limited approval would incorporate the 

revised rules identified in section II into 

the Texas SIP and the new public 

participation rules would become fully 

federally enforceable. Final limited 

disapproval would make a finding of 

how the revised rules fail to meet 

minimum criteria established by the Act 

and our regulations. If EPA determines 

that, for rules required by the CAA, the 

deficiencies forming the basis of final 

limited disapproval have not been 

corrected, the Agency may apply the 

sanctions listed in section 179(b) of the 

Act and 40 CFR 52.31 within 18 months 

of the finding. If the State submits an 


jlentini on PROD1PC65 with PROPOSALS
72016 Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules 

approvable rule revision within 18 

months of such a finding, EPA may take 

interim final action, effective upon 

publication, to stay the sanctions prior 

to proposing approval and taking 

comment on the submittal. Also, a FIP 

may be promulgated under section 

110(c)(1) of the Act, if EPA finds that a 

SIP revision does not satisfy the 

minimum criteria established under 

section 110(k)(2) of the CAA. The FIP 

may be adopted at any time within 2 

years of such a finding, unless the State 

corrects the deficiency and EPA 

approves the revision before the FIP is 

promulgated. Final approval of the 

revision correcting the identified 

deficiencies would terminate imposition 

of the FIP. 

We will accept comments on this 

proposal for the next 60 days. After 

review of public comments, we intend 

to publish a rule to promulgate final 

limited approval and final limited 

disapproval of the provisions identified 

above into the Texas SIP. 

IX. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this proposed action 

merely approves State law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Hydrocarbons, Intergovernmental 

relations, Lead, Nitrogen oxides, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: November 18, 2008. 

Richard E. Greene, 

Regional Administrator, Region 6. 

[FR Doc. E8–28162 Filed 11–25–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 112 

[EPA–HQ–OPA–2008–0546; FRL–8745–9] 

RIN 2050–AG49 

Oil Pollution Prevention; NonTransportation Related Onshore 

Facilities 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to amend the 

dates by which facilities must prepare 

or amend Spill Prevention, Control, and 

Countermeasure (SPCC) Plans, and 

implement those Plans. The Agency is 

also proposing to establish dates for 

farms to prepare or amend their Spill 

Prevention, Control, and 

Countermeasure Plans (SPCC Plans), 

and implement those Plans. EPA had 

delayed establishing compliance dates 

for farms pending revisions to the SPCC 

rule that would specifically address this 

sector. Two different extension dates are 

proposed for farms and production 

facilities that meet the qualified 

facilities criteria. Elsewhere in this 

Federal Register, the Agency is 

finalizing certain tailored and 

streamlined requirements for facilities 

subject to the SPCC requirements. 

DATES: Written comments must be 

received by December 26, 2008. 

ADDRESSES: Comments should be 

directed to Docket ID No. EPA–HQ– 

OPA–2008–0546. Comments may be 

submitted by one of the following 

methods: 

(1) Federal Rulemaking Portal: 

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

on-line instructions for submitting 

comments; 

(2) E-mail: Comments may be sent by 

electronic mail (e-mail) to: rcradocket@epa.gov, Attention Docket ID 

No. EPA–HQ–OPA–2008–0546. 

(3) Fax: Comments may be faxed to 

202–566–9744, Attention Docket ID No. 

EPA–HQ–OPA–2008–0546. 

(4) Mail: The mailing address of the 

docket for this rulemaking is EPA 

Docket Center (EPA/DC), Docket ID No. 

EPA–HQ–OPA–2008–0546, mail code 

2822T, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460. Attention 

Docket ID No. EPA–HQ–OPA–2008– 

0546. 

(5) Hand Delivery: EPA Docket Center 

(EPA/DC), EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington DC 

20460. Attention Docket ID No. EPA– 

HQ–OPA–2008–0546. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Please note that EPA’s 

policy is that all comments received 

will be included in the public docket 

without change, and may be made 

available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or email. 

The Federal regulations.gov Web site 

is an ‘‘anonymous access’’ system, 

which means that EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you submit an 

electronic comment, EPA recommends 

that you include your name and other 

contact information in the body of the 

comment and along with any disk or 

CD–ROM you submit. If EPA cannot 

read your comment due to technical 

difficulties and cannot contact you for 


jlentini on PROD1PC65 with PROPOSALS