[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Proposed Rules]
[Pages 74129-74142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30098]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0612; FRL-9761-2]
Approval and Promulgation of Implementation Plans; Texas; Public
Participation for Air Quality Permit Applications
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the Texas State
Implementation Plan (SIP) that establish the public participation
requirements for air quality permits. EPA proposes to find that these
revisions to the Texas SIP comply with the Federal Clean Air Act (the
Act or CAA) and EPA regulations and are consistent with EPA policies.
Texas submitted the public participation provisions in four separate
revisions to the SIP on July 22, 1998; October 25, 1999; July 2, 2010;
and March 11, 2011. EPA is proposing this action under section 110 and
parts C and D of the Clean Air Act (the Act).
DATES: Comments must be received on or before February 11, 2013.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2010-0612, by one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Email: Ms. Adina Wiley at [email protected].
Fax: Ms. Adina Wiley, Air Permits Section (6PD-R), at fax
number 214-665-6762.
Mail: Ms. Adina Wiley, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
Hand or Courier Delivery: Ms. Adina Wiley, Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only
between the hours of 8:30 a.m. and 4:30 p.m. weekdays, and not on legal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2010-0612. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a fee of 15 cents
per page for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202. The State submittals, which are part of
the EPA docket, are also available for public inspection during
official business hours by appointment: Texas Commission on
Environmental Quality (TCEQ), Office of Air Quality, 12124 Park 35
Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, Air Permits Section
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-2115; fax number
214-665-6762; email address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.
Table of Contents
I. Background for Our Proposed Action
A. What action is EPA proposing?
B. History of EPA Actions on Texas Public Participation for Air
Quality Permit Applications
II. Summary of the State Submittals That EPA Is Reviewing
A. July 22, 1998
B. October 25, 1999
C. July 2, 2010
D. March 11, 2011
E. What are we not addressing in this proposed action?
III. Technical Analysis of the Texas Public Participation for Air
Quality Permit Applications
A. Public Participation for Prevention of Significant
Deterioration (PSD) Permit Applications
1. Analysis of Submitted Rules
2. How do the Texas public notice provisions for PSD permit
applications address the deficiencies identified in the proposed LA/
LD?
3. Proposed Findings Specific to the Texas Public Participation
Provisions for PSD Permit Applications
B. Public Participation for Nonattainment New Source Review
(NNSR) Permit Applications
1. Analysis of Submitted Rules
2. Proposed Findings Specific to the Texas Public Participation
Provisions for NNSR Permit Applications
C. Public Participation for Plant-Wide Applicability Limit (PAL)
Permit Applications
1. Analysis of Submitted Rules
2. How do the Texas public notice provisions for PAL permit
applications address the deficiencies identified in the proposed LA/
LD?
[[Page 74130]]
3. Proposed Findings Specific to the Texas Public Participation
Provisions for PAL Permit Applications
D. Public Participation for Minor NSR Permit Applications
1. Analysis of Submitted Rules
2. Minor NSR Public Notice Requirements Specific to Two Types of
Minor NSR Permit Amendment Applications
i. Identification of the Minor NSR Emission Thresholds and
Affected Source Populations
ii. How were the ``De Minimis'' and ``Insignificant'' thresholds
for minor NSR permit amendments established?
(A). Texas ``De Minimis'' Thresholds for Minor Permit Amendments
(B). Texas ``Insignificant'' Thresholds for Minor Permit
Amendments for Selected Agricultural Facilities
3. How do the Texas public notice provisions for minor NSR
permit applications address the deficiencies identified in the
proposed LA/LD?
4. Proposed Findings Specific to the Texas Public Participation
Provisions for Minor NSR Permitting
E. Public Participation for Permit Renewal Applications
1. Analysis of Submitted Rules
2. Proposed Findings Specific to the Texas Public Participation
Provisions for Permit Renewal Applications
F. Does proposed approval of the Texas public participation
provisions for air quality permit applications interfere with
attainment, reasonable further progress, or any other applicable
requirement of the Act?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background for Our Proposed Action
A. What action is EPA proposing?
The Clean Air Act at section 110(a)(2)(C) requires states to
develop and implement permitting programs for attainment and
nonattainment areas that cover both construction and modification of
stationary sources. EPA codified minimum requirements for these State
permitting programs including public participation and notification
requirements at 40 CFR 51.160-51.164. The EPA originally adopted these
rules prior to the creation of the PSD permit program in 1977, which
has additional detailed public participation requirements in 40 CFR
51.166(q).\1\
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\1\ EPA expanded the NSR regulations in 1973 to require public
participation because EPA determined that public participation was
necessary to maintain air quality as required by the CAA. See 60 FR
45530, at 45548 (citing 38 FR 15834, 15836 (1973) and NRDC v. EPA,
No. 72-1522 (D.C. Cir.)). See also See 61 FR 38250, at 38276 and
38320.
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EPA is proposing to approve submittals from the State of Texas as
revisions to the Texas State Implementation Plan (SIP) that establish
the public participation requirements for air quality permits. EPA
proposes to find that these submitted revisions to the Texas SIP comply
with the CAA and EPA regulations and are consistent with EPA policies.
Texas submitted the public participation provisions in four separate
submittals for approval to EPA as revisions to the SIP on July 22,
1998, October 25, 1999, July 2, 2010, and March 11, 2011. EPA is
proposing this action under section 110 and parts C and D of the Clean
Air Act (the Act).
B. History of EPA Actions on Texas Public Participation for Air Quality
Permit Applications
The Texas SIP currently addresses public notice provisions for air
quality permits through regulations adopted by the State on June 17,
1998, effective July 8, 1998, at 30 TAC section 116.130--Applicability;
section 116.131--Public Notification Requirements; section 116.132--
Public Notice Format; section 116.133--Sign Posting Requirements;
section 116.134--Notification of Affected Agencies; section 116.136--
Public Comment Procedures; and section 116.137--Notification of Final
Agency Action. EPA SIP-approved the submitted Sections 116.130,
116.131, 116.132 (except subsections (c) and (d)), 116.133 (except
subsections (f) and (g)), 116.134, 116.136, and 116.137 on September
18, 2002 (67 FR 58697), effective October 18, 2002. EPA SIP-approved
the submitted Sections 116.132(c) and (d) and 116.133(f) and (g) on
March 10, 2006 (71 FR 12285), effective May 9, 2006.
On November 26, 2008, EPA published a proposed limited approval/
limited disapproval (LA/LD) of three submittals from the State
requesting approval of them as revisions to the Texas SIP pertaining to
public notice for air quality permits (see 73 FR 72001). Our proposed
LA/LD encompassed revisions submitted by the TCEQ on December 15, 1995;
July 22, 1998; and October 25, 1999. Please see the Technical Support
Document (TSD) accompanying this action for a complete list of the
sections that were the subject of our proposed LA/LD.
On June 2, 2010, the TCEQ adopted amendments to 30 TAC Chapter 39,
Public Notice; Chapter 55, Requests for Reconsideration and Contested
Case Hearings; Public Comment; and Chapter 116, Control of Air
Pollution by Permits for New Construction or Modification; and
corresponding revisions to the Texas SIP. These revised rules were
submitted for EPA approval as a SIP revision on July 2, 2010, to
address our identified concerns in the proposed LA/LD.
At that time, TCEQ also adopted and submitted to EPA the withdrawal
from consideration by EPA of revisions to the Texas SIP that were
previously submitted to EPA on October 25, 1999; July 31, 2002; and
March 9, 2006. Please see the July 2, 2010 SIP submittal cover letter
and the TSD for a complete listing of the sections withdrawn. The cover
letter and TSD can be found in the rulemaking docket for this action.
To summarize the cover letter, on July 2, 2010, the TCEQ withdrew from
EPA's consideration as revisions to the SIP all of the public
participation rules previously submitted, except for three subsections:
30 TAC sections 39.411(a) and 55.152(b) as adopted in 1999, and
currently amended 30 TAC section 39.418(b)(3), submitted to EPA in 1999
as section 39.418(b)(4).
Upon receipt of the new public notice SIP revision submittal, EPA
published a withdrawal of our proposed LA/LD on November 5, 2010 (see
75 FR 68291). In that notice we state that we withdrew our proposed LA/
LD of 30 TAC sections 39.201, 39.401, 39.403, 39.405, 39.409, 39.411,
39.413, 39.418, 39.419, 39.420, 39.423, 39.601-39.605, 55.1, 55.21,
55.101, 55.103, 55.150, 55.152, 55.154, 55.156, 55.200, 55.201, 55.203,
55.205, 55.209, and 55.211 because these sections are no longer before
us for consideration. Additionally, even though the TCEQ left before us
for review sections 30 TAC 39.411(a), 39.418(b)(4) and 55.152(b) as
adopted October 25, 1999, we withdrew our proposed LA/LD of these
subsections. We did not take any further action on these three
subsections in the November 5, 2010, notice because we concluded that
it was the TCEQ's intent that these three subsections be evaluated with
the entirety of the new public participation submittal from July 2,
2010. Our rationale for this approach is fully explained in our
November 5, 2010 notice, which can be found in the docket for this
rulemaking. In our November 5, 2010 FRN we also withdrew our proposed
LA/LD of the submitted sections 116.111, 116.114, 116.116, 116.183,
116.312 and 116.740. We withdrew our action on these submitted sections
because they included cross-references to the Chapter 39 public
participation rules and we again concluded that it was the TCEQ's
intent for these sections to be evaluated with the entirety of the
public participation submittal from July 2, 2010. Our November 5, 2010
FRN did not address the submitted repeal of section 116.124; nor has
TCEQ withdrawn this repeal from our consideration. Therefore, the
October
[[Page 74131]]
25, 1999 submitted repeal of section 116.124 remains before EPA for
review.
II. Summary of the State Submittals That EPA Is Reviewing
EPA's proposed approval action today addresses portions of four
revisions to the Texas SIP submitted on July 22, 1998, October 25,
1999, July 2, 2010, and March 11, 2011.
A. July 22, 1998
On June 17, 1998, the Texas Natural Resource Conservation
Commission \2\ made general corrections and clarifications to 30 TAC
Chapter 116--Control of Air Pollution by Permits for New Construction
or Modification. Governor George W. Bush submitted these amendments to
EPA for approval as revisions to the Texas SIP in a letter dated July
22, 1998. EPA has taken several rulemaking actions over the years on
this submitted SIP revision package. However, we have not previously
addressed the submittal of the public participation provisions for
permit renewal applications at 30 TAC 116.312. Note that the July 22,
1998 submittal of section 116.312 included a repeal and replacement of
section 116.312 as submitted December 15, 1995. Therefore, section
116.312 as submitted July 22, 1998 remains before us for review and
supersedes the December 15, 1995 submittal.
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\2\ The Texas Natural Resource Conservation Commission is a
predecessor agency to the Texas Commission on Environmental Quality.
In general, this proposed action will refer to the agency as the
TCEQ.
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B. October 25, 1999
On September 2 and September 29, 1999, the TCEQ adopted regulations
to implement Texas House Bill 801 to establish new procedures for
public participation in environmental permitting. Governor George W.
Bush submitted these amendments to EPA for approval as revisions to the
Texas SIP in a letter dated October 25, 1999. The State also submitted
the repeal of section 116.124 at that time. On July 2, 2010, the TCEQ
formally withdrew from our consideration all submitted components of
the October 25, 1999, submittal, with the exception of sections
39.411(a), 39.418(b)(4), 55.152(b), 116.111(b), 116.114(a)(2),
116.114(a)(2)(A), 116.114(a)(2)(B), 116.114(b)(1), 116.114(c)(1)-(3),
116.116(b)(4) and 116.312. These sections were retained for EPA review
and will be analyzed with the entirety of the Public Participation
revisions submitted on July 2, 2010.
C. July 2, 2010
On June 2, 2010, the TCEQ adopted new and revised regulations
concerning Public Notice at 30 TAC Chapter 39; Requests for
Reconsideration and Contested Case Hearings; Public Notice at 30 TAC
Chapter 55; and Control of Air Pollution by Permits for New
Construction or Modification at 30 TAC Chapter 116. Chairman Bryan W.
Shaw, Ph.D., submitted these amendments to EPA for approval as
revisions to the Texas SIP in a letter dated July 2, 2010. The
amendments submitted for approval as revisions to the Texas SIP are as
follows: 30 TAC Sections 39.402(a)(1)-(6), (8), and (10)-(12);
39.405(f)(3) and (g), (h)(1)(A)-(4), (6), (8)-(11), (i) and (j);
39.407; 39.409; 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and
(B), (6)-(10), (11)(A)(i) and (iii) and (iv), (11)(B)-(F), (13) and
(15), and (f)(1)-(8), (g) and (h); 39.418(a), (b)(2)(A) and (c);
39.419(e); 39.420(c)(1)(A)-(D)(i)(I) and (II), (D)(ii), (c)(2), (d)-
(e), and (h); 39.601; 39.602; 39.603; 39.604; 39.605; 55.150;
55.152(a)(1), (2), (5) and (6); 55.154(a), (b), (c)(1)-(3) and (5), and
(d)-(g); 55.156(a), (b), (c)(1), (e) and (g); 116.114(a)(2)(B),
(a)(2)(C), (c)(2), and (c)(3); and 116.194. As a result of the
submitted amendments to 30 TAC Sections 39.411(f)(8)(A) and
39.605(1)(D), the TCEQ requested on July 2, 2010, that EPA remove from
the Texas SIP the corresponding two commitments from paragraph 7 of the
July 17, 1987 Texas PSD Supplement.
On July 2, 2010, the TCEQ also submitted a request to withdraw from
consideration by the EPA, the new and amended rules that were
previously submitted to EPA for approval as revisions to the SIP on
October 25, 1999; July 31, 2002; and March 9, 2006. The TCEQ's letter
withdrew from our consideration all sections of the 1999, 2002, and
2006 submittals except for 30 TAC sections 39.411(a) and 55.152(b) as
adopted in 1999, and section 39.418(b)(3), submitted in 1999 as section
39.418(b)(4).
D. March 11, 2011
The TCEQ originally adopted 30 TAC Section 116.194 on January 11,
2006, to establish the public notice provisions for PAL permit
applications. The TCEQ submitted these revisions to EPA on February 1,
2006 as a SIP submittal. EPA disapproved these provisions for PAL
public notice on September 15, 2010. See 75 FR 56424. On March 11,
2011, the TCEQ resubmitted section 116.194 as adopted January 11, 2006,
in addition to the July 2, 2010 amendments to section 116.194.
Therefore, section 116.194 as adopted on January 11, 2006, and amended
on July 2, 2010, remains before us for review.
The following table identifies the specific sections that were
submitted for EPA review and approval into the Texas SIP.
Table 1--Rules Submitted in Each SIP Revision Submittal That Are Affected by This Proposed Action
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Texas rule project State submittal State adoption Rules addressed in
Section title number date date this action
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30 TAC 39.402--Applicability 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.402(a)(1)-(3),
to Air Quality Permits and (a)(6) proposed for
Permit Amendments. approval.
30 TAC 39.405--General Notice 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.405(f)(3) and (g),
Provisions. (h)(1)(A), (h)(2)-
(h)(4), (h)(6),
(h)(8)-(h)(11), (i)
and (j) proposed for
approval.
30 TAC 39.407--Mailing Lists.. 2010-004-039-LS... July 2, 2010...... September 2, 1999 39.407 resubmitted on
July 2, 2010.
30 TAC 39.409--Deadline for 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.409 proposed for
Public Comment, and Requests approval.
for Reconsideration,
Contested Case Hearing, or
Notice and Comment Hearing.
[[Page 74132]]
30 TAC 39.411--Text of Public 99030-039-AD...... October 25, 1999.. September 2, 1999 39.411(a) proposed
Notice. for approval.
2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.411(e)(1)-(4)(A)(i
) and (iii), (4)(B),
(5)(A) and (B), (6)-
(10), (11)(A)(i),
(iii) and (iv),
(11)(B)-(F), (13)
and (15), and (f)(1)-
(8), (g) and (h)
proposed for
approval.
30 TAC 39.418--Notice of 99030-039-AD...... October 25, 1999.. September 2, 1999 39.418(b)(4) proposed
Receipt of Application and for approval; note
Intent to Obtain Permit. that this section
was renumbered to
39.418(b)(3) as a
result of the July
2010 submittal.
2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.418(a), (b)(2)(A),
(b)(3) and (c)
Proposed for
approval.
30 TAC 39.419--Notice of 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.419(e) proposed
Application and Preliminary for approval.
Decision.
30 TAC 39.420--Transmittal of 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.420(c)(1)(A)--(D)(
the Executive Director's i)(I) and (II),
Response to Comments and (D)(ii), (c)(2), (d)-
Decision. (e) proposed for
approval.
30 TAC 39.601--Applicability.. 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.601 proposed for
approval.
30 TAC 39.602--Mailed Notice.. 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.602 proposed for
approval.
30 TAC 39.603--Newspaper 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.603 proposed for
Notice. approval.
30 TAC 39.604--Sign-Posting... 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.604 proposed for
approval.
30 TAC 39.605--Notice to 2010-004-039-LS... July 2, 2010...... June 2, 2010..... 39.605 proposed for
Affected Agencies. approval.
30 TAC 55.150--Applicability.. 2010-004-039-LS... July 2, 2010...... June 14, 2006.... 55.150 was adopted in
2006 but submitted
as part of the 2010
SIP package.
30 TAC 55.152--Public Comment 99030-039-AD...... October 25, 1999.. September 2, 1999 55.152(b) proposed
Period. for approval.
2010-004-039-LS... July 2, 2010...... June 2, 2010..... Subsections
55.152(a)(1), (2),
(5) and (6) proposed
for approval.
30 TAC 55.154--Public Meetings 2010-004-039-LS... July 2, 2010...... June 2, 2010..... Subsections
55.154(a), (b),
(c)(1)-(3) and (5),
(d)-(g) proposed for
approval.
30 TAC 55.156--Public Comment 2010-004-039-LS... July 2, 2010...... June 2, 2010..... Subsections
Processing. 55.156(a), (b),
(c)(1), (e) and (g)
proposed for
approval.
30 TAC 116.111--General 99030-039-AD...... October 25, 1999.. September 2, 1999 116.111(b)
Application. introductory
paragraph and (1)
and (2) proposed for
approval.
30 TAC 116.114--Application 99030-039-AD...... October 25, 1999.. September 2, 1999 Revisions to
Review Schedule. 116.114(a)(2)
introductory
paragraph, new
(a)(2)(A), new
(a)(2)(B), revisions
to (b)(1), and new
(c)(1)-(3) proposed
for approval.
2010-004-039-LS... July 2, 2010...... June 2, 2010..... Revisions to
116.114(a)(2)(B) and
(a)(2)(C), (c)(2)
and revisions to
(c)(3) proposed for
approval.
30 TAC 116.116--Changes to 99030-039-AD...... October 25, 1999.. September 2, 1999 New 116.116(b)(4)
Facilities. proposed for
approval.
30 TAC 116.124--Public Notice 98001-116-AI...... July 22, 1998..... SECTION REPEALED. SECTION PROPOSED FOR
of Compliance History. REPEAL.
30 TAC 116.194--Public 2005-010-116-PR... February 1, 2006.. January 11, 2006. Disapproved by EPA
Notification and Comment. September 15, 2010.
See 75 FR 56424.
2010-004-039-LS... July 2, 2010...... June 2, 2010..... 116.194(a) and (b)
proposed for
approval.
2010-008-116-PR... March 11, 2011.... January 11, 2006. Resubmittal of the
January 11, 2006
adoption of 116.194
Proposed for
approval.
[[Page 74133]]
30 TAC 116.312--Public 98001-116-AI...... July 22, 1998..... June 17, 1998.... Repealed previous
Notification and Comment 116.312 that was SIP
Procedures. approved;
New adoption of
116.312 proposed for
approval.
99030-039-AD...... October 25, 1999.. September 2, 1999 Revised to cross-
reference Chapter 39
procedures.
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E. What are we not addressing in this proposed action?
EPA is severing and taking no action on section 116.116(b)(3) as it
was submitted on October 25, 1999. Section 116.116(b)(3) applies to the
review and permitting of constructed and reconstructed major sources of
hazardous air pollutants (HAPs) under section 112(g) of the Act and 40
CFR Part 63, Subpart B. The process for implementing these provisions
is carried out separately from a SIP. SIPs cover criteria pollutants
and their precursors, as regulated by NAAQS. Section 112(g) of the Act
regulates HAPs, this program is not under the auspices of a CAA section
110 SIP, and this program should not be approved into a SIP.
Additionally, the submitted section 116.116(b)(3) is severable from the
remainder of the Texas public participation submittals. Because the
requirements under section 112(g) are self-implementing under section
112(g) of the Act and under 40 CFR part 63, Subpart B, EPA is severing
and taking no action on section 116.116(b)(3).
Additionally, EPA is severing and taking no action at this time on
the following public participation provisions that were submitted as
SIP revisions in the July 2, 2010 submittal:
Sections 39.402(a)(4) and (a)(5) establishing
applicability of public notice provisions for new Flexible Permits and
amendments to Flexible Permits under 30 TAC Chapter 116. EPA finds it
appropriate to sever and take no action on these Flexible Permit
provisions because the Flexible Permits Program is not currently in the
Texas SIP. We disapproved the Flexible Permits Program on July 15, 2010
(75 FR 41312). EPA's disapproval was remanded for further action on
August 13, 2012. State of Texas, et al. v. EPA, Case No. 10-60614 (5th
Circuit, Aug. 13, 2012). TCEQ has revised its rules for the Flexible
Permits Program, but the State has not yet submitted those revised
rules. If TCEQ submits revised rules for the Flexible Permits Program
in the near future, EPA will analyze the public notice provisions for
Flexible Permits when we take action on that submittal. Alternatively,
EPA will analyze and act on the public notice provisions for Flexible
Permits when we address the Flexible Permits Program submittal that is
in front of us for SIP approval.
Sections 39.402(a)(10) and 39.419(e)(3) establishing
applicability of public notice provisions for applications for permits,
registrations, licenses, or other types of authorizations required to
construct, operate or authorize a component of the Future Gen. We are
severing and taking no action on Section 39.420(h) which establishes
response to comment (RTC) procedures for permit applications for
Permits for Specific Designated Facilities under 30 TAC Chapter 116,
Subchapter L. EPA finds it appropriate to sever and take no action on
the Future Gen public notice provisions and the response to comment
procedures because we have not yet acted on the underlying Future Gen
permit rules at 30 TAC Chapter 116, Subchapter L. We will review and
analyze the public notice provisions for Future Gen when we take action
on this permit program.
Section 39.402(a)(12) establishing public participation
provisions pertaining to change of location of a portable facility,
consistent with the requirements of 30 TAC section 116.178. EPA has not
taken action on the underlying permit provisions for the Relocations
and Changes of Location of Portable Facilities. We will analyze the
public notice provisions for change of location of portable facilities
when we take action on the underlying permit provisions at section
116.178.
Section 39.405(h)(1)(B) providing alternate language
newspaper notice requirements for permit applications that are not air
quality permit applications. Permit applications that are not air
quality permit applications are beyond the scope of the Texas SIP.
III. Technical Analysis of the Texas Public Participation for Air
Quality Permit Applications
The Texas air quality permitting program consists of several
different types of permit actions including permits for new major
sources or modifications subject to PSD or NNSR requirements, PAL
permit authorizations at existing major sources, new minor sources or
minor amendments, and permit renewals. The Texas public participation
program is also tiered, providing different levels and scope of public
participation to correspond with the type of permit action. The
following sections of this proposed action and the accompanying TSD
will analyze the public participation process for each type of permit
action to determine whether the submitted process is consistent with
federal requirements.
The Texas public participation requirements for air quality permit
applications are found in three chapters of the TAC: Chapters 39, 55,
and 116. Chapter 39 establishes applicability and general processes and
requirements for the public notice documentation. Chapter 55
establishes general requirements for public comment periods, public
meetings and processing of public comments. Chapter 116 provides
general timelines for public comment period and applicability. Each
type of air quality permit application follows the same general public
notice procedures as outlined below:
1. Applicant submits air quality permit application to TCEQ.
2. TCEQ reviews the application and determines whether the
application is administratively complete. During this process, the TCEQ
has 90 days to determine the application is complete or request
additional information. See 30 TAC 116.114(a)(1).
3. Once the application is administratively complete, the applicant
is required to publish the first notice, the Notice of Receipt of
Application and Intent to Obtain Permit (NORI), as applicable. See 30
TAC 39.418. The NORI is a unique feature of the Texas Public Notice
Process. The NORI provides information to the public about the receipt
of an application and provides basic information about the proposed new
source or modification
[[Page 74134]]
such as a description of the location and the nature of the proposed
activity, a description of the public comment process, and the location
where materials will be made available for review. The NORI does not
provide any technical information, but rather serves as an indicator of
future public notices and actions that may be of interest, enabling the
public to anticipate draft permits. The NORI is required for all air
quality permit applications subject to the Chapter 39 public notice
provisions except for PAL permit applications. Note that certain permit
amendments are exempted from the Chapter 39 public notice provisions as
discussed in Section III.D of this proposed action.
4. TCEQ completes the technical review and makes a preliminary
decision. The TCEQ has 180 days from the date a new permit application
is administratively complete, or 150 days from the date a permit
amendment application is administratively complete, to conduct the
technical review and make a preliminary decision. See 30 TAC
116.114(a)(2).
5. The applicant is required to publish the second notice, the
Notice of Application and Preliminary Decision (NAPD) when notified by
TCEQ of the preliminary decision. See 30 TAC 39.419. The NAPD notice
provides the information and notice to the public consistent with
federal requirements. The NAPD provides details about the preliminary
decision and draft permit and the location where applicable air quality
analyses and other technical materials will be made available for
public review. Additionally for PSD permit applications, the NAPD
includes the degree of increment consumption that is expected. The NAPD
is required for all air quality permit applications subject to the
Chapter 39 public notice provisions with the exception of permit
renewals. The NAPD may be required for permit renewal applications
depending on the details of the action. Note that certain permit
amendments are exempted from the Chapter 39 public notice provisions as
discussed in Section III.D of this proposed action.
6. The TCEQ files the Executive Director's (ED) draft permit and
preliminary decision, the preliminary determination summary and air
quality analysis with the chief clerk and the clerk posts this
information on the TCEQ's Web site. See 30 TAC 39.419(e).
7. The comment period runs for 30 days after the last publication
of the NAPD discussed in Step 5. See 30 TAC 55.152(a)(1).
8. A public meeting is held if the ED determines there is a
substantial or significant degree of public interest; if the meeting is
requested by a member of the legislature representing the general area
of the proposed facility/modification; if a public meeting is otherwise
required by law; or, in the case of a PSD or NNSR permits, the meeting
is requested by an interested person. See 30 TAC 55.154(c).
9. The ED prepares a response to all comments received. See 30 TAC
55.156(b)(1).
10. The ED files the response to comments with the chief clerk as
soon as practicable, but not later than 60 days after the end of the
comment period. See 30 TAC 55.156(b)(3).
11. The chief clerk will mail or transmit the ED decision and the
RTC to the applicant, any person who submitted comments and any person
on the mailing list for the permit action. See 30 TAC 55.156(c).
12. The ED will take final action on the permit application within
one year of a complete PSD, NNSR, or PAL permit application. The ED
will take final action on the permit application within 150 days of
receipt of a permit amendment application or 180 days for a permit
application that is not a PSD/NNSR/PAL application (i.e, application
for new minor or a renewal application). The TCEQ's one-year clock is
based on the completion of the technical review and the publication of
the NAPD as provided in Step 5. See 30 TAC 116.114(c)(3).
A. Public Participation for Prevention of Significant Deterioration
(PSD) Permit Applications
1. Analysis of Submitted Rules
Federal public participation requirements for PSD permit
applications are at 40 CFR 51.160, 51.161, and 51.166(q). In Texas, 30
TAC 39.402(a)(2) establishes that the requirements found in 30 TAC
Chapter 39, Subchapters H and K apply to applications for the new major
sources or major modifications for facilities subject to Chapter 116,
Subchapter B, Division 6 (PSD permits). Every application for a new
major source or major modification subject to PSD permitting
requirements will go through public notice with both the NORI and NAPD.
Note that the applicant is legally responsible for the publication of
the NORI and NAPD, using the specific notice text provided through
regulations by the TCEQ. The applicant is also legally responsible for
providing copies of the public notice documents to the EPA Regional
Office, local air pollution control agencies with jurisdiction in the
county, and air pollution control agencies of nearby states that may be
impacted by the proposed new source or modification. The submitted
Texas public participation rules establish that the applicant, rather
than the State permitting authority, as the legally responsible party
for satisfying the public notice requirements for PSD applications. The
applicant is required to follow the Texas public notice regulations,
which specify the text for the notice documents and specify the
additional agencies that will receive notice. EPA is proposing to find
that the submitted Texas public participation regulations identifying
the applicant as the legally responsible party meet the requirements to
provide opportunity for public comment and for information availability
at 40 CFR 51.161 and 51.166. The NORI and NAPD both identify locations
where materials, including the draft permit and all technical materials
supporting the decision, will be made available for public review. The
TCEQ will also respond to each comment received when making a final
permit decision. The TCEQ will provide opportunity for a public meeting
on the permit application if requested.
2. How do the Texas public notice provisions for PSD permit
applications address the deficiencies identified in the proposed LA/LD?
On November 26, 2008, EPA identified several deficiencies in the
Texas public participation rules specific to new major sources and
modifications subject to PSD permitting requirements. See 73 FR 72001,
at 72007-72008. Below we reiterate the deficiencies and discuss how the
revised Texas public participation process for PSD applications
addresses our concerns. Please also see section IV.B. of the
accompanying TSD.
The public participation rules do not require the TCEQ to
provide an opportunity for a public hearing for interested persons to
appear and submit written or oral comment on the air quality impact of
the source, alternatives to it, the control technology required, and
appropriate considerations and to provide notice of the opportunity for
a public hearing, as required by 40 CFR 51.166(q)(2)(v).
In the Texas air permit program, the term ``public meeting'' is
equivalent to EPA's term ``public hearing''. Section 55.154(a) as
submitted July 2, 2010, supports this by stating the purpose of a
public meeting is to take public comment. Section 55.154(c)(3) as
submitted July 2, 2010, specifies that a public meeting will be held
for PSD permit applications when requested by interested persons.
Additionally, the
[[Page 74135]]
NAPD notice for the PSD permit includes the statement that a public
meeting will be held upon request by interested individuals. See 30 TAC
39.411(f)(8)(D). The revised public participation SIP submittals
address EPA's concerns and resolve the identified deficiency.
The public participation rules do not require that the
public notice of a PSD permit contain the degree of increment
consumption that is expected from the source or modification as
required by 40 CFR 51.166(q)(2)(iii).
The revised public participation SIP submittals address EPA's
concerns. The NAPD notice provisions at 39.411(f)(8)(A) require the
public notice document to include the expected degree of increment
consumption. Note that the requirement to public notice the expected
degree of increment consumption was previously part of paragraph 7 of
the Texas PSD Supplement, as submitted to EPA on July 17, 1987, and
approved as part of the Texas PSD SIP. On July 2, 2010, the TCEQ
officially requested to withdraw this provision of the Texas PSD
Supplement from the Texas SIP and requested that EPA approve the
provision at 39.411(f)(8) into the Texas SIP in its place. We are
proposing that upon final EPA-approval of 30 TAC 39.411(f)(8) into the
Texas SIP, EPA will also revise the table at 40 CFR 52.2270(e) to state
that the corresponding commitment in paragraph 7 of the PSD supplement
has been removed from the Texas SIP and replaced by SIP-approved
regulation at 39.411(f)(8)(A).
The public participation rules do not require a copy of
the public notice of a PSD permit to be sent to State and local air
pollution control agencies, the chief executives of the city and county
where the source would be located and any State or Federal Land Manager
or Indian Governing Body whose lands may be affected by emissions from
the source or modification, as required by 40 CFR 51.166(q)(2)(iv).
The revised public participation SIP submittals address EPA's
concerns. Section 39.605 specifies that the applicant will provide a
copy of the public notice to the list of individuals who will receive
notice of PSD permit applications, consistent with federal
requirements. Note that the requirement to send a copy of the public
notice of a PSD permit application was previously part of paragraph 7
of the Texas PSD Supplement, as submitted to EPA on July 17, 1987, and
approved as part of the Texas PSD SIP. On July 2, 2010, the TCEQ
officially requested to withdraw this provision of the Texas PSD
Supplement from the Texas SIP and requested that EPA approve the
provision at 39.605 into the Texas SIP in its place. We are proposing
that upon final EPA-approval of 30 TAC 39.605 into the Texas SIP, EPA
will also revise the table at 40 CFR 52.2270(e) to state that the
corresponding commitment in paragraph 7 of the PSD supplement has been
removed from the Texas SIP and replaced by SIP-approved regulation at
39.605(1)(D).
The public participation rules do not require that a
response to comments be available prior to final action on the PSD
permit, as required by 40 CFR 51.166(q)(2)(vi) and (viii).
The current public participation SIP submittals address EPA's
concerns and resolve the identified deficiency. EPA's PSD rules do not
require that a permitting authority provide a response to comments
prior to final action on the PSD permit. Rather, EPA's rules at 40 CFR
51.166(q)(2)(vi) require that the permitting authority consider all
timely comments and make said comments available at the same location
as the preconstruction materials used in the permitting decision. The
Texas rules at 30 TAC 55.156(b)(1) comply with EPA regulations by
requiring that the TCEQ consider all timely, relevant and material, or
significant public comment before an application is approved. Further,
when making PSD permit decisions, 30 TAC 55.156(b)(1) specifically
requires that the TCEQ ED prepare a response to all comments received.
The Texas rules at 30 TAC 55.156(b)(1) also require that a response to
comments document be prepared prior to the final action on the permit.
Interested individuals have access to the response to comments document
for each permitting action through the TCEQ's Web site; the address of
which is provided in each NAPD notice. The RTC includes a summary of
each comment received. The actual comment letters can be obtained from
the TCEQ offices.
3. Proposed Findings Specific to the Texas Public Participation
Provisions for PSD Permit Applications
EPA's analysis of the Texas public participation requirements for
PSD permit applications demonstrates that the submitted provisions are
consistent with the Act and EPA regulations at 40 CFR 51.160, 51.161
and 51.166(q). Further, the submitted provisions address all
deficiencies previously cited in our November 26, 2008 proposed limited
approval/limited disapproval of Texas public notice requirements.
Therefore, we propose full approval of the Texas public notice
provisions for PSD permit applications submitted on July 22, 1998;
October 25, 1999; and July 2, 2010.
B. Public Participation for Nonattainment New Source Review (NNSR)
Permit Applications
1. Analysis of Submitted Rules
Federal public participation requirements for NNSR permit
applications are at 40 CFR 51.160 and 51.161. Submitted section 30 TAC
39.402(a)(2) establishes that the requirements found in 30 TAC Chapter
39, Subchapters H and K apply to applications for new major sources or
major modifications for facilities subject to Chapter 116, Subchapter
B, Division 5 (NNSR permits). Every application for a new major source
or major modification subject to NNSR permitting requirements will go
through public notice with both NORI and NAPD. Note that the applicant
is legally responsible for the publication of the NORI and NAPD, using
the specific notice text provided through regulations by the TCEQ. The
applicant is also legally responsible for providing copies of the
public notice documents to the EPA Regional Office, local air pollution
control agencies with jurisdiction in the county, and air pollution
control agencies of nearby states that may be impacted by the proposed
new source or modification. The submitted Texas public participation
rules establish the applicant, instead of the State permitting
authority, as the legally responsible party for satisfying the public
notice requirements for PSD applications. The applicant is required to
follow the Texas public notice regulations, which specify the text for
the notice documents and specify the additional agencies that will
receive notice. EPA is proposing to find that the submitted Texas
public participation regulations identifying the applicant as the
legally responsible party meet the requirements to provide opportunity
for public comment and for information availability at 40 CFR 51.161.
The NORI and NAPD both identify locations where materials, including
the draft permit and all technical materials supporting the decision,
will be made available for public review. The TCEQ will respond to each
comment received when making a final permit decision. The TCEQ will
also provide opportunity for a public meeting on the permit application
if requested.
[[Page 74136]]
2. Proposed Findings Specific to the Texas Public Participation
Provisions for NNSR Permit Applications
As explained fully in the accompanying TSD, EPA finds that the
public notice process described above for NNSR permit applications
satisfies the federal requirements for public notice found at 40 CFR
51.160, 51.161. Also, EPA did not identify any NNSR-specific
deficiencies in our November 26, 2008 proposed limited approval/limited
disapproval. Therefore, we propose full approval of the Texas public
notice provisions for NNSR permit applications submitted on July 22,
1998; October 25, 1999; and July 2, 2010.
C. Public Participation for Plant-Wide Applicability Limit (PAL) Permit
Applications
1. Analysis of Submitted Rules
Federal public participation requirements for PALs are established
at 40 CFR 51.165(f)(4)(B) and (f)(5) and 51.166(w)(4)(b) and (w)(5).
Each of these sections specify that PALs for existing major stationary
sources shall be established, renewed, or increased through a procedure
that is consistent with 40 CFR 51.160 and 51.161. Additionally,
sections 51.165(f)(5) and 51.166(w)(5) require the reviewing authority
provide the public with notice of the proposed approval of a PAL
permit; at least a 30-day period for submittal of public comment; and
the reviewing authority must address all material comments before
taking final action on the permit. Submitted Section 39.402(a)(8)
establishes that the requirements found in 30 TAC Chapter 39,
Subchapters H and K apply to applications for the establishment or
renewal of, or an increase in, plant-wide applicability limit permits
under 30 TAC Chapter 116, Subchapter C. Unlike the public notice
provisions for PSD and NNSR permit applications, the Texas public
notice process for PAL permit applications only requires publication of
the NAPD. Because the NORI is a unique element to the Texas permit
program that is not federally required, the NAPD is sufficient to
satisfy federal requirements for notice. The Texas rules at 30 TAC
55.152(a)(1) require a 30-day comment period following the publication
of the NAPD. And TCEQ's comment processing procedures at 30 TAC
55.156(b)(1) require that the TCEQ ED prepare a response to all
comments received for any application for the establishment or renewal
of, or an increase in, a PAL permit.
2. How do the Texas public notice provisions for PAL permit
applications address the deficiencies identified in the proposed LA/LD?
On November 26, 2008, EPA identified several PAL-specific
deficiencies in the Texas public participation rules. See 73 FR 72001,
at 72008. Below we reiterate the deficiencies and discuss how the
revised Texas public participation process for PAL applications
addresses our concerns. Please also see section IV.D. of the
accompanying TSD.
For PALs for existing major stationary sources, there is
no provision that PALs be established, renewed, or increased through a
procedure that is consistent with 40 CFR 51.160 and 51.161, including
the requirement that the reviewing authority provide the public with
notice of the proposed approval of a PAL permit and at least a 30-day
period for submittal of public comment, consistent with federal PAL
rules at 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11).
The July 2, 2010 public participation submittal includes section
39.402(a)(8). Section 39.402(a)(8) specifies that the Chapter 39
provisions apply to the applications for the establishment or renewal
of, or an increase in, PAL permit. Tables IV.D-1 and D-2 in our TSD
demonstrate that the July 2, 2010 submittal satisfies requirements at
40 CFR 51.160 and 161. Table IV.D-3 in our TSD demonstrates how the
July 2, 2010 submittal satisfies 40 CFR 51.165(f)(5) and (11) and
51.166(w)(5) and (11). The July 2, 2010 public participation submittal
addresses EPA's concerns and resolves the identified deficiency.
For PALs for existing major stationary sources, there is
no requirement that the State address all material comments before
taking final action on the permit, consistent with 40 CFR 51.165(f)(5)
and 51.166(w)(5).
Sections 39.411(e)(4)(A)(i), 39.411(f)(1) and 55.156(b)(1) as
submitted July 2, 2010 satisfy the requirement that the TCEQ address
all comments before approving a PAL permit application. The July 2,
2010 public participation submittal addresses EPA's concerns and
resolves the identified deficiency.
The applicability provision in section 39.403 does not
include PALs, despite the cross-reference to Chapter 39 in Section
116.194.
The July 2, 2010 public participation submittal included section
39.402(a)(8). Section 39.402(a)(8) specifies that the Chapter 39
provisions apply to the applications for the establishment or renewal
of, or an increase in, a PAL permit. The July 2, 2010 public
participation SIP submittal addresses EPA's concerns and resolves the
identified deficiency.
3. Proposed Findings Specific to the Texas Public Participation
Provisions for PAL Permit Applications
EPA's analysis of the Texas public participation requirements for
PAL permit applications demonstrates that the submitted provisions are
consistent with the Act, EPA regulations at 40 CFR 51.160, 51.161,
51.165(f)(4)(B) and (f)(5) and 51.166(w)(f)(4)(b) and (w)(5). Further,
the submitted rules address all deficiencies previously cited in our
November 26, 2008 proposed limited approval/limited disapproval of
Texas public notice requirements. Therefore, we propose full approval
of the Texas public notice provisions for PAL permit applications
submitted on July 2, 2010, and March 11, 2011.
D. Public Participation for Minor NSR Permit Applications
1. Analysis of Submitted Rules
TCEQ's revised regulations for public participation increase
opportunities for public involvement in Minor NSR permitting decisions
compared to the current SIP-approved provisions. TCEQ's current SIP-
approved rules at 30 TAC 116.130(a) require public notice with the NORI
and NAPD for every application for a new minor source. However, for
permit amendment applications, the current SIP-approved rules only
require public notice at the discretion of the TCEQ Executive Director.
This means that under the existing SIP-approved regulations, many
permit amendments are not subject to public notice requirements, and
that these rules do not specifically define the conditions upon which
the Executive Director can require public notice. TCEQ's revised rules
continue to require that all applications for new Minor NSR sources go
through full public notice with the NORI and NAPD, improve the public
notice opportunities for permit amendments, and define conditions for
use of the Executive Director's discretion.
TCEQ's revised rules enhance public participation by creating
tiered, public notice requirements for permit amendments. Unlike the
existing SIP regulations, the revised rules now require that most of
permit amendments go through full public notice with the NORI and NAPD.
This includes changes to the permits that authorize a change in the
character of emissions or a release of an air contaminant not
previously
[[Page 74137]]
authorized, and changes that increase emissions above certain
thresholds. But, the new rules retain and refine the TCEQ's director's
discretion provisions for two specific types of minor permit
amendments--for ``de minimis'' or ``insignificant'' activities. For
these amendments, TCEQ will not automatically require an opportunity
for public participation. TCEQ justified its approach for permit
amendment applications with emissions less than these thresholds using
de minimis principles like those established in Alabama Power.\3\
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\3\ See Ala. Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979).
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Despite these thresholds however, the TCEQ revised rules vest the
TCEQ Executive Director with the authority to require public notice for
an otherwise exempt permit amendment if there is (1) reasonable
likelihood of significant public interest in the activity, (2)
reasonable likelihood for emissions impact at a nearby receptor, (3)
reasonable likelihood of high nuisance potential from the operation of
the facility, or (4) the application involves a facility in the lowest
classification under Texas Water Code, Section 5.753 and 5.754 and the
Compliance History Rules at 30 TAC Chapter 60.
In sum, the applicability of the Texas public participation
requirements for Minor NSR permit applications is outlined at 30 TAC
39.402 as follows:
New minors--39.402(a)(1). A new minor source can be any
source statewide that submits a permit application under Chapter 116,
Subchapter B that is not subject to the requirements for new major
sources or major modifications for NNSR or PSD at Chapter 116,
Subchapter B, Divisions 5 and 6.\4\
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\4\ New minor permit actions do not include Permits-by-Rule
(PBRs) or Standard Permits (SPs). New minor permit actions are
authorized under the SIP-approved provisions at 30 TAC Chapter 116,
Subchapter B. PBRs and SPs are separately authorized under SIP-
approved provisions at 30 TAC Chapter 106 and Chapter 116,
Subchapter F, respectively. Public notice for PBRs and SPs is
outside the scope of the state's July 2, 2010 SIP submittal or the
action today.
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Air quality amendments \5\ under 30 TAC Chapter 116. Note
that a permit amendment is a SIP-approved revision mechanism for an
existing Chapter 116, Subchapter B permit. Minor amendments can occur
at minor sources or sources that are major for PSD or NNSR whenever:
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\5\ EPA SIP-approved the Texas permit amendment process at 30
TAC 116.116(b)(1) and (b)(2) on November 14, 2003 as adopted by the
TCEQ on August 9, 2000 (see 68 FR 64543). These provisions provide
that the permit holder shall not vary from any representation or
permit condition without obtaining a permit amendment if the change
will cause (A) a change in the method of control of emissions; (B) a
change in the character of the emissions; or (C) an increase in the
emission rate of any air contaminant. Further, any applicant who
requests permit amendments must receive prior approval by the TCEQ
ED or the commission. Applications for amendments are subject to the
requirements of 30 TAC 116.111. The current SIP requirements of 30
TAC 116.111 were SIP-approved by EPA on August 28, 2007 as adopted
by the TCEQ on August 21, 2002 (see 72 FR 49198).
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(a) A change occurs in the character of emissions or release of an
air contaminant not previously authorized under the permit (i.e.,
change in control method or an increase in emission rate)--
39.402(a)(3)(A);
(b) The total emissions increase from all facilities to be
authorized under the amended permit at a facility not affected by THSC,
section 382.020,\6\ exceeds the State's established ``de minimis''
levels--39.402(a)(3)(B);
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\6\ THSC, Sec. 382.020 establishes emission control
requirements for selected agricultural facilities such as cotton
gins, corn mills, grain elevators, peanut processing and rice drying
facilities. THSC Sec. 382.020 applies statewide.
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(c) The total emissions increase from all facilities to be
authorized under the amended permit at a facility affected by THSC,
section 382.020, exceeds the State's established ``insignificant''
levels--39.402(a)(3)(C); or
(d) Other minor amendments where the Executive Director determines
reasonable likelihood for interest or impact--39.402(a)(3)(D)(i)-(iv).
Applications for concrete batch plants without enhanced
controls authorized by a standard permit under 30 TAC Chapter 116,
Subchapter F \7\--39.402(a)(11).
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\7\ EPA SIP-approved the Texas Standard Permit process and
public participation process on November 14, 2003, as adopted by
TCEQ on December 16, 1999 (see 68 FR 64543). EPA also SIP-approved
revisions to the public participation process for the development of
standard permits on September 17, 2008, as adopted by TCEQ September
20, 2006 (see 73 FR 53716).
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The notice requirements for each type of Minor NSR permit
application listed above are generally the same--meaning that a permit
amendment will have the same public notice requirements as an
application for a new minor source. The submitted Texas rules generally
provide that the identified Minor NSR permit applications (all new
minor sources, qualifying minor permit amendments, and concrete batch
plants without enhanced controls authorized by a standard permit \8\)
will go through public notice consistent with federal requirements at
40 CFR 51.160 and 51.161. These types of Minor NSR permit applications
are required to have both NORI and NAPD; therefore, the public will
receive notice of the application and have the opportunity to comment
on the draft permit and accompanying technical information. Note that
the applicant is legally responsible for the publication of the NORI
and NAPD, using the specific notice text provided through regulations
by the TCEQ. The applicant is also legally responsible for providing
copies of the public notice documents to the EPA Regional Office, local
air pollution control agencies with jurisdiction in the county, and air
pollution control agencies of nearby states that may be impacted by the
proposed new source or modification. EPA is proposing to find that the
submitted Texas public participation regulations identifying the
applicant as the legally responsible party meet the requirements to
provide opportunity for public comment and for information availability
at 40 CFR 51.161. The NORI and NAPD both identify locations where
materials, including the draft permit and all technical materials
supporting the decision, will be made available for public review. The
TCEQ will respond to each comment received when making a final permit
decision. The TCEQ will also provide opportunity for a public meeting
on the permit application if requested.
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\8\ There are two standard permits applicable to concrete batch
plants in the Texas Standard Permit program at 30 TAC Chapter 116,
Subchapter F. As discussed previously, EPA approved revisions to the
public participation process for the development of standard permits
on September 17, 2008, as adopted by TCEQ September 20, 2006 (see 73
FR 53716). Under the Texas SP Program, SPs for concrete batch plants
with enhanced controls (i.e., more extensive controls than adequate
suction shrouds and filters as specified in the SP) go through no
further public notice. However, concrete batch plants without
enhanced controls as identified in the SP program are subject to
NORI and NAPD publication under 30 TAC Chapter 39.
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2. Minor NSR Public Notice Requirements Specific to Two Types of Minor
NSR Permit Amendment Applications
As explained above, the submitted Texas public participation
provisions create a tiered program, wherein two certain types of Minor
NSR amendment applications that have been defined by TCEQ as ``de
minimis'' or ``insignificant'' will not automatically require public
notice. The following outlines the specific thresholds that qualify as
``de minimis'' or ``insignificant'' under the revised rules, and the
basis for TCEQ's determination.
i. Identification of the Minor NSR Emission Thresholds and Affected
Source Populations
Thresholds are only used for permit amendment
applications. Applications for new Minor NSR sources are now required
by these submitted rules to go
[[Page 74138]]
through the public procedures of the NORI and NAPD. The minor permit
amendment applications are further divided based on the amount of
emission increases at issue and whether the facility is affected by
THSC section 382.020.
THSC section 382.020 applies to an agricultural facility
such as corn mill, cotton gin, feed mill, grain elevator, peanut
processing facility or rice drying facility.
[cir] Section 39.402(a)(3)(B) provides that if the permit amendment
application is not for an affected agricultural facility then the
public notice provided through the NORI and NAPD apply, unless the
total emissions increase from all facilities authorized in the
amendment does not exceed any of the following levels established by
the State as ``de minimis'' levels:
[ssquf] 50 TPY CO
[ssquf] 10 TPY SO2
[ssquf] 0.6 TPY lead
[ssquf] 5 TPY of NOX, VOC, PM, or any other contaminant
except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and
oxygen.
[cir] Section 39.402(a)(3)(C) provides that if the permit amendment
is for an affected agricultural facility, then the public notice
requirements of the NORI and NAPD apply, unless the total emissions
increase from all authorized facilities in the amendment does not
exceed any of the following thresholds established by the State as
``insignificant'' thresholds:
[ssquf] 250 TPY CO or NOX
[ssquf] 25 TPY of VOC, SO2, PM or any other air
contaminant except CO2, H2O, N2,
CH4, C2H6, H2 and
O2.
[ssquf] A new major stationary source or major modification
threshold as defined in section 116.12 of this title
[ssquf] A new major stationary source or major modification
threshold, as defined in 40 CFR 52.21 under the PSD requirements
If the permit amendment application includes proposed
emissions increases of any air contaminant above the identified
threshold then the amendment application is required to go through
notice pursuant to Chapter 39 requirements. That means the permit
amendment application will go through the NORI and NAPD publication
process.
ii. How were the ``De minimis'' and ``Insignificant'' thresholds for
minor NSR permit amendments established?
(A). Texas ``De Minimis'' Thresholds for Minor Permit Amendments
The thresholds established by the State as ``de minimis''
thresholds apply to all minor permit amendment applications, except
those for affected agricultural facilities. The Texas ``de minimis''
thresholds submitted on July 2, 2010, were originally adopted by the
TCEQ in 2001 after a rulemaking process consistent with the Texas
Administrative Procedure Act, Texas Government Code, Chapter 2001. TCEQ
solicited, received and responded to comments during the 2001
rulemaking process. The TCEQ provided further opportunity to comment on
the scope of its minor NSR program, and on the selected ``de minimis''
thresholds during the proposal of the July 2010 rulemaking, but there
were no additional comments on the ``de minimis'' threshold values.
During the State's rulemaking process for the current Texas public
participation rules that have been submitted to the EPA, the TCEQ
reviewed its rationale for the scope of the minor NSR program and its
rationale for the selection of the ``de minimis'' thresholds. TCEQ
found that the rationale developed in 2001 was still relevant and
factual; therefore the rationale was resubmitted as part of the July 2,
2010 Public Participation SIP submittal. The TCEQ presents the
rationale for the selection of the ``de minimis'' thresholds in the
June 18, 2010 Texas Register, pages 5226-5228. The ``de minimis''
thresholds are generally based on EPA's significant emission rates and
significant impact levels (which are themselves a percentage of the
applicable NAAQS) that together are used to determine whether a
proposed source or modification will have a significant impact. The
TCEQ also accounted for all averaging periods for each NAAQS in the
development of the ``de minimis'' thresholds.
For example, in developing the ``de minimis'' threshold for
SO2, the TCEQ noted that EPA's federal significance level of
40 TPY was based on a design value concentration of 4% of the 24-hour
NAAQS. See 45 FR 52675, at 52705-52710 (August 7, 1980), for further
information on how EPA established the significance levels for criteria
pollutants. The TCEQ determined that a ``de minimis'' emission rate of
10 TPY is more appropriate because it is based on a design value
concentration of 1% of the lowest significant impact level (SIL) to
NAAQS ratio that would trigger a detailed air quality analysis for any
of the three SO2 NAAQS averaging periods.
Within the scope of the Texas Minor NSR program, the ``de minimis''
thresholds distinguish those minor permit amendment applications that
require full review from those that may not. But, the thresholds do not
affect any part of the technical review of these minor permit amendment
applications or the requirement to comply with other requirements such
as application of required control technology, reporting when required
to the emissions inventory, and analysis of monitoring data.
Additionally, being below the ``de minimis'' threshold does not
override any notice or technical requirements for PSD, NNSR or new
Minor NSR permit applications. We propose to find that TCEQ provided an
adequate demonstration to show that their selected ``de minimis''
thresholds for permit amendments are based on insignificant emission
rates and insignificant emissions impact.
(B). Texas ``Insignificant'' Thresholds for Minor Permit Amendments for
Selected Agricultural Facilities
The thresholds selected by the State and called ``insignificant''
thresholds apply only to minor permit amendment applications for
affected agricultural facilities. TCEQ originally adopted the
``insignificant'' thresholds submitted on July 2, 2010, for minor
permit amendment applications at affected agricultural facilities in
2001 after a rulemaking process consistent with the Texas
Administrative Procedure Act, Texas Government Code, Chapter 2001. TCEQ
solicited, received, and responded to comments during the 2001
rulemaking process. The TCEQ provided further opportunity to comment on
the selected ``insignificant'' thresholds during the proposal of the
July 2010 rulemaking but received no additional comments on the
``insignificant'' threshold values.
During the rulemaking process for the current Texas public
participation rules, the TCEQ reviewed the rationale for the selection
of the ``insignificant'' thresholds. TCEQ found that the rationale
developed in 2001 was still relevant and factual; therefore the
rationale was resubmitted as part of the July 2, 2010 Public
Participation SIP submittal. The TCEQ presents the rationale for the
selection of the ``insignificant'' thresholds in the June 18, 2010
Texas Register, pages 5228-5230. TCEQ states that its discretionary
public participation program for selected agricultural facilities with
emissions increases below the State's defined ``insignificant''
thresholds is ``intended to focus the attention of the public and the
commission on emission increases that could have a greater potential
for public interest and
[[Page 74139]]
questions regarding impacts to public health and welfare.''
TCEQ further provided a review of the sources subject to THSC
382.020 from September 2001 through March 2010. This review indicates
that the TCEQ processed 356 permit amendment applications for subject
agricultural facilities. These agricultural facilities are located in
approximately 88 counties, many of which are rural areas in west Texas,
and many of these applications were associated with cotton gins. These
amendment applications accounted for about 10% of the amendment
applications for all types of facilities (not just these selected
agricultural facilities) processed during that time period. The primary
pollutant of concern in these applications is particulate matter (PM).
No area in Texas is designated as nonattainment for PM2.5
(or PM less than 2.5 microns in diameter). El Paso, Texas is designated
as nonattainment for PM10 (or PM less than 10 microns in
diameter); but the designation is based on historical transport of
particulate emissions from the Ciudad Juarez, Mexico area. See 59 FR
02532, January 18, 1994. TCEQ reviewed dispersion modeling results from
1990 and 1994 and found that El Paso would be in attainment for the PM
standards, but for the emissions transport from Ciudad Juarez. Because
the TCEQ has issued no nonattainment or PSD permits for agricultural
facilities in the El Paso area and none of the permit amendment
applications during the applicable time period were for facilities in
El Paso County, the TCEQ has determined that PM emissions generated by
the handling, loading, unloading, drying, manufacturing or processing
of grain, seed, legumes or vegetable fibers are not of concern in El
Paso. Further, the TCEQ has only issued one PSD permit statewide for an
agricultural facility under THSC 382.020, and that is for a brewery.
Therefore, TCEQ concluded that the ``insignificant'' thresholds for
agricultural facilities would not negatively impact the El Paso area or
any other area in Texas.
Like, the selected ``de minimis'' thresholds, the state's chosen
``insignificant'' thresholds are used to distinguish those agricultural
facilities for which permit amendments require full review from those
that may not. However, within the scope of Texas's revised rules, the
thresholds do not affect any part of the technical review of these
permit amendment applications; or the requirement to continue to comply
with other requirements such as application of appropriate control
technology, reporting when required to the emissions inventory, and
analysis of monitoring data. Further, the discretionary public notice
for minor permit amendments at selected agricultural facilities does
not override any notice or technical requirements for PSD, NNSR or new
Minor NSR permit applications. We believe that TCEQ provided an
adequate demonstration to show that their selected ``insignificant''
thresholds for permit amendments for selected agricultural facilities
are limited in scope, apply to a limited subcategory of sources, and
represent a small subset of the permit amendment universe. We propose
to find this demonstration meets 40 CFR 51.160 and 51.161.
3. How do the Texas public notice provisions for minor NSR permit
applications address the deficiencies identified in the proposed LA/LD?
The Federal requirements for Minor NSR permit applications and
public notice requirements are at 40 CFR 51.160 and 161. These
requirements establish the minimum requirements for approvability of a
state's Minor NSR SIP, which a state develops to prevent construction
and modification of stationary sources from interfering with an area's
ability to achieve compliance with a NAAQS. These requirements
generally require 30 days public review for all sources subject to the
Minor NSR; however, these requirements also allow a State to identify
the types and sizes of facilities, buildings, structures, or
installations, which will require full preconstruction review by
justifying the basis for the State's determination of the proper scope
of its program.\9\ Importantly, our decision to approve a State's scope
of its Minor NSR program must consider the individual air quality
concerns of each jurisdiction, and therefore will vary from state to
state.
---------------------------------------------------------------------------
\9\ For example, under the federal Tribal NSR regulations, EPA
did not require permits for sources with emissions below ``de
minimis'' levels, and for sources in ``insignificant source
categories''. 76 FR 38748, at 38755. In sum, under these Tribal NSR
regulations, some sources are not required to obtain permits, and
have no public notice requirements.
---------------------------------------------------------------------------
On November 26, 2008, EPA identified several Minor NSR-specific
deficiencies in the Texas public participation rules. See 73 FR 72001,
at 72007. Below we reiterate the deficiencies and discuss how the
revised Texas public participation process for Minor NSR applications
submitted for EPA approval on July 2, 2010, address our concerns. In
sum, as discussed more fully in the following section, we propose to
find that that the July 2, 2010 submitted Tiered public participation
requirements improve upon the existing SIP-approved requirements for
public notice, that the rules resolve the concerns we expressed in
November 2008, and that the regulations satisfy the requirements of
51.160 and 51.161.
Please note that the July 2, 2010 public participation SIP
submittal reorganized and restructured some of the previous rule
language. As such, the italicized passages below contain references to
specific rule citations and provisions that do not have a direct
corollary to the July 2, 2010 rules before us now. See the discussion
in section I.B of this proposed action for a history of the Texas
Public Participation rule submittals. The bulleted list and subsequent
analysis demonstrates that the deficiencies EPA previously identified
on November 26, 2008, have been addressed through the current public
participation submittal of July 2, 2010. Please also see section IV.E.
of the accompanying TSD.
Under section 39.419(e) for new or modified Minor NSR
sources or minor modifications at major sources, the rules do not
require public notice and the opportunity for comment on the State's
analysis of the effect of construction or modification on ambient air
quality, including the agency's proposed approval or disapproval, as
required by 40 CFR 51.161(a) and (b), unless a contested case hearing
is requested and not withdrawn after notice of application and intent
to obtain a permit (NORI) is published.
The July 2, 2010 public participation SIP submittal has expanded
the requirement to publish the NAPD to all new minor sources or minor
modifications under Chapter 116, Subchapter B. See 30 TAC 39.419(e). As
demonstrated in the accompanying TSD, the NAPD notice is consistent
with 40 CFR 51.161(a) and (b) to provide notice and opportunity to
comment on the state's analysis and the preliminary determination. The
public participation provisions submitted July 2, 2010 address the
identified deficiency.
Under section 39.402(a)(3)(C) [Note that during the
proposed LA/LD the section we cited was section 39.403(b)(8), this
section number was changed to 39.402(a)(3)(C) when the rule was
submitted July 2, 2010], for a Minor NSR permit amendment or minor
modification under section 116.116(b), (where there is a change in the
method of control of emissions; a change in the character of the
emissions; or an increase in the emission rate of any air contaminant)
the existing SIP requires the permit holder to apply for and receive
approval of a permit amendment. However, the revised rules
[[Page 74140]]
[submitted October 25, 1999] do not require any public participation as
required by 40 CFR 51.161(a) and (b) unless the change involves
construction of a new facility or modification of an existing facility
that results in an increase in allowable emissions equal to or greater
than 250 tpy of CO or NOX; or 25 tpy of VOC or
SO2 or PM10; or 25 tpy of any other air
contaminant except carbon dioxide, water, nitrogen, methane, ethane,
hydrogen, and oxygen or other changes within the discretion of the
Executive Director.
The concern as stated at the time of our proposed LA/LD was that a
permit amendment below the identified thresholds would not receive
public notice. Nonetheless, as explained above, EPA recognizes a
State's ability to tailor the scope of its minor NSR program as
necessary to achieve and maintain the NAAQS. As outlined above, the
State justified the scope of its regulatory program, and thus the
permit applications for which full public review is necessary using de
minimis principles like those established in Alabama Power to identify
amendments that are not environmentally significant. Specifically, it
identified ``de minimis'' and ``insignificant'' thresholds for which
review with public participation may or may not be necessary depending
on whether the amendment triggers public review under the specified
Executive Director's criteria.
Under section 39.419(e)(1)(C), for any amendment,
modification or renewal of a major or minor source which requires a
permit application, the rules do not require public notice and the
opportunity for comment on the State's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval, as required by 40 CFR
51.161(a) and (b), if the amendment, modification, or renewal would not
result in an increase in allowable emissions and would not result in
the emission of an air contaminant not previously emitted unless the
application involves a facility for which the applicant's compliance
history contains violations that are unresolved and that constitute a
recurring pattern of egregious conduct which demonstrates a consistent
disregard for the regulatory process, including the failure to make a
timely and substantial attempt to correct the violations.
At the time of the November 26, 2008 proposed limited approval/
limited disapproval, section 39.419 included subsection (e)(1)(C) which
exempted minor NSR permit applications from publication of the second
notice, or NAPD. In response to our proposed limited approval/limited
disapproval, the TCEQ expanded the publication of the NAPD to cover
Minor NSR permit applications and specified Minor NSR permit amendment
applications. The July 2, 2010 public notice SIP submittal requires
NORI and NAPD public notice for all new minor sources and all permit
amendments above identified ``de minimis'' and ``insignificant''
emission thresholds. For permit amendment applications with emissions
less than these thresholds, the TCEQ justified its approach using de
minimis principles like those established in Alabama Power. See the
June 18, 2010 Texas Register, pages 5224-5230. Additionally, requiring
NORI and NAPD notice for amendments above a specified emissions
threshold is more stringent than the existing SIP; which only requires
public notice of minor amendments at the discretion of the Executive
Director. The July 2, 2010 SIP submittal addresses the identified
concerns.
Section 39.403(b)(8), Applicability, of the revised rule
refers to two State statutory provisions, THSC section 382.0518
(preconstruction permit) and section 382.055 (review and renewal of
preconstruction permit). For clarity, and for approvability into the
SIP, section 39.403(b) should be revised to refer to the corresponding
sections of the Texas SIP.
Subsequent to our withdrawal of the proposed rule, EPA has
determined that this provision does not contravene federal
requirements. Generally, we do not approve cross-references that are
not otherwise SIP-approved. But, in these instances, the statutory
provisions serve to provide more clarity to the subset of sources
identified in the rule language. Note that since the time of the
proposed limited approval/limited disapproval, TCEQ has withdrawn from
our consideration the prior version of Chapter 39 that was submitted
for SIP approval, and resubmitted a new version of Chapter 39. The
sections discussing Applicability of the public participation program
that include cross-references to statutes are now located at Section
39.402(a)(3)(B) and (C). In this instance, the statute mentioned is
THSC section 382.020 concerning agricultural facilities. Inclusion of
the statutory citation to THSC section 382.020 provides additional
clarity to the submitted provision.
4. Proposed Findings Specific to the Texas Public Participation
Provisions for Minor NSR Permitting
We propose to find that the July 2, 2010 submitted public notice
provisions, including the tiered public participation approach for
permit amendments, improve upon the existing SIP-approved requirements
for public notice by expanding opportunities for public involvement in
minor NSR permitting decision. We further propose to find that TCEQ's
demonstrations in the July 2, 2010 public notice SIP submittal
adequately justify the scope of activities that require full review
with public participation, because it potentially excludes only those
permit amendments that meet the state's selected ``de minimis'' and
``insignificant'' thresholds that the State has shown are
environmentally insignificant. Accordingly, EPA proposes to find that
TCEQ's tiered public participation program satisfies the provisions of
51.160(e) and 51.161. Moreover, we also propose to find that the TCEQ
revised rules for discretionary public notice are approvable, because
the provisions adequately confine Executive Director discretion by
authorizing the use of discretion under specified criteria that are
consistent with the goals and purposes of the Act to provide an
adequate opportunity for informed public participation. EPA is
proposing to find that the submitted Texas public participation
regulations identifying the applicant as the legally responsible party
also meet the requirements to provide opportunity for public comment
and for information availability at 40 CFR 51.161, because the NORI and
NAPD both identify locations where materials, including the draft
permit and all technical materials supporting the decision will be made
available for public review and the required information is submitted
to EPA.
Finally, as explained above, we propose to find that the submitted
provisions address all deficiencies we previously cited in our November
26, 2008 proposed limited approval/limited disapproval of Texas public
notice requirements. Accordingly, we propose full approval of the Texas
public notice provisions for Minor NSR permit applications submitted on
July 22, 1998; October 25, 1999; and July 2, 2010.
E. Public Participation for Permit Renewal Applications
1. Analysis of Submitted Rules
EPA SIP-approved the Texas provisions for renewal of Title I
permits at 30 TAC Chapter 116, Subchapter D,
[[Page 74141]]
Sections 116.310-116.315, on March 10, 2006 (71 FR 12285), with
revisions approved on March 20, 2009 (74 FR 11851), March 11, 2010 (75
FR 11464) and November 14, 2011 (76 FR 70354). Therefore, permit
renewals issued under 30 TAC Chapter 116, Subchapter D are SIP-approved
Title I permits and we have evaluated the public participation
requirements for said permits. Section 39.402(a)(6) establishes that
the requirements found in 30 TAC Chapter 39, Subchapters H and K apply
to applications for renewal of Chapter 116 permits. Section 116.312,
Public Notification and Comment Procedures specific to permit renewals,
provides a cross-reference to the public participation rules under
Chapter 39. Generally, permit renewal applications are required to
publish NORI and provide a 15-day comment period. In some instances,
permit renewal applications will be required to publish NAPD and
provide a 30-day comment period. The TCEQ is required to respond to any
comments received and provide a response to comments with the final
permit decision. Under the Texas SIP-approved permit renewal process, a
Title I permit is required to be renewed every ten years. A permit
renewal application is approved based upon a demonstration in the
renewal application that the permitted facility will operate in
accordance with all requirements and conditions of the existing permit,
including representations in the application to construct, any
subsequent amendments, any previously granted renewal, and the
compliance history of the facility. Parts C and D of the Act and EPA's
federal NSR requirements regulate preconstruction of sources and
neither prohibit, nor require Title I permits (PSD/NNSR/Minor NSR) to
be periodically renewed. As such, the State's renewals provisions go
beyond the minimum requirements of the Act. While neither the Act nor
EPA's regulations address the public notice of permit renewals, we
propose to find that approval of public notice for permit renewals will
enhance the SIP-approved renewals program.
2. Proposed Findings Specific to the Texas Public Participation
Provisions for Permit Renewal Applications
As explained fully in the accompanying TSD, EPA proposes to find
that the public notice process described above for permit renewal
applications satisfies the federal requirements for public notice found
at 40 CFR 51.160 and 51.161 and is consistent with the requirements at
section 110(a)(2)(C) of the Act to provide continued implementation and
enforcement of the NSR SIP permitting program. EPA did not identify any
renewal-specific deficiencies in our November 26, 2008 proposed limited
approval/limited disapproval. Therefore, we propose full approval of
the Texas public notice provisions for permit renewal applications
submitted on July 22, 1998; October 25, 1999; and July 2, 2010.
F. Does proposed approval of the Texas public participation provisions
for air quality permit applications interfere with attainment,
reasonable further progress, or any other applicable requirement of the
Act?
Section 110(l) of the CAA states:
Each revision to an implementation plan submitted by a State under
this Act shall be adopted by such State after reasonable notice and
public hearing. The Administrator shall not approve a revision of a
plan if the revision would interfere with any applicable requirement
concerning attainment and reasonable further progress (as defined in
section 171), or any other applicable requirement of this Act.
Thus, under section 110(l), the regulations submitted as a SIP
revision for public participation for air quality permit applications
must meet the procedural requirements of section 110(l) by
demonstrating that the State followed all necessary procedural
requirements such as providing reasonable notice and public hearing of
the SIP revision. Additionally, the SIP revision must demonstrate that
the adopted rules will not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the CAA. We propose to find that the TCEQ
satisfied all procedural requirements pursuant to section 110(l) as
detailed in our accompanying TSD.
Public participation in air quality permitting is a requirement of
the CAA. EPA regulations at 40 CFR Part 51, sections 51.160 and 51.161
provide the general requirements that all air quality permits must
address; sections 51.165(f)(5) and 51.166(w)(5) provide the
requirements specific to PAL permitting; and section 51.166(q) provides
further public notice provisions specific to PSD permitting. As
discussed in this proposed action and in the accompanying TSD, EPA
proposes that the public notice processes as submitted by the TCEQ
satisfy the minimum requirements of 40 CFR 51.160, 51.161, and where
applicable, 51.165 and 51.166. Additionally, we propose that TCEQ
provided an adequate demonstration to show that the Minor NSR public
notice tiers and exemptions will assure the NAAQS are achieved and that
the tiers and exemptions meet the de minimis principles set forth in
Alabama Power. Our review and analysis demonstrates that the submitted
regulations are at least as stringent as the minimum federal
requirements and existing SIP requirements; and in some instances the
Texas program provides notice beyond the minimum federal requirements.
The act of providing notice on air quality permit applications
consistent with the provisions submitted by the TCEQ on July 22, 1998;
October 25, 1999; July 2, 2010; and March 11, 2011 will provide more
visibility and detail of the air permitting process. The Texas Public
Participation SIP submittals satisfy section 110(l) of the CAA.
IV. Proposed Action
Under section 110 and parts C and D of the Act, and for the reasons
stated above, EPA proposes to approve the following revisions to the
Texas SIP:
30 TAC Section 116.312 and the repeal of 30 TAC Section
116.124 as submitted on July 22, 1998.
30 TAC Sections 39.411(a); 39.418(b)(4); 55.152(b);
116.111(b); 116.114(a)(2), (a)(2)(A), (a)(2)(B), (b)(1), and (c)(1)-
(3); 116.116(b)(4); and 116.312 as submitted on October 25, 1999.
30 TAC Sections 39.402(a)(1)-(3), (a)(6); 39.405(f)(3) and
(g), (h)(1)(A), (h)(2)-(h)(4), (h)(6), (h)(8)-(h)(11), (i) and (j);
39.407; 39.409; 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and
(B), (6)-(10), (11)(A)(i), (iii) and (iv), (11)(B)-(F), (13) and (15),
and (f)(1)-(8), (g) and (h); 39.418(a), (b)(2)(A), (b)(3) and (c);
39.419(e); 39.420(c)(1)(A)-(D)(i)(I) and (II), (D)(ii), (c)(2), (d)-
(e); 39.601; 39.602; 39.603; 39.604; 39.605; 55.150; 55.152(a)(1), (2),
(5) and (6); 55.154(a), (b), (c)(1)-(3) and (5), (d)-(g); 55.156(a),
(b), (c)(1), (e) and (g); 116.114(a)(2)(B), (a)(2)(C), (c)(2) and
(c)(3); and 116.194(a) and (b) as submitted on July 2, 2010.
30 TAC Section 116.194 as adopted January 11, 2006 and
resubmitted on March 11, 2011.
Note that EPA is proposing to approve provisions at 30 TAC
39.411(f)(8)(A) and 39.605(1)(D) that will replace two provisions of
the Texas SIP, found in the Texas PSD SIP Supplement. Upon finalization
of this action, EPA will revise the table at 40 CFR 52.2270(e) to
reflect these approvals.
Consistent with the analysis presented in today's proposed notice
and the accompanying TSD, EPA is severing and taking no action on the
following provisions submitted on July
[[Page 74142]]
2, 2010: 30 TAC Sections 39.402(a)(4), 39.402(a)(5), 39.402(a)(10),
39.402(a)(12), 39.405(h)(1)(B), 39.419(e)(3), 39.420(h). EPA is also
severing and taking no action on the following provisions submitted on
October 25, 1999: 30 TAC Sections 116.111(a)(2)(K), and 116.116(b)(3).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
notice merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 30, 2012.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2012-30098 Filed 12-12-12; 8:45 am]
BILLING CODE 6560-50-P