Fed Reg Proposal

Federal Register / Vol. 73, No.
229 / Wednesday, November 26, 2008 / Proposed Rules 72001
rule would have an insignificant § 17.62 [Amended] facility does not meet one or more of the
economic impact on a few small 2. Amend § 17.62 by removing standards in 38 CFR 17.63, provided
entities. The proposed rule would likely paragraph (b) and redesignating that the deficiencies do not jeopardize
affect fewer than 100 of the 2,800 paragraphs (c) through (g) as paragraphs the health or safety of the residents, and
community residential care facilities (b) through (f), respectively. that the facility management and VA
approved for referral of veterans under 3. Amend § 17.63 by: agree to a plan of correcting the
the regulations. Also, the additional a. In paragraph (a)(2), removing deficiencies in a specified amount of
costs for compliance with the proposed ‘‘Office of Regulations Management time. A provisional approval shall not
rule would constitute an (02D). Room 1154,’’ and adding, in its be for more than 12 months and shall
inconsequential amount of the place, ‘‘Office of Regulation Policy and not be for more time than VA
operational costs of such facilities. Management (02REG), Room 1068,’’ and determines is reasonable for correcting
Accordingly, pursuant to 5 U.S.C. by revising the first sentence. the specific deficiencies.
605(b), this rule is exempt from the b. Revising paragraph (a)(3). (c) An approval may be changed to a
initial and final regulatory flexibility c. Removing and reserving paragraph provisional approval or terminated
analysis requirements of sections 603 (b). under the provisions of §§ 17.66 through
and 604. d. In paragraph (g), removing 17.71 because of a subsequent failure to
‘‘specified in the statement of needed meet the standards of § 17.63 and a
Catalog of Federal Domestic Assistance
care’’. provisional approval may be terminated
The Catalog of Federal Domestic e. In paragraph (i), removing under the provisions of §§ 17.66 through
Assistance numbers and titles for the paragraph (i)(2)(i) and redesignating 17.71 based on failure to meet the plan
programs affected by this document are paragraphs (i)(2)(ii) and (i)(2)(iii) as of correction or failure otherwise to
64.005, Grants to States for Construction paragraphs (i)(2)(i) and (i)(2)(ii), meet the standards of § 17.63.
of State Home Facilities; 64.007, Blind respectively. (Authority: 38 U.S.C. 1730.)
Rehabilitation Centers; 64.008, Veterans The revisions read as follows:
[FR Doc. E8–28122 Filed 11–25–08; 8:45 am]
Domiciliary Care; 64.009, Veterans § 17.63 Approval of community residential BILLING CODE 8320–01–P
Medical Care Benefits; 64.010, Veterans care facilities.
Nursing Home Care; 64.011, Veterans
* * * * *
Dental Care; 64.012, Veterans
(a) * * * ENVIRONMENTAL PROTECTION
Prescription Service; 64.013, Veterans
(2) Meet the requirements of chapters AGENCY
Prosthetic Appliances; 64.014, Veterans
1–11, 32–33, and 43 and Appendix A of
State Domiciliary Care; 64.015, Veterans
the NFPA 101, the National Fire 40 CFR Part 52
State Nursing Home Care; 64.016,
Protection Association’s Life Safety
Veterans State Hospital Care; 64.018, [EPA–R06–OAR–2007–0209; FRL–8745–5]
Code (2006 edition), and NFPA 101A,
Sharing Specialized Medical Resources;
Guide on Alternative Approaches to Life
64.019, Veterans Rehabilitation Alcohol Approval and Promulgation of
Safety (2007 edition). * * *
and Drug Dependence; 64.022, Veterans Implementation Plans; Texas;
(3) Have safe and functioning systems
Home Based Primary Care. Revisions to Chapters 39, 55, and 116
for heating and/or cooling, as needed (a
List of Subjects in 38 CFR Part 17 heating or cooling system is deemed to Which Relate to Public Participation on
be needed if VA determines that, in the Permits for New and Modified Sources
Administrative practice and county, parish, or similar jurisdiction
procedure, Alcohol abuse, Alcoholism, AGENCY: Environmental Protection
where the facility is located, a majority Agency (EPA).
Claims, Day care, Dental health, Drug of community residential care facilities
abuse, Foreign relations, Government ACTION: Proposed rule.
or other extended care facilities have

contracts, Grant programs—health, one), hot and cold water, electricity, SUMMARY: EPA is proposing
Grant programs—veterans, Health care, plumbing, sewage, cooking, laundry, simultaneous limited approval and
Health facilities, Health professions, artificial and natural light, and limited disapproval of revisions to the
Health records, Homeless, Incorporation ventilation. applicable implementation plan for the
by reference, Medical and dental
* * * * * State of Texas which relate to public
schools, Medical devices, Medical
participation on air permits for new and
research, Mental health programs, § 17.64 [Removed] modified sources. With noted
Nursing homes, Philippines, Reporting 4. Remove and reserve § 17.64. exceptions, this proposed limited
and recordkeeping requirements, 5. Revise § 17.65 to read as follows: approval and limited disapproval affects
Scholarships and fellowships, Travel
portions of SIP revisions submitted by
and transportation expenses, Veterans. § 17.65 Approvals and provisional
approvals of community residential care Texas on December 15, 1995; July 22,
Approved: September 19, 2008. 1998; and the SIP revisions submitted
facilities.
James B. Peake, October 25, 1999. EPA is taking
(a) An approval of a facility meeting
Secretary of Veterans Affairs.
all of the standards in 38 CFR 17.63 comments on this proposal and plans to
based on the report of a VA inspection follow with a final action.
For the reasons set out in the
and any findings of necessary interim DATES: Any comments must arrive by
preamble, VA proposes to amend 38
CFR part 17 as set forth below: monitoring of the facility shall be for a January 26, 2009.
12-month period. ADDRESSES: Submit your comments,
jlentini on PROD1PC65 with PROPOSALS
PART 17—MEDICAL (b) The approving official, based on identified by Docket ID No. EPA–R06–
the report of a VA inspection and on OAR–2007–0209, by one of the
1. The authority citation for part 17 any findings of necessary interim following methods:
continues to read as follows: monitoring of the facility, may provide • Federal eRulemaking Portal: http://
Authority: 38 U.S.C. 501, 1721, and as a community residential care facility www.regulations.gov. Follow the on-line
stated in specific sections. with a provisional approval if that instructions for submitting comments.
VerDate Aug<31>2005 17:02 Nov 25, 2008 Jkt 217001 PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 E:\FR\FM\26NOP1.SGM 26NOP1
72002 Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules
• U.S. EPA Region 6 ‘‘Contact Us’’ not publicly available, e.g., CBI or other Table of Contents
Web site: http://epa.gov/region6/ information whose disclosure is I. What regulations did Texas submit for
r6coment.htm. Please click on ‘‘6PD’’ restricted by statute. Certain other inclusion into the SIP?
(Multimedia) and select ‘‘Air’’ before material, such as copyrighted material, II. What are we proposing?
submitting comments. will be publicly available only in hard III. How do the revised rules strengthen the
• E-mail: Mr. Stanley M. Spruiell at copy. Publicly available docket existing SIP?
spruiell.stanley@epa.gov. IV. What are the rule deficiencies?
materials are available either V. Do Texas’ public participation rules meet
• Fax: Mr. Stanley M. Spruiell, Air electronically in http:// federal requirements?
Permits Section (6PD–R), at fax number www.regulations.gov or in hard copy at VI. Other Public Participation Concerns
214–665–7263. the Air Permits Section (6PD–R), VII. Why are we taking no action on some
• Mail: Stanley M. Spruiell, Air Environmental Protection Agency, 1445 provisions of the submittal?
Permits Section (6PD–R), Environmental Ross Avenue, Suite 700, Dallas, Texas VIII. Public Comment and Proposed Action
Protection Agency, 1445 Ross Avenue, 75202–2733. The file will be made IX. Statutory and Executive Order Reviews
Suite 1200, Dallas, Texas 75202–2733. available by appointment for public I. What regulations did Texas submit
• Hand or Courier Delivery: Stanley inspection in the Region 6 FOIA Review for inclusion into the SIP?
M. Spruiell, Air Permits Section (6PD– Room between the hours of 8:30 a.m.
R), Environmental Protection Agency, On October 25, 1999, Texas submitted
and 4:30 p.m. weekdays except for legal revisions to Chapters 39, 55, and 116
1445 Ross Avenue, Suite 1200, Dallas, holidays. Contact the person listed in
Texas 75202–2733. Such deliveries are which include rules that relate to public
the FOR FURTHER INFORMATION CONTACT participation on air permits for
accepted only between the hours of 8
paragraph below to make an authorization of new and modified
a.m. and 4 p.m. weekdays except for
appointment. If possible, please make sources, including amendments and
legal holidays. Special arrangements
the appointment at least two working renewals. In addition, portions of the
should be made for deliveries of boxed
days in advance of your visit. There will submittals dated December 15, 1995,
information.
Instructions: Direct your comments to be a 15 cent per page fee for making and July 22, 1998, contain provisions
Docket ID No. EPA–R06–OAR–2007– photocopies of documents. On the day relevant to this action. Hereafter, we
0209. EPA’s policy is that all comments of the visit, please check in at the EPA refer to these submittals as the ‘‘revised
received will be included in the public Region 6 reception area at 1445 Ross rules.’’ These SIP packages include the
docket without change and may be Avenue, Suite 700, Dallas, Texas. following rules:
made available online at http:// The State submittals are also available A. The December 15, 1995, submittal
www.regulations.gov, including any for public inspection at the State Air includes Texas’ submittal of section
personal information provided, unless Agency listed below during official 116.312—Public Notification and
the comment includes information business hours by appointment: Comment Procedures. Section II.A of
claimed to be Confidential Business Texas Commission on Environmental this preamble contains additional
Information (CBI) or other information Quality, Office of Air Quality, 12124 information on the December 15, 1995,
whose disclosure is restricted by statute. Park 35 Circle, Austin, Texas 78753. submittal.
Do not submit information that you FOR FURTHER INFORMATION CONTACT: Mr.
B. The July 22, 1998, submittal
consider to be CBI or otherwise Stanley M. Spruiell, Air Permits Section includes Texas’ submittal of repeal and
protected through http:// (6PD–R), Environmental Protection readoption (with nonsubstantive
www.regulations.gov or e-mail. The Agency, Region 6, 1445 Ross Avenue, revisions) of section 116.312—Public
http://www.regulations.gov Web site is Suite 700, Dallas, Texas 75202–2733, Notification and Comment Procedures.
an ‘‘anonymous access’’ system, which telephone (214) 665–7212; fax number Section II.A of this preamble contains
means EPA will not know your identity 214–665–7263; e-mail address additional information on the July 22,
or contact information unless you spruiell.stanley@epa.gov. 1998, submittal.
provide it in the body of your comment. C. The October 25, 1999, submittal
If you send an e-mail comment directly SUPPLEMENTARY INFORMATION: includes the following revisions related
to EPA without going through http:// Throughout this document, the to this action. Section II.A of this
www.regulations.gov your e-mail following terms have the meanings preamble contains additional
address will be automatically captured described below: information on the October 25, 1999,
and included as part of the comment • ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. submittal.
that is placed in the public docket and • ‘‘NSR’’ means new source review. • New rules affecting Chapter 39—
made available on the Internet. If you • ‘‘PSD’’ means prevention of Public Notice 1—are as follows: Section
submit an electronic comment, EPA significant deterioration of air quality, 39.201—Application for a
recommends that you include your as established under 40 CFR 51.166. Preconstruction Permit; section
name and other contact information in 39.401—-Purpose; section 39.403—
• ‘‘NNSR’’ means nonattainment area
the body of your comment and with any Applicability; section 39.405—General
new source review.
disk or CD–ROM you submit. If EPA Notice Provisions; section 39.409—
• ‘‘Act’’ and ‘‘CAA’’ mean the Clean Deadline for Public Comment, Requests
cannot read your comment due to Air Act.
technical difficulties and cannot contact for Reconsideration, contested Case
you for clarification, EPA may not be • ‘‘SIP’’ means State Implementation Hearing, or Notice and Comment
able to consider your comment. Plan. Hearing; section 39.411—Text of Public
Electronic files should avoid the use of • ‘‘TSD’’ means Technical Support Notice; section 39.413—Mailed Notice;
special characters, any form of Document for this action. section 39.418—Notice of Receipt of
• ‘‘PAL’’ means Plantwide
encryption, and be free of any defects or Application and Intent to Obtain Permit;
viruses. Applicability Limitation, as established
Docket: All documents in the docket under 40 CFR 51.165(f) or 51.166(w). 1 Texas submitted subsequent revisions to
Chapter 39 on July 31, 2002; and March 9, 2006.

are listed in the http:// • ‘‘NAAQS’’ means National Ambient These changes are parts of separate SIP revisions
www.regulations.gov index. Although Air Quality Standards, as established which are currently under review. EPA will address
listed in the index, some information is under 40 CFR part 50. these changes to Chapter 39 in separate actions.
Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules 72003
section 39.419—Notice of Application permit renewals, was amended to • Initial issuance of flexible permits
and Preliminary Determination; section replace cross references to the public under Chapter 116, Subchapter G, and
39.420—Transmittal of the Executive notification procedures in sections amendments to flexible permits under
Director’s Response to Comments and 116.130 through 116.137 with a cross Sections 116.710(a)(2) and (3) that
Decision; section 39.423—Notice of reference to applicable procedure in involve construction of a new facility,
Contested Case Hearing; section Chapter 39. modification of an existing facility that
39.601—Applicability; section 39.602— The revised rules will replace the results in an increase in allowable
Mailed Notice; section 39.603— existing SIP rules for public emissions equal to or greater than 250
Newspaper Notice; section 39.604— participation for air quality permits tpy of CO or NOX; or 25 tpy of VOC or
Sign-Posting; and section 39.605— declared administratively complete on SO2 or PM10; or 25 tpy of any other air
Notice to Affected Agencies. or after September 1, 1999. The Texas contaminant except carbon dioxide,
• New rules affecting Chapter 55— public participation procedures were water, nitrogen, methane, ethane,
Requests for Reconsideration and previously located in the subchapter of hydrogen, and oxygen or other changes
Contested Case Hearing—are as follows: the SIP applicable to each type of within the discretion of the Executive
Section 55.1—Applicability; section permitting action. Chapter 39 of the Director.5 See section 39.403(8).
55.21—Requests for Contested Case Texas Administrative Code (TAC) • Applications for construction or
Hearing, Public Comment; section consolidates public participation reconstruction subject to Chapter 116,
55.101—Applicability; section 55.103— requirements for most air quality Subchapter C for hazardous air
Definitions; section 55.150— permitting actions (as well as permits pollutants.6 See section 39.403(9).
Applicability; section 55.152—Public issued under other environmental • Concrete batch plants under
Comment Period; section 55.154— statutes). Applicability of the rules in Chapter 106 unless the facility is to be
Public Meetings; section 55.156—Public Chapter 39 to different types of air temporarily located in or contiguous to
Comment Processing; section 55.200— permits is determined by the general the right of way of a public works
Applicability; section 55.201—Requests applicability statement in subchapter H. project. See section 39.403(10).7
for Reconsideration and Contested Case Additional requirements that are • The Chapter 39 requirements also
Hearing; section 55.203—Determination specific to air quality permits are found apply to PALs through a cross-reference
of Affected Person; section 55.205— in subchapter K. Section 39.403(b) lists at section 116.194.
Request by Group or Association; the types of air quality permits subject II. What are we proposing?
section 55.209—Processing Requests for to the public participation requirements
Reconsideration or Contested Case in Chapter 39: A. Our Proposal
Hearing; and section 55.211— • Air quality permits under Texas We have evaluated the revised rules
Commission Action or Requests for Health and Safety Code (THSC), Section for enforceability and consistency with
Reconsideration and Contested Case 382.0518 (preconstruction permit) and the CAA, 40 CFR Part 51, and EPA
Hearing. Section 382.055 (review and renewal of policy and guidance. We have
• Rules revisions affecting Chapter preconstruction permit).2 See section determined that the revised rules
116—Control of Air Pollution by 39.403(8). contain some provisions that meet or
Permits for New Construction and • Applications for permit exceed federal requirements. We have
Modification are—as follows: Section amendments to air quality permits also determined that some provisions
116.111—General Application; section under Section 116.116(b) (changes to are not consistent with federal
116.114—Application Review Schedule; facilities) that involve construction of a requirements and therefore, are not fully
section 116.116—Changes to Facilities; new facility; modification of an existing approvable. The deficient provisions of
section 116.183—Public Notice facility (as defined in Section 116.10) 3 the revised rule are not separable from
Requirements; section 116.312—Public
that results in an increase in allowable the remainder of the rule. As authorized
Notification and Comment Procedures;
emissions equal to or greater than 250 in sections 110(k)(3) and 301(a) of the
and section 116.740—Public Notice.
• Texas submitted repeal of the tons per year (tpy) of carbon monoxide Act, we are proposing simultaneous
following regulation: section 116.124— (CO) or nitrogen oxides (NOX); or 25 tpy limited approval and limited
Public Notice of Compliance History. of volatile organic compounds (VOC) or disapproval of the revised rules. We are
The existing SIP-approved regulations sulfur dioxide (SO2) or inhalable proposing limited approval because the
which relate to public participation for particulate matter (PM10); or 25 tpy of rules, as a whole, strengthen the existing
air quality permits are as follows: any other air contaminant except carbon SIP and facilitate enforcement of the
Sections 116.130—Applicability; dioxide, water, nitrogen, methane, State’s public participation
116.131—Public Notification ethane, hydrogen, and oxygen; or other requirements. We are simultaneously
Requirements; 116.132—Public Notice changes within the discretion of the proposing limited disapproval because
Format; 116.133—Sign Posting Executive Director.4 See section the provisions identified in section IV of
Requirements; 116.134—Notification of 39.403(8).
Affected Agencies; 116.136—Public NOX; or 25 tpy of VOC or SO2 or PM10; or 25 tpy
2 Section 382.0518 and section 382.055 of the of any other air contaminant except carbon dioxide,
Comment Procedures; and 116.137— THSC currently apply to permit applications, water, nitrogen, methane, ethane, hydrogen, and
Notification of Final Agency Action. modifications and renewals under Chapter 116 of oxygen.
These regulations will now apply to air the Texas SIP for minor and major new source 5 Note that this provision also refers to the
quality permits declared review permits. emission quantities defined in Section 106.4 of the
3 Note that EPA has not acted on the definition SIP.
administratively complete before
of ‘‘modification of an existing facility’’ at section 6 The provisions of Subchapter C were later
September 1, 1999. EPA proposes to add 116.10 and so it is not currently part of the recodified into Subchapter E in a separate SIP
a notation, in addition to the approved SIP. submittal. We will address this recodification in a
applicability statement at section 39.403 4 Section 39.403(b)(8) refers to emission separate action. Also see section VII.A of this
of the revised rule, to this effect to the quantities defined in section 106.4(a)(1) of this title document for further discussion on the provision
(relating to Requirements for Permitting by Rule) for for hazardous air pollutants.
existing SIP. In addition, section sources defined in sections 106.4(a)(2) and (3). The 7 See discussion in section VI.G of this preamble
116.312—Public Notification and defined emission quantities in Section 106.4 are for further information on public notice for concrete
Comment Procedures, which applies to emissions equal to or greater than 250 tpy of CO or batch plants.
this preamble are not consistent with action on Texas’ NSR PAL, flexible consolidate public participation
applicable federal requirements. Final permit, qualified facility or NSR reform requirements applicable to the pending
limited approval will incorporate the rules, however some of the rules we are rules. Final action on the revised rule
revised rule in its entirety into the Texas considering today are applicable to will facilitate review of the pending
SIP. We are not acting on the provisions them. These other rules will be rules.8
of the submittal discussed in section VII reviewed in separate actions. Our action
Except where noted below, EPA
of this notice. Note that some of the on any provision of this rule which
public participation rules we are refers to or implements a provision that proposes limited approval and limited
considering today apply to other rules EPA has not approved does not imply disapproval (LALD) of the following
that have not yet been approved into the EPA proposed action on the pending regulations:
SIP. For example, we have not proposed rule. The Chapter 39 revised rules
State submittal
State citation Title Current SIP status Type of SIP revision Proposed action
dates
Chapter 39—Public Notice
Subchapter D—Public Notice of Air Quality Permits
Section 39.201 .............. Application for a Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Preconstruction
Permit.
Subchapter H—Applicability and General Provisions
Section 39.401 .............. Purpose ....................... Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Section 39.403 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule State did not LALD. The SIP will not
submit paragraphs include paragraphs
(b)(1) through (b)(7). (b)(1) through (b)(7)
No action on para and (b)(9).
graph (b)(9). See
section VII.
Section 39.405 .............. General Notice Provi Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
sions. submit subsections include subsections
(a) through (e) and (a) through (e) and
paragraph (f)(2). paragraph (f)(2).
Section 39.409 .............. Deadline for Public Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Comment, Requests
for Reconsideration,
Contested Case
Hearing, or Notice of
Comment Hearing.
Section 39.411 .............. Text of Public Notice ... Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
submit paragraph include paragraphs
(b)(7). (b)(7), (b)(11),
No action on para (b)(13), (b)(14), and
graphs (b)(11), (c)(7).
(b)(13), (b)(14), and
(c)(7). See section
VII.
Section 39.413 .............. Mailed Notice .............. Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
submit paragraphs include paragraphs
(1) through (8), (10), (1) through (8), (10),
and (13). and (13).
Section 39.418 .............. Notice of Receipt of Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
Application and In- submit paragraphs include paragraphs
tent to Obtain Permit. (b)(1) through (b)(2). (b)(1) through (b)(2).
Section 39.419 .............. Notice of Application Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
and Preliminary De- submit subsection (c). include subsection
termination. (c).
Section 39.420 .............. Transmittal of Execu Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
tive Director’s Re submit paragraph include paragraph
sponse to Comments (c)(2) and subsection (c)(2) and subsection
and Decision. (e). (e).
Section 39.423 .............. Notice of Contested Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Case Hearing.
Subpart K—Public Notice for Air Quality Permits

Section 39.601 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Section 39.602 .............. Mailed Notice .............. Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Section 39.603 .............. Newspaper Notice ....... Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
8 See letter in the docket for this action from EPA Region 6, dated June 13, 2008, noting that necessary to resolve issues in another pending SIP
Glenn Shankle, Executive Director of TCEQ, to action on TCEQ’s public participation rule was submission.
Larry Starfield, Deputy Regional Administrator for
State submittal
dates
Section 39.604 .............. Sign-Posting ................ Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Section 39.605 .............. Notice to Affected Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Agencies.
Chapter 55—Requests for Reconsideration and Contested Case Hearing
Subchapter A—Applicability
Section 55.1 .................. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
VII.
Subchapter B—Requests, Public Comment
Section 55.21 ................ Requests for Con Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
tested Case Hearing, VII.
Public Comment.
Subchapter D—Applicability and Definitions
Section 55.101 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
VII.
Section 55.103 .............. Definitions ................... Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
VII.
Subchapter E—Public Comment and Public Meetings
Section 55.150 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Section 55.152 .............. Public Comment Pe Not in existing SIP ...... 10/25/99 New rule. State did not LALD. The SIP will not
riod. submit paragraphs include paragraphs
(a)(3) through (a)(5). (a)(3) through (a)(5).
Section 55.154 .............. Public Meetings ........... Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
Section 55.156 .............. Public Comment Proc Not in existing SIP ...... 10/25/99 New rule ...................... LALD.
essing.
Subchapter F—Requests for Reconsideration and Contested Case Hearing; Public Comment
Section 55.200 .............. Applicability ................. Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
VII.
Section 55.201 .............. Requests for Reconsid Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
eration and Con VII.
tested Case Hearing.
Section 55.203 .............. Determination of Af Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
fected Person. VII.
Section 55.205 .............. Request by Group or Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
Association. VII.
Section 55.209 .............. Processing Requests Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
for Reconsideration VII.
or Contested Case
Hearing.
Section 55.211 .............. Commission Action on Not in existing SIP ...... 10/25/99 New rule ...................... No action. See section
Requests for Recon VII.
sideration and Con
tested Case Hearing.
Chapter 116—Control of Air Pollution by Permits for New Construction or Modification
Subchapter B—New Source Review Permits
Division 1—Permit Application
Section 116.111 ............ General Application ..... In existing SIP as ap 10/25/99 Redesignated pre-ex LALD to add new sub
proved 8/28/07, 72 isting text as sub section (b). The SIP
FR 41998. section (a). This will not include para
The existing SIP does change was ap graph (a)(2)(K).
not include para proved 9/6/06, 71 FR
graph (a)(2)(K) and 52664.
subsection (b). Added new subsection
(b).
Section 116.114 ............ Application Review In existing SIP as ap 10/25/99 Revision to paragraphs LALD for all submitted
Schedule. proved 9/18/02, 67 (a)(2), (b)(1), and SIP revisions.
FR 58709. (b)(2); and the addi
tion of new sub
section (c).
State submittal
dates
Section 116.116 ............ Changes to Facilities .. In existing SIP as ap 10/25/99 Revised subsection (d) LALD for addition of
proved 11/14/03, 68 and paragraphs paragraph (b)(4).
FR 64548. (d)(1) and (d)(2). The SIP will not in
The existing SIP does This change was ap clude paragraph
not include sections proved 11/14/03, 68 (b)(3) and sub
116.116(b)(3), (b)(4), FR 64548. sections (e) through
(e), and (f). Added new paragraph (f).
(b)(4).
Division 2—Compliance History
Section 116.124 ............ Public Notice of Com In existing SIP as ap 10/25/99 Section repealed ......... Removal of section
pliance History Sec proved 9/18/02, 67 116.124 from the
tion. FR 58709. SIP.
Subchapter C—Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, § 112(g), 40 CFR
Part 63)
Section 116.183 ............ Public Notice Require Not in existing SIP ...... 7/22/98 EPA took no action on No action on revision
ments. section 116.183 as to section 116.183
submitted 7/22/98. as submitted 10/25/
See 67 FR 58699 (9/ 99. See section VII.
18/02).
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 Notification and In existing SIP as ap 12/15/95 and 7/22/98 submittal re- LALD for changes sub-
Comment Proce proved 3/10/06, 71 7/22/98 pealed and revised mitted 12/15/95, 7/
dures. FR 12285. pre-existing section. 22/98, and 10/25/99.
Changes were non-
substantive house
keeping changes to
include cross ref
erences 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 SIP ...... 10/25/99 Revised to change No action. See section
cross reference from VII.
Chapter 116 to
Chapter 39.
B. What is limited approval and limited A limited approval action applies to implementation plan (FIP) clock. Under
disapproval? the entire rule because EPA finds that section 179(a), if EPA disapproves a
approval of the entire rule will submittal of a requirement under the
Under section 110(k)(3) of the CAA, strengthen the State’s SIP. In proposing CAA, based on the submittal’s failure to
EPA may fully approve or fully a limited approval, EPA simultaneously meet one or more of the elements
disapprove a State submittal. Where proposes a limited disapproval of the required by the Act, the sanctions set
portions of the State submittal are submittal because it contains forth in section 179(b) become
separable, EPA may approve the deficiencies and, as such, does not fully applicable, unless the deficiency has
portions of the submittal that meet the meet all of the requirements of the Act. been corrected within 18 months of
requirements of the CAA, and Under a final limited approval, the disapproval. Section 179(b) of the Act
disapprove the portions of the submittal State’s entire submittal is incorporated and 40 CFR 52.31 of our regulations
that do not meet the requirements of the into the SIP and becomes fully federally provide two sanctions available to the
CAA. When a submittal is not separable, enforceable. Where the submittal Agency: increasing the offset
EPA can adopt a limited approval and addresses a mandatory requirement of requirements and withholding highway
limited disapproval consistent with the Act, final limited disapproval starts funding. Moreover, the final limited
section 301(a) and 110(k)(3) of the Act. a sanctions clock and a federal disapproval may trigger a 24-month
clock to adopt a FIP requirement under permit or permit amendment for which or other changes within the discretion of
section 110(c). If the State submits an a contested case hearing is requested by the Executive Director.
approvable rule revision during the an affected person in response to the • Under section 39.419(e)(1)(C), for
sanction clock period, EPA may propose Notice of Receipt of Application and any amendment, modification, or
approval of the rule and take interim Intent to Obtain a Permit. See section renewal of a major or minor source
final action, effective upon publication, 39.419. which requires a permit application, the
to stay the sanctions. Final approval of • Note also that the Texas rule rules do not require public notice and
the rule revision correcting the contains some provisions that exceed the opportunity for comment on the
deficiency terminates the FIP clock. federal requirements, such as sign State’s analysis of the effect of
posting (section 39.604), a ‘‘display construction or modification on ambient
III. How do the revised rules strengthen type’’ newspaper notice (section air quality, including the agency’s
the existing SIP? 39.603(c)(2)), and alternate language proposed approval or disapproval, as
The SIP revisions submitted on notice in newspaper and sign posting required by 40 CFR 51.161(a) and (b), if
December 15, 1995; July 22, 1998; and (sections 39.405(h) and 39.604(e)). the amendment, modification, or
October 25, 1999, as a whole, strengthen renewal would not result in an increase
the SIP compared to the corresponding IV. What are the rule deficiencies?
in allowable emissions and would not
provisions in the existing SIP. Below is Notwithstanding the fact that these result in the emission of an air
a summary of some revisions that rules strengthen the existing SIP, they contaminant not previously emitted
strengthen the SIP. The TSD includes do not meet all of the minimum unless the application involves a facility
detailed analyses of how the SIP is applicable federal requirements that for which the applicant’s compliance
strengthened. relate to public participation. Each history contains violations that are
• The general requirement for notation below is discussed in detail in unresolved and that constitute a
publishing notice in section 116.130(a) Section V. recurring pattern of egregious conduct
was changed by section 39.418 to which demonstrates a consistent
A. New or Modified Minor NSR Sources
provide a uniform time for publication disregard for the regulatory process,
of the notice of the application (within Generally, the minor NSR public including the failure to make a timely
30 days of determination of participation rules identified below do and substantial attempt to correct the
administrative completeness). not require any initial public violations.
• Previously, permit amendments participation for some permitting • Also, section 39.403(b)(8),
were subject to notice at the discretion actions or do not require the TCEQ to Applicability, of the revised rule refers
of the Executive Director of TCEQ, provide the agency’s air quality analysis to two State statutory provisions, THSC
without specific criteria included in the and proposal to approve or disapprove section 382.0518 (preconstruction
rule (section 116.130(a)). This provision the permit in other permitting actions. permit) and section 382.055 (review and
was removed, thus requiring notice of • Under section 39.419(e), for new or renewal of preconstruction permit). For
amendment applications (section modified minor NSR sources or minor clarity and for approvability into the
39.403(b)(8)). modifications at major sources, the rules SIP, section 39.403(b) should be revised
• Previously, a copy of the do not require public notice and the to refer to the corresponding sections of
application was required to be available opportunity for comment on the State’s the Texas SIP.
for public inspection in Austin, TX, and analysis of the effect of construction or
the appropriate regional offices of the modification on ambient air quality, B. Projects Subject to PSD
TCEQ (sections 116.131(b) and including the agency’s proposed The revised rules do not contain the
116.132(7)). The revised rules also approval or disapproval, as required by following requirements for projects
require a copy of the notice to be placed 40 CFR 51.161(a) and (b), unless a subject to the regulations for PSD:
in a public place, available for contested case hearing is requested and • For a new or modified source
inspection and copying, in the not withdrawn after notice of subject to PSD, the revised rules do not
municipality in or nearest to the application and intent to obtain a permit require the TCEQ to provide an
location of the facility that is the subject is published. opportunity for a public hearing for
of the application. See section 39.405. • Under section 39.403(b)(8), for a interested persons to appear and submit
• The revised rules add the minor NSR permit amendment or minor written or oral comment on the air
opportunity to request a public meeting modification under section 116.116(b), quality impact of the source,
and allow the Executive Director to (where there is a change in the method alternatives to it, the control technology
determine whether significant public of control of emissions; a change in the required, and appropriate
interest exists to hold a public meeting. character of the emissions; or an considerations and to provide notice of
If held, a written response is provided increase in the emission rate of any air the opportunity for a public hearing, as
to oral comments made together with contaminant) the existing SIP requires required by 40 CFR 51.166(q)(v) and
any timely written comments. In the permit holder to apply for and section 165(a)(2) of the Act.
addition, this response to comments receive approval of a permit • For a new or modified source
(RTC) is considered by the Commission amendment. However, the revised rules subject to PSD, the revised rules do not
if it considers any contested case do not require any public participation require that the public notice of a PSD
hearing requests in a Commission as required by 40 CFR 51.161(a) and (b) permit contain the degree of increment
Meeting. The RTC is provided to all unless the change involves construction consumption that is expected from the
commenters and persons who request to of a new facility or modification of an source or modification as required by 40
be on a mailing list related to the existing facility that results in an CFR 51.166(q)(iii) and CAA section
application. See sections 39.420, 55.152, increase in allowable emissions equal to 165(a)(2).
55.154, and 55.156. or greater than 250 tpy of CO or NOX; • For a new or modified source
• Notice of preliminary decision and or 25 tpy of VOC or SO2 or PM10; or 25 subject to PSD, the revised rules do not
draft permit was extended from tpy of any other air contaminant except require a copy of the public notice of a
applying only to NNSR and PSD permits carbon dioxide, water, nitrogen, PSD permit to be sent to State and local
(see section 116.132(a)(6)) to any minor methane, ethane, hydrogen, and oxygen air pollution control agencies, the chief
executives of the city and county where flexible permit, the rules do not require The minor NSR program is also
the source would be located and any public participation consistent with 40 important as a tool to implement
State or Federal Land Manager or Indian CFR 51.161 and 51.166(q). changes related to major NSR, such as
Governing Body whose lands may be to adopt enforceable limitations on
V. Do Texas’s public participation rules
affected by emissions from the source or hours of operation and rates of
meet federal requirements?
modification, as required by 40 CFR production or the installation of
51.166(q)(iv). A. Minor NSR Regulatory Requirements pollution control equipment to limit
• For a new or modified source potential to emit (PTE) to avoid major
1. What public participation
subject to PSD, the rules do not require source applicability thresholds of NSR
requirements for minor NSR programs
that response to comments be available or title V permitting requirements. The
are necessary for approval of the SIP
prior to final action on the PSD permit, minor NSR program also authorizes
revision?
as required by 40 CFR 51.166(q)(vi) and minor modifications at major sources,
(viii). The CAA at section 110(a)(2)(C) including netting demonstrations
• For a new or modified source requires states to include a minor NSR required by the PSD and NNSR major
subject to PSD, the revised rules do not program in their SIP to regulate source program, or to establish a PAL to
contain a definition of a final appealable modifications and new construction of determine PSD or NNSR applicability.
decision for a PSD permit. We request stationary sources within the area as EPA recognizes that, under the
further information about how and necessary to assure the national ambient applicable Federal regulations, states
when commenters are informed of the air quality standards (NAAQS) are have broad discretion to determine the
Agency’s final decision, access to achieved. EPA’s implementing scope of their minor NSR programs as
response to comments and timing for regulations at 40 CFR 51.160–51.164 are needed to attain and maintain the
judicial appeal, in order to provide an intended to ensure that new source NAAQS. The State has significant
opportunity for State court judicial growth is consistent with maintenance discretion to tailor minor NSR
review. of the NAAQS. 40 CFR 51.160(e) requirements that are consistent with
requires states to identify types and the requirements of Part 51. The State
C. Project for a PAL sizes of facilities which will be subject may also provide a rationale for why the
The revised rules do not meet the to review under their minor NSR rules are at least as stringent as the Part
following provisions for PALs: program. For sources identified under 51 requirements where the revisions are
• For PALs for existing major § 51.160(e), § 51.160(a) requires that the different from Part 51. For further
stationary sources, there is no provision SIP include legally enforceable information, see recent SIP actions in
that PALs be established, renewed, or procedures that enable the State or local other States concerning minor NSR
increased through a procedure that is agency to determine whether approvals and disapprovals, such as 68
consistent with 40 CFR 51.160 and construction or modification of a FR 2891 (January 22, 2003), where EPA
51.161, including the requirement that facility, building, structure or approved Oregon’s minor NSR program
the reviewing authority provide the installation, or combination of these establishing categories of minor NSR
public with notice of the proposed will result in a violation of applicable permit actions. However, EPA
approval of a PAL permit and at least a portions of the control strategy; or disapproved or gave less than full
30-day period for submittal of public interference with attainment or approval to minor NSR public
comment, consistent with the Federal maintenance of a national standard in participation requirements that
PAL rules at 40 CFR 51.165(f)(5) and the State in which the proposed source provided a blanket exemption from one
(11) and 51.166(w)(5) and (11). (or modification) is located or in a or more public notice requirements of
• For PALs for existing major neighboring State. Part 51 to all minor NSR permitting
stationary sources, there is no Sources subject to the legally actions. See 65 FR 2042 (January 13,
requirement that the State address all enforceable procedures under 40 CFR 2000), disapproval of West Virginia
material comments before taking final 51.160(a) are also subject to the minor NSR provisions providing 15-day
action on the permit, consistent with 40 minimum public participation public comment period for certain
CFR 51.165(f)(5) and 51.166(w)(5). requirements at 40 CFR 51.161, entitled minor NSR permitting actions or 65 FR
• The applicability provision in Public Availability of Information. In 2048 (January 13, 2000), limited
section 39.403 does not include PALs, particular, 40 CFR 51.161(a) requires a approval of Delaware minor NSR public
despite the cross-reference to Chapter 39 State to provide the opportunity for participation requirements because it
in Section 116.194. public comments on information strengthened the SIP, but limited
submitted by owners and operators. 40 disapproval of the rule due to less than
D. Project for a Flexible Permit CFR 51.161(a) also requires the public 30-day comment period. See also the
The rules do not meet the following information to include the agency’s proposed approval of Review of New
provisions for Flexible Permits: analysis of the effect of construction or Sources and Modifications in Indian
• For initial issuance of a flexible modification on ambient air quality, Country at 71 FR 48696 (August 21,
permit to establish a minor NSR including the agency’s proposed 2006) and 72 FR 45378 (August 14,
applicability cap or an increase in a approval or disapproval. 40 CFR 2007), approval of Alaska minor NSR
flexible permit cap, the rules do not 51.161(b) requires that the State ensure public participation provisions.
require 30-day notice and comment on availability of the information submitted
information submitted by the owner or by the owner or operator and the State’s 2. What are the Texas minor NSR
operator and the agency’s analysis of the analysis of the effect on air quality for program public participation
effect of the permit on ambient air public inspection in at least one requirements?
quality, including the agency’s proposed location in the affected area, that the In general, the revised rules provide
approval or disapproval as required by State provide a 30-day public comment for two types of public notice and
40 CFR 51.161. period on that information and that comment processes. These two public
• Where PSD and NNSR terms and notice of the public comment period notices are Notice of Application and
conditions are modified or eliminated should be by prominent advertisement Intent to Obtain a Permit under section
when the permit is incorporated into a in the area affected. 39.418 (first notice) and Notice of
Application and Preliminary Decision in which the facility is located or is change in the character of the emissions,
(second notice) under section 39.419 proposed to be located or in the or an increase in the emission rate of
and subchapter K. The first notice municipality nearest to the location or any air contaminant. Section
requires the permittee to publish notice proposed location of the facility and 39.403(b)(8) requires public notice and
of the permit application and provide a State the end date of the public the opportunity for comment only if the
copy of the administratively complete comment period. Section 39.405(e) permit amendment involves
application in the public record requires the applicant to provide a copy construction of a new facility or
available for public comment. An of the notice to the TCEQ within 10 modification of an existing facility that
administratively complete application business days from the last date of results in an increase in allowable
may, but is not required to, contain the publication. The applicant must also emissions equal to or greater than 250
applicant’s information on the air post a sign at the site of the existing or tpy of CO or NOX; or 25 tpy of VOC or
quality impacts from the facility. Under proposed facility declaring the filing of SO2 or PM10; or 25 tpy of any other air
Section 39.419(e)(1)(B), no further an application for a permit under contaminant except carbon dioxide,
notice is required for minor NSR section 39.604. The TCEQ is required to water, nitrogen, methane, ethane,
permits unless a contested case hearing mail a copy of the notice to the State hydrogen, and oxygen or other changes
is requested and not withdrawn before senator and representative who within the discretion of the Executive
the second notice is published. Under represent the area in which the facility Director. Therefore, permit amendments
section 55.21, a contested case hearing is or will be located, the applicant, authorized under section 116.116(b) are
may be requested by: (1) The persons on a relevant mailing list, and not subject to any public participation
Commission; (2) the Executive Director; any other person the Executive Director requirements unless the amendment
(3) the applicant; (4) affected persons, or Chief Clerk may elect to include involved an emission increase of
when authorized by law; and (5) for under sections 39.413 and 39.602. The allowable emission above the thresholds
applications for air quality permits, or applicant is required to mail a copy of in section 39.403(b)(8).
standard exemptions required to the notice to EPA, all local air pollution Under section 39.419(e)(1)(C), any
provide public notice, a legislator from control agencies with jurisdiction in the amendment, modification, or renewal
the general area of the proposed facility. county in which the construction is to for a major or minor source that requires
The request must identify the person’s occur, and the air pollution control a permit application and would not
personal justiciable interest affected by agency of any nearby State in which air result in an increase in allowable
the application, including the quality may be adversely affected by the emissions and would not result in the
requestor’s location and distance emissions from the new or modified emission of an air contaminant not
relative to the activity that is the subject facility under section 39.605. The previously emitted, is not required to
of the application and how and why the applicant is also required to make a provide second notice (which includes
requestor believes he or she will be copy of the application available for public notice and the opportunity for
affected by the activity in a manner not review and copying at a public place in comment on the State’s second notice
common to members of the general the county in which the facility is which includes analysis of the effect of
public. Requirements for a group or located or proposed to be located. The construction or modification on ambient
association to request a contested case applicant must indicate when air quality and includes the agency’s
hearing are found in section 55.23.9 A confidential business information is proposed approval or disapproval)
contested case hearing is an evidentiary excluded from the public file. See unless the application involves a facility
hearing before an administrative law section 39.405(g). The public record for which the applicant’s compliance
judge at the State Office of available during the comment period history contains violations that are
Administrative Hearings (SOAH). If a includes the administratively complete unresolved and that constitute a
contested case hearing is requested, the permit application and any other recurring pattern of egregious conduct
permittee must publish notice of the documents submitted by the applicant, which demonstrates a consistent
opportunity to comment on the as required by section 39.405(g). disregard for the regulatory process,
complete application and the State’s If a contested case hearing is including the failure to make a timely
analysis of air quality impacts and the requested by persons identified in and substantial attempt to correct the
State’s proposal to approve or section 55.21 or 55.23 in response to the violations. Therefore, amendments,
disapprove the permit. Notice of Receipt of Application and modifications or renewals for minor or
Section 39.418 of the revised rule Intent to Obtain Permit, and the request major sources are not required to
requires the applicant for a minor NSR is not withdrawn before the date the provide an air quality analysis or the
permit new source or modification, preliminary decision is issued, section State’s proposal to approve or
amendments or renewal under Chapter 39.419 requires the applicant to publish disapprove the permit unless there was
116 to publish Notice of Receipt of Notice of Application and Preliminary an increase in allowable emissions or
Application and Intent to Obtain Permit Decision (second notice) of issuance or the release of a new air contaminant.
(first notice) within 30 days after the modification of a minor NSR action and
provide a 30-day notice and comment 3. Does the Texas minor NSR public
Executive Director determines the
period on the public record, which participation rule meet federal
application to be administratively
includes the draft permit and the State’s requirements for approval?
complete. (The rule does not provide a
definition of administrative analysis of its preliminary decision to The revised rules meet or exceed
completeness.) Under sections approve or disapprove the permit. federal requirements for minor NSR
55.152(a)(1) and (2), 39.405(f)(1), and For minor and major sources public participation with four
39.603, the notice of 30-day public authorized under section 116.116(b) of exceptions as described below.
comment period (15 days for renewals) the approved SIP, a permittee must First, under section 39.419(e)(1)(B),
must be published in a newspaper of apply for and receive a prior permit the requirement at 40 CFR 51.161(a) to
general circulation in the municipality amendment which authorizes a provide opportunity for public comment
permittee to vary from terms of a permit on the State’s analysis of the effect of
9 Section 55.23, Request by Group or Association, if the change involves a change in the construction or modification on ambient
was not submitted in this SIP revision. method of control of emissions, a air quality from new minor sources or
minor modification identified under 40 increase in emissions are subject to a requirements for major modifications
CFR 51.160, including the State’s permit amendment under sections subject to PSD or NNSR permitting
proposed approval or disapproval, is not 116.110 or 116.116(a) or (b) of the requirements, which are based on actual
met. Sources regulated under 40 CFR approved SIP. As stated, section rather than allowable emissions and
51.160 are subject to the public 39.403(b)(8) provides an exemption may be interpreted to apply to those
participation requirements of 40 CFR from public participation for sources permitting actions. EPA has concluded
51.161. Under the Texas rule, sources otherwise required to obtain a permit that section 39.419(e)(1)(c) fails to
subject to minor NSR requirements must amendment. As discussed in more provide the minimum public
publish the first notice, Notice of detail above, sources regulated under 40 participation requirements of 40 CFR
Receipt of Application and Intent to CFR 51.160(a) are subject to the minimal 51.161.
Obtain Permit, and provide a 30-day public participation requirements in 40
notice and comment period on the CFR 51.160(a) and (b). We also have Fourth, section 39.403(b)
administratively complete permit concerns that this provision does not (Applicability) of the revised rule refers
application only. The publically exclude public participation to two State statutory provisions, THSC
available information during the requirements for major modifications section 382.0518 (preconstruction
comment period does not include and, subject to PSD or NNSR permitting permit) and section 382.055 (review and
the public notice fails to inform the requirements, which are based on actual renewal of preconstruction permit). For
public how to obtain, the State’s rather than allowable emissions and clarity and for approvability into the
analysis of air quality impacts and may be interpreted to apply to those SIP, we recommend that section
proposal to approve or disapprove the permitting actions.10 EPA has 39.403(b) be revised to refer to the
application. The public record for the concluded that 39.403(b)(8) fails to corresponding sections of the Texas SIP.
first notice is required to contain only provide the minimum public In summary, EPA has determined that
a copy of the administratively complete participation requirements of 40 CFR the Texas minor NSR public
permit application as required by 51.161.
participation rules do not require that
section 39.405(g). As a result, the public Third, under section 39.419(e)(1)(c),
for any amendment, modification, or the publicly available information
does not have an opportunity to include the State’s analysis of air quality
adequately review and comment upon renewal application for a minor or major
source, the revised rules do not require impacts or the State’s decision to
the potential air quality effects from the approve or disapprove the permit. EPA’s
source and on the State’s proposed second notice, which includes the
State’s air quality analysis, unless the review of section 39.419(e)(1)(A) and (B)
action on the application. In order to indicates that public notice of the
obtain the State’s air quality analysis, an change would result in an increase in
allowable emissions and would not State’s analysis of air quality impacts for
interested person must request a
result in the emission of an air minor new sources or minor
contested case hearing. However,
contaminant not previously emitted. modifications is not required unless a
sections 55.21(b) and 55.23 limit who
The requirement at 40 CFR 51.161(a) to contested case hearing is requested. We
may request a contested case hearing
before SOAH and so some members of provide opportunity for public comment are concerned that the rules at sections
the public may not be able to review on the State’s analysis of the effect of 55.21 and 55.23 limit who may request
and comment on air quality impacts modification on ambient air quality a contested case hearing. In other words,
from the facility. The request for a from minor sources identified under 40 the first notice (Notice of Application
CFR 51.160, including State’s proposed and Intent to Obtain a Permit) does not
contested case hearing must be filed
approval or disapproval, is not met. We contain the agency’s analysis of the
within the first notice public comment
recognize that States may tailor minor effect of construction or modification on
period and must be based solely upon
NSR programs to allow permit ambient air quality, including the
information in the administratively
amendments for certain minor sources agency’s proposed approval or
complete application. EPA has
required to be based upon increases in disapproval as required by 40 CFR
concluded that the burden of requesting
allowable emissions. However, section 51.161(b). The only way to obtain that
an evidentiary administrative hearing
39.419(e)(1)(C) applies to major and information is by requesting a contested
based solely on the information in the
minor sources required to obtain a
permit application does not provide the case hearing and the rules limit which
permit amendment under Chapter 116
public with the minimum public members of the public can do so.
of the approved SIP. As described in the
information required by 40 CFR Moreover, we believe that the State’s
previous paragraph, sources required to
51.161(a) and (b). obtain a permit under 40 CFR 51.160(a) requirement to submit a request for an
Second, section 39.403(b)(8) excludes are subject to the public participation evidentiary administrative hearing in
permit amendments authorized by requirements of 40 CFR 51.161. Under order to obtain the air quality analysis
section 116.116(b) from any public 40 CFR 51.161, a modification is too large a burden for potential
participation requirements of Chapter application for a major or minor source commenters, may exclude some
39, including the requirement to publish regulated under the SIP is subject to interested persons, and is not consistent
the first notice, unless the change public notice and opportunity for public with the minimum requirements of 40
involves construction of a new facility comment on the State’s air quality CFR 51.161(a) and (b). We note that
or modification of an existing facility analysis and proposal to approve or Texas did not provide a demonstration
that results in an increase in allowable disapprove the permit. We also have of how the Chapter 39 and 55 rules for
emissions equal to or greater than 250 concerns that this provision does not public participation for minor NSR
tpy of CO or NOX; or 25 tpy of VOC or exclude public participation sources regulated under the SIP meet
SO2 or PM10; or 25 tpy of any other air the public participation requirements of
contaminant except carbon dioxide, 10 See NSR Reform ruling, New York v. EPA, 413 40 CFR Part 51 with this SIP
water, nitrogen, methane, ethane, F.3d 3 (D.C. Cir. June 24, 2005). The court held that submittal.11
the major NSR modification requirement, which
hydrogen, and oxygen or other changes incorporates by reference CAA § 111(a)(4),
within the discretion of the Executive ‘‘unambiguously defines ‘increases’ in terms of 11 See also correspondence between EPA Region
Director. Changes that result in an actual emissions.’’ 6 and TCEQ in the docket for this action.
B. PSD Regulatory Requirements copy of the notice to any other State or ruling, order, or decision, within 30
local air pollution control agencies, the days after the effective date of the
chief executive of the city and county ruling, order or decision. Note that
requirements for PSD programs are
where the source would be located, any Texas law requires exhaustion of
necessary for approval of the SIP
regional land use planning agency, any administrative remedies, including
revision?
State or Federal Land Manager or Indian requesting a contested case hearing, to
The PSD provisions of the CAA Governing body whose lands may be appeal to State court.
emphasize the importance of public affected. The State must also provide an
participation in permitting decisions. 3. Do the Texas PSD public
opportunity for public hearing for
See section 160(5) of the CAA. The participation requirements meet federal
interested persons to appear and submit
criteria for approval of a PSD program requirements for approval?
written or oral comments on the air
are set out in Section 165 of the CAA quality impacts of the source, The Texas PSD program, including
and 40 CFR 51.166. The requirements alternatives to it, the control technology the public participation provisions, was
for public participation for an approved required, and other appropriate approved in 1992. See 54 FR 52823, 826
PSD program are found at 40 CFR considerations. See CAA section (December 22, 1989 and 57 FR 28093
51.166(q). States may incorporate these 165(a)(2). The State must also consider (June 24, 1992). This SIP revision
requirements by reference or establish all written and oral comments in replaces the public participation rules
equivalent provisions. Section 307(b) of making a final permitting decision and adopted under the approved PSD
the CAA expressly provides an make all comments available for public program and therefore, we review the
opportunity for judicial review of PSD inspection. rules for consistency with federal PSD
permitting decisions when EPA is the requirements of 40 CFR 51.166(q). Our
permitting authority. In a federal PSD 2. What are the Texas PSD program review of Chapters 39 and 55 indicates
program, any member of the public who public participation requirements? that the Texas rules meet or exceed
has participated in the public comment Under section 39.419, for sources federal requirements with the following
process and meets the threshold subject to PSD or nonattainment NSR exceptions. We have not identified
standing requirements of Article III of review the applicant must publish provisions to satisfy the following
the U.S. Constitution may petition for notice of two 30-day public comment federal requirements:
administrative review of the permit periods, Notice of Application and • A requirement that the State
within 30 days of issuance before the Intent to Obtain a Permit (first notice) provide an opportunity for a public
Environmental Appeals Board (EAB) and Notice of Application and hearing for interested persons to appear
and ultimately seek judicial review of Preliminary Decision (second notice). and submit written or oral comment on
the administrative disposition of the The applicant must also mail a copy of the air quality impact of the source,
permit. We interpret the statute and the notices to the EPA Regional alternatives to it, the control technology
regulations to require, at a minimum, an Administrator in Dallas, all local air required, and appropriate
opportunity for State court judicial pollution control agencies with considerations, along with public notice
review of PSD permits under an jurisdiction in the county in which the of the public hearing as required by 40
approved PSD program. See 61 FR 1880, construction is to occur, the air CFR 51.166(q)(v) and section 165(a)(2)
1882 (Jan. 24, 1996) and 72 FR 72617, pollution control agency of any nearby of the CAA. The provision in section
72619 (December 21, 2007). The State in which air quality may be 55.154 that provides the Executive
legislative history of the 1977 CAA adversely affected by the emissions from Director with discretion to hold a public
amendments supports this the new or modified facility, the meeting if the Executive Director
interpretation.12 Although permits applicant, persons who filed comments determines that there is a substantial or
issued under SIP approved programs are or hearing requests before the deadline, significant degree of public interest in
not subject to appeal to EPA’s EAB, persons on a mailing list under Section an application is not consistent with the
those actions are instead subject to the 39.407 and the State senator or federal requirements. Under the Texas
opportunities for review and appeal representative from the region where the rule, the decision to grant a public
provided under State law. source will be located. Under section hearing is within the Executive
40 CFR 51.166(q) requires, in part, 55.154, TCEQ may provide a public Director’s discretion and must be based
that the permitting authority make meeting if the Executive Director upon substantial or significant public
available all the materials submitted by determines that there is a substantial or interest. In contrast, the CAA provides
the applicant, a copy of the preliminary significant degree of public interest in for the opportunity of interested persons
determination and a copy or summary an application or if a member of the to request a public hearing and public
of other materials considered in making legislature who represents the general notice of that opportunity. Under
the determination. The State must notify area in which the facility is located or section 55.154, the public is not
the public, by advertisement in a proposed to be located requests that a guaranteed notice of such opportunity
newspaper of general circulation, of the public meeting be held. or that such an opportunity will be
application, the preliminary Texas provides an opportunity for provided on request.
determination, the degree of increment judicial review of PSD permitting • A requirement that the public
consumed, and of the opportunity to decisions under THSC 382.032, which notice of a PSD permit contain the
comment at a public hearing or in states that a person affected by a ruling, degree of increment consumption that is
writing. The State must also provide a order, decision, or other act of the expected from the source or
Commission or of the Executive modification as required by 40 CFR
12 See Staff of the Subcommittee on Director, if an appeal to the Commission 51.166(q)(iii).13
Environmental Pollution of the Senate Committee is not provided, may appeal the action
on Environment and Public Works, 95th Congress, by filing a petition in a district court of 13 EPA’s final approval of the Texas PSD program
1st Session, A Section-by-section Analysis of S. 252 Travis County. The petition must be (57 FR 28093, June 24, 1992) included a
and S. 253, Clean Air Act Amendments 36 (1977), supplemental document that provided an
reprinted in 5 Legislative History of the Clean Air
filed within 30 days after the date of the enforceable commitment from Texas to implement
Act Amendments of 1977 (1977 Legislative History) Commission’s or the Executive the requirements of 40 CFR 51.166(q)(iii) (state the
3892 (1977). Director’s action or, in the case of a Continued
• A requirement to provide a copy of review of the TCEQ permitting database contested case hearings in §§ 39.409 or
the public notice of a PSD permit to be indicates TCEQ generally receives a 39.411 of this title shall not apply. Nothing
sent to State and local air pollution copy of the public notice within two in this section exempts an applicant for a
control agencies, the chief executives of weeks after the date of publication.15 new source review permit from the
requirements of Subchapter B of this chapter
the city and county where the source EPA has experienced delays in receiving (relating to New Source Review).
would be located and any State or the PSD public notice and we have
Federal Land Manager or Indian received complaints from citizens that it 3. How does the Texas PAL rule meet
Governing Body whose lands may be is often not possible to identify the start Federal requirements for approval?
affected by emissions from the source or and end date of a public comment
We are addressing public
modification, as required by 40 CFR period until much of the comment
participation for PALs in this notice to
51.166(q)(iv) and CAA 165(d).14 period has passed. While we believe
• A requirement that response to facilitate our review of the Texas PAL
that TCEQ does have authority to
comments be available prior to final rule SIP submittal that cross-references
delegate responsibility to publish notice
action on the PSD permit, as required by Chapter 39, even though the PAL rule
of a PSD permit to the applicant, we
40 CFR 51.166(q)(vi) and (viii) and to was adopted after the revised rules.18
request comments on how the public
facilitate the appeals process. We note that Texas did not make any
information can be made available to
• For a new or modified source revisions related to PALs to Chapter 39.
ensure that interested persons can fully
subject to PSD, the revised rules do not The applicability section in Chapter
participate in the public comment
contain a definition of a final appealable 39.403 does not include PALs, despite
process in accordance with the intent of
decision for a PSD permit. We request the cross-reference to Chapter 39 in
the Act.
further information about how and Section 116.194. Therefore, the two
when the commenters are informed of C. PAL Regulatory Requirements rules are not consistent. We believe
the Agency’s final decision, access to Texas must revise the applicability
response to comments and timing for section in Chapter 39.403 in order to
requirements for PALs are necessary for
judicial appeal, in order to provide an make the Chapter 39 public
approval?16
opportunity for State court judicial participation requirements applicable to
The Federal PAL rules at 40 CFR new permitting rules, such as the PAL
review.
51.165(f)(5) and (11) and 51.166(w)(5) rule.
We request comments on an
and (11) require PALs for existing major Our review of the Chapter 39
additional issue related to PSD permit
stationary sources to be established, requirements applicable to PALs
public notice requirements. Under the
renewed, or increased through a indicates that public participation for
approved SIP and under the revised
procedure that is consistent with 40 initial issuance, renewal, or increase of
rule, Texas requires the permit
CFR 51.160 and 51.161, including the a PAL is not consistent with the Federal
applicant to publish public notice for an
requirement that the reviewing requirements. Section 39.419(e)(3) does
air permit and to mail a copy of the
authority provide the public with notice not require PAL permit applications to
notice to TCEQ and EPA. Although the
of the proposed approval of a PAL provide public notice and comment on
federal PSD rules at 40 CFR 51.166(q)(2)
permit and at least a 30-day period for the Agency’s preliminary analysis and
State ‘‘* * * the reviewing authority
submittal of public comment. The State the draft permit unless a contested case
shall * * * provide notice,’’ we believe
must address all material comments hearing is requested. We have identified
Texas has authority to delegate
before taking final action on the permit. no provisions which address renewal or
responsibility to publish notice to the
applicant. Under Section 39.405(e), 2. What are the public participation increase of a PAL. Furthermore, Texas
TCEQ allows 10 business days for the requirements under the Texas PAL rule? provided no demonstration of how
applicant to notify TCEQ and EPA that Texas PAL rules address public section 116.194, which cross references
the public notice has been published. A participation in section 116.194, which Chapter 39 requirements, is consistent
states: with the Federal PAL rules at 40 CFR
degree of increment consumption in the public 51.165(f)(5) and (11) and 51.166(w)(5)
notice) and 51.166(q)(iv) (mail notice to affected Applications for initial issuance of plant- and (11). We have not identified
agencies). The supplement remains a part of the wide applicability limit permits under this
Texas SIP. See 40 CFR 52.2270, EPA Approved division are subject only to §§ 39.401, 39.405,
provisions in Chapter 39 to comply with
Nonregulatory Provisions and Quasi-Regulatory 39.407 17, 39.409, 39.411, 39.419, 39.420, and the following requirements of 40 CFR
Measures in the Texas SIP. We cite these 39.605 of this title (relating to Purpose; 51.165(f)(5) and (11) and 51.166(w)(5)
requirements as missing from the Texas submittal General Notice Provisions; Mailing Lists; and (11):
because the adoption of Chapters 39 and 55
replaced all existing public participation
Deadline for Public Comment, and for • Public participation requirements
requirements for PSD permits under the Texas PSD
Requests for Reconsideration, Contested Case for PALs existing major stationary
program as State law and seeks to repeal existing Hearing, or Notice of Contested case Hearing;
Text of Public Notice; Notice of Application
sources to be established, renewed, or
SIP PSD public participation requirements
applicable to permit applications complete on or and Preliminary Decision; Transmittal of the increased through a procedure that is
after September 1, 1999. Texas did not address the Executive Director’s Response to Comments consistent with 40 CFR 51.160 and
SIP supplement in its submittal. For several and Decision; Applicability; Mailed Notice; 51.161.
reasons, we believe these PSD requirements should
be included as regulatory, rather than quasi-
Newspaper Notice; Sign-Posting; and Notice • A requirement that the reviewing
to Affected Agencies, respectively), except authority provide the public with notice
regulatory, requirements of the SIP. Given that the
that any requests for reconsideration or
applicant rather than Texas publishes notice and of the proposed approval of a PAL
sends the notice to affected agencies, we believe permit and at least a 30-day period for
15 The TCEQ permitting database can be accessed
regulatory provisions in Chapter 39 would provide
more clarity to the applicant and the public to at http://www4.tceq.state.tx.us/cid/CCD/ submittal of public comment.
ensure compliance with these requirements than a index.cfm?fuseaction=main.SearchPublicNotice.

document that does not explicitly appear in the SIP. 16 Texas’ regulations for PALs are not in the 18 See letter from Glenn Shankle, Executive
Also, we believe this approach will avoid confusion existing Texas SIP. EPA will address approvability Director of TCEQ, to Larry Starfield, Deputy
since section 39.605 of the revised rules lists some, of the entire PAL requirements in a separate action. Regional Administrator for EPA Region 6, dated
but not all, agencies that must be notified under 17 Section 39.407 was not submitted as a SIP June 13, 2008, noting that action on TCEQ’s public
§ 51.166(q)(iv). revision. See discussion of the cross references to participation rule was necessary to resolve issues in
14 Ibid. at 13. non-SIP rules in section VII.A of this preamble. another pending SIP submission.
• A provision to require the State to involves new construction or an Act and of 40 CFR part 51. Furthermore,
address all material comments before increase in allowable emissions equal to there is no demonstration whether these
taking final action on the PAL permit. or greater than 250 tpy of CO or NOX; cross referenced provisions are
• An applicability provision in or 25 tpy of VOC, SO2, or PM10; or 25 separable from the rules that are
section 39.403 that subjects PALs to the tpy of any other air contaminant except submitted. Texas should either remove
requirements of Chapter 39. carbon dioxide, water, nitrogen, the cross references to the non-SIP
D. Flexible Permits methane, ethane, hydrogen, and oxygen. provisions or submit the cross
referenced provisions to EPA for SIP
1. What are the public participation 3. Do the public participation
approval. Note that our action on any
requirements for Flexible Permits requirements for Texas flexible permits
provision which refers to or implements
necessary for approval? 19 meet the Federal requirements for
a provision that EPA has not approved
approvability?
EPA has recognized that States may does not imply EPA proposed approval
provide a site-wide cap to determine Sections 39.403(b)(8)(A) and (B), as of such non-SIP requirement.
minor NSR applicability, similar to the they apply to the initial issuance of
flexible permits do not meet the B. Use of Undefined Acronyms.
Federal PAL rule for major NSR
applicability. See our proposed rule for requirements in 40 CFR 51.161(a) and Several sections use the acronyms
Review of New Sources and (b). Section 39.403 (Public Notice ‘‘APA’’ ‘‘SOAH’’ and ‘‘WQMP.’’
Modifications in Indian Country, 71 FR Applicability) fails to require 30-day However, we do not see where these
48696. 48705 or Evaluation of public notice and comment on the terms are defined.
Implementation Experiences with State’s analysis of the effects on ambient C. Cross References to Obsolete
Innovative Air Permits, Summary air quality and its proposed approval or Provision for Permits by Rule for
Report,20 which discuss minor NSR disapproval. PSD and NNSR permit Concrete Batch Plants
applicability caps and public terms and conditions are not revised
participation requirements at 40 CFR with public process required by sections The following provisions cross
51.160–51.164. 40 CFR 51.161(b) 51.161(a) and (b) and 51.166(q). reference to public notice provision for
requires that the State ensure permit by rule for concrete batch plants:
VI. Other Public Participation Concerns section 39.403(a)(3) and (b)(10); section
availability of the information submitted
by the owner or operators and the A. Cross References to Non-SIP Rules 39.411(a)(10)(iv)(C); section 39.601; and
State’s analysis of the effect on air and Regulations section 55.152(a)(2). TCEQ has repealed
quality and proposal for approval or all permits by rule for concrete batch
The following provisions cross plants and replaced them with a
disapproval in at least one location in reference to rules that are not in the
the affected area, that the State provide Standard Permit for concrete batch
federally approved SIP, nor submitted to plants. This change is discussed in
a 30-day public comment period on that EPA for SIP approval:
information and that notice of the EPA’s approval of this action at 71 FR
• Section 39.201(a)(1). Cross 13549 (March 16, 2006). Texas has not
public comment period should be by references to Chapter 30.
prominent advertisement in the area revised these provisions in Chapters 39
• Section 39.403(b)(8). Cross and 55 to reflect the change that EPA
affected. reference to State statutory provisions in approved March 16, 2006.
2. What are the public participation THSC section 382.0518 and section
requirements under the Texas Flexible 382.055 of the Texas Health and Safety D. Cross Reference to Section 116.10(9)
Permit rule? Code. Section 39.303(b)(8)(B) cross
Section 39.403(b)(8)(A) and (B) states • Section 39.403(b)(8). Cross references section 116.10(9) which is
that initial issuance of a flexible permit references to Chapter 116, Subchapter the definition of ‘‘modification of
is not required to comply with the G, sections 116.710(a)(2) and (3). existing facility’’ (later recodified as
public participation requirements of • Section 39.403(b)(8)(B). Cross section 116.10(11)). Texas submitted
Chapter 39 unless the action involves reference to section 116.10(9). this definition in separate SIP
new construction or an increase in • Section 39.409. Cross references to submittals which are currently under
allowable emissions equal to or greater Chapter 50. review. EPA will address this definition
than 250 tpy of CO or NOX; or 25 tpy • Section 39.411(b)(10)—1st in a separate action.
of VOC, SO2, PM10; or 25 tpy of any sentence. Cross references to
§ 39.403(b)(11). E. Alternative Publication Procedures
other air contaminant except carbon for Small Businesses
dioxide, water, nitrogen, methane, • Section 39.413(11). Cross references
ethane, hydrogen, and oxygen. to section 39.407. Section 39.603(e) provides an
When a flexible permit is established • Section 39.419(e)(4). Cross alternative requirement to publish a
under the Texas rules in Subchapter G references to § 90.30. notice under section 39.603(a)(2)21 if the
of Chapter 116, PSD or NNSR terms may Approving a rule which cross applicant and source meet the definition
be revised or eliminated when they are references to a non-SIP provision is of a small business stationary source in
incorporated into the flexible permit. problematic because: (1) It could imply section 382.0365 of the Texas Health
The rule does not provide for public tacit approval of the non-SIP provision, and Safety Code including, but not
participation for initial issuance of a without EPA’s review of the cross
flexible permit unless the action referenced provision to verify whether it 21 Section 39.603(e)(1) refers to § 39.601(a)(2),
meets the requirements of the Act and which is not in the submitted rule. On July 31,
2002, Texas submitted a revision to Section 39.603
19 Texas’ rules for Flexible Permits are not in the of 40 CFR part 51; and (2) if the State which revised subsection (e) to refer to paragraph
existing Texas SIP. EPA is reviewing the Texas’ SIP later revises the cross referenced non- (c)(2) rather than paragraph (a)(2). EPA is reviewing
submittal which relates to Flexible Permits and will SIP provision, the revised cross the July 31, 2002, SIP submittal and will address
address its concerns in a separate action. referenced provision could be this change in a separate action. Paragraph (c)(2)
20 Report prepared by EPA Office of Air Quality refers to a different larger display notice that must
Planning and Standards and OPEI at http://
interpreted to be enforceable under the be published in the same issue of the newspaper as
www.epa.gov/ttn/oarpg/t5/memoranda/ SIP even if such provision, as revised, the primary notice published under paragraph
iap_eier.pdf. does not meet the requirements of the (c)(1).
limited to, those which: are not a major provide a demonstration how omission • Section 39.411(b)(13)—Applies to
stationary source for federal air quality of this provision is consistent with municipal solid waste applications;
permitting; do not emit 50 or more tpy section 110(l) of the Act. • Section 39.411(b)(14)—Applies to
of any regulated pollutant; do not emit class 3 modifications of hazardous
VII. Why are we taking no action on industrial solid waste permits;
75 or more tpy of all regulated
some provisions of the submittal? • Section 39.411(c)(7)—Applies to
pollutants; are owned or operated by a
person that employs 100 or fewer A. Provisions Which Implement Section radioactive material licenses under
individuals; and if the applicant’s site 112(G) of the Act Chapter 336
meets emission limits in section • Section 39.419(d)—Subsection (d)
There are cross references to Chapter
106.4(a), it will be considered to not only relates to subsection (c), which was
116, Subchapter C22 of this title relating
have an effect on air quality. If all of the not submitted;
to Hazardous Air Pollutants: Because these provisions do not relate
above conditions are met, the Executive Regulations Governing Constructed or
Director may post information pending to air quality permitting or to any
Reconstructed Major Sources (FCAA, applicable requirement of the Clean Air
permit applications on its Web site, § 112(g), 40 Code of Federal Regulations
such as the permit number, project type, Act, they are outside the scope of the
Part 63)) in the following provisions: SIP. The TCEQ should withdraw these
facility type, nearest city, county, date sections 39.403(b)(9); 39.419(e)(3)(C);
public notice authorized, information provisions from this SIP submittal
and 116.183. In an EPA SIP approval package. Consequently, EPA will take
on comment periods, and information published September 18, 2002, we
on how to contact the agency for further no action these provisions.
addressed the § 112(g) provisions (then
information. located in Subchapter C of Chapter 116). C. Portions of Chapter 55
The existing SIP has no provision for We stated:
alternative public notice for small The revised rules submitted to EPA
businesses. As a relaxation of the We are taking no action on Subchapter C include selected provisions from
existing SIP, we request that Texas of Chapter 116—Hazardous Air Pollutants: Chapter 55, Requests for
Regulations Governing Constructed or Reconsideration and Contested Case
provide a demonstration of how this Reconstructed Major Sources (FCAA Section
provision is consistent with section Hearing. The existing SIP does not
112(g), 40 CFR part 63) as submitted in 1998. contain provisions which implement
110(l) of the Act. Section 30.603(e)(1)(A) The program for reviewing and permitting
refers to a definition of ‘‘small business constructed and reconstructed major sources
Texas’ air permitting administrative
stationary source in section 382.0365 of of HAP is regulated under section 112 of the appeal process. Note that PSD permits
the Texas Health and Safety Code. For Act and under 40 CFR part 63, subpart B. issued by EPA or States with a delegated
clarity and approvability into the SIP, Under these provisions, States establish case- PSD program provide appeal to the
by-case determinations of maximum Environmental Appeals Board under 40
§ 39.603(e) should be revised to refer to
achievable control technology for new and CFR Part 124. EPA interprets the CAA
corresponding provisions of the Texas reconstructed sources of HAP. The process
SIP. to require the opportunity for State
for these provisions is carried out separately
from the SIP activities. For the reasons
court review under a State approved
F. Relaxation of Sign Posting PSD program, as discussed in section
discussed above, we are not approving
Requirements Under Section 39.604 Subchapter C of [Chapter] 116 as submitted V.B. of this notice, but the Act does not
We have identified two provisions in 1998. specifically require an administrative
which relax the sign posting 67 FR 58699 (September 18, 2002). appeal process for an approved SIP PSD
requirements of the existing SIP. Section 112(g) of the Act applies to program. The requirements under 40
• Section 39.604(c) includes a the review and permitting of CFR part 124 are not applicable to State
provision that the section’s sign posting constructed and reconstructed major approved PSD programs. Therefore, we
requirements do not apply to properties sources of hazardous air pollutants are taking no action today on the
under the same ownership which are (HAP) under § 112 of the Act and 40 portions of this SIP submittal that relate
noncontiguous and/or separated by CFR part 63, subpart B. The process for to requests for reconsideration or
intervening public highway, street, or implementing these provisions is contested case hearings. Specifically, we
road, unless directly involved by the carried out separately from the SIP. are taking no action today on section
permit application. This exclusion from Because the requirements under section 55.1—Applicability; section 55.21—
the sign posting requirements is not in 112(g) are self-implementing under Requests for Contested Case Hearing,
the existing SIP. As a relaxation of the section 112 of the Act and under 40 CFR Public Comment; section 55.101—
existing SIP, we request that Texas part 63, subpart B, EPA will take no Applicability; section 55.103—
provide a demonstration how this action on sections 39.403(b)(9), Definitions; section 55.150—
provision is consistent with section 39.419(e)(3)(C), and 116.183. Applicability; section 55.201—Requests
110(l) of the Act. for Reconsideration and Contested Case
• Section 116.133(f)(1) provides that B. Provisions Which Do Not Relate to Hearing; section 55.203—Determination
if the nearest elementary or middle Air Quality Permits of Affected Person; section 55.205—
school has waived out of the Texas submitted the following Request by Group or Association;
requirements of 19 TAC section provisions to EPA for SIP approval section 55.209—Processing Requests for
89.1205(a) under 19 TAC section which do not relate to air quality Reconsideration or Contested Case
89.1205(g), the alternate language signs permits or to provisions that are not in Hearing; and section 55.211—
shall be published in the alternate the approved SIP: Commission Action or Requests for
languages in which the bilingual • Section 39.411(b)(11)—Applies to Reconsideration and Contested Case
education program would have been radioactive material licenses under Hearing.
taught had the school not waived out of Chapter 336; We propose to grant limited approval
the bilingual education program. We do and limited disapproval to Subchapter E
not see where this provision is included 22 These provisions were recodified from
of Chapter 55 related to Public
Subchapter C to Subchapter E of Chapter 116 in a
in the revised rules. Because omission SIP revision submitted February 1, 2006. EPA is
Comment and Public Meetings
of this provision is a relaxation of the currently reviewing the February 1, 2006, revisions including sections 55.150—
existing SIP, we request that Texas and will address this provision in a separate action. Applicability; section 55.152—Public
Comment Period; section 55.154— • Section 39.419(e)(1)(C) fails to procedure that is consistent with 40
Public Meetings; section 55.156—Public require the State’s air quality analysis CFR 51.160 and 51.161, including the
Comment Processing. and proposed approval or disapproval requirement that the reviewing
in the publicly available information, authority provide the public with notice
D. Revisions to Section 116.740—Public
for any permit amendment, of the proposed approval of a PAL
Notice
modification, or renewal application of permit and at least a 30-day period for
The October 25, 1999, SIP submittal a major or minor source, unless the submittal of public comment, consistent
includes revisions to section 116.740— action would result in an increase in with the Federal PAL rules at 40 CFR
Public Notice in Chapter 116, allowable emissions and would not 51.166(w)(5) and (11).
Subchapter G which relates to Flexible result in the emission of an air • There is no requirement in the
Permits. This submittal revised earlier contaminant not previously emitted. revised rules that the State address all
SIP submittals of this section as • Section 39.403(b)(8) (Applicability) material comments before taking final
submitted November 29, 1994, and July references to two State statutory action on the PAL permit, consistent
22, 1998. EPA is currently reviewing the provisions, THSC Section 382.0518 with 40 CFR 51.166(w)(5).
November 29, 1994, and July 22, 1998, (preconstruction permit) and section • There is no reference to PALs in the
SIP submittals and will propose 382.055 (review and renewal of applicability section in Chapter 39.403.
appropriate action on section 116.740 in preconstruction permit) which are not
a separate action. EPA will take no D. Provisions Relating to Public
part of the SIP. Participation for Projects Subject to
action on section 116.740 at this time.
B. Provisions Relating to Public Flexible Permits
VIII. Public Comment and Proposed Participation for Projects Subject to PSD • For initial issuance of a flexible
Action
• The revised rules do not provide permit to establish a minor NSR
Under the CAA sections 110(k)(3) and opportunity for a public hearing for applicability cap or an increase in a
301(a) for the reasons stated above, EPA interested persons to appear and submit flexible permit cap, there is no
is proposing simultaneous limited written or oral comment on the air requirement in the revised rules for 30-
approval and limited disapproval of quality impact of the source, day notice and comment on information
portions of the SIP revisions identified alternatives to it, the control technology submitted by the owner or operator and
in section II.A which Texas submitted required, and appropriate the agency’s analysis of the effect of the
on December 15, 1995; July 22, 1998; considerations and to provide notice of permit on ambient air quality, including
and October 25, 1999. EPA is taking no the opportunity for a public hearing for the agency’s proposed approval or
action on certain sections as identified a PSD permit. disapproval.
in section VII because they are outside • Public notice of a PSD permit is not • Where PSD and NNSR terms and
the scope of the SIP or because they required by the revised rules to contain conditions are modified or eliminated
revise a prior SIP submittal which is the degree of increment consumption when the permit is incorporated into a
currently under review for approval or that is expected from the source or flexible permit, there is no requirement
disapproval in a separate action. As modification. in the revised rules for public
discussed in this proposal, we have • There is no requirement in the participation consistent with 40 CFR
identified the following inconsistencies revised rules that a copy of the public 51.161 and 51.166(q).
between the Texas revised rules and notice of a PSD permit to be sent to E. Other Concerns
minimum Federal requirements for State and local air pollution control
public participation. In summary, the agencies, the chief executives of the city • The issues identified in section VII
provisions which preclude full approval and county where the source would be of this preamble.
of the revised rules include, but may not located and any State or Federal Land We are proposing simultaneous
be limited to, the following: Manager or Indian Governing Body limited approval and limited
whose lands may be affected by disapproval of the revised rules because
A. Provisions Relating to Public we have determined that the rules
Participation for Projects Subject to emissions from the source or
modification. strengthen the existing SIP, but do not
Minor NSR meet the minimum public participation
• There is no requirement in the
• Section 39.419(e) fails to require the revised rules that response to comments requirements of the Act and our
State’s air quality analysis and proposed be available prior to final action on the regulations. We request comments on
approval or disapproval in the publicly PSD permit. this proposal. After review and response
available information for new or • There is no definition of a final to public comment, EPA plans to take
modified minor NSR sources or minor appealable decision for a PSD permit in final action on the revised rules. Final
modifications at major sources, the revised rules. We request further limited approval would incorporate the
• Section 39.403(b)(8) fails to require information about how and when the revised rules identified in section II into
any public participation for a minor commenters are informed of the the Texas SIP and the new public
NSR permit amendment or minor Agency’s final decision and how participation rules would become fully
modification under section 116.116(b), commenters are informed of access to federally enforceable. Final limited
unless the change involves construction response to comments and timing for disapproval would make a finding of
of a new facility or modification of an judicial appeal, in order to provide an how the revised rules fail to meet
existing facility that results in an opportunity for State court judicial minimum criteria established by the Act
increase in allowable emissions equal to review. and our regulations. If EPA determines
or greater than 250 tpy of CO or NOX; that, for rules required by the CAA, the
C. Provisions Relating to Public
or 25 tpy of VOC or SO2 or PM10; or 25 deficiencies forming the basis of final

tpy of any other air contaminant except Participation for Projects Subject to limited disapproval have not been
carbon dioxide, water, nitrogen, PALs corrected, the Agency may apply the
methane, ethane, hydrogen, and oxygen • There is no requirement in the sanctions listed in section 179(b) of the
or other changes within the discretion of revised rules that PALs be established, Act and 40 CFR 52.31 within 18 months
the Executive Director. renewed, or increased through a of the finding. If the State submits an
approvable rule revision within 18 safety risks subject to Executive Order facilities criteria. Elsewhere in this
months of such a finding, EPA may take 13045 (62 FR 19885, April 23, 1997); Federal Register, the Agency is
interim final action, effective upon • Is not a significant regulatory action finalizing certain tailored and
publication, to stay the sanctions prior subject to Executive Order 13211 (66 FR streamlined requirements for facilities
to proposing approval and taking 28355, May 22, 2001); subject to the SPCC requirements.
comment on the submittal. Also, a FIP • Is not subject to requirements of DATES: Written comments must be
may be promulgated under section Section 12(d) of the National received by December 26, 2008.
110(c)(1) of the Act, if EPA finds that a Technology Transfer and Advancement
ADDRESSES: Comments should be
SIP revision does not satisfy the Act of 1995 (15 U.S.C. 272 note) because
directed to Docket ID No. EPA–HQ–
minimum criteria established under application of those requirements would
OPA–2008–0546. Comments may be
section 110(k)(2) of the CAA. The FIP be inconsistent with the Clean Air Act;
submitted by one of the following
may be adopted at any time within 2 and
• Does not provide EPA with the methods:
years of such a finding, unless the State (1) Federal Rulemaking Portal:
corrects the deficiency and EPA discretionary authority to address, as
appropriate, disproportionate human http://www.regulations.gov. Follow the
approves the revision before the FIP is on-line instructions for submitting
promulgated. Final approval of the health or environmental effects, using
practicable and legally permissible comments;
revision correcting the identified (2) E-mail: Comments may be sent by
deficiencies would terminate imposition methods, under Executive Order 12898
electronic mail (e-mail) to: rcra-
of the FIP. (59 FR 7629, February 16, 1994).
docket@epa.gov, Attention Docket ID
We will accept comments on this List of Subjects in 40 CFR Part 52 No. EPA–HQ–OPA–2008–0546.
proposal for the next 60 days. After (3) Fax: Comments may be faxed to
review of public comments, we intend Environmental protection, Air
pollution control, Carbon monoxide, 202–566–9744, Attention Docket ID No.
to publish a rule to promulgate final EPA–HQ–OPA–2008–0546.
limited approval and final limited Hydrocarbons, Intergovernmental
relations, Lead, Nitrogen oxides, Ozone, (4) Mail: The mailing address of the
disapproval of the provisions identified docket for this rulemaking is EPA
above into the Texas SIP. Particulate matter, Reporting and
recordkeeping requirements, Sulfur Docket Center (EPA/DC), Docket ID No.
IX. Statutory and Executive Order oxides, Volatile organic compounds. EPA–HQ–OPA–2008–0546, mail code
Reviews 2822T, 1200 Pennsylvania Ave., NW.,
Authority: 42 U.S.C. 7401 et seq. Washington, DC 20460. Attention
Under the Clean Air Act, the
Dated: November 18, 2008. Docket ID No. EPA–HQ–OPA–2008–
Administrator is required to approve a
SIP submission that complies with the Richard E. Greene, 0546.
provisions of the Act and applicable Regional Administrator, Region 6. (5) Hand Delivery: EPA Docket Center
Federal regulations. 42 U.S.C. 7410(k); [FR Doc. E8–28162 Filed 11–25–08; 8:45 am] (EPA/DC), EPA West, Room 3334, 1301
40 CFR 52.02(a). Thus, in reviewing SIP BILLING CODE 6560–50–P
Constitution Ave. NW., Washington DC
submissions, EPA’s role is to approve 20460. Attention Docket ID No. EPA–
State choices, provided that they meet HQ–OPA–2008–0546. Such deliveries
the criteria of the Clean Air Act. ENVIRONMENTAL PROTECTION are only accepted during the Docket’s
Accordingly, this proposed action AGENCY normal hours of operation, and special
merely approves State law as meeting arrangements should be made for
40 CFR Part 112 deliveries of boxed information.
Federal requirements and does not
Instructions: Please note that EPA’s
impose additional requirements beyond [EPA–HQ–OPA–2008–0546; FRL–8745–9]
policy is that all comments received
those imposed by State law. For that RIN 2050–AG49 will be included in the public docket
reason, this proposed action:
• Is not a ‘‘significant regulatory without change, and may be made
Oil Pollution Prevention; Non- available online at http://
action’’ subject to review by the Office Transportation Related Onshore
of Management and Budget under www.regulations.gov, including any
Facilities personal information provided, unless
Executive Order 12866 (58 FR 51735,
October 4, 1993); AGENCY: Environmental Protection
the comment includes information
• Does not impose an information Agency.
claimed to be Confidential Business
collection burden under the provisions ACTION: Proposed rule.
Information (CBI) or other information
of the Paperwork Reduction Act (44 whose disclosure is restricted by statute.
U.S.C. 3501 et seq.); SUMMARY: The Environmental Protection Do not submit information that you
• Is certified as not having a Agency (EPA) is proposing to amend the consider to be CBI or otherwise
significant economic impact on a dates by which facilities must prepare protected through regulations.gov or e-
substantial number of small entities or amend Spill Prevention, Control, and mail.
under the Regulatory Flexibility Act (5 Countermeasure (SPCC) Plans, and The Federal regulations.gov Web site
U.S.C. 601 et seq.); implement those Plans. The Agency is is an ‘‘anonymous access’’ system,
• Does not contain any unfunded also proposing to establish dates for which means that EPA will not know
mandate or significantly or uniquely farms to prepare or amend their Spill your identity or contact information
affect small governments, as described Prevention, Control, and unless you provide it in the body of
in the Unfunded Mandates Reform Act Countermeasure Plans (SPCC Plans), your comment. If you submit an
of 1995 (Pub. L. 104–4); and implement those Plans. EPA had electronic comment, EPA recommends
• Does not have Federalism delayed establishing compliance dates that you include your name and other
implications as specified in Executive for farms pending revisions to the SPCC contact information in the body of the
Order 13132 (64 FR 43255, August 10, rule that would specifically address this comment and along with any disk or
1999); sector. Two different extension dates are CD–ROM you submit. If EPA cannot
• Is not an economically significant proposed for farms and production read your comment due to technical
regulatory action based on health or facilities that meet the qualified difficulties and cannot contact you for

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Federal Register / Vol. 73, No.

229 / Wednesday, November 26, 2008 / Proposed Rules 72001

where the facility is located, a majority Agency (EPA).

or other extended care facilities have

12-month period. ADDRESSES: Submit your comments,

jlentini on PROD1PC65 with PROPOSALS

the report of a VA inspection and on OAR–2007–0209, by one of the

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

Chapter 39—Public Notice

Subchapter D—Public Notice of Air Quality Permits

Subchapter H—Applicability and General Provisions

Subpart K—Public Notice for Air Quality Permits

Chapter 55—Requests for Reconsideration and Contested Case Hearing

Subchapter B—Requests, Public Comment

Subchapter D—Applicability and Definitions

Subchapter E—Public Comment and Public Meetings

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

Subchapter B—New Source Review Permits

Division 1—Permit Application

Division 2—Compliance History

Subchapter D—Permit Renewals

Subchapter G—Flexible Permits

ensure compliance with these requirements than a index.cfm?fuseaction=main.SearchPublicNotice.

or 25 tpy of VOC or SO2 or PM10; or 25 deficiencies forming the basis of final

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