On October 25, 1999, Texas submitted revisions to Chapters 39, 55, and 116 which include rules that relate to public participation on air permits for authorization of new and modified sources, including amendments and renewals. In addition, portions of the submittals dated December 15, 1995, and July 22, 1998, contain provisions relevant to this action. Hereafter, we refer to these submittals as the ``revised rules.'' These SIP packages include the following rules:

A. The December 15, 1995, submittal includes Texas' submittal of section 116.312Public Notification and Comment Procedures. Section II.A of this preamble contains additional information on the December 15, 1995, submittal.

B. The July 22, 1998, submittal includes Texas' submittal of repeal and readoption (with nonsubstantive revisions) of section 116.312 Public Notification and Comment Procedures. Section II.A of this preamble contains additional information on the July 22, 1998, submittal.

C. The October 25, 1999, submittal includes the following revisions related to this action. Section II.A of this preamble contains additional information on the October 25, 1999, submittal.

The existing SIPapproved regulations which relate to public participation for air quality permits are as follows: Sections 116.130Applicability; 116.131Public Notification Requirements; 116.132Public Notice Format; 116.133Sign Posting Requirements; 116.134Notification of Affected Agencies; 116.136Public Comment Procedures; and 116.137Notification of Final Agency Action. These regulations will now apply to air quality permits declared administratively complete before September 1, 1999. EPA proposes to add a notation, in addition to the applicability statement at section 39.403 of the revised rule, to this effect to the existing SIP. In addition, section 116.312Public Notification and Comment Procedures, which applies to permit renewals, was amended to replace cross references to the public notification procedures in sections 116.130 through 116.137 with a cross reference to applicable procedure in Chapter 39.

The revised rules will replace the existing SIP rules for public participation for air quality permits declared administratively complete on or after September 1, 1999. The Texas public participation procedures were previously located in the subchapter of the SIP applicable to each type of permitting action. Chapter 39 of the Texas Administrative Code (TAC) consolidates public participation requirements for most air quality permitting actions (as well as permits issued under other environmental statutes). Applicability of the rules in Chapter 39 to different types of air permits is determined by the general applicability statement in subchapter H. Additional requirements that are specific to air quality permits are found in subchapter K. Section 39.403(b) lists the types of air quality permits subject to the public participation requirements in Chapter 39:

A. Our Proposal

We have evaluated the revised rules for enforceability and consistency with the CAA, 40 CFR Part 51, and EPA policy and guidance. We have determined that the revised rules contain some provisions that meet or exceed federal requirements. We have also determined that some provisions are not consistent with federal requirements and therefore, are not fully approvable. The deficient provisions of the revised rule are not separable from the remainder of the rule. As authorized in sections 110(k)(3) and 301(a) of the Act, we are proposing simultaneous limited approval and limited disapproval of the revised rules. We are proposing limited approval because the rules, as a whole, strengthen the existing SIP and facilitate enforcement of the State's public participation requirements. We are simultaneously proposing limited disapproval because the provisions identified in section IV of [[Page 72004]]
this preamble are not consistent with applicable federal requirements. Final limited approval will incorporate the revised rule in its entirety into the Texas SIP. We are not acting on the provisions of the submittal discussed in section VII of this notice. Note that some of the public participation rules we are considering today apply to other rules that have not yet been approved into the SIP. For example, we have not proposed action on Texas' NSR PAL, flexible permit, qualified facility or NSR reform rules, however some of the rules we are considering today are applicable to them. These other rules will be reviewed in separate actions. Our action on any provision of this rule which refers to or implements a provision that EPA has not approved does not imply EPA proposed action on the pending rule. The Chapter 39 revised rules consolidate public participation requirements applicable to the pending rules. Final action on the revised rule will facilitate review of the pending rules.\8\
\8\ See letter in the docket for this action from Glenn Shankle, Executive Director of TCEQ, to Larry Starfield, Deputy Regional Administrator for EPA Region 6, dated June 13, 2008, noting that action on TCEQ's public participation rule was necessary to resolve issues in another pending SIP submission.

Except where noted below, EPA proposes limited approval and limited disapproval (LALD) of the following regulations:
State State citation Title Current SIP submittal Type of SIP Proposed action status dates revision Chapter 39Public Notice Subchapter DPublic Notice of Air Quality Permits Section 39.201.............. Application for Not in existing 10/25/99 New rule....... LALD. a SIP.
Preconstructio
n Permit.
Subchapter HApplicability and General Provisions Section 39.401.............. Purpose........ Not in existing 10/25/99 New rule....... LALD. SIP.
Section 39.403.............. Applicability.. Not in existing 10/25/99 New rule State LALD. The SIP SIP. did not submit will not paragraphs include (b)(1) through paragraphs (b)(7). (b)(1) through No action on (b)(7) and paragraph (b)(9). (b)(9). See section VII.. Section 39.405.............. General Notice Not in existing 10/25/99 New rule. State LALD. The SIP Provisions. SIP. did not submit will not subsections include (a) through subsections (e) and (a) through paragraph (e) and (f)(2). paragraph (f)(2). Section 39.409.............. Deadline for Not in existing 10/25/99 New rule....... LALD. Public SIP.
Comment,
Requests for
Reconsideratio
n, Contested
Case Hearing,
or Notice of
Comment
Hearing.
Section 39.411.............. Text of Public Not in existing 10/25/99 New rule. State LALD. The SIP Notice. SIP. did not submit will not paragraph include (b)(7). paragraphs No action on (b)(7), paragraphs (b)(11), (b)(11), (b)(13), (b)(13), (b)(14), and (b)(14), and (c)(7). (c)(7). See section VII.. Section 39.413.............. Mailed Notice.. Not in existing 10/25/99 New rule. State LALD. The SIP SIP. did not submit will not paragraphs (1) include through (8), paragraphs (1) (10), and (13). through (8), (10), and (13). Section 39.418.............. Notice of Not in existing 10/25/99 New rule. State LALD. The SIP Receipt of SIP. did not submit will not Application paragraphs include and Intent to (b)(1) through paragraphs Obtain Permit. (b)(2). (b)(1) through (b)(2). Section 39.419.............. Notice of Not in existing 10/25/99 New rule. State LALD. The SIP Application SIP. did not submit will not and subsection (c). include Preliminary subsection Determination. (c). Section 39.420.............. Transmittal of Not in existing 10/25/99 New rule. State LALD. The SIP Executive SIP. did not submit will not Director's paragraph include Response to (c)(2) and paragraph Comments and subsection (e). (c)(2) and Decision. subsection (e). Section 39.423.............. Notice of Not in existing 10/25/99 New rule....... LALD. Contested Case SIP.
Hearing.
Subpart KPublic Notice for Air Quality Permits Section 39.601.............. Applicability.. Not in existing 10/25/99 New rule....... LALD. SIP.
Section 39.602.............. Mailed Notice.. Not in existing 10/25/99 New rule....... LALD. SIP.
Section 39.603.............. Newspaper Not in existing 10/25/99 New rule....... LALD. Notice. SIP.
[[Page 72005]]
Section 39.604.............. SignPosting... Not in existing 10/25/99 New rule....... LALD. SIP.
Section 39.605.............. Notice to Not in existing 10/25/99 New rule....... LALD. Affected SIP.
Agencies.
Chapter 55Requests for Reconsideration and Contested Case Hearing Subchapter AApplicability Section 55.1................ Applicability.. Not in existing 10/25/99 New rule....... No action. See SIP. section VII. Subchapter BRequests, Public Comment Section 55.21............... Requests for Not in existing 10/25/99 New rule....... No action. See Contested Case SIP. section VII. Hearing,
Public Comment.
Subchapter DApplicability and Definitions Section 55.101.............. Applicability.. Not in existing 10/25/99 New rule....... No action. See SIP. section VII. Section 55.103.............. Definitions.... Not in existing 10/25/99 New rule....... No action. See SIP. section VII. Subchapter EPublic Comment and Public Meetings Section 55.150.............. Applicability.. Not in existing 10/25/99 New rule....... LALD. SIP.
Section 55.152.............. Public Comment Not in existing 10/25/99 New rule. State LALD. The SIP Period. SIP. did not submit will not paragraphs include (a)(3) through paragraphs (a)(5). (a)(3) through (a)(5). Section 55.154.............. Public Meetings Not in existing 10/25/99 New rule....... LALD. SIP.
Section 55.156.............. Public Comment Not in existing 10/25/99 New rule....... LALD. Processing. SIP.
Subchapter FRequests for Reconsideration and Contested Case Hearing; Public Comment Section 55.200.............. Applicability.. Not in existing 10/25/99 New rule....... No action. See SIP. section VII. Section 55.201.............. Requests for Not in existing 10/25/99 New rule....... No action. See Reconsideratio SIP. section VII. n and
Contested Case
Hearing.
Section 55.203.............. Determination Not in existing 10/25/99 New rule....... No action. See of Affected SIP. section VII. Person.
Section 55.205.............. Request by Not in existing 10/25/99 New rule....... No action. See Group or SIP. section VII. Association.
Section 55.209.............. Processing Not in existing 10/25/99 New rule....... No action. See Requests for SIP. section VII. Reconsideratio
n or Contested
Case Hearing.
Section 55.211.............. Commission Not in existing 10/25/99 New rule....... No action. See Action on SIP. section VII. Requests for
Reconsideratio
n and
Contested Case
Hearing.
Chapter 116Control of Air Pollution by Permits for New Construction or Modification Subchapter BNew Source Review Permits Division 1Permit Application Section 116.111............. General In existing SIP 10/25/99 Redesignated LALD to add new Application. as approved 8/ preexisting subsection 28/07, 72 FR text as (b). The SIP 41998. subsection will not The existing (a). This include SIP does not change was paragraph include approved 9/6/ (a)(2)(K). paragraph 06, 71 FR (a)(2)(K) and 52664. subsection Added new (b).. subsection (b).. Section 116.114............. Application In existing SIP 10/25/99 Revision to LALD for all Review as approved 9/ paragraphs submitted SIP Schedule. 18/02, 67 FR (a)(2), revisions. 58709. (b)(1), and (b)(2); and the addition of new subsection (c). [[Page 72006]]
Section 116.116............. Changes to In existing SIP 10/25/99 Revised LALD for Facilities. as approved 11/ subsection (d) addition of 14/03, 68 FR and paragraphs paragraph 64548. (d)(1) and (b)(4). The The existing (d)(2). This SIP will not SIP does not change was include include approved 11/14/ paragraph sections 03, 68 FR (b)(3) and 116.116(b)(3), 64548. subsections (b)(4), (e), Added new (e) through and (f).. paragraph (f). (b)(4).. Division 2Compliance History Section 116.124............. Public Notice In existing SIP 10/25/99 Section Removal of of Compliance as approved 9/ repealed. section History 18/02, 67 FR 116.124 from Section. 58709. the SIP. Subchapter CHazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, Sec. 112(g), 40 CFR Part 63) Section 116.183............. Public Notice Not in existing 7/22/98 EPA took no No action on Requirements. SIP. action on revision to section section 116.183 as 116.183 as submitted 7/22/ submitted 10/ 98. See 67 FR 25/99. See 58699 (9/18/ section VII. 02). 10/25/99 Revision to change cross reference from sections 116.130 through 116.137 to applicable provisions in Chapter 39. Subchapter DPermit Renewals Section 116.312............. Public In existing SIP 12/15/95 and 7/ 7/22/98 LALD for Notification as approved 3/ 22/98 submittal changes and Comment 10/06, 71 FR repealed and submitted 12/ Procedures. 12285. revised pre 15/95, 7/22/ existing 98, and 10/25/ section. 99. Changes were non substantive housekeeping changes to include cross references to current rule.. 10/25/99 Revised to change cross reference from Chapter 116 to Chapter 39. Subchapter GFlexible Permits Section 116.740............. Public Notice.. Not in existing 10/25/99 Revised to No action. See SIP. change cross section VII. reference from Chapter 116 to Chapter 39. B. What is limited approval and limited disapproval?

Under section 110(k)(3) of the CAA, EPA may fully approve or fully disapprove a State submittal. Where portions of the State submittal are separable, EPA may approve the portions of the submittal that meet the requirements of the CAA, and disapprove the portions of the submittal that do not meet the requirements of the CAA. When a submittal is not separable, EPA can adopt a limited approval and limited disapproval consistent with section 301(a) and 110(k)(3) of the Act.

A limited approval action applies to the entire rule because EPA finds that approval of the entire rule will strengthen the State's SIP. In proposing a limited approval, EPA simultaneously proposes a limited disapproval of the submittal because it contains deficiencies and, as such, does not fully meet all of the requirements of the Act. Under a final limited approval, the State's entire submittal is incorporated into the SIP and becomes fully federally enforceable. Where the submittal addresses a mandatory requirement of the Act, final limited disapproval starts a sanctions clock and a federal implementation plan (FIP) clock. Under section 179(a), if EPA disapproves a submittal of a requirement under the CAA, based on the submittal's failure to meet one or more of the elements required by the Act, the sanctions set forth in section 179(b) become applicable, unless the deficiency has been corrected within 18 months of disapproval. Section 179(b) of the Act and 40 CFR 52.31 of our regulations provide two sanctions available to the Agency: increasing the offset requirements and withholding highway funding. Moreover, the final limited disapproval may trigger a 24month [[Page 72007]]
clock to adopt a FIP requirement under section 110(c). If the State submits an approvable rule revision during the sanction clock period, EPA may propose approval of the rule and take interim final action, effective upon publication, to stay the sanctions. Final approval of the rule revision correcting the deficiency terminates the FIP clock. III. How do the revised rules strengthen the existing SIP?

The SIP revisions submitted on December 15, 1995; July 22, 1998; and October 25, 1999, as a whole, strengthen the SIP compared to the corresponding provisions in the existing SIP. Below is a summary of some revisions that strengthen the SIP. The TSD includes detailed analyses of how the SIP is strengthened.

IV. What are the rule deficiencies?

Notwithstanding the fact that these rules strengthen the existing SIP, they do not meet all of the minimum applicable federal requirements that relate to public participation. Each notation below is discussed in detail in Section V.

A. New or Modified Minor NSR Sources

Generally, the minor NSR public participation rules identified below do not require any initial public participation for some permitting actions or do not require the TCEQ to provide the agency's air quality analysis and proposal to approve or disapprove the permit in other permitting actions.

B. Projects Subject to PSD

The revised rules do not contain the following requirements for projects subject to the regulations for PSD:

C. Project for a PAL

The revised rules do not meet the following provisions for PALs:

D. Project for a Flexible Permit

The rules do not meet the following provisions for Flexible Permits:

The CAA at section 110(a)(2)(C) requires states to include a minor NSR program in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the national ambient air quality standards (NAAQS) are achieved. EPA's implementing regulations at 40 CFR 51.16051.164 are intended to ensure that new source growth is consistent with maintenance of the NAAQS. 40 CFR 51.160(e) requires states to identify types and sizes of facilities which will be subject to review under their minor NSR program. For sources identified under Sec. 51.160(e), Sec. 51.160(a) requires that the SIP include legally enforceable procedures that enable the State or local agency to determine whether construction or modification of a facility, building, structure or installation, or combination of these will result in a violation of applicable portions of the control strategy; or interference with attainment or maintenance of a national standard in the State in which the proposed source (or modification) is located or in a neighboring State.

Sources subject to the legally enforceable procedures under 40 CFR 51.160(a) are also subject to the minimum public participation requirements at 40 CFR 51.161, entitled Public Availability of Information. In particular, 40 CFR 51.161(a) requires a State to provide the opportunity for public comments on information submitted by owners and operators. 40 CFR 51.161(a) also requires the public information to include the agency's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval. 40 CFR 51.161(b) requires that the State ensure availability of the information submitted by the owner or operator and the State's analysis of the effect on air quality for public inspection in at least one location in the affected area, that the State provide a 30day public comment period on that information and that notice of the public comment period should be by prominent advertisement in the area affected.

The minor NSR program is also important as a tool to implement changes related to major NSR, such as to adopt enforceable limitations on hours of operation and rates of production or the installation of pollution control equipment to limit potential to emit (PTE) to avoid major source applicability thresholds of NSR or title V permitting requirements. The minor NSR program also authorizes minor modifications at major sources, including netting demonstrations required by the PSD and NNSR major source program, or to establish a PAL to determine PSD or NNSR applicability.

EPA recognizes that, under the applicable Federal regulations, states have broad discretion to determine the scope of their minor NSR programs as needed to attain and maintain the NAAQS. The State has significant discretion to tailor minor NSR requirements that are consistent with the requirements of Part 51. The State may also provide a rationale for why the rules are at least as stringent as the Part 51 requirements where the revisions are different from Part 51. For further information, see recent SIP actions in other States concerning minor NSR approvals and disapprovals, such as 68 FR 2891 (January 22, 2003), where EPA approved Oregon's minor NSR program establishing categories of minor NSR permit actions. However, EPA disapproved or gave less than full approval to minor NSR public participation requirements that provided a blanket exemption from one or more public notice requirements of Part 51 to all minor NSR permitting actions. See 65 FR 2042 (January 13, 2000), disapproval of West Virginia minor NSR provisions providing 15day public comment period for certain minor NSR permitting actions or 65 FR 2048 (January 13, 2000), limited approval of Delaware minor NSR public participation requirements because it strengthened the SIP, but limited disapproval of the rule due to less than 30day comment period. See also the proposed approval of Review of New Sources and Modifications in Indian Country at 71 FR 48696 (August 21, 2006) and 72 FR 45378 (August 14, 2007), approval of Alaska minor NSR public participation provisions.
2. What are the Texas minor NSR program public participation requirements?

In general, the revised rules provide for two types of public notice and comment processes. These two public notices are Notice of Application and Intent to Obtain a Permit under section 39.418 (first notice) and Notice of
[[Page 72009]]
Application and Preliminary Decision (second notice) under section 39.419 and subchapter K. The first notice requires the permittee to publish notice of the permit application and provide a copy of the administratively complete application in the public record available for public comment. An administratively complete application may, but is not required to, contain the applicant's information on the air quality impacts from the facility. Under Section 39.419(e)(1)(B), no further notice is required for minor NSR permits unless a contested case hearing is requested and not withdrawn before the second notice is published. Under section 55.21, a contested case hearing may be requested by: (1) The Commission; (2) the Executive Director; (3) the applicant; (4) affected persons, when authorized by law; and (5) for applications for air quality permits, or standard exemptions required to provide public notice, a legislator from the general area of the proposed facility. The request must identify the person's personal justiciable interest affected by the application, including the requestor's location and distance relative to the activity that is the subject of the application and how and why the requestor believes he or she will be affected by the activity in a manner not common to members of the general public. Requirements for a group or association to request a contested case hearing are found in section 55.23.\9\ A contested case hearing is an evidentiary hearing before an administrative law judge at the State Office of Administrative Hearings (SOAH). If a contested case hearing is requested, the permittee must publish notice of the opportunity to comment on the complete application and the State's analysis of air quality impacts and the State's proposal to approve or disapprove the permit.
\9\ Section 55.23, Request by Group or Association, was not submitted in this SIP revision.

Section 39.418 of the revised rule requires the applicant for a minor NSR permit new source or modification, amendments or renewal under Chapter 116 to publish Notice of Receipt of Application and Intent to Obtain Permit (first notice) within 30 days after the Executive Director determines the application to be administratively complete. (The rule does not provide a definition of administrative completeness.) Under sections 55.152(a)(1) and (2), 39.405(f)(1), and 39.603, the notice of 30day public comment period (15 days for renewals) must be published in a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located or in the municipality nearest to the location or proposed location of the facility and State the end date of the public comment period. Section 39.405(e) requires the applicant to provide a copy of the notice to the TCEQ within 10 business days from the last date of publication. The applicant must also post a sign at the site of the existing or proposed facility declaring the filing of an application for a permit under section 39.604. The TCEQ is required to mail a copy of the notice to the State senator and representative who represent the area in which the facility is or will be located, the applicant, persons on a relevant mailing list, and any other person the Executive Director or Chief Clerk may elect to include under sections 39.413 and 39.602. The applicant is required to mail a copy of the notice to EPA, all local air pollution control agencies with jurisdiction in the county in which the construction is to occur, and the air pollution control agency of any nearby State in which air quality may be adversely affected by the emissions from the new or modified facility under section 39.605. The applicant is also required to make a copy of the application available for review and copying at a public place in the county in which the facility is located or proposed to be located. The applicant must indicate when confidential business information is excluded from the public file. See section 39.405(g). The public record available during the comment period includes the administratively complete permit application and any other documents submitted by the applicant, as required by section 39.405(g).

If a contested case hearing is requested by persons identified in section 55.21 or 55.23 in response to the Notice of Receipt of Application and Intent to Obtain Permit, and the request is not withdrawn before the date the preliminary decision is issued, section 39.419 requires the applicant to publish Notice of Application and Preliminary Decision (second notice) of issuance or modification of a minor NSR action and provide a 30day notice and comment period on the public record, which includes the draft permit and the State's analysis of its preliminary decision to approve or disapprove the permit.

For minor and major sources authorized under section 116.116(b) of the approved SIP, a permittee must apply for and receive a prior permit amendment which authorizes a permittee to vary from terms of a permit if the change involves a change in the method of control of emissions, a change in the character of the emissions, or an increase in the emission rate of any air contaminant. Section 39.403(b)(8) requires public notice and the opportunity for comment only if the permit amendment involves construction of a new facility or modification of an existing facility that results in an increase in allowable emissions equal to or greater than 250 tpy of CO or NOX; or 25 tpy of VOC or SO2 or PM10; or 25 tpy of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or other changes within the discretion of the Executive Director. Therefore, permit amendments authorized under section 116.116(b) are not subject to any public participation requirements unless the amendment involved an emission increase of allowable emission above the thresholds in section 39.403(b)(8).

Under section 39.419(e)(1)(C), any amendment, modification, or renewal for a major or minor source that requires a permit application and would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted, is not required to provide second notice (which includes public notice and the opportunity for comment on the State's second notice which includes analysis of the effect of construction or modification on ambient air quality and includes the agency's proposed approval or disapproval) unless the application involves a facility for which the applicant's compliance history contains violations that are unresolved and that constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations. Therefore, amendments, modifications or renewals for minor or major sources are not required to provide an air quality analysis or the State's proposal to approve or disapprove the permit unless there was an increase in allowable emissions or the release of a new air contaminant.
3. Does the Texas minor NSR public participation rule meet federal requirements for approval?

The revised rules meet or exceed federal requirements for minor NSR public participation with four exceptions as described below.

First, under section 39.419(e)(1)(B), the requirement at 40 CFR 51.161(a) to provide opportunity for public comment on the State's analysis of the effect of construction or modification on ambient air quality from new minor sources or
[[Page 72010]]
minor modification identified under 40 CFR 51.160, including the State's proposed approval or disapproval, is not met. Sources regulated under 40 CFR 51.160 are subject to the public participation requirements of 40 CFR 51.161. Under the Texas rule, sources subject to minor NSR requirements must publish the first notice, Notice of Receipt of Application and Intent to Obtain Permit, and provide a 30day notice and comment period on the administratively complete permit application only. The publically available information during the comment period does not include and, the public notice fails to inform the public how to obtain, the State's analysis of air quality impacts and proposal to approve or disapprove the application. The public record for the first notice is required to contain only a copy of the administratively complete permit application as required by section 39.405(g). As a result, the public does not have an opportunity to adequately review and comment upon the potential air quality effects from the source and on the State's proposed action on the application. In order to obtain the State's air quality analysis, an interested person must request a contested case hearing. However, sections 55.21(b) and 55.23 limit who may request a contested case hearing before SOAH and so some members of the public may not be able to review and comment on air quality impacts from the facility. The request for a contested case hearing must be filed within the first notice public comment period and must be based solely upon information in the administratively complete application. EPA has concluded that the burden of requesting an evidentiary administrative hearing based solely on the information in the permit application does not provide the public with the minimum public information required by 40 CFR 51.161(a) and (b).

Second, section 39.403(b)(8) excludes permit amendments authorized by section 116.116(b) from any public participation requirements of Chapter 39, including the requirement to publish the first notice, unless the change involves construction of a new facility or modification of an existing facility that results in an increase in allowable emissions equal to or greater than 250 tpy of CO or NOX; or 25 tpy of VOC or SO2 or PM10; or 25 tpy of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or other changes within the discretion of the Executive Director. Changes that result in an increase in emissions are subject to a permit amendment under sections 116.110 or 116.116(a) or (b) of the approved SIP. As stated, section 39.403(b)(8) provides an exemption from public participation for sources otherwise required to obtain a permit amendment. As discussed in more detail above, sources regulated under 40 CFR 51.160(a) are subject to the minimal public participation requirements in 40 CFR 51.160(a) and (b). We also have concerns that this provision does not exclude public participation requirements for major modifications subject to PSD or NNSR permitting requirements, which are based on actual rather than allowable emissions and may be interpreted to apply to those permitting actions.\10\ EPA has concluded that 39.403(b)(8) fails to provide the minimum public participation requirements of 40 CFR 51.161.
\10\ See NSR Reform ruling, New York v. EPA, 413 F.3d 3 (D.C. Cir. June 24, 2005). The court held that the major NSR modification requirement, which incorporates by reference CAA Sec. 111(a)(4), ``unambiguously defines `increases' in terms of actual emissions.''

Third, under section 39.419(e)(1)(c), for any amendment, modification, or renewal application for a minor or major source, the revised rules do not require second notice, which includes the State's air quality analysis, unless the change would result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted. The requirement at 40 CFR 51.161(a) to provide opportunity for public comment on the State's analysis of the effect of modification on ambient air quality from minor sources identified under 40 CFR 51.160, including State's proposed approval or disapproval, is not met. We recognize that States may tailor minor NSR programs to allow permit amendments for certain minor sources required to be based upon increases in allowable emissions. However, section 39.419(e)(1)(C) applies to major and minor sources required to obtain a permit amendment under Chapter 116 of the approved SIP. As described in the previous paragraph, sources required to obtain a permit under 40 CFR 51.160(a) are subject to the public participation requirements of 40 CFR 51.161. Under 40 CFR 51.161, a modification application for a major or minor source regulated under the SIP is subject to public notice and opportunity for public comment on the State's air quality analysis and proposal to approve or disapprove the permit. We also have concerns that this provision does not exclude public participation requirements for major modifications subject to PSD or NNSR permitting requirements, which are based on actual rather than allowable emissions and may be interpreted to apply to those permitting actions. EPA has concluded that section 39.419(e)(1)(c) fails to provide the minimum public participation requirements of 40 CFR 51.161.

Fourth, section 39.403(b) (Applicability) of the revised rule refers to two State statutory provisions, THSC section 382.0518 (preconstruction permit) and section 382.055 (review and renewal of preconstruction permit). For clarity and for approvability into the SIP, we recommend that section 39.403(b) be revised to refer to the corresponding sections of the Texas SIP.

In summary, EPA has determined that the Texas minor NSR public participation rules do not require that the publicly available information include the State's analysis of air quality impacts or the State's decision to approve or disapprove the permit. EPA's review of section 39.419(e)(1)(A) and (B) indicates that public notice of the State's analysis of air quality impacts for minor new sources or minor modifications is not required unless a contested case hearing is requested. We are concerned that the rules at sections 55.21 and 55.23 limit who may request a contested case hearing. In other words, the first notice (Notice of Application and Intent to Obtain a Permit) does not contain the agency's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval as required by 40 CFR 51.161(b). The only way to obtain that information is by requesting a contested case hearing and the rules limit which members of the public can do so. Moreover, we believe that the State's requirement to submit a request for an evidentiary administrative hearing in order to obtain the air quality analysis is too large a burden for potential commenters, may exclude some interested persons, and is not consistent with the minimum requirements of 40 CFR 51.161(a) and (b). We note that Texas did not provide

FOR FURTHER INFORMATION CONTACT

Mr. Stanley M. Spruiell, Air Permits Section (6PDR), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 752022733, telephone (214) 6657212; fax number 2146657263; email address spruiell.stanley@epa.gov.