Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

Docket No. 2005- 1620-RUL 

March 9,2006 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency - Region 6 

1445 Ross -Avenue 

Dallas. Texas 75202-2733 

Dear Mayor Greene: 

On February 22, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 

State Implementation Plan (SIP). 

The Commission adopted amended, repealed, and new sections in 30 TAC Chapter 39, Public Notice, Subchapter 

H, Applicability and General Provisions; new sections in 30 TAC Chapter 116, Control of Air Pollution by Permits 

for New Construction or Modification, Subchapter L, Permits for Designated Facilities; and corresponding 

revisions to the SIP. Certain provisions of the rules are submitted as a revision to the State Implementation Plan 

(SIP), specifically § 39.403(b)(8) - (10) and new (f), the repeal of !j 39.404, and new !j 39.404.' The commission 

withdraws !j§ 39.41 1, 39.419, and 39.420 as submitted to EPA on July 3 1,2002, and submits §§ 39.41 l(a), (b)(l) 

- (6), (8).- (lo), (c)(l) - (6), and (d); 39.419(a), (b), (d), and (e); and 39.420(a), (b), and (c)(3) and (4) as a 

revision to the SIP. The rule changes in Chapters 39 and 116 implement House Bill 2201, passed by the 79th 

Legislature, 2005, which directs the commission to establish, by rule, streamlined permitting procedures for 

FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide 

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration 

project that is a partnership between industry participants and the United States Department of Energy. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the public 

hearing, and the accompanying order. I look forward to your expeditious approval of these SIP revisions. 

Sincerely , 

athleen Hartnett White 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 Austin, Texas 78711-3087 5121239-1000 Internet dddress: www.tceq.state.tx.us 

I I 
THE STATE OF TEXAS 5 

COUNTY OF TRAVIS 5 

This is to certify that the attached are true and correct copies of documents for revisions to the Texas 

State Implementation Plan, adopted on February 22, 2006, pursuant to 40 Code of Federal Regulations (CFR) 

551.104. I am the records administrator for the General Law Division of the Texas Commission on 

Environmental Quality (Commission). 

Kevin McCalla 

Director, General Law Division 

Texas Commission on Environmental Quality 
Texas Commission on 

Environmental Quality 

Public Hearing 

December 20, 2005 

Concerning Revisions to 

30 TAC Chapters 39 and 11 6 

HB 2201 : FutureGenIClean Coal 

Rule Project Number 2005-053-091 -PR 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on 

December 20, 2005, to consider revisions to 30 TAC Chapter 39, Public Notice, 5539.403, 39.41 1, 

39.4.19, and 39.420, the repeal of 539.404, and new $39.404; and 30 TAC Chapter 116, Control of Air 

Pollution by Permits for New Construction or Modification; new Subchapter L, Permits for Specific 

Designated Facilities, $5116.1400, 116.1402, 116.1404, 116.1406, 116.1408, 116.1410, 116.1414, 

116.1416, 116.1418, 116.1420, 116.1422, 116.1424, 116.1426, and 116.1428. Section 39.403(b)(8) - 

(10) and new (0, the repeal of $39.404, and new $39.404 will be submitted to the United States 

Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). The 

commission also proposes to withdraw $539.41 1, 39.419, and 39.420, as submitted to EPA on July 31, 

2002, and proposes to submit $$39.411(a), (b)(l) - (6) and (8) - (lo), (c)(l) - (6), and (d); 39.419(a), (b), 

(d), and (e); and 39.420(a), (b), and (c)(3) and (4) as a revision to the SIP. Chapter 116, new Subchapter 

L will also be submitted as a revision to the SIP. 

This rulemaking would implement provisions of House Bill (HB) 2201. HB 2201 identifies the United 

States Department of Energy's FutureGen research and creates a new set of permitting actions for 

FutureGen projects, specifically that permits for FutureGen projects are not subject to the contested case 

hearing process. Chapter 116, new Subchapter L, would eliminate the requirement of a contested case 

hearing and address existing statutory requirements for the permitting and public participation process not 

affected by HI3 2201 but still applicable to FutureGen projects. 

Written comments were accepted through December 27, 2005. All testimony and comments have been 

reviewed and seriously considered. This hearing record contains a complete record of the public hearing 

and is divided into the following four sections: 
0 Public Notification and Proposal 

0 Written and Oral Testimony 

0 Evaluation of Testimony 

0 Staff Recommendations (Including Order and Texas Register publication) 

Additional copies of this hearing record are maintained in the commission's central office at 12100 Park 

35 Circle, Austin, Texas 78753. For further information, please contact Michael Wilhoit, Air Permits 

Division, at (5 12) 239-1222. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1. Publication of notice of public hearings in the following newspapers on the date listed: 

Austin Amencan Statesman; November 15,2005 

Fort Worth Star-Telegram; November 17, 2005 

Houston Chronicle; November 1 6, 2005 

2. Publication of proposed Chapter 116 in the November 25, 2005, issue of the Texas Register (30 

TexReg 7810); and Chapter 39 in the December 16,2005, issue of the Texas Register (30 

TexReg 8401 ). 

3. Publication of the Notice of Public Hearing in the November 25, 2005, issue of the Texas 

Register (30 TexReg 792 1 ). 

4. Correspondence forwarding the notice of public hearing to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Dallas Department of Environmental and Health Services 

City of Dallas Department of Aviation 

East Texas Council of Governments 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 
Fort Worth Environmental Management Department 

Galveston County Health District 

Harris County Pollution Control Department 

Houston Department of Health and Human Services 

Houston-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and.Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

U. S. Environmental Protection Agency 
Example of Newspaper Classified Ad 

Fort Worth Star-Telegram, November 17, 2005 
Notice is given that the following application has been led with the

Credit Union Department and is under consideration:

An application was received from Pegasus Credit Union (Dallas) seeking approval to merge with Magpegasus Federal Credit Union (Midland). Pegasus Credit Union will be the surviving credit union.

Comments or a request for a meeting by any interested party relating

to an application must be submitted in writing within 30 days from

the date of this publication. Any written comments must provide all

information that the interested party wishes the Department to consider

in evaluating the application. All information received will be weighed

during consideration of the merits of an application. Comments or a

request for a meeting should be addressed to the Texas Credit Union

Department, 914 East Anderson Lane, Austin, Texas 78752-1699.

TRD-200505295

Harold E. Feeney

Commissioner

Credit Union Department

Filed: November 16, 2005

Applications to Expand Field of Membership

Notice is given that the following applications have been led with the

Credit Union Department and are under consideration:

An application was received from First Service Credit Union, Houston,

Texas to expand its eld of membership. The proposal would permit

employees of Republic Waste Services of Texas, Ltd who work in or are

paid from Houston, Texas, to be eligible for membership in the credit

union.

An application was received from MemberSource Credit Union, Houston, Texas to expand its eld of membership. The proposal would permit employees of Trans-Tec Machine Inc. and their subsidiaries, afliates or successors, who work in, are paid or supervised from Houston,

Texas, to be eligible for membership in the credit union.

Comments or a request for a meeting by any interested party relating

to an application must be submitted in writing within 30 days from the

date of this publication. Credit unions that wish to comment on any

application must also complete a Notice of Protest form. The form

may be obtained by contacting the Department at (512) 837-9236 or

downloading the form at http://www.tcud.state.tx.us/applications.html.

Any written comments must provide all information that the interested

party wishes the Department to consider in evaluating the application.

All information received will be weighed during consideration of the

merits of an application. Comments or a request for a meeting should

be addressed to the Texas Credit Union Department, 914 East Anderson

Lane, Austin, Texas 78752-1699.

TRD-200505294

Harold E. Feeney

Commissioner

Credit Union Department

Filed: November 16, 2005

Notice of Final Action Taken

In accordance with the provisions of 7 TAC Section 91.103, the Credit

Union Department provides notice of the nal action taken on the following application(s):

Application(s) to Expand Field of Membership - Approved

Fort Worth Community Credit Union, Fort Worth, Texas - See Texas

Register issue dated July 30, 2004.

FedStar Credit Union, College Station, Texas - See Texas Registerissue

dated August 26, 2005.

City Credit Union, Dallas, Texas - See Texas Register issue dated August 26, 2005.

Application(s) to Amend Articles of Incorporation - Approved

Entex South Texas Credit Union, Kenedy, Texas - See Texas Register

issue dated September 30, 2005.

Gulf Employees Credit Union, Groves, Texas - See Texas Register issue dated September 30, 2005.

TRD-200505296

Harold E. Feeney

Commissioner

Credit Union Department

Filed: November 16, 2005

Texas Commission on Environmental Quality

Notice of Public Hearing

The Texas Commission on Environmental Quality (commission)

will conduct a public hearing to receive testimony regarding proposed amendments to 30 TAC Chapter 39, Public Notice, §§39.403,

39.411, 39.419, and 39.420, the repeal of §39.404, and new §39.404;

amendments to 30 TAC Chapter 50, Action on Applications and

Other Authorizations, §50.113; 30 TAC Chapter 55, Requests for

Reconsideration and Contested Case Hearings; Public Comment,

§55.201; 30 TAC Chapter 331, Underground Injection Control,

§331.11; new 30 TAC Chapter 91, Alternative Public Notice and

Public Participation Requirements for Specic Designated Facilities,

§§91.10, 91.20, 91.30, 91.100, 91.110, and 91.120; and 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction

or Modication; new Subchapter L, Permits for Specic Designated

Facilities, §§116.1400, 116.1402, 116.1404, 116.1406, 116.1408,

116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422,

116.1424, 116.1426, and 116.1428. Section 39.403(b)(8) - (10) and

new (f), the repeal of §39.404, and new §39.404 will be submitted

to the United States Environmental Protection Agency (EPA) as a

revision to the state implementation plan (SIP). The commission also

proposes to withdraw §§39.411, 39.419, and 39.420, as submitted to

EPA on July 31, 2002, and proposes to submit §§39.411(a), (b)(1) -

(6) and (8) - (10), (c)(1) - (6), and (d); 39.419(a), (b), (d), and (e);

and 39.420(a), (b), and (c)(3) and (4) as a revision to the SIP. Chapter

116, new Subchapter L will also be submitted as a revision to the SIP,

under the requirements of Texas Health and Safety Code, §382.017;

Texas Government Code, Subchapter B, Chapter 2001; and 40 Code

of Federal Regulations §51.102, of the United States Environmental

Protection Agency regulations concerning SIPs.

The proposed rulemaking would implement provisions of House Bill

(HB) 2201. HB 2201 identies the United States Department of Energy’s FutureGen research and creates a new set of permitting actions

for FutureGen projects, specically that permits for FutureGen projects

are not subject to the contested case hearing process. Chapter 91 would

address existing statutory requirements for the permitting and public

participation process still applicable to FutureGen projects but eliminate the requirement of a contested case hearing. Chapter 116, new

Subchapter L, would eliminate the requirement of a contested case

hearing and address existing statutory requirements for the permitting

IN ADDITION November 25, 2005 30 TexReg 7921
and public participation process not affected by HB 2201 but still applicable to FutureGen projects.

A public hearing for the proposed rulemaking and SIP revision will

be held in Austin on December 20, 2005, at 10:00 a.m., in Building

B, Room 201A, at the Texas Commission on Environmental Quality,

located at 12100 Park 35 Circle. The hearing will be structured for the

receipt of oral or written comments by interested persons. Registration

will begin 30 minutes prior to the hearing. Individuals may present

oral statements when called upon in order of registration. There will

be no open discussion during the hearing; however, commission staff

members will be available to discuss the proposal 30 minutes before

the hearing and will answer questions before and after the hearing.

Persons planning to attend the hearing who have special communication or other accommodation needs, should contact Joyce Spencer, Of-

ce of Legal Services at (512) 239-5017. Requests should be made as

far in advance as possible.

Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Ofce of Legal Services, Texas Commission on Environmental Quality, P. O. Box 13087, Austin, Texas 78711-3087, or by fax to

(512) 239-4808. All comments should reference Rule Project Number

2005-053-091-PR. Comments must be received by 5:00 p.m. on December 27, 2005. Copies of the proposed rules can be obtained from

the commission’s web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Michael Wilhoit, Air Permits Division at (512) 239-1222.

TRD-200505200

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: November 10, 2005

Notice of Public Hearing on Proposed Revisions to 30 TAC

Chapter 111 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, and the state implementation

plan (SIP) under the requirements of Texas Health and Safety Code,

§382.017; Texas Government Code, Subchapter B, Chapter 2001; and

40 Code of Federal Regulations §51.102, of the United States Environmental Protection Agency (EPA) regulations concerning SIPs.

This rulemaking would eliminate air standards that cannot be scientifically defended. In addition, this rulemaking will make the commission’s approach to particulate matter regulation consistent with federal

and other state approaches.

A public hearing on this proposal will be held on December 15, 2005, at

2:00 p.m., in Building E, Room 254S, Texas Commission on Environmental Quality, 12100 Park 35 Circle, in Austin, Texas. The hearing

will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order

of registration. There will be no open discussion during the hearing;

however, commission staff members will be available to discuss the

proposal 30 minutes before the hearing and will answer questions before and after the hearing.

Persons planning to attend the hearing who have special communication or other accommodation needs, should contact Joyce Spencer, Of-

ce of Legal Services at (512) 239-5017. Requests should be made as

far in advance as possible.

Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Ofce of Legal Services, Texas Commission on Environmental Quality, P. O. Box 13087, Austin, Texas 78711-3087 or faxed

to (512) 239-4808. All comments should reference Rule Project Number 2005-013-111-EN. Comments must be received by 5:00 p.m., January 13, 2006. Copies of the proposed rules can be obtained from

the commission’s web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Kathy Singleton, Air Quality Planning and Implementation Division, at (512)

239-6098.

TRD-200505199

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: November 10, 2005

Notice of Water Quality Applications

The following notices were issued for the period of November 15,

2005.

The following require the applicants to publish notice in the newspaper. The public comment period, requests for public meetings, or

requests for a contested case hearing may be submitted to the Ofce

of the Chief Clerk, Mail Code 105, P. O. Box 13087, Austin Texas

78711-3087, WITHIN 30 DAYS OF THE DATE OF NEWSPAPER

PUBLICATION OF THIS NOTICE.

CITY OF AUSTIN which operates the City of Austin Municipal

Separate Storm Sewer System (MS4), has applied for a renewal

of NPDES Permit No. TXS000401, which authorizes storm water

point source discharges to surface water in the state from the City

of Austin MS4. The permit will be renewed as TPDES Permit No.

WQ0004705000. The MS4 is located in the City of Austin, in Travis,

Hays, and Williamson Counties, Texas.

CITY OF DALLAS which operates the City of Dallas Municipal Separate Storm Sewer System (MS4), has applied to the Texas Commission

on Environmental Quality (TCEQ) for a renewal of existing NPDES

Permit No. TXS000701. The draft permit would authorize storm water point source discharges to surface water in the state from the City of

Dallas Municipal Separate Storm Sewer System. The permit will be renewed as TPDES Permit No. WQ0004396000. The municipal separate

storm sewer system (MS4) is located within the corporate boundary of

the City of Dallas, in Dallas, Collin, Denton, Rockwall, and Kaufman

Counties, Texas.

CITY OF DELL CITY has applied for a renewal of Permit No. 14256-

001, which authorizes the disposal of treated domestic wastewater at

a daily average ow not to exceed 32,000 gallons per day via surface

irrigation of 74.6 acres of non-public access land. This permit will not

authorize a discharge of pollutants into waters in the state. The facility

and disposal site are located approximately 0.75 mile northeast of the

intersection of Farm-to-Market Road 1437 and Farm-to-Market Road

2249 in Hudspeth County, Texas.

CITY OF ELECTRA has applied for a renewal of TPDES Permit No.

10020-001, which authorizes the discharge of treated domestic wastewater at a daily average ow not to exceed 640,000 gallons per day.

The facility is located approximately 2 miles southeast of the intersection of Farm-to-Market Road 1739 and State Highway Loop 477 in

Wichita County, Texas.

GRIMES COUNTY MUNICIPAL UTILITY DISTRICT NO. 1 has applied for a renewal of TPDES Permit No. WQ0011437001, which authorizes the discharge of treated domestic wastewater at a daily aver30 TexReg 7922 November 25, 2005 Texas Register
request and by paying the cost per page set by the department. Payment shall be made prior to release of the records.

(n) Ofcial seal. The commissioner shall adopt an ofcial seal

for use in the course of ofcial committee business as authorized by the

Act. §603.151(5).

(o) Registry.

(1) The department shall prepare a registry of licensed perfusionists and provisionally licensed perfusionists that is available to

the public, license holders, and appropriate state agencies.

(2) The registry shall include, but not be limited to, the

names of current licensees.

(3) An original copy of the registry will be available for

inspection by licensees and members of the public in the ofce of the

executive secretary.

(p) Public interest information.

(1) The department shall prepare information of consumer

interest describing the profession of perfusion, the regulatory functions

of the department, and the procedures by which consumer complaints

are led with and resolved by the department.

(2) The department shall make the information available to

the public and appropriate state agencies.

(q) Executive secretary powers and duties. In addition to performing other duties prescribed by this section and by the department,

the executive secretary shall:

(1) administer licensing activity for the department;

(2) keep full and accurate minutes of the committee’stransactions and proceedings;

(3) serve as custodian of the committee’s les and other

records;

(4) prepare and recommend to the department plans and

procedures necessary to implement the objectives of this chapter, including rules and proposals on administrative procedure;

(5) exercise general supervision over persons employed by

the department in the administration of this chapter;

(6) investigate complaints and present formal complaints;

(7) attend all committee meetings as a nonvoting participant;

(8) handle the committee’s correspondence; and

(9) obtain, assemble, or prepare reports and other information as directed or authorized by the committee.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on December 5,

2005.

TRD-200505591

Cathy Campbell

General Counsel

Department of State Health Services

Earliest possible date of adoption: January 15, 2006

For further information, please call: (512) 458-7236

25 TAC §140.2, §140.6

(Editor’s note: The text of the following sections proposed for repeal

will not be published. The sections may be examined in the ofces of

the Department of State Health Services or in the Texas Register ofce,

Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The proposed repeals are authorized by Texas Occupations

Code, Chapter 603; and Government Code, §531.0055, and

Health and Safety Code, §1001.075, which authorize the

Executive Commissioner of the Health and Human Services

Commission to adopt rules and policies necessary for the

operation and provision of health and human services by the

department and for the administration of Chapter 1001, Health

and Safety Code.

The proposed repeals affect the Occupations Code, Chapter

603, Health and Safety Code, Chapter 1001; and Government

Code, Chapter 531.

§140.2. The Board’s Organization and Administration.

§140.6. Procedures and Criteria for Exemptions.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on December 5,

2005.

TRD-200505592

Cathy Campbell

General Counsel

Department of State Health Services

Earliest possible date of adoption: January 15, 2006

For further information, please call: (512) 458-7236

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 39. PUBLIC NOTICE

SUBCHAPTER H. APPLICABILITY AND

GENERAL PROVISIONS

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes amendments to §§39.403, 39.411,

39.419, and 39.420, the repeal of §39.404, and new §39.404.

Certain provisions of the rules will constitute a revision to the

state implementation plan (SIP) and will be submitted to the

United States Environmental Protection Agency (EPA), specifically, §39.403(b)(8) - (10) and new (f), the repeal of §39.404,

and new §39.404. The commission also proposes to withdraw

§§39.411, 39.419, and 39.420 as submitted to EPA on July 31,

2002, and proposes to submit §§39.411(a), (b)(1) - (6), (8) - (10),

(c)(1) - (6), and (d); 39.419(a), (b), (d), and (e); and 39.420(a),

(b), and (c)(3) and (4) as a revision to the SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

PROPOSED RULES December 16, 2005 30 TexReg 8401
House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permitting

procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that

is a partnership between industry participants and the United

States Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration project

could result in major economic, social, and environmental benets for Texas, and that streamlining the permitting process for

FutureGen projects would serve the public’s interest by improving the state’s ability to compete for federal funding for FutureGen projects. A specic requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested case

hearing. Under these proposed rules, the eligible permit applications for FutureGen projects will be subject to the same permitting and public participation processes that would otherwise

apply to applications for most types of commission permits, except for contested case hearings. Other portions of HB 2201 re-

ected in the proposed rules dene relevant terms, establish an

emissions prole, and clarify jurisdiction issues between TCEQ

and the Railroad Commission of Texas. Much of the content of

the proposed rules originates from new Texas Health and Safety

Code (THSC), §382.0565, Clean Coal Project Permitting Procedure, and new Texas Water Code (TWC), §5.558 and §27.022,

which were created by HB 2201.

The purpose of the proposed revisions to Chapter 39 is to implement the requirements of HB 2201 with respect to the public

notice requirements of permit applications required to authorize

a component of the FutureGen project. Because HB 2201 eliminates contested case hearings on applications for permits required to authorize a component of the FutureGen project, public

notice requirements for these applications need to be modied

to reect that the applications are not subject to contested case

hearings. The proposed revisions include a reference to the new

30 TAC Chapter 91 that establishes the streamlined process for

applications required to authorize a component of the FutureGen

process. The proposed rules concerning the FutureGen project

do not include an expiration date or sunset date, but the commission specically requests comment on whether an expiration

date or sunset date is necessary.

SECTION BY SECTION DISCUSSION

The commission proposes administrative changes throughout

the proposed rules to be consistent with Texas Register requirements and agency guidelines.

§39.403. Applicability.

The commission proposes an amendment to §39.403 by adding

a new subsection (f) stating that applications for permits, registrations, licenses, or other type of authorization required to

construct, operate, or authorize a component of the FutureGen

project as dened in the concurrently proposed §91.30, Denitions, are subject to the public notice requirements of concurrently proposed new Chapter 91, Alternative Public Notice and

Public Participation Requirements for Specic Designated Facilities, in addition to the requirements of this chapter, unless otherwise specied in Chapter 91. For most types of applications, the

notice requirements in proposed new Chapter 91 will use existing notice requirements for the type of application sought, except

to modify the text of the notice to indicate that the application is

for authorization of a component of the FutureGen project and is

not subject to a contested case hearing.

§39.404. Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities.

The commission proposes the repeal of §39.404 and proposes

to replace it with a new §39.404.

§39.404. Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities and for Applications for

Permits for Specic Designated Facilities.

The commission proposes new §39.404 that includes applicability requirements for certain designated projects, specically applications submitted under Chapter 116, concurrently proposed

new Subchapter L, Permits for Specic Designated Facilities.

§39.411. Text of Public Notice.

The commission proposes an amendment to §39.411 to specify in subsection (b)(10)(B) that notice for applications submitted

under §39.404(b) only require a statement that any person is

entitled to request a notice and comment hearing from the commission.

§39.419. Notice of Application and Preliminary Decision.

The commission proposes an amendment to §39.419 by adding

a new paragraph (4) to subsection (e) to specify that applications to construct, authorize, or operate a component of the FutureGen project as dened in the concurrently proposed §91.30,

Denitions, shall be subject to the public notice and participation

requirements stated in Chapter 116, concurrently proposed new

Subchapter L.

§39.420. Transmittal of the Executive Director’s Response to

Comments and Decision.

The commission proposes an amendment to §39.420 by adding

a new subsection (f), to specify that the chief clerk shall not be

required to transmit the item listed in §39.420(a)(4), concerning instructions for requesting a contested case hearing, for permit applications under Chapter 116, concurrently proposed new

Subchapter L.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeff Horvath, Analyst, Strategic Planning and Assessment Section, determined that for the rst ve-year period that the proposed rulemaking is in effect, no scal implications are anticipated for the agency or other units of state or local government.

Any entities wishing to be permitted under the proposed rulemaking may experience some cost savings due to a streamlined

permitting process.

The proposed rulemaking implements HB 2201. HB 2201 directs the agency to establish by rule, streamlined permitting procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that

is a partnership between industry participants and the United

States Department of Energy. The legislature determined that

this technology demonstration project could result in major economic, social, and environmental benets for Texas, and determined that streamlining the permitting process for FutureGen

projects would serve the public interest by improving the state’s

ability to compete for federal funding for FutureGen projects.

At this time, there have been no permits issued by the agency for

FutureGen projects. It is anticipated that there may be one entity

in the state that may apply for such a permit in the future. As the

30 TexReg 8402 December 16, 2005 Texas Register
proposed rulemaking would eliminate the contested case hearing process for specic projects and does not impose any new

requirements for the agency, there may be minor cost savings

to TCEQ and the State Ofce of Administrative Hearings due to

the reduction in the number of any contested case hearings.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the rst ve

years that the proposed rulemaking is in effect, the public benet anticipated from the changes due to the proposed rules will

be compliance with state law and improving the state’s ability

to compete for federal funding for FutureGen projects. These

projects are anticipated to result in the development of cleaner

sources of power to meet energy demands.

The proposed rulemaking may result in some reduced costs for

eligible industry projects, but in general any cost savings are not

expected to be signicant.

The proposed rulemaking is expected to only apply to one

project at the current time. The project involves a variety of

equipment used for power generation, hydrogen production,

and carbon dioxide sequestration. This equipment may include

bulk fuel handling equipment, gasiers, reactors, separators,

turbines, sulfur recovery units, and emission control equipment.

Industry projects eligible for the proposed rulemaking would no

longer be subject to a contested case hearing.

The elimination of contested case hearings may reduce travel

costs for applicants, and may result in reduced administrative or

professional costs that would have been incurred by the applicant to prepare for a contested case hearing.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse scal implications are anticipated for small or micro-businesses as a result of the proposed rulemaking. Small or

micro-businesses are not expected to apply for permits for FutureGen projects, but if they do, they would experience the same

cost savings as large businesses.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required

because the proposed rulemaking does not adversely affect a

local economy in a material way for the rst ve years that the

proposed rulemaking is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rules do not meet the de-

nition of a "major environmental rule." Under Texas Government

Code, §2001.0225, "major environmental rule" means a rule the

specic intent of which is to protect the environment or reduce

risks to human health from environmental exposure, and that

may adversely affect in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment,

or the public health and safety of the state or a sector of the

state. The proposed rules are intended to establish notice requirements for authorizing certain types of projects required for

the FutureGen project. The proposed rules are only procedural

rules establishing public notice requirements to administer the

program for permitting FutureGen projects and are not speci-

cally intended to protect the environment or to reduce risks to

human health. The proposed rules are intended to provide an

alternative mechanism for public participation and do not alter

the underlying technical review requirements. Therefore, because this rulemaking will not adversely affect in a material way

the economy, a sector of the economy, productivity, competition,

jobs, the environment, or the public health and safety of the state

or a sector of the state, the rulemaking does not t the Texas

Government Code, §2001.0225 denition of "major environmental rule."

Furthermore, the proposed rulemaking does not meet any of the

four applicable requirements listed in Texas Government Code,

§2001.0225(a). Texas Government Code, §2001.0225(a), only

applies to a major environmental rule adopted by an agency, the

result of which is to: 1) exceed a standard set by federal law,

unless the rule is specically required by state law; 2) exceed an

express requirement of state law, unless the rule is specically

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or

representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specic state law.

In this case, the proposed rules do not meet any of these applicability requirements. First, the proposed rules are consistent with

and do not exceed the standards set by federal law. Second, the

proposed rules do not exceed an express requirement of state

law, instead these rules implement HB 2201. Third, the rules

do not exceed an express requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal

program. Fourth, the commission does not propose these rules

solely under the general powers of the agency, but rather under the authority of THSC, §382.0565, as added by HB 2201,

which directs the commission to by rule implement reasonably

streamlined processes for issuing permits required to construct

a component of a FutureGen project, as authorized by federal

law; TWC, §5.558, as amended by HB 2201, which directs the

commission to implement reasonably streamlined processes for

issuing permits required to construct a component of a FutureGen project, as authorized by federal law; and TWC, §27.022,

as added by HB 2201, which establishes the commission’s jurisdiction over the injection of carbon dioxide produced by a clean

coal project to the extent authorized by federal law.

Because this proposal does not constitute a major environmental rule, a regulatory impact analysis is not required. The commission invites public comment regarding this draft regulatory

impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this proposed rulemaking and performed a preliminary assessment of whether this rulemaking

would constitute a takings under Texas Government Code,

Chapter 2007. The proposed rules are intended to establish

a streamlined process for authorizing certain types of projects

required for the FutureGen project. The proposed rules are

only procedural rules establishing a system to administer the

program for permitting FutureGen projects and are not speci-

cally intended to protect the environment or to reduce risks to

human health. The proposed rules are intended to provide an

alternative mechanism for public participation and do not alter

the underlying technical review requirements. Promulgation

and enforcement of the rules will not affect private real property

in a manner that would require compensation to private real

property owners under the United States Constitution or the

Texas Constitution. The proposed rules also will not affect private real property in a manner that restricts or limits an owner’s

PROPOSED RULES December 16, 2005 30 TexReg 8403
right to the property that would otherwise exist in the absence of

the governmental action. Consequently, this proposal does not

meet the denition of a takings under Texas Government Code,

§2007.002(5). Therefore, the proposed rules will not constitute

a takings under Texas Government Code, Chapter 2007. The

commission invites public comment on this preliminary takings

impact assessment.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking relates to an

action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of

1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject

to Consistency with the Goals and Policies of the Texas Coastal

Management Program (CMP), and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management

Program, commission rules governing air pollutant emissions

must be consistent with the applicable goals and policies of the

CMP. The commission reviewed this rulemaking for consistency

with the CMP goals and policies in accordance with the rules of

the Coastal Coordination Council, and determined that the rulemaking is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking is the goal

to protect, preserve, and enhance the diversity, quality, quantity,

functions, and values of coastal natural resource areas (31 TAC

§501.12(l)). The proposed revisions include procedural mechanisms to authorize new sources of air contaminants; however,

the proposed revisions do not create any new types of authorizations for new sources of air contaminants. The CMP policy applicable to this rulemaking is the policy that commission

rules comply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas

(31 TAC §501.14(q)). This rulemaking complies with 40 Code

of Federal Regulations Part 51, Requirements for Preparation,

Adoption, and Submittal of Implementation Plans. Therefore,

in accordance with 31 TAC §505.22(e), the commission afrms

that this rulemaking is consistent with CMP goals and policies.

The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

FutureGen projects may or may not be subject to the Federal

Operating Permits Program depending on the quantity and type

of their emissions and their location. If subject, facilities will be

required to meet all requirements of the Federal Operating Permits Program.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on December 20, 2005, at 10:00 a.m. in Building B, Room

201A, at the TCEQ’s complex, located at 12100 Park 35 Circle.

The hearing will be structured for the receipt of oral or written

comments by interested persons. Individuals may present oral

statements when called upon in order of registration. There will

be no open discussion during the hearing; however, an agency

staff member will be available to discuss the proposal 30 minutes

prior to the hearing and will answer questions before and after

the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact

Joyce Spencer, Ofce of Legal Services, at (512) 239-5017. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Joyce Spencer, MC 205,

Ofce of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,

or faxed to (512) 239-4808. All comments should reference Rule Project Number 2005-053-091-PR. The proposed rules may be viewed on the commission’s Web site

at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html.

Comments must be received by 5:00 p.m., December 27, 2005.

For further information, please contact Michael Wilhoit, Air

Permits Division, at (512) 239-1222.

30 TAC §§39.403, 39.404, 39.411, 39.419, 39.420

STATUTORY AUTHORITY

The amendments and new section are proposed under TWC,

§5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary

to carry out its powers and duties under the TWC; and under

THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes

of the Texas Clean Air Act. The proposed amendments and new

section are also proposed under THSC, §382.002, concerning

Policy and Purpose, which establishes the commission purpose

to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property;

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air;

§382.012, concerning State Air Control Plan, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.0518, concerning

preconstruction permits; §382.056, concerning notice of intent

to obtain permit or permit review and hearing; and §382.0565,

concerning clean coal project permitting procedure; and TWC,

§5.558, concerning clean coal project permitting.

The proposed amendments and new section implement TWC,

§5.558(c) and THSC, §382.0565(d).

§39.403. Applicability.

(a) (No change.)

(b) As specied in those subchapters, Subchapters H - M of

this chapter apply to notices for:

(1) - (7) (No change.)

(8) applications for air quality permits under THSC,

§382.0518 and §382.055. In addition, applications for permit amendments under §116.116(b) of this title (relating to Changes to Facilities),

initial issuance of exible permits under Chapter 116, Subchapter G of

this title (relating to Flexible Permits), amendments to exible permits

under §116.710(a)(2) and (3) of this title (relating to Applicability)

when an action involves:

(A) construction of any new facility as dened in

§116.10 [§116.10(4) and (10) ] of this title (relating to General De-

nitions);

(B) modication of an existing facility as dened in

§116.10 [§116.10(9)] of this title which result in an increase in allowable emissions of any air contaminant emitted equal to or greater than

the emission quantities dened in §106.4(a)(1) of this title (relating

30 TexReg 8404 December 16, 2005 Texas Register
to Requirements for [Exemptions from] Permitting by Rule) and of

sources dened in §106.4(a)(2) and (3) of this title; or

(C) (No change.)

(9) applications subject to the requirements of Chapter 116,

Subchapter C of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA,

§112(g), 40 CFR [Code of Federal Regulations] Part 63)), whether for

construction or reconstruction;

(10) concrete batch plants registered under Chapter 106 of

this title (relating to Permits by Rule [Exemptions from Permitting])

unless the facility is to be temporarily located in or contiguous to the

right-of-way of a public works project;

(11) - (14) (No change.)

(c) Notwithstanding subsection (b) of this section, Subchapters H - M of this chapter do not apply to the following actions and

other applications where notice or opportunity for contested case hearings are otherwise not required by law:

(1) - (3) (No change.)

(4) applications under Chapter 122 of this title (relating to

Federal Operating Permits Program);

(5) - (15) (No change.)

(d) Applications for initial issuance of voluntary emission reduction permits under THSC, §382.0519 and initial issuance of electric

generating facility permits under Texas Utilities Code, §39.264 are subject only to §39.405 of this title (relating to General Notice Provisions),

§39.409 of this title (relating to Deadline for Public Comment, and for

Requests for Reconsideration, Contested Case Hearing, or Notice and

Comment Hearing), §39.411 of this title, §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit),

§39.602 of this title (relating to Mailed Notice), §39.603 of this title (relating to Newspaper Notice), §39.604 of this title (relating to Sign-Posting), §39.605 of this title (relating to Notice to Affected Agencies), and

§39.606 of this title (relating to Alternative Means of Notice for Permits for Grandfathered Facilities), except that any reference to requests

for reconsideration or contested case hearings in §39.409 or §39.411 of

this title shall not apply. For MPP applications led before September

1, 2001, the initial issuance, amendment, or revocation of MPPs under

THSC, §382.05194 is subject to the same public notice requirements

that apply to initial issuance of voluntary emission reduction permits

and initial issuance of electric generating facility permits, except as

otherwise provided in §116.1040 of this title (relating to Multiple Plant

Permit Public Notice and Public Participation).

(e) (No change.)

(f) Applications for permits, registrations, licenses, or other

type of authorization required to construct, operate, or authorize a component of the FutureGen project as dened in §91.30 of this title (relating to Denitions), are subject to the public notice requirements of

Chapter 91 of this title (relating to Alternative Public Notice and Public

Participation Requirements for Specic Designated Facilities) in addition to the requirements of this chapter, unless otherwise specied in

Chapter 91 of this title.

§39.404. Applicability for Certain Initial Applicationsfor Air Quality

Permits for Grandfathered Facilities and for Applications for Permits

for Specic Designated Facilities.

(a) Initial applicationsfor air quality permitsfor grandfathered

facilities.

(1) With the exception of §39.403(a)(1) of this title (relating to Applicability), Subchapters H - M of this chapter (relating to

Applicability and General Provisions; Public Notice of Solid Waste

Applications; Public Notice of Water Quality Applications and Water

Quality Management Plans; Public Notice of Air Quality Applications;

Public Notice of Injection Well and Other Specic Applications; and

Public Notice for Radioactive Material Licenses) also apply to:

(A) applications for permits for electric generating facilities under Texas Health and Safety Code, §382.05185(c) and (d);

(B) applications for existing facilities permits under

Texas Health and Safety Code, §382.05183; and

(C) applications for pipeline facility permits under

Texas Health and Safety Code, §382.05186.

(2) Applications for initial issuance of permits under

Texas Health and Safety Code, §§382.05183, 382.05185(c) and (d),

and 382.05186 are subject only to §§39.401, 39.405, 39.407, 39.409,

39.411, 39.418, 39.420, and 39.601 - 39.606 of this title (relating to

Purpose; General Notice Provisions; Mailing Lists; Deadline for Public Comment, and for Requests for Reconsideration, Contested Case

Hearing, or Notice and Comment Hearing; Text of Public Notice; Notice of Receipt of Application and Intent to Obtain Permit; Transmittal

of the Executive Director’s Response to Comments and Decision; Applicability; Mailed Notice; Newspaper Notice; Sign-Posting; Notice

to Affected Agencies; and Alternative Means of Notice for Permits

for Grandfathered Facilities), except that any reference to requests for

reconsideration or contested case hearings in §39.409 or §39.411 of

this title shall not apply.

(b) Applications for permits for specic designated facilities.

(1) With the exception of §39.403(a)(1) of this title, Subchapters H - M of this chapter also apply to applications for permits

under Chapter 116, Subchapter L of this title (relating to Permits for

Specic Designated Facilities).

(2) Applications for permits under Chapter 116, Subchapter L of this title are subject only to §§39.401, 39.405, 39.407, 39.409,

39.411, 39.418, 39.420, and 39.601 - 39.605 of this title, except that

any reference to contested case hearings shall not apply.

§39.411. Text of Public Notice.

(a) (No change.)

(b) When notice of receipt of application and intent to obtain

permit by publication or by mail is required by Subchapters H - L of

this chapter (relating to Applicability and General Provisions, Public

Notice of Solid Waste Applications, Public Notice of Water Quality

Applications and Water Quality Management Plans, Public Notice of

Air Quality Applications, and Public Notice of Injection Well and Other

Specic Applications), Subchapter G of this chapter (relating to Public

Notice for Applications for Consolidated Permits), or for Subchapter

M of this chapter (relating to Mailed Notice for Radioactive Material

Licenses), the text of the notice must include the following information:

(1) - (3) (No change.)

(4) a brief description of public comment procedures, including:

(A) (No change.)

(B) a statement in the notice for any permit application

for which there is an opportunity for a contested case hearing, that only

disputed factual issues that are relevant and material to the commissions’s decision that are raised during the comment period can be considered if a contested case hearing is granted; [.]

(5) - (9) (No change.)

(10) for notices of air applications:

PROPOSED RULES December 16, 2005 30 TexReg 8405
(A) at a minimum, a listing of criteria pollutants for

which authorization is sought in the application which are regulated

under national ambient air quality standards (NAAQS) or under state

standards in Chapters 111, 112, 113, 115, and 117 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate

Matter, Control of Air Pollution from Sulfur Compounds, Standards

of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants [Control of Air Pollution from Toxic Materials],

Control of Air Pollution from Volatile Organic Compounds, and Control of Air Pollution from Nitrogen Compounds);

(B) if notice is for applications described in

§39.403(b)(11) or (12) of this title (relating to Applicability)[,]

or §39.404(b) [§39.404] of this title (relating to Applicability for

Certain Initial Applications for Air Quality Permits for Grandfathered

Facilities and for Applications for Permits for Specic Designated

Facilities), a statement that any person is entitled to request a notice

and comment hearing from the commission. If notice is for any other

air application, the following information [which] must be printed in

a font style or size that clearly provides emphasis and distinguishes it

from the remainder of the notice:

(i) - (iii) (No change.)

(iv) [and] that only relevant and material issues

raised during the comment period can be considered if a contested

case hearing request is granted; [and]

(C) notication that a person residing within 440 yards

of a concrete batch plant under an exemption from permitting or permit

by rule adopted by the commission is an affected person who is entitled

to request a contested case hearing; and

(D) the statement: "The facility’s compliance le, if any

exists, is available for public review in the regional ofce of the Texas

[NaturalResource Conservation] Commission on Environmental Quality;" and

(11) - (13) (No change.)

(14) for Class 3 modications of hazardous industrial solid

waste permits, the statement "The permittees compliance history during the life of the permit being modied is available from the agency

contact person."

(c) Unless mailed notice is otherwise provided for under this

section, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed

Notice). When notice of application and preliminary decision by publication or by mail is required by Subchapters G - L of this chapter, the

text of the notice must include the following information:

(1) - (3) (No change.)

(4) a summary of the executive director’s preliminary decision and whether the executive director has prepared a draft permit;

[and]

(5) (No change.)

(6) the deadline to le comments or request a public meeting. The notice should include a statement that a public meeting will be

held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located

or there is substantial public interest in the proposed activity; and

(7) for radioactive material licenses under Chapter 336 of

this title [(relating to Radioactive Substance Rules)], if applicable, a

statement that a written environmental analysis on the application has

been prepared by the executive director, is available to the public for

review, and that written comments may be submitted.

(d) When notice of a public meeting or notice of a hearing by

publication or by mail is required by Subchapters G - L of this chapter,

the text of the notice must include the following information:

(1) (No change.)

(2) the date, time, and place of the meeting or hearing, and

a brief description of the nature and purpose of the meeting or hearing,

including the applicable rules and procedures; and

(3) (No change.)

§39.419. Notice of Application and Preliminary Decision.

(a) - (c) (No change.)

(d) The notice must include the information required by

§39.411(c) of this title (relating to Text of Public Notice).

(e) For air applications the following apply. [:]

(1) The applicant is not required to publish Notice of Application and Preliminary Decision, if:

(A) - (C) (No change.)

(D) the application is for initial issuance of a permit described in §39.403(b)(11) or (12) of this title (related to Applicability)

or §39.404 of this title (relating to Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities and for

Applications for Permits for Specic Designated Facilities);

(2) If notice under this section is required, the agency shall

mail notice according to §39.602 of this title (relating to Mailed Notice). [; and]

(3) (No change.)

(4) If the applicant is seeking authorization by permit, registration, license, or other type of authorization required to construct,

operate, or authorize a component of the FutureGen project as dened

in §91.30 of this title (relating to Denitions), that application shall be

subject to the public notice and participation requirements in Chapter

116, Subchapter L of this title (relating to Permits for Specic Designated Facilities).

§39.420. Transmittal of the Executive Director’s Response to Comments and Decision.

(a) - (e) (No change.)

(f) For applications for permits under Chapter 116, Subchapter

L of thistitle (relating to Permitsfor Specic Designated Facilities), the

chief clerk shall not be required to transmit the item listed in subsection

(a)(4) of this section.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on November 30,

2005.

TRD-200505525

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: January 15, 2006

For further information, please call: (512) 239-5017

30 TAC §39.404

30 TexReg 8406 December 16, 2005 Texas Register
(Editor’s note: The text of the following section proposed for repeal

will not be published. The section may be examined in the ofces of the

Texas Commission on Environmental Quality or in the Texas Register

ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin.)

STATUTORY AUTHORITY

The repeal is proposed under TWC, §5.103, concerning Rules,

and §5.105, concerning General Policy, which authorize the

commission to adopt rules necessary to carry out its powers

and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The repeal is also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission

purpose to safeguard the state’s air resources, consistent with

the protection of public health, general welfare, and physical

property; §382.011, concerning General Powers and Duties,

which authorizes the commission to control the quality of the

state’s air; §382.012, concerning State Air Control Plan, which

authorizes the commission to prepare and develop a general,

comprehensive plan for the control of the state’s air; §382.0518,

concerning preconstruction permits; §382.056, concerning notice of intent to obtain permit or permit review and hearing; and

§382.0565, concerning clean coal project permitting procedure;

and TWC, §5.558, concerning clean coal project permitting.

The proposed repeal implements TWC, §5.558(c) and THSC,

§382.0565(d).

§39.404. Applicability for Certain Initial Applications for Air Quality

Permits for Grandfathered Facilities.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on November 30,

2005.

TRD-200505526

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: January 15, 2006

For further information, please call: (512) 239-5017

CHAPTER 114. CONTROL OF AIR

POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes amendments to §§114.6, 114.312,

114.313, and 114.315 - 114.318.

The amended sections are proposed to be submitted to the

United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

On March 9, 2005, the commission adopted revisions to the low

emission diesel fuel (LED) rules (§§114.312 - 114.319) and submitted those amendments as a SIP revision to the EPA on March

23, 2005. Subsequently, EPA raised concerns with certain provisions of §114.315 that give the state unilateral authority to accept alternative methods of compliance. Specically, EPA stated

that §114.315(b) and (c)(4)(C)(ii)(V) was problematic in regard to

EPA’s approval of the rules and SIP revision.

On July 5, 2005, the executive director of the TCEQ (ED) wrote

to the EPA’s Region 6 director, Mayor Greene, and requested

that EPA proceed with its review of the SIP submittal, excluding

the problematic provisions of §114.315, and stated that the commission would address these provisions in a future rulemaking.

On August 10, 2005, the EPA published a notice of proposed

rulemaking in the Federal Register (70 FR 46448), proposing to

approve revisions to the SIP relating to changes to the Texas

Low-Emission Diesel Fuel (TxLED) Program. In the Federal

Register notice, the EPA proposed to approve §114.315 excluding the provisions of §114.315 as the ED had requested. On October 6, 2005, the EPA published a nal rule in the Federal Register (70 FR 58325), approving the SIP revision submitted by the

State of Texas making changes to the TxLED Program, again excluding the provisions of §114.315 as the ED had requested. The

commission is proposing in this rulemaking to make revisions

to the provisions of the LED rules that EPA has excluded from

its approval. This proposed rulemaking would make changes

to §114.315(b) so that EPA would be consulted before the ED

determines to approve an alternative test method and remove

§114.315(c)(4)(C)(ii)(V).

These proposed rules would also address issues raised by EPA

regarding its consideration of alternative emission reduction

plans that have been submitted to the commission for compliance with the LED rules as allowed under §114.318. Under

the current rules, the alternative emission reduction plans must

be approved by both the commission and EPA. The ED has

approved 17 alternative emission reduction plans to date. The

EPA determined that the commission must submit the alternative emission reduction plans for its review and consideration

in the form of a SIP revision, requiring public review of each

alternative emission reduction plan. However, many of these

alternative emission reduction plans are considered to be

condential business information by the diesel fuel producers

that submitted these plans. In addition, under this approval

method, the commission would be required to submit a new SIP

revision any time a producer amended its alternative emission

reduction plan. This proposed rulemaking would make changes

to §114.318 to establish a method and process, or protocol,

by which all alternative emission reduction plans could be

approved by the commission and EPA without the need for a

SIP revision for each individual plan. The ED notied all holders

of currently approved alternative emission reduction plans of

the commission’s intention to develop a new protocol by which

these plans must demonstrate equivalent reductions in the

emissions of oxides of nitrogen (NOx

) in order to maintain commission approval and gain EPA approval. The ED also indicated

that the proposed rules may impact the approvability of some

fuel strategies in these currently approved plans; however, the

commission believes that the protocol will provide mechanisms

for compliance that allow producers to maintain a majority of

the strategies in their plans. Under this proposal, ED approval

of all currently approved alternative emission reduction plans

will expire December 31, 2006. Under the proposed changes to

§114.318, any producers wishing to use the alternative emission

reduction plan approach for compliance with the LED rules

will be required to submit an alternative emission reduction

plan that demonstrates under the new protocol that their fuel

strategies will achieve NOx emission reductions equivalent to, or

better than, those reductions attributed to the use of LED. The

PROPOSED RULES December 16, 2005 30 TexReg 8407
Public hearings for this proposed rulemaking have been scheduled for the following time and location: January 10, 2006, 10:00

a.m., Texas Commission on Environmental Quality, 12100 North

I-35, Building E, Room 201S, Austin. The hearings will be structured for the receipt of oral or written comments by interested

persons. Registration will begin 30 minutes prior to the hearings. Individuals may present oral statements when called upon

in order of registration. A time limit may be established at each

hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during

the hearings; however, commission staff members will be available to discuss the proposal 30 minutes before each hearing and

will answer questions before and after each hearing.

Persons planning to attend the hearing who have special communication or other accommodation needs, should contact the

Chief Engineer’s Ofce at (512) 239-4900. Requests should be

made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Brandon Smith, MC 206, Chief

Engineer’s Ofce, Texas Commission on Environmental Quality,

P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512)

239-5687; or emailed to siprules@tceq.state.tx.us. All comments should reference Rule Project Number 2005-064-114-EN.

Comments must be received by 5:00 p.m. on January 17,

2006. The proposed rules may be viewed on the commission’s Web site at http://www.tceq.state.tx.us/us/nav/rules/propose_adopt.html. For further information, please contact Erik

Gribbin, Air Quality Planning and Implementation Division, at

(512) 239-2590.

STATUTORY AUTHORITY

The amendments are proposed under Texas Water Code (TWC),

§5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC, and under Texas Health and Safety Code, Texas Clean Air Act (TCAA),

§382.017, which provides the commission with the authority to

adopt rules consistent with the policy and purposes of the TCAA.

The amendments are also proposed under TCAA, §382.011,

which authorizes the commission to control the quality of the

state’s air; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.019, which authorizes the commission to adopt rules to control and reduce emissions from engines

used to propel land vehicles; §382.0191, which authorizes use

of a sleeping berth for a government-mandated rest period; and

§382.039, which authorizes the commission to develop and implement transportation programs and other measures necessary

to demonstrate attainment and protect the public from exposure

to hazardous air contaminants from motor vehicles.

The proposed amendments implement TCAA, §§382.002,

382.011, 382.012, 382.019, 382.0191, and 382.039.

§114.512. Control Requirements for Motor Vehicle Idling.

(a) No person shall cause, suffer, allow, or permit the primary

propulsion engine of a motor vehicle to idle for more than ve consecutive minutes when the motor vehicle, as dened in §114.510 of this

title (relating to Denitions), is not in motion during the period of April

1 through October 31 of each calendar year.

(b) No driver using the vehicle’s sleeper berth may idle the vehicle in a school zone or within 1,000 feet of a public school during its

hours of operation. An offense under this subsection may be punishable by a ne not to exceed $500. This subsection expires September

1, 2007.

§114.517. Exemptions.

The provisions of §114.512 of this title (relating to Control Requirements for Motor Vehicle Idling) do not apply to:

(1) a motor vehicle that has a gross vehicle weight rating of

14,000 pounds or less, and if before September 1, 2007, does not have

a sleeper berth;

(2) - (3) (No change.)

(4) the primary propulsion engine of a motor vehicle providing a power source necessary for mechanical operation, other than

[not including] propulsion, and/or passenger compartment heating, or

air conditioning;

(5) - (6) (No change.)

(7) the primary propulsion engine of a motor vehicle that

is being used to supply heat or air conditioning necessary for passenger comfort and safety [comfort/safety] in [those] vehicles intended for

commercial or public passenger transportation, or passenger transit operations, [school buses] in which case idling up to a maximum of 30

minutes is allowed;

(8) the primary propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary for employee

health or safety while the employee is using the vehicle to perform an

essential job function related to roadway construction or maintenance

[the primary propulsion engine of a motor vehicle used for passenger

transit operations in which case idling up to a maximum of 30 minutes

is allowed];

(9) the primary propulsion engine of a motor vehicle being

used as airport ground support equipment;[ or]

(10) the owner of a motor vehicle rented or leased to a person that [who] operates the vehicle and is not employed by the owner;

or [.]

(11) a motor vehicle when idling is necessary to power a

heater or air conditioner while a driver is using the vehicle’s sleeper

berth for a government-mandated rest period. This subsection expires

September 1, 2007.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on November 10,

2005.

TRD-200505193

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 25, 2005

For further information, please call: (512) 239-6087

CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

SUBCHAPTER L. PERMITS FOR SPECIFIC

DESIGNATED FACILITIES

PROPOSED RULES November 25, 2005 30 TexReg 7831
30 TAC §§116.1400, 116.1402, 116.1404, 116.1406, 116.1408,

116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422,

116.1424, 116.1426, 116.1428

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes new §§116.1400, 116.1402, 116.1404,

116.1406, 116.1408, 116.1410, 116.1414, 116.1416, 116.1418,

116.1420, 116.1422, 116.1424, 116.1426, and 116.1428.

The new sections will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state

implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permitting

procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that

is a partnership between industry participants and the United

States Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration project

could result in major economic, social, and environmental benets for Texas, and that streamlining the permitting process for

FutureGen projects would serve the public’s interest by improving the state’s ability to compete for federal funding for FutureGen projects. A specic requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested case

hearing. Under these proposed rules, the eligible permit applications for FutureGen projects will be subject to the same permitting and public participation processes that would otherwise

apply to applications for most types of commission permits, except for contested case hearings. Other portions of HB 2201 re-

ected in the proposed rules dene relevant terms, establish an

emissions prole, and clarify jurisdiction issues between TCEQ

and the Railroad Commission of Texas. Much of the content of

the proposed rules originates from new Texas Health and Safety

Code (THSC), §382.0565, Clean Coal Project Permitting Procedure, and new Texas Water Code (TWC), §5.558 and §27.022,

which were created by HB 2201.

The purpose of the proposed revisions to Chapter 116 is to implement the requirements of HB 2201 that are to establish a reasonably-streamlined procedure for the commission to authorize

the emission of certain air contaminants by projects within the

commission’s jurisdiction that are a component of the FutureGen

project. Because HB 2201 eliminates contested case hearings

on applications for permits required to authorize a component of

the FutureGen project, public notice requirements for these applications need to be modied to reect that the applications are

not subject to contested case hearings.

The proposed rules do not include an expiration date or sunset date, but the commission specically requests comment on

whether an expiration date or sunset date is necessary.

Corresponding rulemakings are published in this issue of the

Texas Register that include changes to 30 TAC Chapter 50, Action on Applications and Other Authorizations; 30 TAC Chapter

55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public

Notice and Public Participation Requirements for Specic Designated Facilities; and 30 TAC Chapter 331, Underground Injection Control.

SECTION BY SECTION DISCUSSION

§116.1400. Purpose; and §116.1402. Applicability.

The commission proposes these new sections to specify the purpose and applicability of proposed new Subchapter L, Permits

for Specic Designated Facilities. Specically, the purpose of

the new subchapter is to establish reasonably streamlined procedures to issue authorization for certain projects; those procedures are applicable to authorizations to construct and operate

a component of the FutureGen project.

§116.1404. Permit Required.

The proposed new section requires anyone planning to construct

a component of the FutureGen project designated in §116.1402

that may emit air contaminants into the air of this state to obtain a

permit under this subchapter or qualify for a permit by rule under

30 TAC Chapter 106, Permits by Rule.

§116.1406. Compliance History.

The proposed new section requires compliance history reviews

for any applications under the new subchapter.

§116.1408. Denitions.

The proposed new section contains denitions applicable to the

new subchapter, clean coal projects, and the FutureGen project.

Specically, the proposed new section denes: clean coal

project, coal, FutureGen project, component of the FutureGen

project, FutureGen project prole, and designated project.

§116.1410. Emissions Prole for FutureGen Projects.

The proposed new section would establish an emissions pro-

le for FutureGen projects. This emissions prole is included

in the event that the United States Department of Energy does

not specify an emissions prole for the FutureGen project. The

emissions prole establishes limitations for the emissions of air

contaminants from a component of a FutureGen project.

§116.1414. Applications for Facilities that are Components of a

Designated Project.

The proposed new section provides the requirements for applications submitted under proposed new §116.1404 and requires

any application to be submitted with a completed Form PI-1,

Facility Permit Application. Proposed new §116.1414(1) - (11)

requires applicants to make certain demonstrations regarding:

protection of public health and welfare; measurement of emissions; New Source Performance Standards; National Emissions

Standards for Hazardous Air Pollutants; NESHAPs for source

categories (applicable maximum achievable control technology

standard); performance demonstrations; nonattainment review;

prevention of signicant deterioration review; air dispersion modeling or ambient monitoring; federal standards of review for constructed or reconstructed major sources of hazardous air pollutants; application content; and best available control technology.

§116.1416. Public Notice.

The proposed new section establishes reasonable public notice

requirements for applications to construct a component of a FutureGen facility. These requirements include the following: publication of the draft permit and preliminary decision in a newspaper of general circulation in the municipality in which the site

or proposed site is located, or in the municipality nearest to the

location of the site or proposed site; and availability of a copy of

the application and draft permit for review and copying at a public

place. Proposed new §116.1416(a)(1) - (10) state the required

30 TexReg 7832 November 25, 2005 Texas Register
contents of the notice, which in addition to factual information

about the applicant and the proposed location of the facility, include a description of the comment procedures; a statement that

a person affected by the emission of air pollutants is entitled to

request a notice and comment hearing under §116.1418, Public

Participation, in a font size that provides emphasis and distinguishes it from the rest of the notice; a description of the procedure by which a person may be placed on a mailing list for further

information; the time and location of any public meeting, as applicable; and the name, address, and phone number of the commission ofce to be contacted for further information. Proposed

new §116.1416(b) and (d) provide the following procedural requirements: the applicant shall provide the executive director

and all local air pollution control agencies having jurisdiction a

copy of the public notice and date of publication; and the executive director shall make available for public inspection during

the public comment period a copy of the draft permit and complete application. Proposed new §116.1416(e) establishes the

requirements for the sign that the applicant shall place at the site

declaring the ling of the application and stating how the executive director may be contacted for further information; proposed

new §116.1416(c) requires the applicant to submit certication

of compliance with the signage requirements in §116.1416(e).

Proposed new §116.1416(f) requires that the executive director receive public comment for 30 days after the notice is published; proposed new §116.1416(g) allows the draft permit to be

changed based on comments received.

§116.1418. Public Participation.

The proposed new section provides specic procedures for public participation in the issuance of a FutureGen permit. The new

section states that permit applications for a component of a FutureGen project are not subject to a contested case hearing, establishes a process for issuing permits required to construct a

component of the FutureGen project, and provides procedures

for public comment. THSC, §382.0565(c), and TWC, §5.558(b),

both require the commission’s use of "public meetings, informal conferences, or advisory committees to gather the opinions

and advice of interested persons." (Emphasis added.) With respect to the use of public meetings, the intent of proposed new

§116.1418 is to provide a notice and comment hearing procedure

to facilitate those public meetings. Any public hearing held under this subchapter is not an evidentiary proceeding. Proposed

new §116.1418(a) states that applications under this chapter are

not subject to the contested case hearing process, but are subject to a notice and comment hearing process. Proposed new

§116.1618(b) - (m) species the notice and comment hearing

process. Specically, subsections (b) - (m) allow for any person

affected by emissions from a site regulated by this subchapter

to request, within the 30-day comment period, the executive director to hold a notice and comment hearing on the draft permit; provide that the executive director shall decide whether to

hold a hearing; state the requirements for publication of notice

of a hearing on a draft permit; require the applicant to submit to

the executive director and all local air pollution agencies having

jurisdiction a copy of the notice of hearing and date of publication; allow the hearing notice to be combined with the notice of

the draft permit required by this subchapter; allow any person to

submit oral or written statements and data concerning the draft

permit; require that any person believing that the draft permit

or preliminary decision are inappropriate shall submit all reasonable arguments before the end of the comment period; and state

the requirements for the executive director in responding to comments. These subsections also include administrative provisions

requiring a tape recording or written transcript of the hearing to

be made available to the public; requiring the executive director

to keep and make available to the public a record of all comments received and issues raised at the hearing; allowing the

draft permit to be changed based on comments; and establishing the procedure for the executive director to provide notice of

the executive director’s nal decision, the executive director’s response to any comments submitted during the comment period

or at the public hearing specied in this section, and the identi-

cation of any change in the condition of the draft permit and the

reasons for the change to any person who commented during

the public comment period or at the hearing, and to the applicant.

Finally, proposed new §116.1418(n) requires the commission to

use public meetings, informal conferences, or advisory committees to gather the opinions and advice of interested persons for

all permits issued under this subchapter. Any public meetings

held under this subchapter shall follow the notice and comment

hearing procedures as dened in subsections (a) - (m). The executive director shall hold a public meeting on the request of a

member of the legislature who represents the general area in

which the facility is located or proposed to be located; or if the

executive director determines that there is substantial public interest in the proposed activity.

§116.1420. Permit Fee.

The proposed new section would require payment of a permit fee

consistent with the requirements of Chapter 116, Subchapter B,

Division 4, Permit Fees.

§116.1422. General and Special Conditions.

The proposed new section states certain general and special

conditions that will be included in permits issued under this subchapter. The general conditions in proposed new §116.1422(b)

include a report of construction progress, start-up notication,

sampling requirements, equivalency of methods, recordkeeping,

maximum allowable emission rates, maintenance of emission

control, and compliance with applicable rules. Proposed new

§116.1422(c) allows special conditions that are more restrictive

than those in this title to be attached to a permit.

§116.1424. Amendments and Alterations of Permits Issued Under this Subchapter.

The proposed new section provides requirements for amendments or alterations of permits issued under this subchapter.

§116.1426. Renewal of Permits Issued Under this Subchapter.

The proposed new section provides for renewals of permits issued under this subchapter.

§116.1428. Delegation.

The proposed new section delegates to the executive director

authority to take action on a permit issued under this subchapter.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeff Horvath, Analyst, Strategic Planning and Assessment Section, determined that for the rst ve-year period that the proposed new sections are in effect, no scal implications are anticipated for the agency or other units of state or local government.

Any entities wishing to be permitted under the proposed rules

may experience some cost savings due to a streamlined permitting process.

The proposed rules implement HB 2201. HB 2201 directs the

commission to establish by rule, streamlined permitting procePROPOSED RULES November 25, 2005 30 TexReg 7833
dures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a

partnership between industry participants and the United States

Department of Energy. The legislature determined that this technology demonstration project could result in major economic,

social, and environmental benets for Texas, and determined

that streamlining the permitting process for FutureGen projects

would serve the public’s interest by improving the state’s ability

to compete for federal funding for FutureGen projects.

At this time, there have been no permits issued by the agency

for FutureGen projects. The commission anticipates that there

may be one entity in the state that may apply for such a permit in

the future. As the proposed rules would eliminate the contested

case hearing process for specic projects and do not impose

any new requirements for the agency, there may be minor cost

savings to TCEQ and the State Ofce of Administrative Hearings

due to the reduction in the number of contested case hearings.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the rst ve

years that the proposed new rules are in effect, the public benet anticipated from the changes due to the proposed rules will

be compliance with state law and improving the state’s ability

to compete for federal funding for FutureGen projects. These

projects are anticipated to result in the development of cleaner

sources of power to meet energy demands.

The proposed new rules may result in some reduced costs for

eligible industry projects, but in general any cost savings are not

expected to be signicant.

The proposed rules are expected to only apply to one project

at the current time. The project involves a variety of equipment

used for power generation, hydrogen production, and carbon

dioxide sequestration. This equipment may include bulk fuel

handling equipment, gasiers, reactors, separators, turbines,

sulfur recovery units, and emission control equipment. Industry

projects eligible by the proposed rules would no longer be

subject to a contested case hearing. Instead, these projects

would be subject to a notice and comment hearing process.

The elimination of contested case hearings may reduce travel

costs for applicants, and may result in reduced administrative or

professional costs that would have been incurred by the applicant to prepare for a contested case hearing.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse scal implications are anticipated for small or micro-businesses as a result of the proposed rulemaking. Small or

micro-businesses are not expected to apply for permits for FutureGen projects, but if they do, they would experience the same

cost savings as large businesses.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required

because the proposed rules do not adversely affect a local economy in a material way for the rst ve years that the proposed

rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rules do not meet the definition of a "major environmental rule" as dened in the statute.

Therefore, Texas Government Code, §2001.0225, does not apply to this rulemaking. "Major environmental rule" is dened in

Texas Government Code, §2001.0225(g)(3), as a rule the specic intent of which is to protect the environment or reduce risks

to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, or the

public health and safety of the state or a sector of the state. The

proposed rules are intended to establish notice requirements for

authorizing certain types of projects required for the FutureGen

project. The proposed rules are only procedural rules establishing public notice requirements to administer the program for permitting FutureGen projects and are not specically intended to

protect the environment or to reduce risks to human health. The

proposed rules are intended to provide an alternative mechanism for public participation and do not alter the underlying technical review requirements. Therefore, because this rulemaking

will not adversely affect in a material way the economy, a sector

of the economy, productivity, competition, jobs, the environment,

or the public health and safety of the state or a sector of the state,

the rulemaking does not t the denition of "major environmental

rule" in Texas Government Code, §2001.0225.

Furthermore, the proposed rulemaking does not meet any of the

four applicable requirements listed in Texas Government Code,

§2001.0225(a). Texas Government Code, §2001.0225(a), only

applies to a major environmental rule adopted by an agency, the

result of which is to: 1) exceed a standard set by federal law,

unless the rule is specically required by state law; 2) exceed an

express requirement of state law, unless the rule is specically

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or

representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specic state law.

In this case, the proposed rules do not meet any of these applicability requirements. First, the proposed rules are consistent with,

and do not exceed, the standards set by federal law. Second, the

proposed rules do not exceed an express requirement of state

law, instead these rules implement HB 2201. Third, the rules

do not exceed an express requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal

program. Fourth, the commission does not propose these rules

solely under the general powers of the agency, but rather under the authority of THSC, §382,0565, as added by HB 2201,

which directs the commission, by rule, to implement reasonably

streamlined processes for issuing permits required to construct

a component of a FutureGen project, as authorized by federal

law; TWC, §5.558, as amended by HB 2201, which directs the

commission, by rule, to implement reasonably streamlined processes for issuing permits required to construct a component of

a FutureGen project, as authorized by federal law; and TWC,

§27.022, as added by HB 2201, which establishes the commission’s jurisdiction over the injection of carbon dioxide produced

by a clean coal project to the extent authorized by federal law.

Because this proposal does not constitute a major environmental rule, a regulatory impact analysis is not required. The commission invites public comment regarding this draft regulatory

impact analysis determination.

TAKINGS IMPACT ASSESSMENT

30 TexReg 7834 November 25, 2005 Texas Register
The commission evaluated this proposed rulemaking and performed a preliminary assessment of whether this rulemaking

would constitute a takings under Texas Government Code,

Chapter 2007. The proposed rules are intended to establish

a streamlined process for authorizing certain types of projects

required for the FutureGen project. The proposed rules are

only procedural rules establishing a system to administer the

program for permitting FutureGen projects and are not speci-

cally intended to protect the environment or to reduce risks to

human health. The proposed rules are intended to provide an

alternative mechanism for public participation and do not alter

the underlying technical review requirements. Promulgation

and enforcement of the rules will not affect private real property

in a manner that would require compensation to private real

property owners under the United States Constitution or the

Texas Constitution. The proposed rules also will not affect private real property in a manner that restricts or limits an owner’s

right to the property that would otherwise exist in the absence of

the governmental action. Consequently, this proposal does not

meet the denition of a takings under Texas Government Code,

§2007.002(5). Therefore, the proposed rules will not constitute

a takings under Texas Government Code, Chapter 2007.

The commission invites public comment on this preliminary takings impact assessment.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking relates to an

action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of

1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject

to Consistency with the Goals and Policies of the Texas Coastal

Management Program (CMP), and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management

Program, commission rules governing air pollutant emissions

must be consistent with the applicable goals and policies of the

CMP. The commission reviewed this rulemaking for consistency

with the CMP goals and policies in accordance with the rules of

the Coastal Coordination Council, and determined that the action

is consistent with the applicable CMP goals and policies. The

CMP goal applicable to this rulemaking is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and

values of coastal natural resource areas (31 TAC §501.12(l)).

The proposed revisions include procedural mechanisms to authorize new sources of air contaminants; however, the proposed

revisions do not create any new types of authorizations for new

sources of air contaminants. The CMP policy applicable to this

rulemaking is the policy that commission rules comply with federal regulations in 40 Code of Federal Regulations to protect and

enhance air quality in the coastal areas (31 TAC §501.14(q)).

This rulemaking complies with 40 Code of Federal Regulations

Part 51, Requirements for Preparation, Adoption, and Submittal

of Implementation Plans. Therefore, in accordance with 31 TAC

§505.22(e), the commission afrms that this rulemaking is consistent with CMP goals and policies.

The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Because proposed new Subchapter L includes applicable requirements under 30 TAC Chapter 122, Federal Operating Permits Program, owners or operators subject to the Federal Operating Permit Program must, consistent with the revision process

in Chapter 122, revise their operating permit to include the proposed new Subchapter L requirements for each emission unit

affected by the addition of the requirements in Subchapter L at

their site.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on December 20, 2005, at 10:00 a.m. in Building B, Room

201A, at the TCEQ’s complex, located at 12100 Park 35 Circle.

The hearing will be structured for the receipt of oral or written

comments by interested persons. Individuals may present oral

statements when called upon in order of registration. There will

be no open discussion during the hearing; however, an agency

staff member will be available to discuss the proposal 30 minutes

prior to the hearing and will answer questions before and after

the hearing. Persons who have special communication or other

accommodation needs who are planning to attend the hearing

should contact Joyce Spencer, Ofce of Legal Services, at (512)

239-5017. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Joyce Spencer, MC 205,

Ofce of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,

or faxed to (512) 239-4808. All comments should reference Rule Project Number 2005-053-091-PR. The proposed rules may be viewed on the commission’s Web site

at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html.

Comments must be received by 5:00 p.m., December 27, 2005.

For further information, please contact Michael Wilhoit, Air

Permits Division, at (512) 239-1222.

STATUTORY AUTHORITY

The new sections are proposed under TWC, §5.103, concerning

Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its

powers and duties under the TWC; and under THSC, §382.017,

concerning Rules, which authorizes the commission to adopt

rules consistent with the policy and purposes of the Texas Clean

Air Act. The new sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, which establishes

the commission’s purpose to safeguard the state air resources,

consistent with the protection of public health, general welfare,

and physical property; THSC, §382.011, concerning General

Powers and Duties, which authorizes the commission to control

the quality of the state air; THSC, §382.012, concerning State

Air Control Plan, which authorizes the commission to prepare

and develop a general, comprehensive plan for the control of

the state air; THSC, §382.0518, concerning preconstruction

permits; THSC, §382.056, concerning notice of intent to obtain permit or permit review and hearing; THSC, §382.0565,

concerning clean coal project permitting procedure; and TWC,

§5.558, concerning clean coal project permitting.

The proposed new sections implement TWC, §5.558(c) and

THSC, §382.0565(d).

§116.1400. Purpose.

The purpose of this subchapter is to establish, by rule, reasonably

streamlined procedures for the commission to issue authorization for

PROPOSED RULES November 25, 2005 30 TexReg 7835
projects within the commission’s jurisdiction under Texas Health and

Safety Code, Chapters 361 and 382 and Texas Water Code, Chapters

5 and 26.

§116.1402. Applicability.

(a) This subchapter applies to applications for authorization

required to construct and operate a component of the FutureGen

project.

(b) With the exception of subsection (a) of this section, as a

specic but not limited exclusion, this subchapter does not apply to an

application for a permit to construct or modify a new or existing coal-

red electric generating facility that will use pulverized or supercritical

pulverized coal.

§116.1404. Permit Required.

Any person who plans to construct a component of a project as designated in §116.1402 of this title (relating to Applicability) that may

emit air contaminants into the air of this state must obtain a permit under this subchapter or qualify for a permit by rule under Chapter 106

of this title (relating to Permits by Rule).

§116.1406. Compliance History.

For all permit reviews under this subchapter, compliance history reviews are required under Chapter 60 of this title (relating to Compliance History).

§116.1408. Denitions.

The following words and terms, when used in this subchapter, have the

following meanings, unless the context clearly indicates otherwise.

(1) Clean coal project--The installation of one or more

components of the coal-based integrated sequestration and hydrogen

research project to be built in partnership with the United States Department of Energy, commonly referred to as the FutureGen project.

The term includes the construction or modication of a facility for

electric generation, industrial production, or the production of steam

as a byproduct of coal gasication to the extent that the facility installs

one or more components of the FutureGen project.

(2) Coal--All forms of coal, including lignite.

(3) FutureGen project--A common reference to the coalbased integrated sequestration and hydrogen project to be built in partnership with the United States Department of Energy.

(4) Component of the FutureGen project--A process, technology, or piece of equipment that:

(A) is designed to employ coal gasication technology

to generate electricity, hydrogen, or steam in a manner that meets the

FutureGen project prole;

(B) is designed to employ fuel cells to generate electricity in a manner that meets the FutureGen project prole;

(C) is designed to employ a hydrogen-fueled turbine to

generate electricity where the hydrogen is derived from coal in a manner that meets the FutureGen project prole;

(D) is designed to demonstrate the efcacy at an electric

generation or industrial production facility of a carbon dioxide capture

technology in a manner that meets the FutureGen project prole;

(E) is designed to sequester a portion of the carbon

dioxide captured from an electric generation or industrial production facility in a manner that meets the FutureGen project prole

in conjunction with appropriate remediation plans and appropriate

techniques for reservoir characterization, injection control, and monitoring;

(F) is designed to sequester carbon dioxide as part of

enhanced oil recovery in a manner that meets the FutureGen project

prole in conjunction with appropriate techniques for reservoir characterization, injection control, and monitoring;

(G) qualies for federal funds designated for the FutureGen project;

(H) is required to perform the sampling, analysis, or research necessary to submit a proposal to the United States Department

of Energy for the FutureGen project; or

(I) is required in a nal United States Department of

Energy request for proposals for the FutureGen project or is described

in a nal United States Department of Energy request for proposals as

a desirable element to be considered in the awarding of the project.

(5) FutureGen project prole--A standard or standards relevant to a component of the FutureGen project, as provided in a nal

or amended United States Department of Energy request for proposals

or contract.

(6) Designated project--Any project subject to the jurisdiction of the commission and designated by the legislature as subject to

the alternate public notice requirements in this subchapter.

§116.1410. Emissions Prole for FutureGen Projects.

If the United States Department of Energy does not specify an emissions prole for the FutureGen project, emissions of air contaminants

from a component of a FutureGen project shall equal no more than:

(1) 1% of the average sulphur content of the coal or coals

used for the generation of electricity at the component;

(2) 10% of the average mercury content of the coal or coals

used for the generation of electricity at the component;

(3) 0.05 pounds of nitrogen oxides per million British thermal units (MMBTU) of energy produced at the component; and

(4) 0.005 pounds of particulate matter per MMBTU of energy produced at the component.

§116.1414. Applications for Facilities that are Components of a Designated Project.

Any application submitted under §116.1404 of thistitle (relating to Permit Required) must include a completed Form PI-1, General Application for Air Preconstruction Permits and Amendments. The Form PI-1

must be signed by an authorized representative of the applicant. The

Form PI-1 species additional support information that must be provided before the application is deemed complete. In order to be granted

a permit, the applicant for a project as designated in §116.1402(a) of

thistitle (relating to Applicability)shallsubmit information to the commission that demonstrates that all of the following are met.

(1) Protection of public health and welfare. The emissions

from the facility will comply with all rules and regulations of the commission and with the intent of Texas Health and Safety Code, Chapter 382, the Texas Clean Air Act (TCAA), including protection of the

health and physical property of the people.

(2) Measurement of emissions. The permit may have provisions for measuring the emission of air contaminants as determined

by the commission. These provisions may include the installation of

sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource

30 TexReg 7836 November 25, 2005 Texas Register
Conservation Commission Sampling Procedures Manual," portable analyzers, or emissions calculations if a known process variable is monitored.

(3) New Source Performance Standards(NSPS). The emissions from each affected facility as dened in 40 Code of Federal Regulations (CFR) Part 60 will meet at least the requirements of any applicable NSPS as listed under 40 CFR Part 60, promulgated by the United

States Environmental Protection Agency (EPA) under the authority

granted under Federal Clean Air Act (FCAA), §111, as amended.

(4) National Emission Standards for Hazardous Air Pollutants (NESHAPs). The emissions from each facility as dened in 40

CFR Part 61 will meet at least the requirements of any applicable NESHAPs, as listed under 40 CFR Part 61, promulgated by EPA under the

authority granted under FCAA, §112, as amended.

(5) NESHAPs for source categories. The emissions from

each affected facility shall meet at least the requirements of any applicable maximum achievable control technology standard as listed under

40 CFR Part 63, promulgated by EPA under FCAA, §112, or as listed

in Chapter 113, Subchapter C of thistitle (relating to National Emission

Standards for Hazardous Air Pollutants for Source Categories (FCAA,

§112, 40 CFR Part 63)).

(6) Performance demonstration. The facility will achieve

the performance specied in the permit application. The commission

may require the applicant to submit additional engineering data after

the permit has been issued in order to demonstrate further that the facility will achieve the performance specied in the permit. In addition,

the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measured

process variables, parametric or predictive monitoring, stack monitoring, or stack testing.

(7) Nonattainment review. A facility in a nonattainment

area shall comply with all applicable requirements under Subchapter

B, Division 5 of this chapter (relating to Nonattainment Review).

(8) Prevention of signicant deterioration review. A facility in an attainment area shall comply with all applicable requirements

under Subchapter B, Division 6 of this chapter (relating to Prevention

of Signicant Deterioration Review).

(9) Air dispersion modeling or ambient monitoring. The

commission may require computerized air dispersion modeling and/or

ambient monitoring to determine the air quality impacts from the facility.

(10) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the facility is an

affected source as dened in §116.15(1) of this title (relating to Section

112(g) Denitions), the affected source shall comply with all applicable

requirements under Subchapter C of this chapter (relating to Hazardous

Air Pollutants: Regulations Governing Constructed or Reconstructed

Major Sources (FCAA, Section 112(g), 40 CFR Part 63)).

(11) Application content. In addition to any other requirements of this subchapter, the applicant shall:

(A) identify each facility to be included in the permit;

(B) identify the air contaminants emitted; and

(C) provide emission rate calculations.

(12) Best available control technology (BACT). The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility.

§116.1416. Public Notice.

(a) The executive director shall direct the applicant to publish

a notice of draft permit and preliminary decision, at the applicant’s expense, in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is

located, or in the municipality nearest to the location of the site or proposed site. The executive director shall direct the applicant to make a

copy of the application and draft permit available for review and copying at a public place in the county in which the site is located or proposed to be located. The notice shall contain the following information:

(1) the permit application number;

(2) the applicant’s or permit holder’s name, address, and

telephone number and a description of the manner in which a person

may contact the applicant or permit holder for further information;

(3) a description of the location of the site or proposed location of the site;

(4) a description of the activity or activities involved in the

permit application;

(5) the location and availability of the following:

(A) the complete permit application;

(B) the draft permit;

(C) all other relevant supporting materials in the public

les of the agency;

(6) a description of the comment procedures, including the

duration of the public notice comment period and proceduresto request

a hearing printed in a font style or size that clearly provides emphasis

and distinguishes it from the remainder of the notice;

(7) a statement that a person who may be affected by the

emission of air pollutants from the facility or facilities is entitled to

request a notice and comment hearing, pursuant to §116.1418 of this

title (relating to Public Participation), printed in a font style or size that

clearly provides emphasis and distinguishes it from the remainder of

the notice;

(8) a description of the procedure by which a person may

be placed on a mailing list in order to receive additional information

about the application or draft permit;

(9) if applicable, the time and location of any public meeting; and

(10) the name, address, and phone number of the commission to be contacted for further information.

(b) The applicant shall submit a copy of the public notice and

date of publication to the executive director and any local air pollution

control agencies having jurisdiction over the site.

(c) The applicant shall submit a statement to the executive director certifying that the sign required by subsection (e) of this section

has been posted consistent with the provisions of that subsection.

(d) The executive director shall make available for public inspection the draft permit and the complete application throughout the

comment period during business hours at the commission’s central of-

ce and at the appropriate commission regional ofce where the site is

located.

(e) At the applicant’s expense, a sign shall be placed at the

site declaring the ling of an application for a permit and stating the

manner in which the executive director may be contacted for further

information.

PROPOSED RULES November 25, 2005 30 TexReg 7837
(1) The sign shall be provided by the applicant and shall

substantially meet the following requirements.

(A) The sign shall consist of dark lettering on a white

background and shall be not smaller than 18 inches by 28 inches and

all lettering shall be no less than 1-1/2 inches in size and block printed

capital lettering.

(B) The sign shall be headed by the words "PROPOSED AIR QUALITY PERMIT."

(C) The sign shall include the words "APPLICATION

NO." and the number of the permit application.

(D) The sign shall include the words "for further information contact."

(E) The sign shall include the words "TEXAS COMMISSION ON ENVIRONMENTAL QUALITY," and the address of

the appropriate commission regional ofce.

(F) The sign shall include the phone number of the appropriate commission regional ofce.

(G) The sign shall include the name of the company applying for the permit.

(2) The sign shall be in place by the date of publication of

the newspaper notice and shall remain in place and legible throughout

the period of public comment.

(3) The sign placed at the site shall be located at or near the

site’s main entrance, provided that the sign is legible from the public

street. If the sign would not be legible from the public street, then the

sign shall be placed within ten feet of a property line paralleling a public

street.

(A) The executive director may approve variations, if

the applicant has demonstrated that it is not practical to comply with

the specic sign-posting requirements.

(B) Alternative sign-posting plans proposed by the applicant must be at least as effective in providing notice to the public.

(C) The executive director shall approve the variations

before signs are posted.

(f) The executive director shall receive public comment for 30

days after the notice of the public comment period is published. During

the comment period, any person may submit written comments on the

draft permit.

(g) The draft permit may be changed based on comments.

§116.1418. Public Participation.

(a) With the exception of the permitting procedural requirements specied in any other chapter of this title, permits authorized

under this subchapter are not subject to the requirements relating to a

contested case hearing under Texas Health and Safety Code, Chapter

382; Texas Water Code; or Texas Government Code, Chapter 2001,

Subchapters C - G. Permit applications under this chapter shall be subject to a notice and comment hearing as specied in subsections (b) -

(n) of this section, as well as any applicable requirements in Chapters

39 and 55 of this title (relating to Public Notice and Requests for Reconsideration and Contested Case Hearings; Public Comment).

(b) Any hearing regarding a permit will be conducted under

the procedures in this section and not under the Administrative Procedures Act.

(c) Any person who may be affected by emissions from a site

regulated under this subchapter may request the executive director to

hold a hearing on the draft permit. The request must be made during

the 30-day public comment period.

(d) The executive director shall decide whether to conduct a

hearing. The executive director is not required to hold a hearing if the

basis of the request by a person who may be affected by emissionsfrom

a site is determined to be unreasonable. If a hearing is requested by a

person who may be affected by emissions from a site regulated under

this subchapter, and that request is reasonable, the executive director

shall conduct a hearing.

(e) At the applicant’s expense, notice of a hearing on a draft

permit must be published in the public notice section of one issue of a

newspaper of general circulation in the municipality in which the site or

proposed site is located, or in the municipality nearest to the location of

the site or proposed site. The notice must be published at least 30 days

before the date of the hearing. The notice must include the following:

(1) the time, place, and nature of the hearing;

(2) a brief description of the purpose of the hearing; and

(3) the name and phone number of the commission to be

contacted to verify that a hearing will be held.

(f) The applicant shall submit a copy of the notice of hearing

and date of publication to the executive director and all local air pollution control agencies having jurisdiction in the county in which the

site is located.

(g) At the executive director’s discretion, the hearing notice

may be combined with the notice of the draft permit required by this

subchapter.

(h) Any person, including the applicant, may submit oral or

written statements and data concerning the draft permit.

(1) Reasonable time limits may be set for oral comments,

and the submission of comments in writing may be required.

(2) The period for submitting written comments is automatically extended to the close of any hearing.

(3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing.

(i) A tape recording or written transcript of the hearing must

be made available to the public.

(j) Any person, including the applicant, who believes that any

condition of the draft permit is inappropriate or that the preliminary decision to issue or deny the permit isinappropriate,shall raise all reasonably ascertainable issues and submit all reasonably available arguments

supporting that position by the end of the public comment period.

(k) The executive director shall keep a record of all comments

received and issues raised in the hearing. This record must be made

available to the public.

(l) The draft permit may be changed based on comments.

(m) After the public comment period or the conclusion of any

notice and comment hearing, the chief clerk of the commission shall

send by rst-class mail the executive director’s decision, the executive

director’sresponse to any commentssubmitted during the comment period or at the public hearing specied in this section, and identication

of any change in the condition of the draft permit and the reasons for

the change to any person who commented during the public comment

period or at the hearing, and to the applicant.

(n) The commission shall use public meetings, informal conferences, or advisory committees to gather the opinions and advice of

interested persons for all permits issued under this subchapter.

30 TexReg 7838 November 25, 2005 Texas Register
(1) Any public meetings held in accordance with this subsection shall follow the notice and comment hearing procedures in subsection (a) - (m) of this section.

(2) The executive director shall hold a public meeting:

(A) on the request of a member of the legislature who

represents the general area in which the facility is located or proposed

to be located; or

(B) if the executive director determines that there is

substantial public interest in the proposed activity.

§116.1420. Permit Fee.

(a) Fees required. Any person who applies for a permit under

this subchapter must remit a fee as provided in Chapter 116, Subchapter B, Division 4 of this title (relating to Permit Fees) at the time of

application for such permit.

(b) Payment of fees. All permit fees must be remitted in the

form of a check or money order made payable to the "Texas Commission on Environmental Quality" and delivered to the Texas Commission on Environmental Quality, P. O. Box 13088, MC 214, Austin,

Texas 78711-3088. Required fees must be received before the commission will begin examination of the application.

§116.1422. General and Special Conditions.

(a) Permits issued under this subchapter may contain general

and special conditions. The holders of a permit under this subchapter

shall comply with any and all such conditions.

(b) General conditions. Holders of permits issued under this

subchapter shall comply with the following general conditions, regardless of whether they are specically stated within the permit document.

(1) Report of construction progress. The permit holder

shall report start of construction, construction interruptions exceeding

45 days, and completion of construction. The report shall be given

to the appropriate regional ofce of the commission not later than 15

working days after occurrence of the event.

(2) Startup notication.

(A) The permit holder shall notify the appropriate regional ofce of the commission prior to the commencement of operations of the facilities authorized by the permit. The notication must be

made in such a manner as to allow a representative of the commission

to be present at the commencement of operations.

(B) The permit holder shall provide a separate notication for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations

at different times.

(C) Prior to operation of the facilities authorized by the

permit, the permit holder shall identify to the commission’s Ofce of

Permitting, Remediation, and Registration the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter

H, Division 3 of this title (relating to Mass Emissions Cap and Trade

Program).

(3) Sampling requirements.

(A) If sampling is required, the permit holder shall contact the commission’s Ofce of Compliance and Enforcement prior to

sampling to obtain the proper data forms and procedures.

(B) All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate

regional ofce of the commission.

(C) The permit holder is also responsible for providing

sampling facilities and conducting the sampling operations, or contracting with an independent sampling consultant.

(4) Equivalency of methods. The permit holder must

demonstrate or otherwise justify the equivalency of emission control

methods, sampling or other emission testing methods, and monitoring

methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing

and must be reviewed and approved by the executive director prior to

using these methods in fullling any requirements of the permit.

(5) Recordkeeping. The permit holder shall:

(A) maintain a copy of the permit along with records

containing the information and data sufcient to demonstrate compliance with the permit, including production records and operating hours;

(B) keep all required records in a le at the facility site.

If, however, the facility site normally operates unattended,records must

be maintained at an ofce within Texas having day-to-day operational

control of the facility site;

(C) make the records available at the request of the executive director or any local air pollution control agency having jurisdiction over the site. Upon request, the commission shall make any

such records of compliance available to the public in a timely manner;

(D) comply with any additional recordkeeping requirements specied in special conditions attached to the permit;

(E) retain information in the le for at least two years

following the date that the information or data is obtained; and

(F) for persons certifying and registering a federally enforceable emission limitation in accordance with §116.611 of this title

(relating to Registration To Use a Standard Permit), retain all records

demonstrating compliance for at least ve years.

(6) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions must

not exceed the values stated on the table attached to the permit entitled

"Emission Sources--Maximum Allowable Emission Rates."

(7) Maintenance of emission control. The permitted facilities shall not be operated unless all air pollution emission capture and

abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall

provide notication for emissions events and maintenance in accordance with Chapter 101, Subchapter F of this title (relating to Emission

Events and Scheduled Maintenance, Startup, and Shutdown Activities.

(8) Compliance with rules.

(A) Acceptance of a permit by an applicant constitutes

an acknowledgment and agreement that the permit holder will comply

with all rules, regulations, and orders of the commission issued in conformity with Texas Health and Safety Code, Chapter 382, Texas Clean

Air Act, and the conditions precedent to the granting of the permit.

(B) If more than one state or federal rule or regulation

or permit condition are applicable, the most stringent limit or condition

shall govern and be the standard by which compliance shall be demonstrated.

(C) Acceptance includes consent of the executive director to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating

to the emission or concentration of air contaminants, including compliance with the permit.

PROPOSED RULES November 25, 2005 30 TexReg 7839
(c) Special conditions. The holders of permits issued under

this subchapter shall comply with all special conditions contained in

the permit document.

(1) Special conditions may be attached to a permit that are

more restrictive than the requirements of this title.

(2) Special conditions for written approval.

(A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:

(i) a standard permit in accordance with Subchapter

F of this chapter (relating to Standard Permits); or

(ii) a permit by rule in accordance with Chapter 106

of this title (relating to Permits by Rule).

(B) Written approval may be required if the executive

directorspecically ndsthat an increase of a particular pollutant could

either:

(i) result in a signicant impact on the air environment; or

(ii) cause the facility to become subject to review in

accordance with:

(I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)); or

(II) the provisions in Chapter 116, Subchapter B,

Divisions 5 and 6 of this chapter (relating to Nonattainment Review and

Prevention of Signicant Deterioration Review).

§116.1424. Amendments and Alterations of Permits Issued Under

This Subchapter.

The owner or operator planning the modication of a facility permitted

under this subchapter must comply with the requirements of Subchapter B of this chapter (relating to New Source Review Permits) before

work begins on the construction of the modication. Amendments and

alterations for permits issued under this subchapter are subject to the

requirements of Subchapter B of this chapter.

§116.1426. Renewal of Permits Issued Under This Subchapter.

Permits issued under this subchapter shall be renewed in accordance

with the requirements of Subchapter D of this chapter (relating to Permit Renewals).

§116.1428. Delegation.

The commission delegatesto the executive director the authority to take

any action on a permit issued under this subchapter.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on November 10,

2005.

TRD-200505205

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 25, 2005

For further information, please call: (512) 239-5017

CHAPTER 331. UNDERGROUND INJECTION

CONTROL

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §331.11

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes an amendment to §331.11.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permitting

procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that

is a partnership between industry participants and the United

States Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration project

could result in major economic, social, and environmental benets for Texas, and that streamlining the permitting process for

FutureGen projects would serve the public’s interest by improving the state’s ability to compete for federal funding for FutureGen projects. A specic requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested case

hearing. Under the proposed rule, the eligible permit applications for FutureGen projects will be subject to the same permitting and public participation processes that would otherwise

apply to applications for most types of commission permits, except for contested case hearings. Other portions of HB 2201 re-

ected in the proposed rules dene relevant terms, establish an

emissions prole, and clarify jurisdiction issues between TCEQ

and the Railroad Commission of Texas. Much of the content of

the proposed rules originates from new Texas Health and Safety

Code (THSC), §382.0565, Clean Coal Project Permitting Procedure, and new Texas Water Code (TWC), §5.558 and §27.022,

which were created by HB 2201.

The purpose of the proposed amendment to Chapter 331 is to

implement the requirements of HB 2201 with respect to the jurisdiction over injection wells used for the injection of carbon dioxide produced by a clean coal project into a zone that is below

the base of usable quality water and that is not productive of oil,

gas, or geothermal resources.

Corresponding rulemakings are published in this issue of the

Texas Register that includes changes to 30 TAC Chapter 50,

Action on Applications and Other Authorizations; 30 TAC Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public

Notice and Public Participation Requirements for Specic Designated Facilities; and 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modication.

SECTION DISCUSSION

§331.11. Classication of Injection Wells.

The proposed amendment would add a new subsection (d) that

states that the commission has jurisdiction over the injection of

carbon dioxide produced by a clean coal project into a zone that

is below the base of usable quality water and that is not productive of oil, gas, or geothermal resources. This implements new

Texas Water Code Section 27.022 from HB 2201. Under federal requirements, Class II injection wells are used for injection

30 TexReg 7840 November 25, 2005 Texas Register
Kathleen Hartnett White, C/zairnzan 

R. B. "Ralph" Marquez, Commissiolzer 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Premting Pollution 

NOTICE OF A PUBLIC HEARING ON PROPOSED 

REVISIONS TO 30 TAC'CHAPTERS 39,50, 55, 91, 116, AND 331 

AND TO THE STATE IMPLEMENTATION PLAN ' 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive 

testimony regarding proposed amendments to 30 TAC Chapter 39, Public Notice, §$39.403, 39.41 1, 39.419, 

and 39.420, the repeal of 539.404, and new $39.404; amendments to 30 TAC Chapter 50,- Action on 

Applications and Other Authorizations, $50.113; 30 TAC Chapter 55, Requests for Reconsideration and 

Contested Case Hearings; Public Comment, 555.201; 30 TAC Chapter 331, Underground Injection Control, 

$33 1.11; new 30 TAC Chapter 91, Alternative Public Notice and Public Participation Requirements for Specific 

Designated Facilities, §$91.10, 91.20, 91.30, 91.100, 91.110, and 91.120; and 30 TAC Chapter 116, Control 

of Air Pollution by Permits for New Construction or Modification; new Subchapter L, Permits for Specific 

DesignatedFacilities, §$116.1400, 116.1402, 116.1404, 116.1406, 116.1408, 116.1410, 116.1414, 116.1416, 

116.1418, 116.1420, 116.1422, 116.1424, 116.1426, and 116.1428. Section 39.403@)(8) - (10) and new (f), 

the repeal of $39.404, and new 839.404 will be submitted to the United States Environmental Protection Agency 

(EPA) as a revision to the state implementation plan (SIP). The commission also proposes to withdraw 5539.41 1, 

39.419, and 39.420, as submitted to EPA on July 3 1,2002, and proposes to submit §$39.41 1 (a), (b)(l) - (6) and 

(8) - (lo), (c)(l) - (6), and (d); 39.419(a), @), (d), and (e); and 39.420(a), (b), and (c)(3) and (4) as a revision 

to the SIP. Chapter 116, new Subchapter L will also be submitted as a revision to the SIP, under the 

requirements of Texas Health and Safety Code, $382.017; Texas Government Code, Subchapter B, Chapter 

2001; and 40 Code of Federal Regulations $51.102, of the United States Environmeiltal Protection Agency 

regulations concerning SIPS. 

The proposed rulemaking would implement provisions of House Bill (HB) 2201. HB 2201 identifies the United 

States Department of Energy's FutureGen research and creates a new set of permitting actions for FutureGen 

projects, specifically that permits for FutureGen projects are not subject to the contested case hearing process. 

Chapter 91 would address existing statutory requirements for the pennitting and public participation process still 

applicable to FutureGen projects but eliminate the requirement of a contested case hearing. Chapter 116, new 

Subchapter L, would elilninate the requirement of a contested case hearing and address existing statutory 

requirements for the permitting and public participation process not affected by HB 2201 but still applicable to 

FutureGen pro-jects. 

A public hearing for the proposed rule~nak~ng and SIP revision will be held in Austin on December 20, 2005, 

at 10:OO a.m., in Building B, Room 201A, at the Texas Coln~nissio~l onE~lvironlnental Quality, located at 12100 

Park 35 Circle. The hearing will be structured for the receipt of oral or written colnrnents by interested persons. 

Registration will begin 30 lninutes prior to the hearing. Illdividuals may present oral statements when called upon 

in order of registration. There will be no open discussioll during the hearing; however, colnlnissio~l staff 

members w~ll be available to discuss the proposal 30 lninutes before the hearing and will answer questions before 

and after the hearing. 
T'ctsotls 1)l:urlning to attend the hearing who have special coininunicatio~l or other ;~ccommnodation ~~eeds, should 

co~lt;ld Soycc Spencer, Office of Legal Services at (512) 239-5017. Requests should be made as far in advance 

as 1,ossihlc. 

C~omments inay be submitted to Joyce Spencer, MC 205, Texas ~e~istes Team, Office of Legal Services, Texas 

Commission on Eilvironulental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or by fax to (512) 239- 

4808, All coininer~tsI-~o,uld reference Rule Project Number 2005-053-09 1 -PRO Coin~nents must be received by 

5:00 p .in. on Dekeinber 27, 2005. Copies of the proposed rules can be obtained froin the commission's Web 

site at lzttp://lvl.~~Mi:tceq, state. tx. us/nav/~ules/propose_ado~~r. lztlnl. For further information, please contact Michael 

WiIhoit, Air Pe~:mits Divisioil at (512) 239-1222, 

Issued in Austin, Texas, on Novcnzbes 9, 2005. 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-I 

W-2 

W-3 

W4 

W-5 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Gary J. Gibbs, Clean Coal Technology Foundation 

A. Scott Anderson, Environmental Defense 

Comrr~issioner Michael Williams. FutureGen Texas 

Brandt Mannchen, Houston Sierra Club 

David Neleigh, United States Environmental Protection 

Agency 
December 26,2005 

Via Hand-Deliverv [;qJj;[r,t/; i;;],(!dl;;'; ;!'\ ;:; !;I;' 

Ms. Joyce Spencer 

MC 205 

Office of Legal Services 

Texas Commission on Environmental Quality 

121 00 Park 35 Circle 

Austin, TX 78753 

RE: Comments to Rule Project Number 2005-053-091-PR 

Dear Ms. Spencer: 

The Clean Coal Technology Foundation (Foundation) appreciates the opportunity to 

provide comments on the above-referenced rule package, which implements HB 2201 

(the "FutureGen" bill). 

The Foundation fully supports the letter of December 27, 2005 filed by Michael 

Williams, Chairman of the FutureGen Texas Advisory Board (attached). The proposed 

changes contained in the attachment to Chairman Williams' letter are the result of 

discussions between representatives of the FutureGen team and representatives of the 

Clean Coal Technology Foundation. We believe that the requested changes will help 

ensure that the goals of HB 2201 are fully realized. 

The Foundation commends the Commission for its timely actions to support the Texas 

efforts on FutureGen led by Chairman Williams and the Legislature. If you have 

questions regarding the Foundation's comments or would like to discuss other issues 

relating to the implementation of HB 2201, please call me at (512) 391-2969 or Mike 

Nasi at (5 12) 322-5859. 

Sincerely, 

Gary J. ~iGbs, 

Chairman of the Board, Clean Coal Technology Foundation 

cc: Clean Coal Technology Foundation 

Courtesy List (See Attached) 

807 Brazos Street, Suite 700 Austin, TX 78701 

1-800-965-7689 www.CleanCoalFoundation.org 
Courtesy Copies 

The Honorable Craig Estes, 

Texas Senate 

P.O. Box 12068 - Capitol Station 

Austin, Texas 787 11 

The Honorable Bryan Hughes 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Commissioner Michael Williams 

Railroad Commission of Texas 

P.O. Box 12967 

Austin, Texas 787 1 1-2967 

Chairman Kathleen White 

Texas Commission on Environmental Quality 

MC 100, POB 13087 

Austin, TX 7871 1-3087 

Commissioner Larry Soward 

Texas Commission on Environmental Quality 

MC 100, POB 13087 

Austin, TX 7871 1-3087 

Commissioner Ralph Marquez 

Texas Commission on Environmental Quality 

MC 100, POB 13087 

Austin, TX 7871 1-3087 

Chairman Elizabeth Ames Jones 

Railroad Commission: of Texas 

P.O. Box 12967 

Austin, Texas 787 11 -2967 

Commissioner Victor Carrillo 

Railroad Commission of c ex as 

P.O. Box 12967 

Austin, Texas 787 1 1-2967 

Zak Covar, Governor's Advisor 

Office of the Governor 

P.O. Box 12428 

Austin, Texas 787 1 1-2428 
December 23,2005 

Ms. Joyce Spencer 

MC 205, Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711 

Subject: Comments to Rule Project No. 2005-053-091-PR (FutureGen Rules) 

Dear Ms. Spencer: 

Environmental Defense appreciates the opportunity to comment on the proposed 

FutureGen rules. Environmental Defense was deeply involved in the drafting of HB 

2201, which these proposed rules implement. Our representative Mark MacLeod serves 

on the FutureGen Texas Advisory Board. We are excited by the prospect of "near-zeron 

emissions coupled with carbon capture and storage. We consider Texas to be one of the 

better locations in the country for a project of this nature. 

We are, however, disappointed that we must object to one of the comments filed on 

December 21 on behalf of the FutureGen Texas Advisory Board. 

1. FutureGen Advisory Board Comments 

We do not believe it would be lawful, or good policy, to adjust the proposed rules in the 

manner suggested in Advisory Board comment number one. There are two problems 

with the proposed changes in the Advisory Board's initial comment. 

First, the Board's proposal to exempt Nonattainment and Prevention of Significant 

Deterioration Reviews from contested case hearings is not within the state's power. 

Federal clean air law governs these matters. In fact, HB 2201 did not purport to create 

such an exemption. The bill only creates an exemption for contested cases pursuant to 

Chapter 382 of the Health and Safety Code, Chapter 5 of the Water Code, and 

Subchapters C - G of Chapter 2001 of the Government Code. The TCEQhas read the 

statute properly in this regard and no change is warranted in this aspect of the rules. 

Second, the Advisory Board has called for an exemption from contested case treatment 

for all amendments and alterations of FutureGen permits. This is too broad. An 

amendment or alteration should not qual~fy for streamlined permitting unless the 

contemplated changes themselves satisfy the HB 2201 definition of a FutureGen project 
component. A rule granting special treatment to "all" amendments would open the door 

to companies trying to shield from standard public participation facilities and processes 

that are not designed to meet the statute's FutureGen emissions profile. 

2. Public Meetings, Informal Conferences, or Advisory Committees 

HB 2201 explicitly states that the Commission "shall," when it acts under the 

streamlined permitting rule, "use public meetings, informal conferences, or advisory 

committees to gather the opinions and advice of interested persons." This mandate differs 

from the discretionary approach that usually applies to informal processes under the 

Administrative Procedures Act. The difference in approach was not inadvertent. It was 

included in HB 2201 as a quid pro quo for the public's loss of contested case rights where 

the FutureGen project is concerned. While the Commission could adhere to the 

statutory requirement without mentioning informal processes in the rule, we believe it 

would be better practice to address the matter now. We apologize if such a provision is in 

the proposal already and we have overlooked it. 

3. Sunset Date 

The Commission has requested comments on whether the proposed rules should include 

a sunset date or expiration date. We believe that there should be such a date. HB 2201 

reduces public participation rights with regard to one extremely important, highly 

competitive, narrowly defined federal project. Once the bid is won and the project is 

Permitted there will be no need for these special rules. To adopt the rules without a 

sunset date might encourage utility lawyers to try to use the rules for other purposes. We 

suggest that these special rules be made applicable only to applications submitted prior to 

January 1,2015. DOE is asking states to submit their FutureGen proposals in early 

2006. A sunset date this far in the future should not pose a problem for any legitimate 

project, especially if the provision is keyed to the date an application is filed. 

We appreciate your consideration of these comments. 

Respectfully submitted, 

A. Scott Anderson 

Senior Policy Advisor 

Climate and Air Program 
December 2 1,2005 

Ms. Joyce Spencer 

MC 205, Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 7871 1 

Subject: Comments to Rule Project No. 2005-053-091 -PR (FutureGen Rules) 

Dear Ms. Spenser, 

I appreciate the opportunity to provide comments on the proposed FutureGen rules. As 

chair of the FutureGen Texas Advisory Board, I wish to thank the Commissioners and 

agency staff for the professional and diligent efforts toward this important rule initiative. 

We believe that this Rule Project fi~lfills the intent of HB 2201 to enact streamlined 

permitting procedures for a possible FutureGen facility. 

Attached are specific comments to the subject rules as developed by our FutureGen 

Texas Team. Though few in number, these comments may provide some important 

clarifications that will move us toward our mutual objective of providing the greater 

regulatory certainty needed to enhance Texas' chances of winning this important prize. 

Everyone involved with this fast moving rule project should be congratulated for a job 

well done. We look forward to our continued strong partnership as we strive to bring 

FutureGen to Texas. 

Sincerely, 

Commissioner Michael Williams, 

Chairman 

FutureGen Texas Advisory Board 
Comments of the FutureGen Texas Advisory Board Regarding 

Proposed TCEQ Rule Project No. 2005-053-091-PR (FutureGen Rules) 

The comments below are offered to help the Texas Commission on Environmental 

Quality (TCEQ) realize through this rulemaking the intent of the 79th Texas Legislature, 

as clearly expressed in HB 2201, to streamline "procedural processes as necessary to 

ensure predictability in this state's regulatory scheme" and to "improve this state's 

position for obtaining federal funding" while preserving "the environmental protection 

obtained by present substantive regulatory standards." To that end, we believe that the 

TCEQ has identified the necessary provisions for amendment and created an appropriate 

permitting process for FutureGen projects in the proposed rules. We further believe, 

however, that certain aspects of the proposed rules can be clarified to remove any doubt 

that the permitting and, perhaps, more important, the construction of a FutureGen project 

will enjoy an expedited regulatory permitting process that does not sacrifice but enhances 

environmental protectiveness. 

Our specific comments are as follows: 

1) Proposed Chapter 116, Subchapter L should be clarified to ensure that the initial 

permitting of and subsequent amendments to a FutureGen project permit are not 

subject to the contested case hearings process. Clearly HB 2201 requires this 

result but cross-references to other Chapter 116 Subchapters may create a 

question, and any ambiguity in the rules will challenge Texas's ability to give the 

assurances that will be necessary to win the FutureGen project. Chapter 116 

should clearly state that, notwithstanding any other provisions of TCEQ rules, 

Subchapter L will define the complete procedural requirements that are applicable 

to the issuance of any and all permits for any component of a FutureGen facility. 

This should be clearly stated at the outset and restated in the following sections of 

Subchapter L: 

a. 5 1 16.14 14(7), regarding Nonattainment review; 

b. 5 1 16.1414(8), regarding Prevention of significant deterioration review; 

and 

c. 5 116.1424, regarding Amendments and Alterations of Permits Issued 

Under this Subchapter. 

For example, one way to clarifL the applicable provisions'would be by 

adding the following sentence to each of the above sections: 

"Notwithstanding the above, all applications shall be subject to the public 

notice and permit processing provisions of Subchapter L of this chapter." 

2) Proposed 5 116.1404, regarding Permit Required, appears to limit the otherwise 

generally available options for authorizing a component of a FutureGen facility. 

The section, as presently drafted, contemplates authorization either through a 

permit issued under the provisions of the proposed Subchapter L or by a Permit 

by Rule under Chapter 106. Certainly, the Legislature intended that all available 
means to expedite the authorizations for a FutureGen project or a facility 

component of such a project be made available by the TCEQ. This section should 

be amended to make it clear that any available means for authorization of a 

FutureGen component may be utilized if the proposed facility component meets 

the established requirements of the authorization. For example, a Standard Permit 

under Chapter 11 6, Subchapter F should be expressly recognized as method of 

authorization, in addition to individual permits and permits by rule. 

3) Proposed 5 141 6, regarding Public Notice, refers repeatedly to a requirement for 

"hearings." In the context of the legislative underpinning and the proposed rules 

themselves, it is clear these references are to notice and comment hearings and not 

contested case hearings. Nonetheless, further clarification is appropriate to avoid 

any possibility of hture misinterpretations and conflicts. We recommend that a 

definition of "hearings" for purposes of Subchapter L be added to 5 1 16.1 408, 

regarding Definitions, to address this issue. Specifically, "'Hearings' as used in 

this Subchapter L shall mean notice and comment hearings." 

4) Several minor wording changes are also requested, as follows: 

a. In 5 1 16.1402(b), the initial phrase, "With the exception of subsection (a) 

of this section, as a specific but not limited exclusion, . .." is unclear and 

unnecessary. We recommend that the phrase be deleted. 

b. In 5 1 16.1 41 4(1), insert "applicable" prior to the words "rules and 

regulations" in the first sentence, consistent with the similar provision in 

Subchapter B. 

c. In 5 1 16.1414(2), insert "significant" prior to the words "air contaminant" 

in the first sentence, consistent with the similar provision in Subchapter B. 

d. In $5 116.1414(3), (4), and (5), delete "at least" prior to the words "the 

requirements of any applicable" in the first sentence of each paragraph, 

consistent with the similar provisions in Subchapter B. 

5) Comments on Proposed Chapter 39, Subchapter H: 

a. In 5 39.420(f), replace the phrase "the chief clerk shall not be required to 

transmit the item listed in subsection (a)(4) of this section" with the phrase 

"the chief clerk will not transmit the item listed in subsection (a)(4) of this 

section." 
SIERRA 

CLUB 

FOUNDED 1892 

December 17,2005 

Ms. Joyce Spencer IIE[;UlMIUr& 1;1:~1O.iiEiIl SFCIIOK 

Office of Legal Services 

Texas Commission on Environmental Quality - 

P.O. Box 13087 

MC 205 

Austin, Texas 7871 1-3087 

Houston Regional Group 

P. 0. Box 3021 

Houston, Texas 77253-3021 

713-895-9309 

: http://texas.sierraclub.org/houston/ 

Dear Ms. Spencer, 

Enclosed are the comments of the Houston Regional Group of the Sierra Club 

(HSC) regarding the proposed changes to 30 TAC 39, 50, 55,91, 116, and 331 

to allow FutureGen project air permits. 

The HSC understands that the Texas Commission on Environmental Quality 

(TCEQ) is implementing a statutory mandate of the Texas Legislature. However, 

we want to express our opposition to removal from citizens of their ability to 

request and receive a contested case hearing regarding permitting of FutureGen 

projects as proposed in 30 TAC 39, 50, 55, 91, 1 16, and 331. 

Throughout these rule proposals the TCEQ states that the Texas Legislature has 

said that "this technology demonstration project could result in major economic, 

social, and environmental benefits for Texas and that streamlining the permitting 

process for FutureGen projects would serve the public's interest by improving the 

state's ability to compete for federal funding". If TCEQ is going to mention this 

then it is ortly fair to the public that at least a brief description be given about 

what these major economic social and enviror~mental benefits are and how they 

will benefit Texans. 

TCEQ states in its proposal in 30 TAC 39, 50, 55, 91, 116, and 331 that 

FutureGen "refers to a combination of technologies for carbon sequestration 

(CS), carbon dioxide (C02) enhanced oil recovery, electric generation, and 

hydrogen production" which could include "bulk fuel handling equipment, 

gasifiers, reactors, separators, turbines, sulfur recovery units, and emission 

control equipment". 

FutureGen is a complicated, unproven, group of technologies that could have 

significant environmental impacts on air quality, groundwater quality, and land, 

both surface and subsurface. In reality, although not required by state law, an 

environmental impact statement is needed for any FutureGen proposal so that all 

"When we try to pick out anydung by itself, we fmd it hitched to everydung else in the universe.'' Joh Myir 

Printed on 100% Kenaf tree free paper 
primary, secondary, connected, and cumulative environmental, social, and 

economic impacts can be determined and analyzed, assessed, and evaluated by 

TCEQ and the public who then would be able to review and comment on the 

proposal. 'This would be the fair and democratic way to approach this 

technology. 

However, TCEQ is not in the position to conduct this entire process so the HSC 

urges it to do as much as possible, via its permitting authority, to determine all 

air, water, and land environmental impacts and reveal them to the public and 

request comments on the proposal in an inclusive and comprehensive manner. 

Some of the questions that need to be answered about FutureGen and carbon 

sequestration (CS) technologies include: 

Potential Source and Severity of Leaks 

1) What are the effects of single or multiple existing wells (water, oil, gas, salt 

water injection, municipal waste, hazardous waste) in the CS area? 

2) How many of these wells are unplugged? 

3) How long will the well casings in the CS area,remain leak free? 

4) What is the risk that C02-generated acids will weaken the concrete in well 

casings in the CS area? 

5) What are the effects of surface and subsurface faults in the CS area? 

6) What are the effects of fractures or fissures running to the surface in the CS 

area? 

7) What are the effects of pressurizing the geologic formationlsaline aquifer in the 

CS area? 

8) Is there a realistic chance of a catastrophic release in a CS area? 

9) Will multiple slow leaks compromise the global carbon mitigation function of 

CS? 

contamination of Aquifers and Possible Future Uses of Aquifers 

1) What is the effect of C02 injection on saline aquifer water quality? 

2) How will impurities be separated from C02 in the injection stream and what 

limits are protective for the CS area? 
3) What are the sources and fates of metals and organics that have been 

injected into the saline aquifer in the Frio Study? 

Other Environmental, Social, and Economic Impacts 

I) What harm may come to soil bacteria as a result of CS? 

2) What harm may come to deep subsoil microbial communities? These may be 

extensive throughout the earth's crust, but their extent, nature, and wider 

ecological interactions are unknown. 

3) Can C02 leaks mobilize contaminants that will enter groundwater? 

4) What subsurface property rights do people have if they do not want their 

portion of the saline aquifer filled with C02? 

5) Will CS contribute to subsidence and fault activation, particularly if the saline 

aquifer is also used for other purposes? 

6) What liability insurance is required to protect the public and companies that 

use CS? 

7) What will be the impacts of additional pipelines for 'transporting C02? 

8) What will be the impacts of 20-100 wells per large company on a CS area? 

9) What does due diligence require with respect to a CS area? 

10) What are the stress limits of the C02 injection system? 

11) How may one predict when C02 migrationlmovement will stop (threshold of 

immobility) in relation to property boundaries on the surface of the CS area? 

12) Does C02 migrationlwater displacement cause other problems in the CS 

area? 

Scientific Validity and Modeling Issues 

The scientific basis for guaranteeing the success and safety of CS appears to be 

weak. In the literature and in scientific conferences frequent references have 

been made to the lack of empirical data. The models used today are where 

groundwater models were 30+ years ago. The models used in thought 

experiments common in the literature can lead to very unrealistic expectations. 
Little is known about certain key variables (e.g., geomechanical interaction of 

C02 and cap-rock, mineralization of C02 in aquifers) and about sparse sampling 

in individual projects. More interdisciplinary contributions seem called for, 

particularly regarding the issues of subsurface microbial communi,ties. Likewise, 

research results involving complex geological computer models need to be 

clarified for stakeholders outside the field of geology. The extent and sources of 

empirical knowledge that constrain models need to be made explicit, as does the 

methodology used in field validation. 

Developing a Monitoring and Regulatory System 

C02 sequestration does not clearly fit into TCEQ or the U.S. Enviror~mental 

Protection Agency's (EPA) regulatory framework. It may not be "a restricted 

hazardous waste", but CS storage reservoirs may have significantly greater 

environmental impact that today's Class I non-hazardous wells. At minimum, the 

following points should be taken into account in developing a regulatory 

framework: 

1) Who will require that models are continually updated using monitoring results 

and updated scientific information for CS? 

2) What plume tracing accuracy will be required in CS areas? 

3) How many barriers will be required and how will their functioning be monitored 

in CS areas? 

4) Will there be a buffer to prevent exceeding the spill point of the reservoir in the 

CS area? 

5) How will the speed of groundwater movement be monitored in CS areas? 

6) How can agencies hold a company accountable for negative environmental 

impacts due to CS? 

7) What percentage of the total amount of C02 emitted into the atmosphere will 

be sequestered in CS areas (how large does the regulatory system need to be)? 

8) What amount, type, level, and length of monitoring will be required in a CS 

area? 

9) What parts of a CS area will require the most careful monitoring? 

10) What information is needed to certify a CS area? 

It is for these and other reasons that the HSC urges TCEQ to go slow in its 

permitting of any FutureGen proposal. In particular it is of immense interest that 
TCEQ determine what future role saline aquifers will play in providing water to 

Texans for municipal, industrial, commercial, agricultural and other uses. If 

saline aquifers are dedicated to CS use then how can they be used for potable 

water or other purposes without re-releasing the C02? This is a priority use 

problem that needs to be worked out now and not in some crisis situation. 

30 TAC 39 

The HSC opposes the removal from citizens of their ability to request and receive 

a contested case hearing regarding permitting of FutureGen projects as 

proposed in 30 TAC 39. We feel that this diminishment of citizen participation 

and input into the process is illegal under the Clean Air Act and should not be 

tolerated. 

The HSC supports an expiration date or sunset date for these rules. The 

expiration date should be no later than 201 0. 

Under 39.404(b), the HSC supports that a person is entitled to request a notice 

and comment hearing from the TCEQ. 

30 TAC 50 

The HSC opposes the removal from citizens of their ability to request and receive 

a contested case hearing regarding perrnitting of FutureGen projects as 

proposed in 30 TAC 50. We feel that this diminishment of citizen participation 

and input into the process is illegal under the Clean Air Act and should not be 

tolerated. 

The HSC supports an expiration date or sunset date for these' rules. The 

expiration date should be no later than 2010. 

30 TAC 55 

The HSC opposes the removal from citizens of their ability to request and receive 

a contested case hearing regarding permitting of FutureGen projects as 

proposed in 30 TAC 55. We feel that this diminishment of citizen participation 

and input into the process is illegal under the Clean Air Act and should not be 

tolerated. 

The HSC supports an expiration date or sunset date for these rules. The 

expiration date should be no later than 2010. 

30 TAC 91 

The HSC opposes the removal from citizens of their ability to request and receive 

a contested case hearing regarding permitting of FutureGen projects as 
proposed in 30 TAC 91. We feel that this diminishment of citizen participation 

and input into the process is illegal under the Clean Air Act and should not be 

tolerated. 

The HSC supports an expiration date or sunset date for these rules. The 

expiration date should be no later than 2010. 

The HSC supports the public notice, public meeting opportunities, and public 

commenting opportunities before the Executive Director and that the Commission 

can conduct public meetings and hear an appeal of the decision of the Executive 

Director. 

Under 91.30, Definitions, the HSC supports defining integrated sequestration, 

sequester, and carbon sequestration. These words make up the very processes 

TCEQ may permit but they are not defined in the rules that apply to them. 

Under 91.30(4)(D), Definitions, Component of the FutureGen project, the HSC 

supports defining "carbon dioxide capture technology" so the public knows what 

this phrase means. 

Under 91 .I 10(b), the HSC supports the definition of "significant degree of public 

interest". In 'this way the public will know what it needs to do to meet this rule's 

requirement. 

30 TAC 11 6 

The HSC opposes the removat from citizens of their ability to request and receive 

a contested case hearing regarding permitting of FutureGen projects as 

proposed in 30 TAC 116. We feel that this diminishment of citizen participation 

and input into the process is illegal under the Clean Air Act and should not be 

tolerated. 

The HSC supports an expiration date or sunset date for these rules. The 

expiration date should be no later than 2010. 

Under 116.1400, Purpose, how does TCEQ define "reasonably streamline 

procedures"? 

Under 116.1408, Definitions, the HSC supports the definition of integrated 

sequestration, sequester, and carbon sequestration. These words make up the 

very processes TCEQ may permit but they are not defined in the rules that apply 

to them. 

Under 116.1408(4)(D), Component of the FutureGen project, the HSC supports 

defining "carbon dioxide capture technology" so the public knows what this 

phrase means. 
Under 116.1410, the HSC supports addressing how leaks of C02 to the 

atmosphere or water will be handled in the permit. How will these leaks be 

stopped or mitigated? The same is true for other contaminants that may be in 

the saline aquifer. From both water and air perspectives how will leaks be 

prevented and if they occur stopped? The permit must address this issue. 

Under 1 16.1 41 4(2), the permit "will" and not "may" have provisions for measuring 

the emission of air contaminants. This is the first time ,this technology will be 

used and it will be a major source of emissions. Stack sampling or monitoring 

must be required. Process variables or parametric or predictive monitoring is not 

sufficient to reveal to the public the performance of the technology and to reveal 

the actual contaminants being released. 

Under 116.1414(6), the permit "will" and not "may" have provisions for a 

performance demonstration initial compliance testing requirement for air 

contaminants. This is the first time this technology will be used and it will be a 

major source of emissions. Stack sampling or monitoring must be required. 

Process variables or parametric or predictive monitoring is not sufficient to reveal 

to the public the performance of the technology and to reveal the actual 

contaminants being released. 

Under 1 16.1414, there is no requirement to meet U.S. Environmental Protection 

Agency (EPA) Regional Haze rules or interstate transport r~~les. Any FutureGen 

proposal must meet rules from these two EPA programs. 

Under 116.1416, the HSC supports a provision in the public notice requirements 

that requires that the notice and sign at the location of the FutureGen proposal 

be in at least two languages (or as many as are spoken by the people in the 

area) as TCEQ requires for Operating Permits. 

Under 116.1418, the HSC supports the public notice, public meeting 

opportunities, and public commenting opportunities before the Executive Director 

and that the Corr~mission can conduct public meetings and hear an appeal of the 

decision of the Executive Director. 

Under 116.1418, the HSC supports a provision in the public meeting or hearing 

requirements that requires that the notice be in at least two languages (or as 

many as are spoken by the people, in the area). 

Under 116.1418(j), the HSC supp'orts definition of the phrases "reasonably 

ascertainable issues" and "reasonably available argumentsJ' so the public knows 

what it must meet due to this requirement. 

Under 116.1422(b)(2)(A), General and Special Conditions, that all local air 

pollution agencies with jurisdiction be notified by the permit holder when there will 
be commencement of operations of facilities authorized by the permit so that they 

can have observers available, be prepared in case of problems, and know about 

the operation so they can tell the public what is occurring. 

Under 116.1422, TCEQ should make clear that the permit application is also a 

legal document that the permit holder must operate in compliance with. 

Under 116.1422(b)(5)(E), the information that documents compliance with permit 

conditions should be retained in the file for at least 5 years and not 2 years. The 

time period should match the compliance history time period of 5 years. 

30 TAC 331 

The HSC opposes the removal from citizens of their ability to request and receive 

a contested case hearing regarding permitting of FutureGen projects as 

proposed in 30 TAC 331. We feel that this diminishment of citizen participation 

and input into the process is illegal under the Clean Air Act and should not be 

tolerated. 

We agree that there should be an expiration date or sunset date for these r~~les. 

The expiration date should be no later than 201 0. 

Under 331 .I 1, define what "usable quality water" means. Please refer to our 

comments and questions at the beginning of this letter about the CS process. 

TCEQ needs to answer these questions before it allows large scale injection of 

C02 produced by a clean coal project or any other project into any water bearing 

strata underground. 

The HSC appreciates this opporturrity to comment. Thank you. 

Sincerely, 

Brandt Mannchen 

Chair, Air Quality Committee 

Houston Regional Group of the Sierra Club 

Lone Star Chapter 

5431 Carew 

Houston, Texas 77096 

7 1 3-664-5962 

brandtshn1:bt@,iu1~0.~:01~~, 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

Ms. Joyce Spencer 7 ' ,' ., t;.~:, ,. -- . .i Air Permits Division (MC-205) =- ,, 

Texas Register Team 

"' ' ;I ,-!,:?q'$, ; *,.", 1 !$ 

Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Hox 13087 

Austin, TX 7871 1-3087 

RE: Rule Project Number 2005-053-091-PR 

Dear Ms. Spencer: 

Enclosed are the Environmental Protection Agency (EPA) comments on the Proposed 

Revisions to 30 TAC Chapters 39, 50,55,91, 1 16, and 33 1 and the State Implementation Plan of 

Permitting Actions for FutureGen Projects as described in the Enclosure. The EPA requests an 

opportunity to review Texas Commission on Environmental Quality's (TCEQ's) responses to its 

comments prior to the regulations being finalized. In addition, please include these comments 

and TCEQ's responses in the public file. 

Thank you for your cooperation. If you have ally questions, please coiltact Stephanie 

Kordzi of my staff at VOICEMAIL: (214) 665-7520 or EMAIL: kordzi.stephanie~epa.~ov. 

Sincerely yours, 

Air Pennits Section 

cc: Mr. Steve Hagle 

Texas Co~n~nission onE~ivironmelltal Quality (MC-163) 

Internet Address (URL) http://www.epa.gov 

RecycledlRecyclable 6Prlnled wHh Vegelable 011 Based Inks on Recycled Paper (Minimum 25% Poslconsumer) 
Comments on Texas' Proposed Rulemaking Implementing House Bill 2201 

for 

Future Gen Project Permitting Actions 

1.. Chapter 116.1408(2), Page 19 - Revise the definition of coal to be consistent with Federal 

Regulations 40 Code of Federal Regulations Subpart 60.41Da, as amended May 18,2005, 

and any future amendments which may occur. 

"Coal means all solid hels classified as anthracite, bituminous, subbituminous, or 

lignite by the American Society of Testing and MateriaIs (ASTM) Standard 

Specification for Classification of Coals by Rank D388-77, 90,91, 95, 98a, or 99 

(Reapproved 2004) [epsill (incorporated by reference, see Sec. 60.17) and coal 

rsfi~se. Sjnthe.tic fuels derived from coal for the purpose of creating usef~~l heat, 

including but not limited to solvent-refined coal, gasified coal, coal-oil mixtures, 

and coal-water mixtures are included in this definition for the purposes of this 

subpart." 

2. . Chapter 116.1410(1) and (2), Page 22 - Expressing limitations based on percentages of 

sulfur and mercury concentrations found in the coal instead of a specific limit achieved 

through control technologies allows for emissions that are too variable to ensure low 

emission rates. A discussion should be provided to explain how emission limitations 

expressed in the proposed rules for these pollutants were derived. 

3. Chapter 116.1410 (3), and (4), Page 22 - A discussion should be provided to explain how 

emission limitations expressed in the proposed rules for nitrogen oxides and particulate 

matter were derived. 

4. Chapter 116.1410, Page 22 - A contingency statement should be included in this sectioil 

similar to the following, "Should control teclmology be developed in the future that 

results in low^ emissions, permitting actions should reflect the technology resulting in 

tighter emissioll limits than those reflected in the current regulations. Regulations will be 

revisited on a frequent basis to ensure they are revised to remain up to date with current 

technology." 

5. Chapter 1 16.1414(12) - The section should also state that the proposed facility will utilize 

Lowest Achievable Control Technology if a FutureGen project is located in a 

non-attainment area. 
Reference Number 

0-1 

INDEX OF ORAL TESTIMONY 

Submitted bv 

Erich Birch, Birch & Becker, L.L.P. on behalf of the Center 

for Energy and Economic Development, CEED 
BEFORE THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

1 

Public Hearing on Proposed ) 

Revisions to 30 TAC Chapters) 

39, 50, 55, 91, 116 and 331 ) 

and Corresponding Revisions ) 

to the State Implementation ) 

Plan ) 

Room 201A, Building B 

TCEQ Complex 

12100 Park 35 Circle 

Austin, Texas 

Tuesday, 

December 20, 2005 

The above-entitled matter came on for 

hearing, pursuant to notice, at 10:OO a.m. 

BEFORE : JOYCE SPENCER, Texas Register Team 

General Law Division, TCEQ 

ALSO PRESENT: 

MICHAEL WILHOIT, Air Permits Division, TCEQ 

TARA CAPOBIANCO, Air Permits Division, TCEQ 
INDEX 

SPEAKER 

2 

PAGE 

CALL TO ORDER/OPENING REMARKS 

-Joyce Spencer, General Law Division, TCEQ 

PUBLIC COMMENT 

Erich Birch, Birch & Becker, L.L.P. 

CLOSING REMARKS /ADJOURNMENT : 

-Joyce Spencer 

ON THE RECORD REPORTING 

(512) 450-0342 
PROCEEDINGS 

MS. SPENCER: Good morning. I would like to 

welcome everyone to this public hearing being conducted 

by the Texas Commission on Environmental Quality. My 

name is Joyce Spencer, and I am with the Texas Register 

Team of the General Law Division. I would also like to 

introduce Michael Wilhoit and Tara Capobianco, Air 

Permits Division. 

We are here this morning to receive oral 

and/or written comments on proposed revisions to 30 TAC 

Chapters 39, 50, 55, 91, 116 and 331 and corresponding 

revisions to the state implementation plan. If you 

intend to present oral testimony and haven't already 

registered, please do that now. 

Copies of the proposal from the issue of the 

Texas Register are available at the registration table 

if anyone needs one. For those of you who do not have 

access to the internet to download the rules, there are 

sheets available at the registration table for you to 

fill in your name and address, and we will mail a copy 

of the rules to you once the rules have been adopted. 

We will continue to accept written comments on this 

proposal until 5:00 p.m. Tuesday, December 27, 2005. 

This hearing is structured strictly for the 

receipt of oral or written comments. Open discussion 

ON THE RECORD REPORTING 

(512) 450-0342 
during the hearing is not allowed; however, if anyone 

has any additional questions or comments regarding the 

proposal, there will be another opportunity after the 

hearing to have your questions answered. 

We will now begin receiving testimony in the 

order in which you registered. Once I call your name, 

please begin your testimony. 

Mr. Birch? 

(Pause. ) 

MS. SPENCER: If you would, just please 

state your name and who you represent. 

MR. BIRCH: Sure. 

For the record, my name is Erich Birch; I'm 

an attorney here in Austin with Birch and Becker, L. L. 

P., and I'm presenting comments today on behalf of the 

Center for Energy and Economic Development, CEED. 

The first comment we'd like to make is that 

we do support and compliment TCEQ and the staff for the 

very quick and prompt implementation of the FutureGen 

legislation. We believe FutureGen is very important to 

the state of Texas and getting these rules on board 

quickly gives certainty to everyone involved in the 

process. We also would like to encourage and thank the 

staff for staying faithful to the intent and the 

language in the legislation. 

ON THE RECORD REPORTING 

(512) 450-0342 
There are a few comments, very brief 

comments. First, the TCEQ asked about the need for a 

sunset provision. CEED does not believe that there's a 

need for the sunset provision in the regulations, 

because the FutureGen project is a one-of-a-kind 

project. And there's no need for additional language 

regarding sunset. 

A few specific comments. One, in Section 

116.1402(b), there is some language regarding 

facilities that are eligible for FutureGen permitting, 

and we're just somewhat confused about the purpose for . 

that language. And we can talk with the staff 

specifically maybe afterwards and explain the 

confusion. 

Third, in Section 116.1404, there's a 

discussion about the permitting eligibility for 

FutureGen components, and we would like to make sure 

that the rule is clear that all aspects or all types of 

permits or exemptions for permits would be eligible for 

use in the FutureGen projects. 

Our final comment concerns and I'll list 

three sections specifically: 39.420, 116.1416 and 

116.1418. And this regards the opportunity for 

hearing. 

As the FutureGen legislation provided, 

ON THE RECORD REPORTING 

(512) 450-0342 
there's not an opportunity for a contested case 

hearing. The language throughout those sections 

discusses hearings, and there seems to be some 

confusion about the type of hearing that might be 

provided for a FutureGen project. 

Also, we'd like to make sure that in that 

provision, all aspects of permitting or modifying 

permits would be eligible for the FutureGen legislation 

as far as the no contested case hearing provisions, 

because, whether it's an initial permit or a 

modification or amendment of a permit, if it's all 

focused on getting the FutureGen project constructed 

and built, then it should fit the same type of notice 

and comment provisions for the FutureGen project. 

That concludes our oral comments. CEED will 

provide written comments, either individually or in 

support of others, on the FutureGen project. Thank you 

for your time. 

MS. SPENCER: Thank you. 

Is there anyone else who would like to 

present testimony at this time? 

(Pause. ) 

MS. SPENCER: Once again, the Commission 

will continue to accept written comments on this 

proposal until 5:00 p.m. Tuesday, December 27, 2005. 

ON THE RECORD REPORTING 

(522) 450-0342 
We do appreciate your comments, and we thank you for 

coming today. If there are no further comments, this 

hearing is now closed. 

(Pause. ) 

MS. SPENCER: And staff will.be here a few 

more minutes if anybody wants to discuss the proposal 

any further. 

(Whereupon, at 10:15 a.m., this hearing was 

concluded. ) 

ON THE RECORD REPORTING 

(512) 450-0342 
CERTIFICATE 

HEARING ON: Proposed Revisions to 30 TAC Chapters 

39, 50, 55, 91, 116 and 331 

LOCAT I ON : Austin, Texas 

DATE : December 20, 2005 

I do hereby certify that the foregoing 

pages, numbers 1 through 8 inclusive, are the true, 

accurate, and complete transcript prepared from the 

verbal recording made by electronic recording by Carol 

Oppenheimer before the Texas Commission on 

Environmental Quality. 

hw4-,- 1/03/2006 

(Transcriber) 0 Ck*, (Date) 

On the Record Reporting, Inc. 

3307 Northland, Suite 315 

Austin, Texas 78731 

ON THE RECORD REPORTING 

(512) 450-0342 
Texas Commission on Environmental Quality 

Public Hearing Registration 

Rule Project No. 2005-053-091 -PR 

Location: Austin - 10:OO a.m. Date: December 20, 2005 

Concerning: Oral and/or written comments on proposed revisions to 30 TAC Chapter 39, Public Notice, Chapter 50, Action on 

Applications and Other Authorizations, Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment, 

Chapter 91, Alternative Public Notice and Public Participation Requirements for Specific Designated Facilities, Chapter 116, Control 

of Air Pollution by Permits for New Construction or Modification, and Chapter 331, Underground Injection Control 

Presenting Oral Testimony? 

(Circle One) 

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EVALUATION OF 

TESTIMONY 
Texas __. Commission _ ._ on Environmental .. Quality .. - INTEROFFICE MEMORANDUM 

To: Commissioners Date: February 3, 2006 

Thru: LaDonna Castaiiuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: Eden, Deputy Director 

Office of Permitting, Remediation, and Registration 

Docket No.: 2005- 1620-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 39, Public Notice 

Chapter 50, Actions on Applications and Other Authorizations 

Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public 

Comment 

Chapter 91, Public Participation for Permitting of Certain Designated Facilities 

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

Chapter 331, Underground Injection Control 

House Bill (HB) 220 1: FutureGenlClean Coal 

Rule Project No. 2005-053-091-PR 

Reasons for the rule package: HB 2201, 79th Legislature, 2005, Regular Session, authored by 

Representatives Bryan Hughes, Chuck Hopson, Robert Cook, Lois Kolkhorst, and Mark Homer, and 

sponsored by Senator Craig Estes, is intended to encourage and facilitate the development of the FutureGen 

project in Texas. FutureGen refers to a combination of technologies for carbon sequestration, carbon 

dioxide (CO,) enhanced oil recovery, electric generation, and hydrogen production. If Texas can secure 

the FutureGen project, the state will recognize major economic benefits from the creation of jobs and 

increased tax revenue. HB 2201 directs the commission to create rules to implement a streamlined process 

for permitting components of the FutureGen project. HB 2201 specifies that FutureGen projects are not 

subject to any requirements relating to a contested case hearing. Rulemaking is necessary to implement 

the legislation. 

Under what authority are we proposing these changes? The rulemaking is recommended for 

adoption under Texas Water Code, 95.103, concerning Rules, and 55.105, concerning General 

Policy, which authorize the comlnission to adopt rule's necessary to carry out its powers and duties 

under the Texas Water Code; and under Texas Health and Safety Code, 5382.017, concerning 

Rules, which authorizes the colnmission to adopt rules consistent with the policy and purposes of 

the Texas Clean Air Act. The rulemaking is also proposed under Texas Health and Safety Code, 

3382.051, concerning Permitting Authority of Colnmission; Rules, which authorizes the 

commission to issue permits and adopt rules necessary for permits issued under Texas Health and 

Safety Code, Chapter 382; Texas Water Code, $27.019, concerning Rules, Etc., which requires 

the co~nm~ssion to adopt rules reasonably required for the regulation of injection wells; and Texas 

Health and Safety Code, $382.0565, concerning Clean Coal Project Permitting Procedure, and 

Texas Water Code, $5.558, concerning Clean Coal Project Permitting, which direct the 

colnmission to implement, by rule, a reasonably streamlined process for permitting a component 

of a FutureGen project. 
I:o~nmissionws 

Page 2 

Febru2u.y 3, 2006 

Re: Docl;cl No. 2005-1620-IiUL 

rn TN this rule~iialiiiig required hy federal rule or state statute? Which ones? This rulemaking 

is required by FIB 2201, which directed TCBQ to create a reasonably streainlined pernlitting 

process for FutureCen projects. 

a Are there ally legal deadlilies by which these rules iilust be proposed, aclopted, or effective? 

FIR 2201 specifies that the rules inust be adopted no later than September 1, 2006. 

0 WTliat issue(s) or prol)lcn~(s) are we trying to solve? The cxisting contested case hearing 

requircinents in the 'Tcxas permitting system cor~ltl bc a hindra~~ce to obtaining a FutureC;en project 

in this state. The recommended rules would provide greatcr speed and prcdictability in permitting 

to help 'Texas coinpete with other states for the FuturcGen project. 

o Why is it hnportant that we do this rule package? The FutureGen project could bring major 

econoinic benefits for the people of Texas. Unless the rule package is adopted, Texas will be at 

a competitive disadvantage with other states competing for the FutureGen project. 

Other important bacliground or historical information. N/A 

Scope of the ruleinalting: The recoiliinended rules would. eliminate contested case hearings for a 

FutureGen project. Projects covered by the rules would still be subject to a notice and con~~nent process 

without a contested case hearing. FIB 2201 wilI require ainendinents to Chapters 39,50,55, 116, and 331 

and a new Chapter 91. 

Changes required by federal rule: 

None. 

Changes required by state statute: 

B Eliminate contested case hearings for FutureGen projects, as required by HB 2201. 

Staff recon~meiidations that are not expressly required by federal rule or state statute: 

0 None. 

Impact on the regulated con~muiiity: 

Who will be affected? Any person who applies for a perinit to construct a FutureGen project. 

Does it create a group of affected persons who were not affected previously? How? No. 

0 Will there be a fiscal impact? If' so, estimate. The direct fiscal impact of the adopled rules is 

that an applicant for a FutureGen projecl may experience a cost savings and time savings by not 

having to prepare for a contesled case hearing. The eli~niilalion of a contesletl case hearing for 

a FutureGen perinir application would provide a more rapid and predictable permitting process. 

Ilnpact on the public: 

Who will he affected? Persons living near any proposed FutureGen facility [nay be affected by 

the elinlination of the cor~tested case Ilearing process. 
Commissioners 

Page 3 

February 3, 2006 

Re: Docket No. 2005- 1620-RUL 

Does it create a group of affected persons who were not affected previously? How? Yes. 

Persons affected by a proposed FutureGen project will no longer be able to request a contested 

case hearing. They would still be able to request a notice and comment hearing. 

Will there be a fiscal impact? If so, estimate. The recommended rules will not have a direct 

fiscal impact on the pdblic. In general, the rules will help Texas compete with other states for 

FutureGen projects. If Texas can secure the FutureGen project, the state will experience major 

economic benefits from new jobs and increased tax revenue. 

Impact on agency programs: The impact on agency programs will be minimal. The rules may result 

in a small savings of staff time by eliminating a contested case hearing for a FutureGen permit application. 

Stakeholder meetings: 

Have any stakeholder meetings been held? No. 

With whom? NIA 

What were the general sentiments? NIA 

Were any changes made in response to stakeholder concerns? N/A 

Policy issues: 

What policy issues are affected? None. 

Are any policies that are not currently based on rule being made into a rule? No. 

rn What are the consequences if this rulemaking is not approved to go forward? Texas will be 

at a competitive disadvantage with other states, which would reduce the likelihood that a 

FutureGen project would be constructed in Texas. 

Are there alternatives? No. 

Potentially controversial matters: Eliminating contested case hearings for FutureGen projects may 

generate controversy among some members of the public, and certain public interest groups. However, 

the change is required by statute. 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: November 25, 2005 and December 16, 2005 

Public Hearing: December 20, 2005 

Anticipated effective date: March 16, 2006 

Six-month Texas Register filing deadline: May 25, 2006 and June 16, 2006 

Public comment: 

The Sierra Club Houston Regional Group (HSC) opposed the elimination of a contested case hearing for 

the FutureGen project. HSC also listed a series of speculative questions concerning subjects such as effects 

of CO, on underground fissures and soil, effects of CO, leaks to the atmosphere, and effects of CO, 

generated acids on well casings. In raising these issues, HSC stated that little data is available and urged 

the cornmission to address them as fully as possible during the permitting process. The executive director 

does not recommend any rule changes in response to these comments. 

HSC requested that the rules provide for alternate language public notice, similar to the requirements which 

apply to other air permits. HSC also requested that the rules specify that pennits issued ullder Chapter 
Re: Docket No. 2005- 1620-RUL 

1 16, Subchapter L will contain provisions for measuring the enlissioil of air contanlinants. The executive 

director recoinmends a rule change to add provisions to ensure that alternate language public notice is 

provided where applicable, and a rule change to ensure that FutureGen air pennits will contain provisiolls 

for measuring the einission of air contaminants. 

The United States Enviro~llnental Protection Agency (EPA) coimented that the definition of coal should 

be changed to match a federal definition. The executive director does not recoinmend a rule change in 

response to this coininent because HB 2201 contained a definition of coal. The EPA recoininended 

irlcludiilg a coiltiilgeilcy stateineilt requiring applicatioil of ally newly developed technology to acl~icve 

lower air enlissio~ls. The EPA inade a similar coinnlent about the application of lowest achievable 

einissioil rate (LAER) 111 nonattaimneilt areas. The executive director does not recommend a rule change 

because application of best available control teclulology and LAER is already required under the 

coinmission's rules based on the location of a facility. 

The FutureGen Texas Advisory Board (FGTAB) and the Center for Energy and Economic Development 

(CEED) requested that the rule be clarified to ensure that FutureGen pennit amendments would not be 

subject to contested case hearings. Environme~ltal Defense (ED) coimnented that alnendineilts should oidy 

be exempt from contested case heariilgs if the project ineets the definition of a FutureGen project 

coinpolleat. Based on these comments, the executive director recoinmeilds a rule change to exempt 

amendments that meet the definition of a FutureGeil project colnponeilt from the contested case bearing 

process. 

HSC and ED recommended adding an expiration date to the FutureGen rule to prevent the possible 

inisapplication of the rule to unqualified projects. CEED coinmented that an expiration date was not 

necessary due to the limited scope of the FutureGen project. The executive director recoinlnellds that ail 

expiration date of .Tailuary 1,201 8, be incorporated into the rules to ensure that the streanlined permitting 

allowed under these rules is only used for the intended purpose of facilitating the FutureGeil project. 

Significant changes from proposal: 

In response to commeilts from FGTAB and CEED, the executive director is recoinmending changes to 

exempt FutureGen air permit amendments from the contested case hearing process, and to clarify that the 

term "hearing" as used in the proposed Chapter 116, Subchapter L refers only to a notice and coimnent 

hearing and not a contested case hearing. In response to comments from HSC, the executive director 

recoimnei~ds adding a requirement that the FutureGeil permit will contain provisioils for measuring the 

elnission of air containinants, and adding a requiremeit to ensure that alternate language public notice is 

provided where applicable. In response to coinineilts froin I-ESC and ED, the executive director 

recoimnends a rule change to ensure that applications submitted after January 1, 201 8, would not be 

eligible for streainlined pennitling under these rules. 

Agency contacts: 

Michael Wilhoit, Rule Project Manager, 239-1222, Air Permits Division 

Booker Harrison, Staff Attorney, 239-41 13 

Joyce Spencer, Texas Register Coordinator, 239-5017 

Attachments 
Commissioners 

Page 5 

February 3, 2006 

Re: Docket IVo. 2005- 1620-RUL 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Brent Wade 

Office of General Counsel 

Michael Wilhoit 

Joyce Spencer 

cc (without attachments) : 

Booker Harrison, Staff Attorney 

Debi Dyer, Office Liaison 

Tara Capobianco, Division Liaison 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the amendments to 

$539.403, 39.411, 39.419, and 39.420, the repeal of 539.404, and new 539.404. Sections 39.403, 

39.404, 39.41 1, 39.419, and 39.420 are adopted with changes to the proposed text as published in the 

December 16, 2005, issue of the Texas Register (30 TexReg 8401). The repeal of 539.404 is adopted 

without change to the proposed text and will not be republished. 

Certain provisions of the rules will be submitted to the United States Environmental Protection Agency 

(EPA) as a revision to the state implementation plan (SIP), specifically, 539.403(b)(8) - (10) and new 

(0, the repeal of $39.404, and new 539.404. The commission also will withdraw $539.41 1, 39.419, 

and 39.420 as submitted to EPA on July 31, 2002, and submit $$39.41 l(a), (b)(l) - (6), (8) - (lo), 

(c)(l) - (6), and (d); 39.419(a), (b), (d), and (e); and 39.420(a), (b), and (c)(3) and (4) as a revision to 

the SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by 

rule, streamlined permitting procedures for FutureGen projects. FutureGen refers to a combination of 

technologies for carbon sequestration, carbon dioxide enhanced oil recovery, electric generation, and 

hydrogen production. FutureGen is a technology demonstration project that is a partnership between 

industry participants and the United States Department of Energy. In HB 2201, the legislature 

concluded in its findings that this technology demonstration project could result in major economic, 

social, and environmental benefits for Texas, and that streamlining the permitting process for 

FutureGen projects would serve the public's interest by improving the state's ability to compete for 

federal funding for FutureGen projects. A specific requirement of HB 2201 is that FutureGen permit 
applications shall not be subject to a contested case hearing. Under the adopted rules, eligible permit 

applications for FutureGen projects will be subject to the same permitting and public participation 

processes that would otherwise apply to applications for most types of commission permits, except for 

contested case hearings. 

The purpose of the adopted revisions to Chapter 39 is to implement the requirements of HB 2201 with 

respect to the public notice requirements of permit applications required to authorize a component of 

the FutureGen project. Because HB 2201 eliminates contested case hearings on applications for 

permits required to authorize a component of the FutureGen project, public notice requirements for 

these applications need to be modified to reflect that the applications are not subject to contested case 

hearings. The adopted revisions include a reference to the new 30 TAC Chapter 91, that establishes 

the streamlined process for applications required to authorize a component of the FutureGen process. 

Corresponding rulemakings are published in this issue of the Texas Register that include changes to 30 

TAC Chapter 50, Action on Applications and Other Authorizations, 30 TAC Chapter 55, Requests for 

Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative 

Public Notice and Public Participation Requirements for Specific Designated Facilities; 30 TAC 

Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and 30 TAC 

Chapter 33 1, Underground Injection Control. 

SECTION BY SECTION DISCUSSION 

The commission adopts administrative changes throughout these rules to be consistent with Texas 

Register requirements and agency guidelines and to update rule citations. 
$39.403. Applicability. 

The commission adopts an amendment to $39.403 by adding a new subsection (f) stating that 

applications for permits, registrations, licenses, or other type of authorization required to construct, 

operate, or authorize a component of the FutureGen project as defined in the concurrently adopted 

$91.30, Definitions, are subject to the public notice requirements of concurrently adopted new Chapter 

91, in addition to the requirements of this chapter, unless otherwise specified in Chapter 91. For most 

types of applications, the notice requirements in new Chapter 91 will use existing notice requirements 

for the type of application sought, except to modify the text of the notice to indicate that the application 

is for authorization of a component of the FutureGen project and is not subject to a contested case 

hearing. In response to comments, the commission has revised $39.403(f) to establish a sunset date of 

January 1, 2018. Applications or other requests for authorization submitted after January 1, 2018, 

would not be eligible to use the streamlined public participation provisions. 

$39.404. Applicability for Certain Initial Applications for Air Quality Pemits for Grandfathered 

Facilities. 

The commission adopts the repeal of $39.404 and replaces it with new $39.404. 

$39.404. Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered 

Facilities and for Applications for Pemits for Specific Designated Facilities. 

The commission adopts new $39.404, which includes applicability requirements for certain designated 

projects, specifically applications submitted under Chapter 116, concurrently adopted new Subchapter 

L, Permits for Specific Designated Facilities. In response to comments, the commission has revised 

$39.404(b)(2) to establish a sunset date of January 1, 2018. Applications or other requests for 
authorization submitted after January 1, 2018, would not be eligible to use the streamlined public 

participation provisions. 

539.41 I. Text of Public Notice. 

The commission adopts an amendment to $39.41 1 to specify in subsection (b)(lO)(B) that notice for 

applications submitted under 539.404(b) only require a statement that any person is entitled to request a 

notice and comment hearing from the commission. In response to comments, the commission has 

revised 539.41 l(b)(lO)(B) to establish a sunset date of January 1, 2018. Applications or other requests 

for authorization of FutureGen projects submitted after January 1, 2018, would not be eligible to use 

the streamlined public participation provisions. 

$39.419. Notice of Application and Preliminary Decision. 

The commission adopts an amendment to 839.419 by adding a new paragraph (4) to subsection (e) 

specifying that applications to construct, authorize, or operate a component of the FutureGen project as 

defined in concurrently adopted $91.30, Definitions, shall be subject to the public notice and 

participation requirements stated in Chapter 116, concurrently adopted new Subchapter L. In response 

to comments, the commission has revised $39.419(e)(4) to establish a sunset date of January 1, 2018. 

Applications or other requests for authorization submitted after January 1, 2018, would not be eligible 

to use the streamlined public participation provisions of Chapter 116, Subchapter L, Permits for 

Specific Designated Facilities. 

539.420. Transnzittal of the Executive Director's Response to Comments and Decision. 

The commission proposed an amendment to $39.420 by adding a new subsection (0, stating that the 

chief clerk shall not be required to transmit the item listed in $39.420(a)(4), concerning instructions for 
requesting a contested case hearing, for permit applications under Chapter 11 6, concurrently adopted , 

new Subchapter L. In response to public comment, the commission has changed the proposed 

language to state that the chief clerk will not transmit the item listed in $39.420(a)(4). 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rules in light of the regulatory analysis requirements of Texas 

Government Code, $2001.0225, and determined that the rules do not meet the definition of a "major 

environmental rule. " Under Texas Government Code, $2001.0225, "major environmental rule" 

means a rule the specific intent of which is to protect the environment or reduce risks to human health 

from environmental exposure, and that may adversely affect in a material way the economy, a sector of 

the economy, productivity, competition, jobs, the environment, or the public health and safety of the 

state or a sector of the state. The adopted rules are intended to establish notice requirements for 

authorizing certain types of projects required for the FutureGen project. The adopted rules are only 

procedural rules establishing public notice requirements to administer the program for permitting 

FutureGen projects and are not specifically intended to protect the environment or to reduce risks to 

human health. The adopted rules are intended to provide an alternative mechanism for public 

participation and do not alter the underlying technical review requirements. Therefore, because this 

rulemaking will not adversely affect in a material way the economy, a sector of the economy, 

productivity, competition, jobs, the environment, or the public health and safety of the state or a sector 

of the state, the rulemaking does not fit the Texas Government Code, $2001.0225 definition of "major 

environmental rule. " 

Furthermore, the rulemaking does not meet any of the four applicable requirements listed in Texas 

Government Code, $2001.0225(a). Texas Government Code, $2001.0225(a), only applies to a major 
environmental rule adopted by an agency, the result of which is to: 1) exceed a standard set by federal 

law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, 

unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation 

agreement or contract between the state and an agency or representative of the federal government to 

implement a state and federal program; or 4) adopt a rule solely under the general powers of the 

agency instead of under a specific state law. 

In this case, the adopted rules do not meet any of these applicability requirements. First, the adopted 

rules are consistent with and do not exceed the standards set by federal law. Second, the adopted rules 

do not exceed an express requirement of state law, instead these rules implement HB 2201. Third, the 

rules do not exceed an express requirement of a delegation agreement or contract between the state and 

an agency or representative of the federal government to implement a state and federal program. 

Fourth, the commission does not adopt these rules solely under the general powers of the agency, but 

rather under the authority of Texas Health and Safety Code (THSC), $382,0565, as added by HB 

2201, which directs the commission to, by rule, implement reasonably streamlined processes for 

issuing permits required to construct a component of a FutureGen project, as authorized by federal 

law; Texas Water Code (TWC), $5.558, as amended by HB 2201, which directs the commission to 

implement reasonably streamlined processes for issuing permits required to construct a component of a 

FutureGen project, as authorized by federal law; and TWC, $27.022, as added by HB 2201, which 

establishes the commission's jurisdiction over the injection of carbon dioxide produced by a clean coal 

project to the extent authorized by federal law. 

Because the adopted rules do not constitute a major environmental rule, a regulatory impact analysis is 

not required. 
TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rules and performed an assessment of whether this rulemaking 

would constitute a takings under Texas Government Code, Chapter 2007. The adopted rules are 

intended to establish a streamlined process for authorizing certain types of projects required for the 

FutureGen project. The adopted rules are only procedural rules establishing a system to administer the 

program for permitting FutureGen projects and are not specifically intended to protect the environment 

or to reduce risks to human health. The rules are intended to provide an alternative mechanism for 

public participation and do not alter the underlying technical review requirements. Promulgation and 

enforcement of the rules will not affect private real property in a manner that would require 

compensation to private real property owners under the United States Constitution or the Texas 

Constitution. The rules also will not affect private real property in a manner that restricts or limits an 

owner's right to the property that would otherwise exist in the absence of the governmental action. 

Consequently, the adopted rules do not meet the definition of a takings under Texas Government Code, 

§2007.002(5). Therefore, the rules will not constitute a takings under Texas Government Code, 

Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking relates to an action or actions subject to the Texas 

Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as 

amended (Texas Natural Resources Code, 5533.201 et seq.), and the commission rules in 30 TAC 

Chapter 281, Subchapter B, Consistency with Texas Coastal Management Program. As required by 

§281.45(a)(3), Actions Subject to Consistency with the Goals and Policies of the Texas Coastal 

Management Program, and 3 1 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal 

Management Program, commission rules governing air pollutant emissions must be consistent with the 
applicable goals and policies of the CMP. The commission reviewed this rulemaking for consistency 

with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and 

determined that the rulemaking is consistent with the applicable CMP goals and policies. The CMP 

goal applicable to this rulemaking is the goal to protect, preserve, and enhance the diversity, quality, 

quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The adopted 

revisions include procedural mechanisms to authorize new sources of air contaminants; however, the 

revisions do not create any new types of authorizations for new sources of air contaminants. The CMP 

policy applicable to this rulemaking is the policy that commission rules comply with federal regulations 

in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 TAC 

$50 1.14(q)). This rulemaking complies with 40 Code of Federal Regulations Part 5 1, Requirements 

for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31 

TAC §505.22(e), the commission affirms that this rulemaking is consistent with CMP goals and 

policies. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

A. FutureGen project may or may not be subject to the Federal Operating Permits Program depending 

on the quantity and type of its emissions and location. If subject, facilities will be required to meet all 

requirements of the Federal Operating Permits Program. 

PUBLIC COMMENT 

A public hearing for this rulemaking was held on December 20, 2005, in Austin, and the comment 

period closed on December 27, 2005. The commission received comments from the FutureGen Texas 

Advisory Board (FGTAB), Environmental Defense (ED), the Center for Energy and Economic 
Development (CEED), the Sierra Club Houston Regional Group (HSC), and the Clean Coal 

Technology Foundation of Texas (CCTFT). 

RESPONSE TO COMMENTS 

CEED commented that there was no need for a sunset provision in the rules, because the FutureGen 

initiative represented a one-of-a-kind project. HSC and ED commented that an expiration date should 

be included in the rules. HSC suggested an expiration date of 2010, and ED suggested an expiration 

date of January 1, 2015. 

The commission is changing the rule in response to these comments and is establishing a sunset 

date of January 1,2018. Applications or other requests for authorization submitted after this 

date would not be excluded from contested case hearings. This change will ensure that the 

streamlined permitting processes of Chapters 91 and 116 are only used for their intended purpose 

of providing an incentive for the FutureGen project construction. 

HSC supported the provision of §39.404(b) allowing a person to request a notice and comment . . 

hearing, but it opposed the proposed rules that would allow a permit to be issued for a FutureGen 

project without providing the public with an opportunity to request and receive a contested case 

hearing. 

The commission is not changing the rule in response to this comment. The adopted rules 

implement HB 2201, passed by the 79th Texas Legislature. Sections 3 and 7 of HB 2201 amend 

portions of the THSC and TWC to provide that permit applications for facilities that are a 

component of the FutureGen project are not subject to contested case hearings. The commission 

9 
is required by HB 2201 to adopt rules to implement the statutory changes specified by HB 2201. 

Under the adopted rules, the public retains the ability to participate in the permitting process by 

submitting written commeuts during the comment period, and by requesting a notice and 

comment hearing on the permit. 

FGTAB and CCTFT suggested that proposed $39.420(f) be rephrased. The proposed rule states that 

"the chief clerk shall not be required to transmit the item listed in subsection (a)(4) of this section." 

FGTAB suggested that this phrase be altered to read "the chief clerk will not transmit the item listed in 

subsection (a)(4) of this section. " 

The commission agrees with the suggested change and has revised 039.420(f) accordingly. 

STATUTORY AUTHORITY 

The amendments and new section are adopted under TWC, 55.103, concerning Rules, and 55.105, 

concerning General Policy, which authorize the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; and under THSC, 5382.017, concerning Rules, which authorizes 

the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The 

amendments and new section are also adopted under THSC, 5382.002, concerning Policy and Purpose, 

which establishes the commission purpose to safeguard the state's air resources, consistent with the 

protection of public health, general welfare, and physical property; 5382.01 1, concerning General 

Powers and Duties, which authorizes the commission to control the quality of the state's air; 5382.012, 

concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state's air; 5382.0518, concerning preconstruction permits; 

5382.056, concerning notice of intent to obtain permit or permit review and hearing; and $382.0565, 
concerning clean coal project permitting procedure; and TWC, 55.558, concerning clean coal project 

permitting. 

The adopted amendments and new section implement TWC, §5.558(c) and THSC, $382.0565(d). 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts new $51 16.1400, 

116.1402, 116.1404, 116.1406, 116.1408, 116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 

116.1422, 116.1424, 116.1426, and 116.1428. Sections 116.1402, 116.1404, 116.1408, 116.1414, 

1 16.1416, 116.1422, and 116.1424 are adopted with changes to the proposed text as published in the 

November 25, 2005, issue of the Texas Register (30 TexReg 783 1). Sections 116.1400, 116.1406, 

116.1410, 116.1418, 116.1420, 116.1426, and 116.1428 are adopted without changes to the proposed 

text and will not be republished. The new sections will be submitted to the United States 

Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by 

rule, streamlined permitting procedures for FutureGen projects. FutureGen refers to a combination of 

technologies for carbon sequestration, carbon dioxide (COJ enhanced oil recovery, electric generation, 

and hydrogen production. FutureGen is a technology demonstration project that is a partnership 

between industry participants and the United States Department of Energy. In HB 2201, the legislature 

concluded in its findings that this technology demonstration project could result in major economic, 

social, and environmental benefits for Texas, and that streamlining the permitting process for 

FutureGen projects would serve the public's interest by improving the state's ability to compete for 

federal funding for FutureGen projects. A specific requirement of HB 2201 is that FutureGen permit 

applications shall not be subject to a contested case hearing. Under the adopted rules, eligible permit 

applications for FutureGen projects will be subject to the same permitting and public participation 
processes that would otherwise apply to applications for most types of commission permits, except for 

contested case hearings. Other portions of HB 2201 reflected in the adopted rules define relevant 

terms, establish an emissions profile, and clarify jurisdiction issues between TCEQ and the Railroad 

Commission of Texas. Much of the content of the adopted rules originates from Texas Health and 

Safety Code (THSC), new $382.0565, Clean Coal Project Permitting Procedure, and Texas Water 

Code (TWC), new 55.558 and $27.022, which were created by HB 2201. 

The purpose of the revisions to Chapter 116 is to implement the requirements of HB 2201, specifically, 

to establish a reasonably streamlined procedure for the commission to authorize the emission of certain 

air contaminants by projects within the commission's jurisdiction that are a component of the 

FutureGen project. Because HB 2201 eliminates contested case hearings on applications for permits 

required to authorize a component of the FutureGen project, public notice requirements for these 

applications need to be modified to reflect that the applications are not subject to contested case 

hearings. 

Corresponding rulemakings are published in this issue of the Taus Register that include changes to 30 

TAC Chapter 39, Public Notice; 30 TAC Chapter 50, Action on Applications and Other 

Authorizations; 30 TAC Chapter 55, Requests for Reconsideration and Contested Case Hearings; 

Public Comment; 30 TAC Chapter 91, Alternative Public Notice and Public Participation 

Requirements for Specific Designated Facilities; and 30 TAC Chapter 33 1, Underground Injection 

Control. 
SECTION BY SECTION DISCUSSION 

$1 16.1400. Purpose; and $1 16.1402. Applicability. 

The commission adopts these new sections to specify the purpose and applicability of new Subchapter 

L, Permits for Specific Designated Facilities. Specifically, the purpose of the new subchapter is to 

establish reasonably streamlined procedures to issue authorization for certain projects; those procedures 

are applicable to authorizations to construct and operate a component of the FutureGen project. In 

response to comments, the commission has revised $1 16.1402 to clarify that modifications that would 

trigger amendments to a FutureGen permit will be subject to the notice and hearing provisions of 

Subchapter L, and would not be subject to a contested case hearing. In response to comments, the 

commission has also revised $116.1402 to establish a sunset date of January 1, 2018. Applications or 

other requests for authorization submitted after January 1, 2018, would not be eligible to use the 

streamlined permitting provisions established in Subchapter L. In response to comments, the 

commission has also revised certain phrases for greater clarity. 

$1 16.1404. Permit Required. 

The adopted new section requires anyone planning to construct a component of the FutureGen project 

designated in $ 116.1402 that may emit air contaminants into the air of this state to obtain a permit 

under this chapter or qualify for a permit by rule under 30 TAC Chapter 106, Permits by Rule. The 

commission has revised this section in response to comments, specifically to clarify that modifications 

that trigger amendments to a FutureGen permit will be subject to the notice and hearing provisions of 

Subchapter L, and to indicate that other authorizations under Chapter 116, such as a standard permit, 

may be used to authorize facilities that are a component of the FutureGen project. 
$1 16.1406. Conpliance History. 

The adopted new section requires compliance history reviews for any applications under the new 

subchapter. 

$1 16.1408. Definitions. 

The adopted new section contains definitions applicable to the new subchapter, clean coal projects, and 

the FutureGen project. Specifically, the section defines: clean coal project, coal, FutureGen project, 

component of the FutureGen project, FutureGen project profile, hearing, and designated project. In 

response to comments, the commission has added a definition of "Hearing" to ensure that this term as 

used in Subchapter L is understood to mean a notice and comment hearing and not a contested case 

hearing. 

$1 16.141 0. Emissions Profile for FutureGen Projects. 

The adopted new section establishes an emissions profile for FutureGen projects. This emissions 

profile is included in the event that the United States Department of Energy does not specify an 

emissions profile for the FutureGen project. The emissions profile establishes limitations for the 

emissions of air contaminants from a component of a FutureGen project. 

$1 16.141 4. Applications for Facilities that are Components of a Designated Project. 

The adopted new section provides the requirements for applications submitted under new $1 16.1404 

and requires any application to be submitted with a completed Form PI-1, Facility Permit Application. 

New $1 16.1414(1) - (12) requires applicants to make certain demonstrations regarding: protection of 

public health and welfare; measurement of emissions; New Source Performance Standards; National 
Emissions Standards for Hazardous Air Pollutants (NESHAPs); NESHAPs for source categories 

(applicable maximum achievable control technology standard); performance demonstrations; 

nonattainment review; prevention of significant deterioration review; air dispersion modeling or 

ambient monitoring; federal standards of review for constructed or reconstructed major sources of 

hazardous air pollutants; application content; and best available control technology (BACT). In 

response to comments, the commission has made several minor changes to this section to improve 

consistency with permit application requirements in other subchapters of Chapter 116. 

$1 16.141 6. Public Notice. 

The adopted new section establishes public notice requirements for applications to construct a 

component of a FutureGen facility. These requirements include the following: publication of the draft 

permit and prelimii decision in a newspaper of general circulation in the municipality in which the 

site or proposed site is located, or in the municipality nearest to the location of the site or proposed 

site; and availability of a copy of the application and draft permit for review and copying at a public 

place. New $1 16.1416(a)(l) - (10) states the required contents of the notice, which in addition to 

factual information about the applicant and the proposed location of the facility, includes a description 

of the comment procedures; a statement that a person affected by the emission of air pollutants is 

entitled to request a notice and comment hearing under $1 16.1418, Public Participation, in a font size 

that provides emphasis and distinguishes it from the rest of the notice; a description of the procedure 

by which a person may be placed on a mailing list for further information; the time and location of any 

public meeting, as applicable; and the name, address, and phone number of the commission office to 

be contacted for further information. 
New 5 1 16.141 6(b) and (d) provides the following procedural requirements: the applicant shall provide 

the executive director and all local air pollution control agencies having jurisdiction a copy of the 

public notice and date of publication; and the executive director shall make available for public 

inspection during the public comment period a copy of the draft permit and complete application. 

New $1 16.1416(e) establishes the requirements for the sign that the applicant shall place at the site 

declaring the filing of the application and stating how the executive director may be contacted for 

further information; new $1 16.1416(c) requires the applicant to submit certification of compliance with 

the signage requirements in $ 1 16.1416(e). 

New $1 16.1416(0 requires that the executive director receive public comment for 30 days after the 

notice is published; new $1 16.1416(g) allows the draft permit to be changed based on comments 

received. In response to comments, the commission has added a new $1 16.1416(h), concerning 

alternative language public notice and sign-posting requirements consistent with other permit 

applications under Chapter 1 16. 

$11 6.1418. Public Participation. 

The adopted new section provides specific procedures for public participation in the issuance of a 

FutureGen permit. The new section states that permit applications for a component of a FutureGen 

project are not subject to a contested case hearing, establishes a process for issuing permits required to 

construct a component of the FutureGen project, and provides procedures for public comment. THSC, 

$382.0565(c), and TWC, 55.558(b), both require the commission's use of "public meetings, informal 

conferences, or advisory committees to gather the opinions and advice of interested persons." With 
respect to the use of public meetings, the intent of new $1 16.1418 is to provide a notice and comment 

hearing procedure to facilitate those public meetings. Any public hearing held under this subchapter is 

not an evidentiary proceeding. 

New $1 16.1418(a) states that applications under this chapter are not subject to the contested case 

hearing process, but are subject to a notice and comment hearing process. 

New $116.1618(b) - (m) specifies the notice and comment hearing process. Specifically, subsections 

(b) - (m) allow for any person affected by emissions from a site regulated by this subchapter to request, 

within the 30-day comment period, the executive director to hold a notice and comment hearing on the 

draft permit; provide that the executive director shall decide whether to hold a hearing; state the 

requirements for publication of notice of a hearing on a draft permit; require the applicant to submit to 

the executive director and all local air pollution agencies having jurisdiction a copy of the notice of 

hearing and date of publication; allow the hearing notice to be combined with the notice of the draft 

permit required by this subchapter; allow any person to submit oral or written statements and data 

concerning the draft permit; require that any person believing that the draft permit or preliminary 

decision are inappropriate shall submit all reasonable arguments before the end of the comment period; 

and state the requirements for the executive director in responding to comments. These subsections 

also include administrative provisions requiring a tape recording or written transcript of the hearing to 

be made available to the public; requiring the executive director to keep and make available to the 

public a record of all comments received and issues raised at the hearing; allowing the draft permit to 

be changed based on comments; and establishing the procedure for the executive director to provide 

notice of the executive director's final decision, the executive director's response to any comments 
submitted during the comment period or at the public hearing specified in this section, and the 

identification of any change in the condition of the draft permit and the reasons for the change to any 

person who commented during the public comment period or at the hearing, and to the applicant. 

Finally, new $ 1 16.14 18(n) requires the commission to use public meetings, informal conferences, or 

advisory committees to gather the opinions and advice of interested persons for all permits issued under 

this subchapter. Any public meetings held under this subchapter shall follow the notice and comment 

hearing procedures as defined in subsections (a) - (m). The executive director shall hold a public 

meeting on the request of a member of the legislature who represents the general area in which the 

facility is located or proposed to be located; or if the executive director determines that there is 

substantial public interest in the proposed activity. 

$1 16.1420. Permit Fee. 

The adopted new section requires payment of a permit fee consistent with the requirements of Chapter 

1 16, Subchapter B, Division 4, Permit Fees. 

31 16.1422. General and Special Conditions. 

The adopted new section states certain general and special conditions that will be included in permits 

issued under this subchapter. The general conditions in new $1 16.1422(b) include a report of 

construction progress, startup notification, sampling requirements, equivalency of methods, 

recordkeeping, maximum allowable emission rates, maintenance of emission control, and compliance 

with applicable rules. New 8 116.1422(c) allows special conditions that are more restrictive than those 

in this title to be attached to a permit. In response to comments, the commission added a requirement 
that an additional startup notification be submitted to any local air pollution control agencies having 

jurisdiction. 

$1 16.1424. Amendments and Alterations of Permits Issued Under this Subchapter. 

The adopted new section provides requirements for amendments or alterations of permits issued under 

this subchapter. In response to comments, the commission revised this section to clarify that 

amendments and alterations to a FutureGen permit would not be subject to a contested case hearing. 

$1 16.1426. Renewal of Permits Issued Under this Subchapter. 

The adopted new section provides for renewals of permits issued under this subchapter. 

$1 16.1428. Delegation. 

The adopted new section delegates to the executive director authority to take action on a permit issued 

under this subchapter. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, $2001.0225, and determined that the rules do not meet the definition of a 

"major environmental rule" as defined in the statute. Therefore, Texas Government Code, 

fj2001.0225, does not apply to this rulemaking. "Major environmental rulen is defined in Texas 

Government Code, $2001.0225(g)(3), as a rule the specific intent of which is to protect the 

environment or reduce risks to human health from environmental exposure, and that may adversely 

affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the 
environment, or the public health and safety of the state or a sector of the state. The adopted rules are 

intended to establish notice requirements for authorizing certain types of projects required for the 

FutureGen project. The adopted rules are only procedural rules establishing public notice requirements 

to administer the program for permitting FutureGen projects and are not specifically intended to protect 

the environment or to reduce risks to human health. The adopted rules are intended to provide an 

alternative mechanism for public participation and do not alter the underlying technical review 

requirements. Therefore, because this rulemaking will not adversely affect in a material way the 

economy, a sector of the economy, productivity, competition, jobs, the environment, or the public 

health and safety of the state or a sector of the state, the rulemaking does not fit the definition of 

"major environmental rule" in Texas Government Code, $2001.0225. 

Furthermore, the adopted rulemaking does not meet any of the four applicable requirements listed in 

Texas Government Code, 5200 1.0225(a). Texas Government Code, $2001.0225(a), only applies to a 

major environmental rule adopted by an agency, the result of which is to: 1) exceed a standard set by 

federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of 

state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a 

delegation agreement or contract between the state and an agency or representative of the federal 

government to implement a state and federal program; or 4) adopt a rule solely under the general 

powers of the agency instead of under a specific state law. 

In this case, the adopted rules do not meet any of these applicability requirements. First, the adopted 

rules are consistent with, and do not exceed, the standards set by federal law. Second, the adopted 

rules do not exceed an express requirement of state law, instead these rules implement HB 2201. 
Third, the rules do not exceed an express requirement of a delegation agreement or contract between 

the state and an agency or representative of the federal government to implement a state and federal 

program. Fourth, the commission does not adopt these rules solely under the general powers of the 

agency, but rather under the authority of THSC, 5382,0565, as added by HB 2201, which directs the 

commission, by rule, to implement reasonably streamlined processes for issuing permits required to 

construct a component of a FutureGen project, as authorized by federal law; TWC, 55.558, as 

amended by HB 2201, which directs the commission, by rule, to implement reasonably streamlined 

processes for issuing permits required to construct a component of a FutureGen project, as authorized 

by federal law; and TWC, 527.022, as added by HB 2201, which establishes the commission's 

jurisdiction over the injection of CO, produced by a clean coal project to the extent authorized by 

federal law. 

Because the adopted rules do not constitute a major environmental rule, a regulatory impact analysis is 

not required. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rules and performed an assessment of whether this rulemaking 

would constitute a takings under Texas Government Code, Chapter 2007. The adopted rules are 

intended to establish a streamlined process for authorizing certain types of projects required for the 

FutureGen project. The adopted rules are only procedural rules establishing a system to administer the 

program for permitting FutureGen projects and are not specifically intended to protect the environment 

or to reduce risks to human health. The adopted rules are intended to provide an alternative 

mechanism for public participation and do not alter the underlying technical review requirements. 
Promulgation and enforcement of the rules will not affect private real property in a manner that would 

require compensation to private real property owners under the United States Constitution or the Texas 

Constitution. The adopted rules also will not affect private real property in a manner that restricts or 

limits an owner's right to the property that would otherwise exist in the absence of the governmental 

action. Consequently, the adopted rules do not meet the definition of a takings under Texas 

Government Code, 82007.002(5). Therefore, the adopted rules will not constitute a takings under 

Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking relates to an action or actions subject to the Texas 

Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as 

amended (Texas Natural Resources Code, $533.201 et seq.), and the commission rules in 30 TAC 

Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As 

required by §281.45(a)(3), Actions Subject to Consistency with the Goals and Policies of the Texas 

Coastal Management Program (CMP), and 31 TAC 8505.1 1(b)(2), relating to Actions and Rules 

Subject to the Coastal Management Program, commission rules governing air pollutant emissions must 

be consistent with the applicable goals and policies of the CMP. The commission reviewed this 

rulemaking for consistency with the CMP goals and policies in accordance with the rules of the Coastal 

Coordination Council, and determined that the action is consistent with the applicable CMP goals and 

policies. The CMP goal applicable to this rulemaking is the goal to protect, preserve, and enhance the 

diversity, quality, quantity, functions, and values of coastal natural resource areas (3 1 TAC 

§501.12(1)). The adopted rules include procedural mechanisms to authorize new sources of air 

contaminants; however, the rules do not create any new types of authorizations for new sources of air 
contaminants. The CMP policy applicable to this rulemaking is the policy that commission rules 

comply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in 

the coastal areas (31 TAC $501.14(q)). This rulernaking complies with 40 Code of Federal 

Regulations Part 5 1, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. 

Therefore, in accordance with 31 TAC $505.22(e), the commission affirms that this rulernaking is 

consistent with CMP goals and policies. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Because new Subchapter L includes applicable requirements under 30 TAC Chapter 122, Federal 

Operating Permits Program, owners or operators subject to the Federal Operating Permit Program 

must, consistent with the revision process in Chapter 122, revise their operating permit to include the 

new Subchapter L requirements for each emission unit affected by the.addition of the requirements in 

Subchapter L at their site. 

PUBLIC COMMENT 

A public hearing for this rulernaking was held on December 20, 2005, in Austin, and the comment 

period closed on December 27, 2005. The commission received comments from EPA, Environmental 

Defense (ED), the FutureGen Texas Advisory Board (FGTAB), the Sierra Club Houston Regional 

Group (HSC), the Center for Energy and Economic Development (CEED), and the Clean Coal 

Technology Foundation of Texas (CCTFT). 
RESPONSE TO COMMENTS 

HSC supported the provisions added to Chapters 91 and 116, which implement public notice, public 

meeting opportunities, and public comment opportunities before the executive director, and indicated 

support that the commission can conduct public meetings and hear an appeal of the decision of the 

executive director. 

HSC expressed general opposition to the proposed rules that would allow a permit to be issued for a 

FutureGen project without providing the public with an opportunity to request and receive a contested 

case hearing. 

The commission is not changing the rules in response to this comment. The adopted rules 

implement HB 2201, passed by the 79th Texas Legislature. Sections 3 and 7 of HB 2201 amend 

portions of the THSC and TWC to provide that permit applications for facilities that are a 

component of the FutureGen project are not subject to contested case hearings. The commission 

is required by HB 2201 to adopt rules to implement the statutory changes specified by HB 2201. 

Under the adopted rules, the public retains the ability to participate in the permitting process by 

submitting written comments during the comment period, and/or by requesting a notice and 

comment hearing on the permit. 

HSC asked that TCEQ provide a description of the economic, social, and environmental benefits of the 

FutureGen project. 
In its findings articulated in HB 2201, the legislature described a number of economic and social 

benefits that the FutureGen project could bring to Texas, including the creation of more than 

11,000 jobs, compensation for workers exceeding $374 million, increased tax revenue of $98 

million, and an estimated total economic benefit of $1.20 billion. With respect to the 

environment, the FutureGen project has the potential to produce power with reduced emissions 

of air contaminants compared to other widely used power generation technologies, and may 

result in the subsequent wider adoption of clean coal technology in future power generating 

projects. 

HSC commented that FutureGen represents a complex, unproven set of technologies that may have 

significant impact on air quality, groundwater quality, and surface and subsurface land. HSC 

commented that an environmental impact statement is needed for any FutureGen proposal so all 

impacts can be considered by TCEQ and the public. HSC urged that TCEQ determine all air, water, 

and land environmental impacts and reveal them to the public, such that the public will have an 

opportunity to comment in an inclusive and comprehensive manner. 

As a normal part of the commission's permit review process, the environmental effects on all 

affected media will be considered. The public will have an opportunity to review and comment 

on these effects through the public notice and public comment process that is available for each 

type of applicable permit. 

HSC submitted numerous comments speculating on the effects of CO, sequestration and underground 

injection, and acknowledged that little data exists on this technology. HSC urged the commission to 
determine air, water, and land effects through its permitting authority. Examples of its concerns 

included: 1) the effects of existing wells in the carbon sequestration area; 2) the effect of CO, injection 

on saline aquifer water quality; and 3) the harm that may come to soil bacteria as a result of carbon 

sequestration. 

The commission's federally authorized Underground Injection Control (UIC) Program has 

significant experience and data relating to protection of fresh water from the potential adverse 

impact of underground injection of liquid waste, including proper evaluation of injection and 

confining zones, subsurface faults and fractures, and other wells in the area of review. While the 

commission does not have data on some of the specific CO, injection concerns listed by HSC, the 

commission notes that underground injection of CO, has been commonly used for enhanced 

recovery of oil and gas under the Railroad Commission of Texas jurisdiction without any known 

harmful effects. The commission also recognizes that the technical concerns posed by HSC are 

the subject of significant research efforts being conducted by the Texas Bureau of Economic 

Geology in association with a number of other research institutions, participating industries, and 

government agencies. The commission will review individual requests for well authorization 

under these rules using the environmentally protective rules and procedures of the UIC well 

permitting program. Therefore, the commission is not changing the rules in response to these 

comments. 

FGTAB, CCTFT, and CEED commented that proposed Chapter 116, Subchapter L should be clarified 

to ensure that the initial permitting and subsequent amendments to a FutureGen project permit are not 

subject to the contested case hearings process. FGTAB and CCTFT suggested that Chapter 116 should 
state that Subchapter L will define the complete procedural requirements that apply to the issuance of 

any or all permits for a component of the FutureGen facility. 

The commission agrees that the proposed rules should be clarified to ensure that both initial 

permitting, and amendments to a FutureGen permit, are not subject to the contested case hearing 

process. The commission is revising 55116.1402, 116.1404, and 116.1424 accordingly. 

ED commented that an exemption from contested case treatment for all amendments and alterations of 

FutureGen permits would be too broad, and suggested that an amendment or alteration should not 

qualify for streamlined permitting unless the proposed changes themselves satisfy the HB 2201 

definition of a FutureGen project component. 

In response to other comments, the commission has added language to §§116.1402, 116.1404, and 

116.1424 to clariiy that amendments and alterations of a FutureGen permit are also eligible to 

use the streamlined public participation requirements contained in Subchapter L. The 

streamlining provisions of HI3 2201 only apply to the construction or modification of a component 

of the FutureGen project. 

CEED commented that there was no need for a sunset provision in the rules, because the FutureGen 

initiative represented a one-of-a-kind project. HSC and ED commented that an expiration date should 

be included in the rules. HSC suggested an expiration date of 2010, and ED suggested an expiration 

date of January 1, 2015. 
The commission is changing the rule in response to this comment and is establishing a su~iset date 

of January 1,2018. Applications or other requests for authorization submitted after this date 

would not be excluded from contested case hearings. This change will ensure that the 

streamlined permitting processes of Chapters 91 and 116 are only used for their intended purpose 

of providing an incentive for the FutureGen project construction. 

ED commented that the proposed rules should contain a provision ensuring that the commission shall 

use public meetings, informal conferences, or advisory committees to gather the opinions and advice of 

interested persons, as mandated by HB 2201. 

The suggested provision was proposed and is being adopted in 5116.1418(11). 

ED commented that the commission should not exempt nonattainment or prevention of significant 

deterioration reviews from contested case hearings, and to do so would be inconsistent with federal 

clean air law. 

Although federal law requires the availability of a hearing for nonattainment and prevention of 

significant deterioration permits, a notice and comment style hearing is sufficient to satisfy the 

applicable federal requirements. The commission is not changing the rules in response to this 

comment. 
HSC suggested defining the terms "integrated sequestration, " "sequester, " and "carbon sequestration" 

since these terms are relevant to define eligible projects. HSC also suggested defining the term 

"carbon dioxide capture technology. " 

The commission reviewed the use of these terms in the context of the FutureGen project and 

determined that the rule language provides sufficient limits on eligible projects and that 

definitions of these terms are not necessary. The commission is not changing the rules in 

response to this comment. 

HSC questioned how the commission defines "reasonably streamlined procedures" under $1 16.1400? 

The term "reasonably streamlined procedures" refers to the altered public participation process 

for FutureGen permit applications, specifically the use of a notice and comment hearing process 

instead of a contested case hearing process. 

EPA commented that the definition of coal used in the proposed rules should be revised to match the 

definition of coal specified in 40 Code of Federal Regulations Part 60, Subpart Da, $60.41Da. 

HB 2201 specified a definition of coal to be used in association with permitting of FutureGen 

sources and the commission believes it is necessary to maintain the proposed definition of coal to 

maintain consistency with HB 2201. The commission is not changing the rules in response to this 

comment. 
FGTAB, CCTFT, and CEED suggested rephrasing $1 16.1402(b) to extend the applicability of the 

FutureGen rules to applications for permit amendments. 

The commission agrees with the suggested change and has rephrased the section accordingly. 

FGTAB, CCTFT, and CEED commented that proposed $1 16.1404 appears to limit the options for 

authorizing a component of the FutureGen project, because it only refers to permits issued under 

Subchapter L and to permits by rule under Chapter 106. FGTAB and CEED noted that other options, 

such as standard permits, should be available. 

The commission agrees that the proposed rules should be clarified to ensure that all types of 

authorization, including standard permits, are available to authorize components of the 

FutureGen project. The commission has revised 8116.1404 accordingly. 

HSC commented that $1 16.1410 should address how leaks of CO, to the atmosphere or to water would 

be addressed in the applicable permit. 

As part of the permitting process, TCEQ specifies appropriate leak detection and repair (LDAR) 

programs in situations where there is a potential for harmful leaks. These LDAR programs vary 

depending on the nature of the process and the nature of the air contaminants involved. 

However, the commission typically does not require LDAR programs for emissions of CO,, 

because the commission does not currently regulate emissions of CO, when it is directly vented to 

the atmosphere or as a fugitive emission. At this tie, the commission does not have enough 
information to specify what, if any, LDAR program will be required for any proposed FutureGen 

installation. 

EPA commented that the emissions profile in $1 16.1410(1) and (2) is based on percentages of sulfur 

and mercury concentrations found in the coal, instead of a specific limit based on control technologies, 

and allows for emissions that are too variable to ensure low emission rates. EPA suggested that a 

discussion should be provided to explain how the emission limitations in the proposed rules were 

derived. EPA also commented that a discussion should be provided to explain how the emission 

limitations for nitrogen oxides and particulate emissions in $ 116.1410 were determined. 

The emission profile specified in $116.1410 was established by HB 2201, which amended portions 

of the THSC to define the profile in statute. In general, the commission is obligated to follow the 

profile in the statute. However, in order to obtain a pennit under Chapter 116, a proposed 

facility is required to employ BACT to control emissions from the facility. If control technology 

advances to a point where BACT would result in lower emissions than the profile, the facility 

would be required to comply with a lower allowable emission rate that reflects applicable BACT. 

EPA commented that a contingency statement should be included in $1 16.1410 so that if future 

technology results in the ability to achieve lower emission rates, the regulations will be revised to 

ensure that they remain up-to-date with current technology. 

In order to obtain a permit under Chapter 116, a proposed facility is required to meet BACT, 

regardless of the emission limitations in the emission profile. If BACT would result in an 
emission rate that is lower than the rate specified in the profile, the applicant would be required 

to include BACT in the design of the facility. Because existing rules already require BACT, 

adding EPA's suggested change would be redundant. The commission is not changing the rules 

in response to this comment. 

HSC commented that $1 16.1414 does not require compliance with EPA regional haze rules or 

interstate transport rules, and that any FutureGen proposal must comply with rules under those EPA 

programs. 

A FutureGen installation is potentially subject to a wide range of state and federal regulations. 

Although 5116.1414 does not specifically refer to the regulations cited by HSC's comment, 

compliance with all applicable federal regulations is still required. The fact that 5116.1414 does 

not identify every regulation does not relieve a FutureGen source from the obligation to comply 

with all applicable regulations. It is not practical to identify every applicable rule or regulation in 

the adopted rules; therefore, the commission is not adding a reference to the specified rules. 

FGTAB and CCTFT suggested inserting the word "applicable" prior to the phrase "rules and 

regulations" in $116.1414(1) for consistency with similar language in Chapter 116, Subchapter B. 

FGTAB suggested inserting the word "significant" prior to the phrase "air contaminant" in 

$1 16.1414(2) and deleting the phrase "at least" prior to the phrase "the requirements of any 

applicable" in $1 16.1414(3) - (S), for consistency with similar language in Chapter 116, Subchapter B. 
The commission agrees with the suggested changes and has revised the indicated section 

accordingly. 

HSC commented that $1 16.1414(2) and (6) should be revised to specify that the permit will contain 

provisions for measuring the emission of air contaminants, including initial performance testing and 

emission monitoring. HSC commented that the monitoring of process variables, or parametric or 

predictive monitoring, would not be sufficient to demonstrate the performance of the technology or 

measure the actual contaminants being released. 

The commission has revised $116.1414(2) to state that the permit will contain provisions for 

measuring the emission of air contaminants as determined by the commission. The commission 

disagrees with the remainder of HSC's comment. As part of the permit review, appropriate 

methods of demonstrating compliance and monitoring compliance will be identified and 

incorporated into the permit. The commission acknowledges that the monitoring of process 

variables, or other parametric or predictive monitoring, is not suitable in every circumstance, but 

those technologies should not be excluded from possible use. 

EPA commented that §116.1414(12) should state that a proposed facility shall use lowest achievable 

emission rate (LAER) technology if the project is located in a nonattainment area. 

All projects located in nonattainment areas must comply with applicable requirements of Chapter 

116, Subchapter B, Division 5, Nonattainment Review. This includes the FutureGen project. 

Because the applicable requirements concerning nonattainment review and LAER are fairly 

detailed and are already specified in Chapter 116, Subchapter B, it would be redundant to repeat 
those requirements within Subchapter L. A reference to these nonattainment permitting 

requirements is already included in 8116.1414(7). The commission is not changing the rules in 

response to this comment. 

FGTAB, CCTFT, and CEED commented that proposed $116.1416 repeatedly refers to hearings and 

that further clarification is needed to avoid misinterpretation or conflicts. FGTAB and CEED 

suggested that the term "hearings" be defined to mean notice and comment hearings. 

The commission concurs with this comment and has added a definition of "Hearing" to 

$116.1408, to ensure that when the term is used within Subchapter L, the term will mean a notice 

and comment hearing and not a contested case hearing. 

HSC commented that the public notice requirements in $1 16.1416 for both newspaper notices and signs 

should be in at least two languages (or as many as are spoken by people in the area), similar to what 

the commission requires for federal operating permits. HSC made a similar comment on $116.1418 

concerning notices for public meetings and public hearings. 

The commission has added additional language to $116.1416 to provide for alternative language 

public notice. 

HSC commented that the commission should define the phrases "reasonably ascertainable public 

issues" and "reasonably available arguments" as used in 5116.1418(j) to provide greater clarity for the 

public. 
These phrases have the same meaning as used in the existing notice and hearing requirements of 

Chapter 122, and they have not been a signif~cant source of confusion. The commission is not 

changing the rules in response to this comment. 

HSC commented that the commission should make clear in $1 16.1422that the pennit application is a 

legal document and its conditions are legally binding on the permit holder. 

Except where otherwise noted, permits issued under Chapter 116, Subchapter L, remain subject 

to the requirements of Chapter 116, Subchapter B, New Source Review Permits. Section 

116.116(a), Changes to Facilities, requires that representations in a permit application are 

conditions upon which the permit is issued. The suggested change to $116.1422 would be 

redundant, and the commission is not changing the rules in response to this comment. 

HSC commented that $1 16.1422(b)(2)(A), which requires a notification of startup to the appropriate 

regional office, should include a similar notification requirement for local air pollution control agencies 

having jurisdiction so those local agencies would be informed and have an opportunity to observe the 

commencement of operation. 

The commission agrees with HSC's comment and is making the suggested change to the rules. 

HSC commented that documentation of compliance with permit conditions under $ 1 16.1422(b)(5)(E) 

should be maintained for at least five years, and not two years as proposed. HSC commented that the 

time period should be consistent with the five-year compliance history review. 
The two-year record retention period is consistent with the normal record retention period used 

for air permits, and the commission believes it is sufficient to provide a means to determine 

compliance. The commission is not changing the rules in response to this comment. 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, 55.103, concerning Rules, and TWC, $5.105, concerning 

General Policy, which authorize the commission to adopt rules necessary to carry out its powers and 

duties under the TWC; and under THSC, 5382.017, concerning Rules, which authorizes the 

commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The 

new sections are also adopted under THSC, 5382.002, concerning Policy and Purpose, which 

establishes the commission's purpose to safeguard the state's air resources, consistent with the 

protection of public health, general welfare, and physical property; THSC, 5382.01 1, concerning 

General Powers and Duties, which authorizes the commission to control the quality of the state's air; 

THSC, 5382.012, concerning State Air Control Plan, which authorizes the commission to prepare and 

develop a general, comprehensive plan for the control of the state's air; THSC, 5382.0518, concerning 

preconstruction permits; THSC, 5382.056, concerning notice of intent to obtain permit or permit 

review and hearing; THSC, $382.0565, concerning clean coal project permitting procedure; and TWC, 

55 38, concerning clean coal project permitting. 

The adopted new sections implement TWC, §5.558(c) and THSC, $382.0565(d). 
STAFF 

RECOMMENDATIONS 
CHAPTER 39: PUBLIC NOTICE 

SUBCHAPTER H: APPLICABILITY AND GENERAL PROVISIONS 

$$39.411, 39.419, 39.420 

$39.411. Text of Public Notice. 

(a) Applicants shall use notice text provided and approved by the agency. The executive 

director may approve changes to notice text before notice being given. 

(b) When notice of receipt of application and intent to obtain permit by publication or by 

mail is required by Subchapters H - L of this chapter (relating to Applicability and General 

Provisions, Public Notice of Solid Waste Applications, Public Notice of Water Quality 

Applications and Water Quality Management Plans, Public Notice of Air Quality Applications, 

and Public Notice of Injection Well and Other Specific Applications), Subchapter G of this 

chapter (relating to Public Notice for Applications for Consolidated Permits), or for Subchapter 

M of this chapter (relating to Mailed Notice for Radioactive Material Licenses), the text of the 

notice must include the following information: 

(1) the name and address of the agency and the telephone number of an agency 

contact from whom interested persons may obtain further information; 
(2) the name, address, and telephone number of the applicant and a description 

of the manner in which a person may contact the applicant for further information; 

(3) a brief description of the location and nature of the proposed activity; 

(4) a brief description of public comment procedures, including: 

(A) a statement that the executive director will respond to comments 

raising issues that are relevant and material or otherwise significant; and 

(B) a statement in the notice for any permit application for which there is 

an opportunity for a contested case hearing, that only disputed factual issues that are relevant 

and material to the commissions's decision that are raised during the comment period can be 

considered if a contested case hearing is granted; 

(5) a brief description of procedures by which the public may participate in the 

final permit decision and, if applicable, how to request a public meeting, contested case hearing, 

reconsideration of the executive director's decision, a notice and comment hearing, or a statement 

that later notice will describe procedures for public participation, printed in a font style or size 

that clearly provides emphasis and distinguishes it from the remainder of the notice. The notice 

should include a statement that a public meeting will be held by the executive director if 

requested by a member of the legislature who represents the general area where the facility is to 

be located or there is substantial public interest in the proposed activity; 
(6) the application or permit number; 

(7) if applicable, a statement that the application or requested action is subject to the 

Coastal Management Program and must be consistent with the Coastal Management Program goals and 

policies; 

(8) the location, at a public place in the county in which the facility is located or 

proposed to be located, at which a copy of the application is available for review and copying; 

(9) a description of the procedure by which a person may be placed on a mailing 

list in order to receive additional information about the application; 

(10) for notices of air applications: 

(A) at a minimum, a listing of criteria pollutants for which authorization 

is sought in the application which are regulated under national ambient air quality standards 

(NAAQS) or under state standards in Chapters 111,112, 113, 115, and 117 of this title (relating 

to Control of Air Pollution from Visible Emissions and Particulate Matter, Control of Air 

Pollution from Sulfur Compounds, Standards of Performance for Hazardous Air Pollutants and 

for Designated Facilities and Pollutants, Control of Air Pollution from Volatile Organic 

Compounds, and Control of Air Pollution from Nitrogen Compounds); 

(B) if notice is for applications described in §39.403(b)(11) or (12) of this 

title (relating to Applicability) or for applications submitted on or before January 1, 2018, under 
$39.404(b) of this title (relating to Applicability for Certain Initial Applications for Air Quality 

Permits for Grandfathered Facilities and for Applications for Permits for Specific Designated 

Facilities), a statement that any person is entitled to request a notice and comment hearing from 

the commission. If notice is for any other air application, the following information must be 

printed in a font style or size that clearly provides emphasis and distinguishes it from the 

remainder of the notice: 

(i) a statement that a person who may be affected by emissions of 

air contaminants from the facility or proposed facility is entitled to request a contested case 

hearing from the commission; 

(ii) a statement that a contested case hearing request must include 

the requester's location relative to the proposed facility or activity; 

(iii) a statement that a contested case hearing request should 

include a description of how the requestor will be adversely affected by the proposed facility or 

activity in a manner not common to the general public, including a description of the requestor's 

uses of property which may be impacted by the proposed facility or activity; and 

(iv) that only relevant and material issues raised during the 

comment period can be considered if a contested case hearing request is granted; 

(C) notification that a person residing within 440 yards of a concrete batch 

plant under an exemption from permitting or permit by rule adopted by the commission is an 
affected person who is entitled to request a contested case hearing; and 

(D) the statement: "The facility's compliance file, if any exists, is 

available for public review in the regional office of the Texas Commission on Environmental 

Quality"; and 

(1 1) for notices of municipal solid waste applications, a statement that a person who 

may be affected by the facility or proposed facility is entitled to request a contested case hearing from 

the commission. This statement must be printed in a font style or size that clearly provides emphasis 

and distinguishes it from the remainder of the notice; and 

(12) any additional information required by the executive director or needed to satisfy 

public notice requirements of any federally authorized program; or 

(13) for radioactive material licenses under Chapter 336 of this title (relating to 

Radioactive Substance Rules), if applicable, a statement that a written environmental analysis on the 

application has been prepared by the executive director, is available to the public for review, and that 

written comments may be submitted. 

(14) for Class 3 modifications of hazardous industrial solid waste permits, the 

statement "The permittee's compliance history during the life of the permit being modified is available 

from the agency contact person. " 

(c) Unless mailed notice is otherwise provided for under this section, the chief clerk shall 
mail Notice of Application and Preliminary Decision to those listed in 539.413 of this title (relating 

to Mailed Notice). When notice of application and preliminary decision by publication or by mail 

is required by Subchapters G - L of this chapter, the text of the notice must include the following 

information: 

(1) the information required by subsection (b)(l) - (12) of this section; 

(2) a brief description of public comment procedures, including a description of 

the manner in which comments regarding the executive director's preliminary decision may be 

submitted, or a statement in the notice for any permit application for which there is an 

opportunity for contested case hearing, that only relevant and material issues raised during the 

comment period can be considered if a contested case hearing is granted. The public comment 

procedures must be printed in a font style or size that clearly provides emphasis and distinguishes 

it from the remainder of the notice; 

(3) if the application is subject to final approval by the executive director under 

Chapter 50 of this title (relating to Action on Applications), a statement that the executive 

director may issue frnal approval of the application unless a timely contested case hearing request 

or a timely request for reconsideration (if applicable) is filed with the chief clerk after transmittal 

of the executive director's decision and response to public comment; 

(4) a summary of the executive director's preliminary decision and whether the 

executive director has prepared a draft permit; 
(5) the location, at a public place in the county in which the facility is located or 

proposed to be located, at which a copy of the complete application and the executive director's 

preliminary decision are available for review and copying; 

(6) the deadline to file comments or request a public meeting. The notice should 

include a statement that a public meeting will be held by the executive director if requested by a 

member of the legislature who represents the general area where the facility is to be located or 

there is substantial public interest in the proposed activity; and 

(7) for radioactive material licenses under Chapter 336 of this title, if applicable, a 

statement that a written environmental analysis on the application has been prepared by the executive 

director, is available to the public for review, and that written comments may be submitted. 

(d) When notice of a public meeting or notice of a hearing by publication or by mail is 

required by Subchapters G - L of this chapter, the text of the notice must include the following 

information: 

(1) the information required by subsection (b)(l) - (3), (6) - (a), and (12) of this 

section; 

(2) the date, time, and place of the meeting or hearing, and a brief description of 

the nature and purpose of the meeting or hearing, including the applicable rules and procedures; 

and 
(3) for notices of public meetings only, a brief description of public comment 

procedures, including a description of the manner in which comments regarding the executive 

director's preliminary decision may be submitted and a statement in the notice for any permit 

application for which there is an opportunity for contested case hearing, that only relevant and 

material issues raised during the comment period can be considered if a contested case hearing is 

granted. 

$39.419. Notice of Application and Preliminary Decision. 

(a) After technical review is complete, the executive director shall file the preliminary 

decision and the draft permit with the chief clerk, except for air applications under subsection 

(e)(l) of this section. The chief clerk shall mail the preliminary decision concurrently with the 

Notice of Application and Preliminary Decision. Then, when this chapter requires notice under 

this section, notice must be given as required by subsections (b) - (e) of this section. 

(b) The applicant shall publish Notice of Application and Preliminary Decision at least 

once in the same newspaper as the Notice of Receipt of Application and Intent to Obtain Permit, 

unless there are different requirements in this section or a specific subchapter in this chapter for 

a particular type of permit. The applicant shall also publish the notice under $39.4050 of this 

title (relating to General Notice Provisions), if applicable. 

(c) Unless mailed notice is otherwise provided under this section, the chief clerk shall mail 

Notice of Application and Preliminary Decision to those listed in 539.413 of this title (relating to 

Mailed Notice). 
(d) The notice must include the information required by §39.411(c) of this title (relating 

to Text of Public Notice). 

(e) For air applications the following apply. 

(1) The applicant is not required to publish Notice of Application and Preliminary 

Decision, if: 

(A) no hearing request is submitted in response to the Notice of Receipt of 

Application and Intent to Obtain Permit; 

(B) a hearing request is submitted in response to the Notice of Receipt of 

Application and Intent to Obtain Permit and the request is withdrawn before the date the 

preliminary decision is issued; 

(C) the application is for any amendment, modifcation, or renewal 

application that would not result in an increase in allowable emissions and would not result in the 

emission of an air contaminant not previously emitted unless the application involves a facility for 

which the applicant's compliance history contains violations which are unresolved and which 

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; or 

(D) the application is for initial issuance of a permit described in 
§39.403(b)(11) or (12) of this title (related to Applicability) or 539.404 of this title (relating to 

Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities 

and for Applications for Permits for Specific Designated Facilities); 

(2) If notice under this section is required, the agency shall mail notice according 

to 839.602 of this title (relating to Mailed Notice). 

(3) Notice of Application and Preliminary Decision must be published as specified 

in Subchapter K of this chapter (relating to Public Notice of Air Quality Applications) and, as 

applicable, under §39.405(h) of this title for permits that are not exempt under paragraph (l)(A) 

- (D) of this subsection or are for the following federal preconstruction approvals: 

(A) applications under Chapter 116, Subchapter B, Division 5 of this title 

(relating to Nonattahunent Review); 

(B) applications under Chapter 116, Subchapter B, Division 6 of this title 

(relating to Prevention of Significant Deterioration Review); and 

(C) applications under Chapter 116, Subchapter C of this title (relating to 

Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources 

(FCAA, §112(g), 40 CFR Part 63)). 

(4) If the applicant is seeking authorization by permit, registration, license, or 

other type of authorization required to construct, operate, or authorize a component of the 
FutureGen project as defmed in 591.30 of this title (relating to Defdtions), any application 

submitted on or before January 1, 2018, shall be subject to the public notice and participation 

requirements in Chapter 116, Subchapter L of this title (relating to Permits for Specific 

Designated Facilities). 

539.420. Transmittal of the Executive Director's Response to Comments and Decision. 

(a) When required by and subject to 555.156 of this title (relating to Public Comment 

Processing), after the close of the comment period, the chief clerk shall transmit to the people 

listed in subsection (b) of this section the following information: 

(1) the executive director's decision; 

(2) the executive director's response to public comments; 

(3) instructions for requesting that the commission reconsider the executive 

director's decision; and 

(4) instructions for requesting a contested case hearing. 

(b) The following persons shall be sent the information listed in subsection (a) of this 

section: 

(1) the applicant; 
(2) any person who requested to be on the mailing list for the permit action; 

(3) any person who submitted comments during the public comment period; 

(4) any person who timely filed a request for a contested case hearing; 

(5) Office of the Public Interest Counsel; and 

(6) Office of Public Assistance. 

(c) For air applications which meet the following conditions, items listed in subsection 

(a)(3) and (4) of this section are not required to be included in the transmittals: 

(1) applications for initial issuance of permits under Texas Health and Safety Code, 

55382.05183, 382.05185(c) and (d), 382.05186, and 382.0519; 

(2) applications for initial issuance of electric generating facility permits under Texas 

Utilities Code, 539.264; 

(3) applications for which no timely hearing request is submitted in response to 

the Notice of Receipt of Application and Intent to Obtain a Permit; 

(4) applications for which a timely hearing request is submitted in response to the 

Notice of Receipt of Application and Intent to Obtain Permit and the request is withdrawn before 
the date the preliminary decision is issued; or 

(5) the application is for any amendment, modification, or renewal application that 

would not result in an increase in allowable emissions and would not result in the emission of an air 

contaminant not previously emitted unless the application involves a facility for which the applicant's 

compliance history contains violations which are unresolved and which 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. 

(d) For applications for which all timely comments and requests have been withdrawn before 

the filing of the executive director's response to comments, the chief clerk shall transmit only the items 

listed in subsection (a)(l) and (2) of this section and the executive director may act on the application 

under 550.133 of this title (relating to Executive Director Action on Application or WQMP Update). 

(e) For post-closure order applications under Subchapter N of this chapter (relating to Public 

Notice of Post-Closure Orders), the chief clerk shall transmit only items listed in subsection (a)(l) and 

(2) of this section to the people listed in subsection (b)(l) - (3), (5), and (6) of this section. 

(f) For applications for permits under Chapter 116, Subchapter L of this title (relating to 

Permits for Specific Designated Facilities), the chief clerk will not transmit the item listed in subsection 

(a)(4) of this section. 
CHAPTER 116: CONTROL OF AIR POLLUTION BY PERMITS FOR 

NEW CONSTRUCTION OR MODIFICATION 

SUBCHAPTER L: PERMITS FOR SPECIFIC DESIGNATED FACILITIES 

$$116.1400, 116.1402, 116.1404, 116.1406, 116.1408, 116.1410, 116.1414, 116.1416, 

116.1418, 116.1420, 116.1422, 116.1424, 116.1426, 116.1428 

$116.1400. Purpose. 

The purpose of this subchapter is to establish, by rule, reasonably streamlined procedures for 

the commission to issue authorization for projects within the commission's jurisdiction under Texas 

Health and Safety Code, Chapters 36 1 and 382 and Texas Water Code, Chapters 5 and 26. 

$ 1 16.1402. Applicability. 

(a) This subchapter applies to applications for authorization required to construct and operate a 

component of the FutureGen project, and to applications to authorize modification of a component of 

the FutureGen Project. 

(b) This subchapter does not apply to an application for a permit to construct or modify a new 

or existing coal-fired electric generating facility that will use pulverized or supercritical pulverized 

coal. 

(c) This subchapter does not apply to any applications or other requests for authorization 

1 
submitted after January 1, 2018. 

8 116.1404. Permit Required. 

Any person who plans to construct or modify a component of a project as designated in 

$1 16.1402 of this title (relating to Applicability) that may emit air contaminants into the air of this state 

must obtain a permit under this chapter or qualify for a permit by rule under Chapter 106 of this title 

(relating to Permits by Rule). 

8116.1406. Compliance History. 

For all permit reviews under this subchapter, compliance history reviews are required under 

Chapter 60 of this title (relating to Compliance History). 

5116.1408. Definitions. 

The following words and terms, when used in this subchapter, have the following meanings, 

unless the context clearly indicates otherwise. 

(1) Clean coal project--The installation of one or more components of the coal-based 

integrated sequestration and hydrogen research project to be built in partnership with the United States 

Department of Energy, commonly referred to as the FutureGen project. The term includes the 

construction or modification of a facility for electric generation, industrial production, or the 
production of steam as a byproduct of coal gasification to the extent that the facility installs one or 

more components of the FutureGen project. 

(2) Coal--All forms of coal, including lignite. 

(3) Component of the FutureGen project--A process, technology, or piece of 

equipment that: 

(A) is designed to employ coal gasification technology to generate electricity, 

hydrogen, or steam in a manner that meets the FutureGen project profile; 

(B) is designed to employ fuel cells to generate electricity in a manner that 

meets the FutureGen project profile; 

(C) is designed to employ a hydrogen-fueled turbine to generate electricity 

where the hydrogen is derived from coal in a manner that meets the FutureGen project profile; 

(D) is designed to demonstrate the efficacy at an electric generation or 

industrial production facility of a carbon dioxide capture technology in a manner that meets the 

FutureGen project profile; 

(E) is designed to sequester a portion of the carbon dioxide captured from an 

electric generation or industrial production facility in a manner that meets the FutureGen project profile 
in conjunction with appropriate remediation plans and appropriate techniques for reservoir 

characterization, injection control, and monitoring; 

(F) is designed to sequester carbon dioxide as part of enhanced oil recovery in 

a manner that meets the FutureGen project profile in conjunction with appropriate techniques for 

reservoir characterization, injection control, and monitoring; 

(G) qualifies for federal funds designated for the FutureGen project; 

(H) is required to perform the sampling, analysis, or research necessary to 

submit a proposal to the United States Department of Energy for the FutureGen project; or 

(I) is required in a final United States Department of Energy request for 

proposals for the FutureGen project or is described in a final United States Department of Energy 

request for proposals as a desirable element to be considered in the awarding of the project. 

(4) Designated project--Any project subject to the jurisdiction of the commission and 

designated by the legislature as subject to the alternate public notice requirements in this subchapter. 

(5) FutureGen project--A common reference to the coal-based integrated 

sequestration and hydrogen project to be built in partnership with the United States Department of 

Energy. 
(6) FutureGen project profde--A standard or standards relevant to a component of 

the FutureGen project, as provided in a final or amended United States Department of Energy request 

for proposals or contract. 

(7) Hearing--A notice and comment hearing and not a contested case hearing. 

$116.1410. Emissions Profde for FutureGen Projects. 

If the United States Department of Energy does not specify an emissions profile for the 

FutureGen project, emissions of air contaminants from a component of a FutureGen project shall equal 

no more than: 

(1) 1 % of the average sulphur content of the coal or coals used for the generation of 

electricity at the component; 

(2) 10% of the average mercury content of the coal or coals used for the generation of 

electricity at the component; 

(3) 0.05 pounds of nitrogen oxides per million British thermal units (MMBTU) of 

energy produced at the component; and 

(4) 0.005 pounds of particulate matter per MMBTU of energy produced at the 

component. 
$116.1414. Applications for Facilities that are Components of a Designated Project. 

Any application submitted under $1 16.1404 of this title (relating to Permit Required) must 

include a completed Form PI-1, General Application for Air Preconstruction Permits and Amendments. 

The Form PI-1 must be signed by an authorized representative of the applicant. The Form PI-1 

specifies additional support information that must be provided before the application is deemed 

complete. In order to be granted a permit, the applicant for a project as designated in $1 16.1402(a) of 

this title (relating to Applicability) shall submit information to the commission that demonstrates that all 

of the following are met. 

(1) Protection of public health and welfare. The emissions from the facility will 

comply with all applicable rules and regulations of the commission and with the intent of Texas Health 

and Safety Code, Chapter 382, the Texas Clean Air Act (TCAA), including protection of the health 

and physical property of the people. 

(2) Measurement of emissions. The permit will have provisions for measuring the 

emission of significant air contaminants as determined by the commission. These provisions may 

include the installation of sampling ports on exhaust stacks and construction of sampling platforms in 

accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling 

Procedures Manual," portable analyzers, or emissions calculations if a known process variable is 

monitored. 

(3) New Source Performance Standards (NSPS). The emissions from each affected 

6 
facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet the requirements of any 

applicable NSPS as listed under 40 CFR Part 60, promulgated by the United States Environmental 

Protection Agency (EPA) under the authority granted under Federal Clean Air Act (FCAA), $1 11, as 

amended. 

(4) National Emission Standards for Hazardous Air Pollutants (NESHAPs). The 

emissions from each facility as defined in 40 CFR Part 61 will meet the requirements of any applicable 

NESHAPs, as listed under 40 CFR Part 61, promulgated by EPA under the authority granted under 

FCAA, $ 1 12, as amended. 

(5) NESHAPs for source categories. The emissions from each affected facility shall 

meet the requirements of any applicable maximum achievable control technology standard as listed 

under 40 CFR Part 63, promulgated by EPA under FCAA, $112, or as listed in Chapter 113, 

Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for 

Source Categories (FCAA, $1 12, 40 CFR Part 63)). 

(6) Performance demonstration. The facility will achieve the performance specified in 

the permit application. The commission may require the applicant to submit additional engineering 

data after the permit has been issued in order to demonstrate further that the facility will achieve the 

performance specified in the permit. In addition, the commission may require initial compliance 

testing to determine ongoing compliance through engineering calculations based on measured process 

variables, parametric or predictive monitoring, stack monitoring, or stack testing. 
(7) Nonattainrnent review. A facility in a nonattainment area shall comply with all 

applicable requirements under Subchapter B, Division 5 of this chapter (relating to Nonattainment 

Review). 

(8) Prevention of significant deterioration review. A facility in an attainment area 

shall comply with all applicable requirements under Subchapter B, Division 6 of this chapter (relating 

to Prevention of Significant Deterioration Review). 

(9) Air dispersion modeling or ambient monitoring. The commission may require 

computerized air dispersion modeling andlor ambient monitoring to determine the air quality impacts 

from the facility. 

(10) Federal standards of review for constructed or reconstructed major sources of 

hazardous air pollutants. If the facility is an affected source as defined in $1 16.15(1) of this title 

(relating to Section 112(g) Definitions), the affected source shall comply with all applicable 

requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations 

Governing Constructed or Reconstructed Major Sources (FCAA, $1 12(g), 40 CFR Part 63)). 

(1 1) Application content. In addition to any other requirements of this subchapter, the 

applicant shall: 

(A) identify each facility to be included in the permit; 
(B) identify the air contaminants emitted; and 

(C) provide emission rate calculations. 

(12) Best available control technology (BACT). The proposed facility will utilize 

BACT, with consideration given to the technical practicability and economic reasonableness of 

reducing or eliminating the emissions from the facility. 

0116.1416. Public Notice. 

(a) The executive director shall direct the applicant to publish a notice of draft permit and 

preliminary decision, at the applicant's expense, in the public notice section of one issue of a 

newspaper of general circulation in the municipality in which the site or proposed site is located, or in 

the municipality nearest to the location of the site or proposed site. The executive director shall direct 

the applicant to make a copy of the application and draft permit available for review and copying at a 

public place in the county in which the site is located or proposed to be located. The notice shall 

contain the following information: 

(1) the permit application number; 

(2) the applicant's or permit holder's name, address, and telephone number and a 

description of the manner in which a person may contact the applicant or permit holder for further 

information; 
(3) a description of the location of the site or proposed location of the site; 

(4) a description of the activity or activities involved in the permit application; 

(5) the location and availability of the following: 

(A) the complete permit application; 

(B) the draft permit; 

(C) all other relevant supporting materials in the public files of the agency; 

(6) a description of the comment procedures, including the duration of the public 

notice comment period and procedures to request a hearing printed in a font style or size that clearly 

provides emphasis and distinguishes it from the remainder of the notice; 

(7) a statement that a person who may be affected by the emission of air pollutants 

from the facility or facilities is entitled to request a notice and comment hearing, under 51 16.1418 of 

this title (relating to Public Participation), printed in a font style or size that clearly provides emphasis 

and distinguishes it from the remainder of the notice; 

(8) a description of the procedure by which a person may be placed on a mailing list in 

order to receive additional information about the application or draft permit; 
(9) if applicable, the time and location of any public meeting; and 

(10) the name, address, and phone number of the commission to be contacted for 

further information. 

(b) The applicant shall submit a copy of the public notice and date of publication to the 

executive director and any local air pollution control agencies having jurisdiction over the site. 

(c) The applicant shall submit a statement to the executive director certifying that the sign 

required by subsection (e) of this section has been posted consistent with the provisions of that 

subsection. 

(d) The executive director shall make available for public inspection the draft permit and the 

complete application throughout the comment period during business hours at the commission's central 

office and at the appropriate commission regional office where the site is located. 

(e) At the applicant's expense, a sign shall be placed at the site declaring the filing of an 

application for a permit and stating the manner in which the executive director may be contacted for 

further information. 

(1) The sign shall be provided by the applicant and shall substantially meet the 

following requirements. 
(A) The sign shall consist of dark lettering on a white background and shall be 

not smaller than 18 inches by 28 inches and all lettering shall be no less than 1-112 inches in size and 

block printed capital lettering. 

(B) The sign shall be headed by the words "PROPOSED AIR QUALITY 

PERMIT. " 

(C) The sign shall include the words "APPLICATION NO. " and the number 

of the permit application. 

(D) The sign shall include the words "for further information contact." 

(E) The sign shall include the words "TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY, " and the address of the appropriate commission regional office. 

(F) The sign shall include the phone number of the appropriate commission 

regional office. 

(G) The sign shall include the name of the company applying for the permit. 

(2) The sign shall be in place by the date of publication of the newspaper notice and 

shall remain in place and legible throughout the period of public comment. 
(3) The sign placed at the site shall be located at or near the site's main entrance, 

provided that the sign is legible from the public street. If the sign would not be legible from the public 

street, then the sign shall be placed within ten feet of a property line paralleling a public street. 

(A) The executive director may approve variations, if the applicant has 

demonstrated that it is not practical to comply with the specific sign-posting requirements. 

(B) Alternative sign-posting plans proposed by the applicant must be at least as 

effective in providing notice to the public. 

(C) The executive director shall approve the variations before signs are 

posted. 

(0 The executive director shall receive public comment for 30 days after the notice of the 

public comment period is published. During the comment period, any person may submit written 

comments on the draft permit. 

(g) The draft permit may be changed based on comments. 

(h) Bilingual public notice requirements of this subsection are applicable when either the 

elementary school or the middle school located nearest to the facility or proposed facility provides a 

bilingual education program as required by Education Code, Chapter 29, Subchapter B, and 19 TAC 

§89.1205(a) (relating to Required Bilingual Education and English as a Second Language Programs), 
or if either school received a waiver for a required bilingual education program under the provisions of 

19 TAC §89.1205(g). Schools not governed by the provisions of 19 TAC 589.1205 shall not be 

considered in determining applicability of the requirements of this section. Elementary or middle 

schools that offer English as a second language under 19 TAC §89.1205(d), and are not otherwise 

affected by 19 TAC §89.1205(a), will not have to meet the requirements of subsection (a) of this 

section. If the notices required by this section and §116.1418 of this title are combined, the combined 

notice is subject to the requirements of this section. Each affected facility shall meet the following 

requirements. 

(1) At the applicant's expense, an additional notice shall be published at least once in 

each alternate language in which the bilingual education program is taught. If the nearest elementary 

or middle school received a waiver for the requirements of 19 TAC §89.1205(a) under 19 TAC 

§89.1205(g), the notice shall be published in the alternate languages in which the bilingual education 

program would have been taught had the school not received a waiver for the bilingual education 

program. 

(2) Each notice under this subsection shall be published in a newspaper or publication 

that is published in the alternate language in which public notice is required. 

(3) The newspaper or publication must be of general circulation in the municipality or 

county in which the facility is located or proposed to be located. 

(4) The requirements of this section are waived for each language in which no 
publication exists, or if the publishers of all alternate language publications refuse to publish the notice. 

(5) Notice under this subsection shall only be required to be published within the 

United States. 

(6) If the alternate language publication is published less frequently than once a month, 

this notice requirement may be waived by the executive director on a case-by-case basis. 

(7) Each alternate language publication shall follow the requirements of this section 

not otherwise .inconsistent with this subsection. 

(8) At the applicant's expense, an additional sign shall be posted at the site in each 

alternate language in which the bilingual education program is taught. If the nearest elementary or 

middle school received a waiver for the requirements of 19 TAC §89.1205(a) under 19 TAC 

§89.1205(g), the alternate language signs shall be posted in the alternate languages in which the 

bilingual education program would have been taught had the school not received a waiver for the 

bilingual education program. 

(9) The alternate language signs shall be posted adjacent to each English language sign 

required in public notice. 

(10) The alternate language signs shall meet all other requirements of this section. 
$116.1418. Public Participation. 

(a) With the exception of the permitting procedural requirements specified in any other chapter 

of this title, permits authorized under this subchapter are not subject to the requirements relating to a 

contested case hearing under Texas Health and Safety Code, Chapter 382; Texas Water Code; or 

Texas Government Code, Chapter 2001, Subchapters C - G. Permit applications under this chapter 

shall be subject to a notice and comment hearing as specified in subsections (b) - (n) of this section, as 

well as any applicable requirements in Chapters 39 and 55 of this title (relating to Public Notice and 

Requests for Reconsideration and Contested Case Hearings; Public Comment). 

(b) Any hearing regarding a permit will be conducted under the procedures in this section and 

not under the Administrative Procedure Act. 

(c) Any person who may be affected by emissions from a site regulated under this subchapter 

may request the executive director to hold a hearing on the draft permit. The request must be made 

during the 30-day public comment period. 

(d) The executive director shall decide whether to conduct a hearing. The executive director 

is not repired to hold a hearing if the basis of the request by a person who may be affected by 

emissions from a site is determined to be unreasonable. If a hearing is requested by a person who may 

be affected by emissions from a site regulated under this subchapter, and that request is reasonable, the 

executive director shall conduct a hearing. 
(e) At the applicant's expense, notice of a hearing on a draft permit must be published in the 

public notice section of one issue of a newspaper of general circulation in the municipality in which the 

site or proposed site is located, or in the municipality nearest to the location of the site or proposed 

site. The notice must be published at least 30 days before the date of the hearing. The notice must 

include the following: 

(1) the time, place, and nature of the hearing; 

(2) a brief description of the purpose of the hearing; and 

(3) the name and phone number of the commission to be contacted to verify that a 

hearing will be held. 

(f) The applicant shall submit a copy of the notice of hearing and date of publication to the 

executive director and all local air pollution control agencies having jurisdiction in the county in which 

the site is located. 

(g) At the executive director's discretion, the hearing notice may be combined with the notice 

of the draft permit required by this subchapter. 

(h) Any person, including the applicant, may submit oral or written statements and data 

concerning the draft permit. 
(1) Reasonable time limits may be set for oral comments, and the submission of 

comments in writing may be required. 

(2) The period for submitting written comments is automatically extended to the close 

of any hearing. 

(3) At the hearing, the period for submitting written comments may be extended 

beyond the close of the hearing. 

(i) A tape recording or written transcript of the hearing must be made available to the public. 

(j) Any person, including the applicant, who believes that any condition of the draft permit is 

inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all 

reasonably ascertainable issues and submit all reasonably available arguments supporting that position 

by the end of the public comment period. 

(k) The executive director shall keep a record of all comments received and issues raised in 

the hearing, This record must be made available to the public. 

(1) The draft permit may be changed based on comments. 

(m) After the public comment period or the conclusion of any notice and comment hearing, 

the chief clerk of the commission shall send by first-class mail the executive director's decision, the 
executive director's response to any comments submitted during the comment period or at the public 

hearing specified in this section, and identification of any change in the condition of the draft permit 

and the reasons for the change to any person who commented during the public comment period or at 

the hearing, and to the applicant. 

(n) The commission shall use public meetings, informal conferences, or advisory committees 

to gather the opinions and advice of interested persons for all permits issued under this subchapter. 

(1) Any public meetings held in accordance with this subsection shall follow the notice 

and comment hearing procedures in subsection (a) - (m) of this section. 

(2) The executive director shall hold a public meeting: 

(A) on the request of a member of the legislature who represents the general 

area in which the facility is located or proposed to be located; or 

(B) if the executive director determines that there is substantial public interest 

in the proposed activity. 

5116.1420. Permit Fee. 

(a) Fees required. Any person who applies for a permit under this subchapter must remit a fee 

as provided in Chapter 116, Subchapter B, Division 4 of this title (relating to Permit Fees) at the time 
of application for such permit. 

(b) Payment of fees. All permit fees must be remitted in the form of a check or money order 

made payable to the "Texas Commission on Environmental Quality" and delivered to the Texas 

Commission on Environmental Quality, P. 0. Box 13088, MC 214, Austin, Texas 787 11-3088. 

Required fees must be received before the commission will begin examination of the application. 

5116.1422. General and Special Conditions. 

(a) Permits issued under this subchapter may contain general and special conditions. The 

holders of a permit under this subchapter shall comply with any and all such conditions. 

(b) Holders of permits issued under this subchapter shall comply with the following general 

conditions, regardless of whether they are specifically stated within the permit document. 

(I) Report of construction progress. The permit holder shall report start of 

construction, construction interruptions exceeding 45 days, and completion of construction. The report 

shall be given to the appropriate regional office of the commission not later than 15 working days after 

occurrence of the event. 

(2) Startup notification. 

(A) The permit holder shall notify the appropriate regional office of the 

20 
commission, and any local air pollution control agencies having jurisdiction, prior to the 

commencement of operations of the facilities authorized by the permit. The notification must be made 

in such a manner as to allow a representative of the commission and a representative of any local air 

pollution control agency having jurisdiction to be present at the commencement of operations. 

(B) The permit holder shall provide a separate notification for the 

commencement of operations for each unit of phased construction, which may involve a series of units 

commencing operations at different times. 

(C) Prior to operation of the facilities authorized by the permit, the permit 

holder shall identify to the commission's Office of Permitting, Remediation, and Registration the 

source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter H, 

Division 3 of this title (relating to Mass Emissions Cap and Trade Program). 

(3) Sampling requirements. 

(A) If sampling is required, the permit holder shall contact the commission's 

Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and 

procedures. 

(B) All sampling and testing procedures must be approved by the executive 

director and coordinated with the appropriate regional office of the commission. 
(C) The permit holder is also responsible for providing sampling facilities and 

conducting the sampling operations, or contracting with an independent sampling consultant. 

(4) Equivalency of methods. The permit holder must demonstrate or otherwise justify 

the equivalency of emission control methods, sampling or other emission testing methods, and 

monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. 

Alternative methods shall be applied for in writing and must be reviewed and approved by the 

executive director prior to using these methods in fulfilling any requirements of the permit. 

(5) Recordkeeping. The permit holder shall: 

(A) maintain a copy of the permit along with records containing the 

information and data sufficient to demonstrate compliance with the permit, including production 

records and operating hours; 

(B) keep all required records in a file at the facility site. If, however, the 

facility site normally operates unattended, records must be maintained at an office within Texas having 

day-to-day operational control of the facility site; 

(C) make the records available at the request of the executive director or any 

local air pollution control agency having jurisdiction over the site. Upon request, the commission shall 

make any such records of compliance available to the public in a timely manner; 
(D) comply with any additional recordkeeping requirements specified in 

special conditions attached to the permit; 

(E) retain information in the file for at least two years following the date that 

the information or data is obtained; and 

(F) for persons certifying and registering a federally enforceable emission 

limitation in accordance with 5 1 16.6 1 1 of this title (relating to Registration To Use a Standard Permit), 

retain all records demonstrating compliance for at least five years. 

(6) Maximum allowable emission rates. The total emissions of air contaminants from 

any of the sources of emissions must not exceed the values stated on the table attached to the permit 

entitled "Emission Sources--Maximum Allowable Emission Rates. " 

(7) Maintenance of emission control. The permitted facilities shall not be operated 

unless all air pollution emission capture and abatement equipment is maintained in good working order 

and operating properly during normal facility operations. The permit holder shall provide notification 

for emissions events and maintenance in accordance with Chapter 101, Subchapter F of this title 

(relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities. 

(8) Compliance with rules. 

(A) Acceptance of a permit by an applicant constitutes an acknowledgment and 

23 
agreement that the permit holder will comply with all rules, regulations, and orders of the commission 

issued in conformity with Texas Health and Safety Code, Chapter 382, Texas Clean Air Act, and the 

conditions precedent to the granting of the permit. 

(B) If more than one state or federal rule or regulation or permit condition are 

applicable, the most stringent limit or condition shall govern and be the standard by which compliance 

shall be demonstrated. 

(C) Acceptance includes consent of the executive director to the entrance of 

commission employees and agents into the permitted premises at reasonable times to investigate 

conditions relating to the emission or concentration of air contaminants, including compliance with the 

permit. 

(c) Special conditions. The holders of permits issued under this subchapter shall comply with 

all special conditions contained in the permit document. 

(I) Special conditions may be attached to a permit that are more restrictive than the 

requirements of this title. 

(2) Special conditions for written approval. 

(A) The executive director may require as a special condition that the permit 

holder obtain written approval before constructing a source under: 
(i) a standard permit in accordance with Subchapter F of this chapter 

(relating to Standard Permits); or 

(ii) a permit by rule in accordance with Chapter 106 of this title 

(relating to Permits by Rule). 

(B) Written approval may be required if the executive director specifically 

finds that an increase of a particular pollutant could either: 

(i) result in a significant impact on the air environment; or 

(ii) cause the facility to become subject to review in accordance with: 

(I) Subchapter C of this chapter (relating to Hazardous Air 

Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, $1 12(g), 40 

CFR Part 63)); or 

(11) the provisions in Subchapter B, Divisions 5 and 6 of this 

chapter (relating to Nonattainment Review and Prevention of Significant Deterioration Review). 

5116.1424. Amendments and Alterations of Permits Issued Under This Subchapter. 

The owner or operator planning the modification of a facility permitted under this subchapter 

25 
must comply with the requirements of Subchapter B of this chapter (relating to New Source Review 

Permits) before work begins on the construction of the modification. Amendments and alterations for 

permits issued under this subchapter are subject to the requirements of Subchapter B of this chapter, 

except that the public notice and public participation requirements of this subchapter shall apply instead 

of any public notification or public comment procedures required by Subchapter B of this chapter. 

0116.1426. Renewal of Permits Issued Under This Subchapter. 

Permits issued under this subchapter shall be renewed in accordance with the requirements of 

Subchapter D of this chapter (relating to Permit Renewals). 

0116.1428. Delegation. 

The commission delegates to the executive director the authority to take any action on a permit 

issued under this subchapter. 
ORDER ADOPTING NEW, AMENDED, AND REPEALED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2005-1620-RUL 

On February 22, 2006, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended 55 39.403,39.411,39.419, and 39.420, the repeal of 5 39.404, and new 

5 39.404 in 30 Tex. Adrnin. Code Chapter 39, concerning Public Notice, Subchapter H, concerning Applicability 

and General Provisions; and 55 116.1400, 116.1402, 116.1404, 116.1406, 116.1408, 116.1410, 116.1414, 

116.1416, 116.1418, 116.1420, 116.1422, 116.1424, 116.1426, and 116.1428 of 30 Tex. Adrnin. Code Chapter 

116, concerning Control of Air Pollution by Permits for New Construction or Modification, Subchapter L, 

concerning Permits for Designated Facilities. The Commission adopts these new, amended, and repealed sections 

in Chapter 39, concerning Public Notice, Subchapter H, concerning Applicability and General Provisions; and 30 

TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, 

Subchapter L, concerning Pennits for Designated Facilities. Certain provisions of the rules will be submitted to the 

United States Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP), 

specifically 5 39.403@)(8) - (10) and new (f), the repeal of 5 39.404, and new 5 39.404. The commission 

withdraws §§ 39.41 1,39.419, and 39.420 as submitted to EPA on July 3 1,2002, and submits §§ 39.4 1 l(a), (b)(l) 

- (6), (8) - (lo), (c)(l) - (6), and (d); 39.419(a), (b), (d), and (e); and 39.420(a), @), and (c)(3) and (4) as a 

revision to the SIP. The rule changes in Chapters 39 and 116 implement House Bill 2201, passed by the 79th 

Legislature, 2005, which directs the commission to establish, by rule, streamlined permitting procedures for 

FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide 

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration 

project that is a partnership between industry participants and the United States Department of Energy. 

Under Tex. Health & Safety Code Ann. 55 382.011, 382.012, and 382.023 (Vernon 2001), the 

Commission has the authority to control the quality of the state's air and to issue orders consistent with the policies 

and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed rules were 

published for cormnent in the November 25, 2005, and December 16, 2005, issues of the Texas Register (30 

TexReg 783 1, 8401). 

Pursuant to Tex. Health & Safety Code Ann. 5 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 

(Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations 5 51.102 and after proper notice, the 

Coinmission conducted a public hearing to consider the new, amended, and repealed rules, and revisions to the SIP. 

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date of the 

hearing. A public hearing was held in Austin, Texas on December 20, 2005. 

The Commission circulated hearing notices of its intended action to the public, including interested persons, 

the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The public was 

invited to submit data, views, and recommendations on the proposed new, amended, and repealed rules and SIP 

revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled hearing, 
copies of the proposed (new, amnended, and repealed rules and SIP revisions were available for public inspection at 

the Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed new, amnended, and 

repealed rules and SIP revisions were submitted to the Commission during the comment period, and were 

considered by the Commission as reflected in the analysis of testimony incorporated by reference to this Order. 

The Commission finds that the analysis of testimony includes the names of all interested groups or associations 

offering comment on the proposed new, amended, and repealed rules and SIP revisions and their position 

concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the new, amended, and repealed rules and 

revisions to the SIP incorporated by reference to this Order are hereby adopted. The Commission further 

authorizes staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 

requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are 

incorporated by reference in this Order as if set forth' at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the Chairman 

should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, to the Regional 

Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, 9 110, 

codified at 42 U.S. Code Ann. 7410 - 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, Tex. 

Gov't Code, § 2001.033 (Vernon 2000 & Vernon Supp. 2005). 

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, the 

invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: MAR 0 8 2006 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
28 TAC §5.4501

The amendments are adopted pursuant to Insurance Code Article 21.49 and §36.001. Pursuant to Article 21.49 §8, the Commissioner is authorized to promulgate policy forms and endorsements for use by the TWIA in providing windstorm and hail insurance coverage without regard to other forms led with, approved

by, or promulgated by the Commissioner for use in this state,

and further, the Commissioner is authorized to approve, modify,

or disapprove every manual of classications, rules, rates, rating

plans, and every modication of any of the foregoing used by the

TWIA. Article 21.49 §5A provides that the Commissioner may, after notice and hearing, issue any orders which the Commissioner

considers necessary to carry out the purposes of Article 21.49,

including, but not limited to, maximum rates, competitive rates,

and policy forms. Section 36.001 of the Insurance Code provides that the Commissioner of Insurance may adopt any rules

necessary and appropriate to implement the powers and duties

of the Texas Department of Insurance under the Insurance Code

and other laws of this state.

§5.4501. Rules for the Texas Windstorm Insurance Association.

The Texas Department of Insurance adopts by reference a rules manual

for the Texas Windstorm Insurance Association as amended effective

July 15, 2006. A specimen copy of the rules manuals is available from

the Texas Windstorm Insurance Association, P.O. Box 99090, Austin,

Texas 78709-9090. Copies may also be obtained by contacting the Personal Lines Division, Mail Code 104-1A, Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78701.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on March 6, 2006.

TRD-200601425

Gene C. Jarmon

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: July 15, 2006

Proposal publication date: September 23, 2005

For further information, please call: (512) 463-6327

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 39. PUBLIC NOTICE

SUBCHAPTER H. APPLICABILITY AND

GENERAL PROVISIONS

The Texas Commission on Environmental Quality (TCEQ or

commission) adopts the amendments to §§39.403, 39.411,

39.419, and 39.420, the repeal of §39.404, and new §39.404.

Sections 39.403, 39.404, 39.411, 39.419, and 39.420 are

adopted with changes to the proposed text as published in the

December 16, 2005, issue of the Texas Register (30 TexReg

8401). The repeal of §39.404 is adopted without changes to the

proposal and will not be republished.

Certain provisions of the rules will be submitted to the United

States Environmental Protection Agency (EPA) as a revision to

the state implementation plan (SIP), specically, §39.403(b)(8) -

(10) and new (f), the repeal of §39.404, and new §39.404. The

commission also will withdraw §§39.411, 39.419, and 39.420 as

submitted to EPA on July 31, 2002, and submit §§39.411(a),

(b)(1) - (6), (8) - (10), (c)(1) - (6), and (d); 39.419(a), (b), (d),

and (e); and 39.420(a), (b), and (c)(3) and (4) as a revision to

the SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permitting

procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that

is a partnership between industry participants and the United

States Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration project

could result in major economic, social, and environmental benets for Texas, and that streamlining the permitting process for

FutureGen projects would serve the public’s interest by improving the state’s ability to compete for federal funding for FutureGen projects. A specic requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested case

hearing. Under the adopted rules, eligible permit applications for

FutureGen projects will be subject to the same permitting and

public participation processes that would otherwise apply to applications for most types of commission permits, except for contested case hearings.

The purpose of the adopted revisions to Chapter 39 is to implement the requirements of HB 2201 with respect to the public

notice requirements of permit applications required to authorize

a component of the FutureGen project. Because HB 2201 eliminates contested case hearings on applications for permits required to authorize a component of the FutureGen project, public

notice requirements for these applications need to be modied

to reect that the applications are not subject to contested case

hearings. The adopted revisions include a reference to the new

30 TAC Chapter 91, that establishes the streamlined process for

applications required to authorize a component of the FutureGen

process.

Corresponding rulemakings are published in this issue of the

Texas Register that include changes to 30 TAC Chapter 50, Action on Applications and Other Authorizations, 30 TAC Chapter

55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public

Notice and Public Participation Requirements for Specic Designated Facilities; 30 TAC Chapter 116, Control of Air Pollution

by Permits for New Construction or Modication; and 30 TAC

Chapter 331, Underground Injection Control.

SECTION BY SECTION DISCUSSION

The commission adopts administrative changes throughout

these rules to be consistent with Texas Register requirements

and agency guidelines and to update rule citations.

§39.403. Applicability.

The commission adopts an amendment to §39.403 by adding

a new subsection (f) stating that applications for permits, registrations, licenses, or other type of authorization required to

construct, operate, or authorize a component of the FutureGen

project as dened in the concurrently adopted §91.30, DeniADOPTED RULES March 24, 2006 31 TexReg 2471
tions, are subject to the public notice requirements of concurrently adopted new Chapter 91, in addition to the requirements of

this chapter, unless otherwise specied in Chapter 91. For most

types of applications, the notice requirements in new Chapter 91

will use existing notice requirements for the type of application

sought, except to modify the text of the notice to indicate that

the application is for authorization of a component of the FutureGen project and is not subject to a contested case hearing. In

response to comments, the commission has revised §39.403(f)

to establish a sunset date of January 1, 2018. Applications or

other requests for authorization submitted after January 1, 2018,

would not be eligible to use the streamlined public participation

provisions.

§39.404. Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities.

The commission adopts the repeal of §39.404 and replaces it

with new §39.404.

§39.404. Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities and for Applications for

Permits for Specic Designated Facilities.

The commission adopts new §39.404, which includes applicability requirements for certain designated projects, specically

applications submitted under Chapter 116, concurrently adopted

new Subchapter L, Permits for Specic Designated Facilities. In response to comments, the commission has revised

§39.404(b)(2) to establish a sunset date of January 1, 2018.

Applications or other requests for authorization submitted after

January 1, 2018, would not be eligible to use the streamlined

public participation provisions.

§39.411. Text of Public Notice.

The commission adopts an amendment to §39.411 to specify in

subsection (b)(10)(B) that notice for applications submitted under §39.404(b) only require a statement that any person is entitled to request a notice and comment hearing from the commission. In response to comments, the commission has revised

§39.411(b)(10)(B) to establish a sunset date of January 1, 2018.

Applications or other requests for authorization of FutureGen

projects submitted after January 1, 2018, would not be eligible

to use the streamlined public participation provisions.

§39.419. Notice of Application and Preliminary Decision.

The commission adopts an amendment to §39.419 by adding

a new paragraph (4) to subsection (e) specifying that applications to construct, authorize, or operate a component of the FutureGen project as dened in concurrently adopted §91.30, Definitions, shall be subject to the public notice and participation

requirements stated in Chapter 116, concurrently adopted new

Subchapter L. In response to comments, the commission has

revised §39.419(e)(4) to establish a sunset date of January 1,

2018. Applications or other requests for authorization submitted

after January 1, 2018, would not be eligible to use the streamlined public participation provisions of Chapter 116, Subchapter

L, Permits for Specic Designated Facilities.

§39.420. Transmittal of the Executive Director’s Response to

Comments and Decision.

The commission proposed an amendment to §39.420 by adding

a new subsection (f), stating that the chief clerk shall not be required to transmit the item listed in §39.420(a)(4), concerning

instructions for requesting a contested case hearing, for permit

applications under Chapter 116, concurrently adopted new Subchapter L. In response to public comment, the commission has

changed the proposed language to state that the chief clerk will

not transmit the item listed in §39.420(a)(4).

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rules in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rules do not meet the

denition of a "major environmental rule." Under Texas Government Code, §2001.0225, "major environmental rule" means

a rule the specic intent of which is to protect the environment

or reduce risks to human health from environmental exposure,

and that may adversely affect in a material way the economy,

a sector of the economy, productivity, competition, jobs, the

environment, or the public health and safety of the state or a

sector of the state. The adopted rules are intended to establish

notice requirements for authorizing certain types of projects

required for the FutureGen project. The adopted rules are

only procedural rules establishing public notice requirements to

administer the program for permitting FutureGen projects and

are not specically intended to protect the environment or to

reduce risks to human health. The adopted rules are intended

to provide an alternative mechanism for public participation

and do not alter the underlying technical review requirements.

Therefore, because this rulemaking will not adversely affect in a

material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, or the public health and

safety of the state or a sector of the state, the rulemaking does

not t the Texas Government Code, §2001.0225 denition of

"major environmental rule."

Furthermore, the rulemaking does not meet any of the four

applicable requirements listed in Texas Government Code,

§2001.0225(a). Texas Government Code, §2001.0225(a), only

applies to a major environmental rule adopted by an agency, the

result of which is to: 1) exceed a standard set by federal law,

unless the rule is specically required by state law; 2) exceed an

express requirement of state law, unless the rule is specically

required by federal law; 3) exceed a requirement of a delegation

agreement or contract between the state and an agency or

representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specic state law.

In this case, the adopted rules do not meet any of these applicability requirements. First, the adopted rules are consistent with

and do not exceed the standards set by federal law. Second,

the adopted rules do not exceed an express requirement of state

law, instead these rules implement HB 2201. Third, the rules do

not exceed an express requirement of a delegation agreement

or contract between the state and an agency or representative

of the federal government to implement a state and federal program. Fourth, the commission does not adopt these rules solely

under the general powers of the agency, but rather under the authority of Texas Health and Safety Code (THSC), §382,0565, as

added by HB 2201, which directs the commission to, by rule, implement reasonably streamlined processes for issuing permits

required to construct a component of a FutureGen project, as

authorized by federal law; Texas Water Code (TWC), §5.558,

as amended by HB 2201, which directs the commission to implement reasonably streamlined processes for issuing permits

required to construct a component of a FutureGen project, as

authorized by federal law; and TWC, §27.022, as added by HB

2201, which establishes the commission’s jurisdiction over the

31 TexReg 2472 March 24, 2006 Texas Register
injection of carbon dioxide produced by a clean coal project to

the extent authorized by federal law.

Because the adopted rules do not constitute a major environmental rule, a regulatory impact analysis is not required.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted rules and performed

an assessment of whether this rulemaking would constitute a

takings under Texas Government Code, Chapter 2007. The

adopted rules are intended to establish a streamlined process

for authorizing certain types of projects required for the FutureGen project. The adopted rules are only procedural rules

establishing a system to administer the program for permitting

FutureGen projects and are not specically intended to protect

the environment or to reduce risks to human health. The rules

are intended to provide an alternative mechanism for public

participation and do not alter the underlying technical review

requirements. Promulgation and enforcement of the rules will

not affect private real property in a manner that would require

compensation to private real property owners under the United

States Constitution or the Texas Constitution. The rules also

will not affect private real property in a manner that restricts

or limits an owner’s right to the property that would otherwise

exist in the absence of the governmental action. Consequently,

the adopted rules do not meet the denition of a takings under

Texas Government Code, §2007.002(5). Therefore, the rules

will not constitute a takings under Texas Government Code,

Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking relates to an

action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of

1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, Consistency with Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject to Consistency with the Goals and Policies of the Texas Coastal Management Program, and 31 TAC §505.11(b)(2), relating to Actions

and Rules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this rulemaking for consistency with the CMP

goals and policies in accordance with the rules of the Coastal Coordination Council, and determined that the rulemaking is consistent with the applicable CMP goals and policies. The CMP

goal applicable to this rulemaking is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and

values of coastal natural resource areas (31 TAC §501.12(l)).

The adopted revisions include procedural mechanisms to authorize new sources of air contaminants; however, the revisions do

not create any new types of authorizations for new sources of

air contaminants. The CMP policy applicable to this rulemaking is the policy that commission rules comply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This

rulemaking complies with 40 Code of Federal Regulations Part

51, Requirements for Preparation, Adoption, and Submittal of

Implementation Plans. Therefore, in accordance with 31 TAC

§505.22(e), the commission afrms that this rulemaking is consistent with CMP goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

A FutureGen project may or may not be subject to the Federal

Operating Permits Program depending on the quantity and type

of its emissions and location. If subject, facilities will be required

to meet all requirements of the Federal Operating Permits Program.

PUBLIC COMMENT

A public hearing for this rulemaking was held on December 20,

2005, in Austin, and the comment period closed on December 27, 2005. The commission received comments from the

FutureGen Texas Advisory Board (FGTAB), Environmental Defense (ED), the Center for Energy and Economic Development

(CEED), the Sierra Club Houston Regional Group (HSC), and

the Clean Coal Technology Foundation of Texas (CCTFT).

RESPONSE TO COMMENTS

CEED commented that there was no need for a sunset provision in the rules, because the FutureGen initiative represented

a one-of-a-kind project. HSC and ED commented that an expiration date should be included in the rules. HSC suggested an

expiration date of 2010, and ED suggested an expiration date of

January 1, 2015.

The commission is changing the rule in response to these comments and is establishing a sunset date of January 1, 2018. Applications or other requests for authorization submitted after this

date would not be excluded from contested case hearings. This

change will ensure that the streamlined permitting processes of

Chapters 91 and 116 are only used for their intended purpose of

providing an incentive for the FutureGen project construction.

HSC supported the provision of §39.404(b) allowing a person to

request a notice and comment hearing, but it opposed the proposed rules that would allow a permit to be issued for a FutureGen project without providing the public with an opportunity to

request and receive a contested case hearing.

The commission is not changing the rule in response to this comment. The adopted rules implement HB 2201, passed by the

79th Texas Legislature. Sections 3 and 7 of HB 2201 amend

portions of the THSC and TWC to provide that permit applications for facilities that are a component of the FutureGen project

are not subject to contested case hearings. The commission is

required by HB 2201 to adopt rules to implement the statutory

changes specied by HB 2201. Under the adopted rules, the

public retains the ability to participate in the permitting process

by submitting written comments during the comment period, and

by requesting a notice and comment hearing on the permit.

FGTAB and CCTFT suggested that proposed §39.420(f) be

rephrased. The proposed rule states that "the chief clerk shall

not be required to transmit the item listed in subsection (a)(4) of

this section." FGTAB suggested that this phrase be altered to

read "the chief clerk will not transmit the item listed in subsection

(a)(4) of this section."

The commission agrees with the suggested change and has revised §39.420(f) accordingly.

30 TAC §§39.403, 39.404, 39.411, 39.419, 39.420

STATUTORY AUTHORITY

The amendments and new section are adopted under TWC,

§5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary

ADOPTED RULES March 24, 2006 31 TexReg 2473
to carry out its powers and duties under the TWC; and under

THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes

of the Texas Clean Air Act. The amendments and new section

are also adopted under THSC, §382.002, concerning Policy and

Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of

public health, general welfare, and physical property; §382.011,

concerning General Powers and Duties, which authorizes the

commission to control the quality of the state’s air; §382.012,

concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan

for the control of the state’s air; §382.0518, concerning preconstruction permits; §382.056, concerning notice of intent to obtain

permit or permit review and hearing; and §382.0565, concerning

clean coal project permitting procedure; and TWC, §5.558, concerning clean coal project permitting.

The adopted amendments and new section implement TWC,

§5.558(c) and THSC, §382.0565(d).

§39.403. Applicability.

(a) Permit applications that are declared administratively complete on or after September 1, 1999 are subject to Subchapters H - M

of this chapter (relating to Applicability and General Provisions; Public Notice of Solid Waste Applications; Public Notice of Water Quality

Applications and Water Quality Management Plans; Public Notice of

Air Quality Applications; Public Notice of Injection Well and Other

Specic Applications; and Public Notice for Radioactive Material Licenses). Permit applications that are declared administratively complete before September 1, 1999 are subject to Subchapters A - E of

this chapter (relating to Applicability and General Provisions; Public

Notice of Solid Waste Applications; Public Notice of Water Quality

Applications; Public Notice of Air Quality Applications; and Public

Notice of Other Specic Applications). All consolidated permit applications are subject to Subchapter G of this chapter (relating to Public

Notice for Applications for Consolidated Permits). The effective date

of the amendment of existing §39.403, specically with respect to subsection (c)(9) and (10), is June 3, 2002. Applications for modications

led before this amended section becomes effective will be subject to

this section as it existed prior to June 3, 2002.

(1) Explanation of applicability. Subsection (b) of this section lists all the types of applications to which Subchapters H - M of

this chapter apply. Subsection (c) of this section lists certain types of

applications that would be included in the applications listed in subsection (b) of this section, but that are specically excluded. Subsections

(d) and (e) of this section specify that only certain sections apply to

applications for radioactive materials licenses or voluntary emission

reduction permits.

(2) Explanation of organization. Subchapter H of this

chapter contains general provisions that may apply to all applications

under Subchapters H - M of this chapter. Additionally, in Subchapters

I - M of this chapter, there is a specic subchapter for each type

of application. Those subchapters contain additional requirements

for each type of application, as well as indicating which parts of

Subchapter H of this chapter must be followed.

(3) Types of applications. Unless otherwise provided in

Subchapters G - M of this chapter, public notice requirements apply to

applications for new permits, concrete batch plant air quality exemptions from permitting or permits by rule, and applications to amend,

modify, or renew permits.

(b) As specied in those subchapters, Subchapters H - M of

this chapter apply to notices for:

(1) applications for municipal solid waste, industrial solid

waste, or hazardous waste permits under Texas Health and Safety Code

(THSC), Chapter 361;

(2) applications for wastewater discharge permits under

Texas Water Code (TWC), Chapter 26, including:

(A) applications for the disposal of sewage sludge or

water treatment sludge under Chapter 312 of this title (relating to

Sludge Use, Disposal, and Transportation); and

(B) applications for individual permits under Chapter

321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);

(3) applications for underground injection well permits under TWC, Chapter 27, or under THSC, Chapter 361;

(4) applications for production area authorizations under

Chapter 331 of this title (relating to Underground Injection Control);

(5) contested case hearings for permit applications or contested enforcement case hearings under Chapter 80 of this title (relating

to Contested Case Hearings);

(6) applications for radioactive material licenses under

Chapter 336 of this title (relating to Radioactive Substance Rules),

except as provided in subsection (e) of this section;

(7) applications for consolidated permit processing and

consolidated permits processed under TWC, Chapter 5, Subchapter J,

and Chapter 33 of this title (relating to Consolidated Permit Processing);

(8) applications for air quality permits under THSC,

§382.0518 and §382.055. In addition, applications for permit amendments under §116.116(b) of this title (relating to Changes to Facilities),

initial issuance of exible permits under Chapter 116, Subchapter G of

this title (relating to Flexible Permits), amendments to exible permits

under §116.710(a)(2) and (3) of this title (relating to Applicability)

when an action involves:

(A) construction of any new facility as dened in

§116.10 of this title (relating to General Denitions);

(B) modication of an existing facility as dened in

§116.10 of this title which result in an increase in allowable emissions

of any air contaminant emitted equal to or greater than the emission

quantities dened in §106.4(a)(1) of this title (relating to Requirements

for Permitting by Rule) and of sources dened in §106.4(a)(2) and (3)

of this title; or

(C) other changes when the executive director determines that:

(i) there is a reasonable likelihood for emissions to

impact a nearby sensitive receptor;

(ii) there is a reasonable likelihood of high nuisance

potential from the operation of the facilities;

(iii) the application involves a facility or site for

which the compliance history contains violations which are unresolved or constitute a recurring pattern of conduct that demonstrates a

consistent disregard for the regulatory process; or

(iv) there is a reasonable likelihood of signicant

public interest in a proposed activity;

(9) applications subject to the requirements of Chapter 116,

Subchapter C of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA,

§112(g), 40 CFR Part 63)), whether for construction or reconstruction;

31 TexReg 2474 March 24, 2006 Texas Register
(10) concrete batch plants registered under Chapter 106 of

this title (relating to Permits by Rule) unless the facility is to be temporarily located in or contiguous to the right-of-way of a public works

project;

(11) applications for voluntary emission reduction permits

under THSC, §382.0519;

(12) applications for permits for electric generating facilities under Texas Utilities Code, §39.264;

(13) applications for multiple plant permits (MPPs) under

THSC, §382.05194; and

(14) Water Quality Management Plan updates processed

under TWC, Chapter 26, Subchapter B.

(c) Notwithstanding subsection (b) of this section, Subchapters H - M of this chapter do not apply to the following actions and

other applications where notice or opportunity for contested case hearings are otherwise not required by law:

(1) applications for authorizations under Chapter 321 of

this title (relating to Control of Certain Activities by Rule), except for

applications for individual permits under Subchapter B of that chapter;

(2) applications for registrations and notications under

Chapter 312 of this title;

(3) applications under Chapter 332 of this title (relating to

Composting);

(4) applications under Chapter 122 of this title (relating to

Federal Operating Permits Program);

(5) applications under Chapter 116, Subchapter F of this

title (relating to Standard Permits);

(6) applications under Chapter 106 of this title, except for

concrete batch plants specied in subsection (b)(10) of this section;

(7) applications under §39.15 of this title (relating to Public

Notice Not Required for Certain Types of Applications) without regard

to the date of administrative completeness;

(8) applications for minor amendments under

§305.62(c)(2) of this title (relating to Amendment). Notice for minor

amendments shall comply with the requirements of §39.17 of this title

(relating to Notice of Minor Amendment) without regard to the date

of administrative completeness;

(9) applications for Class 1 modications of industrial or

hazardous waste permits under §305.69(b) of this title (relating to Solid

Waste Permit Modication at the Request of the Permittee). Notice for

Class 1 modications shall comply with the requirements of §39.105

of this title (relating to Application for a Class 1 Modication of an

Industrial Solid Waste or Hazardous Waste Permit), without regard to

the date of administrative completeness, except that text of notice shall

comply with §39.411 of this title (relating to Text of Public Notice) and

§305.69(b) of this title;

(10) applications for modications of municipal solid

waste permits and registrations under §305.70 of this title (relating to

Municipal Solid Waste Permit and Registration Modications). Notice

for modications shall comply with the requirements of §39.106 of

this title (relating to Application for Modication of a Municipal

Solid Waste Permit or Registration), without regard to the date of

administrative completeness;

(11) applications for Class 2 modications of industrial or

hazardous waste permits under §305.69(c) of this title. Notice for Class

2 modications shall comply with the requirements of §39.107 of this

title (relating to Application for a Class 2 Modication of an Industrial

or Hazardous Waste Permit), without regard to the date of administrative completeness, except that text of notice shall comply with §39.411

and §305.69(c) of this title;

(12) applications for minor modications of underground

injection control permits under §305.72 of this title (relating to Underground Injection Control (UIC) Permit Modications at the Request of

the Permittee);

(13) applications for minor modications of Texas Pollutant Discharge Elimination System permits under §305.62(c)(3) of this

title;

(14) applications for registration and notication of sludge

disposal under §312.13 of this title (relating to Actions and Notice); or

(15) applications for registration of pre-injection units for

nonhazardous, noncommercial, underground injection wells under

§331.17 of this title (relating to Pre-Injection Units Registration).

(d) Applications for initial issuance of voluntary emission reduction permits under THSC, §382.0519 and initial issuance of electric

generating facility permits under Texas Utilities Code, §39.264 are subject only to §39.405 of this title (relating to General Notice Provisions),

§39.409 of this title (relating to Deadline for Public Comment, and for

Requests for Reconsideration, Contested Case Hearing, or Notice and

Comment Hearing), §39.411 of this title, §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit),

§39.602 of this title (relating to Mailed Notice), §39.603 of this title (relating to Newspaper Notice), §39.604 of this title (relating to Sign-Posting), §39.605 of this title (relating to Notice to Affected Agencies), and

§39.606 of this title (relating to Alternative Means of Notice for Permits for Grandfathered Facilities), except that any reference to requests

for reconsideration or contested case hearings in §39.409 or §39.411 of

this title shall not apply. For MPP applications led before September

1, 2001, the initial issuance, amendment, or revocation of MPPs under

THSC, §382.05194 is subject to the same public notice requirements

that apply to initial issuance of voluntary emission reduction permits

and initial issuance of electric generating facility permits, except as

otherwise provided in §116.1040 of this title (relating to Multiple Plant

Permit Public Notice and Public Participation).

(e) Applications for radioactive materials licenses under

Chapter 336 of this title are not subject to §39.405(c) and (e) of this

title; §§39.418 - 39.420 of this title (relating to Notice of Receipt of

Application and Intent to Obtain Permit; Notice of Application and

Preliminary Decision; and Transmittal of the Executive Director’s

Response to Comments and Decision); and certain portions of §39.413

of this title (relating to Mailed Notice).

(f) Applications for permits, registrations, licenses, or other

type of authorization required to construct, operate, or authorize a component of the FutureGen project as dened in §91.30 of this title (relating to Denitions), submitted on or before January 1, 2018, are subject

to the public notice requirements of Chapter 91 of this title (relating

to Alternative Public Notice and Public Participation Requirements for

Specic Designated Facilities) in addition to the requirements of this

chapter, unless otherwise specied in Chapter 91 of this title.

§39.404. Applicability for Certain Initial Applications for Air Quality

Permits for Grandfathered Facilities and for Applications for Permits

for Specic Designated Facilities.

(a) Initial applications for air quality permits for grandfathered

facilities.

(1) With the exception of §39.403(a)(1) of this title (relating to Applicability), Subchapters H - M of this chapter (relating to

Applicability and General Provisions; Public Notice of Solid Waste

ADOPTED RULES March 24, 2006 31 TexReg 2475
Applications; Public Notice of Water Quality Applications and Water

Quality Management Plans; Public Notice of Air Quality Applications;

Public Notice of Injection Well and Other Specic Applications; and

Public Notice for Radioactive Material Licenses) also apply to:

(A) applications for permits for electric generating facilities under Texas Health and Safety Code, §382.05185(c) and (d);

(B) applications for existing facilities permits under

Texas Health and Safety Code, §382.05183; and

(C) applications for pipeline facility permits under

Texas Health and Safety Code, §382.05186.

(2) Applications for initial issuance of permits under

Texas Health and Safety Code, §§382.05183, 382.05185(c) and (d),

and 382.05186 are subject only to §§39.401, 39.405, 39.407, 39.409,

39.411, 39.418, 39.420, and 39.601 - 39.606 of this title (relating to

Purpose; General Notice Provisions; Mailing Lists; Deadline for Public Comment, and for Requests for Reconsideration, Contested Case

Hearing, or Notice and Comment Hearing; Text of Public Notice; Notice of Receipt of Application and Intent to Obtain Permit; Transmittal

of the Executive Director’s Response to Comments and Decision; Applicability; Mailed Notice; Newspaper Notice; Sign-Posting; Notice

to Affected Agencies; and Alternative Means of Notice for Permits

for Grandfathered Facilities), except that any reference to requests for

reconsideration or contested case hearings in §39.409 or §39.411 of

this title shall not apply.

(b) Applications for permits for specic designated facilities.

(1) With the exception of §39.403(a)(1) of this title, Subchapters H - M of this chapter also apply to applications for permits

under Chapter 116, Subchapter L of this title (relating to Permits for

Specic Designated Facilities).

(2) Applications for permits under Chapter 116, Subchapter L of this title submitted on or before January 1, 2018, are subject

only to §§39.401, 39.405, 39.407, 39.409, 39.411, 39.418, 39.420, and

39.601 - 39.605 of this title, except that any reference to contested case

hearings shall not apply.

§39.411. Text of Public Notice.

(a) Applicants shall use notice text provided and approved by

the agency. The executive director may approve changes to notice text

before notice being given.

(b) When notice of receipt of application and intent to obtain

permit by publication or by mail is required by Subchapters H - L of

this chapter (relating to Applicability and General Provisions, Public

Notice of Solid Waste Applications, Public Notice of Water Quality

Applications and Water Quality Management Plans, Public Notice of

Air Quality Applications, and Public Notice of Injection Well and Other

Specic Applications), Subchapter G of this chapter (relating to Public

Notice for Applications for Consolidated Permits), or for Subchapter

M of this chapter (relating to Mailed Notice for Radioactive Material

Licenses), the text of the notice must include the following information:

(1) the name and address of the agency and the telephone

number of an agency contact from whom interested persons may obtain

further information;

(2) the name, address, and telephone number of the applicant and a description of the manner in which a person may contact the

applicant for further information;

(3) a brief description of the location and nature of the proposed activity;

(4) a brief description of public comment procedures, including:

(A) a statement that the executive director will respond

to comments raising issues that are relevant and material or otherwise

signicant; and

(B) a statement in the notice for any permit application

for which there is an opportunity for a contested case hearing, that only

disputed factual issues that are relevant and material to the commissions’s decision that are raised during the comment period can be considered if a contested case hearing is granted;

(5) a brief description of procedures by which the public

may participate in the nal permit decision and, if applicable, how to

request a public meeting, contested case hearing, reconsideration of the

executive director’s decision, a notice and comment hearing, or a statement that later notice will describe procedures for public participation,

printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice. The notice should include

a statement that a public meeting will be held by the executive director

if requested by a member of the legislature who represents the general

area where the facility is to be located or there is substantial public interest in the proposed activity;

(6) the application or permit number;

(7) if applicable, a statement that the application or requested action is subject to the Coastal Management Program and

must be consistent with the Coastal Management Program goals and

policies;

(8) the location, at a public place in the county in which

the facility is located or proposed to be located, at which a copy of the

application is available for review and copying;

(9) a description of the procedure by which a person may

be placed on a mailing list in order to receive additional information

about the application;

(10) for notices of air applications:

(A) at a minimum, a listing of criteria pollutants for

which authorization is sought in the application which are regulated

under national ambient air quality standards (NAAQS) or under state

standards in Chapters 111, 112, 113, 115, and 117 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate

Matter, Control of Air Pollution from Sulfur Compounds, Standards

of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants, Control of Air Pollution from Volatile Organic

Compounds, and Control of Air Pollution from Nitrogen Compounds);

(B) if notice is for applications described in

§39.403(b)(11) or (12) of this title (relating to Applicability) or

for applications submitted on or before January 1, 2018, under

§39.404(b) of this title (relating to Applicability for Certain Initial

Applications for Air Quality Permits for Grandfathered Facilities and

for Applications for Permits for Specic Designated Facilities), a

statement that any person is entitled to request a notice and comment

hearing from the commission. If notice is for any other air application,

the following information must be printed in a font style or size that

clearly provides emphasis and distinguishes it from the remainder of

the notice:

(i) a statement that a person who may be affected by

emissions of air contaminants from the facility or proposed facility is

entitled to request a contested case hearing from the commission;

(ii) a statement that a contested case hearing request

must include the requester’s location relative to the proposed facility

or activity;

31 TexReg 2476 March 24, 2006 Texas Register
(iii) a statement that a contested case hearing request

should include a description of how the requestor will be adversely

affected by the proposed facility or activity in a manner not common

to the general public, including a description of the requestor’s uses of

property which may be impacted by the proposed facility or activity;

and

(iv) that only relevant and material issues raised during the comment period can be considered if a contested case hearing

request is granted;

(C) notication that a person residing within 440 yards

of a concrete batch plant under an exemption from permitting or permit

by rule adopted by the commission is an affected person who is entitled

to request a contested case hearing; and

(D) the statement: "The facility’s compliance le, if any

exists, is available for public review in the regional ofce of the Texas

Commission on Environmental Quality"; and

(11) for notices of municipal solid waste applications, a

statement that a person who may be affected by the facility or proposed facility is entitled to request a contested case hearing from the

commission. This statement must be printed in a font style or size that

clearly provides emphasis and distinguishes it from the remainder of

the notice; and

(12) any additional information required by the executive

director or needed to satisfy public notice requirements of any federally

authorized program; or

(13) for radioactive material licenses under Chapter 336

of this title (relating to Radioactive Substance Rules), if applicable, a

statement that a written environmental analysis on the application has

been prepared by the executive director, is available to the public for

review, and that written comments may be submitted.

(14) for Class 3 modications of hazardous industrial solid

waste permits, the statement "The permittee’s compliance history during the life of the permit being modied is available from the agency

contact person."

(c) Unless mailed notice is otherwise provided for under this

section, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed

Notice). When notice of application and preliminary decision by publication or by mail is required by Subchapters G - L of this chapter, the

text of the notice must include the following information:

(1) the information required by subsection (b)(1) - (12) of

this section;

(2) a brief description of public comment procedures, including a description of the manner in which comments regarding the

executive director’s preliminary decision may be submitted, or a statement in the notice for any permit application for which there is an opportunity for contested case hearing, that only relevant and material

issues raised during the comment period can be considered if a contested case hearing is granted. The public comment procedures must

be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;

(3) if the application is subject to nal approval by the executive director under Chapter 50 of this title (relating to Action on

Applications), a statement that the executive director may issue nal

approval of the application unless a timely contested case hearing request or a timely request for reconsideration (if applicable) is led with

the chief clerk after transmittal of the executive director’s decision and

response to public comment;

(4) a summary of the executive director’s preliminary decision and whether the executive director has prepared a draft permit;

(5) the location, at a public place in the county in which

the facility is located or proposed to be located, at which a copy of the

complete application and the executive director’s preliminary decision

are available for review and copying;

(6) the deadline to le comments or request a public meeting. The notice should include a statement that a public meeting will be

held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located

or there is substantial public interest in the proposed activity; and

(7) for radioactive material licenses under Chapter 336 of

this title, if applicable, a statement that a written environmental analysis on the application has been prepared by the executive director, is

available to the public for review, and that written comments may be

submitted.

(d) When notice of a public meeting or notice of a hearing by

publication or by mail is required by Subchapters G - L of this chapter,

the text of the notice must include the following information:

(1) the information required by subsection (b)(1) - (3), (6)

- (8), and (12) of this section;

(2) the date, time, and place of the meeting or hearing, and

a brief description of the nature and purpose of the meeting or hearing,

including the applicable rules and procedures; and

(3) for notices of public meetings only, a brief description

of public comment procedures, including a description of the manner

in which comments regarding the executive director’s preliminary decision may be submitted and a statement in the notice for any permit

application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment

period can be considered if a contested case hearing is granted.

§39.419. Notice of Application and Preliminary Decision.

(a) After technical review is complete, the executive director

shall le the preliminary decision and the draft permit with the chief

clerk, except for air applications under subsection (e)(1) of this section. The chief clerk shall mail the preliminary decision concurrently

with the Notice of Application and Preliminary Decision. Then, when

this chapter requires notice under this section, notice must be given as

required by subsections (b) - (e) of this section.

(b) The applicant shall publish Notice of Application and Preliminary Decision at least once in the same newspaper as the Notice

of Receipt of Application and Intent to Obtain Permit, unless there are

different requirements in this section or a specic subchapter in this

chapter for a particular type of permit. The applicant shall also publish the notice under §39.405(h) of this title (relating to General Notice

Provisions), if applicable.

(c) Unless mailed notice is otherwise provided under this section, the chief clerk shall mail Notice of Application and Preliminary

Decision to those listed in §39.413 of this title (relating to Mailed Notice).

(d) The notice must include the information required by

§39.411(c) of this title (relating to Text of Public Notice).

(e) For air applications the following apply.

(1) The applicant is not required to publish Notice of Application and Preliminary Decision, if:

(A) no hearing request is submitted in response to the

Notice of Receipt of Application and Intent to Obtain Permit;

ADOPTED RULES March 24, 2006 31 TexReg 2477
(B) a hearing request is submitted in response to the Notice of Receipt of Application and Intent to Obtain Permit and the request is withdrawn before the date the preliminary decision is issued;

(C) the application is for any amendment, modication,

or renewal application that would not result in an increase in allowable

emissions and would not result in the emission of an air contaminant not

previously emitted unless the application involves a facility for which

the applicant’s compliance history contains violations which are unresolved and which 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; or

(D) the application is for initial issuance of a permit described in §39.403(b)(11) or (12) of this title (related to Applicability)

or §39.404 of this title (relating to Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities and for

Applications for Permits for Specic Designated Facilities);

(2) If notice under this section is required, the agency shall

mail notice according to §39.602 of this title (relating to Mailed Notice).

(3) Notice of Application and Preliminary Decision must

be published as specied in Subchapter K of this chapter (relating to

Public Notice of Air Quality Applications) and, as applicable, under

§39.405(h) of this title for permits that are not exempt under paragraph

(1)(A) - (D) of this subsection or are for the following federal preconstruction approvals:

(A) applications under Chapter 116, Subchapter B, Division 5 of this title (relating to Nonattainment Review);

(B) applications under Chapter 116, Subchapter B, Division 6 of this title (relating to Prevention of Signicant Deterioration

Review); and

(C) applications under Chapter 116, Subchapter C of

this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40

CFR Part 63)).

(4) If the applicant is seeking authorization by permit, registration, license, or other type of authorization required to construct,

operate, or authorize a component of the FutureGen project as dened

in §91.30 of this title (relating to Denitions), any application submitted on or before January 1, 2018, shall be subject to the public notice

and participation requirements in Chapter 116, Subchapter L of this title (relating to Permits for Specic Designated Facilities).

§39.420. Transmittal of the Executive Director’s Response to Comments and Decision.

(a) When required by and subject to §55.156 of this title (relating to Public Comment Processing), after the close of the comment

period, the chief clerk shall transmit to the people listed in subsection

(b) of this section the following information:

(1) the executive director’s decision;

(2) the executive director’s response to public comments;

(3) instructions for requesting that the commission reconsider the executive director’s decision; and

(4) instructions for requesting a contested case hearing.

(b) The following persons shall be sent the information listed

in subsection (a) of this section:

(1) the applicant;

(2) any person who requested to be on the mailing list for

the permit action;

(3) any person who submitted comments during the public

comment period;

(4) any person who timely led a request for a contested

case hearing;

(5) Ofce of the Public Interest Counsel; and

(6) Ofce of Public Assistance.

(c) For air applications which meet the following conditions,

items listed in subsection (a)(3) and (4) of this section are not required

to be included in the transmittals:

(1) applications for initial issuance of permits under

Texas Health and Safety Code, §§382.05183, 382.05185(c) and (d),

382.05186, and 382.0519;

(2) applications for initial issuance of electric generating

facility permits under Texas Utilities Code, §39.264;

(3) applications for which no timely hearing request is submitted in response to the Notice of Receipt of Application and Intent

to Obtain a Permit;

(4) applications for which a timely hearing request is submitted in response to the Notice of Receipt of Application and Intent

to Obtain Permit and the request is withdrawn before the date the preliminary decision is issued; or

(5) the application is for any amendment, modication, or

renewal application that would not result in an increase in allowable

emissions and would not result in the emission of an air contaminant not

previously emitted unless the application involves a facility for which

the applicant’s compliance history contains violations which are unresolved and which 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.

(d) For applications for which all timely comments and requests have been withdrawn before the ling of the executive director’s response to comments, the chief clerk shall transmit only the items

listed in subsection (a)(1) and (2) of this section and the executive director may act on the application under §50.133 of this title (relating to

Executive Director Action on Application or WQMP Update).

(e) For post-closure order applications under Subchapter N of

this chapter (relating to Public Notice of Post-Closure Orders), the chief

clerk shall transmit only items listed in subsection (a)(1) and (2) of this

section to the people listed in subsection (b)(1) - (3), (5), and (6) of this

section.

(f) For applications for permits under Chapter 116, Subchapter

L of this title (relating to Permits for Specic Designated Facilities), the

chief clerk will not transmit the item listed in subsection (a)(4) of this

section.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on March 9, 2006.

TRD-200601518

31 TexReg 2478 March 24, 2006 Texas Register
Stephanie Bergeron Perdue

Acting Deputy Director, Of¿ce of Legal Services

Texas Commission on Environmental Quality

Effective date: March 29, 2006

Proposal publication date: December 16, 2005

For further information, please call: (512) 239-5017

30 TAC §39.404

STATUTORY AUTHORITY

The repeal is adopted under TWC, §5.103, concerning Rules,

and §5.105, concerning General Policy, which authorize the

commission to adopt rules necessary to carry out its powers

and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The repeal is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission

purpose to safeguard the state’s air resources, consistent with

the protection of public health, general welfare, and physical

property; §382.011, concerning General Powers and Duties,

which authorizes the commission to control the quality of the

state’s air; §382.012, concerning State Air Control Plan, which

authorizes the commission to prepare and develop a general,

comprehensive plan for the control of the state’s air; §382.0518,

concerning preconstruction permits; §382.056, concerning notice of intent to obtain permit or permit review and hearing; and

§382.0565, concerning clean coal project permitting procedure;

and TWC, §5.558, concerning clean coal project permitting.

The adopted repeal implements TWC, §5.558(c) and THSC,

§382.0565(d).

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on March 9, 2006.

TRD-200601519

Stephanie Bergeron Perdue

Acting Deputy Director, Of¿ce of Legal Services

Texas Commission on Environmental Quality

Effective date: March 29, 2006

Proposal publication date: December 16, 2005

For further information, please call: (512) 239-5017

CHAPTER 50. ACTION ON APPLICATIONS

AND OTHER AUTHORIZATIONS

SUBCHAPTER F. ACTION BY THE

COMMISSION

30 TAC §50.113

The Texas Commission on Environmental Quality (TCEQ or

commission) adopts the amendment to §50.113 with change to

the proposed text as published in the November 25, 2005, issue

of the Texas Register (30 TexReg 7810).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULE

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permitting

procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide

enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that

is a partnership between industry participants and the United

States Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration project

could result in major economic, social, and environmental bene-

ts for Texas, and that streamlining the permitting process for FutureGen projects would serve the public’s interest by improving

the state’s ability to compete for federal funding for FutureGen

projects. A specic requirement of HB 2201 is that FutureGen

permit applications shall not be subject to a contested case hearing. Under the adopted rule, the eligible permit applications for

FutureGen projects will be subject to the same permitting and

public participation processes that would otherwise apply to applications for most types of commission permits, except for contested case hearings.

The purpose of the adopted amendment to Chapter 50 is to implement the requirements of HB 2201 with respect to a streamlined permitting process for applications required to authorize a

component of the FutureGen project. Because HB 2201 eliminates contested case hearings on applications for permits required to authorize a component of the FutureGen project, the

amendment to §50.113 allows the commission to act on an application for a permit, registration, license, or other type of authorization required to construct, operate, or authorize a component

of the FutureGen project without holding a contested case hearing.

Corresponding rulemakings are published in this issue of the

Texas Register that include changes to 30 TAC Chapter 39, Public Notice; 30 TAC Chapter 55, Requests for Reconsideration

and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public Notice and Public Participation Requirements for Specic Designated Facilities; 30 TAC Chapter

116, Control of Air Pollution by Permits for New Construction or

Modication; and 30 TAC Chapter 331, Underground Injection

Control.

SECTION DISCUSSION

§50.113, Applicability and Action on Application.

The adopted amendment adds new subsection (d)(7), which

states that the commission may act on an application for a permit, registration, license, or other type of authorization required

to construct, operate, or authorize a component of the FutureGen project as dened in §91.30, Denitions, without holding

a contested case hearing. Concurrently, adopted new Chapter

91 provides the streamlined permitting process for applications

for a permit, registration, license, or other type of authorization

required to construct, operate, or authorize a component of the

FutureGen project. In response to comments, the commission

has established a sunset date of January 1, 2018, for this

streamlined permitting process, so that applications submitted

after that date would no longer be excluded from contested

case hearings.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rule in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rule does not meet the

denition of a "major environmental rule." Under Texas GovADOPTED RULES March 24, 2006 31 TexReg 2479
§382.051, concerning Permitting Authority of Commission;

Rules, which authorizes the commission to issue permits and

adopt rules necessary for permits issued under THSC, Chapter

382; and THSC, §382.05195, concerning Standard Permit,

which authorizes the commission to issue standard permits for

new and existing similar facilities.

The adopted repeal implements TWC, §5.103 and §5.105 and

THSC, §§382.002, 382.011, 382.012, 382.017, 382.051, and

382.05195.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on March 6, 2006.

TRD-2006001420

Stephanie Bergeron Perdue

Acting Deputy Director, Of¿ce of Legal Services

Texas Commission on Environmental Quality

Effective date: September 1, 2006

Proposal publication date: September 9, 2005

For further information, please call: (512) 239-5017

SUBCHAPTER L. PERMITS FOR SPECIFIC

DESIGNATED FACILITIES

30 TAC §§116.1400, 116.1402, 116.1404, 116.1406, 116.1408,

116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422,

116.1424, 116.1426, 116.1428

The Texas Commission on Environmental Quality (TCEQ or

commission) adopts new §§116.1400, 116.1402, 116.1404,

116.1406, 116.1408, 116.1410, 116.1414, 116.1416, 116.1418,

116.1420, 116.1422, 116.1424, 116.1426, and 116.1428. Sections 116.1402, 116.1404, 116.1408, 116.1414, 116.1416,

116.1422, and 116.1424 are adopted with changes to the

proposed text as published in the November 25, 2005, issue

of the Texas Register (30 TexReg 7831). Sections 116.1400,

116.1406, 116.1410, 116.1418, 116.1420, 116.1426, and

116.1428 are adopted without changes to the proposed text and

will not be republished. The new sections will be submitted to

the United States Environmental Protection Agency (EPA) as a

revision to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permitting

procedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide (CO2

) enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration

project that is a partnership between industry participants and

the United States Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration project could result in major economic, social, and environmental benets for Texas, and that streamlining the permitting

process for FutureGen projects would serve the public’s interest

by improving the state’s ability to compete for federal funding

for FutureGen projects. A specic requirement of HB 2201 is

that FutureGen permit applications shall not be subject to a contested case hearing. Under the adopted rules, eligible permit

applications for FutureGen projects will be subject to the same

permitting and public participation processes that would otherwise apply to applications for most types of commission permits,

except for contested case hearings. Other portions of HB 2201

reected in the adopted rules dene relevant terms, establish an

emissions prole, and clarify jurisdiction issues between TCEQ

and the Railroad Commission of Texas. Much of the content of

the adopted rules originates from Texas Health and Safety Code

(THSC), new §382.0565, Clean Coal Project Permitting Procedure, and Texas Water Code (TWC), new §5.558 and §27.022,

which were created by HB 2201.

The purpose of the revisions to Chapter 116 is to implement the

requirements of HB 2201, specically, to establish a reasonably

streamlined procedure for the commission to authorize the emission of certain air contaminants by projects within the commission’s jurisdiction that are a component of the FutureGen project.

Because HB 2201 eliminates contested case hearings on applications for permits required to authorize a component of the

FutureGen project, public notice requirements for these applications need to be modied to reect that the applications are not

subject to contested case hearings.

Corresponding rulemakings are published in this issue of the

Texas Register that include changes to 30 TAC Chapter 39, Public Notice; 30 TAC Chapter 50, Action on Applications and Other

Authorizations; 30 TAC Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC

Chapter 91, Alternative Public Notice and Public Participation

Requirements for Specic Designated Facilities; and 30 TAC

Chapter 331, Underground Injection Control.

SECTION BY SECTION DISCUSSION

§116.1400. Purpose; and §116.1402. Applicability.

The commission adopts these new sections to specify the purpose and applicability of new Subchapter L, Permits for Specic

Designated Facilities. Specically, the purpose of the new subchapter is to establish reasonably streamlined procedures to issue authorization for certain projects; those procedures are applicable to authorizations to construct and operate a component

of the FutureGen project. In response to comments, the commission has revised §116.1402 to clarify that modications that

would trigger amendments to a FutureGen permit will be subject

to the notice and hearing provisions of Subchapter L, and would

not be subject to a contested case hearing. In response to comments, the commission has also revised §116.1402 to establish

a sunset date of January 1, 2018. Applications or other requests

for authorization submitted after January 1, 2018, would not be

eligible to use the streamlined permitting provisions established

in Subchapter L. In response to comments, the commission has

also revised certain phrases for greater clarity.

§116.1404. Permit Required.

The adopted new section requires anyone planning to construct

a component of the FutureGen project designated in §116.1402

that may emit air contaminants into the air of this state to obtain a

permit under this chapter or qualify for a permit by rule under 30

TAC Chapter 106, Permits by Rule. The commission has revised

this section in response to comments, specically to clarify that

modications that trigger amendments to a FutureGen permit will

be subject to the notice and hearing provisions of Subchapter L,

and to indicate that other authorizations under Chapter 116, such

as a standard permit, may be used to authorize facilities that are

a component of the FutureGen project.

31 TexReg 2492 March 24, 2006 Texas Register
§116.1406. Compliance History.

The adopted new section requires compliance history reviews

for any applications under the new subchapter.

§116.1408. Denitions.

The adopted new section contains denitions applicable to the

new subchapter, clean coal projects, and the FutureGen project.

Specically, the section denes: clean coal project, coal, FutureGen project, component of the FutureGen project, FutureGen

project prole, hearing, and designated project. In response to

comments, the commission has added a denition of "Hearing"

to ensure that this term as used in Subchapter L is understood to

mean a notice and comment hearing and not a contested case

hearing.

§116.1410. Emissions Prole for FutureGen Projects.

The adopted new section establishes an emissions prole for FutureGen projects. This emissions prole is included in the event

that the United States Department of Energy does not specify an

emissions prole for the FutureGen project. The emissions pro-

le establishes limitations for the emissions of air contaminants

from a component of a FutureGen project.

§116.1414. Applications for Facilities that are Components of a

Designated Project.

The adopted new section provides the requirements for applications submitted under new §116.1404 and requires any

application to be submitted with a completed Form PI-1, Facility

Permit Application. New §116.1414(1) - (12) requires applicants

to make certain demonstrations regarding: protection of public

health and welfare; measurement of emissions; New Source

Performance Standards; National Emissions Standards for

Hazardous Air Pollutants (NESHAPs); NESHAPs for source

categories (applicable maximum achievable control technology

standard); performance demonstrations; nonattainment review;

prevention of signicant deterioration review; air dispersion

modeling or ambient monitoring; federal standards of review

for constructed or reconstructed major sources of hazardous

air pollutants; application content; and best available control

technology (BACT). In response to comments, the commission

has made several minor changes to this section to improve

consistency with permit application requirements in other subchapters of Chapter 116.

§116.1416. Public Notice.

The adopted new section establishes public notice requirements

for applications to construct a component of a FutureGen facility. These requirements include the following: publication of the

draft permit and preliminary decision in a newspaper of general

circulation in the municipality in which the site or proposed site

is located, or in the municipality nearest to the location of the

site or proposed site; and availability of a copy of the application

and draft permit for review and copying at a public place. New

§116.1416(a)(1) - (10) states the required contents of the notice, which in addition to factual information about the applicant

and the proposed location of the facility, includes a description

of the comment procedures; a statement that a person affected

by the emission of air pollutants is entitled to request a notice

and comment hearing under §116.1418, Public Participation, in

a font size that provides emphasis and distinguishes it from the

rest of the notice; a description of the procedure by which a person may be placed on a mailing list for further information; the

time and location of any public meeting, as applicable; and the

name, address, and phone number of the commission ofce to

be contacted for further information.

New §116.1416(b) and (d) provides the following procedural requirements: the applicant shall provide the executive director

and all local air pollution control agencies having jurisdiction a

copy of the public notice and date of publication; and the executive director shall make available for public inspection during the

public comment period a copy of the draft permit and complete

application.

New §116.1416(e) establishes the requirements for the sign that

the applicant shall place at the site declaring the ling of the application and stating how the executive director may be contacted

for further information; new §116.1416(c) requires the applicant

to submit certication of compliance with the signage requirements in §116.1416(e).

New §116.1416(f) requires that the executive director receive

public comment for 30 days after the notice is published; new

§116.1416(g) allows the draft permit to be changed based on

comments received. In response to comments, the commission has added a new §116.1416(h), concerning alternative language public notice and sign-posting requirements consistent

with other permit applications under Chapter 116.

§116.1418. Public Participation.

The adopted new section provides specic procedures for public participation in the issuance of a FutureGen permit. The new

section states that permit applications for a component of a FutureGen project are not subject to a contested case hearing, establishes a process for issuing permits required to construct a

component of the FutureGen project, and provides procedures

for public comment. THSC, §382.0565(c), and TWC, §5.558(b),

both require the commission’s use of "public meetings, informal

conferences, or advisory committees to gather the opinions and

advice of interested persons." With respect to the use of public

meetings, the intent of new §116.1418 is to provide a notice and

comment hearing procedure to facilitate those public meetings.

Any public hearing held under this subchapter is not an evidentiary proceeding.

New §116.1418(a) states that applications under this chapter are

not subject to the contested case hearing process, but are subject to a notice and comment hearing process.

New §116.1618(b) - (m) species the notice and comment hearing process. Specically, subsections (b) - (m) allow for any person affected by emissions from a site regulated by this subchapter to request, within the 30-day comment period, the executive

director to hold a notice and comment hearing on the draft permit; provide that the executive director shall decide whether to

hold a hearing; state the requirements for publication of notice

of a hearing on a draft permit; require the applicant to submit to

the executive director and all local air pollution agencies having

jurisdiction a copy of the notice of hearing and date of publication; allow the hearing notice to be combined with the notice of

the draft permit required by this subchapter; allow any person to

submit oral or written statements and data concerning the draft

permit; require that any person believing that the draft permit

or preliminary decision are inappropriate shall submit all reasonable arguments before the end of the comment period; and state

the requirements for the executive director in responding to comments. These subsections also include administrative provisions

requiring a tape recording or written transcript of the hearing to

be made available to the public; requiring the executive director

to keep and make available to the public a record of all comADOPTED RULES March 24, 2006 31 TexReg 2493
ments received and issues raised at the hearing; allowing the

draft permit to be changed based on comments; and establishing the procedure for the executive director to provide notice of

the executive director’s nal decision, the executive director’s response to any comments submitted during the comment period

or at the public hearing specied in this section, and the identi-

cation of any change in the condition of the draft permit and the

reasons for the change to any person who commented during

the public comment period or at the hearing, and to the applicant.

Finally, new §116.1418(n) requires the commission to use public meetings, informal conferences, or advisory committees to

gather the opinions and advice of interested persons for all permits issued under this subchapter. Any public meetings held under this subchapter shall follow the notice and comment hearing

procedures as dened in subsections (a) - (m). The executive

director shall hold a public meeting on the request of a member

of the legislature who represents the general area in which the

facility is located or proposed to be located; or if the executive

director determines that there is substantial public interest in the

proposed activity.

§116.1420. Permit Fee.

The adopted new section requires payment of a permit fee consistent with the requirements of Chapter 116, Subchapter B, Division 4, Permit Fees.

§116.1422. General and Special Conditions.

The adopted new section states certain general and special conditions that will be included in permits issued under this subchapter. The general conditions in new §116.1422(b) include a

report of construction progress, startup notication, sampling requirements, equivalency of methods, recordkeeping, maximum

allowable emission rates, maintenance of emission control, and

compliance with applicable rules. New §116.1422(c) allows special conditions that are more restrictive than those in this title to

be attached to a permit. In response to comments, the commission added a requirement that an additional startup notication

be submitted to any local air pollution control agencies having

jurisdiction.

§116.1424. Amendments and Alterations of Permits Issued Under this Subchapter.

The adopted new section provides requirements for amendments or alterations of permits issued under this subchapter. In

response to comments, the commission revised this section to

clarify that amendments and alterations to a FutureGen permit

would not be subject to a contested case hearing.

§116.1426. Renewal of Permits Issued Under this Subchapter.

The adopted new section provides for renewals of permits issued

under this subchapter.

§116.1428. Delegation.

The adopted new section delegates to the executive director authority to take action on a permit issued under this subchapter.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rules do not meet the definition of a "major environmental rule" as dened in the statute.

Therefore, Texas Government Code, §2001.0225, does not apply to this rulemaking. "Major environmental rule" is dened in

Texas Government Code, §2001.0225(g)(3), as a rule the specic intent of which is to protect the environment or reduce risks

to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, or the

public health and safety of the state or a sector of the state. The

adopted rules are intended to establish notice requirements for

authorizing certain types of projects required for the FutureGen

project. The adopted rules are only procedural rules establishing

public notice requirements to administer the program for permitting FutureGen projects and are not specically intended to protect the environment or to reduce risks to human health. The

adopted rules are intended to provide an alternative mechanism

for public participation and do not alter the underlying technical

review requirements. Therefore, because this rulemaking will

not adversely affect in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment, or

the public health and safety of the state or a sector of the state,

the rulemaking does not t the denition of "major environmental

rule" in Texas Government Code, §2001.0225.

Furthermore, the adopted rulemaking does not meet any of the

four applicable requirements listed in Texas Government Code,

§2001.0225(a). Texas Government Code, §2001.0225(a), only

applies to a major environmental rule adopted by an agency, the

result of which is to: 1) exceed a standard set by federal law,

unless the rule is specically required by state law; 2) exceed an

express requirement of state law, unless the rule is specically

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or

representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specic state law.

In this case, the adopted rules do not meet any of these applicability requirements. First, the adopted rules are consistent

with, and do not exceed, the standards set by federal law. Second, the adopted rules do not exceed an express requirement

of state law, instead these rules implement HB 2201. Third,

the rules do not exceed an express requirement of a delegation

agreement or contract between the state and an agency or representative of the federal government to implement a state and

federal program. Fourth, the commission does not adopt these

rules solely under the general powers of the agency, but rather

under the authority of THSC, §382,0565, as added by HB 2201,

which directs the commission, by rule, to implement reasonably

streamlined processes for issuing permits required to construct

a component of a FutureGen project, as authorized by federal

law; TWC, §5.558, as amended by HB 2201, which directs the

commission, by rule, to implement reasonably streamlined processes for issuing permits required to construct a component of

a FutureGen project, as authorized by federal law; and TWC,

§27.022, as added by HB 2201, which establishes the commission’s jurisdiction over the injection of CO2 produced by a clean

coal project to the extent authorized by federal law.

Because the adopted rules do not constitute a major environmental rule, a regulatory impact analysis is not required.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted rules and performed

an assessment of whether this rulemaking would constitute a

takings under Texas Government Code, Chapter 2007. The

adopted rules are intended to establish a streamlined process

for authorizing certain types of projects required for the FutureGen project. The adopted rules are only procedural rules

31 TexReg 2494 March 24, 2006 Texas Register
establishing a system to administer the program for permitting

FutureGen projects and are not specically intended to protect

the environment or to reduce risks to human health. The

adopted rules are intended to provide an alternative mechanism

for public participation and do not alter the underlying technical

review requirements. Promulgation and enforcement of the

rules will not affect private real property in a manner that would

require compensation to private real property owners under

the United States Constitution or the Texas Constitution. The

adopted rules also will not affect private real property in a

manner that restricts or limits an owner’s right to the property

that would otherwise exist in the absence of the governmental

action. Consequently, the adopted rules do not meet the denition of a takings under Texas Government Code, §2007.002(5).

Therefore, the adopted rules will not constitute a takings under

Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking relates to an

action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of

1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject

to Consistency with the Goals and Policies of the Texas Coastal

Management Program (CMP), and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management

Program, commission rules governing air pollutant emissions

must be consistent with the applicable goals and policies of the

CMP. The commission reviewed this rulemaking for consistency

with the CMP goals and policies in accordance with the rules of

the Coastal Coordination Council, and determined that the action

is consistent with the applicable CMP goals and policies. The

CMP goal applicable to this rulemaking is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and

values of coastal natural resource areas (31 TAC §501.12(l)).

The adopted rules include procedural mechanisms to authorize

new sources of air contaminants; however, the rules do not create any new types of authorizations for new sources of air contaminants. The CMP policy applicable to this rulemaking is the

policy that commission rules comply with federal regulations in

40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking

complies with 40 Code of Federal Regulations Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31 TAC §505.22(e),

the commission afrms that this rulemaking is consistent with

CMP goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Because new Subchapter L includes applicable requirements

under 30 TAC Chapter 122, Federal Operating Permits Program,

owners or operators subject to the Federal Operating Permit Program must, consistent with the revision process in Chapter 122,

revise their operating permit to include the new Subchapter L requirements for each emission unit affected by the addition of the

requirements in Subchapter L at their site.

PUBLIC COMMENT

A public hearing for this rulemaking was held on December 20,

2005, in Austin, and the comment period closed on December

27, 2005. The commission received comments from EPA, Environmental Defense (ED), the FutureGen Texas Advisory Board

(FGTAB), the Sierra Club Houston Regional Group (HSC), the

Center for Energy and Economic Development (CEED), and the

Clean Coal Technology Foundation of Texas (CCTFT).

RESPONSE TO COMMENTS

HSC supported the provisions added to Chapters 91 and 116,

which implement public notice, public meeting opportunities, and

public comment opportunities before the executive director, and

indicated support that the commission can conduct public meetings and hear an appeal of the decision of the executive director.

HSC expressed general opposition to the proposed rules that

would allow a permit to be issued for a FutureGen project without

providing the public with an opportunity to request and receive a

contested case hearing.

The commission is not changing the rules in response to this

comment. The adopted rules implement HB 2201, passed by

the 79th Texas Legislature. Sections 3 and 7 of HB 2201 amend

portions of the THSC and TWC to provide that permit applications for facilities that are a component of the FutureGen project

are not subject to contested case hearings. The commission is

required by HB 2201 to adopt rules to implement the statutory

changes specied by HB 2201. Under the adopted rules, the

public retains the ability to participate in the permitting process by

submitting written comments during the comment period, and/or

by requesting a notice and comment hearing on the permit.

HSC asked that TCEQ provide a description of the economic,

social, and environmental benets of the FutureGen project.

In its ndings articulated in HB 2201, the legislature described

a number of economic and social benets that the FutureGen

project could bring to Texas, including the creation of more than

11,000 jobs, compensation for workers exceeding $374 million,

increased tax revenue of $98 million, and an estimated total economic benet of $1.20 billion. With respect to the environment,

the FutureGen project has the potential to produce power with

reduced emissions of air contaminants compared to other widely

used power generation technologies, and may result in the subsequent wider adoption of clean coal technology in future power

generating projects.

HSC commented that FutureGen represents a complex, unproven set of technologies that may have signicant impact on

air quality, groundwater quality, and surface and subsurface

land. HSC commented that an environmental impact statement

is needed for any FutureGen proposal so all impacts can be

considered by TCEQ and the public. HSC urged that TCEQ

determine all air, water, and land environmental impacts and

reveal them to the public, such that the public will have an

opportunity to comment in an inclusive and comprehensive

manner.

As a normal part of the commission’s permit review process,

the environmental effects on all affected media will be considered. The public will have an opportunity to review and comment

on these effects through the public notice and public comment

process that is available for each type of applicable permit.

HSC submitted numerous comments speculating on the effects

of CO2 sequestration and underground injection, and acknowledged that little data exists on this technology. HSC urged the

commission to determine air, water, and land effects through its

permitting authority. Examples of its concerns included: 1) the

effects of existing wells in the carbon sequestration area; 2) the

ADOPTED RULES March 24, 2006 31 TexReg 2495
effect of CO2 injection on saline aquifer water quality; and 3) the

harm that may come to soil bacteria as a result of carbon sequestration.

The commission’s federally authorized Underground Injection

Control (UIC) Program has signicant experience and data relating to protection of fresh water from the potential adverse impact

of underground injection of liquid waste, including proper evaluation of injection and conning zones, subsurface faults and

fractures, and other wells in the area of review. While the commission does not have data on some of the specic CO2 injection

concerns listed by HSC, the commission notes that underground

injection of CO2 has been commonly used for enhanced recovery of oil and gas under the Railroad Commission of Texas jurisdiction without any known harmful effects. The commission

also recognizes that the technical concerns posed by HSC are

the subject of signicant research efforts being conducted by the

Texas Bureau of Economic Geology in association with a number of other research institutions, participating industries, and

government agencies. The commission will review individual requests for well authorization under these rules using the environmentally protective rules and procedures of the UIC well permitting program. Therefore, the commission is not changing the

rules in response to these comments.

FGTAB, CCTFT, and CEED commented that proposed Chapter

116, Subchapter L should be claried to ensure that the initial

permitting and subsequent amendments to a FutureGen project

permit are not subject to the contested case hearings process.

FGTAB and CCTFT suggested that Chapter 116 should state

that Subchapter L will dene the complete procedural requirements that apply to the issuance of any or all permits for a component of the FutureGen facility.

The commission agrees that the proposed rules should be claried to ensure that both initial permitting, and amendments to a

FutureGen permit, are not subject to the contested case hearing process. The commission is revising §§116.1402, 116.1404,

and 116.1424 accordingly.

ED commented that an exemption from contested case treatment for all amendments and alterations of FutureGen permits

would be too broad, and suggested that an amendment or alteration should not qualify for streamlined permitting unless the

proposed changes themselves satisfy the HB 2201 denition of

a FutureGen project component.

In response to other comments, the commission has added language to §§116.1402, 116.1404, and 116.1424 to clarify that

amendments and alterations of a FutureGen permit are also eligible to use the streamlined public participation requirements

contained in Subchapter L. The streamlining provisions of HB

2201 only apply to the construction or modication of a component of the FutureGen project.

CEED commented that there was no need for a sunset provision in the rules, because the FutureGen initiative represented

a one-of-a-kind project. HSC and ED commented that an expiration date should be included in the rules. HSC suggested an

expiration date of 2010, and ED suggested an expiration date of

January 1, 2015.

The commission is changing the rule in response to this comment and is establishing a sunset date of January 1, 2018. Applications or other requests for authorization submitted after this

date would not be excluded from contested case hearings. This

change will ensure that the streamlined permitting processes of

Chapters 91 and 116 are only used for their intended purpose of

providing an incentive for the FutureGen project construction.

ED commented that the proposed rules should contain a provision ensuring that the commission shall use public meetings,

informal conferences, or advisory committees to gather the opinions and advice of interested persons, as mandated by HB 2201.

The suggested provision was proposed and is being adopted in

§116.1418(n).

ED commented that the commission should not exempt nonattainment or prevention of signicant deterioration reviews from

contested case hearings, and to do so would be inconsistent with

federal clean air law.

Although federal law requires the availability of a hearing for

nonattainment and prevention of signicant deterioration permits, a notice and comment style hearing is sufcient to satisfy the applicable federal requirements. The commission is not

changing the rules in response to this comment.

HSC suggested dening the terms "integrated sequestration,"

"sequester," and "carbon sequestration" since these terms are

relevant to dene eligible projects. HSC also suggested dening

the term "carbon dioxide capture technology."

The commission reviewed the use of these terms in the context

of the FutureGen project and determined that the rule language

provides sufcient limits on eligible projects and that denitions

of these terms are not necessary. The commission is not changing the rules in response to this comment.

HSC questioned how the commission denes "reasonably

streamlined procedures" under §116.1400.

The term "reasonably streamlined procedures" refers to the altered public participation process for FutureGen permit applications, specically the use of a notice and comment hearing

process instead of a contested case hearing process.

EPA commented that the denition of coal used in the proposed

rules should be revised to match the denition of coal specied in

40 Code of Federal Regulations Part 60, Subpart Da, §60.41Da.

HB 2201 specied a denition of coal to be used in association

with permitting of FutureGen sources and the commission believes it is necessary to maintain the proposed denition of coal

to maintain consistency with HB 2201. The commission is not

changing the rules in response to this comment.

FGTAB, CCTFT, and CEED suggested rephrasing §116.1402(b)

to extend the applicability of the FutureGen rules to applications

for permit amendments.

The commission agrees with the suggested change and has

rephrased the section accordingly.

FGTAB, CCTFT, and CEED commented that proposed

§116.1404 appears to limit the options for authorizing a

component of the FutureGen project, because it only refers to

permits issued under Subchapter L and to permits by rule under

Chapter 106. FGTAB and CEED noted that other options, such

as standard permits, should be available.

The commission agrees that the proposed rules should be claried to ensure that all types of authorization, including standard

permits, are available to authorize components of the FutureGen

project. The commission has revised §116.1404 accordingly.

31 TexReg 2496 March 24, 2006 Texas Register
HSC commented that §116.1410 should address how leaks of

CO2 to the atmosphere or to water would be addressed in the

applicable permit.

As part of the permitting process, TCEQ species appropriate

leak detection and repair (LDAR) programs in situations where

there is a potential for harmful leaks. These LDAR programs vary

depending on the nature of the process and the nature of the air

contaminants involved. However, the commission typically does

not require LDAR programs for emissions of CO2

, because the

commission does not currently regulate emissions of CO2 when

it is directly vented to the atmosphere or as a fugitive emission.

At this time, the commission does not have enough information

to specify what, if any, LDAR program will be required for any

proposed FutureGen installation.

EPA commented that the emissions prole in §116.1410(1) and

(2) is based on percentages of sulfur and mercury concentrations found in the coal, instead of a specic limit based on control technologies, and allows for emissions that are too variable

to ensure low emission rates. EPA suggested that a discussion

should be provided to explain how the emission limitations in the

proposed rules were derived. EPA also commented that a discussion should be provided to explain how the emission limitations for nitrogen oxides and particulate emissions in §116.1410

were determined.

The emission prole specied in §116.1410 was established by

HB 2201, which amended portions of the THSC to dene the pro-

le in statute. In general, the commission is obligated to follow

the prole in the statute. However, in order to obtain a permit under Chapter 116, a proposed facility is required to employ BACT

to control emissions from the facility. If control technology advances to a point where BACT would result in lower emissions

than the prole, the facility would be required to comply with a

lower allowable emission rate that reects applicable BACT.

EPA commented that a contingency statement should be included in §116.1410 so that if future technology results in the

ability to achieve lower emission rates, the regulations will

be revised to ensure that they remain up-to-date with current

technology.

In order to obtain a permit under Chapter 116, a proposed facility

is required to meet BACT, regardless of the emission limitations

in the emission prole. If BACT would result in an emission rate

that is lower than the rate specied in the prole, the applicant

would be required to include BACT in the design of the facility. Because existing rules already require BACT, adding EPA’s

suggested change would be redundant. The commission is not

changing the rules in response to this comment.

HSC commented that §116.1414 does not require compliance

with EPA regional haze rules or interstate transport rules, and

that any FutureGen proposal must comply with rules under those

EPA programs.

A FutureGen installation is potentially subject to a wide range

of state and federal regulations. Although §116.1414 does not

specically refer to the regulations cited by HSC’s comment,

compliance with all applicable federal regulations is still required.

The fact that §116.1414 does not identify every regulation does

not relieve a FutureGen source from the obligation to comply

with all applicable regulations. It is not practical to identify every

applicable rule or regulation in the adopted rules; therefore, the

commission is not adding a reference to the specied rules.

FGTAB and CCTFT suggested inserting the word "applicable"

prior to the phrase "rules and regulations" in §116.1414(1) for

consistency with similar language in Chapter 116, Subchapter

B. FGTAB suggested inserting the word "signicant" prior to

the phrase "air contaminant" in §116.1414(2) and deleting the

phrase "at least" prior to the phrase "the requirements of any

applicable" in §116.1414(3) - (5), for consistency with similar

language in Chapter 116, Subchapter B.

The commission agrees with the suggested changes and has

revised the indicated section accordingly.

HSC commented that §116.1414(2) and (6) should be revised to

specify that the permit will contain provisions for measuring the

emission of air contaminants, including initial performance testing and emission monitoring. HSC commented that the monitoring of process variables, or parametric or predictive monitoring,

would not be sufcient to demonstrate the performance of the

technology or measure the actual contaminants being released.

The commission has revised §116.1414(2) to state that the permit will contain provisions for measuring the emission of air contaminants as determined by the commission. The commission

disagrees with the remainder of HSC’s comment. As part of

the permit review, appropriate methods of demonstrating compliance and monitoring compliance will be identied and incorporated into the permit. The commission acknowledges that the

monitoring of process variables, or other parametric or predictive monitoring, is not suitable in every circumstance, but those

technologies should not be excluded from possible use.

EPA commented that §116.1414(12) should state that a proposed facility shall use lowest achievable emission rate (LAER)

technology if the project is located in a nonattainment area.

All projects located in nonattainment areas must comply with

applicable requirements of Chapter 116, Subchapter B, Division

5, Nonattainment Review. This includes the FutureGen project.

Because the applicable requirements concerning nonattainment

review and LAER are fairly detailed and are already specied

in Chapter 116, Subchapter B, it would be redundant to repeat

those requirements within Subchapter L. A reference to these

nonattainment permitting requirements is already included in

§116.1414(7). The commission is not changing the rules in

response to this comment.

FGTAB, CCTFT, and CEED commented that proposed

§116.1416 repeatedly refers to hearings and that further

clarication is needed to avoid misinterpretation or conicts.

FGTAB and CEED suggested that the term "hearings" be

dened to mean notice and comment hearings.

The commission concurs with this comment and has added a

denition of "Hearing" to §116.1408, to ensure that when the term

is used within Subchapter L, the term will mean a notice and

comment hearing and not a contested case hearing.

HSC commented that the public notice requirements in

§116.1416 for both newspaper notices and signs should

be in at least two languages (or as many as are spoken by

people in the area), similar to what the commission requires for

federal operating permits. HSC made a similar comment on

§116.1418 concerning notices for public meetings and public

hearings.

The commission has added additional language to §116.1416 to

provide for alternative language public notice.

ADOPTED RULES March 24, 2006 31 TexReg 2497
HSC commented that the commission should dene the phrases

"reasonably ascertainable public issues" and "reasonably available arguments" as used in §116.1418(j) to provide greater clarity for the public.

These phrases have the same meaning as used in the existing

notice and hearing requirements of Chapter 122, and they have

not been a signicant source of confusion. The commission is

not changing the rules in response to this comment.

HSC commented that the commission should make clear in

§116.1422 that the permit application is a legal document and

its conditions are legally binding on the permit holder.

Except where otherwise noted, permits issued under Chapter

116, Subchapter L, remain subject to the requirements of Chapter 116, Subchapter B, New Source Review Permits. Section

116.116(a), Changes to Facilities, requires that representations

in a permit application are conditions upon which the permit is

issued. The suggested change to §116.1422 would be redundant, and the commission is not changing the rules in response

to this comment.

HSC commented that §116.1422(b)(2)(A), which requires a notication of startup to the appropriate regional ofce, should include a similar notication requirement for local air pollution control agencies having jurisdiction so those local agencies would

be informed and have an opportunity to observe the commencement of operation.

The commission agrees with HSC’s comment and is making the

suggested change to the rules.

HSC commented that documentation of compliance with permit conditions under §116.1422(b)(5)(E) should be maintained

for at least ve years, and not two years as proposed. HSC

commented that the time period should be consistent with the

ve-year compliance history review.

The two-year record retention period is consistent with the normal record retention period used for air permits, and the commission believes it is sufcient to provide a means to determine

compliance. The commission is not changing the rules in response to this comment.

STATUTORY AUTHORITY

The new sections are adopted under TWC, §5.103, concerning

Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its

powers and duties under the TWC; and under THSC, §382.017,

concerning Rules, which authorizes the commission to adopt

rules consistent with the policy and purposes of the Texas

Clean Air Act. The new sections are also adopted under THSC,

§382.002, concerning Policy and Purpose, which establishes

the commission’s purpose to safeguard the state’s air resources,

consistent with the protection of public health, general welfare,

and physical property; THSC, §382.011, concerning General

Powers and Duties, which authorizes the commission to control

the quality of the state’s air; THSC, §382.012, concerning State

Air Control Plan, which authorizes the commission to prepare

and develop a general, comprehensive plan for the control of

the state’s air; THSC, §382.0518, concerning preconstruction

permits; THSC, §382.056, concerning notice of intent to obtain permit or permit review and hearing; THSC, §382.0565,

concerning clean coal project permitting procedure; and TWC,

§5.558, concerning clean coal project permitting.

The adopted new sections implement TWC, §5.558(c) and

THSC, §382.0565(d).

§116.1402. Applicability.

(a) This subchapter applies to applications for authorization

required to construct and operate a component of the FutureGen

project, and to applications to authorize modication of a component

of the FutureGen Project.

(b) This subchapter does not apply to an application for a permit to construct or modify a new or existing coal-red electric generating facility that will use pulverized or supercritical pulverized coal.

(c) This subchapter does not apply to any applications or other

requests for authorization submitted after January 1, 2018.

§116.1404. Permit Required.

Any person who plans to construct or modify a component of a project

as designated in §116.1402 of this title (relating to Applicability) that

may emit air contaminants into the air of this state must obtain a permit

under this chapter or qualify for a permit by rule under Chapter 106 of

this title (relating to Permits by Rule).

§116.1408. Denitions.

The following words and terms, when used in this subchapter, have the

following meanings, unless the context clearly indicates otherwise.

(1) Clean coal project--The installation of one or more

components of the coal-based integrated sequestration and hydrogen

research project to be built in partnership with the United States Department of Energy, commonly referred to as the FutureGen project.

The term includes the construction or modication of a facility for

electric generation, industrial production, or the production of steam

as a byproduct of coal gasication to the extent that the facility installs

one or more components of the FutureGen project.

(2) Coal--All forms of coal, including lignite.

(3) Component of the FutureGen project--A process, technology, or piece of equipment that:

(A) is designed to employ coal gasication technology

to generate electricity, hydrogen, or steam in a manner that meets the

FutureGen project prole;

(B) is designed to employ fuel cells to generate electricity in a manner that meets the FutureGen project prole;

(C) is designed to employ a hydrogen-fueled turbine to

generate electricity where the hydrogen is derived from coal in a manner that meets the FutureGen project prole;

(D) is designed to demonstrate the efcacy at an electric

generation or industrial production facility of a carbon dioxide capture

technology in a manner that meets the FutureGen project prole;

(E) is designed to sequester a portion of the carbon

dioxide captured from an electric generation or industrial production facility in a manner that meets the FutureGen project prole

in conjunction with appropriate remediation plans and appropriate

techniques for reservoir characterization, injection control, and monitoring;

(F) is designed to sequester carbon dioxide as part of

enhanced oil recovery in a manner that meets the FutureGen project

prole in conjunction with appropriate techniques for reservoir characterization, injection control, and monitoring;

(G) qualies for federal funds designated for the FutureGen project;

31 TexReg 2498 March 24, 2006 Texas Register
(H) is required to perform the sampling, analysis, or research necessary to submit a proposal to the United States Department

of Energy for the FutureGen project; or

(I) is required in a nal United States Department of

Energy request for proposals for the FutureGen project or is described

in a nal United States Department of Energy request for proposals as

a desirable element to be considered in the awarding of the project.

(4) Designated project--Any project subject to the jurisdiction of the commission and designated by the legislature as subject to

the alternate public notice requirements in this subchapter.

(5) FutureGen project--A common reference to the coalbased integrated sequestration and hydrogen project to be built in partnership with the United States Department of Energy.

(6) FutureGen project prole--A standard or standards relevant to a component of the FutureGen project, as provided in a nal

or amended United States Department of Energy request for proposals

or contract.

(7) Hearing--A notice and comment hearing and not a contested case hearing.

§116.1414. Applications for Facilities that are Components of a Designated Project.

Any application submitted under §116.1404 of this title (relating to Permit Required) must include a completed Form PI-1, General Application for Air Preconstruction Permits and Amendments. The Form PI-1

must be signed by an authorized representative of the applicant. The

Form PI-1 species additional support information that must be provided before the application is deemed complete. In order to be granted

a permit, the applicant for a project as designated in §116.1402(a) of

this title (relating to Applicability) shall submit information to the commission that demonstrates that all of the following are met.

(1) Protection of public health and welfare. The emissions

from the facility will comply with all applicable rules and regulations

of the commission and with the intent of Texas Health and Safety Code,

Chapter 382, the Texas Clean Air Act (TCAA), including protection of

the health and physical property of the people.

(2) Measurement of emissions. The permit will have provisions for measuring the emission of signicant air contaminants as

determined by the commission. These provisions may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural

Resource Conservation Commission Sampling Procedures Manual,"

portable analyzers, or emissions calculations if a known process variable is monitored.

(3) New Source Performance Standards (NSPS). The emissions from each affected facility as dened in 40 Code of Federal Regulations (CFR) Part 60 will meet the requirements of any applicable

NSPS as listed under 40 CFR Part 60, promulgated by the United States

Environmental Protection Agency (EPA) under the authority granted

under Federal Clean Air Act (FCAA), §111, as amended.

(4) National Emission Standards for Hazardous Air Pollutants (NESHAPs). The emissions from each facility as dened in 40

CFR Part 61 will meet the requirements of any applicable NESHAPs,

as listed under 40 CFR Part 61, promulgated by EPA under the authority granted under FCAA, §112, as amended.

(5) NESHAPs for source categories. The emissions from

each affected facility shall meet the requirements of any applicable

maximum achievable control technology standard as listed under 40

CFR Part 63, promulgated by EPA under FCAA, §112, or as listed in

Chapter 113, Subchapter C of this title (relating to National Emission

Standards for Hazardous Air Pollutants for Source Categories (FCAA,

§112, 40 CFR Part 63)).

(6) Performance demonstration. The facility will achieve

the performance specied in the permit application. The commission

may require the applicant to submit additional engineering data after

the permit has been issued in order to demonstrate further that the facility will achieve the performance specied in the permit. In addition,

the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measured

process variables, parametric or predictive monitoring, stack monitoring, or stack testing.

(7) Nonattainment review. A facility in a nonattainment

area shall comply with all applicable requirements under Subchapter

B, Division 5 of this chapter (relating to Nonattainment Review).

(8) Prevention of signicant deterioration review. A facility in an attainment area shall comply with all applicable requirements

under Subchapter B, Division 6 of this chapter (relating to Prevention

of Signicant Deterioration Review).

(9) Air dispersion modeling or ambient monitoring. The

commission may require computerized air dispersion modeling and/or

ambient monitoring to determine the air quality impacts from the facility.

(10) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the facility is an

affected source as dened in §116.15(1) of this title (relating to Section

112(g) Denitions), the affected source shall comply with all applicable

requirements under Subchapter C of this chapter (relating to Hazardous

Air Pollutants: Regulations Governing Constructed or Reconstructed

Major Sources (FCAA, §112(g), 40 CFR Part 63)).

(11) Application content. In addition to any other requirements of this subchapter, the applicant shall:

(A) identify each facility to be included in the permit;

(B) identify the air contaminants emitted; and

(C) provide emission rate calculations.

(12) Best available control technology (BACT). The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility.

§116.1416. Public Notice.

(a) The executive director shall direct the applicant to publish

a notice of draft permit and preliminary decision, at the applicant’s

expense, in the public notice section of one issue of a newspaper of

general circulation in the municipality in which the site or proposed

site is located, or in the municipality nearest to the location of the site

or proposed site. The executive director shall direct the applicant to

make a copy of the application and draft permit available for review

and copying at a public place in the county in which the site is located

or proposed to be located. The notice shall contain the following information:

(1) the permit application number;

(2) the applicant’s or permit holder’s name, address, and

telephone number and a description of the manner in which a person

may contact the applicant or permit holder for further information;

(3) a description of the location of the site or proposed location of the site;

(4) a description of the activity or activities involved in the

permit application;

ADOPTED RULES March 24, 2006 31 TexReg 2499
(5) the location and availability of the following:

(A) the complete permit application;

(B) the draft permit;

(C) all other relevant supporting materials in the public

les of the agency;

(6) a description of the comment procedures, including the

duration of the public notice comment period and procedures to request

a hearing printed in a font style or size that clearly provides emphasis

and distinguishes it from the remainder of the notice;

(7) a statement that a person who may be affected by the

emission of air pollutants from the facility or facilities is entitled to

request a notice and comment hearing, under §116.1418 of this title

(relating to Public Participation), printed in a font style or size that

clearly provides emphasis and distinguishes it from the remainder of

the notice;

(8) a description of the procedure by which a person may

be placed on a mailing list in order to receive additional information

about the application or draft permit;

(9) if applicable, the time and location of any public meeting; and

(10) the name, address, and phone number of the commission to be contacted for further information.

(b) The applicant shall submit a copy of the public notice and

date of publication to the executive director and any local air pollution

control agencies having jurisdiction over the site.

(c) The applicant shall submit a statement to the executive director certifying that the sign required by subsection (e) of this section

has been posted consistent with the provisions of that subsection.

(d) The executive director shall make available for public inspection the draft permit and the complete application throughout the

comment period during business hours at the commission’s central of-

ce and at the appropriate commission regional ofce where the site is

located.

(e) At the applicant’s expense, a sign shall be placed at the

site declaring the ling of an application for a permit and stating the

manner in which the executive director may be contacted for further

information.

(1) The sign shall be provided by the applicant and shall

substantially meet the following requirements.

(A) The sign shall consist of dark lettering on a white

background and shall be not smaller than 18 inches by 28 inches and

all lettering shall be no less than 1-1/2 inches in size and block printed

capital lettering.

(B) The sign shall be headed by the words "PROPOSED AIR QUALITY PERMIT."

(C) The sign shall include the words "APPLICATION

NO." and the number of the permit application.

(D) The sign shall include the words "for further information contact."

(E) The sign shall include the words "TEXAS COMMISSION ON ENVIRONMENTAL QUALITY," and the address of

the appropriate commission regional ofce.

(F) The sign shall include the phone number of the appropriate commission regional ofce.

(G) The sign shall include the name of the company applying for the permit.

(2) The sign shall be in place by the date of publication of

the newspaper notice and shall remain in place and legible throughout

the period of public comment.

(3) The sign placed at the site shall be located at or near the

site’s main entrance, provided that the sign is legible from the public

street. If the sign would not be legible from the public street, then the

sign shall be placed within ten feet of a property line paralleling a public

street.

(A) The executive director may approve variations, if

the applicant has demonstrated that it is not practical to comply with

the specic sign-posting requirements

(B) Alternative sign-posting plans proposed by the applicant must be at least as effective in providing notice to the public.

(C) The executive director shall approve the variations

before signs are posted.

(f) The executive director shall receive public comment for 30

days after the notice of the public comment period is published. During

the comment period, any person may submit written comments on the

draft permit.

(g) The draft permit may be changed based on comments.

(h) Bilingual public notice requirements of this subsection are

applicable when either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual

education program as required by Education Code, Chapter 29, Subchapter B, and 19 TAC §89.1205(a) (relating to Required Bilingual

Education and English as a Second Language Programs), or if either

school received a waiver for a required bilingual education program

under the provisions of 19 TAC §89.1205(g). Schools not governed by

the provisions of 19 TAC §89.1205 shall not be considered in determining applicability of the requirements of this section. Elementary or

middle schools that offer English as a second language under 19 TAC

§89.1205(d), and are not otherwise affected by 19 TAC §89.1205(a),

will not have to meet the requirements of subsection (a) of this section.

If the notices required by this section and §116.1418 of this title are

combined, the combined notice is subject to the requirements of this

section. Each affected facility shall meet the following requirements.

(1) At the applicant’s expense, an additional notice shall be

published at least once in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle

school received a waiver for the requirements of 19 TAC §89.1205(a)

under 19 TAC §89.1205(g), the notice shall be published in the alternate languages in which the bilingual education program would have

been taught had the school not received a waiver for the bilingual education program.

(2) Each notice under this subsection shall be published in

a newspaper or publication that is published in the alternate language

in which public notice is required.

(3) The newspaper or publication must be of general circulation in the municipality or county in which the facility is located or

proposed to be located.

(4) The requirements of this section are waived for each

language in which no publication exists, or if the publishers of all alternate language publications refuse to publish the notice.

(5) Notice under this subsection shall only be required to

be published within the United States.

31 TexReg 2500 March 24, 2006 Texas Register
(6) If the alternate language publication is published less

frequently than once a month, this notice requirement may be waived

by the executive director on a case-by-case basis.

(7) Each alternate language publication shall follow the requirements of this section not otherwise inconsistent with this subsection.

(8) At the applicant’s expense, an additional sign shall be

posted at the site in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school

received a waiver for the requirements of 19 TAC §89.1205(a) under

19 TAC §89.1205(g), the alternate language signs shall be posted in the

alternate languages in which the bilingual education program would

have been taught had the school not received a waiver for the bilingual

education program.

(9) The alternate language signs shall be posted adjacent to

each English language sign required in public notice.

(10) The alternate language signs shall meet all other requirements of this section.

§116.1422. General and Special Conditions.

(a) Permits issued under this subchapter may contain general

and special conditions. The holders of a permit under this subchapter

shall comply with any and all such conditions.

(b) Holders of permits issued under this subchapter shall comply with the following general conditions, regardless of whether they

are specically stated within the permit document.

(1) Report of construction progress. The permit holder

shall report start of construction, construction interruptions exceeding

45 days, and completion of construction. The report shall be given

to the appropriate regional ofce of the commission not later than 15

working days after occurrence of the event.

(2) Startup notication.

(A) The permit holder shall notify the appropriate regional ofce of the commission, and any local air pollution control

agencies having jurisdiction, prior to the commencement of operations

of the facilities authorized by the permit. The notication must be made

in such a manner as to allow a representative of the commission and

a representative of any local air pollution control agency having jurisdiction to be present at the commencement of operations.

(B) The permit holder shall provide a separate notication for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations

at different times.

(C) Prior to operation of the facilities authorized by the

permit, the permit holder shall identify to the commission’s Ofce of

Permitting, Remediation, and Registration the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter

H, Division 3 of this title (relating to Mass Emissions Cap and Trade

Program).

(3) Sampling requirements.

(A) If sampling is required, the permit holder shall contact the commission’s Ofce of Compliance and Enforcement prior to

sampling to obtain the proper data forms and procedures.

(B) All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate

regional ofce of the commission.

(C) The permit holder is also responsible for providing

sampling facilities and conducting the sampling operations, or contracting with an independent sampling consultant.

(4) Equivalency of methods. The permit holder must

demonstrate or otherwise justify the equivalency of emission control

methods, sampling or other emission testing methods, and monitoring

methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing

and must be reviewed and approved by the executive director prior to

using these methods in fullling any requirements of the permit.

(5) Recordkeeping. The permit holder shall:

(A) maintain a copy of the permit along with records

containing the information and data sufcient to demonstrate compliance with the permit, including production records and operating hours;

(B) keep all required records in a le at the facility site.

If, however, the facility site normally operates unattended, records

must be maintained at an ofce within Texas having day-to-day

operational control of the facility site;

(C) make the records available at the request of the executive director or any local air pollution control agency having jurisdiction over the site. Upon request, the commission shall make any

such records of compliance available to the public in a timely manner;

(D) comply with any additional recordkeeping requirements specied in special conditions attached to the permit;

(E) retain information in the le for at least two years

following the date that the information or data is obtained; and

(F) for persons certifying and registering a federally enforceable emission limitation in accordance with §116.611 of this title

(relating to Registration to Use a Standard Permit), retain all records

demonstrating compliance for at least ve years.

(6) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions must

not exceed the values stated on the table attached to the permit entitled

"Emission Sources--Maximum Allowable Emission Rates."

(7) Maintenance of emission control. The permitted facilities shall not be operated unless all air pollution emission capture and

abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder

shall provide notication for emissions events and maintenance in accordance with Chapter 101, Subchapter F of this title (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities).

(8) Compliance with rules.

(A) Acceptance of a permit by an applicant constitutes

an acknowledgment and agreement that the permit holder will comply

with all rules, regulations, and orders of the commission issued in conformity with Texas Health and Safety Code, Chapter 382, Texas Clean

Air Act, and the conditions precedent to the granting of the permit.

(B) If more than one state or federal rule or regulation

or permit condition are applicable, the most stringent limit or condition

shall govern and be the standard by which compliance shall be demonstrated.

(C) Acceptance includes consent of the executive director to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating

to the emission or concentration of air contaminants, including compliance with the permit.

ADOPTED RULES March 24, 2006 31 TexReg 2501
(c) Special conditions. The holders of permits issued under

this subchapter shall comply with all special conditions contained in

the permit document.

(1) Special conditions may be attached to a permit that are

more restrictive than the requirements of this title.

(2) Special conditions for written approval.

(A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:

(i) a standard permit in accordance with Subchapter

F of this chapter (relating to Standard Permits); or

(ii) a permit by rule in accordance with Chapter 106

of this title (relating to Permits by Rule).

(B) Written approval may be required if the executive

director specically nds that an increase of a particular pollutant could

either:

(i) result in a signicant impact on the air environment; or

(ii) cause the facility to become subject to review in

accordance with:

(I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)); or

(II) the provisions in Subchapter B, Divisions 5

and 6 of this chapter (relating to Nonattainment Review and Prevention

of Signicant Deterioration Review).

§116.1424. Amendments and Alterations of Permits Issued Under

This Subchapter.

The owner or operator planning the modication of a facility permitted

under this subchapter must comply with the requirements of Subchapter B of this chapter (relating to New Source Review Permits) before

work begins on the construction of the modication. Amendments and

alterations for permits issued under this subchapter are subject to the

requirements of Subchapter B of this chapter, except that the public

notice and public participation requirements of this subchapter shall

apply instead of any public notication or public comment procedures

required by Subchapter B of this chapter.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on March 9, 2006.

TRD-200601524

Stephanie Bergeron Perdue

Acting Deputy Director, Of¿ce of Legal Services

Texas Commission on Environmental Quality

Effective date: March 29, 2006

Proposal publication date: November 25, 2005

For further information, please call: (512) 239-5017

CHAPTER 330. MUNICIPAL SOLID WASTE

The Texas Commission on Environmental Quality (commission

or TCEQ) adopts amendments to §§330.1, 330.890 - 330.897,

and 330.951 - 330.959. The commission also adopts the repeal

of §§330.2 - 330.8, 330.10 - 330.15, 330.21 - 330.26, 330.31

- 330.34, 330.41, 330.50 - 330.66, 330.70 - 330.73, 330.75,

330.111 - 330.139, 330.150 - 330.159, 330.171, 330.200 -

330.206, 330.230, 330.231, 330.233 - 330.242, 330.250 -

330.256, 330.280 - 330.284, 330.300 - 330.305, 330.401 -

330.419, 330.561 - 330.569, 330.601 - 330.604, 330.641 -

330.643, 330.825 - 330.830, 330.960 - 330.963, and 330.1001

- 330.1010. The commission also adopts new §§330.3, 330.5,

330.7, 330.9, 330.11, 330.13, 330.15, 330.17, 330.19, 330.21,

330.23, 330.25, 330.53, 330.55, 330.57, 330.59, 330.61,

330.63, 330.65, 330.67, 330.69, 330.71, 330.73, 330.101,

330.103, 330.105, 330.107, 330.121, 330.123, 330.125,

330.127, 330.129, 330.131, 330.133, 330.135, 330.137,

330.139, 330.141, 330.143, 330.145, 330.147, 330.149,

330.151, 330.153, 330.155, 330.157, 330.159, 330.161,

330.163, 330.165, 330.167, 330.169, 330.171, 330.173,

330.175, 330.177, 330.179, 330.201, 330.203, 330.205,

330.207, 330.209, 330.211, 330.213, 330.215, 330.217,

330.219, 330.221, 330.223, 330.225, 330.227, 330.229,

330.231, 330.233, 330.235, 330.237, 330.239, 330.241,

330.243, 330.245, 330.247, 330.249, 330.261, 330.263,

330.265, 330.267, 330.269, 330.271, 330.273, 330.275,

330.277, 330.279, 330.281, 330.283, 330.285, 330.287,

330.289, 330.301, 330.303, 330.305, 330.307, 330.331,

330.333, 330.335, 330.337, 330.339, 330.341, 330.371,

330.401, 330.403, 330.405, 330.407, 330.409, 330.411,

330.413, 330.415, 330.417, 330.419, 330.421, 330.451,

330.453, 330.455, 330.457, 330.459, 330.461, 330.463,

330.465, 330.501, 330.503, 330.505, 330.507, 330.509,

330.541, 330.543, 330.545, 330.547, 330.549, 330.551,

330.553, 330.555, 330.557, 330.559, 330.561, 330.563,

330.601, 330.603, 330.605, 330.607, 330.609, 330.611,

330.613, 330.615, 330.631, 330.633, 330.635, 330.637,

330.639, 330.641, 330.643, 330.645, 330.647, 330.649,

330.671, 330.673, 330.675, 330.677, 330.960 - 330.964,

330.981, 330.983, 330.985, 330.987, 330.989, 330.991,

330.993, 330.995, 330.1201, 330.1203, 330.1205, 330.1207,

330.1209, 330.1211, 330.1213, 330.1215, 330.1217, 330.1219,

and 330.1221.

The commission adopts §§330.1, 330.3, 330.5, 330.7, 330.9,

330.11, 330.13, 330.15, 330.19, 330.23, 330.25, 330.53,

330.57, 330.59, 330.61, 330.63, 330.69, 330.71, 330.73,

330.121, 330.125, 330.127, 330.129, 330.131, 330.133,

330.135, 330.141, 330.143, 330.145, 330.157, 330.161,

330.165, 330.169, 330.171, 330.173, 330.177, 330.201,

330.203, 330.205, 330.209, 330.213, 330.219, 330.225,

330.229, 330.233, 330.235, 330.245, 330.247, 330.261,

330.269, 330.281, 330.285, 330.301, 330.305, 330.337,

330.339, 330.401, 330.403, 330.407, 330.409, 330.411,

330.415, 330.417, 330.421, 330.451, 330.453, 330.455,

330.457, 330.503, 330.507, 330.543, 330.545, 330.603,

330.631, 330.633, 330.635, 330.639, 330.641, 330.643,

330.645, 330.647, 330.649, 330.951 - 330.957, 330.959

- 330.964, 330.981, 330.983, 330.985, 330.987, 330.989,

330.991, 330.1203, 330.1205, 330.1207, 330.1211, 330.1213,

330.1219, and 330.1221 with changes to the proposed text as

published in the September 9, 2005, issue of the Texas Register

(30 TexReg 5545).

The commission adopts §§330.17, 330.21, 330.55, 330.65,

330.67, 330.101, 330.103, 330.105, 330.107, 330.123, 330.137,

330.139, 330.147, 330.149, 330.151, 330.153, 330.155,

330.159, 330.163, 330.167, 330.175, 330.179, 330.207,

330.211, 330.215, 330.217, 330.221, 330.223, 330.227,

330.231, 330.237, 330.239, 330.241, 330.243, 330.249,

31 TexReg 2502 March 24, 2006 Texas Register