### 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 The Commission adopted amended, repealed, and new sections in 30 TAC Chapter 39, Public Notice, Subchapter H, Applicability and General Provisions; new sections in 30 TAC Chapter 116, Control of 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, 

### 2005Notice 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, af  liates 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 Register issue 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 Speci  c 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 Modi  cation; new Subchapter L, Permits for Speci  c 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 identi  es the United States Department of Energy ’ s FutureGen research and creates a new set of permitting actions for FutureGen projects, speci  cally 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 publicparticipation 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 A DDITION November 25, 2005 30 TexReg 7921and 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, Of  ce 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 Number2005-053-091-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) willconduct 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, at2:00 p.m., in Building E, Room 254S, Texas Commission on Environmental Quality, 12100 Park 35 Circle, in Austin, Texas. The hearingwill 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 theproposal 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, Of  ce of Legal Services, Texas Commission on Environmental Quality, P. O. Box 13087, Austin, Texas 78711-3087 or faxedto (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 Of  ce 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 NPDESPermit No. TXS000701. The draft permit would authorize storm water point source discharges to surface water in the state from the City ofDallas 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 aver

## 30 T exReg 7922 November 25, 2005 Texas Registerre qu e s t an d b y p ay i n g t h e c o s t p e r p a g e s e t b y th e d ep artme n t

. P ay me n t s h a l l b e m a d e p ri o r to r e l e a s e o f th e r e c o r d s . ( n ) O f  c i a l s e a l

. T h e c o mm i s s i o n er s h a l l a d o p t an o f  c i al s e a l f o r u s e i n th e c o u r s e o f o f  c i al c o m mi tt e e b u s i n e s s a s au th o ri z e d b y th e A c t

. § 6 0 3

. 1 5 1 ( 5 )

. ( o ) R e g i s try . ( 1 ) Th e d ep artme n t s h al l p r e p ar e a r e g i s try o f l i c e n s e d p erf u s i o n i s t s an d p r o v i s i o n al l y l i c e n s e d p e rf u s i o n i s t s th at i s av a i l ab l e t o t h e p u b l i c , l i c e n s e h o l d er s , a n d ap p r o p ri a t e s t a t e a g e n c i e s . ( 2 ) Th e r e g i s try s h al l i n c l u d e , b u t n o t b e l i mi t e d t o , th e n am e s o f c u rre nt l i c e n s e e s . ( 3 ) A n o ri g i n al c o p y o f t h e r e g i s t ry w i l l b e av a i l ab l e f o r i n s p e c ti o n b y l i c e n s e e s an d m e mb er s o f th e p ub l i c i n th e o f  c e o f th e e x e c u ti v e s e c re t ary . ( p ) Pu b l i c i nt e re s t i n f o rm ati o n . ( 1 ) Th e d ep artm e nt s h a l l p r e p ar e i n f o rm a ti o n o f c o n s u mer i n t ere s t d e s c ri b i n g th e p r o f e s s i o n o f p e rf u s i o n , th e r e g u l at o ry f u n c ti o n s o f th e d ep artme nt , an d th e p r o c e d ur e s b y w hi c h c o n s u m er c o mp l ai nt s are  l e d w i th an d re s o l v e d b y th e d ep artme n t

. ( 2 ) Th e d ep artme n t s h al l m ake th e i n f o rm ati o n av ai l ab l e t o t h e p u b l i c an d ap p r o p ri at e s t a te a g e n c i e s . ( q ) Ex e c u ti v e s e c r e t ary p o w er s a n d du ti e s . I n a d d i ti o n to p erf o rmi n g o th er du ti e s p r e s c ri b e d b y thi s s e c ti o n an d b y th e d ep artme n t , t h e e x e c u ti v e s e c re t ary s h a l l : ( 1 ) a dm i n i s t er l i c e n s i n g a c ti v i ty f o r th e d ep artm e n t ; ( 2 ) ke e p f u l l an d ac c ur at e mi n u t e s o f t h e c o m mi tt e e ’ s t r a n s ac ti o n s an d p r o c e e di n g s ; ( 3 ) s erv e a s c u s t o d i an o f th e c o m mi tt e e ’ s  l e s an d o th er re c o r d s ; ( 4 ) p rep ar e an d r e c o m m e n d t o t h e d ep artm e nt p l an s an d p r o c e d ure s n e c e s s ary t o i mp l e m e nt th e o b j e c ti v e s o f th i s c h ap t er, i n c l u d i n g ru l e s an d p r o p o s al s o n a dmi n i s tr ati v e p r o c e du r e ; ( 5 ) e x e r c i s e g e n e r al s up erv i s i o n o v er p er s o n s e mp l o y e d b y t h e d ep artm e n t i n th e a dm i n i s tr ati o n o f th i s c h ap t er ; ( 6 ) i n v e s ti g at e c o mp l ai nt s a n d p r e s e nt f o rm al c o mp l ai n t s ; ( 7 ) att e n d al l c o m mi tt e e me e ti n g s a s a n o n v o ti n g p arti c i

p an t ; ( 8 ) h an dl e th e c o mmi tt e e ’ s c o rr e s p o n d e n c e ; an d ( 9 ) o b t a i n , a s s e mb l e , o r p r ep ar e r ep o rt s a n d o th er i n f o rm a ti o n a s d i re c t e d o r au th o ri z e d b y th e c o m mi tt e e . This agency hereby certi  es that the proposal has been reviewed by legal counsel and found to be within the agency ’ s legal authority to adopt. Filed with the Of ce 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 of  ces of the Department of State Health Services or in the Texas Register of ce, 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 certi  es that the proposal has been reviewed by legal counsel and found to be within the agency ’ s legal authority to adopt. Filed with the Of ce 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 theUnited 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 8401House Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permittingprocedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxideenhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industry participants and the UnitedStates Department of Energy. In HB 2201, the legislature concluded in its  ndings that this technology demonstration projectcould 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 speci  c requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested casehearing. Under these proposed rules, the eligible permit applications for FutureGen projects will be subject to the same permitting and public participation processes that would otherwiseapply to applications for most types of commission permits, except for contested case hearings. Other portions of HB 2201 re-ected in the proposed rules de  ne relevant terms, establish an emissions pro  le, 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 authorizea 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 modi  ed to re ect 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 projectdo not include an expiration date or sunset date, but the commission speci  cally requests comment on whether an expiration date or sunset date is necessary. SECTION BY SECTION DISCUSSION The commission proposes administrative changes throughoutthe proposed rules to be consistent with Texas Register requirements and agency guidelines. §39.403. Applicability. The commission proposes an amendment to § 39.403 by addinga 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 de  ned in the concurrently proposed § 91.30, De  nitions, are subject to the public notice requirements of concurrently proposed new Chapter 91, Alternative Public Notice and Public Participation Requirements for Speci  c Designated Facilities, in addition to the requirements of this chapter, unless otherwise speci  ed in Chapter 91. For most types of applications, thenotice 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 Speci c Designated Facilities. The commission proposes new § 39.404 that includes applicability requirements for certain designated projects, speci  cally applications submitted under Chapter 116, concurrently proposed new Subchapter L, Permits for Speci  c 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 isentitled 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 addinga new paragraph (4) to subsection (e) to specify that applications to construct, authorize, or operate a component of the FutureGen project as de  ned in the concurrently proposed § 91.30, De  nitions, 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 GOVERNMENTJeff 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 dioxideenhanced 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 thatthis technology demonstration project could result in major economic, social, and environmental bene  ts 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 T exReg 8402 December 16, 2005 Texas Registerproposed rulemaking would eliminate the contested case hearing process for speci  c projects and does not impose any new requirements for the agency, there may be minor cost savings to TCEQ and the State Of ce 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  veyears that the proposed rulemaking is in effect, the public bene  t 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 signi  cant. 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, gasi  ers, 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 orprofessional 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 ormicro-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 STATEMENTThe 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 speci  c 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 thestate. 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 de  nition 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 speci  cally required by state law; 2) exceed an express requirement of state law, unless the rule is speci  callyrequired 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 speci  c 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 rulesdo 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 rulessolely 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 forissuing 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 ASSESSMENTThe 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 theTexas 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 8403right to the property that would otherwise exist in the absence of the governmental action. Consequently, this proposal does not meet the de  nition 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 anaction 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 ofthe 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 commissionrules 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 af rms 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 berequired 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, Of ce 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, Of ce 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 authorizesthe 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 speci  ed 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 de ned in § 1 1 6

. 1 0 [ § 1 1 6

. 1 0 ( 4 ) an d ( 1 0 ) ] of this title (relating to General De 

- nitions); (B) modi  cation of an existing facility as de  ned in § 1 1 6

. 1 0 [ § 1 1 6

. 1 0 ( 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 de  ned in § 106.4(a)(1) of this title (relating



## 30 T exReg 8404 December 16, 2005 Texas Registerto Requirements for [E x e mp ti o n s f r o m ] Permitting b y Ru l e ) and of sources de  ned 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 C F R [C o d e o f F e d er a l R e g u l ati o n s ] Part 63)), whether for construction or reconstruction; (10) concrete batch plants registered under Chapter 106 of this title (relating to P ermi t s b y Ru l e [E x e mp ti o n s f r o m P e rmi tti n g ]) 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 andother 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 Pr o g r am ); (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 f o r P ermi t s 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

) Ap p l i c ati o n s f o r p ermi t s , r e g i s tr ati o n s , l i c e n s e s , o r o th er ty p e o f au th o ri z ati o n r e q u i r e d t o c o n s tru c t , o p e r at e , o r au th o ri z e a c o m p o n e n t o f th e Fu tur e G e n p r o j e c t a s d e  n e d i n § 9 1

. 3 0 o f thi s ti tl e ( re l a ti n g t o D e  n i ti o n s ) , ar e s u b j e c t t o th e p u b l i c n o ti c e re qu i re me nt s o f C h ap t er 9 1 o f th i s ti tl e ( r e l ati n g t o A l t ern ati v e P ub l i c N o ti c e an d Pu b l i c P arti c ip ati o n R e qu i r e me nt s f o r S p e c i  c D e s i g n a te d F ac i l i ti e s ) i n a d d i

ti o n t o th e re q u i re m e nt s o f th i s c h ap te r, u n l e s s o th e rw i s e s p e c i  e d i n C h ap t er 9 1 o f thi s ti tl e . § 3 9

. 4 04

. A p

p l i c a b i l i t y f

o r Ce rta i n I n i t i a l A p

p l i c a t i o n s f o r A i r Q u a l i t y P e r m i t s f

o r G r a n d f a th e r e d F a c i l i ti e s a n d f o r A p

p l i c a t i o n s f o r P e r m i ts f o r S p e c i c D e s i g n a te d F a c i l i ti e s . ( a ) I n i ti a l ap p l i c ati o n s f o r ai r qu al i ty p ermi t s f o r g r a n d f ath e re d f ac i l i ti e s . ( 1 ) W i th th e e x c ep ti o n o f § 3 9

. 4 0 3 ( a ) ( 1 ) o f t h i s ti tl e ( re l a t

i n g t o Ap p l i c ab i l i ty ) , S ub c h ap t er s H

- M o f th i s c h ap t er ( re l ati n g t o Ap p l i c ab i l i ty a n d G e n e r al Pr o v i s i o n s ; P u b l i c N o ti c e o f S o l i d W a s t e Ap p l i c ati o n s ; Pu b l i c N o ti c e o f W a te r Q u al i ty Ap p l i c ati o n s an d W a t er Q u al i ty M a n a g e m e n t P l an s ; P u b l i c N o ti c e o f A i r Q u a l i ty Ap p l i c ati o n s ; P ub l i c N o ti c e o f I n j e c ti o n W e l l an d O th er S p e c i  c Ap p l i c a ti o n s ; an d P ub l i c N o ti c e f o r R a d i o ac ti v e M at eri al L i c e n s e s ) al s o ap p l y t o : ( A ) ap p l i c a ti o n s f o r p erm i t s f o r e l e c tri c g e n er a ti n g f a c i l i ti e s u n d e r T e x a s H e al th an d S af e ty C o d e , § 3 8 2

. 0 5 1 8 5 ( c ) an d ( d ) ; ( B ) ap p l i c ati o n s f o r e x i s ti n g f ac i l i ti e s p e rmi t s u n d er T

e x a s H e al th a n d S a f e ty C o d e , § 3 8 2

. 0 5 1 8 3 ; an d ( C ) ap p l i c ati o n s f o r p i p e l i n e f ac i l i ty p erm i t s u n d er T

e x a s H e al th an d S a f e ty C o d e , § 3 8 2

. 0 5 1 8 6

. ( 2 ) Ap p l i c ati o n s f o r i n i ti al i s s u a n c e o f p ermi t s u n d er T

e x a s H e al th a n d S af e ty C o d e , § § 3 8 2

. 0 5 1 8 3 , 3 8 2

. 0 5 1 8 5 ( c ) an d ( d ) , an d 3 8 2

. 0 5 1 8 6 are s ub j e c t o n l y t o § § 3 9

. 4 0 1 , 3 9

. 4 0 5 , 3 9

. 4 0 7 , 3 9

. 4 0 9 , 3 9

. 4 1 1 , 3 9

. 4 1 8 , 3 9

. 4 2 0 , an d 3 9

. 6 0 1

- 3 9

. 6 0 6 o f thi s ti tl e ( re l ati n g t o P urp o s e ; G e n e r al N o ti c e Pr o v i s i o n s ; M a i l i n g L i s t s ; D e a dl i n e f o r P ub

l i c C o m me n t , an d f o r R e qu e s t s f o r R e c o n s i d e r ati o n , C o nt e s te d C a s e H e ari n g , o r N o ti c e a n d C o mm e n t H e ari n g ; T e x t o f P ub l i c N o ti c e ; N o ti c e o f R e c e i p t o f Ap p l i c ati o n a n d I n te nt to O b t ai n P ermi t ; T r an s mi tt al o f th e E x e c u ti v e D i re c to r ’ s R e s p o n s e t o C o mm e nt s a n d D e c i s i o n ; Ap p l i c ab i l i ty ; M a i l e d N o ti c e ; N e w s p ap er N o ti c e ; S i g n - P o s ti n g ; N o ti c e t o A f f e c t e d A g e n c i e s ; a n d A l t ern ati v e M e a n s o f N o ti c e f o r P e rmi t s f o r Gr an df a t

h ere d F a c i l i ti e s ) , e x c ep t th a t an y re f ere n c e t o re q u e s t s f o r re c o n s i d er a ti o n o r c o nt e s t e d c a s e h e ari n g s i n § 3 9

. 4 0 9 o r § 3 9

. 4 1 1 o f thi s ti tl e s h a l l n o t ap p l y . ( b ) Ap p l i c ati o n s f o r p ermi t s f o r s p e c i  c d e s i g n at e d f ac i l i ti e s . ( 1 ) W i th th e e x c ep ti o n o f § 3 9

. 4 0 3 ( a ) ( 1 ) o f th i s ti tl e , S ub

c h ap te r s H

- M o f t h i s c h ap t er al s o ap p l y t o ap p l i c a ti o n s f o r p e rmi t s u n d e r C h ap t er 1 1 6 , S ub c h ap t e r L o f thi s ti tl e ( re l ati n g to P ermi t s f o r S p e c i  c D e s i g n a t e d F a c i l i ti e s )

. ( 2 ) Ap p l i c ati o n s f o r p ermi t s u n d e r C h ap te r 1 1 6 , S u b c h ap t er L o f thi s ti tl e are s ub j e c t o n l y to § § 3 9

. 4 0 1 , 3 9

. 4 0 5 , 3 9

. 4 0 7 , 3 9

. 4 0 9 , 3 9

. 4 1 1 , 3 9

. 4 1 8 , 3 9

. 4 2 0 , an d 3 9

. 6 0 1

- 3 9

. 6 0 5 o f th i s ti tl e , e x c e p t th at an y re f e re n c e to c o n t e s t e d c a s e h e ari n g s s h al l n o t ap p l y . § 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 Speci  c 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 onlydisputed 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 statestandards 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, S t a n d ar d s o f P erf o rm an c e f o r H a z ard o u s A i r P o l l u t an t s an d f o r D e s i g n at e d F a c i l i ti e s a n d P o l l u t ant s [C o ntr o l o f A i r P o l l u ti o n f r o m T o x i c M a te ri al s ],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 § 3 9

. 4 0 4 ( b ) [ § 3 9

. 4 0 4 ] of this title (relating to Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities an d f o r Ap p l i c ati o n s f o r P e rmi t s f o r S p e c i  c D e s i g n at e d F a c i l i ti e s ), 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 [w h i c h ] 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) [a n d ] that only relevant and material issues raised during the comment period can be considered if a contested case hearing request is granted; [an d ] (C) noti  cation 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; an d (D) the statement: "The facility ’ s compliance  le, if any exists, is available for public review in the regional of  ce of the Texas [N atu ra l R e s o u rc e C o n s erv a ti o n ] Commission o n E n v i r o n me n t al Q u a l

i ty ;" and (11) - (13) (No change.) (14) for Class 3 modi  cations of hazardous industrial solid waste permits, the statement "The permittees compliance history during the life of the permit being modi  ed is available from the agency contact person." (c) Unless mailed notice is otherwise provided for under thissection, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in § 39.413 of this title (relating to MailedNotice). 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; [an d ] (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 beheld 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; an d (7) for radioactive material licenses under Chapter 336 of this title [( re l ati n g t o R a di o ac ti v e S ub s t an c e Ru l e s ) ], 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; a n d (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 th e f o l l o w i n g ap p l y. [: ](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 an d f o r Ap p l i c a ti o n s f o r P e rmi t s f o r S p e c i  c D e s i g n at e d F ac i l i ti e s ); (2) If notice under this section is required, the agency shall mail notice according to § 39.602 of this title (relating to Mailed Notice). [; an d ] (3) (No change.) ( 4 ) I f th e ap p l i c ant i s s e e ki n g au th o ri z ati o n b y p erm i t , re g i s tr ati o n , l i c e n s e , o r o th er ty p e o f au th o ri z ati o n re qu i re d t o c o n s tru c t , o p er a t e , o r au th o ri z e a c o mp o n e nt o f th e Fu t u re G e n p r o j e c t a s d e  n e d i n § 9 1

. 3 0 o f th i s ti tl e ( re l ati n g to D e  n i ti o n s ) , th at ap p l i c ati o n s h al l b e s u b j e c t t o th e p ub l i c n o ti c e an d p arti c i p ati o n re qu i re me nt s i n C h ap t er 1 1 6 , S u b c h ap t er L o f thi s ti tl e ( re l ati n g t o P e rmi t s f o r S p e c i  c D e s i g n at e d F ac i l i ti e s )

. § 39.420. Transmittal of the Executive Director ’s Response to Comments and Decision. (a) - (e) (No change.) ( f

) F o r ap p l i c a ti o n s f o r p ermi t s u n d er C h ap te r 1 1 6 , S u b c h ap t er L o f thi s ti tl e ( re l ati n g t o P e rmi t s f o r S p e c i  c D e s i g n a t e d F ac i l i ti e s ) , th e c h i e f c l erk s h al l n o t b e re q u i re d t o tr an s mi t th e i t e m l i s t e d i n s ub s e c ti o n ( a ) ( 4 ) o f th i s s e c ti o n . This agency hereby certi  es that the proposal has been reviewed by legal counsel and found to be within the agency ’ s legal authority to adopt. Filed with the Of ce 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 T exReg 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 of ces of the Texas Commission on Environmental Quality or in the Texas Register of

ce, 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 certi  es that the proposal has been reviewed by legal counsel and found to be within the agency ’ s legal authority to adopt. Filed with the Of ce 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 theUnited 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 March23, 2005. Subsequently, EPA raised concerns with certain provisions of § 114.315 that give the state unilateral authority to accept alternative methods of compliance. Speci  cally, 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 theState 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 reductionplans 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. TheEPA 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 con  dential 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 noti  ed 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 (NO x ) 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 NO
x emission reductions equivalent to, or better than, those reductions attributed to the use of LED. The



## PROPOSED RULES December 16, 2005 30 TexReg 8407Public 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 NorthI-35, Building E, Room 201S, Austin. The hearings will be structured for the receipt of oral or written comments by interestedpersons. 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 eachhearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion duringthe 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 de  ned in § 114.510 of this title (relating to De  nitions), is not in motion during the period of April 1 through October 31 of each calendar year. ( b ) N o dri v e r u s i n g t h e v e h i c l e ’ s s l e ep er b erth m ay i dl e th e v e hi c l e i n a s c h o o l z o n e o r w i th i n 1 , 0 0 0 f e e t o f a p u b l i c s c h o o l d uri n g i t s h o ur s o f o p er ati o n . A n o f f e n s e u n d er th i s s u b s e c ti o n m ay b e p u n i s h

ab l e b y a  n e n o t t o e x c e e d $ 5 0 0

. T h i s s ub s e c ti o n e x p i re s S ep te mb er 1 , 2 0 0 7

. § 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, an d i f b e f o re S ep t e mb e r 1 , 2 0 0 7 , d o e s n o t h av e a s l e ep er b erth ; (2) - (3) (No change.)(4) the primary propulsion engine of a motor vehicle providing a power source necessary for mechanical operation, o th er th an [n o t i n c l u di n g ] propulsion, and/or passenger compartment heating, or air conditioning; (5) - (6) (No change.) (7) the primary propulsion engine of a motor vehicle thatis being used to supply heat or air conditioning necessary for passenger c o mf o rt a n d s af e ty [c o mf o rt

/ s a f e ty ] in [th o s e ] vehicles intended for commercial o r p u b l i c passenger transportation, or p a s s e n g er tr an s i t o p er a ti o n s , [s c h o o l b u s e s ] in which case idling up to a maximum of 30 minutes is allowed; (8) th e p ri m ary p r o p u l s i o n e n g i n e o f a m o t o r v e hi c l e b e i n g u s e d t o p r o v i d e a ir c o n di ti o n i n g o r h e ati n g n e c e s s ary f o r e mp l o y e e h e al th o r s a f e ty w hi l e th e e mp l o y e e i s u s i n g th e v e h i c l e t o p e rf o rm an e s s e nti al j o b f u n c ti o n re l at e d to ro a d w ay c o n s tru c ti o n o r m ai n t e n a n c e [th e p ri m ary p ro p u l s i o n e n g i n e o f a m o t o r v e hi c l e u s e d f o r p a s s e n g er tr an s i t o p er a ti o n s i n w h i c h c a s e i d l i n g up t o a m a x i mu m o f 3 0 m i n u t e s i s al l o w e d ]; (9) the primary propulsion engine of a motor vehicle being used as airport ground support equipment;[ o r ](10) the owner of a motor vehicle rented or leased to a person th at [w h o ] operates the vehicle and is not employed by the owner; o r [. ] ( 1 1 ) a m o t o r v e h i c l e w h e n i dl i n g i s n e c e s s ary t o p o w er a h e at er o r a ir c o n di ti o n er w hi l e a dri v er i s u s i n g th e v e hi c l e ’ s s l e ep er b e rth f o r a g o v ern m e n t

- m an d at e d re s t p eri o d

. Th i s s ub s e c ti o n e xp ire s S ep t e mb e r 1 , 2 0 0 7

. This agency hereby certi es 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 RULESHouse Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permittingprocedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxideenhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industry participants and the UnitedStates Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration projectcould 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 speci c requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested casehearing. Under these proposed rules, the eligible permit applications for FutureGen projects will be subject to the same permitting and public participation processes that would otherwiseapply to applications for most types of commission permits, except for contested case hearings. Other portions of HB 2201 re-  ected in the proposed rules de ne relevant terms, establish an emissions pro le, 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 ofthe FutureGen project, public notice requirements for these applications need to be modi ed to re  ect 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 speci cally 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 Chapter55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public Notice and Public Participation Requirements for Speci c 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 Speci c Designated Facilities. Speci cally, the purpose ofthe 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. De nitions

. The proposed new section contains de nitions applicable to the new subchapter, clean coal projects, and the FutureGen project. Speci cally, the proposed new section de nes: clean coal project, coal, FutureGen project, component of the FutureGen project, FutureGen project pro le, and designated project. § 116.1410. Emissions Pro le for FutureGen Projects

. The proposed new section would establish an emissions pro-le for FutureGen projects. This emissions pro le is included in the event that the United States Department of Energy does not specify an emissions pro le 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 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 signi cant 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 noticerequirements 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 T exReg 7832 November 25, 2005 Texas Registercontents of the notice, which in addition to factual informationabout 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, PublicParticipation, 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 furtherinformation; 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 acopy of the public notice and date of publication; and the executive director shall make available for public inspection duringthe 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 certi cation 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 speci c procedures for public participation in the issuance of a FutureGen permit. The newsection 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 opinionsand 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 procedureto 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 arenot subject to the contested case hearing process, but are subject to a notice and comment hearing process. Proposed new § 116.1618(b) - (m) speci es the notice and comment hearing process. Speci cally, subsections (b) - (m) allow for any person affected by emissions from a site regulated by this subchapterto 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 havingjurisdiction 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 permitor preliminary decision are inappropriate shall submit all reasonable arguments before the end of the comment period; and statethe 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 directorto keep and make available to the public a record of all comments received and issues raised at the hearing; allowing thedraft 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 speci ed 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 touse 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 de ned 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 theexecutive 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 specialconditions 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 noti cation, 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 GOVERNMENTJeff 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 rulesmay experience some cost savings due to a streamlined permitting process. The proposed rules implement HB 2201. HB 2201 directs thecommission to establish by rule, streamlined permitting proce

## PROPOSED RULES November 25, 2005 30 TexReg 7833dures 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 StatesDepartment of Energy. The legislature determined that this technology demonstration project could result in major economic, social, and environmental bene ts 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 speci c 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 veyears that the proposed new rules are in effect, the public bene t 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 signi cant. 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, gasi ers, 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 orprofessional 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 ormicro-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 STATEMENTThe commission reviewed this proposed rulemaking and determined that a local employment impact statement is not requiredbecause 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 de ned in the statute. Therefore, Texas Government Code, § 2001.0225, does not apply to this rulemaking. "Major environmental rule" is de ned in Texas Government Code, § 2001.0225(g)(3), as a rule the speci c intent of which is to protect the environment or reduce risksto 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 FutureGenproject. 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. Theproposed 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 de nition 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 speci cally required by state law; 2) exceed an express requirement of state law, unless the rule is speci callyrequired 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 speci c 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 rulesdo 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 rulessolely 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 thecommission, 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 T exReg 7834 November 25, 2005 Texas RegisterThe 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 theTexas 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 de nition 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 anaction 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. TheCMP 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 thisrulemaking 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 processin 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). § 1 1 6

. 1 4 0 0

. P u r p o s e . T h e p urp o s e o f thi s s ub c h ap te r i s t o e s t ab l i s h , b y ru l e , re a s o n ab l y s tre a ml i n e d p r o c e d ure s f o r t h e c o mmi s s i o n t o i s s u e au th o ri z ati o n f o r



## PROPOSED RULES November 25, 2005 30 TexReg 7835p r o j e c t s w i thi n th e c o m mi s s i o n ’ s j uri s d i c ti o n u n d er T e x a s H e al th a n d S a f e ty C o d e , C h ap t er s 3 6 1 an d 3 8 2 a n d T e x a s W a t er C o d e , C h ap t er s 5 an d 2 6

. § 1 1 6

. 1 4 02

. A p

p l i c a b i l i t y . ( a ) T h i s s u b c h ap t er ap p l i e s t o ap p l i c ati o n s f o r au t h o ri z ati o n re q u i re d t o c o n s tru c t an d o p er a te a c o mp o n e n t o f th e Fu ture G e n p r o j e c t

. ( b ) W i th th e e x c e p ti o n o f s u b s e c ti o n ( a ) o f th i s s e c ti o n , a s a s p e c i  c b u t n o t l i mi t e d e x c l u s i o n , th i s s ub c h ap t e r d o e s n o t ap p l y t o an ap p l i c ati o n f o r a p erm i t t o c o n s tru c t o r m o d i f y a n e w o r e x i s ti n g c o a l

-  re d e l e c tri c g e n e r ati n g f ac i l i ty th at w i l l u s e p u l v eri z e d o r s u p erc ri ti c a l p u l v eri z e d c o a l

. § 1 1 6

. 1 4 04

. P e r m i t R e q u i r e d

. A ny p er s o n w h o p l an s t o c o n s t ru c t a c o mp o n e n t o f a p r o j e c t a s d e s i g n at e d i n § 1 1 6

. 1 4 0 2 o f thi s ti tl e ( r e l ati n g to Ap p l i c ab i l i ty ) t h at m ay e mi t ai r c o nt am i n an t s i n t o th e a i r o f t h i s s t at e mu s t o b t a i n a p ermi t u n d e r thi s s ub c h ap t e r o r qu al i f y f o r a p ermi t b y ru l e u n d er C h ap te r 1 0 6 o f thi s ti tl e ( re l a ti n g t o P ermi t s b y Ru l e )

. § 1 1 6

. 1 4 0 6

. Co m p l i a n c e His t o r

y . F o r al l p erm i t re v i e w s u n d er thi s s ub c h ap t e r, c o mp l i an c e hi s t o ry re v i e w s are re q u i re d u n d e r C h ap t er 6 0 o f th i s ti tl e ( r e l a ti n g t o C o mp l i

an c e H i s t o ry )

. § 1 1 6

. 1 4 0 8

. D en i t i o n s . T h e f o l l o w i n g w o r d s a n d te rm s , w h e n u s e d i n th i s s ub c h ap t e r, h av e th e f o l l o w i n g m e an i n g s , u n l e s s th e c o n t e x t c l e arl y i n di c a t e s o th erw i s e . ( 1 ) C l e an c o a l p r o j e c t

- - Th e i n s t al l ati o n o f o n e o r m o re c o mp o n e nt s o f th e c o al

- b a s e d i n t e g r a te d s e q u e s t r a ti o n an d h y dr o g e n re s e arc h p r o j e c t t o b e b u i lt i n p artn er s hi p w i th th e U n i t e d S t at e s D e p artm e n t o f E n erg y, c o mm o n l y r e f e rre d t o a s th e Fu tur e G e n p r o j e c t

. T h e t erm i n c l u d e s th e c o n s tru c ti o n o r m o d i  c ati o n o f a f ac i l i ty f o r e l e c tri c g e n er a ti o n , i n du s tri al p r o du c ti o n , o r th e p r o du c ti o n o f s t e am a s a b y p r o du c t o f c o al g a s i  c ati o n t o t h e e x t e n t th a t t h e f a c i l i ty i n s t a l l s o n e o r m o re c o mp o n e nt s o f th e Fu t u r e G e n p r o j e c t

. ( 2 ) C o a l

- - A l l f o rm s o f c o a l , i n c l u di n g l i g n i t e . ( 3 ) Fu ture G e n p r o j e c t

- - A c o mm o n r e f e r e n c e to th e c o a l

b a s e d i n t e g r a t e d s e qu e s tr ati o n an d h y dr o g e n p r o j e c t t o b e b u i l t i n p art

n e r s hi p w i th t h e U n i te d S t at e s D e p artm e nt o f E n erg y . ( 4 ) C o mp o n e n t o f t h e Fu t u r e G e n p r o j e c t

- - A p r o c e s s , t e c h

n o l o g y, o r p i e c e o f e qu i p m e nt th at : ( A ) i s d e s i g n e d t o e mp l o y c o al g a s i  c a ti o n t e c hn o l o g y t o g e n e r at e e l e c t ri c i ty, hy dr o g e n , o r s t e am i n a m a n n er th at m e e t s th e Fu ture G e n p r o j e c t p r o  l e ; ( B ) i s d e s i g n e d t o e mp l o y f u e l c e l l s t o g e n er at e e l e c t ri c i ty i n a m an n e r th a t m e e t s th e Fu tu r e G e n p r o j e c t p r o  l e ; ( C ) i s d e s i g n e d to e mp l o y a hy dr o g e n - f u e l e d t u rb i n e t o g e n er a te e l e c t ri c i ty w h e re th e hy dr o g e n i s d eri v e d f r o m c o al i n a m an n e r th a t me e t s th e Fu t u re G e n p r o j e c t p r o  l e ; ( D ) i s d e s i g n e d t o d e m o n s tr a te th e e f  c a c y at an e l e c t ri c g e n er a ti o n o r i n du s tri al p r o d u c ti o n f ac i l i ty o f a c arb o n d i o x i d e c ap ture t e c h n o l o g y i n a m a n n er th a t me e t s th e Fu t u r e G e n p r o j e c t p r o  l e ; ( E ) i s d e s i g n e d t o s e qu e s t er a p o rti o n o f th e c arb o n di o x i d e c ap t u re d f r o m an e l e c tri c g e n er a ti o n o r i n du s tri a l p r o d u c ti o n f ac i l i ty i n a m an n er t h at m e e t s th e Fu tu r e G e n p r o j e c t p r o  l e i n c o n j u n c ti o n w i th ap p r o p ri at e r e me di ati o n p l an s a n d ap p r o p ri at e t e c hn i q u e s f o r re s erv o i r c h ar ac t eri z a ti o n , i n j e c ti o n c o ntr o l , a n d m o n i

t o ri n g ; ( F ) i s d e s i g n e d t o s e q u e s te r c arb o n d i o x i d e a s p art o f e n h a n c e d o i l re c o v ery i n a m an n e r th a t m e e t s th e Fu ture G e n p r o j e c t p r o  l e i n c o n j u n c ti o n w i th ap p r o p ri at e t e c h n i q u e s f o r re s e rv o ir c h ar ac t eri z ati o n , i n j e c ti o n c o ntr o l , a n d m o n i t o ri n g ; ( G ) q u al i  e s f o r f e d e r al f u n d s d e s i g n at e d f o r th e Fu tu re G e n p r o j e c t ;

( H ) i s re qu i re d t o p erf o rm th e s amp l i n g , an al y s i s , o r re s e arc h n e c e s s ary t o s ub mi t a p r o p o s al t o th e U n i t e d S t at e s D ep artm e nt o f E n erg y f o r th e Fu tu re G e n p r o j e c t ; o r ( I ) i s re qu ire d i n a  n a l U n i t e d S t at e s D ep artm e nt o f E n e r g y re q u e s t f o r p r o p o s al s f o r th e Fu tu re G e n p r o j e c t o r i s d e s c ri b e d i n a  n al U n i t e d S t a t e s D ep artme nt o f E n e r g y re qu e s t f o r p r o p o s a l s a s a d e s i r ab l e e l e me n t t o b e c o n s i d e re d i n th e a w ar di n g o f th e p r o j e c t

. ( 5 ) Fu tu re G e n p r o j e c t p r o  l e - - A s t an d ar d o r s t an d ar d s re l

e v an t t o a c o mp o n e nt o f th e Fu ture G e n p r o j e c t , a s p r o v i d e d i n a  n al o r ame n d e d U n i t e d S t at e s D ep artme n t o f E n erg y re qu e s t f o r p r o p o s al s o r c o n t r a c t

. ( 6 ) D e s i g n at e d p r o j e c t

- - A ny p r o j e c t s ub j e c t to t h e j uri s d i c ti o n o f t h e c o mmi s s i o n an d d e s i g n at e d b y th e l e g i s l atu re a s s ub j e c t to th e a lt e rn at e p ub l i c n o ti c e re q u i re m e nt s i n thi s s ub c h ap te r. § 1 1 6

. 1 4 1 0

. E m i s s i o n s P r ol e f o r Fu t u r e G e n P r o j e c ts . I f t h e U n i t e d S t at e s D ep artme nt o f E n er g y d o e s n o t s p e c i f y an e mi s s i o n s p r o  l e f o r th e Fu ture G e n p r o j e c t , e m i s s i o n s o f ai r c o nt am i n an t s f r o m a c o mp o n e n t o f a Fu ture G e n p r o j e c t s h a l l e qu al n o m o re th an : ( 1 ) 1 % o f th e av e r a g e s u lp hu r c o nt e n t o f th e c o al o r c o al s u s e d f o r t h e g e n e r ati o n o f e l e c tri c i ty a t th e c o mp o n e n t ; ( 2 ) 1 0 % o f th e a v er a g e m erc u ry c o nt e nt o f th e c o a l o r c o al s u s e d f o r t h e g e n e r ati o n o f e l e c tri c i ty a t th e c o mp o n e n t ; ( 3 ) 0

. 0 5 p o u n d s o f n i tr o g e n o x i d e s p er m i l l i o n B ri ti s h th er m al u n i t s ( M M B T U ) o f e n erg y p r o du c e d at th e c o mp o n e n t ; an d ( 4 ) 0

. 0 0 5 p o u n d s o f p arti c u l at e m att er p e r M M B T U o f e n erg y p r o d u c e d at th e c o mp o n e nt

. § 1 1 6

. 1 4 1 4

. A p

p l i c a ti o n s f o r F a c i l i t i e s t h a t a r e Co m p o n e n t s o

f a D e s i g n a te d P r o j e c t
. A n y ap p l i c ati o n s u b m i tt e d u n d er § 1 1 6

. 1 4 0 4 o f thi s ti tl e ( re l a ti n g t o P er m i t R e q u i re d ) mu s t i n c l u d e a c o mp l e t e d F o rm P I

- 1 , G e n e r al Ap p l i c a ti o n f o r A i r Pre c o n s tru c ti o n P ermi t s a n d A me n d me n t s . T h e F o rm P I

- 1 mu s t b e s i g n e d b y an au th o ri z e d rep re s e n t a ti v e o f th e ap p l i c an t

. T h e F o rm P I

- 1 s p e c i  e s a d di ti o n al s u p p o rt i n f o rm ati o n th a t mu s t b e p r o v i d e d b e f o re th e ap p l i c a ti o n i s d e e me d c o mp l e t e . I n o r d er t o b e g r ant e d a p erm i t , th e ap p l i c ant f o r a p r o j e c t a s d e s i g n a t e d i n § 1 1 6

. 1 4 0 2 ( a ) o f th i s ti tl e ( re l ati n g t o A p p l i c ab i l i ty ) s h al l s ub mi t i n f o rm ati o n t o th e c o m m i s s i o n th a t d e m o n s tr at e s th at a l l o f th e f o l l o w i n g are me t

. ( 1 ) Pr o t e c ti o n o f p ub l i c h e al th a n d w e l f are . T h e e m i s s i o n s f r o m th e f ac i l i ty w i l l c o mp l y w i th a l l ru l e s a n d re g u l ati o n s o f th e c o m m i s s i o n an d w i t h th e i n te nt o f T e x a s H e al th an d S af e ty C o d e , C h ap t er 3 8 2 , th e T e x a s C l e a n A i r A c t ( T C A A ) , i n c l u d i n g p r o t e c ti o n o f th e h e al th an d p h y s i c al p r o p erty o f th e p e o p l e . ( 2 ) M e a s ure m e nt o f e mi s s i o n s . T h e p ermi t m ay h av e p r o v i s i o n s f o r m e a s u ri n g th e e mi s s i o n o f ai r c o nt am i n an t s a s d e t e rm i n e d b y th e c o m mi s s i o n . T h e s e p r o v i s i o n s m ay i n c lu d e th e i n s t a l l a ti o n o f s a mp l i n g p o rt s o n e xh au s t s t ac k s a n d c o n s tru c ti o n o f s amp l i n g p l at

f o rm s i n ac c o r d an c e w i th g u i d e l i n e s i n th e " T e x a s N a tur al R e s o urc e



## 30 T exReg 7836 November 25, 2005 Texas RegisterC o n s erv ati o n C o mmi s s i o n S amp l i n g Pr o c e d ur e s M an u al , " p o rt ab l e an al y z er s , o r e mi s s i o n s c al c u l ati o n s i f a kn o w n p r o c e s s v ari ab l e i s m o n i t o re d

. ( 3 ) N e w S o ur c e P erf o rm an c e S t an d ar d s ( N S P S )

. T h e e mi s s i o n s f r o m e ac h af f e c t e d f ac i l i ty a s d e  n e d i n 4 0 C o d e o f F e d e ra l R e g u l ati o n s ( C F R ) P art 6 0 w i l l me e t at l e a s t th e r e qu i r e me nt s o f an y ap p l i

c ab l e N S P S a s l i s t e d u n d er 4 0 C FR P art 6 0 , p r o mu l g at e d b y th e U n i t e d S t at e s E n v ir o n m e n t a l Pr o t e c ti o n A g e n c y ( E P A ) u n d er th e au th o ri ty g r an t e d u n d er F e d er al C l e an A ir A c t ( F C A A ) , § 1 1 1 , a s ame n d e d

. ( 4 ) N ati o n al E mi s s i o n S t an d ar d s f o r H a z ar d o u s A i r P o l l u t a nt s ( N E S H A P s )

. T h e e mi s s i o n s f r o m e ac h f ac i l i ty a s d e  n e d i n 4 0 C FR P art 6 1 w i l l m e e t at l e a s t th e r e qu i r e m e nt s o f an y ap p l i c ab l e N E

S H A P s , a s l i s t e d u n d er 4 0 C FR P art 6 1 , p r o mu l g at e d b y EP A u n d er th e au th o ri ty g r an t e d u n d er F C A A , § 1 1 2 , a s ame n d e d

. ( 5 ) N E S H A P s f o r s o ur c e c at e g o ri e s . Th e e mi s s i o n s f r o m e ac h a f f e c t e d f a c i l i ty s h al l m e e t at l e a s t th e r e qu i r e m e nt s o f any ap p l i

c ab l e m ax i mu m ac h i e v ab l e c o ntr o l t e c h n o l o g y s t a n d ar d a s l i s te d u n d er 4 0 C F R P art 6 3 , p r o mu l g at e d b y E P A u n d e r F C A A , § 1 1 2 , o r a s l i s t e d i n C h ap t er 1 1 3 , S u b c h ap t er C o f thi s ti tl e ( r e l ati n g t o N ati o n al E mi s s i o n S t an d ar d s f o r H a z ar d o u s A i r P o l l u t ant s f o r S o u r c e C at e g o ri e s ( F C A A , § 1 1 2 , 4 0 C F R P art 6 3 ) )

. ( 6 ) P e rf o rm a n c e d e m o n s t r a ti o n . T h e f ac i l i ty w i l l a c hi e v e t h e p erf o rm an c e s p e c i  e d i n th e p ermi t ap p l i c a ti o n . T h e c o mmi s s i o n m ay re qu i re th e ap p l i c ant t o s ub mi t a d d i ti o n a l e n g i n e e ri n g d at a af t er t h e p ermi t h a s b e e n i s s u e d i n o r d er t o d e m o n s t r a t e f urth er th a t th e f a c i l i ty w i l l ac h i e v e th e p erf o rm an c e s p e c i  e d i n th e p e rmi t

. I n a d di ti o n , t h e c o mm i s s i o n m a y r e qu ir e i n i ti al c o mp l i a n c e t e s ti n g t o d e t erm i n e o n g o i n g c o mp l i an c e t h r o u g h e n g i n e eri n g c al c u l a ti o n s b a s e d o n me a s u re d p r o c e s s v ari ab l e s , p ar am e tri c o r p r e d i c ti v e m o n i t o ri n g , s t ac k m o n i to ri n g , o r s t ac k t e s ti n g . ( 7 ) N o n att ai n m e nt r e v i e w . A f ac i l i ty i n a n o n att ai n m e n t are a s h a l l c o mp l y w i th a l l ap p l i c ab l e r e q u i r e me n t s u n d e r S ub c h ap t er B , D i v i s i o n 5 o f thi s c h ap t er ( r e l a ti n g t o N o n att ai n me n t R e v i e w )

. ( 8 ) Pre v e n ti o n o f s i g n i  c a nt d e t e ri o r ati o n re v i e w . A f ac i l

i ty i n an att ai n me n t ar e a s h al l c o mp l y w i th al l ap p l i c ab l e re q u i re m e nt s u n d er S u b c h ap t er B , D i v i s i o n 6 o f thi s c h ap t er ( r e l ati n g t o Pre v e n ti o n o f S i g n i  c a nt D e t e ri o r ati o n R e v i e w )

. ( 9 ) A i r d i s p e r s i o n m o d e l i n g o r amb i e n t m o n i to ri n g . T h e c o m mi s s i o n m ay re qu i r e c o mp u t eri z e d ai r di s p er s i o n m o d e l i n g an d /o r amb i e nt m o n i t o ri n g t o d e t ermi n e th e ai r qu al i ty i mp ac t s f r o m th e f ac i l

i ty . ( 1 0 ) F e d er al s t an d ar d s o f r e v i e w f o r c o n s tru c te d o r re c o n s tru c t e d m a j o r s o ur c e s o f h a z ar d o u s ai r p o l l u t an t s . I f th e f ac i l i ty i s an af

f e c t e d s o u rc e a s d e  n e d i n § 1 1 6

. 1 5 ( 1 ) o f thi s ti tl e ( r e l ati n g to S e c ti o n 1 1 2 ( g ) D e  n i ti o n s ) , th e a f f e c t e d s o u r c e s h al l c o mp l y w i th a l l ap p l i c ab l e re qu i re me nt s u n d er S ub c h ap te r C o f t h i s c h ap t er ( r e l ati n g t o H a z ar d o u s A i r P o l l u t an t s : R e g u l ati o n s G o v ern i n g C o n s tru c t e d o r R e c o n s tru c t e d M a j o r S o urc e s ( F C A A , S e c ti o n 1 1 2 ( g ) , 4 0 C F R P art 6 3 ) )

. ( 1 1 ) Ap p l i c a ti o n c o nt e nt

. I n a d di ti o n to a ny o th er re q u i re me n t s o f thi s s u b c h ap t er, th e ap p l i c a nt s h a l l : ( A ) i d e n ti f y e ac h f ac i l i ty t o b e i n c l u d e d i n th e p e rmi t ; ( B ) i d e n ti f y th e ai r c o n t ami n an t s e m i tt e d ; an d ( C ) p r o v i d e e mi s s i o n r at e c a l c u l a ti o n s . ( 1 2 ) B e s t av ai l ab l e c o n tr o l t e c h n o l o g y ( B A C T )

. T h e p r o p o s e d f ac i l i ty w i l l u ti l i z e B A C T , w i th c o n s i d e r ati o n g i v e n t o t h e t e c h

n i c a l p r ac ti c ab i l i ty an d e c o n o mi c r e a s o n ab l e n e s s o f r e du c i n g o r e l i m i

n ati n g th e e mi s s i o n s f r o m th e f a c i l i ty . § 1 1 6

. 1 4 1 6

. P u b l i c N o t i c e . ( a ) T h e e x e c u ti v e di re c t o r s h a l l di re c t th e ap p l i c an t t o p u b l i s h a n o ti c e o f dr af t p erm i t an d p re l i mi n ary d e c i s i o n , at th e ap p l i c an t ’ s e x p e n s e , i n th e p ub l i c n o ti c e s e c ti o n o f o n e i s s u e o f a n e w s p ap er o f g e n er a l c i rc u l ati o n i n th e mu n i c i p al i ty i n w h i c h th e s i t e o r p r o p o s e d s i t e i s l o c at e d , o r i n th e mu n i c ip al i ty n e are s t t o th e l o c ati o n o f t h e s i te o r p r o p o s e d s i t e . T h e e x e c u ti v e di re c t o r s h al l di re c t th e ap p l i c an t t o m ak e a c o p y o f th e ap p l i c ati o n a n d dr af t p ermi t a v a i l ab l e f o r re v i e w a n d c o p y i n g at a p u b l i c p l a c e i n th e c o u nty i n w hi c h th e s i t e i s l o c at e d o r p r o p o s e d t o b e l o c a te d

. T h e n o ti c e s h al l c o n t a i n th e f o l l o w i n g i n f o rm ati o n : ( 1 ) th e p e rmi t ap p l i c a ti o n nu mb er ; ( 2 ) th e ap p l i c ant ’ s o r p ermi t h o l d e r ’ s n ame , a d dre s s , an d t e l ep h o n e nu mb e r an d a d e s c ri p ti o n o f th e m an n er i n w hi c h a p e r s o n m a y c o nt a c t th e ap p l i c ant o r p e rm i t h o l d er f o r f urth e r i n f o rm ati o n ; ( 3 ) a d e s c ri p ti o n o f t h e l o c ati o n o f th e s i t e o r p r o p o s e d l o c a ti o n o f th e s i t e ; ( 4 ) a d e s c ri p ti o n o f th e ac ti v i ty o r ac ti v i ti e s i n v o l v e d i n th e p e rmi t ap p l i c a ti o n ; ( 5 ) th e l o c ati o n an d av a i l ab i l i ty o f th e f o l l o w i n g : ( A ) th e c o mp l e t e p erm i t ap p l i c ati o n ; ( B ) th e dr af t p ermi t ; ( C ) al l o th e r re l e v an t s u p p o rti n g m at eri a l s i n th e p ub l i c  l e s o f th e a g e n c y ; ( 6 ) a d e s c ri p ti o n o f th e c o m me n t p r o c e d ure s , i n c l u d i n g th e du r ati o n o f th e p ub l i c n o ti c e c o mme nt p eri o d a n d p r o c e du re s t o re q u e s t a h e ari n g p ri n t e d i n a f o n t s ty l e o r s i z e th at c l e arl y p r o v i d e s e mp h a s i s an d d i s ti n g u i s h e s i t f r o m th e re m ai n d e r o f th e n o ti c e ; ( 7 ) a s t at e m e n t th at a p er s o n w h o m a y b e a f f e c t e d b y th e e m i s s i o n o f ai r p o l l u t a nt s f r o m th e f ac i l i ty o r f ac i l i ti e s i s e n ti tl e d t o re q u e s t a n o ti c e a n d c o mm e nt h e ari n g , p u r s u a nt t o § 1 1 6

. 1 4 1 8 o f th i s ti tl e ( re l ati n g t o P ub l i c P arti c i p a ti o n ) , p ri nt e d i n a f o nt s ty l e o r s i z e th at c l e arl y p r o v i d e s e mp h a s i s an d d i s ti n g u i s h e s i t f r o m th e re m ai n d e r o f th e n o ti c e ; ( 8 ) a d e s c rip ti o n o f th e p r o c e du re b y w h i c h a p er s o n m ay b e p l ac e d o n a m ai l i n g l i s t i n o r d er t o re c e i v e a d di ti o n al i n f o rm ati o n ab o u t t h e ap p l i c a ti o n o r dr a f t p erm i t ; ( 9 ) i f ap p l i c ab l e , th e ti m e a n d l o c a ti o n o f an y p ub l i c m e e t

i n g ; an d ( 1 0 ) th e n am e , a d dre s s , an d p h o n e n u mb e r o f th e c o mm i s s i o n t o b e c o n t ac t e d f o r f u rth er i n f o rm ati o n . ( b ) T h e ap p l i c an t s h a l l s u b m i t a c o p y o f th e p u b l i c n o ti c e an d d a t e o f p u b l i c ati o n t o th e e x e c u ti v e d ire c t o r an d an y l o c a l ai r p o l l u ti o n c o ntr o l a g e n c i e s h a v i n g j u ri s di c ti o n o v er th e s i t e . ( c ) T h e ap p l i c an t s h al l s u b m i t a s t a te me n t t o th e e x e c u ti v e d i

re c to r c erti f y i n g t h at th e s i g n re qu i re d b y s ub s e c ti o n ( e ) o f thi s s e c ti o n h a s b e e n p o s t e d c o n s i s t e n t w i th th e p r o v i s i o n s o f th a t s ub s e c ti o n . ( d ) T h e e x e c u ti v e d i re c t o r s h a l l m ak e a v ai l ab l e f o r p u b l i c i n s p e c ti o n t h e dr af t p e rmi t an d th e c o mp l e t e ap p l i c ati o n th r o u g h o u t th e c o mme nt p eri o d d uri n g b u s i n e s s h o ur s at th e c o mm i s s i o n ’ s c e ntr al o f

-  c e an d a t th e ap p r o p ri at e c o mmi s s i o n re g i o n a l o f  c e w h e re th e s i t e i s l o c at e d

. ( e ) A t th e ap p l i c ant ’ s e xp e n s e , a s i g n s h al l b e p l ac e d at th e s i t e d e c l ari n g th e  l i n g o f an ap p l i c ati o n f o r a p erm i t a n d s t a ti n g th e m a n n er i n w h i c h th e e x e c u ti v e di re c to r m ay b e c o nt a c t e d f o r f urth er i n f o rm ati o n .



## PROPOSED RULES November 25, 2005 30 TexReg 7837( 1 ) T h e s i g n s h al l b e p r o v i d e d b y th e ap p l i c a nt a n d s h al l s ub s t an ti a l l y m e e t th e f o l l o w i n g r e qu ir e me n t s . ( A ) T h e s i g n s h al l c o n s i s t o f d ark l e tt e ri n g o n a w h i t e b a c kg r o u n d an d s h al l b e n o t s m a l l e r t h an 1 8 i n c h e s b y 2 8 i n c h e s a n d al l l e tt eri n g s h al l b e n o l e s s th an 1

- 1 /2 i n c h e s i n s i z e an d b l o c k p ri n t e d c ap i t al l e tt eri n g . ( B ) Th e s i g n s h al l b e h e a d e d b y th e w o r d s " PR O

P O S E D A I R Q U A L I T Y PE RM I T

. " ( C ) Th e s i g n s h al l i n c lu d e th e w o r d s " A P P L I C A T I O N N O

. " an d th e n u mb er o f th e p ermi t ap p l i c a ti o n . ( D ) T h e s i g n s h al l i n c l u d e th e w o r d s " f o r f u rt

h er i n f o r m ati o n c o n t ac t

. " ( E ) T h e s i g n s h a l l i n c l u d e th e w o r d s " T EX A S C O M

M I S S I O N O N E N V I R O N M E N T A L Q U A L I T Y , " an d th e a d dre s s o f th e ap p r o p ri at e c o mmi s s i o n r e g i o n al o f  c e . ( F ) T h e s i g n s h al l i n c l u d e th e p h o n e n u mb e r o f th e ap p r o p ri at e c o m mi s s i o n re g i o n al o f  c e . ( G ) T h e s i g n s h al l i n c l u d e th e n ame o f th e c o mp an y ap p l y i n g f o r th e p erm i t

.

( 2 ) T h e s i g n s h al l b e i n p l a c e b y th e d at e o f p ub l i c ati o n o f th e n e w s p ap er n o ti c e a n d s h a l l r e m ai n i n p l ac e an d l e g i b l e th r o u g h o u t th e p e ri o d o f p u b l i c c o m me n t

. ( 3 ) T h e s i g n p l ac e d at th e s i t e s h al l b e l o c a te d at o r n e ar th e s i t e ’ s m ai n e ntr an c e , p r o v i d e d th at th e s i g n i s l e g i b l e f r o m th e p ub l i c s tre e t

. I f t h e s i g n w o u l d n o t b e l e g i b l e f r o m th e p ub l i c s tr e e t , th e n th e s i g n s h a l l b e p l ac e d w i thi n te n f e e t o f a p r o p erty l i n e p ar al l e l i n g a p ub l i c s tre e t

. ( A ) T h e e x e c u ti v e d i r e c t o r m ay ap p r o v e v ari ati o n s , i f th e ap p l i c an t h a s d e m o n s t r a te d t h at i t i s n o t p r a c ti c al t o c o mp l y w i th th e s p e c i  c s i g n - p o s ti n g re q u i r e m e nt s . ( B ) A l te rn ati v e s i g n - p o s ti n g p l a n s p r o p o s e d b y t h e ap p l i c a nt mu s t b e at l e a s t a s e f f e c ti v e i n p r o v i d i n g n o ti c e t o th e p ub l i c . ( C ) Th e e x e c u ti v e d i r e c t o r s h al l ap p r o v e th e v ari a ti o n s b e f o re s i g n s are p o s t e d

. ( f

) T h e e x e c u ti v e d i re c t o r s h al l r e c e i v e p u b l i c c o mm e nt f o r 3 0 d a y s af t er th e n o ti c e o f t h e p u b l i c c o m m e n t p e ri o d i s p ub l i s h e d

. D u ri n g th e c o m m e n t p e ri o d , a ny p e r s o n m a y s u b m i t w ri tt e n c o mm e n t s o n th e dr a f t p e rmi t

.

( g ) T h e dr af t p e rmi t m ay b e c h a n g e d b a s e d o n c o m me n t s . § 1 1 6

. 1 4 1 8

. P u b l i c P a rt i c i p a t i o n . ( a ) W i th t h e e x c e p ti o n o f th e p e rmi tti n g p r o c e d ur al re q u i re me n t s s p e c i  e d i n an y o th er c h ap t er o f th i s ti tl e , p ermi t s au th o ri z e d u n d e r thi s s ub c h ap t e r are n o t s u b j e c t t o th e r e q u i r e m e n t s r e l ati n g to a c o nt e s t e d c a s e h e ari n g u n d er T e x a s H e a lth an d S a f e ty C o d e , C h ap t e r 3 8 2 ; T e x a s W at er C o d e ; o r T e x a s G o v e rn me nt C o d e , C h ap te r 2 0 0 1 , S u b c h ap t er s C

- G

. P ermi t ap p l i c ati o n s u n d e r th i s c h ap t er s h a l l b e s ub

j e c t t o a n o ti c e an d c o mme nt h e ari n g a s s p e c i  e d i n s u b s e c ti o n s ( b )

- ( n ) o f t h i s s e c ti o n , a s w e l l a s any ap p l i c ab l e r e q u i r e m e n t s i n C h ap t er s 3 9 an d 5 5 o f thi s ti tl e ( re l ati n g t o Pu b l i c N o ti c e an d R e qu e s t s f o r R e c o n s i d er ati o n an d C o n te s t e d C a s e H e ari n g s ; Pu b l i c C o mm e n t)

. ( b ) A ny h e ari n g re g ar di n g a p e rmi t w i l l b e c o n du c t e d u n d e r th e p r o c e du re s i n thi s s e c ti o n a n d n o t u n d er th e A d mi n i s tr ati v e Pr o c e du re s A c t

. ( c ) A ny p e r s o n w h o m ay b e a f f e c t e d b y e m i s s i o n s f r o m a s i t e re g u l at e d u n d er t h i s s ub c h ap t er m ay r e qu e s t th e e x e c u ti v e d i r e c t o r t o h o l d a h e ari n g o n th e dr af t p ermi t

. T h e re q u e s t mu s t b e m a d e d uri n g th e 3 0

- d a y p ub l i c c o mme nt p eri o d

. ( d ) T h e e x e c u ti v e di re c t o r s h al l d e c i d e w h e th er t o c o n d u c t a h e ari n g . T h e e x e c u ti v e di re c to r i s n o t re qu i re d to h o l d a h e ari n g i f th e b a s i s o f th e re qu e s t b y a p er s o n w h o m ay b e af f e c te d b y e m i s s i o n s f r o m a s i t e i s d e te rmi n e d t o b e u n re a s o n ab l e . I f a h e ari n g i s re q u e s te d b y a p er s o n w h o m ay b e a f f e c t e d b y e m i s s i o n s f r o m a s i t e re g u l a t e d u n d er th i s s u b c h ap t er, an d th at re q u e s t i s re a s o n ab l e , th e e x e c u ti v e di re c t o r s h al l c o n du c t a h e ari n g . ( e ) A t th e ap p l i c a nt ’ s e x p e n s e , n o ti c e o f a h e ari n g o n a dr af t p ermi t mu s t b e p u b l i s h e d i n th e p u b l i c n o ti c e s e c ti o n o f o n e i s s u e o f a n e w s p ap er o f g e n er al c i rc u l a ti o n i n th e mu n i c i p a l i ty i n w h i c h th e s i t e o r p r o p o s e d s i t e i s l o c at e d , o r i n th e mu n i c i p a l i ty n e are s t t o th e l o c ati o n o f th e s i t e o r p r o p o s e d s i t e . T h e n o ti c e mu s t b e p u b l i s h e d at l e a s t 3 0 d ay s b e f o re th e d a t e o f th e h e ari n g . T h e n o ti c e mu s t i n c l u d e th e f o l l o w i n g : ( 1 ) th e ti me , p l a c e , an d n atu re o f th e h e ari n g ; ( 2 ) a b ri e f d e s c ri p ti o n o f th e p u rp o s e o f t h e h e ari n g ; an d ( 3 ) th e n ame an d p h o n e n u mb er o f t h e c o m mi s s i o n t o b e c o nt a c t e d t o v eri f y th a t a h e ari n g w i l l b e h e l d

. ( f

) Th e ap p l i c ant s h al l s u b m i t a c o p y o f th e n o ti c e o f h e ari n g an d d a t e o f p ub l i c ati o n t o th e e x e c u ti v e di re c to r a n d al l l o c al ai r p o l

l u ti o n c o n tr o l a g e n c i e s h a v i n g j u ri s di c ti o n i n th e c o u n ty i n w hi c h th e s i t e i s l o c at e d

. ( g ) A t t h e e x e c u ti v e di re c t o r ’ s d i s c re ti o n , th e h e ari n g n o ti c e m ay b e c o mb i n e d w i th th e n o ti c e o f th e dr af t p erm i t re q u i re d b y t h i s s u b c h ap t er. ( h ) A n y p er s o n , i n c l u di n g th e ap p l i c ant , m ay s u b mi t o r al o r w ri tt e n s t a t e me n t s an d d at a c o n c ern i n g th e dr af t p e rmi t

. ( 1 ) R e a s o n ab l e ti m e l i mi t s m a y b e s e t f o r o r al c o mm e nt s , an d th e s u b mi s s i o n o f c o m me n t s i n w ri ti n g m a y b e re q u i re d

. ( 2 ) T h e p eri o d f o r s ub mi tti n g w ri tt e n c o mme nt s i s au t o m ati c al l y e x t e n d e d to th e c l o s e o f a ny h e ari n g . ( 3 ) A t t h e h e ari n g , th e p e ri o d f o r s ub mi tti n g w ri tt e n c o m m e nt s m a y b e e x t e n d e d b e y o n d th e c l o s e o f th e h e ari n g . ( i ) A t ap e re c o r di n g o r w ri tt e n tr an s c ri p t o f t h e h e ari n g mu s t b e m a d e av ai l ab l e t o t h e p u b l i c . ( j ) A ny p er s o n , i n c l u d i n g th e ap p l i c an t , w h o b e l i e v e s th at any c o n d i ti o n o f th e dr af t p ermi t i s i n ap p r o p ri a te o r th at th e p re l i mi n ary d e c i s i o n to i s s u e o r d e ny th e p ermi t i s i n ap p r o p ri at e , s h al l r ai s e al l re a s o n ab l y a s c ert ai n ab l e i s s u e s a n d s u b m i t al l re a s o n ab l y av a i l ab l e arg u me n t s s u p p o rti n g th a t p o s i ti o n b y th e e n d o f th e p u b l i c c o mm e nt p eri o d

. ( k) T h e e x e c u ti v e d i re c t o r s h al l k e ep a re c o r d o f al l c o m me n t s re c e i v e d a n d i s s u e s r a i s e d i n th e h e ari n g . T hi s re c o r d mu s t b e m a d e av ai l ab l e t o th e p u b l i c . ( l ) T h e dr af t p e rmi t m ay b e c h a n g e d b a s e d o n c o m m e n t s . ( m ) A f t er th e p u b l i c c o mm e nt p eri o d o r th e c o n c l u s i o n o f any n o ti c e a n d c o mm e n t h e ari n g , t h e c h i e f c l erk o f t h e c o mm i s s i o n s h al l s e n d b y  r s t

- c l a s s m a i l t h e e x e c u ti v e d i re c t o r ’ s d e c i s i o n , th e e x e c u ti v e d i re c t o r ’ s re s p o n s e t o an y c o mme nt s s ub mi tte d du ri n g th e c o mm e nt p e ri o d o r a t th e p u b l i c h e ari n g s p e c i  e d i n thi s s e c ti o n , a n d i d e nti  c ati o n o f a ny c h an g e i n th e c o n di ti o n o f th e dra f t p ermi t an d th e re a s o n s f o r th e c h a n g e t o an y p er s o n w h o c o mme nt e d d uri n g th e p u b l i c c o mm e nt p eri o d o r at t h e h e ari n g , an d t o th e ap p l i c ant

. ( n ) T h e c o mm i s s i o n s h al l u s e p u b l i c me e ti n g s , i n f o rm al c o n f ere n c e s , o r a d v i s o ry c o mmi tt e e s t o g a th er th e o p i n i o n s an d a dv i c e o f i n te re s t e d p er s o n s f o r al l p erm i t s i s s u e d u n d er th i s s u b c h ap t er.


## 30 T exReg 7838 November 25, 2005 Texas Register( 1 ) A ny p ub l i c m e e ti n g s h e l d i n a c c o r d a n c e w i th th i s s u b

s e c ti o n s h al l f o l l o w th e n o ti c e an d c o m me n t h e ari n g p r o c e du re s i n s u b

s e c ti o n ( a )

- ( m ) o f t h i s s e c ti o n . ( 2 ) Th e e x e c u ti v e di r e c t o r s h a l l h o l d a p ub l i c me e ti n g : ( A ) o n th e r e q u e s t o f a m e mb e r o f th e l e g i s l ature w h o rep re s e n t s th e g e n er al ar e a i n w h i c h th e f a c i l i ty i s l o c at e d o r p r o p o s e d to b e l o c at e d ; o r ( B ) i f th e e x e c u ti v e di r e c to r d e t erm i n e s th a t th e re i s s ub s t an ti a l p ub l i c i nt e r e s t i n th e p r o p o s e d ac ti v i ty. § 1 1 6

. 1 4 2 0

. P e r m i t F e e . ( a ) F e e s re q u i r e d

. A n y p er s o n w h o ap p l i e s f o r a p erm i t u n d er t h i s s ub c h ap t er mu s t r e m i t a f e e a s p r o v i d e d i n C h ap te r 1 1 6 , S ub c h ap te r B , D i v i s i o n 4 o f th i s ti tl e ( r e l ati n g t o P ermi t F e e s ) at th e ti m e o f ap p l i c ati o n f o r s u c h p erm i t

. ( b ) P a y m e nt o f f e e s . A l l p erm i t f e e s mu s t b e re m i tt e d i n th e f o rm o f a c h e c k o r m o n e y o r d e r m a d e p ay ab l e t o th e " T e x a s C o m mi s s i o n o n En v i r o n m e nt a l Q u a l i ty " an d d e l i v e r e d t o th e T e x a s C o m mi s s i o n o n E n v i r o n me n t al Q u al i ty, P

. O

. B o x 1 3 0 8 8 , M C 2 1 4 , Au s ti n , T

e x a s 7 8 7 1 1

- 3 0 8 8

. R e qu i r e d f e e s mu s t b e r e c e i v e d b e f o re th e c o m mi s s i o n w i l l b e g i n e x a mi n a ti o n o f th e ap p l i c ati o n . § 1 1 6

. 1 4 2 2

. G e n e r a l a n d S p e c i a l Co n di t i o n s . ( a ) P erm i t s i s s u e d u n d er th i s s ub c h ap t er m a y c o nt a i n g e n er a l an d s p e c i al c o n d i ti o n s . T h e h o l d e r s o f a p erm i t u n d er thi s s ub c h ap t er s h a l l c o mp l y w i th any an d al l s u c h c o n d i ti o n s . ( b ) G e n e r al c o n di ti o n s . H o l d er s o f p erm i t s i s s u e d u n d e r thi s s ub c h ap t e r s h al l c o mp l y w i th th e f o l l o w i n g g e n er al c o n d i ti o n s , re g ar d

l e s s o f w h e th er th e y ar e s p e c i  c al l y s t at e d w i th i n t h e p erm i t d o c u me n t

. ( 1 ) R ep o rt o f c o n s tru c ti o n p r o g r e s s . T h e p e rmi t h o l d er s h a l l re p o rt s t art o f c o n s tru c ti o n , c o n s tru c ti o n i nt erru p ti o n s e x c e e d i n g 4 5 d ay s , an d c o mp l e ti o n o f c o n s tru c ti o n . T h e r ep o rt s h al l b e g i v e n to th e ap p r o p ri a te r e g i o n al o f  c e o f t h e c o m mi s s i o n n o t l a te r th a n 1 5 w o rki n g d ay s af t er o c c u rr e n c e o f th e e v e nt

. ( 2 ) S t artu p n o ti  c ati o n . ( A ) Th e p ermi t h o l d er s h al l n o ti f y th e ap p r o p ri at e re g i o n al o f  c e o f th e c o mm i s s i o n p ri o r t o th e c o mm e n c e m e n t o f o p er a ti o n s o f th e f ac i l i ti e s au t h o ri z e d b y th e p ermi t

. T h e n o ti  c a ti o n mu s t b e m a d e i n s u c h a m a n n er a s t o a l l o w a r e p r e s e nt ati v e o f th e c o mmi s s i o n to b e p re s e n t at th e c o m m e n c e m e n t o f o p er a ti o n s . ( B ) T h e p erm i t h o l d e r s h al l p r o v i d e a s e p ar a t e n o ti  c a ti o n f o r th e c o mme n c e me n t o f o p e r ati o n s f o r e ac h u n i t o f p h a s e d c o n s tru c ti o n , w hi c h m a y i n v o l v e a s eri e s o f u n i t s c o m me n c i n g o p er a ti o n s at di f f ere nt ti me s . ( C ) Pri o r t o o p er ati o n o f th e f a c i l i ti e s au th o ri z e d b y th e p erm i t , th e p ermi t h o l d er s h al l i d e nti f y t o th e c o mmi s s i o n ’ s O f  c e o f P e rmi tti n g , R e me d i ati o n , an d R e g i s tr ati o n th e s o u r c e o r s o u rc e s o f a l

l o w an c e s t o b e u ti l i z e d f o r c o mp l i a n c e w i t h C h ap t er 1 0 1 , S ub c h ap t er H , D i v i s i o n 3 o f thi s ti tl e ( r e l a ti n g to M a s s E mi s s i o n s C ap an d T r a d e Pr o g r a m )

. ( 3 ) S a mp l i n g r e q u i r e m e nt s . ( A ) I f s a mp l i n g i s r e qu i r e d , th e p ermi t h o l d er s h a l l c o n t a c t th e c o mm i s s i o n ’ s O f  c e o f C o mp l i an c e an d E n f o r c e me n t p ri o r t o s amp l i n g t o o b t ai n th e p r o p er d a t a f o rm s an d p r o c e d ur e s . ( B ) A l l s amp l i n g a n d t e s ti n g p r o c e d ur e s mu s t b e ap p r o v e d b y th e e x e c u ti v e di r e c to r an d c o o r di n at e d w i th t h e ap p r o p ri at e re g i o n a l o f  c e o f th e c o m mi s s i o n . ( C ) T h e p ermi t h o l d er i s al s o re s p o n s i b l e f o r p r o v i d i n g s amp l i n g f ac i l i ti e s an d c o n d u c ti n g t h e s amp l i n g o p er ati o n s , o r c o n tr ac ti n g w i th an i n d e p e n d e nt s a mp l i n g c o n s u l t an t

. ( 4 ) E qu i v al e n c y o f me th o d s . T h e p e rmi t h o l d er mu s t d e m o n s tr at e o r o th e rw i s e j u s ti f y th e e q u i v al e n c y o f e mi s s i o n c o n t r o l m e t h o d s , s amp l i n g o r o th er e mi s s i o n t e s ti n g m e th o d s , an d m o n i to ri n g m e t h o d s p r o p o s e d a s al t ern ati v e s t o m e th o d s i n d i c at e d i n th e c o n d i

ti o n s o f th e p erm i t

. A l t ern a ti v e me th o d s s h al l b e ap p l i e d f o r i n w ri ti n g an d mu s t b e re v i e w e d an d ap p r o v e d b y th e e x e c u ti v e di re c t o r p ri o r t o u s i n g t h e s e m e t h o d s i n f u l  l l i n g a ny re q u i re m e nt s o f th e p e rmi t

. ( 5 ) R e c o r dke e p i n g . Th e p e rmi t h o l d er s h a l l : ( A ) m a i n t ai n a c o p y o f th e p ermi t a l o n g w i th re c o r d s c o nt ai n i n g th e i n f o rm ati o n an d d a t a s u f  c i e n t t o d e m o n s tr at e c o mp l i

an c e w i th th e p ermi t , i n c lu di n g p r o d u c ti o n re c o r d s an d o p er a ti n g h o u r s ; ( B ) ke ep al l re qu i re d re c o r d s i n a  l e a t t h e f a c i l i ty s i t e . I f, h o w e v e r, th e f ac i l i ty s i t e n o rm al l y o p er a te s u n att e n d e d , re c o r d s mu s t b e m ai n t ai n e d at a n o f  c e w i t h i n T e x a s h av i n g d ay - t o - d ay o p e r ati o n al c o ntr o l o f th e f ac i l i ty s i t e ; ( C ) m ak e th e re c o r d s av ai l ab l e at th e re q u e s t o f t h e e x e c u ti v e d i re c t o r o r an y l o c a l a i r p o l l u ti o n c o ntr o l a g e n c y h av i n g j u ri s di c ti o n o v er th e s i t e . Up o n re qu e s t , th e c o mmi s s i o n s h al l m ak e any s u c h re c o r d s o f c o mp l i an c e a v a i l ab l e t o t h e p ub l i c i n a ti me l y m a n n er ; ( D ) c o mp l y w i th a ny a d d i ti o n a l re c o r dk e ep i n g re qu i re m e nt s s p e c i  e d i n s p e c i al c o n d i ti o n s att ac h e d t o th e p ermi t ; ( E ) re t ai n i n f o rm ati o n i n th e  l e f o r a t l e a s t tw o y e ar s f o l l o w i n g th e d a te th a t th e i n f o rm ati o n o r d at a i s o b t ai n e d ; an d ( F ) f o r p er s o n s c erti f y i n g an d re g i s t eri n g a f e d er al l y e n f o rc e ab l e e m i s s i o n l i mi t ati o n i n a c c o r d an c e w i t h § 1 1 6

. 6 1 1 o f t h i s ti tl e ( re l ati n g t o R e g i s tr ati o n T o U s e a S t a n d ar d P erm i t ) , re t ai n a l l re c o r d s d e m o n s tr ati n g c o mp l i an c e f o r at l e a s t  v e y e ar s . ( 6 ) M ax i mu m a l l o w ab l e e m i s s i o n ra t e s . T h e t o t al e m i s s i o n s o f ai r c o nt a mi n a nt s f r o m any o f th e s o u rc e s o f e mi s s i o n s mu s t n o t e x c e e d th e v al u e s s t at e d o n th e t ab l e a tt a c h e d t o th e p e rmi t e n ti tl e d

" Em i s s i o n S o u rc e s - - M a x i mu m A l l o w ab l e E m i s s i o n R at e s . " ( 7 ) M ai nt e n an c e o f e m i s s i o n c o ntr o l

. T h e p e rmi tt e d f ac i l

i ti e s s h al l n o t b e o p er at e d u n l e s s a l l ai r p o l l u ti o n e mi s s i o n c ap t u re an d ab at e m e nt e qu i p m e nt i s m a i nt ai n e d i n g o o d w o rki n g o r d er an d o p e r at

i n g p r o p erl y d uri n g n o rm al f a c i l i ty o p er a ti o n s . T h e p ermi t h o l d er s h al l p r o v i d e n o ti  c ati o n f o r e mi s s i o n s e v e n t s an d m ai nt e n an c e i n ac c o r d a n c e w i th C h ap t er 1 0 1 , S u b c h ap t er F o f t h i s ti tl e ( re l ati n g t o Em i s s i o n E v e nt s a n d S c h e d u l e d M ai nt e n an c e , S t artup , an d S hu t d o w n A c ti v i ti e s . ( 8 ) C o mp l i an c e w i th ru l e s . ( A ) A c c ep t a n c e o f a p erm i t b y a n ap p l i c a nt c o n s ti tu t e s an ac kn o w l e d g m e n t an d a g re e me n t th a t th e p e rmi t h o l d e r w i l l c o mp l y w i th al l ru l e s , re g u l ati o n s , a n d o r d e r s o f th e c o m mi s s i o n i s s u e d i n c o n f o rm i ty w i th T e x a s H e a lth a n d S af e ty C o d e , C h ap t er 3 8 2 , T e x a s C l e an A i r A c t , an d th e c o n d i ti o n s p re c e d e n t t o th e g r an ti n g o f th e p erm i t

. ( B ) I f m o re th a n o n e s t at e o r f e d e r al ru l e o r re g u l ati o n o r p e rmi t c o n d i ti o n are ap p l i c ab l e , th e m o s t s tri n g e nt l i mi t o r c o n di ti o n s h al l g o v ern an d b e th e s t an d ar d b y w h i c h c o mp l i a n c e s h al l b e d e m o n s tr at e d

. ( C ) A c c ep t a n c e i n c l u d e s c o n s e nt o f t h e e x e c u ti v e di re c t o r t o t h e e n tr an c e o f c o m mi s s i o n e mp l o y e e s an d a g e nt s i n t o th e p er mi tt e d p re mi s e s at re a s o n ab l e ti m e s t o i n v e s ti g a t e c o n di ti o n s re l ati n g t o t h e e mi s s i o n o r c o n c e n tra ti o n o f a i r c o nt am i n an t s , i n c lu di n g c o mp l i

an c e w i th th e p erm i t

.



## PROPOSED RULES November 25, 2005 30 TexReg 7839( c ) S p e c i al c o n d i ti o n s . T h e h o l d er s o f p e rmi t s i s s u e d u n d e r thi s s u b c h ap t er s h a l l c o mp l y w i th al l s p e c i al c o n di ti o n s c o nt ai n e d i n th e p erm i t d o c u me nt

. ( 1 ) S p e c i a l c o n d i ti o n s m ay b e a tt a c h e d to a p e rmi t th at are m o re re s tri c ti v e th a n th e re q u i r e m e nt s o f thi s ti tl e . ( 2 ) S p e c i a l c o n di ti o n s f o r w ri tte n ap p r o v a l

. ( A ) T h e e x e c u ti v e d i r e c t o r m a y r e qu i r e a s a s p e c i al c o n di ti o n th a t t h e p erm i t h o l d er o b t ai n w ri tte n ap p r o v al b e f o r e c o n s tru c t

i n g a s o urc e u n d er : ( i ) a s t an d ar d p ermi t i n ac c o r d an c e w i th S ub c h ap t e r F o f thi s c h ap t er ( re l a ti n g t o S t a n d ar d P e rmi t s ) ; o r ( i i ) a p ermi t b y ru l e i n ac c o r d an c e w i th C h ap t er 1 0 6 o f thi s ti tl e ( re l a ti n g t o P ermi t s b y Ru l e )

. ( B ) W ri tt e n ap p r o v a l m a y b e r e qu i r e d i f th e e x e c u ti v e di re c t o r s p e c i  c al l y  n d s th at a n i n c r e a s e o f a p ar ti c u l ar p o l lu t an t c o u l d e i th e r : ( i ) re s u l t i n a s i g n i  c a nt i mp a c t o n th e ai r e n v i r o n me n t ; o r ( i i ) c au s e th e f ac i l i ty t o b e c o m e s ub j e c t t o r e v i e w i n ac c o r d an c e w i th : (I ) S u b c h ap t er C o f t h i s c h ap t er ( r e l ati n g t o H a z ar d o u s A i r P o l l u t a nt s : R e g u l ati o n s G o v ern i n g C o n s tr u c t e d o r R e c o n s tru c te d M a j o r S o u rc e s ( F C A A , S e c ti o n 1 1 2 ( g ) , 4 0 C F R P art 6 3 ) ) ; o r (I

I ) th e p r o v i s i o n s i n C h ap t e r 1 1 6 , S ub c h ap t er B , D i v i s i o n s 5 an d 6 o f th i s c h ap t e r ( r e l ati n g t o N o n a tt a i n me nt R e v i e w a n d Pre v e nti o n o f S i g n i  c an t D e t eri o r ati o n R e v i e w )

. § 1 1 6

. 1 4 2 4

. A m e n d m e n ts a n d A l te r a ti o n s o f P e r m i t s I s s u e d U n d

e r T

h i s S u b c h a p te r . T h e o w n er o r o p er a t o r p l an n i n g th e m o di  c a ti o n o f a f ac i l i ty p ermi tt e d u n d e r thi s s ub c h ap t er mu s t c o mp l y w i th th e r e qu i r e m e nt s o f S u b c h ap t er B o f thi s c h ap t er ( re l a ti n g to N e w S o u r c e R e v i e w P e rmi t s ) b e f o re w o rk b e g i n s o n th e c o n s tru c ti o n o f th e m o di  c ati o n . A m e n d me nt s a n d al t er ati o n s f o r p e rmi t s i s s u e d u n d er t h i s s u b c h ap t er ar e s u b j e c t t o th e re q u i re me nt s o f S u b c h ap t er B o f t h i s c h ap t er. § 1 1 6

. 1 4 2 6

. R e n e w a l o f P e r m i ts I s s u e d U n de r T h i s S u b c h a p te r . P e rmi t s i s s u e d u n d er th i s s u b c h ap t er s h al l b e r e n e w e d i n a c c o r d an c e w i th t h e re q u i re m e nt s o f S ub c h ap t er D o f th i s c h ap t er ( r e l ati n g t o P er mi t R e n e w a l s )

. § 1 1 6

. 1 4 2 8

. D e l e g a t i o n . T h e c o mm i s s i o n d e l e g at e s t o th e e x e c u ti v e di r e c to r th e au th o ri ty to t ake an y ac ti o n o n a p erm i t i s s u e d u n d e r th i s s ub c h ap te r. This agency hereby certi es 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 RULEHouse Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permittingprocedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxideenhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industry participants and the UnitedStates Department of Energy. In HB 2201, the legislature concluded in its ndings that this technology demonstration projectcould 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 speci c requirement of HB 2201 is that FutureGen permit applications shall not be subject to a contested casehearing. Under the proposed rule, the eligible permit applications for FutureGen projects will be subject to the same permitting and public participation processes that would otherwiseapply to applications for most types of commission permits, except for contested case hearings. Other portions of HB 2201 re-  ected in the proposed rules de ne relevant terms, establish an emissions pro le, 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 toimplement 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 Speci c Designated Facilities; and 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modi cation. SECTION DISCUSSION § 331.11. Classi cation 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 thatis below the base of usable quality water and that is not productive of oil, gas, or geothermal resources. This implements newTexas Water Code Section 27.022 from HB 2201. Under federal requirements, Class II injection wells are used for injection



## 30 T exReg 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 implementationplan (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 on E~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~ts I-~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 

## 116 

## 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 on E~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)

Yes 

# @

- -- - 

# c) No



### yes 

# kT

Yes 

# (~2

yes 

# &j

Yes No Name (Please Print) 

# T+c~~~ &IC/~ iq -

I



### i. 

## : c;<J~ 

# @i/;L,

I

, / 

# '3 *Z&L/'


# --L .( 

# i7 {I 

# I K( 

# c7 Li /[Ts'~ 

### Representing 

# bq~~g 

# EG 

# c '- 

## ?ZF~ 

# - # 

# &t 

# : 1, 2 

# ~3f2 (w, 

# ,L


# L4T 

# -3 E6


# 11 

# -r .-2T J 

# cI 

# L Lo 

## v~9 ~6.f <c?-t.di<

# 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 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 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 16.1416. 

## 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 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 11,000jobs, 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 1l(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 § 5.4501The 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 classi  cations, rules, rates, rating plans, and every modi  cation 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 certi  es 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 Of ce 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), speci  cally, § 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 RULESHouse Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permittingprocedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxideenhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industry participants and the UnitedStates Department of Energy. In HB 2201, the legislature concluded in its  ndings that this technology demonstration projectcould 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 speci  c 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 andpublic 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 authorizea 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 modi  ed to re ect 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 Chapter55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public Notice and Public Participation Requirements for Speci  c Designated Facilities; 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modi  cation; 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 addinga 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 de  ned in the concurrently adopted § 91.30, De  ni

## ADOPTED RULES March 24, 2006 31 TexReg 2471tions, are subject to the public notice requirements of concurrently adopted new Chapter 91, in addition to the requirements of this chapter, unless otherwise speci  ed 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 thatthe 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 Speci  c Designated Facilities. The commission adopts new § 39.404, which includes applicability requirements for certain designated projects, speci  cally applications submitted under Chapter 116, concurrently adopted new Subchapter L, Permits for Speci  c 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 insubsection (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 addinga new paragraph (4) to subsection (e) specifying that applications to construct, authorize, or operate a component of the FutureGen project as de  ned 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 submittedafter January 1, 2018, would not be eligible to use the streamlined public participation provisions of Chapter 116, Subchapter L, Permits for Speci  c Designated Facilities. § 39.420. Transmittal of the Executive Director ’ s Response to Comments and Decision. The commission proposed an amendment to § 39.420 by addinga 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 permitapplications 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 de  nition of a "major environmental rule." Under Texas Government Code, § 2001.0225, "major environmental rule" means a rule the speci  c 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 speci  cally 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 de  nition 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 speci  cally required by state law; 2) exceed an express requirement of state law, unless the rule is speci  cally 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 speci  c 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 representativeof the federal government to implement a state and federal program. Fourth, the commission does not adopt these rules solelyunder the general powers of the agency, but rather under the authority of Texas Health and Safety Code (THSC), § 382,0565, asadded 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 T exReg 2472 March 24, 2006 Texas Registerinjection 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 processfor 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 speci  cally 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 de  nition 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 anaction 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 Actionsand 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 CMPgoals 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 CMPgoal 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 ofair 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 af rms 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 requiredto 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 theFutureGen 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 COMMENTSCEED commented that there was no need for a sunset provision in the rules, because the FutureGen initiative representeda 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 torequest 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 amendportions 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 speci  ed 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 2473to 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 andPurpose, 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 - Mof 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 Speci  c 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 Speci  c 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, speci  cally with respect to subsection (c)(9) and (10), is June 3, 2002. Applications for modi  cations  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 ofapplications that would be included in the applications listed in subsection (b) of this section, but that are speci  cally 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 speci  c 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 toapplications 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 speci  ed 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 Chapter321, 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 de ned in § 116.10 of this title (relating to General De  nitions); (B) modi  cation of an existing facility as de  ned 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 de  ned in § 106.4(a)(1) of this title (relating to Requirements for Permitting by Rule) and of sources de  ned 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 forwhich 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 signi  cant 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 T exReg 2474 March 24, 2006 Texas Register(10) concrete batch plants registered under Chapter 106 ofthis 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 andother 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 noti  cations 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 speci  ed 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 modi  cations of industrial or hazardous waste permits under § 305.69(b) of this title (relating to Solid Waste Permit Modi  cation at the Request of the Permittee). Notice for Class 1 modi  cations shall comply with the requirements of § 39.105 of this title (relating to Application for a Class 1 Modi  cation 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 modi  cations of municipal solid waste permits and registrations under § 305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modi  cations). Notice for modi  cations shall comply with the requirements of § 39.106 of this title (relating to Application for Modi  cation of a Municipal Solid Waste Permit or Registration), without regard to the date of administrative completeness; (11) applications for Class 2 modi  cations of industrial or hazardous waste permits under § 305.69(c) of this title. Notice for Class 2 modi  cations shall comply with the requirements of § 39.107 of this title (relating to Application for a Class 2 Modi  cation of an Industrialor 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 modi  cations of underground injection control permits under § 305.72 of this title (relating to Underground Injection Control (UIC) Permit Modi  cations at the Request of the Permittee); (13) applications for minor modi  cations of Texas Pollutant Discharge Elimination System permits under § 305.62(c)(3) of this title; (14) applications for registration and noti  cation 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 othertype of authorization required to construct, operate, or authorize a component of the FutureGen project as de  ned in § 91.30 of this title (relating to De  nitions), 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 Speci  c Designated Facilities) in addition to the requirements of this chapter, unless otherwise speci  ed 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 Speci  c 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 2475Applications; Public Notice of Water Quality Applications and Water Quality Management Plans; Public Notice of Air Quality Applications; Public Notice of Injection Well and Other Speci  c 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 toPurpose; General Notice Provisions; Mailing Lists; Deadline for Public Comment, and for Requests for Reconsideration, Contested CaseHearing, 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 speci  c 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 Speci  c 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 sh all 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 public ation 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 Speci  c Applications), Subchapter G of this chapter (relating to Public Notice for Ap plications 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 f or further information; (3) a brief d escription 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 signi  cant; and (B) a statement in the notice for any permit application for which there is an opportunity for a contested case hearing, that onlydisputed 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 generalarea 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 statestandards 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, Standardsof 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 Speci  c 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 T exReg 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) noti  cation 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 of  ce of the Texas Commission on Environmental Quality"; and (11) for notices of municipal solid waste applications, astatement 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 modi  cations of hazardous industrial solid waste permits, the statement "The permittee ’ s compliance history during the life of the permit being modi  ed is available from the agency contact person." (c) Unless mailed notice is otherwise provided for under thissection, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in § 39.413 of this title (relating to MailedNotice). 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 materialissues raised during the comment period can be considered if a contested case hearing is granted. The public comment procedures mustbe 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  nalapproval 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 beheld 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 ofthis 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 permitapplication 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 chiefclerk, 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 speci  c subchapter in thischapter 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, modi  cation, 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 Speci  c 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 speci  ed 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 Signi  cant Deterioration Review); and (C) applications under Chapter 116, Subchapter C ofthis 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 de  ned in § 91.30 of this title (relating to De  nitions), any application submitted on or before January 1, 2018, shall be subject to the public noticeand participation requirements in Chapter 116, Subchapter L of this title (relating to Permits for Speci  c 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) Of  ce of the Public Interest Counsel; and (6) Of  ce 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 Intentto Obtain Permit and the request is withdrawn before the date the preliminary decision is issued; or (5) the application is for any amendment, modi  cation, 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 itemslisted 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 Speci  c Designated Facilities), the chief clerk will not transmit the item listed in subsection (a)(4) of this section. This agency hereby certi  es 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 Of ce of the Secretary of State on March 9, 2006. TRD-200601518



## 31 T exReg 2478 March 24, 2006 Texas RegisterStephanie 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 certi  es 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 Of ce 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 permittingprocedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxideenhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industry participants and the UnitedStates 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 speci  c requirement of HB 2201 is that FutureGenpermit 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 andpublic 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 acomponent 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 componentof 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 Reconsiderationand Contested Case Hearings; Public Comment; 30 TAC Chapter 91, Alternative Public Notice and Public Participation Requirements for Speci  c Designated Facilities; 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modi  cation; 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), whichstates that the commission may act on an application for a permit, registration, license, or other type of authorization requiredto construct, operate, or authorize a component of the FutureGen project as de  ned in § 91.30, De  nitions, 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 de  nition of a "major environmental rule." Under Texas Gov

## ADOPTED 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 certi  es 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 Of ce 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 RULESHouse Bill (HB) 2201, passed by the 79th Legislature, 2005, directs the commission to establish by rule, streamlined permittingprocedures for FutureGen projects. FutureGen refers to a combination of technologies for carbon sequestration, carbon dioxide (CO 2 ) enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industry participants andthe 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 speci  c requirement of HB 2201 isthat 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 samepermitting 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 adopted rules de  ne relevant terms, establish an emissions pro  le, 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, speci  cally, to establish a reasonablystreamlined 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 theFutureGen project, public notice requirements for these applications need to be modi  ed to re ect 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 OtherAuthorizations; 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 Speci  c 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 Speci  c Designated Facilities. Speci  cally, 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 componentof the FutureGen project. In response to comments, the commission has revised § 116.1402 to clarify that modi  cations that would trigger amendments to a FutureGen permit will be subject to the notice and hearing provisions of Subchapter L, and wouldnot 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, speci  cally to clarify that modi  cations 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 T exReg 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. De nitions. The adopted new section contains de  nitions applicable to the new subchapter, clean coal projects, and the FutureGen project. Speci  cally, the section de  nes: clean coal project, coal, FutureGen project, component of the FutureGen project, FutureGen project pro  le, hearing, and designated project. In response to comments, the commission has added a de  nition 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 Pro le for FutureGen Projects. The adopted new section establishes an emissions pro  le for FutureGen projects. This emissions pro  le is included in the event that the United States Department of Energy does not specify an emissions pro  le 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 signi  cant 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 improveconsistency with permit application requirements in other subchapters of Chapter 116. § 116.1416. Public Notice. The adopted new section establishes public notice requirementsfor 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 therest 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 of ce 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 acopy 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 certi  cation 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 oncomments 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 speci  c procedures for public participation in the issuance of a FutureGen permit. The newsection 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 arenot subject to the contested case hearing process, but are subject to a notice and comment hearing process. New § 116.1618(b) - (m) speci  es the notice and comment hearing process. Speci  cally, 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 executivedirector 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 havingjurisdiction 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 permitor preliminary decision are inappropriate shall submit all reasonable arguments before the end of the comment period; and statethe 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 directorto keep and make available to the public a record of all com

## ADOPTED RULES March 24, 2006 31 TexReg 2493ments received and issues raised at the hearing; allowing thedraft 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 speci  ed 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 duringthe 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 togather 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 de  ned 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 noti  cation, 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 tobe attached to a permit. In response to comments, the commission added a requirement that an additional startup noti  cation 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 de  ned in the statute. Therefore, Texas Government Code, § 2001.0225, does not apply to this rulemaking. "Major environmental rule" is de  ned in Texas Government Code, § 2001.0225(g)(3), as a rule the speci  c intent of which is to protect the environment or reduce risksto 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 establishingpublic 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 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 de  nition 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 speci  cally required by state law; 2) exceed an express requirement of state law, unless the rule is speci  callyrequired 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 speci  c state law.In this case, the adopted rules do not meet any of these applicability requirements. First, the adopted rules are consistentwith, 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 delegationagreement 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 thecommission, 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 CO 2 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 processfor authorizing certain types of projects required for the FutureGen project. The adopted rules are only procedural rules



## 31 T exReg 2494 March 24, 2006 Texas Registerestablishing 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 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 de  nition 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 anaction 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. TheCMP 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 authorizenew 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 in40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 TAC § 501.14(q)). This rulemakingcomplies 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 af rms 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, andindicated 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 amendportions 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 speci  ed 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 bene  ts of the FutureGen project. In its  ndings articulated in HB 2201, the legislature described a number of economic and social bene  ts 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 bene  t 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 widelyused 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 signi  cant 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 2 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 2495effect of CO 2 injection on saline aquifer water quality; and 3) theharm that may come to soil bacteria as a result of carbon sequestration. The commission ’ s federally authorized Underground Injection Control (UIC) Program has signi  cant experience and data relating to protection of fresh water from the potential adverse impactof underground injection of liquid waste, including proper evaluation of injection and con  ning zones, subsurface faults andfractures, and other wells in the area of review. While the commission does not have data on some of the speci  c CO 2 injection concerns listed by HSC, the commission notes that underground injection of CO 2 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 signi  cant research efforts being conducted by theTexas Bureau of Economic Geology in association with a number of other research institutions, participating industries, andgovernment 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 clari  ed 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 de  ne 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 clari  ed to ensure that both initial permitting, and amendments to aFutureGen 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 permitswould 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 de  nition 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 thatamendments 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 modi  cation 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 representeda 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 signi  cant 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 signi  cant deterioration permits, a notice and comment style hearing is suf cient to satisfy the applicable federal requirements. The commission is not changing the rules in response to this comment. HSC suggested de  ning the terms "integrated sequestration," "sequester," and "carbon sequestration" since these terms are relevant to de  ne eligible projects. HSC also suggested de  ning 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 suf cient limits on eligible projects and that de  nitionsof these terms are not necessary. The commission is not changing the rules in response to this comment. HSC questioned how the commission de  nes "reasonably streamlined procedures" under § 116.1400.The term "reasonably streamlined procedures" refers to the altered public participation process for FutureGen permit applications, speci  cally the use of a notice and comment hearing process instead of a contested case hearing process. EPA commented that the de  nition of coal used in the proposed rules should be revised to match the de  nition of coal speci  ed in 40 Code of Federal Regulations Part 60, Subpart Da, § 60.41Da. HB 2201 speci  ed a de  nition of coal to be used in associationwith permitting of FutureGen sources and the commission believes it is necessary to maintain the proposed de  nition 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 clari  ed 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 T exReg 2496 March 24, 2006 Texas RegisterHSC commented that § 116.1410 should address how leaks of CO 2 to the atmosphere or to water would be addressed in the applicable permit. As part of the permitting process, TCEQ speci  es 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 2 , because the commission does not currently regulate emissions of CO 2 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 pro  le in § 116.1410(1) and(2) is based on percentages of sulfur and mercury concentrations found in the coal, instead of a speci  c 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 theproposed 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 pro  le speci  ed in § 116.1410 was established by HB 2201, which amended portions of the THSC to de  ne the pro-  le in statute. In general, the commission is obligated to follow the pro  le in the statute. However, in order to obtain a permit under Chapter 116, a proposed facility is required to employ BACTto control emissions from the facility. If control technology advances to a point where BACT would result in lower emissions than the pro  le, the facility would be required to comply with a lower allowable emission rate that re ects 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 pro  le. If BACT would result in an emission rate that is lower than the rate speci  ed in the pro  le, the applicantwould 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 speci  cally 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 speci  ed 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 "signi  cant" 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 theemission 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 suf cient 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 ofthe permit review, appropriate methods of demonstrating compliance and monitoring compliance will be identi  ed and incorporated into the permit. The commission acknowledges that themonitoring 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 speci  ed 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 clari  cation is needed to avoid misinterpretation or con icts. FGTAB and CEED suggested that the term "hearings" be de  ned to mean notice and comment hearings. The commission concurs with this comment and has added a de  nition 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 2497HSC commented that the commission should de  ne 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 signi  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 § 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 Chapter116, 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 noti  cation of startup to the appropriate regional of ce, should include a similar noti  cation requirement for local air pollution control agencies having jurisdiction so those local agencies wouldbe 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 suf cient to provide a means to determinecompliance. 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 modi  cation 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. De nitions. 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 hydrogenresearch 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 modi  cation of a facility for electric generation, industrial production, or the production of steam as a byproduct of coal gasi  cation 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 gasi  cation technology to generate electricity, hydrogen, or steam in a manner that meets the FutureGen project pro  le;(B) is designed to employ fuel cells to generate electricity in a manner that meets the FutureGen project pro  le; (C) is designed to employ a hydrogen-fueled turbine togenerate electricity where the hydrogen is derived from coal in a manner that meets the FutureGen project pro  le; (D) is designed to demonstrate the ef  cacy at an electric generation or industrial production facility of a carbon dioxide capture technology in a manner that meets the FutureGen project pro  le; (E) is designed to sequester a portion of the carbondioxide captured from an electric generation or industrial production facility in a manner that meets the FutureGen project pro  le in conjunction with appropriate remediation plans and appropriatetechniques 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 pro  le in conjunction with appropriate techniques for reservoir characterization, injection control, and monitoring; (G) quali  es for federal funds designated for the FutureGen project;



## 31 T exReg 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 pro  le--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 speci  es 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) ofthis 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 signi  cant air contaminants asdetermined 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 de  ned 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 de  ned 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 speci  ed in the permit application. The commission may require the applicant to submit additional engineering data afterthe permit has been issued in order to demonstrate further that the facility will achieve the performance speci  ed in the permit. In addition,the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measuredprocess 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 signi  cant 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 Signi  cant Deterioration Review). (9) Air dispersion modeling or ambient monitoring. The commission may require computerized air dispersion modeling and/orambient 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 de  ned in § 116.15(1) of this title (relating to Section 112(g) De  nitions), 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 locatedor 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 of  ce 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 of  ce.(F) The sign shall include the phone number of the appropriate commission regional of  ce. (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 speci  c 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 areapplicable when either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingualeducation 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 bepublished 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 havebeen 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 eachlanguage 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 T exReg 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 beposted 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 speci  cally 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 of  ce of the commission not later than 15 working days after occurrence of the event. (2) Startup noti  cation.(A) The permit holder shall notify the appropriate regional of  ce 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 noti  cation must be made in such a manner as to allow a representative of the commission anda 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 noti  cation 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 Of  ce ofPermitting, 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 Of  ce 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 of  ce of the commission. (C) The permit holder is also responsible for providingsampling 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 monitoringmethods 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 ful  lling 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 suf  cient 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 of  ce 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 speci  ed 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 andabatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide noti  cation 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 complywith 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 conditionshall 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 relatingto 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 speci  cally  nds that an increase of a particular pollutant could either: (i) result in a signi  cant 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 Signi  cant Deterioration Review). § 116.1424. Amendments and Alterations of Permits Issued Under This Subchapter. The owner or operator planning the modi  cation of a facility permittedunder 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 modi  cation. 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 noti  cation or public comment procedures required by Subchapter B of this chapter. This agency hereby certi  es 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 Of ce 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 T exReg 2502 March 24, 2006 Texas Register