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/ 2008
/ November
/ Wednesday, November 26, 2008
[Federal Register: November 26, 2008 (Volume 73, Number 229)]
[Proposed Rules]
[Page 72001-72016]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no08-42]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2007-0209; FRL-8745-5]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to Chapters 39, 55, and 116 Which Relate to Public
Participation on Permits for New and Modified Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing simultaneous limited approval and limited
disapproval of revisions to the applicable implementation plan for the
State of Texas which relate to public participation on air permits for
new and modified sources. With noted exceptions, this proposed limited
approval and limited disapproval affects portions of SIP revisions
submitted by Texas on December 15, 1995; July 22, 1998; and the SIP
revisions submitted October 25, 1999. EPA is taking comments on this
proposal and plans to follow with a final action.
DATES: Any comments must arrive by January 26, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2007-0209, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
[[Page 72002]]
U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Stanley M. Spruiell at
spruiell.stanley@epa.gov.
Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R),
at fax number 214-665-7263.
Mail: Stanley M. Spruiell, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
Hand or Courier Delivery: Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only
between the hours of 8 a.m. and 4 p.m. weekdays except for legal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0209. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
The State submittals are also available for public inspection at
the State Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, the following
terms have the meanings described below:
``We,'' ``us,'' and ``our'' refer to EPA.
``NSR'' means new source review.
``PSD'' means prevention of significant deterioration of
air quality, as established under 40 CFR 51.166.
``NNSR'' means nonattainment area new source review.
``Act'' and ``CAA'' mean the Clean Air Act.
``SIP'' means State Implementation Plan.
``TSD'' means Technical Support Document for this action.
``PAL'' means Plantwide Applicability Limitation, as
established under 40 CFR 51.165(f) or 51.166(w).
``NAAQS'' means National Ambient Air Quality Standards, as
established under 40 CFR part 50.
Table of Contents
I. What regulations did Texas submit for inclusion into the SIP?
II. What are we proposing?
III. How do the revised rules strengthen the existing SIP?
IV. What are the rule deficiencies?
V. Do Texas' public participation rules meet federal requirements?
VI. Other Public Participation Concerns
VII. Why are we taking no action on some provisions of the
submittal?
VIII. Public Comment and Proposed Action
IX. Statutory and Executive Order Reviews
I. What regulations did Texas submit for inclusion into the SIP?
On October 25, 1999, Texas submitted revisions to Chapters 39, 55,
and 116 which include rules that relate to public participation on air
permits for authorization of new and modified sources, including
amendments and renewals. In addition, portions of the submittals dated
December 15, 1995, and July 22, 1998, contain provisions relevant to
this action. Hereafter, we refer to these submittals as the ``revised
rules.'' These SIP packages include the following rules:
A. The December 15, 1995, submittal includes Texas' submittal of
section 116.312--Public Notification and Comment Procedures. Section
II.A of this preamble contains additional information on the December
15, 1995, submittal.
B. The July 22, 1998, submittal includes Texas' submittal of repeal
and readoption (with nonsubstantive revisions) of section 116.312--
Public Notification and Comment Procedures. Section II.A of this
preamble contains additional information on the July 22, 1998,
submittal.
C. The October 25, 1999, submittal includes the following revisions
related to this action. Section II.A of this preamble contains
additional information on the October 25, 1999, submittal.
New rules affecting Chapter 39--Public Notice \1\--are as
follows: Section 39.201--Application for a Preconstruction Permit;
section 39.401---Purpose; section 39.403--Applicability; section
39.405--General Notice Provisions; section 39.409--Deadline for Public
Comment, Requests for Reconsideration, contested Case Hearing, or
Notice and Comment Hearing; section 39.411--Text of Public Notice;
section 39.413--Mailed Notice; section 39.418--Notice of Receipt of
Application and Intent to Obtain Permit;
[[Page 72003]]
section 39.419--Notice of Application and Preliminary Determination;
section 39.420--Transmittal of the Executive Director's Response to
Comments and Decision; section 39.423--Notice of Contested Case
Hearing; section 39.601--Applicability; section 39.602--Mailed Notice;
section 39.603--Newspaper Notice; section 39.604--Sign-Posting; and
section 39.605--Notice to Affected Agencies.
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\1\ Texas submitted subsequent revisions to Chapter 39 on July
31, 2002; and March 9, 2006. These changes are parts of separate SIP
revisions which are currently under review. EPA will address these
changes to Chapter 39 in separate actions.
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New rules affecting Chapter 55--Requests for
Reconsideration and Contested Case Hearing--are as follows: Section
55.1--Applicability; section 55.21--Requests for Contested Case
Hearing, Public Comment; section 55.101--Applicability; section
55.103--Definitions; section 55.150--Applicability; section 55.152--
Public Comment Period; section 55.154--Public Meetings; section
55.156--Public Comment Processing; section 55.200--Applicability;
section 55.201--Requests for Reconsideration and Contested Case
Hearing; section 55.203--Determination of Affected Person; section
55.205--Request by Group or Association; section 55.209--Processing
Requests for Reconsideration or Contested Case Hearing; and section
55.211--Commission Action or Requests for Reconsideration and Contested
Case Hearing.
Rules revisions affecting Chapter 116--Control of Air
Pollution by Permits for New Construction and Modification are--as
follows: Section 116.111--General Application; section 116.114--
Application Review Schedule; section 116.116--Changes to Facilities;
section 116.183--Public Notice Requirements; section 116.312--Public
Notification and Comment Procedures; and section 116.740--Public
Notice.
Texas submitted repeal of the following regulation:
section 116.124--Public Notice of Compliance History.
The existing SIP-approved regulations which relate to public
participation for air quality permits are as follows: Sections
116.130--Applicability; 116.131--Public Notification Requirements;
116.132--Public Notice Format; 116.133--Sign Posting Requirements;
116.134--Notification of Affected Agencies; 116.136--Public Comment
Procedures; and 116.137--Notification of Final Agency Action. These
regulations will now apply to air quality permits declared
administratively complete before September 1, 1999. EPA proposes to add
a notation, in addition to the applicability statement at section
39.403 of the revised rule, to this effect to the existing SIP. In
addition, section 116.312--Public Notification and Comment Procedures,
which applies to permit renewals, was amended to replace cross
references to the public notification procedures in sections 116.130
through 116.137 with a cross reference to applicable procedure in
Chapter 39.
The revised rules will replace the existing SIP rules for public
participation for air quality permits declared administratively
complete on or after September 1, 1999. The Texas public participation
procedures were previously located in the subchapter of the SIP
applicable to each type of permitting action. Chapter 39 of the Texas
Administrative Code (TAC) consolidates public participation
requirements for most air quality permitting actions (as well as
permits issued under other environmental statutes). Applicability of
the rules in Chapter 39 to different types of air permits is determined
by the general applicability statement in subchapter H. Additional
requirements that are specific to air quality permits are found in
subchapter K. Section 39.403(b) lists the types of air quality permits
subject to the public participation requirements in Chapter 39:
Air quality permits under Texas Health and Safety Code
(THSC), Section 382.0518 (preconstruction permit) and Section 382.055
(review and renewal of preconstruction permit).\2\ See section
39.403(8).
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\2\ Section 382.0518 and section 382.055 of the THSC currently
apply to permit applications, modifications and renewals under
Chapter 116 of the Texas SIP for minor and major new source review
permits.
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Applications for permit amendments to air quality permits
under Section 116.116(b) (changes to facilities) that involve
construction of a new facility; modification of an existing facility
(as defined in Section 116.10) \3\ that results in an increase in
allowable emissions equal to or greater than 250 tons per year (tpy) of
carbon monoxide (CO) or nitrogen oxides (NOX); or 25 tpy of
volatile organic compounds (VOC) or sulfur dioxide (SO2) or
inhalable particulate matter (PM10); or 25 tpy of any other
air contaminant except carbon dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen; or other changes within the discretion of
the Executive Director.\4\ See section 39.403(8).
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\3\ Note that EPA has not acted on the definition of
``modification of an existing facility'' at section 116.10 and so it
is not currently part of the approved SIP.
\4\ Section 39.403(b)(8) refers to emission quantities defined
in section 106.4(a)(1) of this title (relating to Requirements for
Permitting by Rule) for sources defined in sections 106.4(a)(2) and
(3). The defined emission quantities in Section 106.4 are emissions
equal to or greater than 250 tpy of CO or NOX; or 25 tpy
of VOC or SO2 or PM10; or 25 tpy of any other
air contaminant except carbon dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen.
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Initial issuance of flexible permits under Chapter 116,
Subchapter G, and amendments to flexible permits under Sections
116.710(a)(2) and (3) that involve construction of a new facility,
modification of an existing facility that results in an increase in
allowable emissions equal to or greater than 250 tpy of CO or
NOX; or 25 tpy of VOC or SO2 or PM10;
or 25 tpy of any other air contaminant except carbon dioxide, water,
nitrogen, methane, ethane, hydrogen, and oxygen or other changes within
the discretion of the Executive Director.\5\ See section 39.403(8).
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\5\ Note that this provision also refers to the emission
quantities defined in Section 106.4 of the SIP.
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Applications for construction or reconstruction subject to
Chapter 116, Subchapter C for hazardous air pollutants.\6\ See section
39.403(9).
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\6\ The provisions of Subchapter C were later recodified into
Subchapter E in a separate SIP submittal. We will address this
recodification in a separate action. Also see section VII.A of this
document for further discussion on the provision for hazardous air
pollutants.
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Concrete batch plants under Chapter 106 unless the
facility is to be temporarily located in or contiguous to the right of
way of a public works project. See section 39.403(10).\7\
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\7\ See discussion in section VI.G of this preamble for further
information on public notice for concrete batch plants.
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The Chapter 39 requirements also apply to PALs through a
cross-reference at section 116.194.
II. What are we proposing?
A. Our Proposal
We have evaluated the revised rules for enforceability and
consistency with the CAA, 40 CFR Part 51, and EPA policy and guidance.
We have determined that the revised rules contain some provisions that
meet or exceed federal requirements. We have also determined that some
provisions are not consistent with federal requirements and therefore,
are not fully approvable. The deficient provisions of the revised rule
are not separable from the remainder of the rule. As authorized in
sections 110(k)(3) and 301(a) of the Act, we are proposing simultaneous
limited approval and limited disapproval of the revised rules. We are
proposing limited approval because the rules, as a whole, strengthen
the existing SIP and facilitate enforcement of the State's public
participation requirements. We are simultaneously proposing limited
disapproval because the provisions identified in section IV of
[[Page 72004]]
this preamble are not consistent with applicable federal requirements.
Final limited approval will incorporate the revised rule in its
entirety into the Texas SIP. We are not acting on the provisions of the
submittal discussed in section VII of this notice. Note that some of
the public participation rules we are considering today apply to other
rules that have not yet been approved into the SIP. For example, we
have not proposed action on Texas' NSR PAL, flexible permit, qualified
facility or NSR reform rules, however some of the rules we are
considering today are applicable to them. These other rules will be
reviewed in separate actions. Our action on any provision of this rule
which refers to or implements a provision that EPA has not approved
does not imply EPA proposed action on the pending rule. The Chapter 39
revised rules consolidate public participation requirements applicable
to the pending rules. Final action on the revised rule will facilitate
review of the pending rules.\8\
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\8\ See letter in the docket for this action from Glenn Shankle,
Executive Director of TCEQ, to Larry Starfield, Deputy Regional
Administrator for EPA Region 6, dated June 13, 2008, noting that
action on TCEQ's public participation rule was necessary to resolve
issues in another pending SIP submission.
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Except where noted below, EPA proposes limited approval and limited
disapproval (LALD) of the following regulations:
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State
State citation Title Current SIP submittal Type of SIP Proposed action
status dates revision
----------------------------------------------------------------------------------------------------------------
Chapter 39--Public Notice
Subchapter D--Public Notice of Air Quality Permits
----------------------------------------------------------------------------------------------------------------
Section 39.201.............. Application for Not in existing 10/25/99 New rule....... LALD.
a SIP.
Preconstructio
n Permit.
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Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
Section 39.401.............. Purpose........ Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.403.............. Applicability.. Not in existing 10/25/99 New rule State LALD. The SIP
SIP. did not submit will not
paragraphs include
(b)(1) through paragraphs
(b)(7). (b)(1) through
No action on (b)(7) and
paragraph (b)(9).
(b)(9). See
section VII..
Section 39.405.............. General Notice Not in existing 10/25/99 New rule. State LALD. The SIP
Provisions. SIP. did not submit will not
subsections include
(a) through subsections
(e) and (a) through
paragraph (e) and
(f)(2). paragraph
(f)(2).
Section 39.409.............. Deadline for Not in existing 10/25/99 New rule....... LALD.
Public SIP.
Comment,
Requests for
Reconsideratio
n, Contested
Case Hearing,
or Notice of
Comment
Hearing.
Section 39.411.............. Text of Public Not in existing 10/25/99 New rule. State LALD. The SIP
Notice. SIP. did not submit will not
paragraph include
(b)(7). paragraphs
No action on (b)(7),
paragraphs (b)(11),
(b)(11), (b)(13),
(b)(13), (b)(14), and
(b)(14), and (c)(7).
(c)(7). See
section VII..
Section 39.413.............. Mailed Notice.. Not in existing 10/25/99 New rule. State LALD. The SIP
SIP. did not submit will not
paragraphs (1) include
through (8), paragraphs (1)
(10), and (13). through (8),
(10), and
(13).
Section 39.418.............. Notice of Not in existing 10/25/99 New rule. State LALD. The SIP
Receipt of SIP. did not submit will not
Application paragraphs include
and Intent to (b)(1) through paragraphs
Obtain Permit. (b)(2). (b)(1) through
(b)(2).
Section 39.419.............. Notice of Not in existing 10/25/99 New rule. State LALD. The SIP
Application SIP. did not submit will not
and subsection (c). include
Preliminary subsection
Determination. (c).
Section 39.420.............. Transmittal of Not in existing 10/25/99 New rule. State LALD. The SIP
Executive SIP. did not submit will not
Director's paragraph include
Response to (c)(2) and paragraph
Comments and subsection (e). (c)(2) and
Decision. subsection
(e).
Section 39.423.............. Notice of Not in existing 10/25/99 New rule....... LALD.
Contested Case SIP.
Hearing.
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Subpart K--Public Notice for Air Quality Permits
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Section 39.601.............. Applicability.. Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.602.............. Mailed Notice.. Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.603.............. Newspaper Not in existing 10/25/99 New rule....... LALD.
Notice. SIP.
[[Page 72005]]
Section 39.604.............. Sign-Posting... Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.605.............. Notice to Not in existing 10/25/99 New rule....... LALD.
Affected SIP.
Agencies.
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Chapter 55--Requests for Reconsideration and Contested Case Hearing
Subchapter A--Applicability
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Section 55.1................ Applicability.. Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
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Subchapter B--Requests, Public Comment
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Section 55.21............... Requests for Not in existing 10/25/99 New rule....... No action. See
Contested Case SIP. section VII.
Hearing,
Public Comment.
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Subchapter D--Applicability and Definitions
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Section 55.101.............. Applicability.. Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
Section 55.103.............. Definitions.... Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
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Subchapter E--Public Comment and Public Meetings
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Section 55.150.............. Applicability.. Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 55.152.............. Public Comment Not in existing 10/25/99 New rule. State LALD. The SIP
Period. SIP. did not submit will not
paragraphs include
(a)(3) through paragraphs
(a)(5). (a)(3) through
(a)(5).
Section 55.154.............. Public Meetings Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 55.156.............. Public Comment Not in existing 10/25/99 New rule....... LALD.
Processing. SIP.
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Subchapter F--Requests for Reconsideration and Contested Case Hearing; Public Comment
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Section 55.200.............. Applicability.. Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
Section 55.201.............. Requests for Not in existing 10/25/99 New rule....... No action. See
Reconsideratio SIP. section VII.
n and
Contested Case
Hearing.
Section 55.203.............. Determination Not in existing 10/25/99 New rule....... No action. See
of Affected SIP. section VII.
Person.
Section 55.205.............. Request by Not in existing 10/25/99 New rule....... No action. See
Group or SIP. section VII.
Association.
Section 55.209.............. Processing Not in existing 10/25/99 New rule....... No action. See
Requests for SIP. section VII.
Reconsideratio
n or Contested
Case Hearing.
Section 55.211.............. Commission Not in existing 10/25/99 New rule....... No action. See
Action on SIP. section VII.
Requests for
Reconsideratio
n and
Contested Case
Hearing.
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Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter B--New Source Review Permits
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.111............. General In existing SIP 10/25/99 Redesignated LALD to add new
Application. as approved 8/ pre-existing subsection
28/07, 72 FR text as (b). The SIP
41998. subsection will not
The existing (a). This include
SIP does not change was paragraph
include approved 9/6/ (a)(2)(K).
paragraph 06, 71 FR
(a)(2)(K) and 52664.
subsection Added new
(b).. subsection
(b)..
Section 116.114............. Application In existing SIP 10/25/99 Revision to LALD for all
Review as approved 9/ paragraphs submitted SIP
Schedule. 18/02, 67 FR (a)(2), revisions.
58709. (b)(1), and
(b)(2); and
the addition
of new
subsection (c).
[[Page 72006]]
Section 116.116............. Changes to In existing SIP 10/25/99 Revised LALD for
Facilities. as approved 11/ subsection (d) addition of
14/03, 68 FR and paragraphs paragraph
64548. (d)(1) and (b)(4). The
The existing (d)(2). This SIP will not
SIP does not change was include
include approved 11/14/ paragraph
sections 03, 68 FR (b)(3) and
116.116(b)(3), 64548. subsections
(b)(4), (e), Added new (e) through
and (f).. paragraph (f).
(b)(4)..
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Division 2--Compliance History
----------------------------------------------------------------------------------------------------------------
Section 116.124............. Public Notice In existing SIP 10/25/99 Section Removal of
of Compliance as approved 9/ repealed. section
History 18/02, 67 FR 116.124 from
Section. 58709. the SIP.
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Subchapter C--Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, Sec.
112(g), 40 CFR Part 63)
----------------------------------------------------------------------------------------------------------------
Section 116.183............. Public Notice Not in existing 7/22/98 EPA took no No action on
Requirements. SIP. action on revision to
section section
116.183 as 116.183 as
submitted 7/22/ submitted 10/
98. See 67 FR 25/99. See
58699 (9/18/ section VII.
02).
10/25/99 Revision to
change cross
reference from
sections
116.130
through
116.137 to
applicable
provisions in
Chapter 39.
----------------------------------------------------------------------------------------------------------------
Subchapter D--Permit Renewals
----------------------------------------------------------------------------------------------------------------
Section 116.312............. Public In existing SIP 12/15/95 and 7/ 7/22/98 LALD for
Notification as approved 3/ 22/98 submittal changes
and Comment 10/06, 71 FR repealed and submitted 12/
Procedures. 12285. revised pre- 15/95, 7/22/
existing 98, and 10/25/
section. 99.
Changes were
non-
substantive
housekeeping
changes to
include cross
references to
current rule..
10/25/99 Revised to
change cross
reference from
Chapter 116 to
Chapter 39.
----------------------------------------------------------------------------------------------------------------
Subchapter G--Flexible Permits
----------------------------------------------------------------------------------------------------------------
Section 116.740............. Public Notice.. Not in existing 10/25/99 Revised to No action. See
SIP. change cross section VII.
reference from
Chapter 116 to
Chapter 39.
----------------------------------------------------------------------------------------------------------------
B. What is limited approval and limited disapproval?
Under section 110(k)(3) of the CAA, EPA may fully approve or fully
disapprove a State submittal. Where portions of the State submittal are
separable, EPA may approve the portions of the submittal that meet the
requirements of the CAA, and disapprove the portions of the submittal
that do not meet the requirements of the CAA. When a submittal is not
separable, EPA can adopt a limited approval and limited disapproval
consistent with section 301(a) and 110(k)(3) of the Act.
A limited approval action applies to the entire rule because EPA
finds that approval of the entire rule will strengthen the State's SIP.
In proposing a limited approval, EPA simultaneously proposes a limited
disapproval of the submittal because it contains deficiencies and, as
such, does not fully meet all of the requirements of the Act. Under a
final limited approval, the State's entire submittal is incorporated
into the SIP and becomes fully federally enforceable. Where the
submittal addresses a mandatory requirement of the Act, final limited
disapproval starts a sanctions clock and a federal implementation plan
(FIP) clock. Under section 179(a), if EPA disapproves a submittal of a
requirement under the CAA, based on the submittal's failure to meet one
or more of the elements required by the Act, the sanctions set forth in
section 179(b) become applicable, unless the deficiency has been
corrected within 18 months of disapproval. Section 179(b) of the Act
and 40 CFR 52.31 of our regulations provide two sanctions available to
the Agency: increasing the offset requirements and withholding highway
funding. Moreover, the final limited disapproval may trigger a 24-month
[[Page 72007]]
clock to adopt a FIP requirement under section 110(c). If the State
submits an approvable rule revision during the sanction clock period,
EPA may propose approval of the rule and take interim final action,
effective upon publication, to stay the sanctions. Final approval of
the rule revision correcting the deficiency terminates the FIP clock.
III. How do the revised rules strengthen the existing SIP?
The SIP revisions submitted on December 15, 1995; July 22, 1998;
and October 25, 1999, as a whole, strengthen the SIP compared to the
corresponding provisions in the existing SIP. Below is a summary of
some revisions that strengthen the SIP. The TSD includes detailed
analyses of how the SIP is strengthened.
The general requirement for publishing notice in section
116.130(a) was changed by section 39.418 to provide a uniform time for
publication of the notice of the application (within 30 days of
determination of administrative completeness).
Previously, permit amendments were subject to notice at
the discretion of the Executive Director of TCEQ, without specific
criteria included in the rule (section 116.130(a)). This provision was
removed, thus requiring notice of amendment applications (section
39.403(b)(8)).
Previously, a copy of the application was required to be
available for public inspection in Austin, TX, and the appropriate
regional offices of the TCEQ (sections 116.131(b) and 116.132(7)). The
revised rules also require a copy of the notice to be placed in a
public place, available for inspection and copying, in the municipality
in or nearest to the location of the facility that is the subject of
the application. See section 39.405.
The revised rules add the opportunity to request a public
meeting and allow the Executive Director to determine whether
significant public interest exists to hold a public meeting. If held, a
written response is provided to oral comments made together with any
timely written comments. In addition, this response to comments (RTC)
is considered by the Commission if it considers any contested case
hearing requests in a Commission Meeting. The RTC is provided to all
commenters and persons who request to be on a mailing list related to
the application. See sections 39.420, 55.152, 55.154, and 55.156.
Notice of preliminary decision and draft permit was
extended from applying only to NNSR and PSD permits (see section
116.132(a)(6)) to any minor permit or permit amendment for which a
contested case hearing is requested by an affected person in response
to the Notice of Receipt of Application and Intent to Obtain a Permit.
See section 39.419.
Note also that the Texas rule contains some provisions
that exceed federal requirements, such as sign posting (section
39.604), a ``display type'' newspaper notice (section 39.603(c)(2)),
and alternate language notice in newspaper and sign posting (sections
39.405(h) and 39.604(e)).
IV. What are the rule deficiencies?
Notwithstanding the fact that these rules strengthen the existing
SIP, they do not meet all of the minimum applicable federal
requirements that relate to public participation. Each notation below
is discussed in detail in Section V.
A. New or Modified Minor NSR Sources
Generally, the minor NSR public participation rules identified
below do not require any initial public participation for some
permitting actions or do not require the TCEQ to provide the agency's
air quality analysis and proposal to approve or disapprove the permit
in other permitting actions.
Under section 39.419(e), for new or modified minor NSR
sources or minor modifications at major sources, the rules do not
require public notice and the opportunity for comment on the State's
analysis of the effect of construction or modification on ambient air
quality, including the agency's proposed approval or disapproval, as
required by 40 CFR 51.161(a) and (b), unless a contested case hearing
is requested and not withdrawn after notice of application and intent
to obtain a permit is published.
Under section 39.403(b)(8), for a minor NSR permit
amendment or minor modification under section 116.116(b), (where there
is a change in the method of control of emissions; a change in the
character of the emissions; or an increase in the emission rate of any
air contaminant) the existing SIP requires the permit holder to apply
for and receive approval of a permit amendment. However, the revised
rules do not require any public participation as required by 40 CFR
51.161(a) and (b) unless the change involves construction of a new
facility or modification of an existing facility that results in an
increase in allowable emissions equal to or greater than 250 tpy of CO
or NOX; or 25 tpy of VOC or SO2 or
PM10; or 25 tpy of any other air contaminant except carbon
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or
other changes within the discretion of the Executive Director.
Under section 39.419(e)(1)(C), for any amendment,
modification, or renewal of a major or minor source which requires a
permit application, the rules do not require public notice and the
opportunity for comment on the State's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval, as required by 40 CFR
51.161(a) and (b), if the amendment, modification, or renewal would not
result in an increase in allowable emissions and would not result in
the emission of an air contaminant not previously emitted unless the
application involves a facility for which the applicant's compliance
history contains violations that are unresolved and that constitute a
recurring pattern of egregious conduct which demonstrates a consistent
disregard for the regulatory process, including the failure to make a
timely and substantial attempt to correct the violations.
Also, section 39.403(b)(8), Applicability, of the revised
rule refers to two State statutory provisions, THSC section 382.0518
(preconstruction permit) and section 382.055 (review and renewal of
preconstruction permit). For clarity and for approvability into the
SIP, section 39.403(b) should be revised to refer to the corresponding
sections of the Texas SIP.
B. Projects Subject to PSD
The revised rules do not contain the following requirements for
projects subject to the regulations for PSD:
For a new or modified source subject to PSD, the revised
rules do not require the TCEQ to provide an opportunity for a public
hearing for interested persons to appear and submit written or oral
comment on the air quality impact of the source, alternatives to it,
the control technology required, and appropriate considerations and to
provide notice of the opportunity for a public hearing, as required by
40 CFR 51.166(q)(v) and section 165(a)(2) of the Act.
For a new or modified source subject to PSD, the revised
rules do not require that the public notice of a PSD permit contain the
degree of increment consumption that is expected from the source or
modification as required by 40 CFR 51.166(q)(iii) and CAA section
165(a)(2).
For a new or modified source subject to PSD, the revised
rules do not require a copy of the public notice of a PSD permit to be
sent to State and local air pollution control agencies, the chief
[[Page 72008]]
executives of the city and county where the source would be located and
any State or Federal Land Manager or Indian Governing Body whose lands
may be affected by emissions from the source or modification, as
required by 40 CFR 51.166(q)(iv).
For a new or modified source subject to PSD, the rules do
not require that response to comments be available prior to final
action on the PSD permit, as required by 40 CFR 51.166(q)(vi) and
(viii).
For a new or modified source subject to PSD, the revised
rules do not contain a definition of a final appealable decision for a
PSD permit. We request further information about how and when
commenters are informed of the Agency's final decision, access to
response to comments and timing for judicial appeal, in order to
provide an opportunity for State court judicial review.
C. Project for a PAL
The revised rules do not meet the following provisions for PALs:
For PALs for existing major stationary sources, there is
no provision that PALs be established, renewed, or increased through a
procedure that is consistent with 40 CFR 51.160 and 51.161, including
the requirement that the reviewing authority provide the public with
notice of the proposed approval of a PAL permit and at least a 30-day
period for submittal of public comment, consistent with the Federal PAL
rules at 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11).
For PALs for existing major stationary sources, there is
no requirement that the State address all material comments before
taking final action on the permit, consistent with 40 CFR 51.165(f)(5)
and 51.166(w)(5).
The applicability provision in section 39.403 does not
include PALs, despite the cross-reference to Chapter 39 in Section
116.194.
D. Project for a Flexible Permit
The rules do not meet the following provisions for Flexible
Permits:
For initial issuance of a flexible permit to establish a
minor NSR applicability cap or an increase in a flexible permit cap,
the rules do not require 30-day notice and comment on information
submitted by the owner or operator and the agency's analysis of the
effect of the permit on ambient air quality, including the agency's
proposed approval or disapproval as required by 40 CFR 51.161.
Where PSD and NNSR terms and conditions are modified or
eliminated when the permit is incorporated into a flexible permit, the
rules do not require public participation consistent with 40 CFR 51.161
and 51.166(q).
V. Do Texas's public participation rules meet federal requirements?
A. Minor NSR Regulatory Requirements
1. What public participation requirements for minor NSR programs are
necessary for approval of the SIP revision?
The CAA at section 110(a)(2)(C) requires states to include a minor
NSR program in their SIP to regulate modifications and new construction
of stationary sources within the area as necessary to assure the
national ambient air quality standards (NAAQS) are achieved. EPA's
implementing regulations at 40 CFR 51.160-51.164 are intended to ensure
that new source growth is consistent with maintenance of the NAAQS. 40
CFR 51.160(e) requires states to identify types and sizes of facilities
which will be subject to review under their minor NSR program. For
sources identified under Sec. 51.160(e), Sec. 51.160(a) requires that
the SIP include legally enforceable procedures that enable the State or
local agency to determine whether construction or modification of a
facility, building, structure or installation, or combination of these
will result in a violation of applicable portions of the control
strategy; or interference with attainment or maintenance of a national
standard in the State in which the proposed source (or modification) is
located or in a neighboring State.
Sources subject to the legally enforceable procedures under 40 CFR
51.160(a) are also subject to the minimum public participation
requirements at 40 CFR 51.161, entitled Public Availability of
Information. In particular, 40 CFR 51.161(a) requires a State to
provide the opportunity for public comments on information submitted by
owners and operators. 40 CFR 51.161(a) also requires the public
information to include the agency's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval. 40 CFR 51.161(b) requires
that the State ensure availability of the information submitted by the
owner or operator and the State's analysis of the effect on air quality
for public inspection in at least one location in the affected area,
that the State provide a 30-day public comment period on that
information and that notice of the public comment period should be by
prominent advertisement in the area affected.
The minor NSR program is also important as a tool to implement
changes related to major NSR, such as to adopt enforceable limitations
on hours of operation and rates of production or the installation of
pollution control equipment to limit potential to emit (PTE) to avoid
major source applicability thresholds of NSR or title V permitting
requirements. The minor NSR program also authorizes minor modifications
at major sources, including netting demonstrations required by the PSD
and NNSR major source program, or to establish a PAL to determine PSD
or NNSR applicability.
EPA recognizes that, under the applicable Federal regulations,
states have broad discretion to determine the scope of their minor NSR
programs as needed to attain and maintain the NAAQS. The State has
significant discretion to tailor minor NSR requirements that are
consistent with the requirements of Part 51. The State may also provide
a rationale for why the rules are at least as stringent as the Part 51
requirements where the revisions are different from Part 51. For
further information, see recent SIP actions in other States concerning
minor NSR approvals and disapprovals, such as 68 FR 2891 (January 22,
2003), where EPA approved Oregon's minor NSR program establishing
categories of minor NSR permit actions. However, EPA disapproved or
gave less than full approval to minor NSR public participation
requirements that provided a blanket exemption from one or more public
notice requirements of Part 51 to all minor NSR permitting actions. See
65 FR 2042 (January 13, 2000), disapproval of West Virginia minor NSR
provisions providing 15-day public comment period for certain minor NSR
permitting actions or 65 FR 2048 (January 13, 2000), limited approval
of Delaware minor NSR public participation requirements because it
strengthened the SIP, but limited disapproval of the rule due to less
than 30-day comment period. See also the proposed approval of Review of
New Sources and Modifications in Indian Country at 71 FR 48696 (August
21, 2006) and 72 FR 45378 (August 14, 2007), approval of Alaska minor
NSR public participation provisions.
2. What are the Texas minor NSR program public participation
requirements?
In general, the revised rules provide for two types of public
notice and comment processes. These two public notices are Notice of
Application and Intent to Obtain a Permit under section 39.418 (first
notice) and Notice of
[[Page 72009]]
Application and Preliminary Decision (second notice) under section
39.419 and subchapter K. The first notice requires the permittee to
publish notice of the permit application and provide a copy of the
administratively complete application in the public record available
for public comment. An administratively complete application may, but
is not required to, contain the applicant's information on the air
quality impacts from the facility. Under Section 39.419(e)(1)(B), no
further notice is required for minor NSR permits unless a contested
case hearing is requested and not withdrawn before the second notice is
published. Under section 55.21, a contested case hearing may be
requested by: (1) The Commission; (2) the Executive Director; (3) the
applicant; (4) affected persons, when authorized by law; and (5) for
applications for air quality permits, or standard exemptions required
to provide public notice, a legislator from the general area of the
proposed facility. The request must identify the person's personal
justiciable interest affected by the application, including the
requestor's location and distance relative to the activity that is the
subject of the application and how and why the requestor believes he or
she will be affected by the activity in a manner not common to members
of the general public. Requirements for a group or association to
request a contested case hearing are found in section 55.23.\9\ A
contested case hearing is an evidentiary hearing before an
administrative law judge at the State Office of Administrative Hearings
(SOAH). If a contested case hearing is requested, the permittee must
publish notice of the opportunity to comment on the complete
application and the State's analysis of air quality impacts and the
State's proposal to approve or disapprove the permit.
---------------------------------------------------------------------------
\9\ Section 55.23, Request by Group or Association, was not
submitted in this SIP revision.
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Section 39.418 of the revised rule requires the applicant for a
minor NSR permit new source or modification, amendments or renewal
under Chapter 116 to publish Notice of Receipt of Application and
Intent to Obtain Permit (first notice) within 30 days after the
Executive Director determines the application to be administratively
complete. (The rule does not provide a definition of administrative
completeness.) Under sections 55.152(a)(1) and (2), 39.405(f)(1), and
39.603, the notice of 30-day public comment period (15 days for
renewals) must be published in a newspaper of general circulation in
the municipality in which the facility is located or is proposed to be
located or in the municipality nearest to the location or proposed
location of the facility and State the end date of the public comment
period. Section 39.405(e) requires the applicant to provide a copy of
the notice to the TCEQ within 10 business days from the last date of
publication. The applicant must also post a sign at the site of the
existing or proposed facility declaring the filing of an application
for a permit under section 39.604. The TCEQ is required to mail a copy
of the notice to the State senator and representative who represent the
area in which the facility is or will be located, the applicant,
persons on a relevant mailing list, and any other person the Executive
Director or Chief Clerk may elect to include under sections 39.413 and
39.602. The applicant is required to mail a copy of the notice to EPA,
all local air pollution control agencies with jurisdiction in the
county in which the construction is to occur, and the air pollution
control agency of any nearby State in which air quality may be
adversely affected by the emissions from the new or modified facility
under section 39.605. The applicant is also required to make a copy of
the application available for review and copying at a public place in
the county in which the facility is located or proposed to be located.
The applicant must indicate when confidential business information is
excluded from the public file. See section 39.405(g). The public record
available during the comment period includes the administratively
complete permit application and any other documents submitted by the
applicant, as required by section 39.405(g).
If a contested case hearing is requested by persons identified in
section 55.21 or 55.23 in response to the Notice of Receipt of
Application and Intent to Obtain Permit, and the request is not
withdrawn before the date the preliminary decision is issued, section
39.419 requires the applicant to publish Notice of Application and
Preliminary Decision (second notice) of issuance or modification of a
minor NSR action and provide a 30-day notice and comment period on the
public record, which includes the draft permit and the State's analysis
of its preliminary decision to approve or disapprove the permit.
For minor and major sources authorized under section 116.116(b) of
the approved SIP, a permittee must apply for and receive a prior permit
amendment which authorizes a permittee to vary from terms of a permit
if the change involves a change in the method of control of emissions,
a change in the character of the emissions, or an increase in the
emission rate of any air contaminant. Section 39.403(b)(8) requires
public notice and the opportunity for comment only if the permit
amendment involves construction of a new facility or modification of an
existing facility that results in an increase in allowable emissions
equal to or greater than 250 tpy of CO or NOX; or 25 tpy of
VOC or SO2 or PM10; or 25 tpy of any other air
contaminant except carbon dioxide, water, nitrogen, methane, ethane,
hydrogen, and oxygen or other changes within the discretion of the
Executive Director. Therefore, permit amendments authorized under
section 116.116(b) are not subject to any public participation
requirements unless the amendment involved an emission increase of
allowable emission above the thresholds in section 39.403(b)(8).
Under section 39.419(e)(1)(C), any amendment, modification, or
renewal for a major or minor source that requires a permit application
and would not result in an increase in allowable emissions and would
not result in the emission of an air contaminant not previously
emitted, is not required to provide second notice (which includes
public notice and the opportunity for comment on the State's second
notice which includes analysis of the effect of construction or
modification on ambient air quality and includes the agency's proposed
approval or disapproval) unless the application involves a facility for
which the applicant's compliance history contains violations that are
unresolved and that constitute a recurring pattern of egregious conduct
which demonstrates a consistent disregard for the regulatory process,
including the failure to make a timely and substantial attempt to
correct the violations. Therefore, amendments, modifications or
renewals for minor or major sources are not required to provide an air
quality analysis or the State's proposal to approve or disapprove the
permit unless there was an increase in allowable emissions or the
release of a new air contaminant.
3. Does the Texas minor NSR public participation rule meet federal
requirements for approval?
The revised rules meet or exceed federal requirements for minor NSR
public participation with four exceptions as described below.
First, under section 39.419(e)(1)(B), the requirement at 40 CFR
51.161(a) to provide opportunity for public comment on the State's
analysis of the effect of construction or modification on ambient air
quality from new minor sources or
[[Page 72010]]
minor modification identified under 40 CFR 51.160, including the
State's proposed approval or disapproval, is not met. Sources regulated
under 40 CFR 51.160 are subject to the public participation
requirements of 40 CFR 51.161. Under the Texas rule, sources subject to
minor NSR requirements must publish the first notice, Notice of Receipt
of Application and Intent to Obtain Permit, and provide a 30-day notice
and comment period on the administratively complete permit application
only. The publically available information during the comment period
does not include and, the public notice fails to inform the public how
to obtain, the State's analysis of air quality impacts and proposal to
approve or disapprove the application. The public record for the first
notice is required to contain only a copy of the administratively
complete permit application as required by section 39.405(g). As a
result, the public does not have an opportunity to adequately review
and comment upon the potential air quality effects from the source and
on the State's proposed action on the application. In order to obtain
the State's air quality analysis, an interested person must request a
contested case hearing. However, sections 55.21(b) and 55.23 limit who
may request a contested case hearing before SOAH and so some members of
the public may not be able to review and comment on air quality impacts
from the facility. The request for a contested case hearing must be
filed within the first notice public comment period and must be based
solely upon information in the administratively complete application.
EPA has concluded that the burden of requesting an evidentiary
administrative hearing based solely on the information in the permit
application does not provide the public with the minimum public
information required by 40 CFR 51.161(a) and (b).
Second, section 39.403(b)(8) excludes permit amendments authorized
by section 116.116(b) from any public participation requirements of
Chapter 39, including the requirement to publish the first notice,
unless the change involves construction of a new facility or
modification of an existing facility that results in an increase in
allowable emissions equal to or greater than 250 tpy of CO or
NOX; or 25 tpy of VOC or SO2 or PM10;
or 25 tpy of any other air contaminant except carbon dioxide, water,
nitrogen, methane, ethane, hydrogen, and oxygen or other changes within
the discretion of the Executive Director. Changes that result in an
increase in emissions are subject to a permit amendment under sections
116.110 or 116.116(a) or (b) of the approved SIP. As stated, section
39.403(b)(8) provides an exemption from public participation for
sources otherwise required to obtain a permit amendment. As discussed
in more detail above, sources regulated under 40 CFR 51.160(a) are
subject to the minimal public participation requirements in 40 CFR
51.160(a) and (b). We also have concerns that this provision does not
exclude public participation requirements for major modifications
subject to PSD or NNSR permitting requirements, which are based on
actual rather than allowable emissions and may be interpreted to apply
to those permitting actions.\10\ EPA has concluded that 39.403(b)(8)
fails to provide the minimum public participation requirements of 40
CFR 51.161.
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\10\ See NSR Reform ruling, New York v. EPA, 413 F.3d 3 (D.C.
Cir. June 24, 2005). The court held that the major NSR modification
requirement, which incorporates by reference CAA Sec. 111(a)(4),
``unambiguously defines `increases' in terms of actual emissions.''
---------------------------------------------------------------------------
Third, under section 39.419(e)(1)(c), for any amendment,
modification, or renewal application for a minor or major source, the
revised rules do not require second notice, which includes the State's
air quality analysis, unless the change would result in an increase in
allowable emissions and would not result in the emission of an air
contaminant not previously emitted. The requirement at 40 CFR 51.161(a)
to provide opportunity for public comment on the State's analysis of
the effect of modification on ambient air quality from minor sources
identified under 40 CFR 51.160, including State's proposed approval or
disapproval, is not met. We recognize that States may tailor minor NSR
programs to allow permit amendments for certain minor sources required
to be based upon increases in allowable emissions. However, section
39.419(e)(1)(C) applies to major and minor sources required to obtain a
permit amendment under Chapter 116 of the approved SIP. As described in
the previous paragraph, sources required to obtain a permit under 40
CFR 51.160(a) are subject to the public participation requirements of
40 CFR 51.161. Under 40 CFR 51.161, a modification application for a
major or minor source regulated under the SIP is subject to public
notice and opportunity for public comment on the State's air quality
analysis and proposal to approve or disapprove the permit. We also have
concerns that this provision does not exclude public participation
requirements for major modifications subject to PSD or NNSR permitting
requirements, which are based on actual rather than allowable emissions
and may be interpreted to apply to those permitting actions. EPA has
concluded that section 39.419(e)(1)(c) fails to provide the minimum
public participation requirements of 40 CFR 51.161.
Fourth, section 39.403(b) (Applicability) of the revised rule
refers to two State statutory provisions, THSC section 382.0518
(preconstruction permit) and section 382.055 (review and renewal of
preconstruction permit). For clarity and for approvability into the
SIP, we recommend that section 39.403(b) be revised to refer to the
corresponding sections of the Texas SIP.
In summary, EPA has determined that the Texas minor NSR public
participation rules do not require that the publicly available
information include the State's analysis of air quality impacts or the
State's decision to approve or disapprove the permit. EPA's review of
section 39.419(e)(1)(A) and (B) indicates that public notice of the
State's analysis of air quality impacts for minor new sources or minor
modifications is not required unless a contested case hearing is
requested. We are concerned that the rules at sections 55.21 and 55.23
limit who may request a contested case hearing. In other words, the
first notice (Notice of Application and Intent to Obtain a Permit) does
not contain the agency's analysis of the effect of construction or
modification on ambient air quality, including the agency's proposed
approval or disapproval as required by 40 CFR 51.161(b). The only way
to obtain that information is by requesting a contested case hearing
and the rules limit which members of the public can do so. Moreover, we
believe that the State's requirement to submit a request for an
evidentiary administrative hearing in order to obtain the air quality
analysis is too large a burden for potential commenters, may exclude
some interested persons, and is not consistent with the minimum
requirements of 40 CFR 51.161(a) and (b). We note that Texas did not
provide a demonstration of how the Chapter 39 and 55 rules for public
participation for minor NSR sources regulated under the SIP meet the
public participation requirements of 40 CFR Part 51 with this SIP
submittal.\11\
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\11\ See also correspondence between EPA Region 6 and TCEQ in
the docket for this action.
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[[Page 72011]]
B. PSD Regulatory Requirements
1. What public participation requirements for PSD programs are
necessary for approval of the SIP revision?
The PSD provisions of the CAA emphasize the importance of public
participation in permitting decisions. See section 160(5) of the CAA.
The criteria for approval of a PSD program are set out in Section 165
of the CAA and 40 CFR 51.166. The requirements for public participation
for an approved PSD program are found at 40 CFR 51.166(q). States may
incorporate these requirements by reference or establish equivalent
provisions. Section 307(b) of the CAA expressly provides an opportunity
for judicial review of PSD permitting decisions when EPA is the
permitting authority. In a federal PSD program, any member of the
public who has participated in the public comment process and meets the
threshold standing requirements of Article III of the U.S. Constitution
may petition for administrative review of the permit within 30 days of
issuance before the Environmental Appeals Board (EAB) and ultimately
seek judicial review of the administrative disposition of the permit.
We interpret the statute and regulations to require, at a minimum, an
opportunity for State court judicial review of PSD permits under an
approved PSD program. See 61 FR 1880, 1882 (Jan. 24, 1996) and 72 FR
72617, 72619 (December 21, 2007). The legislative history of the 1977
CAA amendments supports this interpretation.\12\ Although permits
issued under SIP approved programs are not subject to appeal to EPA's
EAB, those actions are instead subject to the opportunities for review
and appeal provided under State law.
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\12\ See Staff of the Subcommittee on Environmental Pollution of
the Senate Committee on Environment and Public Works, 95th Congress,
1st Session, A Section-by-section Analysis of S. 252 and S. 253,
Clean Air Act Amendments 36 (1977), reprinted in 5 Legislative
History of the Clean Air Act Amendments of 1977 (1977 Legislative
History) 3892 (1977).
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40 CFR 51.166(q) requires, in part, that the permitting authority
make available all the materials submitted by the applicant, a copy of
the preliminary determination and a copy or summary of other materials
considered in making the determination. The State must notify the
public, by advertisement in a newspaper of general circulation, of the
application, the preliminary determination, the degree of increment
consumed, and of the opportunity to comment at a public hearing or in
writing. The State must also provide a copy of the notice to any other
State or local air pollution control agencies, the chief executive of
the city and county where the source would be located, any regional
land use planning agency, any State or Federal Land Manager or Indian
Governing body whose lands may be affected. The State must also provide
an opportunity for public hearing for interested persons to appear and
submit written or oral comments on the air quality impacts of the
source, alternatives to it, the control technology required, and other
appropriate considerations. See CAA section 165(a)(2). The State must
also consider all written and oral comments in making a final
permitting decision and make all comments available for public
inspection.
2. What are the Texas PSD program public participation requirements?
Under section 39.419, for sources subject to PSD or nonattainment
NSR review the applicant must publish notice of two 30-day public
comment periods, Notice of Application and Intent to Obtain a Permit
(first notice) and Notice of Application and Preliminary Decision
(second notice). The applicant must also mail a copy of the notices to
the EPA Regional Administrator in Dallas, all local air pollution
control agencies with jurisdiction in the county in which the
construction is to occur, the air pollution control agency of any
nearby State in which air quality may be adversely affected by the
emissions from the new or modified facility, the applicant, persons who
filed comments or hearing requests before the deadline, persons on a
mailing list under Section 39.407 and the State senator or
representative from the region where the source will be located. Under
section 55.154, TCEQ may provide a public meeting if the Executive
Director determines that there is a substantial or significant degree
of public interest in an application or if a member of the legislature
who represents the general area in which the facility is located or
proposed to be located requests that a public meeting be held.
Texas provides an opportunity for judicial review of PSD permitting
decisions under THSC 382.032, which states that a person affected by a
ruling, order, decision, or other act of the Commission or of the
Executive Director, if an appeal to the Commission is not provided, may
appeal the action by filing a petition in a district court of Travis
County. The petition must be filed within 30 days after the date of the
Commission's or the Executive Director's action or, in the case of a
ruling, order, or decision, within 30 days after the effective date of
the ruling, order or decision. Note that Texas law requires exhaustion
of administrative remedies, including requesting a contested case
hearing, to appeal to State court.
3. Do the Texas PSD public participation requirements meet federal
requirements for approval?
The Texas PSD program, including the public participation
provisions, was approved in 1992. See 54 FR 52823, 826 (December 22,
1989 and 57 FR 28093 (June 24, 1992). This SIP revision replaces the
public participation rules adopted under the approved PSD program and
therefore, we review the rules for consistency with federal PSD
requirements of 40 CFR 51.166(q). Our review of Chapters 39 and 55
indicates that the Texas rules meet or exceed federal requirements with
the following exceptions. We have not identified provisions to satisfy
the following federal requirements:
A requirement that the State provide an opportunity for a
public hearing for interested persons to appear and submit written or
oral comment on the air quality impact of the source, alternatives to
it, the control technology required, and appropriate considerations,
along with public notice of the public hearing as required by 40 CFR
51.166(q)(v) and section 165(a)(2) of the CAA. The provision in section
55.154 that provides the Executive Director with discretion to hold a
public meeting if the Executive Director determines that there is a
substantial or significant degree of public interest in an application
is not consistent with the federal requirements. Under the Texas rule,
the decision to grant a public hearing is within the Executive
Director's discretion and must be based upon substantial or significant
public interest. In contrast, the CAA provides for the opportunity of
interested persons to request a public hearing and public notice of
that opportunity. Under section 55.154, the public is not guaranteed
notice of such opportunity or that such an opportunity will be provided
on request.
A requirement that the public notice of a PSD permit
contain the degree of increment consumption that is expected from the
source or modification as required by 40 CFR 51.166(q)(iii).\13\
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\13\ EPA's final approval of the Texas PSD program (57 FR 28093,
June 24, 1992) included a supplemental document that provided an
enforceable commitment from Texas to implement the requirements of
40 CFR 51.166(q)(iii) (state the degree of increment consumption in
the public notice) and 51.166(q)(iv) (mail notice to affected
agencies). The supplement remains a part of the Texas SIP. See 40
CFR 52.2270, EPA Approved Nonregulatory Provisions and Quasi-
Regulatory Measures in the Texas SIP. We cite these requirements as
missing from the Texas submittal because the adoption of Chapters 39
and 55 replaced all existing public participation requirements for
PSD permits under the Texas PSD program as State law and seeks to
repeal existing SIP PSD public participation requirements applicable
to permit applications complete on or after September 1, 1999. Texas
did not address the SIP supplement in its submittal. For several
reasons, we believe these PSD requirements should be included as
regulatory, rather than quasi-regulatory, requirements of the SIP.
Given that the applicant rather than Texas publishes notice and
sends the notice to affected agencies, we believe regulatory
provisions in Chapter 39 would provide more clarity to the applicant
and the public to ensure compliance with these requirements than a
document that does not explicitly appear in the SIP. Also, we
believe this approach will avoid confusion since section 39.605 of
the revised rules lists some, but not all, agencies that must be
notified under Sec. 51.166(q)(iv).
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[[Page 72012]]
A requirement to provide a copy of the public notice of a
PSD permit to be sent to State and local air pollution control
agencies, the chief executives of the city and county where the source
would be located and any State or Federal Land Manager or Indian
Governing Body whose lands may be affected by emissions from the source
or modification, as required by 40 CFR 51.166(q)(iv) and CAA
165(d).\14\
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\14\ Ibid. at 13.
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A requirement that response to comments be available prior
to final action on the PSD permit, as required by 40 CFR 51.166(q)(vi)
and (viii) and to facilitate the appeals process.
For a new or modified source subject to PSD, the revised
rules do not contain a definition of a final appealable decision for a
PSD permit. We request further information about how and when the
commenters are informed of the Agency's final decision, access to
response to comments and timing for judicial appeal, in order to
provide an opportunity for State court judicial review.
We request comments on an additional issue related to PSD permit
public notice requirements. Under the approved SIP and under the
revised rule, Texas requires the permit applicant to publish public
notice for an air permit and to mail a copy of the notice to TCEQ and
EPA. Although the federal PSD rules at 40 CFR 51.166(q)(2) State ``* *
* the reviewing authority shall * * * provide notice,'' we believe
Texas has authority to delegate responsibility to publish notice to the
applicant. Under Section 39.405(e), TCEQ allows 10 business days for
the applicant to notify TCEQ and EPA that the public notice has been
published. A review of the TCEQ permitting database indicates TCEQ
generally receives a copy of the public notice within two weeks after
the date of publication.\15\ EPA has experienced delays in receiving
the PSD public notice and we have received complaints from citizens
that it is often not possible to identify the start and end date of a
public comment period until much of the comment period has passed.
While we believe that TCEQ does have authority to delegate
responsibility to publish notice of a PSD permit to the applicant, we
request comments on how the public information can be made available to
ensure that interested persons can fully participate in the public
comment process in accordance with the intent of the Act.
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\15\ The TCEQ permitting database can be accessed at http://
www4.tceq.state.tx.us/cid/CCD/
index.cfm?fuseaction=main.SearchPublicNotice.
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C. PAL Regulatory Requirements
1. What public participation requirements for PALs are necessary for
approval?\16\
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\16\ Texas' regulations for PALs are not in the existing Texas
SIP. EPA will address approvability of the entire PAL requirements
in a separate action.
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The Federal PAL rules at 40 CFR 51.165(f)(5) and (11) and
51.166(w)(5) and (11) require PALs for existing major stationary
sources to be established, renewed, or increased through a procedure
that is consistent with 40 CFR 51.160 and 51.161, including the
requirement that the reviewing authority provide the public with notice
of the proposed approval of a PAL permit and at least a 30-day period
for submittal of public comment. The State must address all material
comments before taking final action on the permit.
2. What are the public participation requirements under the Texas PAL
rule?
Texas PAL rules address public participation in section 116.194,
which states:
Applications for initial issuance of plant-wide applicability
limit permits under this division are subject only to Sec. Sec.
39.401, 39.405, 39.407 \17\, 39.409, 39.411, 39.419, 39.420, and
39.605 of this title (relating to Purpose; General Notice
Provisions; Mailing Lists; Deadline for Public Comment, and for
Requests for Reconsideration, Contested Case Hearing, or Notice of
Contested case Hearing; Text of Public Notice; Notice of Application
and Preliminary Decision; Transmittal of the Executive Director's
Response to Comments and Decision; Applicability; Mailed Notice;
Newspaper Notice; Sign-Posting; and Notice to Affected Agencies,
respectively), except that any requests for reconsideration or
contested case hearings in Sec. Sec. 39.409 or 39.411 of this title
shall not apply. Nothing in this section exempts an applicant for a
new source review permit from the requirements of Subchapter B of
this chapter (relating to New Source Review).
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\17\ Section 39.407 was not submitted as a SIP revision. See
discussion of the cross references to non-SIP rules in section VII.A
of this preamble.
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3. How does the Texas PAL rule meet Federal requirements for approval?
We are addressing public participation for PALs in this notice to
facilitate our review of the Texas PAL rule SIP submittal that cross-
references Chapter 39, even though the PAL rule was adopted after the
revised rules.\18\ We note that Texas did not make any revisions
related to PALs to Chapter 39. The applicability section in Chapter
39.403 does not include PALs, despite the cross-reference to Chapter 39
in Section 116.194. Therefore, the two rules are not consistent. We
believe Texas must revise the applicability section in Chapter 39.403
in order to make the Chapter 39 public participation requirements
applicable to new permitting rules, such as the PAL rule.
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\18\ See letter from Glenn Shankle, Executive Director of TCEQ,
to Larry Starfield, Deputy Regional Administrator for EPA Region 6,
dated June 13, 2008, noting that action on TCEQ's public
participation rule was necessary to resolve issues in another
pending SIP submission.
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Our review of the Chapter 39 requirements applicable to PALs
indicates that public participation for initial issuance, renewal, or
increase of a PAL is not consistent with the Federal requirements.
Section 39.419(e)(3) does not require PAL permit applications to
provide public notice and comment on the Agency's preliminary analysis
and the draft permit unless a contested case hearing is requested. We
have identified no provisions which address renewal or increase of a
PAL. Furthermore, Texas provided no demonstration of how section
116.194, which cross references Chapter 39 requirements, is consistent
with the Federal PAL rules at 40 CFR 51.165(f)(5) and (11) and
51.166(w)(5) and (11). We have not identified provisions in Chapter 39
to comply with the following requirements of 40 CFR 51.165(f)(5) and
(11) and 51.166(w)(5) and (11):
Public participation requirements for PALs existing major
stationary sources to be established, renewed, or increased through a
procedure that is consistent with 40 CFR 51.160 and 51.161.
A requirement that the reviewing authority provide the
public with notice of the proposed approval of a PAL permit and at
least a 30-day period for submittal of public comment.
[[Page 72013]]
A provision to require the State to address all material
comments before taking final action on the PAL permit.
An applicability provision in section 39.403 that subjects
PALs to the requirements of Chapter 39.
D. Flexible Permits
1. What are the public participation requirements for Flexible Permits
necessary for approval? \19\
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\19\ Texas' rules for Flexible Permits are not in the existing
Texas SIP. EPA is reviewing the Texas' SIP submittal which relates
to Flexible Permits and will address its concerns in a separate
action.
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EPA has recognized that States may provide a site-wide cap to
determine minor NSR applicability, similar to the Federal PAL rule for
major NSR applicability. See our proposed rule for Review of New
Sources and Modifications in Indian Country, 71 FR 48696. 48705 or
Evaluation of Implementation Experiences with Innovative Air Permits,
Summary Report,\20\ which discuss minor NSR applicability caps and
public participation requirements at 40 CFR 51.160-51.164. 40 CFR
51.161(b) requires that the State ensure availability of the
information submitted by the owner or operators and the State's
analysis of the effect on air quality and proposal for approval or
disapproval in at least one location in the affected area, that the
State provide a 30-day public comment period on that information and
that notice of the public comment period should be by prominent
advertisement in the area affected.
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\20\ Report prepared by EPA Office of Air Quality Planning and
Standards and OPEI at http://www.epa.gov/ttn/oarpg/t5/memoranda/
iap_eier.pdf.
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2. What are the public participation requirements under the Texas
Flexible Permit rule?
Section 39.403(b)(8)(A) and (B) states that initial issuance of a
flexible permit is not required to comply with the public participation
requirements of Chapter 39 unless the action involves new construction
or an increase in allowable emissions equal to or greater than 250 tpy
of CO or NOX; or 25 tpy of VOC, SO2,
PM10; or 25 tpy of any other air contaminant except carbon
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.
When a flexible permit is established under the Texas rules in
Subchapter G of Chapter 116, PSD or NNSR terms may be revised or
eliminated when they are incorporated into the flexible permit. The
rule does not provide for public participation for initial issuance of
a flexible permit unless the action involves new construction or an
increase in allowable emissions equal to or greater than 250 tpy of CO
or NOX; or 25 tpy of VOC, SO2, or
PM10; or 25 tpy of any other air contaminant except carbon
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.
3. Do the public participation requirements for Texas flexible permits
meet the Federal requirements for approvability?
Sections 39.403(b)(8)(A) and (B), as they apply to the initial
issuance of flexible permits do not meet the requirements in 40 CFR
51.161(a) and (b). Section 39.403 (Public Notice Applicability) fails
to require 30-day public notice and comment on the State's analysis of
the effects on ambient air quality and its proposed approval or
disapproval. PSD and NNSR permit terms and conditions are not revised
with public process required by sections 51.161(a) and (b) and
51.166(q).
VI. Other Public Participation Concerns
A. Cross References to Non-SIP Rules and Regulations
The following provisions cross reference to rules that are not in
the federally approved SIP, nor submitted to EPA for SIP approval:
Section 39.201(a)(1). Cross references to Chapter 30.
Section 39.403(b)(8). Cross reference to State statutory
provisions in THSC section 382.0518 and section 382.055 of the Texas
Health and Safety Code.
Section 39.403(b)(8). Cross references to Chapter 116,
Subchapter G, sections 116.710(a)(2) and (3).
Section 39.403(b)(8)(B). Cross reference to section
116.10(9).
Section 39.409. Cross references to Chapter 50.
Section 39.411(b)(10)--1st sentence. Cross references to
Sec. 39.403(b)(11).
Section 39.413(11). Cross references to section 39.407.
Section 39.419(e)(4). Cross references to Sec. 90.30.
Approving a rule which cross references to a non-SIP provision is
problematic because: (1) It could imply tacit approval of the non-SIP
provision, without EPA's review of the cross referenced provision to
verify whether it meets the requirements of the Act and of 40 CFR part
51; and (2) if the State later revises the cross referenced non-SIP
provision, the revised cross referenced provision could be interpreted
to be enforceable under the SIP even if such provision, as revised,
does not meet the requirements of the Act and of 40 CFR part 51.
Furthermore, there is no demonstration whether these cross referenced
provisions are separable from the rules that are submitted. Texas
should either remove the cross references to the non-SIP provisions or
submit the cross referenced provisions to EPA for SIP approval. Note
that our action on any provision which refers to or implements a
provision that EPA has not approved does not imply EPA proposed
approval of such non-SIP requirement.
B. Use of Undefined Acronyms.
Several sections use the acronyms ``APA'' ``SOAH'' and ``WQMP.''
However, we do not see where these terms are defined.
C. Cross References to Obsolete Provision for Permits by Rule for
Concrete Batch Plants
The following provisions cross reference to public notice provision
for permit by rule for concrete batch plants: section 39.403(a)(3) and
(b)(10); section 39.411(a)(10)(iv)(C); section 39.601; and section
55.152(a)(2). TCEQ has repealed all permits by rule for concrete batch
plants and replaced them with a Standard Permit for concrete batch
plants. This change is discussed in EPA's approval of this action at 71
FR 13549 (March 16, 2006). Texas has not revised these provisions in
Chapters 39 and 55 to reflect the change that EPA approved March 16,
2006.
D. Cross Reference to Section 116.10(9)
Section 39.303(b)(8)(B) cross references section 116.10(9) which is
the definition of ``modification of existing facility'' (later
recodified as section 116.10(11)). Texas submitted this definition in
separate SIP submittals which are currently under review. EPA will
address this definition in a separate action.
E. Alternative Publication Procedures for Small Businesses
Section 39.603(e) provides an alternative requirement to publish a
notice under section 39.603(a)(2)\21\ if the applicant and source meet
the definition of a small business stationary source in section
382.0365 of the Texas Health and Safety Code including, but not
[[Page 72014]]
limited to, those which: are not a major stationary source for federal
air quality permitting; do not emit 50 or more tpy of any regulated
pollutant; do not emit 75 or more tpy of all regulated pollutants; are
owned or operated by a person that employs 100 or fewer individuals;
and if the applicant's site meets emission limits in section 106.4(a),
it will be considered to not have an effect on air quality. If all of
the above conditions are met, the Executive Director may post
information pending permit applications on its Web site, such as the
permit number, project type, facility type, nearest city, county, date
public notice authorized, information on comment periods, and
information on how to contact the agency for further information.
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\21\ Section 39.603(e)(1) refers to Sec. 39.601(a)(2), which is
not in the submitted rule. On July 31, 2002, Texas submitted a
revision to Section 39.603 which revised subsection (e) to refer to
paragraph (c)(2) rather than paragraph (a)(2). EPA is reviewing the
July 31, 2002, SIP submittal and will address this change in a
separate action. Paragraph (c)(2) refers to a different larger
display notice that must be published in the same issue of the
newspaper as the primary notice published under paragraph (c)(1).
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The existing SIP has no provision for alternative public notice for
small businesses. As a relaxation of the existing SIP, we request that
Texas provide a demonstration of how this provision is consistent with
section 110(l) of the Act. Section 30.603(e)(1)(A) refers to a
definition of ``small business stationary source in section 382.0365 of
the Texas Health and Safety Code. For clarity and approvability into
the SIP, Sec. 39.603(e) should be revised to refer to corresponding
provisions of the Texas SIP.
F. Relaxation of Sign Posting Requirements Under Section 39.604
We have identified two provisions which relax the sign posting
requirements of the existing SIP.
Section 39.604(c) includes a provision that the section's
sign posting requirements do not apply to properties under the same
ownership which are noncontiguous and/or separated by intervening
public highway, street, or road, unless directly involved by the permit
application. This exclusion from the sign posting requirements is not
in the existing SIP. As a relaxation of the existing SIP, we request
that Texas provide a demonstration how this provision is consistent
with section 110(l) of the Act.
Section 116.133(f)(1) provides that if the nearest
elementary or middle school has waived out of the requirements of 19
TAC section 89.1205(a) under 19 TAC section 89.1205(g), the alternate
language signs shall be published in the alternate languages in which
the bilingual education program would have been taught had the school
not waived out of the bilingual education program. We do not see where
this provision is included in the revised rules. Because omission of
this provision is a relaxation of the existing SIP, we request that
Texas provide a demonstration how omission of this provision is
consistent with section 110(l) of the Act.
VII. Why are we taking no action on some provisions of the submittal?
A. Provisions Which Implement Section 112(G) of the Act
There are cross references to Chapter 116, Subchapter C\22\ of this
title relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, Sec. 112(g), 40 Code
of Federal Regulations Part 63)) in the following provisions: sections
39.403(b)(9); 39.419(e)(3)(C); and 116.183. In an EPA SIP approval
published September 18, 2002, we addressed the Sec. 112(g) provisions
(then located in Subchapter C of Chapter 116). We stated:
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\22\ These provisions were recodified from Subchapter C to
Subchapter E of Chapter 116 in a SIP revision submitted February 1,
2006. EPA is currently reviewing the February 1, 2006, revisions and
will address this provision in a separate action.
We are taking no action on Subchapter C of Chapter 116--
Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources (FCAA Section 112(g), 40 CFR part 63) as
submitted in 1998. The program for reviewing and permitting
constructed and reconstructed major sources of HAP is regulated
under section 112 of the Act and under 40 CFR part 63, subpart B.
Under these provisions, States establish case-by-case determinations
of maximum achievable control technology for new and reconstructed
sources of HAP. The process for these provisions is carried out
separately from the SIP activities. For the reasons discussed above,
we are not approving Subchapter C of [Chapter] 116 as submitted in
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1998.
67 FR 58699 (September 18, 2002).
Section 112(g) of the Act applies to the review and permitting of
constructed and reconstructed major sources of hazardous air pollutants
(HAP) under Sec. 112 of the Act and 40 CFR part 63, subpart B. The
process for implementing these provisions is carried out separately
from the SIP. Because the requirements under section 112(g) are self-
implementing under section 112 of the Act and under 40 CFR part 63,
subpart B, EPA will take no action on sections 39.403(b)(9),
39.419(e)(3)(C), and 116.183.
B. Provisions Which Do Not Relate to Air Quality Permits
Texas submitted the following provisions to EPA for SIP approval
which do not relate to air quality permits or to provisions that are
not in the approved SIP:
Section 39.411(b)(11)--Applies to radioactive material
licenses under Chapter 336;
Section 39.411(b)(13)--Applies to municipal solid waste
applications;
Section 39.411(b)(14)--Applies to class 3 modifications of
hazardous industrial solid waste permits;
Section 39.411(c)(7)--Applies to radioactive material
licenses under Chapter 336
Section 39.419(d)--Subsection (d) only relates to
subsection (c), which was not submitted;
Because these provisions do not relate to air quality permitting or
to any applicable requirement of the Clean Air Act, they are outside
the scope of the SIP. The TCEQ should withdraw these provisions from
this SIP submittal package. Consequently, EPA will take no action these
provisions.
C. Portions of Chapter 55
The revised rules submitted to EPA include selected provisions from
Chapter 55, Requests for Reconsideration and Contested Case Hearing.
The existing SIP does not contain provisions which implement Texas' air
permitting administrative appeal process. Note that PSD permits issued
by EPA or States with a delegated PSD program provide appeal to the
Environmental Appeals Board under 40 CFR Part 124. EPA interprets the
CAA to require the opportunity for State court review under a State
approved PSD program, as discussed in section V.B. of this notice, but
the Act does not specifically require an administrative appeal process
for an approved SIP PSD program. The requirements under 40 CFR part 124
are not applicable to State approved PSD programs. Therefore, we are
taking no action today on the portions of this SIP submittal that
relate to requests for reconsideration or contested case hearings.
Specifically, we are taking no action today on section 55.1--
Applicability; section 55.21--Requests for Contested Case Hearing,
Public Comment; section 55.101--Applicability; section 55.103--
Definitions; section 55.150--Applicability; section 55.201--Requests
for Reconsideration and Contested Case Hearing; section 55.203--
Determination of Affected Person; section 55.205--Request by Group or
Association; section 55.209--Processing Requests for Reconsideration or
Contested Case Hearing; and section 55.211--Commission Action or
Requests for Reconsideration and Contested Case Hearing.
We propose to grant limited approval and limited disapproval to
Subchapter E of Chapter 55 related to Public Comment and Public
Meetings including sections 55.150--Applicability; section 55.152--
Public
[[Page 72015]]
Comment Period; section 55.154--Public Meetings; section 55.156--Public
Comment Processing.
D. Revisions to Section 116.740--Public Notice
The October 25, 1999, SIP submittal includes revisions to section
116.740--Public Notice in Chapter 116, Subchapter G which relates to
Flexible Permits. This submittal revised earlier SIP submittals of this
section as submitted November 29, 1994, and July 22, 1998. EPA is
currently reviewing the November 29, 1994, and July 22, 1998, SIP
submittals and will propose appropriate action on section 116.740 in a
separate action. EPA will take no action on section 116.740 at this
time.
VIII. Public Comment and Proposed Action
Under the CAA sections 110(k)(3) and 301(a) for the reasons stated
above, EPA is proposing simultaneous limited approval and limited
disapproval of portions of the SIP revisions identified in section II.A
which Texas submitted on December 15, 1995; July 22, 1998; and October
25, 1999. EPA is taking no action on certain sections as identified in
section VII because they are outside the scope of the SIP or because
they revise a prior SIP submittal which is currently under review for
approval or disapproval in a separate action. As discussed in this
proposal, we have identified the following inconsistencies between the
Texas revised rules and minimum Federal requirements for public
participation. In summary, the provisions which preclude full approval
of the revised rules include, but may not be limited to, the following:
A. Provisions Relating to Public Participation for Projects Subject to
Minor NSR
Section 39.419(e) fails to require the State's air quality
analysis and proposed approval or disapproval in the publicly available
information for new or modified minor NSR sources or minor
modifications at major sources,
Section 39.403(b)(8) fails to require any public
participation for a minor NSR permit amendment or minor modification
under section 116.116(b), unless the change involves construction of a
new facility or modification of an existing facility that results in an
increase in allowable emissions equal to or greater than 250 tpy of CO
or NOX; or 25 tpy of VOC or SO2 or
PM10; or 25 tpy of any other air contaminant except carbon
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or
other changes within the discretion of the Executive Director.
Section 39.419(e)(1)(C) fails to require the State's air
quality analysis and proposed approval or disapproval in the publicly
available information, for any permit amendment, modification, or
renewal application of a major or minor source, unless the action would
result in an increase in allowable emissions and would not result in
the emission of an air contaminant not previously emitted.
Section 39.403(b)(8) (Applicability) references to two
State statutory provisions, THSC Section 382.0518 (preconstruction
permit) and section 382.055 (review and renewal of preconstruction
permit) which are not part of the SIP.
B. Provisions Relating to Public Participation for Projects Subject to
PSD
The revised rules do not provide opportunity for a public
hearing for interested persons to appear and submit written or oral
comment on the air quality impact of the source, alternatives to it,
the control technology required, and appropriate considerations and to
provide notice of the opportunity for a public hearing for a PSD
permit.
Public notice of a PSD permit is not required by the
revised rules to contain the degree of increment consumption that is
expected from the source or modification.
There is no requirement in the revised rules that a copy
of the public notice of a PSD permit to be sent to State and local air
pollution control agencies, the chief executives of the city and county
where the source would be located and any State or Federal Land Manager
or Indian Governing Body whose lands may be affected by emissions from
the source or modification.
There is no requirement in the revised rules that response
to comments be available prior to final action on the PSD permit.
There is no definition of a final appealable decision for
a PSD permit in the revised rules. We request further information about
how and when the commenters are informed of the Agency's final decision
and how commenters are informed of access to response to comments and
timing for judicial appeal, in order to provide an opportunity for
State court judicial review.
C. Provisions Relating to Public Participation for Projects Subject to
PALs
There is no requirement in the revised rules that PALs be
established, renewed, or increased through a procedure that is
consistent with 40 CFR 51.160 and 51.161, including the requirement
that the reviewing authority provide the public with notice of the
proposed approval of a PAL permit and at least a 30-day period for
submittal of public comment, consistent with the Federal PAL rules at
40 CFR 51.166(w)(5) and (11).
There is no requirement in the revised rules that the
State address all material comments before taking final action on the
PAL permit, consistent with 40 CFR 51.166(w)(5).
There is no reference to PALs in the applicability section
in Chapter 39.403.
D. Provisions Relating to Public Participation for Projects Subject to
Flexible Permits
For initial issuance of a flexible permit to establish a
minor NSR applicability cap or an increase in a flexible permit cap,
there is no requirement in the revised rules for 30-day notice and
comment on information submitted by the owner or operator and the
agency's analysis of the effect of the permit on ambient air quality,
including the agency's proposed approval or disapproval.
Where PSD and NNSR terms and conditions are modified or
eliminated when the permit is incorporated into a flexible permit,
there is no requirement in the revised rules for public participation
consistent with 40 CFR 51.161 and 51.166(q).
E. Other Concerns
The issues identified in section VII of this preamble.
We are proposing simultaneous limited approval and limited
disapproval of the revised rules because we have determined that the
rules strengthen the existing SIP, but do not meet the minimum public
participation requirements of the Act and our regulations. We request
comments on this proposal. After review and response to public comment,
EPA plans to take final action on the revised rules. Final limited
approval would incorporate the revised rules identified in section II
into the Texas SIP and the new public participation rules would become
fully federally enforceable. Final limited disapproval would make a
finding of how the revised rules fail to meet minimum criteria
established by the Act and our regulations. If EPA determines that, for
rules required by the CAA, the deficiencies forming the basis of final
limited disapproval have not been corrected, the Agency may apply the
sanctions listed in section 179(b) of the Act and 40 CFR 52.31 within
18 months of the finding. If the State submits an
[[Page 72016]]
approvable rule revision within 18 months of such a finding, EPA may
take interim final action, effective upon publication, to stay the
sanctions prior to proposing approval and taking comment on the
submittal. Also, a FIP may be promulgated under section 110(c)(1) of
the Act, if EPA finds that a SIP revision does not satisfy the minimum
criteria established under section 110(k)(2) of the CAA. The FIP may be
adopted at any time within 2 years of such a finding, unless the State
corrects the deficiency and EPA approves the revision before the FIP is
promulgated. Final approval of the revision correcting the identified
deficiencies would terminate imposition of the FIP.
We will accept comments on this proposal for the next 60 days.
After review of public comments, we intend to publish a rule to
promulgate final limited approval and final limited disapproval of the
provisions identified above into the Texas SIP.
IX. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 18, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E8-28162 Filed 11-25-08; 8:45 am]
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