[Federal Register Volume 79, Number 3 (Monday, January 6, 2014)]
[Rules and Regulations]
[Pages 551-573]
[FR Doc No: 2013-30229]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0612; FRL-9904-03-Region-6]

Approval and Promulgation of Implementation Plans; Texas; Public
Participation for Air Quality Permit Applications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to the Texas State Implementation Plan (SIP) that establish
the public participation requirements for air quality permits. EPA
finds that these revisions to the Texas SIP comply with the Federal
Clean Air Act (the Act or CAA) and EPA regulations and are consistent
with EPA policies. Texas submitted the public participation provisions
in four separate revisions to the SIP on July 22, 1998; October 25,
1999; July 2, 2010; and March 11, 2011. EPA is finalizing this action
under section 110 and parts C and D of the Clean Air Act (the Act).

DATES: This final rule will be effective on February 5, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2010-0612. All documents in the docket are listed in
the http://www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information or other information the disclosure of which is restricted
by statute. Certain other material, such as copyrighted material, will
be publicly available only in hard copy. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas,
Texas 75202-2733. While all documents in the docket are listed in the
index, some information may be publicly available only at the hard copy
location (e.g., copyrighted material), and some may not be publicly
available at either location (e.g., CBI). To inspect the hard copy
materials, please schedule an appointment with the person listed in the
FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at
214-665-7253.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, Air Permits Section
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>; fax number
214-665-6762; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background for this Final Action
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background for this Final Action

    On December 13, 2012, EPA proposed approval of the July 22, 1998;
October 25, 1999; July 2, 2010; and March 11, 2011, revisions to the
Texas SIP that establish the public participation requirements for air
quality permits. See 77 FR 74129. In this proposed action we explained
that the Clean Air Act at section 110(a)(2)(C) requires states to
develop and implement permitting programs for attainment and
nonattainment areas that cover both construction and modification of
stationary sources. EPA codified minimum requirements for these State
permitting programs including public participation and notification
requirements at 40 CFR 51.160-51.164. There are additional detailed
public participation requirements in 40 CFR 51.166(q) for the
Prevention of Significant Deterioration (PSD) major permitting program.
    Our December 13, 2012, proposed approval and the accompanying
Technical Support Document provided the history of the Texas Public
Participation provisions in the Texas SIP and a summary of each of the
submitted revisions to the Texas SIP. The proposal identifies the
specific sections that were proposed for approval from the July 22,
1998; October 25, 1999; July 2, 2010; and March 11, 2011 SIP
submittals. Note that while we are acting on revisions to the Texas SIP
that were submitted in four separate packages, we collectively refer to
these rules as the Texas Public Participation SIP submittal from July
2, 2010 since the majority of the revisions were submitted on that
date.

II. Response to Comments

    EPA accepted comments on our proposed approval of the Texas public
participation SIP revisions for 60 days, through February 11, 2013. We
received comments from 7 organizations--the Texas Commission on
Environmental Quality (TCEQ), the Gulf Coast Lignite Coalition (GCLC),
the Association of Electric Companies of Texas (AECT), the Texas
Industry Project (TIP), the BCCA Appeal Group (BCCAAG), Luminant, and
the University of Texas Law Clinic on behalf of Air Alliance Houston,
Citizens for Environmental Justice, Texas Environmental Justice
Advocacy Services, Public Citizen and Environmental Integrity Project.
All comment letters can be found in their entirety in the docket for
this rulemaking. The following section summarizes the comments received
and provides responses to each. Note that comments are grouped together
into categories to assist the reader.

General Comments in Support of the Proposed Approval

    Comment 1: AECT stated that EPA's December 13, 2012, proposed
approval of the Texas Public Participation Rules as revisions to the
Texas SIP were adequately supported. As a result, the AECT requested
that EPA issue final approval of the Texas Public Participation
submittals as revisions to the Texas SIP.
    Response 1: EPA appreciates the support for our proposed approval.
No changes were made to the final rule as a result of this comment.
    Comment 2: GCLC and Luminant support EPA's December 13, 2012,
proposed approval of the Texas Public Participation rules as revisions
to the Texas SIP. The GCLC states that the submitted public
participation requirements are fully protective of Texans' ability to
thoroughly and adequately comment on air permit applications in the
state and meet and exceed federal public participation requirements.
Luminant states that the TCEQ has a robust regulatory program to ensure
the protection of human health and the environment in Texas, including
opportunity for public participation regarding issues before the
Commission.
    Response 2: EPA appreciates the support for our proposed approval.
Our December 13, 2012, proposal and the accompanying Technical Support
Document identified the manner in which the submitted rules satisfy all
necessary requirements for public participation under the CAA and EPA's
regulations. No changes were made to the final rule as a result of
these comments.
    Comment 3: GCLC believes that existing public participation
requirements and previous SIP submittals were more than adequate to
comply with the CAA, particularly with regard to Texas' contested-case
hearing process which is far more than required by federal law.
    Response 3: EPA appreciates GCLC taking the opportunity to comment
on our December 13, 2012, proposed approval of the Texas Public
Participation rules. However, we disagree with the commenter's
statement that the previous public participation requirements were
adequate under federal law. EPA believes the previous public
participation requirements were inadequate to implement the
requirements of the CAA and EPA's regulations, thus we proposed limited
approval/limited disapproval on November 26, 2008. See 73 FR 72003. EPA
withdrew our proposed limited approval/limited disapproval on November
5, 2010, only after the TCEQ had adopted and submitted revised public
participation rules that replaced the previous SIP submissions and
addressed our concerns identified in the proposed limited approval/
limited disapproval. See 75 FR 68291. TCEQ's own comment letter
acknowledges that the ``new and amended rules submitted to EPA in July
2010 were adopted in response to EPA's notice proposing limited
approval and limited disapproval of TCEQ's outstanding SIP revisions
regarding public participation.'' See February 11, 2013 letter from
TCEQ to EPA in the docket for this rulemaking.
    Regardless, our December 13, 2012, proposed action evaluated the
revised public participation rules submitted as revisions to the Texas
SIP on July 2, 2010, by the TCEQ and found the submitted rules to be
adequate under federal law as described in our proposal and
accompanying TSD. We note that contested case hearings were not
submitted for EPA's review and therefore the contested case hearing
process is outside the scope of this final rule action.
    Comment 4: The BCCAAG and TIP supports EPA's December 13, 2012,
proposed approvals of each applicable Texas regulation in EPA's
proposed notice at 77 FR 74129. The BCCAAG and TIP state that these
regulations comply with the FCAA and are an important part of the Texas
air quality permitting program.
    Response 4: EPA appreciates the support for our proposed approval.
No changes were made to the final rule as a result of this comment.
    Comment 5: The TCEQ commented that the new and amended rules
submitted to EPA in July 2010 were adopted in response to EPA's
proposed limited approval and limited disapproval. The TCEQ recognizes
that EPA has reviewed and proposed approval of most of the rules
submitted in 2010, as well as in earlier submittals, stating that all
outstanding issues were adequately addressed.
    Response 5: EPA appreciates the support of the TCEQ for our
proposed rulemaking. We note that the TCEQ's cooperation and
willingness to collaborate with the Region 6 office has enabled us to
propose full approval of the revised public participation rules, as
submitted July 2, 2010. No changes were made to the final rule as a
result of this comment.

    Comment 6: The TCEQ supports EPA's determination that TCEQ meets,
and in some cases exceeds, the minimum federal requirements and
therefore has proposed full approval of public participation rules
submitted in 1998, 1999, 2010 and 2011. The TCEQ noted that the EPA
correctly observes that the Notice of Receipt of Application and Intent
to Obtain Permit (NORI) is a unique element to the Texas permit program
that is not federally required. TCEQ also commented that it is
important to acknowledge that TCEQ's comment period exceeds federal
requirements. Comments are considered timely if filed any time after
the NORI is published and through the end of the comment period. This
timeline encompasses the administrative completeness determination, the
NORI publication period, the technical review period, as well as the
comment period associated with the Notice of Application and
Preliminary Decision (NAPD), which may be more than 30 days if
alternate language publication is required and that publication is
after the English language publication. Therefore, the state comment
period greatly exceeds the federal requirement in length of time, thus
affording greater opportunity for public participation.
    Response 6: EPA appreciates the support for our proposed approval.
As detailed in our proposal and accompanying TSD, EPA finds that the
public participation provisions as submitted in four separate revisions
to the SIP satisfy the minimum federal requirements for public
participation consistent with the CAA and EPA regulations. We agree
with the TCEQ that our analysis has identified some provisions of the
Texas public participation process that go beyond the minimum
requirements--such as the requirement to publish notice of the
application (first notice, or NORI) or to require sign-posting. No
changes were made to the final rule as a result of this comment.
    Comment 7: The TCEQ notes that EPA correctly observes that the
comment period runs for 30 days after last publication of the NAPD,
and, by proposing approval of these rules, acknowledges that the TCEQ's
comment period for minor and major NSR permit applications that are
subject to the requirements of Chapters 39, 55, and 116 meets the
minimum federal requirements for a 30 day period after the draft permit
is made available for review.
    Response 7: EPA appreciates the support for our proposed approval.
We agree with the TCEQ that the comment requirement for the comment
period to run 30 days after last publication of the NAPD meets the
minimum federal requirements for a 30-day comment period after the
draft permit is available for review. No changes were made to the final
rule as a result of this comment.
    Comment 8: UT Law Clinic commented that the proposed rules do
correct some clear legal shortcomings in Texas' public participation
requirements for the Major permitting programs, the Nonattainment New
Source Review (NNSR) and Prevention of Significant Deterioration (PSD)
applications.
    Response 8: EPA appreciates the support. No revisions were made to
the final rule as a result of this comment.

Comments Regarding Severability

    Comment 9: EPA received several comments on our approach of taking
no action for the public participation provisions at 30 TAC
116.111(a)(2)(K) and 30 TAC 116.116(b)(3), relating to HAPs permitting
under CAA 112(g) and 40 CFR Part 63. The BCCAAG and TIP concur with
EPA's analysis that 30 TAC 116.116(b)(3) should not be part of the
Texas SIP. The TCEQ understands that EPA is taking no action on the
October 25, 1999 submittal of 30 TAC 116.111(a)(2)(K) and
116.116(b)(3). The TCEQ further notes that EPA returned 30 TAC
116.111(a)(2)(K) and 116.116(b)(3) by letter on June 29, 2011.
    Response 9: EPA agrees with TCEQ's assessment of the scope of this
approval action. No changes were made to the final rule as a result of
this comment.
    Comment 10: EPA received several comments on our decision to take
no action on the public participation provisions for new flexible
permits and flexible permit amendments at 30 TAC 39.402(a)(4) and
(a)(5). The TCEQ recognizes that the EPA is taking no action on the
public participation rules for new flexible permits and flexible permit
amendment applications (adopted June 2, 2010). The BCCAAG and TIP
request that EPA approve 30 TAC 39.402(a)(4) and (5) rather than take
no action, as proposed. The BCCAAG and TIP identified the following
reasons EPA should act on the public participation provisions for
Flexible Permits:
    1. EPA has a statutory obligation to act on these SIP submittals
for public participation for flexible permits.
    2. EPA's prior disapproval of the Flexible Permit program does not
provide a basis to delay action on the submitted sections.
    3. Analysis of the 402(a)(4) and (a)(5) provisions does not reveal
any concerns since the provisions require Flexible Permit holders to
follow procedures that EPA is otherwise proposing to approve.
    Response 10: EPA agrees that we have a statutory obligation to act
on the SIP submittal for public participation for flexible permits;
however we have chosen to sever the flexible permit public
participation provisions per our SIP approval authority and discretion
under the CAA and address those public participation provisions in the
future with the flexible permit program as a whole in a separate SIP
action. This approach will prevent any misunderstanding among the
regulated community that would arise if a public participation pathway
was approved for a permitting program that is not currently approved
into the Texas SIP. Additionally, EPA has not finished its review of
the flexible permitting program and how its public participation
process is intertwined. Further, there is nothing in the Act that
prohibits the bifurcation of our action. Finally, this approach was
anticipated and supported by the TCEQ as explained in the final Texas
Register. See 35 TexReg 5223, June 18, 2010. No revisions were made to
this final rule as a result of this comment.
    Comment 11: EPA received several comments on our decision to take
no action on the public participation provisions for portable
facilities at 30 TAC 39.402(a)(12). The TCEQ recognizes that EPA is
taking no action on the public participation rules for portable
facilities (adopted February 10, 2010) because these provisions are
associated with rules for permitting programs which have not yet been
reviewed by EPA. The BCCAAG and TIP request that EPA approve 30 TAC
39.402(a)(12) and 30 TAC 116.20 and 30 TAC 116.178 as submitted March
19, 2010. The BCCAAG and TIP note that EPA has a statutory obligation
to act on the portable facility rules and public participation
requirements.
    Response 11: EPA has a statutory obligation to act on the SIP
submittal for public participation for portable facilities; however we
have chosen to sever the portable facility public participation
provisions per our SIP approval authority and discretion under the CAA.
As explained in our December 13, 2012, proposal, EPA has not evaluated
the public participation provisions for portable facilities at 30 TAC
39.402(a)(12) for inclusion in the Texas SIP because we have not yet
acted on the underlying definitions and permitting rules for portable
facilities at 30 TAC 116.20 and 116.178, respectively. EPA will address
the definitions and permitting provisions for the Relocations and
Changes of

Location of Portable Facilities at a separate time and in a separate
action. We will address the public participation requirements for
portable facilities at that time. This approach will prevent any
misunderstanding among the regulated community that would arise if a
public participation pathway was approved for a permitting program that
is not currently approved into the Texas SIP. Additionally, EPA has not
finished its review of the portable facility rules and how the public
participation process for portable facilities is intertwined. Further,
there is nothing in the Act that prohibits the bifurcation of our
action. No revisions were made to this final rule as a result of this
comment.
    Comment 12: TCEQ recognizes that EPA is taking no action on the
public participation rules for FutureGen (adopted February 22, 2006),
which is associated with rulemakings for permitting programs which have
not yet been reviewed by EPA.
    Response 12: EPA has a statutory obligation to act on the SIP
submittal for public participation for FutureGen applications; however
we have chosen to sever the FutureGen public participation provisions
per our SIP approval authority and discretion under the CAA. As
explained in our December 13, 2012, proposal, EPA had not evaluated the
public participation provisions for applications for permits,
registrations, licenses, or other type of authorization required to
construct, operate, or authorize a component of the FutureGen project
at 30 TAC 39.402(a)(10) for inclusion in the Texas SIP because we had
not yet acted on the underlying definitions and permitting rules for
the FutureGen project at 30 TAC Chapter 91. Since the time of our
proposal on public participation, EPA has separately completed our
review of the FutureGen program, including the public participation
requirements. EPA signed a direct final approval of the FutureGen
program rules on November 1, 2013. Information regarding this separate
rulemaking can be found in the FutureGen docket, EPA-R06-OAR-2006-0593.
No revisions were made to this final rule as a result of this comment.
    Comment 13: TCEQ agrees with EPA's decision to take no action on 30
TAC 39.405(h)(1)(B). EPA inadvertently included this provision in the
proposed SIP analysis because TCEQ did not include this rule as part of
its submittal.
    Response 13: EPA appreciates the comment. We agree with the TCEQ
that we erred in our proposal when we identified 30 TAC 39.405(h)(1)(B)
as submitted as a SIP revision on July 2, 2010. Today's final action
corrects this error.
    Comment 14: UT Law Clinic commented that to the extent EPA finds
other provisions of the Texas submittal separable, EPA should require
Texas to commit to correcting the additional deficiencies identified in
order to obtain a conditional approval of those provisions.
    Response 14: Our proposed rulemaking identified the reasons for
severing and taking no action on the portions of the submittal relevant
to public participation for Flexible Permits, FutureGen permitting, and
Portable Facilities. EPA has not yet evaluated these programs;
therefore, there are no identified deficiencies in the programs to be
corrected. However, in this action, we are finalizing our proposed
approval of the Texas public participation program. As explained in
this response to comments, for those portions of the July 2, 2010, SIP
submittal for public participation we are taking action on, we do not
find any deficiencies in Texas's public participation program as it is
currently submitted to EPA for review. So, further severing of
provisions from this action in order to resolve deficiencies is
unnecessary. No revisions have been made to the final rule as a result
of this comment.

Comments Regarding Environmental Justice

    Comment 15: UT Law clinic commented that EPA has a mandate to
provide members of Environmental Justice communities with the
``opportunity to participate in decisions about activities that may
affect their environment and/or health''.
    Response 15: EPA aims to provide meaningful involvement in the
decision-making process to all people, regardless of race, color,
national origin, or income. Our December 13, 2012, proposal and today's
final action have been closely analyzed to ensure federal requirements
have been satisfied for public participation under the CAA and EPA's
regulations. For more discussion on how our proposal and final action
on the Texas public participation rules meet or satisfy minimum federal
requirements please see comment and response 22. EPA believes it is
important to recognize and work with Environmental Justice communities
to assure their full participation in permitting activities; however,
we note that there are no specific statutes or regulations giving EPA
authority to require a state's SIP to address public participation
opportunities for Environmental Justice communities. Rather, EPA is
subject to Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations. (59 FR 7629, February 16, 1994). Through our compliance
with EO 12898 we work to identify minority communities and low-income
communities that may be disproportionately impacted by a specific
rulemaking. EPA endeavors in every rulemaking to ensure each member of
the public has an equal opportunity for public participation. The
public participation provisions are designed to apply consistently
statewide and provide every member of the public the opportunity to
review and submit comments on a proposed permit application. These
public participation provisions meet the federal requirements for
public participation. The TCEQ also requires additional notice and
opportunity through the NORI publication. Further, the sign postings
and alternate language publication provisions of the Texas rules are
specifically targeted to ensuring environmental justice communities
receive fair notice and opportunity to comment. No changes were made to
our final rule as a result of this comment.
    Comment 16: UT Law Clinic also commented that the approval of the
proposed public participation rules would exacerbate public
participation inadequacies that Texas communities have complained about
for years.
    Response 16: The commenter did not provide specific examples of the
``public participation inadequacies that Texas communities have
complained about for years''; however, the comment letter discusses a
variety of specific issues throughout and had attached several
petitions that environmental groups have previously submitted to EPA
under the Administrative Procedures Act.\1\ These petitions discuss
various issues regarding Texas's air permitting program, including some
of the specific issues that are also noted in the comment letter. Where
the UT Law Clinic submitted specific issues, we have addressed those
comments below with respect to our proposed approval of the July 2,
2010 public participation submittal. We note that, insofar as where
Texas's public participation program as submitted meets the public
participation requirements in Title I of the CAA and the applicable
federal

requirements, EPA must approve the submittals. EPA's proposed limited
approval limited disapproval noted several deficiencies in Texas's
prior public participation program. For reasons explained throughout
this document, we find that the State's revised July 2, 2010 submittal
cures these deficiencies. No changes were made to our final rule as a
result of this comment.
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    \1\ ``Petition for EPA Action Addressing Texas' Air Permitting
Program Deficiencies, Environmental Integrity Project (August 28,
2008); and First Supplement to Petition for EPA Action Addressing
Texas' Air Permitting Program Deficiencies, Environmental Integrity
Project (January 5, 2009).''
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Comments Regarding the Requirements of the Existing SIP-Approved Public
Participation Rules

    Comment 17: UT Law Clinic commented that the EPA misrepresented the
public participation requirements of the current Texas SIP. UT Law
Clinic commented that EPA's proposed approval states that the current
SIP only requires public notice of amendments at the discretion of the
TCEQ Executive Director. But, contrary to EPA's assertions, the UT Law
Clinic comments that the current Texas SIP requires public
participation for all permit applications, including applications for
any modifications.
    Response 17: EPA disagrees with the commenter's interpretation of
the current public participation requirements in the existing Texas
SIP. The current SIP-approved requirements for public participation are
found at 30 TAC 116.130-116.137. The applicability of these
requirements is found at 30 TAC 116.130(a) as follows: ``Any person who
applies for a new permit or permit renewal shall be required to publish
notice of the intent to construct a new facility or modify an existing
facility or renew a permit. The notice shall be published in a
newspaper in general circulation in the municipality where the facility
is located or to be located. Any person who applies for a permit
amendment shall provide public notification as required by the
executive director'' (emphasis added).\2\
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    \2\ Public notice for permit amendments at the discretion of the
TCEQ Executive Director is only applicable to minor permit
amendments. 30 TAC 116.131(a) requires that ``for any permit subject
to the FCAA, Title I, Part C or D, or to Title 40 Code of Federal
Regulations (CFR), Part 51.165(b), the executive director shall
state a preliminary determination to issue or deny the permit and
require the applicant to conduct public notice of the proposed
construction.'' Therefore, a permit application for a new major
source or major modification subject to PSD/NNSR permitting
requirements is required to go through public notice.
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    The applicability statement at 30 TAC 116.130(a) creates three
categories of permit actions: (1) New permits, (2) permit renewals and
(3) permit amendments. This subdivision of the types of permit actions
is consistent with an analysis of the Texas SIP permitting provisions
at 30 TAC Chapter 116, Subchapter B, Sections 116.110 and 116.111. The
Applicability of the Permit Application Requirements at 30 TAC
116.110(a) requires a construction permit for any new facility or
modification of any existing facility. This construction permit will be
issued under the General Application provisions at 30 TAC 116.111. Note
that if the construction permit is for a new major stationary source or
a major modification, then the General Applicability provisions at 30
TAC 116.111 direct the applicant to the SIP-approved permitting
provisions for PSD and NNSR. If the construction permit is for a minor
NSR permit or a minor permit modification, the permit will be issued
pursuant to the case-by-case minor permit provisions of 30 TAC 116.116
or will satisfy the conditions of a Standard Permit or a Permit by
Rule. The General Applicability provisions at 30 TAC 116.110(b) further
state that minor modifications to existing permitted facilities may be
handled through the amendment of an existing permit. Thus the SIP-
approved Texas permit program designates a permit amendment as one type
of permitting action that can be used to authorize a modification to an
existing facility. Other types of permitting actions that could be used
for modifications at existing facilities would include standard
permits, permits by rule, and permit alterations.
    EPA believes that the commenter misinterpreted the Texas permitting
program such that a minor permit modification is a specific type of
permit application that would have its own public notice requirements.
As presented previously, minor modification of an existing source is
accomplished through a permit amendment, standard permit, permit by
rule, or permit alteration. Because the SIP approved permitting program
recognizes new permits, permit renewal and permit amendments, EPA's
proposed approval is correct in its characterization of the SIP-
approved public notice requirements for minor permit amendments.
Pursuant to the SIP-approved language at 30 TAC 116.130(a), minor
permit amendments only go through public notice to the extent required
by the TCEQ Executive Director. The July 2, 2010 public notice SIP
submittal improves upon the public notice requirements for minor permit
amendments. The new rules retain and refine the TCEQ's Executive
Director's discretion provisions to apply to only two specific types of
minor permit amendments--only those minor permit amendments that are
below the ``de minimis'' and ``insignificant'' thresholds. No changes
were made to the final rule as a result of this comment.
    Comment 18: UT Law Clinic commented that under the revised rules,
public participation would be required only for modifications that meet
the definition of ``amendment'' and that meet one of the criteria in 30
TAC 39.402(a)(3)(B) or (a)(3)(C). This narrowing of the universe of
modifications subject to public participation weakens the existing SIP-
approved public participation requirements.
    Response 18: As discussed in Comment/Response 17, the commenter has
misunderstood the current SIP-approved public notice and permitting
provisions in the Texas Program for minor modifications. A minor
modification of an existing facility is not a specific permit action
that goes through public notice. Rather, when a facility will be
modified (pursuant to the SIP-approved definition of modification at 30
TAC 116.10) and the modification is below the major NSR thresholds, the
source owner or operator must apply for a permit amendment or permit
alteration or for other applicable permit actions such as a standard
permit or permit by rule to address the minor modification.
    Under the current SIP, any minor modification that is permitted as
a permit amendment will only go to public notice at the discretion of
the Executive Director. In contrast, the revised public participation
rules submitted July 2, 2010, require minor NSR permit amendments to go
through public notice if the emission rates exceed the ``de minimis''
and ``insignificant'' thresholds. Further, the Executive Director has
the discretion to require notice for any minor permit amendments that
fall below the ``de minimis'' and ``insignificant'' thresholds if the
Executive Director determines these permit amendments to have a
reasonable likelihood for significant public interest in a proposed
activity, emissions to impact a nearby sensitive receptor, a high
nuisance potential from the operation of the facilities, or the
application involves a facility in the lowest classification under
Texas Water Code, Sec.  5.753 and Sec.  5.754 and 30 TAC Chapter 60. In
contrast to the SIP-approved Executive Director discretion for minor
permit amendments, which essentially provides the Executive Director
with the authority to exempt all minor permit amendments from public
notice, the revised rules submitted July

2, 2010, that are being approved today only provide for the Executive
Director to exercise discretion in requiring additional notice if the
criteria presented above are satisfied. Therefore, the revised rules
expand the public notice requirements to cover the majority of minor
permit amendment applications. EPA views this expansion of public
notice requirements for minor modifications to be an improvement of the
SIP instead of the weakening purported by the commenter. No changes
were made to the final rule as a result of this comment.
    Comment 19: UT Law Clinic commented that, although the current SIP
does include provisions regarding alterations, it does not exempt
modifications authorized by alterations from public participation
requirements, including notice and the opportunity for public comment.
The commenter also submitted several examples of alterations being used
in permits.
    Response 19: Minor modifications to an existing facility are not a
specific type of permit action under the SIP-approved Texas permit
program. Rather, when a facility chooses to make a minor modification
at an existing major or minor facility, the source owner or operator
will choose to get authorizations for that minor modification through a
permit amendment, permit alteration, standard permit or permit by rule.
Therefore, the commenter is incorrect when stating that the current SIP
requires public participation for minor modifications authorized by
alterations. The existing SIP requirements for permit alterations,
which are outside the scope of today's rulemaking, exempt permit
alterations from public notice as explained at 67 FR 58697, September
18, 2002.

Comments Regarding the Proposed Rules Weaken the Existing SIP-Approved
Public Participation Requirements

    Comment 20: UT Law Clinic commented that EPA proposes to approve
rules that weaken existing public participation requirements and that
create new loopholes that eliminate all public participation for many
minor new source review applications, including those at major sources
in nonattainment areas.
    Response 20: EPA disagrees with the commenter. As our proposal
explained, the revised public participation rules submitted on July 2,
2010, either improve upon the existing SIP-approved public
participation requirements or maintain the status quo for all types of
permit applications subject to the Chapter 39 public participation
requirements.
     For permit applications for major new sources and major
modifications subject to PSD or NNSR permit requirements the revised
rules represent no substantive change in the existing SIP-approved
requirements. Permit applications for new major sources or major
modifications subject to PSD and NNSR permit requirements must go
through NORI and NAPD notice.
     Public notice requirements for PAL permit applications are
not explicitly provided for in the current SIP-approved public notice
requirements. However, as discussed in the proposal and TSD, the public
notice requirements for PAL permit applications are consistent with
federal requirements and require NAPD notice.
     Public notice requirements for renewal permit applications
are consistent with the current SIP-approved requirements. As noted in
the proposal, there is no federal requirement for a Title I permit
renewal, therefore EPA views any renewal permit and the subsequent
public notice to enhance Texas's SIP-approved permit renewals program.
     TCEQ's revised regulations for public participation
increase opportunities for public involvement in Minor NSR permitting
decisions compared to the current SIP-approved requirements. For permit
applications for new minor sources the revised July 2, 2010, public
notice rules maintain the status quo and require NORI and NAPD notice.
However, as explained in Comment/Response 17 the current SIP-approved
public notice requirements for minor permit amendment applications is
at the discretion of the Executive Director. This means that under the
current SIP, many minor permit amendment applications may receive no
notice at all. In response to our proposed limited approval/limited
disapproval, the July 2, 2010, public participation SIP submittal
expanded the publication of the NAPD to cover Minor NSR permit
applications and specified Minor NSR permit amendment applications. The
new rules also require permit amendment applications to go through NORI
and NAPD if the amendment is for a change in the character of emissions
or the release of an air contaminant not previously authorized.
Further, the revised rules require NORI and NAPD public notice for all
new minor sources and all permit amendments above identified ``de
minimis'' and ``insignificant'' thresholds. For permit amendment
applications with emissions less than these thresholds, the TCEQ
justified its approach using de minimis principles like those
established in Ala. Power Co. v. Costle, 636 F.2d 323, at 360-361 (D.C.
Cir. 1979) [hereinafter Alabama Power]. See the June 18, 2010 Texas
Register, pages 5224-5230. Requiring NORI and NAPD notice for
amendments above a specified emissions threshold is more stringent than
the existing SIP; which only requires public notice of minor amendments
at the discretion of the Executive Director.
    EPA's proposal and our analysis of the July 2, 2010, public notice
submittal did not identify any public notice loop holes that violate
the relevant requirements in the CAA or federal regulations. Rather, we
have identified an expansion of public notice requirements for minor
permit amendments above certain thresholds. For the minor permit
amendment applications below the thresholds, there is either no public
notice (which maintains the status quo of the current SIP requirements)
or the Executive Director can exercise the provided discretion to
require public notice if there is reasonable likelihood for significant
public interest in a proposed activity, there is reasonable likelihood
for emissions to impact a nearby sensitive receptor, there is
reasonable likelihood for a high nuisance potential from the operation
of the facilities, or the application involves a facility in the lowest
classification under Texas Water Code, Sec.  5.753 and Sec.  5.754 and
30 TAC Chapter 60. No changes were made to the final rule as a result
of this comment.
    Comment 21: UT Law Clinic commented that the Texas rules at 30 TAC
39.402 create new exemptions from public participation requirements.
Specifically, the Texas rules at 30 TAC 39.402 limit public
participation to only certain types of modifications, those that are
defined as ``amendments'' and that meet the one or more of the
conditions in 30 TAC sections 39.402(a)(3)(A), (B), (C), or (D), or 30
TAC 39.402(a)(6). Unlike the existing SIP rules, the rules proposed for
approval exempt large classes of modifications from all public
participation. Their approval would, therefore, weaken the existing
SIP.
    Response 21: EPA disagrees with the commenter that the existing SIP
requires public participation for all minor modifications. The existing
SIP only requires public participation for new minor permit
applications or renewal applications. Applications for minor permit
amendments are only required to go through notice to the extent
determined by the Executive Director. Therefore, the commenter is
inaccurate

in the assertion that the existing SIP requires public participation
for all minor modifications.
    EPA also disagrees that the new rules submitted July 2, 2010, at 30
TAC 39.402 create new exemptions from public participation requirements
and limit public participation to only certain types of minor
modifications. The revised public participation rules maintain the
existing stringency of the SIP requirements for major NSR and new minor
stationary sources and provide more opportunities for public
participation for minor modifications to existing facilities. In the
following paragraphs we will address each portion of the applicability
provisions of the July 2, 2010 rules as requested by the commenter.
     The public notice requirements at 30 TAC 39.402(a)(3)(A)
do not limit public notice. Section 39.402(a)(3)(A) requires public
notice for any minor permit amendment application where there is a
change in character of emissions or release of an air contaminant not
previously authorized under the permit, regardless of whether the
emissions are below the ``de minimis'' and ``insignificant''
thresholds. The current SIP only requires minor permit amendments to go
to notice at the discretion of the Executive Director, so even if a
minor permit amendment was for an air contaminant not previously
emitted there was no requirement for public notice unless the increase
in emissions triggered NNSR or PSD.
     With respect to the requirements at 30 TAC 39.402(a)(3)(B)
and 39.402(a)(3)(C) as submitted on July 2, 2010, for minor
modifications public notice is expanded to cover minor permit
amendments that exceed the specified ``de minimis'' and
``insignificant'' thresholds. While 30 TAC Sections 39.402(a)(3)(B) and
39.402(a)(3)(C) do establish two thresholds below which public
participation is not required, the establishment of these two
thresholds actually represent an expansion over the existing SIP-
approved public notice requirements for minor permit amendments. Under
the current SIP, minor permit amendment applications regardless of
permitted emission rate do not go to notice unless required by the
Executive Director. EPA maintains that the establishment of the ``de
minimis'' and ``insignificant'' thresholds provide opportunities for
more minor permit amendments to go through public notice compared to
the existing SIP requirements. As explained in previous Comment/
Response 20, these two categories of thresholds are narrower than the
existing SIP requirements and cannot be considered a weakening. With
the addition of these two thresholds, the TCEQ is now requiring public
notice for all minor permit amendment applications above either of the
thresholds, which is a significant expansion of the minor NSR SIP
requirements for public participation. The TCEQ submitted an
explanation of how the thresholds were established that demonstrated
the thresholds do not impact air quality in Texas. Further, EPA finds
that Texas's ``de minimis'' and ``insignificant'' thresholds do not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171), or any other
applicable requirement of the CAA, as required by section 110(l).
     The requirements at 30 TAC 39.402(a)(3)(D) establish the
criteria that the TCEQ Executive Director will use to require public
notice for minor permit amendment applications that would not otherwise
go through the public notice process because the minor permit
amendments are below either of the two thresholds. This use of
Executive Director Discretion is in direct contrast to the discretion
currently provided for in the Texas SIP. In the SIP-approved public
notice rules the Executive Director has the discretion to exempt every
minor permit amendment application from public notice. The rules
submitted on July 2, 2010, at 30 TAC 39.402(a)(3)(D) do not allow for
the Executive Director to remove a requirement, rather these rules
provide a set of criteria for the Executive Director to require
additional public notice not already required by the rules. This type
of director discretion does not limit public notice and does not
violate the relevant requirements in the CAA and federal regulations.
Further, EPA views the criteria under which the Executive Director can
require additional notice for minor permit amendments as creating a
consistent mechanism that will improve implementation of the Texas
minor NSR permit program.
     The requirements at 30 TAC 39.402(a)(6) require public
notice for permit renewals. There is no federal requirement for a title
I permit renewal, so any requirement for public notice of such a
renewal enhances the Texas air permitting program and provides
opportunity for public notice beyond federal requirements.
    For the reasons stated above, EPA disagrees that the revised public
participation rules submitted July 2, 2010 create new exemptions from
public notice requirements. No changes have been made to the final rule
as a result of this comment.

Comments Regarding the Minor NSR Public Notice Requirements Specific to
Two Types of Minor NSR Permit Amendment Applications

    Comment 22: UT Law Clinic commented that ``public participation is
necessary to maintain air quality under the CAA.'' See 77 FR 74129,
74130 (Dec. 13, 2012); 60 FR 45530, 45548 (citing 38 FR 15834, 15836
(1973) and NRDC v. EPA, No. 72-1522 (D.C. Cir.) See also 61 FR 38250,
38276 and 38320.
    Response 22: We agree with the commenter. In fact, TCEQ's revised
regulations for public participation that we are approving today
increase opportunities for public involvement in Minor NSR permitting
decisions. TCEQ's revised rules require that all applications for new
Minor NSR sources go through full public notice with the NORI and NAPD,
improve the public notice opportunities for permit amendments, and
define and limit conditions for use of the Executive Director's
discretion. All permit amendment applications now are subject to public
notice if changes to the permits authorize a change in the character of
emissions or a release of an air contaminant not previously authorized.
Permit amendment applications that increase emissions above either of
the two thresholds now are subject to public notice. TCEQ's revised
rules enhance public participation by creating tiered, public notice
requirements for permit amendments. Unlike the existing SIP
regulations, the revised rules now require that most permit amendments
go through full public notice with the NORI and NAPD. But, the new
rules retain and refine the TCEQ's director's discretion provisions for
minor permit amendments below the ``de minimis'' and ``insignificant''
thresholds. For these amendments, TCEQ will not automatically require
an opportunity for public participation. TCEQ justified its approach
for permit amendment applications with emissions less than these
thresholds using de minimis principles like those established in
Alabama Power.
    As we explain in Comments/Responses 39-40, Texas tailored the scope
of its Minor NSR permit program. Specifically, Texas identified ``de
minimis'' and ``insignificant'' thresholds for which review with public
participation may or may not be necessary depending on whether the
amendment triggers public review under the specified Executive
Director's criteria. TCEQ has made an adequate

justification that the Texas tiered public participation program
satisfies the provisions of 40 CFR 51.160(e) and 51.161. No changes
were made to the final rule as a result of this comment.
    Comment 23: UT Law Clinic commented that even if Alabama Power
could be read to give agencies the authority to create de minimis
exceptions to their regulations, the exceptions created by the Texas
rules do not qualify as de minimis. The actual modifications that Texas
has entirely exempted from public participation are not de minimis or
environmentally insignificant.
    Response 23: EPA disagrees with the commenter. EPA recognizes a
state's ability to tailor the scope of its Minor NSR program as
necessary to achieve and maintain the NAAQS in accordance with CAA
110(a)(2)(C). EPA has reviewed the TCEQ's analysis and determined that
the state established ``de minimis'' and ``insignificant'' thresholds
meet federal requirements. EPA's evaluation of the adequacy of the
State's demonstration is in our proposal at 77 FR 74129, at 74136-74140
and Comments/Responses 39-40 =. The commenter did not provide any
specific evidence that disputes the demonstration provided by Texas,
nor did the commenter provide any alternative metrics the EPA should
consider when evaluating the scope of the applicability of the ``de
minimis'' or ``insignificant'' thresholds submitted by TCEQ. The minor
permit amendments are still processed pursuant to the SIP-approved
Minor NSR permitting program and will only be issued by the TCEQ if
demonstrated to be protective of the NAAQS and increment. We note that
the ``de minimis'' and ``insignificant'' thresholds are only used to
distinguish those minor permit amendment applications that require full
review, including public notice, from those that may not. See 77 FR
74138-74139. But the thresholds do not affect any part of the technical
review of these minor permit amendment applications or the requirement
to comply with other requirements such as application of required
control technology, reporting when required to the emissions inventory,
and analysis of monitoring data. No revisions were made as a result of
this comment.
    Comment 24: The EPA has repeatedly refused to fully approve
programs that provide a ``blanket exemption'' from one or more public
notice requirements of Part 51. The commenter referenced EPA actions at
73 FR 20536, at 20545-46 on April 16, 2008, and at 73 FR 72001, at
72008 on November 26, 2008.
    Response 24: The commenter has not shown that the state established
``de minimis'' and ``insignificant'' thresholds under the Texas program
are not approvable. The commenter cites two Federal Register notices
regarding ``blanket exemptions'' from public notice requirements, but
does not explain how the disapproved exemptions worked or compare the
disapproved exemptions to the Texas ``de minimis'' or ``insignificant''
thresholds. In sum, the commenter did not demonstrate that any previous
EPA action provides a basis for disapproving the submitted revisions to
the Texas public participation requirements.
    Despite the commenter's failure to describe or explain the
relevance of the Federal Register citations, EPA has reviewed the April
16, 2008, final partial approval and partial disapproval action for
Nevada referenced by the commenter, and confirmed that it provides no
basis for disapproving the Texas program because Nevada's SIP submittal
is distinguished from the Texas public participation rules at issue
here. In the April 16, 2008 final rule, EPA disapproved Nevada's
blanket exemption from public notice for sources below 100 tons per
year (tpy) because the State had not provided any demonstration to
justify its limitation on the scope of its Minor NSR permitting
requirements. Thus, EPA suggested that the State consider ``lowering
the mandatory public notice thresholds from 100 tons per year.'' 73 FR
20536, at 20546. Contrary to the situation in Nevada, the TCEQ has
submitted a demonstration for both the ``de minimis'' and
``insignificant'' thresholds. For the small subset of minor permit
amendment applications that are below the ``de minimis'' and
``insignificant'' thresholds and are not subject to full review, as
discussed more fully in Comment/Response 39-40, the TCEQ has
demonstrated this tailoring of the Minor NSR program is consistent with
the CAA and EPA's regulations. Additionally, the Texas rules provide
for public notice below these thresholds at the discretion of the TCEQ
Executive Director--which is one of the suggested remedies provided by
EPA for Nevada to consider in a subsequent rule change. See id.
    EPA also reviewed the other Federal Register notice cited by the
commenter, the November 26, 2008, proposed limited approval and limited
disapproval in Texas. The section of that proposal referenced by the
commenter generally highlights the need for public participation
programs to comply with 40 CFR Part 51, and describes previous EPA
rulemakings concerning such programs. The cited proposed rule notes
that EPA ``approved Oregon's Minor NSR program establishing categories
of Minor NSR permit actions,'' with differing levels of public review.
See 73 FR 72008. The cited proposed rule also indicates that EPA
``disapproved or gave partial approval to Minor NSR public
participation requirements'' that did not allow a 30-day comment
period. See 73 FR 72008. The commenter does not specifically discuss
the proposed approval of the Texas public notice provisions or any of
the specific program approval decisions mentioned in that notice. And
the commenter has not shown how or why any of the cited EPA actions
provide any basis for questioning EPA's approval of the Texas ``de
minimis'' and ``insignificant'' thresholds.
    EPA finds that the commenter failed to demonstrate relevancy of the
cited EPA actions (73 FR 20536, at 20545-46 on April 16, 2008, and at
73 FR 72001, at 72008 on November 26, 2008) to our proposed approval of
the Texas public participation program. However to be clear and
transparent in our rulemaking, we have reviewed the above cited
actions, and the additional actions internally referenced within the
April 16, 2008 and November 26, 2008 actions, and present the following
discussion of each referenced rulemaking and how that rulemaking is
either relevant or not relevant to the Texas rule at hand.
     68 FR 2891, January 22, 2003--EPA's direct final approval
of the Oregon Minor NSR program. In that final rule, EPA approved
Oregon's tailoring of public participation requirements, in which the
State created four categories of permit actions and established public
participation criteria for each category. Similar to EPA's evaluation
of the Oregon public participation rules, our analysis of the Texas
public participation rules has demonstrated that Texas has tailored its
public participation process in a manner that is consistent with the
requirements for public participation set forth in 40 CFR 51.161 for
minor source permits. EPA finds that our basis for this referenced rule
is relevant to support our final rulemaking. Furthermore, Texas has
demonstrated that using the ``de minimis'' and ``insignificant''
thresholds will have no adverse impact upon the existing air quality in
the State of Texas.
     65 FR 2042, January 13, 2000--EPA's final partial approval
and partial disapproval of the West Virginia Minor NSR program. In that
final action EPA disapproved a 15-day public comment

period for some Minor NSR actions because the State did not submit a
demonstration. This disapproval is not applicable to the Texas public
participation rules. As discussed in our December 13, 2012 proposal and
Comments/Responses 39-40, EPA has received and evaluated the Texas
demonstration for the ``de minimis'' and ``insignificant'' thresholds
and determined that the state's demonstration is consistent with the
Minor NSR requirements and ability to tailor a Minor NSR program under
the CAA and EPA's regulations. Texas has demonstrated that using the
two thresholds will have no adverse impact upon the existing air
quality in the State of Texas.
     65 FR 2048, January 13, 2000--EPA's limited approval of
the Delaware Minor NSR program. In that action, EPA granted limited
approval of the Delaware Minor NSR public notice provisions because
these rules were a strengthening of the SIP-approved public notice
requirements. However, EPA did not grant a full approval because
Delaware's submittal provided a 15-day period to request a public
hearing for all permitting actions, which conflicts with the 30-day
requirement in 40 CFR 51.161(b)(2). See 63 FR 16751, at 16753. Such a
blanket exemption applied to all permitting actions with no
demonstration submitted by the state. But, as discussed in Comments/
Responses 39-40, the TCEQ has made a demonstration consistent with the
requirements for public participation set forth in 40 CFR 51.161 for
minor source permits that provides for Texas to tailor its public
participation process for the subset of minor permit amendment
applications below the ``de minimis'' and ``insignificant'' thresholds.
Texas has demonstrated that using the two thresholds will have no
adverse impact upon the existing air quality in the State of Texas.
Moreover, these thresholds do not affect any part of the technical
review of these minor permit amendment applications; or the
requirements to continue to comply with other requirements such as
application of appropriate control technology, reporting when required
to the emissions inventory, and analysis of monitoring data. Further,
the discretionary public notice for minor permit amendments below the
``de minimis'' and ``insignificant'' thresholds does not override any
notice or technical requirements for PSD, NNSR, or new Minor NSR permit
applications.
     71 FR 48696, August 21, 2006. This is a proposal for EPA's
Tribal NSR Rule, which was finalized several years later. See 76 FR
38748 on July 1, 2011. The rule promulgated a Federal Implementation
Plan (FIP) for tribes in Indian country. In part, the FIP exempted from
Minor NSR review sources with emissions below certain permitting levels
based on a demonstration that ``sources with emissions below the
thresholds will be inconsequential to attainment or maintenance of the
NAAQS.'' 76 FR 38758. Under the approved Texas permitting program, new
Minor NSR sources and minor modifications will go through the SIP-
approved permit process and be evaluated by the TCEQ with respect to
impact on the NAAQS and increment. For the subset of Minor NSR permit
amendment applications that are below the ``de minimis'' and
``insignificant'' thresholds as discussed more fully in Comments/
Responses 39-40, the TCEQ has demonstrated that using the ``de
minimis'' and ``insignificant'' thresholds is still protective of NAAQS
attainment and maintenance.
     72 FR 45378, August 14, 2007--EPA's final rule on
revisions to the Alaska NSR program. In that notice, EPA approved
revisions to the public notice provisions for minor permitting which,
for certain types of permits that meet specific requirements, gives the
public 15 days to request a full 30-day public comment period on the
draft permit. Otherwise the state will issue the permit based on the
application without any opportunity for review and comment. See 72 FR
5232, at 5235. This Alaska program is not the same as the Texas
program, and therefore not relevant to our rulemaking on Texas public
participation. Under the approved Texas permitting program, new Minor
NSR sources or minor modifications will go through the SIP-approved
permit process and be evaluated by the TCEQ with respect to impact on
the NAAQS and increment. Under the submitted public participation
rules, all applications for new minor sources and the majority of minor
permit amendment applications go through full notice and the public is
given the opportunity to review the draft permit and the TCEQ's
technical analysis. There is no separate requirement on the public to
request this draft permit like there is in the approved Alaska program.
For the subset of minor permit amendment applications that are below
the ``de minimis'' and ``insignificant'' thresholds as discussed more
fully in Comments/Responses 39-40, the TCEQ has demonstrated that it
has tailored its public participation process in a manner that is
consistent with the requirements for public participation set forth in
40 CFR 51.161 for minor source permits. Texas has demonstrated that
using the two thresholds will have no adverse impact upon the existing
air quality in the State of Texas. No revisions were made to the final
rule as a result of this comment.
    Comment 25: UT Law Clinic commented that Texas's justification for
its de minimis levels in 30 TAC 39.402(a)(3)(B) is that they referenced
the EPA SILs and/or a percentage of the NAAQS. This is not an adequate
demonstration for purposes of showing that the exempted permitting
changes will have a de minimis impact in terms of ambient air quality
in their location. There is no specific analysis or modeling of how
these emissions increases might impact maintenance of the NAAQS or the
increments, particularly in areas that already exceed or are close to
exceeding those limits.
    Response 25: EPA disagrees with the commenter. The TCEQ submitted a
sufficient demonstration that using the ``de minimis'' threshold will
be protective of the NAAQS, as required by CAA 110(a)(2)(C). The
comment does not add any specific analysis or details to the record to
establish a basis for disapproval, and the commenter provided no
alternative metric EPA should consider when evaluating the ``de
minimis'' threshold. No revisions were made to the final rule as a
result of this comment.
    Comment 26: UT Law Clinic commented that Texas's proffered
justification for the ``insignificant'' levels in 30 TAC
39.402(a)(3)(C) is also lacking. It is based on unenforceable
assumptions about where agricultural sources covered by the rule will
locate in the future and fails to provide an adequate demonstration
that such emissions will not contribute to exceedances of the PM NAAQS
in El Paso.
    Response 26: EPA disagrees with the commenter. The TCEQ submitted a
sufficient demonstration in support of the criteria established for
applicability of the ``insignificant'' threshold, including an analysis
of the effect on the PM NAAQS in El Paso. See 77 FR 74139. The comment
does not add any specific analysis or details to the record to
establish a basis for disapproval, and the commenter provided no
alternative metric EPA should consider when evaluating the
applicability of the ``insignificant'' threshold. TCEQ's submittal
explains that the ``insignificant threshold'' is ``intended to focus
the attention of the public and the commission on emission increases
that could have a greater potential for

public interest and questions regarding impacts to public health and
welfare.'' The submittal also demonstrates that the ``insignificant''
threshold applies to a limited number of minor amendments at facilities
(approximately 10% of total amendment applications) dispersed across
the State in 88 counties, many of them in rural areas of west Texas.
Due to the nature and location of the activities at the relevant
agricultural facilities, we anticipate that using the ``insignificant''
threshold will not impact nonattainment anywhere in or out of the
State. Nevertheless, the Texas rules do provide for public notice for
these amendments at the discretion of the TCEQ Executive Director under
specified criteria that are consistent with the goal and purposes of
the Act to provide an adequate opportunity for informed public
participation. Further, under the approved Texas permitting program,
all Minor NSR sources and modifications will go through the SIP-
approved permit process and be evaluated by the TCEQ with respect to
impact on the NAAQS and increment. Therefore the NAAQS and increment
will continue to be protected. No revisions were made to the final rule
as a result of this comment.
    Comment 27: UT Law Clinic commented that in the past EPA has
disapproved amendments to states' SIPs that attempted to relax the
public participation standards for the minor stationary sources to the
significance level, as Texas does here for certain agricultural
sources. See 75 FR 51188 on August 19, 2010.
    Response 27: EPA has reviewed the referenced August 19, 2010,
proposed disapproval notice for Indiana. In the referenced Indiana
rule, EPA proposed to disapprove a submittal from Indiana that would
allow pollution prevention projects for sources that are not subject to
title V and that do not result in a net increase in potential emissions
above the PSD/NNSR significance levels to be processed as minor permit
revisions under the Indiana minor operating permit provisions; meaning
these revisions would be permitted without public notice. EPA proposed
disapproval of the submitted rules because they weakened the SIP-
approved requirements without adequate support for the SIP relaxation
and because the state did not provide a 110(l) demonstration for the
additional modifications to be exempted from notice. The existing
Indiana SIP-approved Minor NSR rules required public notice for
modifications with emission increases of greater than 25 tpy; the
proposed rule would have exempted modifications from public
participation up to the PSD/NNSR thresholds.
    The August 19, 2010, proposed disapproval notice for Indiana is not
analogous to the July 2, 2010, Texas public participation submittal.
Contrary to the Indiana notice, the July 2, 2010, Texas submittal
enhances the SIP by expanding the universe of minor permit amendments
subject to public participation. See Comments/Response 20 and 21.
Additionally, the TCEQ provided a demonstration for the establishment
of the ``insignificant'' thresholds and EPA finds that the State's
demonstration is adequate. Please see our proposal and Comment/Response
39-40 for further discussion about this demonstration from Texas.
Finally, the Executive Director has discretion to require public notice
for any minor permit amendment at agricultural facilities that are
below the ``insignificant'' threshold. EPA therefore finds that the
Indiana rule is not relevant to our rulemaking on the Texas public
participation program. No revisions were made to the final rule as a
result of this comment.
    Comment 28: UT Law Clinic commented that the thresholds in 30 TAC
39.402(a)(3)(B) exceed those previously rejected by EPA as too high.
See 77 FR 7531, 7532 on February 13, 2012. ``EPA never before denoted
emissions increases as high as 15 tons per year as ``de minimis''.''
    Response 28: EPA has reviewed the February 13, 2012, final notice
to partially approve and partially disapprove revisions to the Montana
permitting program. We disagree with the commenter that this notice is
relevant to today's rulemaking on Texas Public Participation. In the
Montana partial approval and partial disapproval, EPA disapproved the
revisions to the de minimis permitting thresholds for asphalt concrete
plants and mineral crushers where the de minimis permitting threshold
for those sources was increased from five tpy to 15 tpy. EPA based our
disapproval of the de minimis permitting threshold increase on lack of
a 110(l) demonstration justifying the SIP relaxation. See 77 FR 7531,
7532. Texas has not relaxed its requirements, and has made an adequate
demonstration to justify the scope of its minor NSR provisions. No
revisions were made to the final rule as a result of this comment.
    Comment 29: UT Law Clinic commented that the Texas rules fail to
require public participation for amendments that exceed the
significance level for fluorides and for emissions up to the
significance level for lead.
    Response 29: The Texas rules require minor permit amendments for
non-agricultural facilities that are not subject to THSC Sec.  382.020
to provide public notice if the state-established ``de minimis''
thresholds are exceeded (0.6 tpy of lead or 5 tpy of fluorides) and for
agricultural facilities subject to THSC Sec.  382.020, if the state-
established ``insignificant'' thresholds are exceeded (25 tpy of
fluorides). As explained previously, the State adequately justified the
scope of its Minor NSR requirements. Moreover, a Minor NSR permit
amendment for a change in character of emissions or release of an air
contaminant not previously authorized under these new rules must go
through notice. So if the facility, either subject to THSC Sec.
382.020 or not, submitted a minor permit amendment application to add
emissions of lead or fluorides that were not already authorized, that
amendment now would be required to go through notice. Additionally, the
Executive Director has discretion to require notice for any permit
amendment that falls below the ``de minimis'' or ``insignificant''
thresholds. Furthermore, no modification that is major under the PSD or
NNSR requirements is exempt from public participation. UT Law Clinic,
in referencing ``significance'' levels, is referring to the levels at
which projected emission increases to an existing major stationary
source exceed the level and therefore must undergo PSD/NNSR Major
permitting requirements. The Texas public participation rules are clear
that the ``de minimis'' and ``insignificant'' thresholds apply only to
Minor NSR permit amendments. No revisions were made to our final rule
as a result of this comment.
    Comment 30: UT Law Clinic commented that the proposed rules allow
increases to occur with no public oversight even at major sources and
synthetic minor sources that are already emitting high levels of
emissions and adversely impacting surrounding communities. See 77 FR
38557, 38563 (synthetic minor sources ``should be treated for public
participation purposes as major sources.''). Further, the commenter
states that EPA proposed to approve Texas' exemption from all public
participation for modifications, including those at major and synthetic
minor sources; at major sources of HAPs; at sources in nonattainment
areas that proposed to increase emissions of nonattainment pollutants;
that alter the terms and conditions of Major NSR and PSD permits, and
that allow increases in emissions that are not actually de

minimis. UT Law Clinic further states that the above identified
modifications exempt from public participation are clearly not de
minimis or insignificant modifications and Texas has not attempted to
demonstrate, nor could it, that these modifications could be excluded
entirely from its Minor NSR permitting program pursuant to 40 CFR
51.160(b).
    Response 30: We disagree with the commenter's characterization of
the submitted thresholds for certain minor permit amendments. The
submitted ``de minimis'' and ``insignificant'' thresholds cannot be
used for new major sources or major modifications subject to PSD or
NNSR requirements. Additionally, section 112(g) of the CAA regulates
HAPs and this program is not under the auspices of a CAA section 110
SIP; therefore, regulation of HAPs is outside the scope of today's
rulemaking. 77 FR 74133. We believe that the commenter is indirectly
challenging the federal rules for determining whether minor or major
NSR SIP requirements apply to a proposed change. Under the CAA and
federal regulations, PSD and Nonattainment NSR (NNSR) SIP requirements
do not apply to minor modifications at major stationary sources or to
minor modifications at minor sources (including synthetic minor
stationary sources \3\). As such, EPA's authority to evaluate Texas's
submitted Minor NSR program requirements for approval into the SIP is
limited to the applicable Minor NSR requirements. By definition, the
Texas ``de minimis'' and ``insignificant'' thresholds can only apply to
minor modifications at existing minor and major stationary sources,
i.e., Minor NSR requirements.
---------------------------------------------------------------------------

    \3\ A synthetic minor source is an air pollution source that has
the potential to emit air pollutants in quantities at or above the
major source permitting threshold levels, but has accepted federally
enforceable limitations (such as permit restrictions) to keep the
emissions below such major source levels.
---------------------------------------------------------------------------

    EPA has reviewed the referenced June 28, 2012, proposed limited
approval and limited disapproval to the Nevada SIP and disagrees that
the cited statement regarding synthetic minor sources is relevant to
the proposed Texas rule. The referenced comment about synthetic minor
sources being treated as major sources for purposes of public
participation was specifically regarding the method in which the public
notice is made available for the public--newspaper notice versus
electronic notice. In this proposed LA/LD for Nevada, EPA stated that
``notice of permitting actions may be made by means other than
traditional newspaper notice for most types of minor sources, EPA also
believes that, with respect to synthetic minor sources, an exception
should be made to the use of electronic means as the sole means to
notify the general public of proposed permitting actions. For synthetic
minor sources . . . we believe that the traditional means of
notification (i.e., newspaper notice) should be included as one of the
means for notifying the general public of proposed permit actions on
the grounds that such sources should be treated for public
participation purposes as major sources for which such notice is
required.'' But EPA did not find the Nevada program's failure to
provide newspaper ``notice with respect to synthetic minor sources to
be significant,'' and did not propose disapproval on this basis. The
July 2, 2010, Texas public notice submittal requires newspaper notice
for all new major and minor stationary sources, major modifications,
and minor permit amendments above the ``de minimis'' and
``insignificant'' thresholds. So, from that respect, construction of
synthetic minor sources and minor modifications above the ``de
minimis'' and ``insignificant'' thresholds will be required to provide
newspaper notice consistent with the statements provided in our Nevada
proposed LA/LD.
    As discussed in Comment/Response 39-40, for the small subset of
minor permit amendment applications that are below the ``de minimis''
and ``insignificant'' thresholds, the TCEQ has demonstrated that this
tailoring of the scope of the Minor NSR requirements is consistent with
the CAA and EPA's regulations and is protective of the NAAQS and
maintenance. EPA notes that Texas has not proposed to exclude entirely
from its SIP-approved Minor NSR permitting program those minor permit
amendments that fall below the ``de minimis'' and ``insignificant''
thresholds. Moreover, although the commenter has asserted that the
Texas thresholds ``exempt from public participation [modifications
that] are clearly not de minimis or insignificant,'' it offers no
evidence to support that assertion. In sum, the commenter has failed to
show that EPA erred in determining that TCEQ adequately ``justified its
approach for permit amendment applications with emissions less than''
the ``de minimis'' and ``insignificant'' thresholds. 77 FR 74137. No
changes were made to our final rule in response to this comment.
    Comment 31: UT Law Clinic commented that the rules do not require
public participation for increases of emissions, such as NOX
or VOCs that are nonattainment pollutants in nonattainment areas and
that may cause violations of the NAAQS, increments, or other control
strategy requirements.
    Response 31: This characterization of the rules is incorrect. Any
new major stationary source or major modification subject to the
requirements of NNSR permitting must go through public notice using the
NORI and NAPD. The new rules also require minor permit amendment
applications to go through NORI and NAPD if the amendment is for a
change in the character of emissions or the release of an air
contaminant not previously authorized. Further, the revised rules
require NORI and NAPD public notice for all new minor sources and all
minor permit amendments above identified ``de minimis'' and
``insignificant'' thresholds. Moreover, consistent with the provisions
of 51.160(b), the Texas Minor NSR permitting provisions provide that
the Executive Director may not issue a permit to any source that would
cause or contribute to a NAAQS violation. (30 TAC 116.111(a)(2)(A).)
The July 2, 2010, public participation rules do provide that
applications for certain minor permit amendments that are below the
``de minimis'' and ``insignificant'' thresholds do not go through
notice, except at the discretion of the TCEQ Executive Director.
However, under the approved Texas permitting program, new Minor NSR
sources and minor modifications will go through the SIP-approved permit
process and be evaluated by the TCEQ with respect to impact on the
NAAQS and increment. Therefore, pursuant to the Texas SIP at 30 TAC
116.111(a)(2)(A), the minor permit amendment will only be issued by the
TCEQ if the applicant is able to demonstrate that the amendment will
not cause violations of the NAAQS, increment or other provisions of the
control strategy. The TCEQ will continue to use the permit review and
approval process to protect the NAAQS, increment and applicable control
strategy. No revisions were made to the final rule as a result of this
comment.
    Comment 32: UT Law Clinic commented that EPA Region 6 informed
Texas in 2006 that the agency [EPA Region 6] had identified categories
of Minor NSR permitting actions that are not de minimis, including any
change where prospective emission increases by themselves would be a
significant increase of any pollutant and any emission increases that
involve netting out of major NSR or synthetic minor certifications. See
Attachment A (Attachment 3--EPA Letter to Steve Hagle Regarding
Comments on SIP revisions for Public Participation,

August 14, 2006). Texas proposed exemptions from public participation
include modifications that fall within the categories EPA has expressly
identified as not de minimis.
    Response 32: The commenter references the August 14, 2006, comment
letter from Mr. David Neleigh, EPA Region 6 Air Permits Section Chief,
to Mr. Steve Hagle of the TCEQ on the proposed public participation
rules at that time [the rules upon which EPA initially proposed LA/LD
in 2008 and withdrew after TCEQ adopted and submitted revised rules in
July 2010]. This letter identifies previous rulemakings and interprets
those rulemakings to portray the position noted by the commenter.
However, that position is not actually articulated in the rulemakings
that the letter cites. See Comment/Response 24. Consequently, the
letter fails to accurately represent EPA's official position. EPA's
official position is reflected in today's final action.
    Under the Texas program, all construction of major stationary
sources must go through full major NSR review including public
participation. All major modifications to existing major or minor
stationary sources must go through full major NSR review including
public participation. All construction of new minor stationary sources
must go through full Minor NSR review including public participation.
All minor modifications to existing major or minor stationary sources
must go through full Minor NSR review, and include public participation
unless they meet either the ``de minimis'' or ``insignificant''
thresholds. There is a slim chance under the ``insignificant''
threshold that a minor modification approaching the synthetic minor
limit may not require public participation. Nevertheless, the state has
demonstrated that using the ``insignificant'' threshold will not allow
interference with the NAAQS. Besides demonstrating that using the two
thresholds will not result in any violation of the NAAQS or any control
strategy, the State has included a consistent mechanism that gives
constrained authority to the Executive Director to require public
participation for minor permit amendments that would otherwise be below
one of the two thresholds.
    As explained in Comments/Responses 39-40, permitting authorities
have the discretion to tailor the Minor NSR permit program. The TCEQ
has developed the ``de minimis'' and ``insignificant'' thresholds, and
for minor permit amendment applications with emissions less than these
thresholds, the TCEQ justified its approach using the de minimis
principles like those established in Alabama Power. See the June 18,
2010 Texas Register, pages 5224-5230. Therefore, we are approving the
Minor NSR ``de minimis'' and ``insignificant'' thresholds. The
commenter has failed to dispute the demonstration provided by Texas.
EPA believes that the NAAQS and increment will continue to be protected
because the TCEQ still must follow the SIP-approved permitting process.
If EPA discovers evidence to support the determination that the TCEQ
were found to be misapplying the Minor NSR SIP permit rules or an
applicant is found to be using the public notice ``de minimis'' and
``insignificant'' thresholds in an attempt to circumvent any NSR
requirements, then EPA or the public could address this implementation
failure on a permit specific basis or other CAA remedy mechanism such
as a failure to implement action. No revisions were made to the final
rule as a result of this comment.
    Comment 33: UT Law Clinic commented that the Texas rules allow
sources to use a netting process to determine their total emission
increases without any public oversight and allow them to calculate
those emissions increases taking into consideration voluntary,
unenforceable control technologies.
    Response 33: EPA believes that the commenter may be misconstruing/
misunderstanding the EPA NSR SIP rules. The federal Major NSR SIP
requirements allow a state to provide for a netting process to
determine if a proposed modification to an existing major stationary
source is major or minor. First, this netting process takes into
consideration the control technologies that will be applied to the
proposed change. (The control technology assumption must be made
enforceable through the issuance of the permit for the netting process
to meet the NSR SIP requirements.) Next, one looks to what are the
emission increases of the proposed modification by itself. If the
emission increases of the proposed modification by itself are above the
significance level, then the contemporaneous window is evaluated to see
if there is a net increase of emissions considering all other increases
and decreases. If the calculation of the netting is above the
significance levels, then the proposed modification to the existing
major stationary source is major and is subject to full public
participation. Therefore, the public can comment upon the netting
calculations if they so choose. If the calculation of the netting is
below the significance level/rate, then the proposed modification to
the existing major stationary source is minor. Under the Texas NSR SIP,
this minor modification can be authorized by a minor permit amendment
or another SIP-approved minor NSR mechanism such as a PBR or SP. Under
the rules approved today, full public participation for a minor permit
amendment is required unless the change is below either the ``de
minimis'' or ``insignificant'' thresholds. Therefore, the public now
will have an opportunity to review the netting calculations and comment
upon them in the Texas public participation process for all amendments
resulting in emissions increases above the two thresholds and for
amendments below the thresholds if the Executive Director so requires.
    Under the federal NSR SIP rules, the requirements for a
modification to a minor existing stationary source are very different
from those described above for a modification to a major existing
stationary source. The proposed change can be above the major NSR
significance levels but regardless still is defined under the federal
SIP rules, as a minor modification. This proposed change would only be
required to be permitted under the major NSR SIP requirements if the
proposed increase in emissions is the same as the emission rate for a
major stationary source.
    EPA recognizes the public's role in a viable major NSR SIP
permitting program is to review and comment on the netting calculations
to hold the permitting authority accountable. For instance, project
netting--wherein a source calculates the projected increases for the
project simultaneously with decreases from other projects--before
determining if the project itself is significant, is a circumvention of
NSR SIP requirements. Project netting is not provided for in the
approved Texas NSR SIP permitting program, nor is it provided for in
the Texas public notice rules acted upon today. If EPA discovers
evidence to support the determination that the TCEQ were found to be
misapplying the NSR SIP permit rules or an applicant to be using the
``de minimis'' and ``insignificant'' thresholds in an attempt to
circumvent major NSR applicability, then EPA or the public could
address this implementation failure on a permit specific basis or other
CAA remedy mechanism such as a failure to implement action. No
revisions were made to the final rule as a result of this comment.
    Comment 34: UT Law Clinic commented that Texas facilities are
already using the rules, as adopted in Texas, to avoid public
participation for

changes such as authorizing maintenance, startup, and shutdown
emissions, which are clearly not de minimis.
    Response 34: Under the rules being approved today, where the
inclusion of MSS emissions constitutes a major modification subject to
PSD or NNSR permitting then the facility must go through full public
notice with the NORI and NAPD. Under the rules being approved today,
MSS emissions that constitute a minor modification can be included in a
minor permit amendment that must go through full public notice unless
the change is below either the ``de minimis'' or ``insignificant''
thresholds. There are other SIP-approved permit mechanisms available
for including minor MSS emissions; these include permit alterations,
permits by rule, and standard permits. Each of these three permitting
mechanisms is outside the scope of this public participation rulemaking
action. In the event the facility chooses to use a minor permit
amendment, then the minor permit amendment will be subject to notice if
the emission increases associated with the minor permit amendment
exceed the ``de minimis'' or ``insignificant'' thresholds. The TCEQ
Executive Director also has discretionary authority to require public
notice for those minor permit amendment applications that are below the
``de minimis'' and ``insignificant'' thresholds and would not otherwise
receive full notice. Again, this process is an improvement over the
existing SIP-approved process that requires no public notice for minor
permit amendments. It also does not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable requirement of the Act. CAA 110(l). Also, the
permit process itself ensures that the emissions are permitted and
enforceable. No revisions were made to the final rule as a result of
this comment.
    Comment 35: UT Law Clinic commented that the provisions submitted
by Texas at 30 TAC 39.402 exempt large categories of modifications that
have the potential to violate the SIP and interfere with attainment or
maintenance.
    Response 35: EPA disagrees with the commenter. The TCEQ did not
submit and EPA did not evaluate any provisions to exempt new sources or
modifications (whether major or minor) from permit requirements. Our
action is solely regarding the public notification process in the Texas
air permitting program. As explained previously, the submitted rules do
not require public participation for certain Minor NSR permit amendment
applications with emissions below the ``de minimis'' or
``insignificant'' thresholds. However, because these Minor NSR permit
amendment applications must continue to be reviewed and processed
through the SIP-approved permit process, the TCEQ will continue to
issue permits protective of the NAAQS. If EPA discovers evidence to
support the determination that the TCEQ were found to be misapplying
the Minor NSR SIP permit rules or an applicant using the ``de minimis''
and ``insignificant'' thresholds in an attempt to circumvent any NSR
requirements, then EPA or the public could address this implementation
failure on a permit specific basis or other CAA remedy mechanism such
as a failure to implement action. No revisions were made to the final
rule as a result of this comment.
    Comment 36: UT Law Clinic commented that EPA proposes to approve
rules that allow significant increases in emissions and changes to
terms and conditions of NSR and PSD permits without any public
participation.
    Response 36: EPA disagrees with the commenter. Construction of any
new major stationary source must go through public notice. Any major
modification must go through public notice. Construction of any new
minor stationary source must go through public notice. Minor
modifications to minor or major stationary sources must go through
public notice except for those below the ``de minimis'' or
``insignificant'' thresholds. And the state has demonstrated that minor
permit amendment applications using the established ``de minimis'' or
``insignificant'' thresholds will not affect NAAQS attainment or
maintenance. The rules address public participation only and do not
address increases in permitted emissions. Under the federal NSR SIP
program, there can be what is defined as ``significant emission
increases'' that fall under the Minor NSR SIP requirements, not the
Major NSR SIP requirements. It is only when there is a ``significant
emission increase'' to an existing major stationary source that this
increase falls under the Major NSR SIP requirements. If the increase is
to a minor stationary source and yet is above the ``significant
emission increase,'' the federal rules allow this change to be
authorized through the Minor NSR SIP program. Therefore, under the
action taken today, under the Texas SIP, minor modifications to major
or minor stationary sources must go through public notice unless the
change is below either the ``de minimis'' or ``insignificant''
thresholds. The commenter appears to be indirectly challenging the
federal SIP rules for how one determines applicability for major and
Minor NSR; concerns regarding major and minor NSR applicability are
outside the scope of this rulemaking. Our action taken today approving
the ``de minimis'' and ``insignificant'' thresholds, does not prohibit
all public participation for all modifications. We are approving an
exemption from public participation only for certain minor permit
amendments that meet either of the two thresholds; TCEQ has
demonstrated that use of either of these two thresholds will not affect
attainment or maintenance of the NAAQS. By definition, the Texas public
notice exemptions for minor permit amendments below the public notice
``de minimis'' and ``insignificant'' thresholds can only apply to minor
modifications at existing minor and major stationary sources. Under the
CAA and federal regulations, PSD and NNSR SIP requirements do not apply
to minor modifications at major stationary sources or to minor
modifications at minor sources. As such, EPA's authority to evaluate
Texas's submitted Minor NSR exemptions for approval into the SIP is
limited to the applicable Minor NSR requirements. No revisions were
made to the final rule in response to this comment.
    Comment 37: UT Law Clinic commented that EPA's approval of the
Texas rules in 30 TAC 39.402(a)(3), would exempt permits by rule (PBRs)
from SIP public participation requirements. By utilizing a PBR to
authorize increases in emissions, sources thereby avoid public
participation for Minor NSR changes that should be subject to at least
30-day notice and comment. If EPA finalizes its proposed approval,
there would not appear to be any provisions in the SIP governing public
participation for PBRs. Commenter also submitted information about how
the PBR program works.
    Response 37: The Permit by Rule program at 30 TAC Chapter 106 is
outside the scope of today's rulemaking. EPA approved the PBR program
into the SIP such that the initial development and adoption of a PBR
goes to public notice, but the individual issuance or authorization of
a PBR to a facility is exempt from public notice. See 68 FR 64543. The
July 2, 2010 submittal does not change our SIP-approval of the PBR
program.

    Comment 38: UT Law Clinic requested that EPA disapprove the
provisions at 30 TAC 39.402.
    Response 38: As explained in previous Comments/Responses we do not
agree that the provisions at 30 TAC 39.402 are inconsistent with
federal requirements or represent a weakening of the existing SIP-
approved requirements. No changes have been made to the final rule as a
result of this comment.

Comments Regarding the Minimum Federal Requirements for Public
Participation and EPA's Use of Alabama Power de minimis Principles

    Comment 39: UT Law Clinic commented that the regulations at 40 CFR
51.161(a) and (b) plainly set minimum public participation
requirements. These regulations state that the SIP ``must'' require the
opportunity for public comment and that ``as a minimum'' the comment
period must last 30 days. The commenter also provided the regulatory
language and history of 40 CFR 51.161 to support the statement that
rules regarding notice and public participation apply to all permitting
actions.
    1. In 1983, EPA proposed to restructure and revise the SIP
preparation regulations. See Restructuring SIP Preparation Regulations,
48 FR 46152 (Oct. 11, 1983).
    a. Among other things, the proposed rule moved the regulations for
notice and public participation from 40 CFR 51.18 to Sec. Sec.  51.160
and 51.161.
    b. Additionally, EPA proposed to narrow the scope of the
requirement (then contained in 40 CFR 51.18(h)(4)) that forced ``States
to notify EPA of all air permitting actions pertaining to new sources
or modification to existing sources'' to only apply to ``major sources
in nonattainment areas, . . . or for lead, those sources covered under
Sec.  5l.l(k)(2).'' 48 FR at 46156.
    c. In the proposal, EPA explained that the change was due to the
fact that it ``primarily needs permitting information from only major
new sources or major modifications of existing sources in nonattainment
areas.''
    2. In 1986, EPA finalized the restructuring and revision of the SIP
preparation regulations. 51 FR 40656.
    a. In response to comments in opposition to the proposal to narrow
the scope of the notice standard, EPA dropped the proposal and kept the
original language largely in place when it moved 40 CFR 51.18(h)(4) to
Sec.  51.16l(d).
    b. The final rule explained:
    i. A commenter opposed the proposal to drop requirements for States
to notify EPA of permitting actions for all minor sources and for all
sources outside nonattainment areas [Sec.  51.161(d)] on the grounds
that new source review is a central part of the prevention of
significant deterioration (PSD) and the air quality maintenance plan
process and that notification is needed for EPA oversight. The
provisions governing PSD procedures, Sec.  51.24, require States to
notify EPA of permitting actions for major sources outside
nonattainment areas. The deletion from Sec.  51.161(d) did not affect
those requirements, only the notification requirements for minor
sources.
    ii. However, EPA agrees that where State or local agency review of
new or modified minor sources is required, it should be notified of
permitting action for such sources.
    iii. The very fact that such sources are subject to review
indicates that it would be appropriate to require that EPA be notified
of permitting actions on such sources for oversight purposes.
    iv. Moreover, a large number of minor sources could have a
significant cumulative effect on air quality.
    v. Thus, under the authority of sections 110 and 301 of the Act,
the proposed Sec.  51.16l(d) has been modified so that it now is
essentially identical to existing Sec.  51.18(h)(4). Hence, EPA will
require reporting of all State permitting actions, as required in the
existing SIP regulations.
    The commenter states that EPA's prior interpretation [the 1983-1986
rulemaking history of 40 CFR 51.161 cited above] makes clear that the
regulations apply to ``all State permitting actions.'' If the EPA wants
to omit minor sources from the notice and public participation
requirements, it must go through the notice and comment process.
Finally, the commenter states that the narrowing of the universe of
permit modifications that go through public notice is inconsistent with
40 CFR 51.160-51.161.
    Response 39: EPA does not find this comment on the 1986 rulemaking
relevant. In the quoted language in the 1986 final rulemaking, EPA
focused on the requirement in 40 CFR 51.161(d) to notify EPA of minor
permitting actions. As the commenter indicates, EPA ultimately decided
to retain that notification to EPA requirement for Minor NSR state
permitting actions requiring public notice. Secondly, EPA received no
specific comments during our rulemaking on the Texas Public
Participation program as to whether Texas's public participation
program meets 40 CFR 51.161(d).
    For the second comment that the regulations at 40 CFR 51.161(a) and
(b) plainly set minimum public participation requirements, EPA reviewed
the submitted rules against all the requirements of 40 CFR 51.160 and
51.161. They cannot be read in isolation but in conjunction with each
other.
    The Federal requirements for Minor NSR permit applications and
public notice requirements at 40 CFR 51.160 and 161 generally require
30 days public review for all sources subject to Minor NSR; however,
these requirements also allow a state to identify the types and sizes
of facilities, buildings, structures, or installations, which will
require full preconstruction review by justifying the basis for the
state's determination of the proper scope of its program.\4\
Importantly, our decision to approve a state's scope of its Minor NSR
program must consider the individual air quality concerns of each
jurisdiction, and therefore will vary from state to state.
---------------------------------------------------------------------------

    \4\ For example, under the federal Tribal NSR regulations, EPA
did not require permits for sources with emissions below de minimis
levels, and for sources in ``insignificant source categories''. 76
FR 38748, at 38755. In sum, under these Tribal NSR regulations, some
sources are not required to obtain permits, and have no public
notice requirements.
---------------------------------------------------------------------------

    EPA recognizes a state's ability to tailor the scope of its Minor
NSR program as necessary to achieve and maintain the NAAQS. See 76 FR
at 38756 (EPA regulation creating minor source program for Indian
country, recognizing that CAA 110(a)(2)(c) provides discretion in
developing a minor source program ``so long as the NAAQS are
protected.''). As explained in our proposal at 77 FR 74129, at 74136-
74140 and Comment/Response 40, TCEQ's submittal appropriately tailored
application of the Minor NSR permitting requirements. TCEQ explained
its approach of setting the two thresholds using de minimis principles
like those established in Alabama Power. Under TCEQ's tiered program,
all new Minor NSR construction permits and the majority of Minor NSR
permit amendments go through full public notice.
    Finally, there is no narrowing of the universe of permit
modifications that go through public notice; rather there is an
expansion for minor modifications. Please see Comments/Responses 20 and
21. No changes were made to the final rule as a result of this comment.
    Comment 40: UT Law Clinic commented that EPA cannot use Alabama
Power to justify creating exemptions from its own regulations.

    Response 40: Consistent with the requirement for ``determining
which facilities will be subject to review'' under a minor source SIP
at 40 CFR 51.160, EPA has recognized that states may tailor their Minor
NSR permitting requirements. EPA is not relying on Alabama Power to
``creat[e] exemptions from its own regulations.'' Instead, EPA is using
an inquiry similar to that used in Alabama Power--whether there is a
``de minimis'' impact--in applying its SIP regulations and regulating
permit amendments to determine whether the submitted Texas rules meet
the Act and EPA regulations. Texas established a ``de minimis''
threshold based on its ``insignificant emissions rates and
insignificant emissions impact.'' See 77 FR at 74138. Similarly, Texas
established an ``insignificant'' threshold for agricultural sources
based on their limited effects. See 77 FR 74139.
    As explained in our proposal at 77 FR 74129, at 74136-74140, the
submitted Texas public participation provisions create a tiered
program, wherein two narrow types of Minor NSR amendment applications
that have been defined by TCEQ as ``de minimis'' or ``insignificant''
will not automatically be required to go through the public notice
process. As noted, the State justified the scope of its regulatory
program using de minimis principles like those established in Alabama
Power. Moreover, Texas limits the effects of applying the two
thresholds by providing for public notice for minor permit amendments
that would otherwise be exempt at the discretion of the TCEQ Executive
Director based on the objective criteria established in 30 TAC
39.402(a)(3)(D). For EPA's full analysis of Texas's demonstration for
the ``de minimis'' and ``insignificant'' thresholds, please see our
proposal at 77 FR 74129, at 74136-74140. There is a full discussion of
the two thresholds in the proposal and how Texas analyzed their
impacts; how the ``de minimis'' threshold is based on EPA's significant
emission rates and significant impact levels that together are used to
determine whether a proposed minor source or minor modification will
have a significant permitting impact; and how the ``insignificant''
threshold applies to a limited subcategory of sources, is limited in
scope, represents a small subset of the permit amendment universe, and
is consistent with the requirement to ensure the NAAQS are achieved.
    Note that applicability of the ``de minimis'' and ``insignificant''
thresholds in no way relieve the applicant or the TCEQ of the technical
burden to demonstrate that the proposed minor change will assure
noninterference with attainment and maintenance of the NAAQS and that
the proposed minor modification will comply with all CAA and Minor NSR
requirements. Further, neither of Texas's thresholds affects any part
of the technical review of these minor permit amendment applications,
and they do not override any notice or technical requirements for PSD,
NNSR or new Minor NSR permit applications.
    In this instance, we find that the Texas ``de minimis'' and
``insignificant'' thresholds are approvable. However, we note that our
approval is limited to the specific record before us and in the context
of the Texas air permitting program as a whole. No changes were made to
the final rule as a result of this comment.
    Comment 41: UT Law Clinic commented that the D.C. Circuit recently
affirmed that implied authority is not available for a situation
``where the regulatory function does provide benefits, in the sense of
furthering the regulatory objectives, but the agency concludes that the
acknowledged benefits are exceeded by the costs.''
    Response 41: We agree that Alabama Power does not confer the
administrative authority to create exemptions to requirements based on
a cost-benefit analysis. Alabama Power, 636 F.2d at 357 and 361.
However, EPA's approval of Texas's ``de minimis'' and ``insignificant''
thresholds is not based on a cost-benefit analysis, but rather based on
Texas's demonstration that using either of the thresholds will not have
an adverse impact on the existing air quality in the State of Texas.
See our proposal at 77 FR 74129, at 74136-74140 and Comments/Responses
39 and 40 for additional information on the adequacy of Texas's
demonstration. No changes were made to the final rule as a result of
this comment.

Comments Regarding Confidential Information

    Comment 42: UT Law Clinic commented that EPA should require Texas
to amend its rules as necessary to ensure that all emissions data that
is included with permit applications is made available for the entire
public comment period.
    Response 42: As explained in our proposal FRN, the accompanying TSD
and in today's final rule, the Texas rules for public participation for
air quality permit applications are consistent with the federal
requirement at 40 CFR 51.161 that the information submitted by the
applicant be made available for public review and inspection during the
applicable public comment period. While the federal government has long
recognized the right of businesses to make claims of confidentiality in
submitting information to its agencies (see, e.g., FOIA, 5 U.S.C.
552(b)(4) \5\; see also 18 U.S.C. 1805 \6\; see also 40 CFR 2.203 \7\),
the Clean Air Act has made clear that ``emission data'' contained in
records held by EPA are not entitled to confidential treatment and
shall be publicly available (see CAA section 114(c) \8\; see also 40
CFR 2.302 \9\). The Texas Open Records Act (adopted 1973, and as
amended May 27, 1975) and Texas Attorney General Opinion No. H-539 were
submitted by Texas and approved by EPA as part of the Texas SIP on
December 15, 1981, at 46 FR 61124-61125 to show that the Texas
environmental agency is required to make emissions data available to
the public. This Act was repealed in 1993 and replaced by the Public
Information Act now codified in the Texas Government Code at Chapter
552. The codification of the Act was a non-substantive revision. If a
state agency wishes to withhold information from the public, it must
request an opinion from the Texas Attorney General that the requested
information falls within one of the enumerated exceptions. This is
necessary because the Texas Act presumes that governmental records are
open to the public unless the records are within one of the
exceptions.\10\ The Attorney General is required to construe the Act
liberally in favor of open government.\11\ The governing Texas law,
Texas Attorney General Opinion No. H-539 (dated February 26, 1975) and
part of the Texas SIP, held that ``emission data supplied to the Texas
Air Control Board may not be treated as confidential under any
provision of the Texas Clean Air Act or the Open Records Act, and that
the Board is required to release such information upon request.''
Although not believed to be part of the

SIP, a Texas Attorney General Opinion No. H-836 (dated June 14, 1976)
affirms, ``emissions data is clearly public information'' (even in
acknowledging that information ``on amount, type and rate of emissions
from a particular unit might enable a person to determine how the
process itself functions''). There has been continual reaffirmation of
the bright-line rule that emission data is non-confidential. See
Attorney General Open Record Rulings from 2005 to 2010.
---------------------------------------------------------------------------

    \5\ FOIA's longstanding exemption for ``trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.''
    \6\ Making it a crime for federal employees to disclose
confidential information ``in any manner or to any extent not
authorized by law.''
    \7\ EPA regulation on the ``method of asserting business
confidentiality claim.''
    \8\ Requiring records to be available to the public, unless they
are confidential and not ``emission data.'' Disclosure to the public
is similarly mandated for ``emission data'' in the context of
automobile manufacturing under Title II. See CAA section 208(c).
    \9\ ``Special rules governing information obtained under the
Clean Air Act'' and defining the term emission data.
    \10\ See Attorney General Opinion H-436 (1974); Open Records
Decision Nos. 363 (1983), 150 (1977), 91 (1975).
    \11\ Open Records Decision No. 363 (1983) (information is public
unless it falls within specific exception).
---------------------------------------------------------------------------

    The EPA has therefore determined through our review of the July 2,
2010, submitted public participation rules and the relevant Texas
legislative authorities and governing Attorney General Opinion No. H-
836, that the Texas rules already require that emissions data be made
publicly available. If EPA discovers evidence to support the
determination that the TCEQ or permit applicants are misapplying the
SIP rules in an attempt to prevent the public from having a meaningful
opportunity to comment on emissions data, then EPA could address this
issue on a permit by permit basis using its oversight authority in
implementation of the Texas air permit program or other CAA remedy
mechanism such as a failure to implement action. No revisions were made
to the final rule as a result of this comment.
    Comment 43: UT Law Clinic commented that current Texas law gives
the applicant for an air permit the sole authority to initially
determine the confidentiality of materials in its own application and
requires TCEQ to seek an opinion from the Texas AG before disclosing
any information labeled as confidential by an applicant. As a result,
nonconfidential information that is necessary to provide full public
participation on an application and that is required to be available in
a public location during the full public comment period may be
unavailable until after the close of a comment period. Further, Texas'
rules do not ensure that emissions data labeled as confidential
information will be made available for public comment before the 30-day
comment period expires. The withholding of emissions data as
confidential also creates a problem with respect to the enforceability
of minor NSR limits created through permits by rule. This compounds the
public participation issue because, even after the fact, affected
communities will not be able to find out what changes were authorized
by a minor permit.
    Response 43: The concerns raised by the commenter about the
application of the Texas CBI laws are outside the scope of today's
rulemaking. This concern raises issues regarding the implementation of
the Texas SIP and is not relevant to the particular public
participation rules being acted upon today. The public participation
rules acted upon today maintain the SIP's public participation
requirements for major NSR and expand the SIP's public participation
requirements for minor NSR. The availability of emissions data is not
the subject of these rules. As discussed previously in Comment/Response
42, the Texas NSR public participation SIP rules already require that
emissions data be made available for public review during the comment
period. The Texas relevant legal authorities in the SIP and later
continue to affirm that emissions data is not confidential and must be
released to the public. If EPA discovers evidence to support the
determination that the TCEQ or permit applicants are misapplying the
existing Texas NSR public participation SIP rules in an attempt to
prevent the public from having a meaningful opportunity to comment on
emissions data, then EPA could address this issue on a permit by permit
basis using its oversight authority in implementation of the Texas air
permit program or other CAA remedy mechanism such as a failure to
implement action. No changes were made to today's final rule as a
result of this comment.
    Comment 44: The UT Law Clinic also submitted portions of a
supplement to a petition filed in 2009 by the commenter and other
groups that raises concerns with Texas CBI laws and public
participation.
    Response 44: EPA disagrees that the submitted portions of the
January 5, 2009 Supplement (Supplement to Citizen Petition for Action
Pursuant to the Clean Air Act Regarding Inadequacies of the Texas Sip
and Federal Operating Permit Program and Failure to Enforce the Plan
and State Permitting Programs) relating to confidential document and
CBI are relevant to the public participation rulemaking in front of us.
EPA reviewed the resubmitted 2009 petition supplement and the
associated attachments. We isolated the following discrete comments
relating to confidential documents and CBI. We are responding to each
of these comments below to demonstrate that the petition, petition
supplement and relevant attachments are no longer applicable to the
July 2, 2010 public participation SIP submittal that we are approving
in today's final action. Further, our responses to the following
comments satisfy EPA's obligations to respond on these specific issues
from the 2009 petition supplement.
     Comment 44A: The Texas Health and Safety Code prohibits
the TCEQ from disclosing to the public of any information ``relating to
secret processes or methods of manufacture or production that is
identified as confidential when submitted.'' TEX.HEALTH & SAFETY CODE
Sec.  382.041. It also prohibits TCEQ from disclosing such information
to EPA unless EPA has entered into an agreement to treat ``information
identified as confidential as though it had been submitted by the
originator of the information with an appropriate claim of
confidentiality under federal law.'' Id. This section unlawfully
requires TCEQ to defer to an applicant's or permittee's determination
of what constitutes confidential information. It limits public and EPA
access to information, such as emissions data, that is public
information under the federal Clean Air Act. It also purports to
require EPA to agree to limits on public disclosure of information
beyond those limits authorized by federal law.
     Comment 44B: Further, in practice, this provision results
in TCEQ referring any and all requests for information marked by the
applicant as confidential to the Texas AG's office. Often a response
from the AG's Office as to whether information truly qualifies as
confidential cannot be obtained until it is too late to use the
information for its intended purpose. It is routine for companies to
mark as confidential information regarding their calculations of
emission estimates, therefore, preventing the public from determining
whether such emissions are realistic.
    [cir] Response 44A and 44B: EPA disagrees with the commenter that
this issue is relevant to EPA's approval of the public participation
rules as submitted July 2, 2010. As outlined in Comment/Response 42 and
43, the EPA considers that ``emissions data'' as defined in 40 CFR
2.302 must be publicly available information pursuant to the Texas SIP
and relevant legal authorities. If EPA discovers evidence to support
the determination that the TCEQ or permit applicants are misapplying
the Texas SIP rules in an attempt to prevent the public from having a
meaningful opportunity to comment on emissions data, then EPA could
address this issue on a permit by permit basis using its oversight
authority in implementation of the Texas air permit program or other
CAA remedy mechanism such as a failure to implement action. No
revisions were made to the final rule as a result of this comment.
    Comment 45: UT Law Clinic commented that the face of Texas'

public notices do not identify the date that the public comment period
closes. Instead, the notice normally states that the comment period
ends a certain number of days after publication.
    Response 45: EPA agrees that having a specific date would assist
the public in easily identifying the close of the comment period.
However, there is no federal requirement for a date specific end date
to be included in the public notice. The Texas public notice
requirements specifying a 30-day comment period meets the minimum
federal requirements at 40 CFR 51.161 and 51.166 as applicable. No
revisions were made to the final rule as a result of this comment.

Comments Regarding Judicial Review

    Comment 46: The UT Law Clinic commented that the current
requirements to participate in a contested case hearing in Texas are
overly burdensome and therefore provide inadequate judicial review of
air permitting decisions. Judicial review of the TCEQ's air permitting
decisions appears to be limited to persons who participated in a
contested case hearing. Friends of Canyon Lake, Inc. v. Guadalupe-
Blanco River Auth., 96 SW.3d 519, 526-27 (Tex. App.-Austin 2002, pet.
denied); see also, Rawls v. TCEQ, 2007 WL 1849096 (Tex. App.-Eastland
2007). In order to qualify for a contested case hearing, a member of
the public must satisfy TCEQ's definition of ``an affected person.''
Since a person must request a contested case hearing before seeking
judicial review of an air permitting decision, the availability of
judicial review for a large percentage of air permitting actions at
TCEQ is limited.
    Response 46: The Texas Contested Case Hearing (CCH) process is
outside the scope of our proposed rulemaking for the July 2, 2010
public participation submittal. The TCEQ did not submit the CCH process
for SIP review and approval, therefore EPA is not taking action on the
CCH process in this action. No revisions were made to the final rule as
a result of this comment.

Comments Regarding Past Public Notice Inadequacies

    Comment 47: UT Law Clinic commented that approval of these rules
[July 2, 2010 public participation rules] would exacerbate public
participation inadequacies that Texas communities have complained about
for years. To illustrate the past inadequacies, the UT Law Clinic also
submitted portions of a petition filed in 2008 and a supplement to the
petition filed in 2009 by the commenter and other groups that raises
problems with the Texas public participation process, some of which
will be exacerbated by EPA's approval.
    Response 47: EPA disagrees that the submitted portions of the
August 28, 2008 petition (Citizen Petition for Action Pursuant to the
CAA Regarding Inadequacies of the Texas SIP and Federal Operating
Permit Program and Failure to Enforce the Plan and State Permitting
Programs) and the January 5, 2009 Supplement (Supplement to Citizen
Petition for Action Pursuant to the Clean Air Act Regarding
Inadequacies of the Texas Sip and Federal Operating Permit Program and
Failure to Enforce the Plan and State Permitting Programs) relating to
public participation are relevant to the rulemaking in front of us. EPA
reviewed the resubmitted 2008 petition, 2009 petition supplement, and
the associated attachments. We isolated the following discrete comments
relating to public participation. We are responding to each of these
comments below to demonstrate that the petition, petition supplement
and relevant attachments are no longer applicable to the July 2, 2010
public participation SIP submittal that we are approving in today's
final action. Further, our responses to the following comments
satisfies EPA's obligations to respond on these specific issues from
the 2008 petition and 2009 petition supplement.
     Comment 47A: EPA has informed Texas that its public
participation rules are not consistent with Part 51. Deficiencies in
the rules include that the notice of the draft permit is not required
for many permitting actions involving minor sources or minor
modifications at major sources. Texas' rules do not require public
notice and comment on the State's preliminary analysis and draft
permits for permitting actions involving construction or modification
of minor sources, or for minor modifications at major sources if a
public hearing is not requested in response to the ``first notice,'' or
is withdrawn, or the application involves no increase in allowable
(rather than actual) emissions or emissions of new contaminants.
    [cir] Response 47A: This comment is no longer relevant. The
commenter is referencing EPA's proposed limited approval/limited
disapproval of the Texas public participation program published on
November 26, 2008. EPA withdrew our proposed LA/LD on November 5, 2010,
after the TCEQ adopted and submitted revised public participation
rules. The rules submitted as revisions to the Texas SIP on July 2,
2010, require that all permit applications for new minor sources go
through the NORI and NAPD, regardless of a public hearing request. This
requirement will ensure that the draft minor permit is available for
review and comment. The revised rules also require minor permit
amendment applications to go through NORI and NAPD if the amendment is
for a change in the character of emissions or the release of an air
contaminant not previously authorized, or if the amendment exceeds the
public notice ``de minimis'' or ``insignificant'' thresholds. No
changes were made to the final rule as a result of this comment.
     Comment 47B: EPA has informed Texas that its public
participation rules are not consistent with Part 51. Deficiencies in
the rules include that public notice is not required for all permit
amendments, and initial and amended flexible permits. Chapter
116.116(b) amendments and flexible permit issuances and amendments,
including those that may alter terms and conditions of existing major
NSR authorizations, are not required to meet Part 51 notice
requirements unless emissions exceed certain thresholds. These
thresholds are not environmentally insignificant.
    [cir] Response 47B: The commenter is referencing EPA's proposed
limited approval/limited disapproval of the Texas public participation
program published on November 26, 2008. EPA withdrew our proposed LA/LD
on November 5, 2010, after the TCEQ adopted and submitted revised
public participation rules. The July 2, 2010 public participation
submittal included revised public participation procedures specific to
applications for initial and amended flexible permits. As explained in
Comment/Response 6, EPA is taking no action at this time on the public
participation rules submitted on July 2, 2010, applicable to Flexible
Permit applications. Insofar as this comment concerns permit amendments
not related to Flexible Permits, as explained in Comments/Responses 17-
19, the revised rules require full public notice for all permit
amendments above identified public notice ``de minimis'' and
``insignificant'' thresholds. No changes were made to the final rule as
a result of this comment.
     Comment 47C: EPA has informed Texas that its public
participation rules are not consistent with Part 51. Deficiencies in
the rules include the notice of draft permit not required for all
Plantwide Applicability Limit (PAL) Permits and agency preliminary
determinations. In addition, Texas' rules do not require the agency to
respond to comments before taking action on PAL applications.

    [cir] Response 47C: This comment is no longer relevant. The
commenter is referencing EPA's proposed limited approval/limited
disapproval of the Texas public participation program published on
November 26, 2008. EPA withdrew our proposed LA/LD on November 5, 2010,
after the TCEQ adopted and submitted revised public participation
rules. The rules submitted as revisions to the Texas SIP on July 2,
2010, require that all permit applications for PAL permit applications
go through NAPD notice. This requirement will ensure that the draft PAL
permit is available for review and comment. The revised public
participation rules also require that the TCEQ will respond to all
comments received before a PAL permit is issued. No changes were made
to the final rule as a result of this comment.
     Comment 47D: EPA has informed Texas that its public
participation rules are not consistent with Part 51. Deficiencies in
the rules include that Texas' rules and exhaustion of administrative
remedies requirements limit state court judicial appeals.
    [cir] Response 47D: This comment is no longer relevant. The
commenter is referencing EPA's proposed limited approval/limited
disapproval of the Texas public participation program published on
November 26, 2008. EPA withdrew our proposed LA/LD on November 5, 2010,
after the TCEQ adopted and submitted revised public participation rules
on July 2, 2010. See Comment/Response 46 above for a discussion of
judicial review. No changes were made to the final rule as a result of
this comment.
     Comment 47E: EPA has informed Texas that its public
participation rules are not consistent with Part 51. Deficiencies in
the rules include that the De Minimis Facilities rules at 30 TAC
116.119 allow the agency to exempt categories of sources, as well as
individual facilities, from permitting and public participation
requirements without first requiring SIP approval of those exemptions.
    [cir] Response 47E: The TCEQ has not submitted the provisions for
permitting of De Minimis Facilities at 30 TAC 116.119 for SIP review.
Therefore, public participation requirements relevant to permitting
under 30 TAC 116.119 are outside the scope of today's final action. No
changes were made to the final rule as a result of this comment.
     Comment 47F: EPA has informed Texas that its public
participation rules are not consistent with Part 51. Deficiencies in
the rules include that the TCEQ can exempt relocation of a facility
from public participation requirements if ``there is no indication that
operation of the facility at the proposed new location will
significantly affect ambient air quality and no indication that
operation of the facility at the proposed new location will cause a
condition of air pollution.''
    [cir] Response 47F: The commenter is referencing EPA's proposed
limited approval/limited disapproval of the Texas public participation
program published on November 26, 2008. EPA withdrew our proposed LA/LD
on November 5, 2010, after the TCEQ adopted and submitted revised
public participation rules. The July 2, 2010 public participation
submittal included revised public participation procedures specific to
portable facilities and relocation of portable facilities. As explained
in Comment/Response 6, EPA is taking no action at this time on the
public participation rules submitted on July 2, 2010, applicable to
portable facilities. No changes were made to the final rule as a result
of this comment.
     Comment 47G: Texans are not given notice of the TCEQ's