### TECHNICAL SUPPORT DOCUMENT

Revisions to the Texas St ate Implementation Plan

FutureGen

30 TAC Chapter 39 – Public Notice 30 TAC Chapter 116 – Control of Air Polluti on 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. Ad ina Wiley, United States Environmental Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-2115.

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### Subject : Revisions to the Texas State Impl ementation 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 por tions 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 En ergy (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 demonstra tion project that is a partnership between industry participants and the DOE.

The Texas Legislature passe d House Bill 2201 (HB 2201) in 2005, concluding that the FutureGen technology demonstration project co uld 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 Legisl ature 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 ad opted 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 notic e 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 subm ittals, 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 re viewed 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, respec tively, 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 regu lation of the modification and construction of any stationary source within the areas cove red 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 a pprove 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 othe r applicable requirement of the chapter. 3. 40 CFR 51.160 – Legally enforceable proced ures. The regulatory text of 40 CFR 51.160

is available on line at Electroni c 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 in formation. The regulatory text of 40 CFR

51.161 is available on line at Electron ic 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 regu latory 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=feed49ec24fac67402c2bf 6fa403850d&rgn=div8&view=text&node=40:

2.0.1.1.2.6.8.6&idno=40. 6. 40 CFR 51.166 – Prevention of significant deteri oration of air qualit y. The regulatory text

of 40 CFR 51.166 is available on line at El ectronic 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 s ubmittals 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 respec t 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 C AA provisions. These analyses produce a written

evaluation used to make a determination of whether or not the Marc h 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 ar e 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 th e minimum criteria for determining whether a State implementation plan submitted for consid eration 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 th e 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 crit eria included under 2.1, 2.2, and 2.3 of Appendix V.

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### SIP Completeness Checklist fo r 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 submitta l letter from the Governor or his or her designee requesting EPA's approval of the revision.

The SIP revision was submitted by a letter fr om Kathleen Hartnett White, Chairman of the TCEQ, dated March 9, 2006. The SIP subm ittal was received by EPA Region 6 Air Planning Section on April 11, 2006.

2. Evidence is included that the State has adopt ed the revision in the State code or body of regulations, or that the State has issued th e permit, order, consen t 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 citati on 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 includin g an indication of the changes made to the existing approved plan where applicable. Th e submittal shall be a copy of the official State regulation document signed, stamped, and dated by the appropria te 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 a nd completing the adoption/issuance of the plan.

The SIP submittal package included a certifi cation 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 copi es of any public notices publis hed 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 newspape rs 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 publica tion 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 indi cating that public hearing(s) was/were held in accordance with the information provided in the pub lic notice(s) and the State's laws and constitution, if applicable.

An order adopting revisions to the SIP was included. This order st ates 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 writt en testimony from 5 parties during the comment period, including EPA Region 6. TCEQ r eceived oral testimony from one party during the December 20, 2005 public hearing.

Technical Support (2.2)

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

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

The SIP submittal revises the public no tice and permitting requirements for the FutureGen project – therefore the SIP r evision affects all re gulated pollutants.

2. Identification of the locations of affected sources including the EPA attainment/nonattainment design ation of the locations and th e status of the attainment plan for the affected area(s) is included.

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### The provisions for public no tice 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 allowa ble 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 anticipat ed if the revisions were approved.)

The provisions for public no tice and permitting requirements for the FutureGen project streamline permit issuance by eliminating the need for co ntested 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 NAAQ S/PSD increments/RFP demonstration and visibility as applicable would be prot ected if the revision were approved and implemented.

The provisions for public no tice and permitting requirements for the FutureGen project streamline permit issuance by eliminating the need for co ntested case hearing. The current SIP-approved requirements for PSD, NNSR or minor NSR would continue to apply. Because permitting must be consiste nt with SIP-approved requirements, any permit issued for the FutureGen project woul d be required to dem onstrate protection of the NAAQS/PSD increment/RFP/visibility or any other applicable requir ement 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 requ ired by §175A of the Clean Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

6. Modeling information, if app licable, is required to s upport the proposed revision.

Modeling information is not necessary for this SIP submittal. The FutureGen project must be permitted consistent with SIP-appro ved mechanisms, therefore if any modeling is required it will be through the curre nt 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, industria l/process equipment designs, reformulated materials, etc.).

Appropriate emission limitations will be es tablished in individual permits. The SIP

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

8. Evidence is included indicating that a SIP re vision contains emission limitations, work practice standards, and recordkeeping/reporti ng requirements to ensure stated emission

levels.

Appropriate recordkeeping/reporting requirement s will be established in each individual permit such that the necessary emission limitations, work pr actice 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 permitti ng program will be determined on a permitby-permit basis.

10. As appropriate, special economic and tec hnological jus tifications are included per applicable EPA policies or an explanation why such justificati ons are not necessary should be included. For example, requests for alternative RACT may require such justification.

These justifications are not n ecessary for this SIP revision.

The March 9, 2006 SIP submittal (Rule Project No. 2005-053-091-PR) meets the
completeness criteria establishe d 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 submitta l 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 adopt ed the revision in the State code or body of regulations, or that the State has issued th e permit, order, consen t 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 citati on 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 includin g an indication of the changes made to the existing approved plan where applicable. Th e submittal shall be a copy of the official State regulation document signed, stamped, and dated by the appropria te 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 a nd completing the adoption/issuance of the plan.

The SIP submittal package included a certifi cation 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 copi es of any public notices publis hed 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 newspape rs 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 publica tion 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 indi cating that public hearing(s) was/were held in accordance with the information provided in the pub lic notice(s) and the State's laws and constitution, if applicable.

An order adopting revisions to the SIP was included. This order st ates 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 writt en testimony from 25 parties during the comment period, including EPA Region 6. TCEQ r eceived oral testimony from one party during the January 25, 2010 public hearing.

Technical Support (2.2)

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

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

The SIP submittal revises the public notice and pa rticipation provisions for the Texas air permits program – therefore the SIP revision af fects permits for all regulated pollutants.

2. Identification of the locations of affected sources including the EPA attainment/nonattainment design ation of the locations and th e status of the attainment plan for the affected area(s) is included.

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

statewide.

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### 3. Quantification of the changes in SIP allowa ble 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 anticipat ed if the revisions were approved.)

The provisions for public no tice 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 perm itting 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 NAAQ S/PSD increments/RFP demonstration and visibility as applicable would be prot ected 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 in crements/RFP demonstrat ion, etc. will be protected. The subject revi sion does not alter any of the SIP-approved permit mechanisms or SIP compliance dem onstrations 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 requ ired by §175A of the Clean Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

7. Modeling information, if app licable, is required to s upport the proposed revision.

Modeling information is not necessary to s upport 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 pe rmit applicants to pr ovide the air quality modeling results for a specific projec t 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, industria l/process equipment designs, reformulated materials, etc.).

Appropriate emission limitations will be es tablished in individual permits. The SIP

revision under review in this document onl y 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 re vision contains emission limitations, work practice standards, and recordkeeping/reporti ng requirements to ensure stated emission

levels.

Appropriate recordkeeping/reporting requirement s will be established in each individual permit such that the necessary emission limitations, work pr actice standards are in place to ensure stated emission levels. This info rmation is not necessary for inclusion in the public notice provisions under r eview 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 permitti ng program will be determined on a permitby-permit basis and not through the public participation SIP revision.

10. As appropriate, special economic and tec hnological jus tifications are included per applicable EPA policies or an explanation why such justificati ons are not necessary should be included. For example, requests for alternative RACT may require such justification.

These justifications are not n ecessary for this SIP revision.

The July 2, 2010 SIP submittal (Rule Projec t No. 2010-004-039-LS) meet s 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 provi sions 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. Followi ng 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 revision s 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

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### Legislature, 2005, which directed the TC EQ to establish streamlined permitting procedures and rules for FutureGen projects . FutureGen refers to a combination of technologies for carbon sequestration, carbon di oxide enhanced oil recovery, electric generation, and hydrogen production. FutureGen is a technology demonstration project that is a partnership between industr y 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 appli cability of the FutureGen provisions, New 30 TAC 116.1404 – establishes the permit requirements for FutureGen,

 New 30 TAC 116.1406 – establishes comp liance history requirements,

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

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

 New 30 TAC 116.1414 – establishes applica tion 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 dele gation 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 Reconsider ation 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. Chai rman Bryan W. Shaw, PhD, submitted these

amendments as revisions to the Texa s 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 wit hdrawal 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 TA C §§ 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 adopt ed 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

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### participation provisions submitted on July 2, 2010 . See 77 FR 74129. Note that EPA proposed to sever and take no action on the following s ections and for the following reasons.

o 39.402(a)(4) – pertains to public participati on for flexible permits. Will be evaluated when underlying permit program is evaluated.

o 39.402(a)(5) – pertains to public participati on for flexible permits. Will be evaluated when underlying permit program is evaluated.

o 39.402(a)(12) – pertains to public participati on 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 fo r FutureGen and replace in their entirety the March 9, 2006 provisions for public participation.

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### II.B. Analysis of the Submit ted 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 demonstrati on. 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 TC EQ created separate provisions to authorize FutureGen projects to streamline the permit pr ocess and exempt the FututreGen projects from the contested case he aring 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 revi ew will analyze the permitting and public notice provisions of the Future Gen program with resp ect to the existing SIP-programs to ensure the integrity of the SIP is maintained and agai nst 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. Sp ecifically, 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 anysubstantive 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 Applicatio n 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 TA C 39.419(e)(3) state that applications for the Future Gen 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 Directo r's Response to Com ments 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 s ubsection (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 outs ide 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 re vision March 9, 2006 Analysis of the Fu tureGen Permitting

Provisions

116.1400. Purpose. The purpose of this subchapter is to establish, by rule, reasonably streamlined proc edures 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 a pplications 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 inst allation 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

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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 desira ble element to be

considered in the awar ding 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

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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 co mment 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 co mments. 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 applican t. 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

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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 accord ance 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 ap plicable NSPS as listed under 40 CFR Part 60, promulgated by the United

States Environmental Pr otection 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 maximu m 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

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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 comput erized 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 sour ces 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 a ffected 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 sha ll 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

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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-approv al 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 wh o 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 ex ecutive 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. Th e 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 re vision March 9, 2006 Analysis of the Fu tureGen Permitting

Provisions

to follow the Texas FutureGen public notice regulations, which specify that the applicant will provide copies of the p ublic 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 Region al 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, EP A 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

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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 offi ce and at the appropriate commission regional office wh ere 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 commiss ion regional office. (G). The sign shall include th e 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 f eet of a property line paralleling a public street. (A). The executive director may approve variations, if the applicant has demonstrated that it is notpractical 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

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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 th e 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 requ ired 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

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6. If the alternate language publication is published less frequently than once a month, this notice requirementmay 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 si gn 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.

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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, EP A 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 re vision March 9, 2006 Analysis of the Fu tureGen 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 submi ssion 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 a ll 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 sha ll 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 execu tive 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 co mmittees 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 re vision March 9, 2006 Analysis of the Fu tureGen 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 memb er 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 ho lders 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 specifica lly 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 progressfor 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 re vision March 9, 2006 Analysis of the Fu tureGen Permitting

Provisions

be present at the commen cement 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 forFutureGen 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 availabl e 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 re vision March 9, 2006 Analysis of the Fu tureGen 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 attach ed to the permit entitled

"Emission Sources--Maximum Allowable Emission

Rates." The maximum allowable emission rates provisionsfor 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 w ith Chapter 101, Subchapter F of this title (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities). The maintenance of emission control forFutureGen 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 Te xas 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 forFutureGen 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 re vision March 9, 2006 Analysis of the Fu tureGen 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 a nd 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 re quirements 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 re vision March 9, 2006 Analysis of the Fu tureGen 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 progr am. 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 demons trates 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 prot ect the integrity of the Texas SIP.

Since the adoption of Texas HB 2201 and the ad option and submittal of the associated SIP provisions, the FutureGen project has been awarde d to the State of Illinois. Additionally, the US DOE decided to stop funding the FutureGe n Project in 2008. On August 5, 2010, the DOE

introduced FutureGen 2.0 – a reinve ntion of the original FutureGen Project concept, still planned for Illinois Therefore, we fi nd 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 oblig ation to review and act upon SI P 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 cons ideration, we are require d 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 disappr ove a program solely because it is no longer needed. Neither can we take steps to return the supe rfluous provisions to the state abse nt 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 provis ions are no longer valid for use. Approval of the program will not result in any interference w ith attainment or maintenance or any other applicable requirements of the Act.

EPA is severing and taking no action on the por tions of the July 2, 2010 SIP submittal that establish applicability of public notice provisions for permitting programs that operate independent of the FutureGen Program. Specifica lly, EPA is severing a nd 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 lo cation 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 impl ementation of CAA 112(g) which is outside the scope of title I and the applicable state SIP. Th ese provisions are no longer before us for review.