TECHNICAL SUPPORT DOCUMENT 

Revisions to the Texas State Implementation Plan 

FutureGen 

30 TAC Chapter 39 – Public Notice 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction or 

Modification 

Submitted as part of the following: 

Rule Project No: 2006-053-091-PR on March 9, 2006 

Rule Project No: 2010-004-039-LS on July 2, 2010 

November 1, 2013 

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, United States Environmental 

Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 

75202-2733, (214) 665-2115. 
1

Subject : Revisions to the Texas State Implementation Plan; FutureGen Permitting; 

Revisions to 30 TAC Chapters 39 and 116 

Contents:

I. Executive Summary 

II. Technical Evaluation of SIP Submittals 

III. Conclusion 

 
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I. Executive Summary

What actions are evaluated in this Technical Support Document?

This technical support document (TSD) reviews portions of two separate revisions to the Texas 

SIP establishing the public participation and permitting provisions for the FutureGen program on 

March 9, 2006 and July 2, 2010. This review will determine if the changes to the public 

participation provisions for air quality permits and the FutureGen permitting provisions are 

consistent with the requirements of the Clean Air Act and EPA’s policy and guidance. 

FutureGen is a United States Department of Energy (DOE) Program to promote the advancement 

and development of new technologies. 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 DOE. 

The Texas Legislature passed House Bill 2201 (HB 2201) in 2005, concluding that the 

FutureGen technology demonstration project could result in major economic, social and 

environmental benefits for Texas. In order to help Texas compete for federal funding associated 

with the FutureGen project, the Texas Legislature passed HB 2201 to provide for streamline 

permitting by specifically exempting FutureGen projects from the contested case hearing 

process. 

Accordingly, on February 22, 2006, the TCEQ adopted the new provisions to Chapter 116 to 

implement the requirements of HB 2201. At the same time the TCEQ also adopted public 

participation provisions for FutureGen to provide for the exemption from contested case hearing. 

The TCEQ subsequently modified the public notice provisions for the entirety of the Texas Air 

Permit program in the July 2, 2010 Public Notice SIP submittal. On this date, the TCEQ 

withdrew the previous public notice SIP submittals, including the FutureGen specific public 

notice provisions, and replaced with new public notice provisions. Therefore, the public notice 

provisions specific to FutureGen that will be reviewed in this TSD were submitted on July 2, 

2010. 
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II. Technical Evaluation of the Texas SIP Submittals

The March 9, 2006 and July 2, 2010, SIP submittals establishing the permitting and public 

participation provisions, respectively, for the FutureGen program are evaluated for compliance 

with the relevant requirements of the Act and Title 40 of the Code of Federal Regulations (40 

CFR) part 51 – Requirements for Preparation, Adoption, and Submittal of Implementation Plans. 

These requirements include, but are not limited to the following: 

1. §110(a)(2)(C) of the Act which provides:

(C) include a program to provide for the regulation of the modification and construction 

of any stationary source within the areas covered by the plan as necessary to assure that 

national ambient air quality standards are achieved, including a permit program as 

required in parts C and D;

2. §110(l) of the Act which provides:

(l) Plan Revisions. – Each revision to an implementation plan submitted by a State under 

this chapter shall be adopted by such State after reasonable notice and public hearing. 

The Administrator shall not approve a revision of a plan if the revision would interfere 

with any applicable requirement concerning attainment and reasonable further progress 

(as defined in section 171), or any other applicable requirement of the chapter.

3. 40 CFR 51.160 – Legally enforceable procedures. The regulatory text of 40 CFR 51.160 

is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e14c7616ca&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.1&idno=40

4. 40 CFR 51.161 – Public availability of information. The regulatory text of 40 CFR 

51.161 is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e14c7616ca&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.2&idno=40

5. 40 CFR 51.165 – Permit requirements. The regulatory text of 40 CFR 51.165 is available 

on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=feed49ec24fac67402c2bf6fa403850d&rgn=div8&view=text&node=40:

2.0.1.1.2.6.8.6&idno=40.

6. 40 CFR 51.166 – Prevention of significant deterioration of air quality. The regulatory text 

of 40 CFR 51.166 is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=0dbbe52d31085f8454d6cbf1412e1557&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.7&idno=40.

7. Other applicable requirements of the Act, 40 CFR part 51, and applicable policy and 

guidance will be identified in the evaluation where appropriate. 

Specifically, the March 9, 2006 and July 2, 2010 submittals are first reviewed for completeness 

as SIP submittals under Part 51, Appendix V. This will be followed by a detailed analysis of the 

submitted revisions with respect to the SIP-approved public participation and permitting 

provisions to determine consistency with EPA regulations, guidance and whether the submitted 
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provisions interfere with any applicable CAA provisions. These analyses produce a written 

evaluation used to make a determination of whether or not the March 9, 2006 and July 2, 2010 

Texas FutureGen SIP revisions are in agreement with the CAA, other EPA policies or guidance. 

II. Technical Evaluation of the Texas Public Participation SIP Submittals

A. Part 51, Appendix V Evaluation of the March 9, 2006 and July 2, 2010 SIP 

Submittals 

The criteria for completeness determination are found in Appendix V to Part 51 - Criteria for 

determining the completeness of plan submissions and are outlined below: 

1.0 Purpose: This appendix V sets forth the minimum criteria for determining whether a 

State implementation plan submitted for consideration by EPA is an official submission 

for purposes of review under § 51.103. 

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails to 

meet the criteria set forth in this appendix V, and request corrective action, identifying 

the component(s) absent or insufficient to perform a review of the submitted plan. 

1.2 The EPA shall inform the submitting official whether or not a plan submission meets the 

requirements of this appendix V within 60 days of EPA's receipt of the submittal, but no 

later than 6 months after the date which the State was required to submit the plan or 

revision. If a completeness determination is not made by 6 months from receipt of a 

submittal, the submittal shall be deemed complete by operation of law on the date 6 

months from receipt. A determination of completeness under this paragraph means that 

the submission is an official submission for purposes of §51.103. 

The attached checklist outlines the basic criteria included under 2.1, 2.2, and 2.3 of Appendix V.
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SIP Completeness Checklist for the March 9, 2006 SIP Submittal

Rule Log No: 2005-053-091-PR 

Administrative Materials (2.1) 

1. The package is sent with a formal submittal letter from the Governor or his or her 

designee requesting EPA's approval of the revision. 

The SIP revision was submitted by a letter from Kathleen Hartnett White, Chairman of 

the TCEQ, dated March 9, 2006. The SIP submittal was received by EPA Region 6 Air 

Planning Section on April 11, 2006. 

2. Evidence is included that the State has adopted the revision in the State code or body of 

regulations, or that the State has issued the permit, order, consent agreement (hereafter 

document) in final form. This evidence would include the date of adoption or final 

issuance and the effective date of revision, if different from adoption/issuance date. 

The revisions were adopted by the TCEQ on February 22, 2006, and became effective 

March 29, 2006. 

3. Evidence is included that the State has necessary legal authority under State law to adopt 

and implement the revision, e.g., a citation of the appropriate State authority. 

The authority for promulgating changes to the Texas State Implementation Plan is found 

in the Texas Clean Air Act, Chapter 382 of the Texas Health and Safety Code. 

4. A copy is included of the actual regulation or document submitted for approval and 

incorporation by reference into the SIP including an indication of the changes made to the 

existing approved plan where applicable. The submittal shall be a copy of the official 

State regulation document signed, stamped, and dated by the appropriate State official 

indicating that it is fully enforceable by the State. The effective date of the regulation 

document shall, whenever possible, be indicated in the document itself. 

 

The March 9, 2006, submittal included a copy of the official State regulation document, 

submitted by Chairman Bryan Shaw. 

5. Evidence is included that the State followed all the procedural requirements of its laws 

and/or its constitution in the conducting and completing the adoption/issuance of the 

plan. 

The SIP submittal package included a certification demonstrating the SIP submittal was 

developed pursuant to 40 CFR 51.104. 
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6. Evidence is included that public notice was given of the proposed changes consistent 

with the procedures approved by EPA, including the date of publication of such notice, 

(e.g., notarized or certified copies of any public notices published in newspapers). (The 

notice should be at least 30 days prior to the public hearing(s). 

Notices of public hearings were published in the following newspapers on the date listed: 

 Austin American Statesman: November 15, 2005 

 Fort Worth Star-Telegram: November 17, 2005 

 Houston Chronicle: November 16, 2005 

TCEQ provided notice of public hearing in the Texas Register on November 25, 2005 (30 

TexReg 7921). 

TCEQ conducted a public hearing in Austin, Texas, on December 20, 2005. 

TCEQ also provided publication in the Texas Register of the proposed rulemaking for 

Chapter 116 on November 25, 2005 (30 TexReg 7810) and Chapter 39 on December 16, 

2005 (30 TexReg 8401). 

7. A certification is included indicating that public hearing(s) was/were held in accordance 

with the information provided in the public notice(s) and the State's laws and 

constitution, if applicable. 

An order adopting revisions to the SIP was included. This order states that the public 

hearing was conducted pursuant to Texas Health and Safety Code § 382.017, Texas 

Government Code Chapter 2001, and 40 CFR § 51.102. 

8. A compilation of public comments and the State's response is included. 

The SIP submittal package did include a compilation of comments and the State’s 

response to comments. TCEQ received written testimony from 5 parties during the 

comment period, including EPA Region 6. TCEQ received oral testimony from one party 

during the December 20, 2005 public hearing. 

Technical Support (2.2) 

The State should include the following technical information in its SIP revision request package. 

1. Identification of all regulated pollutants affected by the revision is included. 

The SIP submittal revises the public notice and permitting requirements for the 

FutureGen project – therefore the SIP revision affects all regulated pollutants. 

2. Identification of the locations of affected sources including the EPA 

attainment/nonattainment designation of the locations and the status of the attainment 

plan for the affected area(s) is included. 
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The provisions for public notice and permitting requirements for the FutureGen project 

would only apply in the specific location selected by the Department of Energy. However, 

the location could be anywhere within the state of Texas. 

3. Quantification of the changes in SIP allowable emissions from the affected sources is 

included. (Examples include estimates of changes in current actual emissions from 

affected sources and/or, where appropriate, quantification of changes in actual emissions 

from affected sources through calculations of the differences between certain baseline 

levels and allowable emissions anticipated if the revisions were approved.) 

The provisions for public notice and permitting requirements for the FutureGen project 

streamline permit issuance by eliminating the need for contested case hearing. The 

current SIP-approved requirements for PSD, NNSR or minor NSR would continue to 

apply. Therefore this submittal does not need to address changes in allowable emissions 

since the permitting must be consistent with federal requirements. 

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration and 

visibility as applicable would be protected if the revision were approved and 

implemented. 

The provisions for public notice and permitting requirements for the FutureGen project 

streamline permit issuance by eliminating the need for contested case hearing. The 

current SIP-approved requirements for PSD, NNSR or minor NSR would continue to 

apply. Because permitting must be consistent with SIP-approved requirements, any 

permit issued for the FutureGen project would be required to demonstrate protection of 

the NAAQS/PSD increment/RFP/visibility or any other applicable requirement of the Act. 

5. FOR REDESIGNATIONS: 

 a. Is there a fully approved maintenance plan for the primary ambient air quality 

standards for at least 10 years as required by §175A of the Clean Air Act? 

 Not applicable. 

 b. Are contingency measures included? 

 Not applicable. 

6. Modeling information, if applicable, is required to support the proposed revision. 

Modeling information is not necessary for this SIP submittal. The FutureGen project 

must be permitted consistent with SIP-approved mechanisms, therefore if any modeling is 

required it will be through the current permit issuance process. 
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7. Evidence is included where necessary, that emission limitations are based on continuous 

emission reduction technology (e.g., add-on controls, industrial/process equipment 

designs, reformulated materials, etc.). 

Appropriate emission limitations will be established in individual permits. The SIP 

revision does not need to include a discussion of emission limitations. 

8. Evidence is included indicating that a SIP revision contains emission limitations, work 

practice standards, and recordkeeping/reporting requirements to ensure stated emission 

levels. 

Appropriate recordkeeping/reporting requirements will be established in each individual 

permit such that the necessary emission limitations, work practice standards are in place 

to ensure stated emission levels. 

9. Compliance/enforcement strategies including how compliance will be determined in 

practice (including at what frequency). 

Compliance/enforcement of the NSR permitting program will be determined on a permitby-permit basis. 

10. As appropriate, special economic and technological justifications are included per 

applicable EPA policies or an explanation why such justifications are not necessary 

should be included. For example, requests for alternative RACT may require such 

justification. 

 These justifications are not necessary for this SIP revision. 

The March 9, 2006 SIP submittal (Rule Project No. 2005-053-091-PR) meets the 

completeness criteria established in 40 CFR part 51, Appendix V. 
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SIP Completeness Checklist for the July 2, 2010 SIP Submittal

Rule Log No: 2010-004-039-LS 

Administrative Materials (2.1) 

1. The package is sent with a formal submittal letter from the Governor or his or her 

designee requesting EPA's approval of the revision. 

The SIP revision was submitted by a letter from Bryan W. Shaw, PhD, Chairman of the 

TCEQ, dated July 2, 2010. The SIP submittal was received by EPA Region 6 Air 

Planning Section on July 10, 2012. 

2. Evidence is included that the State has adopted the revision in the State code or body of 

regulations, or that the State has issued the permit, order, consent agreement (hereafter 

document) in final form. This evidence would include the date of adoption or final 

issuance and the effective date of revision, if different from adoption/issuance date. 

The revisions were adopted by the TCEQ on June 2, 2010, and became effective June 24, 

2010. 

3. Evidence is included that the State has necessary legal authority under State law to adopt 

and implement the revision, e.g., a citation of the appropriate State authority. 

The authority for promulgating changes to the Texas State Implementation Plan is found 

in the Texas Clean Air Act, Chapter 382 of the Texas Health and Safety Code. 

4. A copy is included of the actual regulation or document submitted for approval and 

incorporation by reference into the SIP including an indication of the changes made to the 

existing approved plan where applicable. The submittal shall be a copy of the official 

State regulation document signed, stamped, and dated by the appropriate State official 

indicating that it is fully enforceable by the State. The effective date of the regulation 

document shall, whenever possible, be indicated in the document itself. 

 

The July 2, 2010, submittal included a copy of the official State regulation document, 

submitted by Chairman Shaw. 

5. Evidence is included that the State followed all the procedural requirements of its laws 

and/or its constitution in the conducting and completing the adoption/issuance of the 

plan. 

The SIP submittal package included a certification demonstrating the SIP submittal was 

developed pursuant to 40 CFR 51.104. 
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6. Evidence is included that public notice was given of the proposed changes consistent 

with the procedures approved by EPA, including the date of publication of such notice, 

(e.g., notarized or certified copies of any public notices published in newspapers). (The 

notice should be at least 30 days prior to the public hearing(s). 

Notices of public hearings were published in the following newspapers on the date listed: 

 Austin American Statesman: December 11, 2009 

 Fort Worth Star-Telegram: 

 Houston Chronicle 

TCEQ conducted a public hearing in Austin, Texas, on January 25, 2010. 

TCEQ also provided publication in the Texas Register of the proposed rulemaking (35 

TexReg 306) and public hearing notice (35 TexReg 398) on January 15, 2010. 

7. A certification is included indicating that public hearing(s) was/were held in accordance 

with the information provided in the public notice(s) and the State's laws and 

constitution, if applicable. 

An order adopting revisions to the SIP was included. This order states that the public 

hearing was conducted pursuant to Texas Health and Safety Code § 382.017, Texas 

Government Code Chapter 2001, and 40 CFR § 51.102. 

8. A compilation of public comments and the State's response is included. 

The SIP submittal package did include a compilation of comments and the State’s 

response to comments. TCEQ received written testimony from 25 parties during the 

comment period, including EPA Region 6. TCEQ received oral testimony from one party 

during the January 25, 2010 public hearing. 

Technical Support (2.2) 

The State should include the following technical information in its SIP revision request package. 

1. Identification of all regulated pollutants affected by the revision is included. 

The SIP submittal revises the public notice and participation provisions for the Texas air 

permits program – therefore the SIP revision affects permits for all regulated pollutants. 

2. Identification of the locations of affected sources including the EPA 

attainment/nonattainment designation of the locations and the status of the attainment 

plan for the affected area(s) is included. 

The provisions for public notice and participation in Texas air permitting will apply 

statewide. 
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3. Quantification of the changes in SIP allowable emissions from the affected sources is 

included. (Examples include estimates of changes in current actual emissions from 

affected sources and/or, where appropriate, quantification of changes in actual emissions 

from affected sources through calculations of the differences between certain baseline 

levels and allowable emissions anticipated if the revisions were approved.) 

The provisions for public notice and participation do not need to include quantification 

of the changes in SIP allowable emissions from the affected sources. These public 

participation provision do not change any of the permitting mechanisms that have 

already been submitted and acted upon by EPA such as the PSD or NNSR programs that 

are SIP-approved. 

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration and 

visibility as applicable would be protected if the revision were approved and 

implemented. 

The public participation provisions that are the subject of this SIP revision do not need to 

include a demonstration that NAAQS/PSD increments/RFP demonstration, etc. will be 

protected. The subject revision does not alter any of the SIP-approved permit 

mechanisms or SIP compliance demonstrations already in place. 

5. FOR REDESIGNATIONS: 

 a. Is there a fully approved maintenance plan for the primary ambient air quality 

standards for at least 10 years as required by §175A of the Clean Air Act? 

 Not applicable. 

 b. Are contingency measures included? 

 Not applicable. 

7. Modeling information, if applicable, is required to support the proposed revision. 

Modeling information is not necessary to support the analysis and review of the proposed 

public notice and participation provisions. However, as discussed later in this document, 

the proposed revisions do require certain permit applicants to provide the air quality 

modeling results for a specific project during the public comment period. 

7. Evidence is included where necessary, that emission limitations are based on continuous 

emission reduction technology (e.g., add-on controls, industrial/process equipment 

designs, reformulated materials, etc.). 

Appropriate emission limitations will be established in individual permits. The SIP 

revision under review in this document only establishes public notice and participation 
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provisions for individual permits. The SIP revision does not need to include a discussion 

of emission limitations. 

8. Evidence is included indicating that a SIP revision contains emission limitations, work 

practice standards, and recordkeeping/reporting requirements to ensure stated emission 

levels. 

Appropriate recordkeeping/reporting requirements will be established in each individual 

permit such that the necessary emission limitations, work practice standards are in place 

to ensure stated emission levels. This information is not necessary for inclusion in the 

public notice provisions under review in this SIP revision because this SIP addresses how 

each individual permit will be open for public review and inspection, and the general 

requirements for inclusion – not the substance of each permit. 

9. Compliance/enforcement strategies including how compliance will be determined in 

practice (including at what frequency). 

Compliance/enforcement of the NSR permitting program will be determined on a permitby-permit basis and not through the public participation SIP revision. 

10. As appropriate, special economic and technological justifications are included per 

applicable EPA policies or an explanation why such justifications are not necessary 

should be included. For example, requests for alternative RACT may require such 

justification. 

 These justifications are not necessary for this SIP revision. 

The July 2, 2010 SIP submittal (Rule Project No. 2010-004-039-LS) meets the completeness 

criteria established in 40 CFR part 51, Appendix V.
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II. Technical Evaluation of the FutureGen SIP Submittals 

II.A. Summary of the State Submittals 

The FutureGen program has been submitted in two separate SIP submittals. The initial adoption 

of the permitting and public notice provisions was submitted on March 9, 2006. TCEQ 

subsequently revised the public notice rules for the entirety of the Texas air permitting program 

and submitted revised rules on July 2, 2010. Following is a description of each of the sections 

submitted in each of these SIP submittals. 

March 9, 2006

 On February 22, 2006 the TCEQ adopted revisions to the Texas SIP at 30 TAC Chapter 39 

for Public Notice and Chapter 116, Control of Air Pollution by Permits for New Construction 

or Modification. The adopted provisions implement Texas House Bill 2201, passed by the 

79th Legislature, 2005, which directed the TCEQ to establish streamlined permitting 

procedures and rules for FutureGen projects. FutureGen refers to a combination of 

technologies for carbon sequestration, carbon dioxide enhanced oil recovery, electric 

generation, and hydrogen production. FutureGen is a technology demonstration project that 

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

 The Chairman of the TCEQ, Ms. Kathleen Hartnett White, submitted these provisions as a 

SIP revision in a letter dated March 9, 2006, for rule project number 2005-053-091-PR. 

 The submittal included the following provisions specific to public participation: 

o Revisions to 30 TAC 39.403(b)(8) – (10) and new 39.403(f) 

o The repeal of 30 TAC 39.404 

o New 30 TAC 39.404 

o Withdraw 30 TAC 39.411, 39.419 and 39.420 as submitted on July 31, 2002 

o New 30 TAC 39.411(a), 39.411(b)(1) – (6), 39.411(b)(8) – (10), 39.411(c)(1) – (6), and 

39.411(d) 

o New 30 TAC 39.419(a), 39.419(b), 39.419(d), and 39.419(e) 

o New 30 TAC 39.420(a), 39.420(b), and 39.420(c)(3) and (c)(4) 

 The submittal included the following provisions specific to permitting FutureGen projects: 

o New Subchapter L – Permits for Specific Designated Facilities 

 New 30 TAC 116.1400 – establishes the purpose of the FutureGen specific 

provisions, 

 New 30 TAC 116.1402 – establishes the applicability of the FutureGen provisions, 

New 30 TAC 116.1404 – establishes the permit requirements for FutureGen, 

 New 30 TAC 116.1406 – establishes compliance history requirements, 

 New 30 TAC 116.1408 – establishes the FutureGen specific definitions, 

 New 30 TAC 116.1410 – establishes an emissions profile for FutureGen projects, 

 New 30 TAC 116.1414 – establishes application requirements for FutureGen, 

 New 30 TAC 116.1416 – establishes public notice requirements for FutureGen, 

 New 30 TAC 116.1418 – establishes public participation requirements, 

 New 30 TAC 116.1420 – establishes permit fee requirements, 

 New 30 TAC 116.1422 – establishes general and special conditions for FutureGen, 

 New 30 TAC 116.1424 – establishes provisions for amendments and alterations of 

FutureGen permits, 
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 New 30 TAC 116.1426 – establishes provisions for renewals of FutureGen permits, 

and 

 New 30 TAC 116.1428 – establishes delegation provisions for FutureGen. 

July 2, 2010

 On June 2, 2010, the TCEQ adopted amendments to the Texas SIP concerning Public Notice 

at 30 TAC Chapter 39; Requests for Reconsideration and Contested Case Hearings; Public 

Notice at 30 TAC Chapter 55; and Control of Air Pollution by Permits for New Construction 

or Modification at 30 TAC Chapter 116. Chairman Bryan W. Shaw, PhD, submitted these 

amendments as revisions to the Texas SIP in a letter dated July 2, 2010. 

 The amendments submitted as revisions to the Texas SIP are as follows: 30 TAC §§ 

o 39.402(a)(1) – (6), (8), and (10)-(12) 

o 39.405(f)(3) and (g), (h)(1)(A)-(4), (6), (8)-(11), (i) and (j) 

o 39.407 

o 39.409 

o 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and (B), (6)-(10), (11)(A)(i) and (iii) and 

(iv), (11)(B)-(F), (13) and (15), and (f)(1)-(8), (g) and (h) 

o 39.418(a), (b)(2)(A) and (c) 

o 39.419(e) 

o 39.420(c)(1)(A) – (D)(i)(I) and (II), (D)(ii), (c)(2), (d)-(e), and (h) 

o 39.601 

o 39.602 

o 39.603 

o 39.604 

o 39.605 

o 55.150 

o 55.152(a)(1), (2), (5) and (6) 

o 55.154(a), (b), (c)(1)-(3) and (5), and (d)-(g) 

o 55.156(a), (b), (c)(1), (e) and (g) 

o 116.114(a)(2)(B), (a)(2)(C), (c)(2), and (c)(3) 

o 116.194 

 On June 2, 2010, the TCEQ also adopted the withdrawal from consideration by the EPA, the 

new and amended rules that were previously submitted as revisions to the SIP on October 25, 

1999; July 31, 2002; and March 9, 2006. The TCEQ withdrew from our consideration all 

sections of the 1999, 2002, and 2006 submittals except for 30 TAC §§ 39.411(a) and 

55.152(b) as adopted in 1999, and § 39.418(b)(3), submitted in 1999 as § 39.418(b)(4). 

 As a result of the amendments to 30 TAC §§ 39.411(f)(8)(A) and 39.605(1)(D), the TCEQ 

requested on July 2, 2010, that EPA remove the corresponding two commitments from 

paragraph 7 of the July 17, 1987 Texas PSD Supplement. 

What is not included in this review? 

This TSD will only review the revisions to the public participation and permitting rules specific 

to FutureGen project. Where the TCEQ also adopted and submitted revisions to other parts of the 

Texas SIP, those revisions will be addressed in separate rulemakings for the following reasons. 

On December 13, 2012, EPA published a proposed approval of the majority of the public 
15

participation provisions submitted on July 2, 2010. See 77 FR 74129. Note that EPA proposed to 

sever and take no action on the following sections and for the following reasons. 

o 39.402(a)(4) – pertains to public participation for flexible permits. Will be evaluated 

when underlying permit program is evaluated. 

o 39.402(a)(5) – pertains to public participation for flexible permits. Will be evaluated 

when underlying permit program is evaluated. 

o 39.402(a)(12) – pertains to public participation for portable facilities. Will be evaluated 

when underlying permit program is evaluated. 

EPA finds that the provisions at 30 TAC 39.402(a)(4), 39.402(a)(5), 39.402(a)(12) submitted on 

July 2, 2010, are outside the scope of today’s rulemaking and are severable from the FutureGen 

public participation and permitting provisions. 

Therefore, only 30 TAC 39.402(a)(10), 39.419(e)(3), and 39.420(h) from July 2, 2010 remain 

before us for review and action specific to FutureGen permit applications: These sections 

constitute the public participation provisions for FutureGen and replace in their entirety the 

March 9, 2006 provisions for public participation. 
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II.B. Analysis of the Submitted FutureGen Provisions 

FutureGen is not a specific permit type such as PSD or NNSR as envisioned by the CAA and 

EPA’s regulations at 40 CFR 51.165 and 51.166. Rather, FutureGen is an authorization to 

participate in a DOW technology demonstration. Under the Texas rules, a FutureGen 

authorization could be used for either a PSD or NNSR subject facility as long as the project 

qualified for the FutureGen project. The Texas Legislature and the TCEQ created separate 

provisions to authorize FutureGen projects to streamline the permit process and exempt the 

FututreGen projects from the contested case hearing process. The intent of the FutureGen 

provision is not to circumvent federal requirements for PSD, NNSR or minor permitting. To 

ensure this, the following portion of our review will analyze the permitting and public notice 

provisions of the Future Gen program with respect to the existing SIP-programs to ensure the 

integrity of the SIP is maintained and against federal requirements for PSD, NNSR and minor 

NSR permitting. 

Table II.B.1 – Analysis of Revisions to 30 TAC Chapter 39 Specific to FutureGen 

FutureGen Public Notice Provisions Submitted July 

2, 2010 

Adopted by the TCEQ on June 2, 2010

Analysis of Submitted SIP Revision 

39.402. Applicability to Air Quality Permits and Permit Amendments.

(a) As specified in those subchapters, Subchapters H and 

K of this chapter (relating to Applicability and General 

Provisions; and Public Notice of Air Quality Permit 

Applications, respectively) apply to applications for:

Sets applicability of Public notice requirements. 

(10) 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 §91.30 of this title (relating to Definitions), 

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 Specific Designated 

Facilities) in addition to the requirements of this chapter, 

unless otherwise specified in Chapter 91 of this title.

Future Gen applications are subject to the requirements 

of Chapter 39 and Chapter 91, unless otherwise specified 

in Chapter 91. 

30 TAC Chapter 91 was not submitted as a SIP revision. 

A review of the requirements of 30 TAC Chapter 91 

shows that the rules establish alternate public 

participation requirements for FutureGen projects. The 

provisions of Chapter 91 apply to air and other media 

such as water and waste. Specifically, 30 TAC 91.20(g) 

says that applications under 30 TAC Chapter 116, 

Subchapter L are subject to the requirements for public 

participation in Chapter 116, Subchapter L and any 

applicable requirements in Chapters 39 and 55. 

Even though Chapter 91 was not submitted for SIP 

review, we find that Chapter 91 does not establish any 

substantive requirements. Rather Chapter 91 crossreferences the permitting requirements for FutureGen 

that have been submitted as a SIP revision on March 9, 

2006 at 30 TAC Chapter 116, Subchapter L. 

This provision is approvable. 

39.419. Notice of Application and Preliminary Decision.

(e) For air applications the following apply.

(3) If the applicant is seeking authorization by permit, 

registration, license, or other type of authorization 

required to construct, operate, or authorize a component 

The provisions at 30 TAC 39.419(e)(3) state that 

applications for the FutureGen Program are subject to 

the public notice provisions at 30 TAC Chapter 116, 
17

of the FutureGen project as defined in §91.30 of this title 

(relating to Definitions), 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).

Subchapter L. Please see the discussion in the following 

table, specifically for 30 TAC 116.1416 and 116.1418, 

for how the FutureGen Program provisions at Chapter 

116, Subchapter L satisfy minimum federal requirements 

for public notice of air permits. 

This cross-reference is approvable. 

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

(h) For applications for air quality 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.

The provision at 30 TAC 39.420(h) specifically exempts 

FutureGen applications from contested case hearings. 

This is consistent with Texas HB 2201. Further, there is 

no federal requirement for contested case hearing and 

contested case hearing are outside the scope of the Texas 

SIP. 

This provision is approvable. 
18

Table II.B.2 – Analysis of Revisions to 30 TAC 116, Subchapter L for FutureGen 

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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 

361 and 382 and Texas Water Code, Chapters 5 and 26.

New section 30 TAC 116.1400 establishes 

introductory language. 

This revision is approvable as consistent with 40 

CFR 51.163. 

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 

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 submitted after January 1, 

2018.

The provisions at 30 TAC 116.1402 establish the 

applicability of the FutureGen program. The 

specific language is neither prohibited nor required 

under the Act. 

This revision is approvable as consistent with 40 

CFR 51.160 for identifying sources subject to 

permitting review. 

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).

The provision at 30 TAC 116.1404 require a 

permit to construct either be issued under 30 TAC 

Chapter 116 or through a Permit by Rule under 30 

TAC Chapter 106. 

This revision is approvable as consistent with 40 

CFR 51.160(e). The program requires a permit 

before construction. EPA SIP-approved the Texas 

Permit by Rule process on November 14, 2003 (see 

68 64543) as adopted by the TCEQ on August 9, 

2000 and March 7, 2001. 

116.1406. Compliance History.

For all permit reviews under this subchapter, compliance 

history reviews are required under Chapter 60 of this title 

(relating to Compliance History).

Compliance history provisions at 30 TAC 

116.1406 improve the FutureGen permitting 

provisions. Chapter 60 is not part of the SIP, but 

we find this to be acceptable requirement in 

addition to the permitting review that must be 

satisfied before receiving a permit. 

This revision is approvable. 

116.1408. Definitions.

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

have the following meanings, unless the context clearly 

indicates otherwise.

The following definitions are approvable as 

necessary to implement the FutureGen program. 

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 

The definition of clean coal project is consistent 

with the definition at 40 CFR 51.165(a)(1)(xxiv) 

and 51.166(b)(34). 

This revision is approvable. 
19

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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. The intent of the definition of coal is consistent 

with the regulatory definition at 40 CFR 60.41. 

This revision is approvable. 

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.

The definition of the components of the FutureGen 

project at 30 TAC 116.1408(3) is consistent with 

40 CFR 51.160(e) to identify sources being 

permitting. 

This revision is approvable. 
20

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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.

The definition of designated project at 30 TAC 

116.1408(4) is consistent with 40 CFR 51.160(e) to 

identify sources being permitting. 

This revision is approvable. 

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.

The definition of FutureGen project at 30 TAC 

116.1408(5) is consistent with 40 CFR 51.160(e) to 

identify sources being permitting. 

This revision is approvable. 

6) FutureGen project profile--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.

The definition of FutureGen project profile at 30 

TAC 116.1408(6) is consistent with 40 CFR 

51.160(e) to identify sources being permitting. 

This revision is approvable. 

7) Hearing--A notice and comment hearing and not a 

contested case hearing.

Definition of hearing is consistent with the federal 

requirements for PSD public notice to provide a 

hearing to present comments. See 40 CFR 

51.166(q)(2)(v). Contested case hearings are 

outside the scope of the Texas SIP and have not 

been submitted for review. 

This revision is approvable. 

§116.1410. Emissions Profile for FutureGen Projects. The emissions profile established at 30 TAC 

116.1410 is consistent with the requirements of 40 

CFR 51.160(e) to identify the types and sources 

permitted. 

Further, the TCEQ requires any FutureGen permit 

to demonstrate it satisfies all applicable 

requirements of PSD or NNSR. Therefore, if 

during the permit process BACT or LAER results 

in a lower emissions profile, the lower profile must 

be used. 

This revision is approvable. 

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. 

Section heading. This revision is approvable. 

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 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 

Consistent with SIP-approved provisions at 30 

TAC 116.111(a). 

This revision is approvable. 
21

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

§116.1402(a) of this title (relating to Applicability) shall 

submit information to the commission that demonstrates that 

all of the following are met.

1. Protection of public health and welfare. The 

emissions from the facility will comply with all 

applicable rules and regulations of the commission 

and with the intent of Texas Health and Safety Code, 

Chapter 382, the Texas Clean Air Act (TCAA), 

including protection of the health and physical 

property of the people.

Consistent with SIP-approved provisions at 30 

TAC 116.11(a)(2)(A). 

This revision is approvable. 

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.

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(B). 

This revision is approvable. 

3. New Source Performance Standards (NSPS). The 

emissions from each affected 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), §111, as amended.

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(D). 

This revision is approvable. 

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, §112, as 

amended.

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(E). 

This revision is approvable. 

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)).

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(F). 

This revision is approvable. 

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. 

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(G). 

This revision is approvable. 
22

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

In addition, the commission may require initial 

compliance testing to determine ongoing compliance 

through engineering calculations based on measured 

process variables, parametric or predictive 

monitoring, stack monitoring, or stack testing.

7. Nonattainment review. A facility in a nonattainment 

area shall comply with all applicable requirements 

under Subchapter B, Division 5 of this chapter 

(relating to Nonattainment Review).

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(H). 

This revision is approvable. 

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).

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(I). 

This revision is approvable. 

9. Air dispersion modeling or ambient monitoring. The 

commission may require computerized air dispersion 

modeling and/or ambient monitoring to determine 

the air quality impacts from the facility.

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(J). 

This revision is approvable. 

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 §116.15(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, §112(g), 40 CFR Part 63)).

Note that on June 29, 2011 EPA returned 30 TAC 

116.1414(10) to the TCEQ because the provision 

pertains to Section 112(g) of the Act, which is 

implemented outside of Title I and the applicable 

State SIP. 

30 TAC 116.1414(10) is no longer before us for 

review. 

11. Application content. In addition to any other 

requirements of this subchapter, the applicant shall:

Consistent with 40 CFR 51.160(c). 

This revision is approvable. 

A. identify each facility to be included in the 

permit;

Consistent with 40 CFR 51.160(c). 

This revision is approvable. 

B. identify the air contaminants emitted; and Consistent with 40 CFR 51.160(c)(2). 

This revision is approvable. 

C. provide emission rate calculations. Consistent with 40 CFR 51.160(c)(1). 

This revision is approvable. 

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.

Consistent with SIP-approved provisions at 30 

TAC 116.111(a)(2)(C). 

This revision is approvable. 

§116.1416. Public Notice. Section heading. This revision is approvable. 

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, 

The notice requirements at 30 TAC 116.1416 are 

consistent with the requirements of 40 CFR 

51.160, 51.161, and 51.166(q)(2)(iii). Additionally, 

these provisions are consistent with the public 

notice provisions at 30 TAC Chapter 39 that EPA 
23

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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:

proposed for SIP-approval on December 13, 2012. 

Note that the applicant is legally responsible for the 

publication of the NAPD, using the specific notice 

text provided through regulations by the TCEQ. 

The submitted Texas FutureGen public 

participation rules establish that the applicant, 

rather than the State permitting authority, is the 

legally responsible party for satisfying the public 

notice requirements for FutureGen applications. 

The applicant is required to follow the Texas 

public notice regulations, which specify the text for 

the notice documents. 

These provisions are approvable. 

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. 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.

The notice requirement at 30 TAC 116.1416(b) 

specifies that the applicant will provide a copy of 

the public notice to the TCEQ and any local air 

pollution control agencies having jurisdiction over 

the site. The submitted rules establish that the 

applicant, rather than the State permitting 

authority, is the legally responsible party for 

satisfying the public notice requirements for 

FutureGen applications. The applicant is required 
24

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

to follow the Texas FutureGen public notice 

regulations, which specify that the applicant will 

provide copies of the public notice documents to 

other responsible officials that may be impacted by 

the proposed new source or modification. 

40 CFR 51.161(d) also requires that notification of 

the proposed source be submitted to the 

appropriate EPA Regional Office. 40 CFR 

51.166(q)(2)(iv) specifies that the EPA Regional 

Office as well as any other agencies having 

cognizance over the location should be notified 

such as Federal Land Managers and Indian 

Governing bodies. 

The provision at 30 TAC 116.1414(b) appears to 

be incomplete in satisfying notification 

requirements for responsible officials. However, 

the permitting requirements at 30 TAC 116.1414 

require a FutureGen permit application to comply 

with all requirements of PSD or NNSR as 

applicable as well as protect the public health and 

welfare by complying with all applicable rules and 

regulations of the commission and with the intent 

of the Texas Health and Safety Code, Chapter 382 

and the Texas Clean Air Act. This interpretation is 

further supported by the rulemaking record itself 

which states that “under the adopted rules, eligible 

permit applications for FutreGen 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.” See 

31 TexReg 2492, March 24, 2006. 

On December 13, 2012, EPA proposed approval of 

the public participation provisions submitted by the 

TCEQ on July 2, 2010, for air permit applications 

subject to PSD, NNSR and minor permitting 

requirements. Our analysis demonstrated that the 

provisions at Chapter 39 are consistent with the 

notification requirements of responsible officials 

found in 51.161 and 51.166. Therefore, because the 

FutureGen permit can only be issued after 

satisfying all applicable requirements of the TCAA 

and the TH&SC as well as meeting the 

requirements for PSD and NNSR, this provision is 

approvable. 

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 

No comparable federal requirement for signposting. Necessary for implementation of the 

FutureGen provisions. 
25

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

provisions of that subsection. 

This provision is approvable. 

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.

Meets the requirements of 40 CFR 51.161 and 

51.166(q)(2)(ii). 

This provision is approvable. 

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.

There are no federal requirements for sign posting 

for PSD, NNSR, or minor NSR permit 

applications. 

The sign posting provisions at 30 TAC 116.1416(e) 

are substantively similar to the sign posting 

provisions at 30 TAC 39.604. EPA proposed 

approval of these provisions as consistent with 40 

CFR 51.160-51.161 on December 13, 2012. 

These provisions are approvable. 

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 thenumber of the 

permit application.

(D). The sign shall include the words “for futher 

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 signposting 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 
26

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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.

Meets the requirements of 40 CFR 51.161(b)(2). 

This provision is approvable. 

g. The draft permit may be changed based on comments. Meets the requirements of 40 CFR 

51.166(q)(2)(vi). 

This provision is approvable. 

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 Q89.1205(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 889.1205(g). Schools not governed by the 

provisions of 19 TAC 889.1205 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. 

There is no federal requirement at 40 CFR 51.160-

51.161 or 51.166 for bilingual public notice of 

PSD, NNSR or minor permit applications. 

The provisions at 30 TAC 116.1416(h) are 

consistent with those found at 30 TAC 39.405(h). 

EPA proposed approval of these provisions on 

December 13, 2012. 

These provisions are approvable. 
27

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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 caseby-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. Section heading. Provision is approvable. 

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).

There are no federal requirements for contested 

case hearings, which are outside the scope of the 

Texas SIP. Therefore it is acceptable to exempt 

FutureGen permit applications from CCH. 

This provision is approvable. 

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.

Consistent with the requirements of 40 CFR 

51.166(q)(2)(v). 

d. The executive director shall decide whether to conduct a 

hearing. The executive director is not required to hold a 

hearing if the basis of the request by a person who may 

be affected by 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.

40 CFR 51.166(q)(2)(v) requires that the 

permitting authority provide opportunity for a 

public hearing for interested persons to appear and 

submit written or oral comments on a PSD permit 

application, on the air quality impact of the source, 

alternatives to it, the control technology required 

and other appropriate considerations. 
28

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

The provision at 30 TAC 116.1418(d) appears to 

be inconsistent with the PSD public notice 

requirements to provide an opportunity for hearing 

because the ED has the authority to decide not to 

hold a hearing even if requested. 

 However, the permitting requirements at 30 TAC 

116.1414 require a FutureGen permit application to 

comply with all requirements of PSD or NNSR as 

applicable as well as protect the public health and 

welfare by complying with all applicable rules and 

regulations of the commission and with the intent 

of the Texas Health and Safety Code, Chapter 382 

and the Texas Clean Air Act. This interpretation is 

further supported by the rulemaking record itself 

which states that “under the adopted rules, eligible 

permit applications for FutreGen 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.” See 

31 TexReg 2492, March 24, 2006. 

On December 13, 2012, EPA proposed approval of 

the public participation provisions submitted by the 

TCEQ on July 2, 2010, for air permit applications 

subject to PSD, NNSR and minor permitting 

requirements. Our analysis demonstrated that the 

provisions at Chapter 39 and 55 are consistent with 

PSD hearing requirements at 51.166(q)(2)(v). 

Therefore, because the FutureGen permit can only 

be issued after satisfying all applicable 

requirements of the TCAA and the TH&SC as well 

as meeting the requirements for PSD, this 

provision is approvable. 

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.

Consistent with 40 CFR 51.166(q)(2)(iii) to 

provide notification of public hearing. 

This provision is approvable. 

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

There are no federal requirements for how to notify 

local officials of public hearings regarding draft 

permits – just the draft permits themselves, as 

discussed above under 30 TAC 116.1414. 
29

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

Notification of local officials of the public hearing 

will enhance the SIP. This provision is approvable. 

g. At the executive director's discretion, the hearing notice 

may be combined with the notice of the draft permit 

required by this subchapter.

No prohibition on combing public notice for draft 

permit and hearing. 

This provision is approvable. 

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.

Consistent with the requirements at 40 CFR 51.161 

and 51.166 to provide opportunity for comments. 

These provisions are approvable. 

i. A tape recording or written transcript of the hearing must 

be made available to the public.

Consistent with the requirement at 40 CFR 

51.166(q)(2)(vi) to make all comments available. 

These provisions are approvable. 

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.

Consistent with the requirements at 40 CFR 51.161 

and 51.166(q)(2)(iii) to provide for comments. 

This provision is approvable. 

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.

Consistent with requirements at 40 CFR 

51.166(q)(2)(ii) and (vi). 

This revision is approvable. 

l. The draft permit may be changed based on comments Consistent with the requirements to consider all 

comments received at 40 CFR 51.166(q)(2)(vi). 

This provision is approvable. 

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.

Consistent with the requirements at 40 CFR 

51.166(q)(2)(viii). 

This provision is approvable. 

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.

The provisions to hold public meetings would be in 

addition to the requirement for a notice and 

comment hearing. This will provide additional 

opportunities for providing comment. 
30

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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.

This provision is approvable. 

§116.1420. Permit Fee.

a. Fees required. Any person who applies for a permit under 

this subchapter must remit a fee as provided in Chapter 

116, Subchapter B, Division 4 of this title (relating to 

Permit Fees) at the time of application for such permit.

b. Payment of fees. All permit fees must be remitted in the 

form of a check or money order made payable to the 

"Texas Commission on Environmental Quality" and 

delivered to the Texas Commission on Environmental 

Quality, P.O. Box 13088, MC 214, Austin, Texas 78711-

3088. Required fees must be received before the 

commission will begin examination of the application.

CAA 110(a)(2)(L) requires permitting authorities 

to collect necessary funds to review and process 

Title I permit applications. The provisions at 30 

TAC 116.1420 are consistent with the fee 

provisions SIP-approved at 30 TAC 116.140 – 

116.143 on September 18, 2002. See 67 FR 58709. 

These provisions are approvable. 

§116.1422. General and Special Conditions. Section heading. Provision is approvable. 

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.

Consistent with the SIP-approved requirements at 

30 TAC 116.115(a). 

This provision is approvable. 

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.

The requirements to comply with general 

conditions are consistent with the SIP-approved 

provisions at 30 TAC 116.115(b)(2). 

These provisions are approvable. 

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 office of the commission not 

later than 15 working days after occurrence of the 

event.

The requirements to report construction progress 

for FutureGen permits are consistent with the SIPapproved provisions at 30 TAC 116.115(b)(2)(A). 

These provisions are approvable. 

2. Startup notification.

A. The permit holder shall notify the appropriate 

regional office 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 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 

The startup notification provisions for FutureGen 

permits are consistent with the SIP-approved 

provisions at 30 TAC 116.115(b)(2)(B). 

These provisions are approvable. 
31

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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.

The sampling requirements for FutureGen permits 

are consistent with the SIP-approved provisions at 

30 TAC 116.115(b)(2)(C). 

These provisions are approvable. 

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.

The rules pertaining to equivalency of methods for 

FutureGen permits are consistent with the SIPapproved provisions at 30 TAC 116.115(b)(2)(D). 

These provisions are approvable. 

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. 

The recordkeeping provisions for FutureGen 

permits are consistent with the SIP-approved 

provisions at 30 TAC 116.115(b)(2)(E). 

These provisions are approvable. 
32

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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 § 11 6.611 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."

The maximum allowable emission rates provisions 

for FutureGen permits are consistent with the SIPapproved provisions at 30 TAC 116.115(b)(2)(F). 

These provisions are approvable. 

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).

The maintenance of emission control for 

FutureGen permits are consistent with the SIPapproved provisions at 30 TAC 116.115(b)(2)(G). 

These provisions are approvable. 

8. Compliance with rules.

A. Acceptance of a permit by an applicant 

constitutes an acknowledgment and agreement 

that the permit holder will comply with all rules, 

regulations, and orders of the commission issued 

in conformity with Texas Health and Safety 

Code, Chapter 382, Texas Clean Air Act, and 

the conditions precedent to the granting of the 

permit.

B. If more than one state or federal rule or 

regulation or permit condition are applicable, the 

most stringent limit or condition shall govern 

and be the standard by which compliance shall 

be demonstrated.

C. Acceptance includes consent of the executive 

director to the entrance of commission 

employees and agents into the permitted 

premises at reasonable times to investigate 

conditions relating to the emission or 

concentration of air contaminants, including 

The compliance with rules provisions for 

FutureGen permits are consistent with the SIPapproved provisions at 30 TAC 116.115(b)(2)(H). 

These provisions are approvable. 
33

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

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.

The special conditions for FutureGen permit 

applications are consistent with the SIP-approved 

requirements for special conditions at 30 TAC 

116.115(c), (c)(1) and (c)(2). 

These provisions are approvable. 

Note that on June 29, 2011 EPA returned 30 TAC 

116.1422(c)(2)(B)(ii)(I) to TCEQ because the 

provision applies to implementation of CAA 

112(g) which is outside the scope of title I and the 

applicable state SIP. 

30 TAC 1422(c)(2)(B)(ii)(I) is no longer before 

EPA for review. 

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 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

II. the provisions in Subchapter B, Divisions 

5 and 6 of this chapter (relating to 

Nonattainment Review and Prevention of 

Significant Deterioration Review).

§116.1424. Amendments and Alterations of Permits 

Issued Under This Subchapter.

The owner or operator planning the modification of a facility 

permitted under this subchapter must comply with the 

requirements of Subchapter B of this chapter (relating to New

Source Review Permits) before work begins on the 

construction of the 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.

The permit alteration and amendment processes are 

SIP approved at 30 TAC 116.116(b) and (c). This 

cross reference is approvable. 

This provision is approvable. 

§116.1426. Renewal of Permits Issued Under this 

Subchapter.

Permits issued under this subchapter shall be renewed in 

accordance with the requirements of Subchapter D of this 

chapter (relating to Permit Renewals)

There are no federal requirements for renewal of 

title I preconstruction permits. 

Consistent with SIP-approved provisions at 30 

TAC 116.310 – 116.315. 
34

Chapter 116, Subchapter L – Permits for Specific 

Designated Facilities 

Adopted February 22, 2006 

Effective March 29, 2006 

Submitted as a SIP revision March 9, 2006 

Analysis of the FutureGen Permitting 

Provisions 

This provision is approvable. 

§116.1428. Delegation.

The commission delegates to the executive director the 

authority to take any action on a permit issued under this 

subchapter.

Consistent with the requirements of 40 CFR 

51.163. 

This provision is approvable. 
35

III. Conclusion 

The TCEQ submitted March 9, 2006 and July 2, 2010 submittals to establish the permitting and 

public notice provisions for the FutureGen program. The TCEQ adopted and submitted the above 

rule packages to implement the provisions of Texas HB 2201 – which was specifically designed 

to streamline permitting processes for projects qualifying for the FutureGen program run by the 

US Department of Energy at the time of the adoption of HB2201 in 2005. The analysis contained 

in the preceding sections of this TSD demonstrates that the FutureGen permitting and public 

notice rules as submitted March 9, 2006 and July 2, 2010 are consistent with the requirements of 

the CAA and EPA’s regulations and protect the integrity of the Texas SIP. 

Since the adoption of Texas HB 2201 and the adoption and submittal of the associated SIP 

provisions, the FutureGen project has been awarded to the State of Illinois. Additionally, the US 

DOE decided to stop funding the FutureGen Project in 2008. On August 5, 2010, the DOE 

introduced FutureGen 2.0 – a reinvention of the original FutureGen Project concept, still planned 

for Illinois Therefore, we find that the submitted rules establishing the permitting and public 

notice rules for the FutureGen program cannot be used in Texas because the underlying 

FutureGen program is no longer in existence. 

EPA however has a statutory obligation to review and act upon SIP submittals pursuant to CAA 

110(k). Because the State of Texas submitted the FutureGen program, and has not subsequently 

requested to withdraw the program from our consideration, we are required to take action even 

though the program is superfluous to the SIP. Our authority under CAA 110(k)(4) does not 

provide us the ability to disapprove a program solely because it is no longer needed. Neither can 

we take steps to return the superfluous provisions to the state absent a direct request. Therefore, 

EPA must proceed with an approval to satisfy our obligations under the CAA. 

It is recommended that a direct final approval be used for the FutureGen permitting and public 

notice provisions as submitted March 9, 2006 and July 2, 2010. The direct final approval is 

appropriate for use on non-controversial actions. We deem the approval of the FutureGen 

program to be non-controversial because the provisions are no longer valid for use. Approval of 

the program will not result in any interference with attainment or maintenance or any other 

applicable requirements of the Act. 

EPA is severing and taking no action on the portions of the July 2, 2010 SIP submittal that 

establish applicability of public notice provisions for permitting programs that operate 

independent of the FutureGen Program. Specifically, EPA is severing and taking no action on the 

provisions at 30 TAC 39.402(a)(4) and 39.402(a)(5) because these provisions establish 

applicability of public notice rules for new Flexible Permits and amendments to Flexible Permits 

subject to Chapter 116 permitting requirements. Also, EPA is severing and taking no action on 

the provision at 30 TAC 39.402(a)(12) pertaining to change of location of a portable facility, 

consistent with the requirements of 30 TAC 116.178. 

 

Note that on June 29, 2011 EPA returned 30 TAC 116.1414(10) and 116.1422(c)(2)(B)(ii)(I) to 

TCEQ because the provisions pertain to implementation of CAA 112(g) which is outside the 

scope of title I and the applicable state SIP. These provisions are no longer before us for review.