Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, CommiSsioner 

Carlos Rubinstein, Commissioner 

RECEIVED- 51"'01_ 

AIR Pl_ANN!NG SEC 

0 /...::) 

Mark R. Vickery, P.G., Executive Director 11 MAY 23 PM ~: 35 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

May 18,2011 

0 

Docket No. 2010-1152-RUL 

Rule Project No. 2010-048-117-EN 

Alfredo Armendariz, Ph.D. 

Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Dr. Armendariz: 

w;o e.nd 

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6MD ... ...... .... 6SF . ······· ········ 60EJ ............ 6RC ....... , ......... . 

6PD¢~tiw{.6XA~;;~,::;:::·.· n+ro( U) /o ll.M.'-1 ..je.,..c) 

On April2o, 2011, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 

State Implementation Plan (SIP). 

The Commission adopted an amendment to 30 Texas Administrative Code§ 117.2110 (a)(1)(B)(ii)(I) in Chapter 

117, Control of Air Pollution from Nitrogen Compounds, Subchapter D, Combustion Control at Minor Sources 

in Ozone Nonattainment Areas, Division 2, Dallas-Fort Worth (DFW) 1997 Eight-Hour Ozone Nonattainment 

Area Minor Sources; and a corresponding revision to the SIP. The adopted amendment expands the emission 

specification for lean-burn engines fired on landfill gas to include lean-burn engines fired on biogas at minor 

sources of nitrogen oxides (NOx) in the DFW 1997 eight -hour ozone nonattainment area. The adopted rule 

revision will require owners or operators of stationary gas-fired, lean-burn internal combustion engines fired 

on biogas fuels other than landfill gas that are installed, modified, reconstructed, or relocated on or after June 

1, 2007, to comply with a NOx emission limit of o.6o grams per horsepower-hour (g/hp-hr). 

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

hearing, and the accompanying order. I look forward to your expeditious approval of this SIIQ'evision. 

BWS/alb 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Toby Baker, Office of Budget, Planning and Policy, Office of the Governor 

-i 

.., 

:z: "' :z 

)> z- r -< 

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us 

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0 
TEXAS COMMISSION ON ENVIRONMENTAL QuALITY 

THE STATE OF TEXAS 

COUN1YOFTRAVIS 

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

to the Texas State Implementation Plan, adopted on April2o, 2011, pursuant to 40 Code of 

Federal Regulations § 51.104 I am the records administrator for the Air Quality Division of the 

Texas Commission on Environmental Quality (Commission). 

, IL DaVlBer, Dil?ctor U Air Quality Division 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

December 14, 2010 

Concerning Revisions to 30 TAC Chapter 117 

Control of Air Pollution from Nitrogen Compounds 

and the State Implementation Plan 

Rule Project No. 201 0-048-117 -EN 
INTRODUCTION 

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

on December 14, 2010, to receive testimony regarding 30 TAC Chapter 117, Control of Air Pollution 

from Nitrogen Compounds and corresponding revisions to the state implementation plan. 

The rulemaking expands the emission specification for lean-burn engines fired on landfill gas to 

include lean-bum engines fired on biogas at minor sources of nitrogen oxides (NOx) in the DallasFort Worth 1997 eight-hour ozone nonattainment area. The rulemaking establishes a NOx emission 

limit of 0.60 grams per horsepower-hour for stationary gas-fired lean-burn internal combustion 

engines fired on biogas fuels other than landfill gas that are installed, modified, reconstructed, or 

relocated on or after June 1 , 2007. 

The comment period closed on December 20, 2010. All testimony and comments have been 

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

hearing and is divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations/Order 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 

Circle, Austin, Texas 78753. For further information, please contact Ray Schubert at (512) 239-

6615. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

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

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

Fort Worth Star-Telegram: November 5, 2010 

2. Publication of the proposed rules in the November 19, 2010, issue of the Texas Register (35 

TexReg 10162). 

3. Publication of the Notice of Public Hearing in the November 19, 2010, issue of the Texas 

Register(35 TexReg 10330). 

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

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Dallas, Office of Environmental Quality, Management Services Department 

City of Dallas, Department of Aviation 

City of El Paso, Environmental Services 

City of Fort Worth, Environmental Management Department 

City of Houston, Department of Health and Human Services 

City of Fort Worth, Mayor's Office 

Tarrant County Judge 

East Texas Council of Governments 
El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Harris County Public Health and Environmental Services 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Victoria Metropolitan Planning Organization 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

United States Environmental Protection Agency 
Example of Newspaper Classified Ad 

Fort Worth Star-Telegram, November 5, 2010 

NOTICE OF JIIJ8U(' 11181RJMG ON MOPOSED 

RfV1.Sic»t$ TO JO TAC Clt.V'reR 117 MD l'e 

THf SMl'E IMf'I..IIMEiln'ATION PU1111 

TheTeDI~on~ 

Quality (commission) will conduct a public 

hel!lt1ng to receive testtmony regarding 

proposed revisiOns tD 30 TAC dlapr;er 117, 

Control of Air PolluHon from Nitrogen 

Compounds; Subchapter D, Combustion 

Control at Minor Sources In Ozone 

Nonattalnment Arus; Division 2, Dallas-Fort 

Worth Eight-Hour Ozone Nonattalnment Area 

Minor Sources; Section 117.2110 and to the 

state lm~n plan (SIP) under- the 

, ~ulrements of T9:i!ls Health and safety Code, 

§382.017; Texas Government COde, Chapter 

- 2001, Subchapter B; and 40 Code ot Federal 

· Regulations §51.102, of the United States 

EnVIronmental Protectlcn ADeney concerning 

SIPs. The proposed ntlemaklng would amend 

Chapter 117, Subchapter D, Division 2, 

§117.2110(a)(l)(B)(II)(I) to expand the 

emiSSion Sl)edfic:atlon for lean -bum engines 

fired on landfill gas to Include lean-bum 

engines fired on blogas at mtnor sources o1 

,' nitrogen OXIdes (NOX) In the DFW 1997 eight-

' hour ozone nonattelnment area. The OJIT8I'\t 

' applicable Nox emrssrcn specification rn 

§117.2110(a)(1)(B)(II)(I1) tor gas·flred lean· 

bum engines using gaseous fuels other than 

landfill gas that an! Installed, modified, 

~nst:ructed, or n!located on or after June 1 

2007, Is 0.50 grams per hOrsepower-hour ' 

(Q/hp-hr~. Landfill gas and ather blogas an! 

produced from anaerobic dtra~est~on or 

decomposition ol organk:: matter and have 

Similar fuel and combustion characteristics, 

Both Nlndfttr gas and other tiogas can contain 

contaminants such as sulfur, chlorine, and 

silicon. Consequently, engines fired on Nlndfill 

gas and other blogas an have technologlclll 

feasibility Issues With regard tD the tnstaiNitlon 

of a NDX control catalyst because these 

contaminants can result In catillyst falt1.1'1! or 

deactlvatton In hOurs or days;. The 

technological h!astblllty ISsues with regard m 

the Installation of II NOX control catalyst Is the 

basts for the 0.60 g/hp-hr emtsston standard 

In the cun8YI: rule and the Justfficatton for the 

PI'OPOS«< expanston of the existing emission 

SPKtfieatlon tD lndude lean-bum engines fired 

en blogas at minor sources of NOX tn the DFW 

1997 eight-hOur ozone nonatl:31nment area. A 

public hYring for the proposed rulemaklng 

and SIP nNISien has been scheduled tn Fort 

Worth on December 14, 2010, at 2:00p.m. at 

the Texas Commtsston en Envlronmentel 

Quality, Region 4 Ol'l'lce, DFW Public Meeting 

Room, 2309 Gravel Road, Fort Worth, TX 

76118. The hearing will be structured tor the 

receipt ol oral or Writtl!n comments by 

lnte1'1!sted persons. Reglstretlon will begin 30 

minutes prior tD the hearing. IndiViduals may 

pNSent cal • IGib wtwrl c.lei WIPOfl In 

ordlr of ceutst: ..... :. A tiiN tlrNt may be 

I T lwl at the ~ to aNUfl! lhet 

enough time Is alloted for every lnte~sted 

person to speak. Then! will be no dtsa.:saton 

during the hearing; however, commlsston stBft' 

memben; will be available tD dtsOJSS the 

proposal 30 mlnutu before the hearing. 

Persons who have special cammunta.tlon or 

ather accornmodatton needs who 111'1! ptanntng 

to attend the hearing shoUld contact Olariotte 

Hom. Texas Register Team, Office of Legal 

ServiCes, at (512) 239-0779, Requests should 

be made as far In advance as possible. 

Comments may be submitted tD Natalia 

Henrictcsen, Texas RegiSter Team, Ol'ftce of 

Legal Servtcu, Texas Commission en 

Environmental Quality, MC 205, P.o. Box 

13087, Austin, Texas 78711-3087, or faxed tD 

(512) 239-4808. aectrontc cnmments may be 

submitted at 

,_. tceQ.state.bt.uS/ru~/ecomrnents/. File 

size ~tons may apPly to comments being 

submitted vta the eComments system. All 

wmments should reference Rule Project 

Number 2010-048·117-EN. Comments must 

be received by December 13, 2010. Copies of 

tAl! proposed rules an be obtained from the 

cGmmtsslon's Web stte at 

http://www.tceq.state.tx..ustnav/rules/propose_adopt.html. 

For further Information, piease contact R.ay 

Schubert, Air Quality Planning Section, at 

(512) 239·6615. Issued In Austin, Texas, on 

November 12, 2010. 

31287959 
Bryan W. Shaw, Ph.D., Chainnan 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

Mark R Vickery, P.G., Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALI'IY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICEOFPUBUCHEMUNG 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 117 

AND TO THE STATE IMPLEMENTATION PlAN 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to 

receive testimony regarding proposed revisions to 30 TAC Chapter 117, Control of Air Pollution 

from Nitrogen Compounds; Subchapter D, Combustion Control at Minor Sources in Owne 

Nonattainment Areas; Division 2, Dallas-Fort Worth (DFW) Ozone Nonattainment Area Minor 

Sources; Section 117.2110 and to the state implementation plan under the requirements of Texas 

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

40 Code of Federal Regulations §51.102, of the United States Environmental Protection Agency 

concerning state implementation plans. 

The proposed rulemaking would amend Chapter 117, Subchapter D, Division 2, 

§117.2110(a)(1)(B)(ii)(I) to expand the emission specification for lean-burn engines fired on 

landfill gas to include lean-burn engines fired on biogas at minor sources of nitrogen oxides 

(NOx) in the DFW 1997 eight-hour owne nonattainment area. The current applicable NOx 

emission specification in §117.211o(a)(1)(B)(ii)(II) for gas-fired lean-burn engines using gaseous 

fuels other than landfill gas that are installed, modified, reconstructed, or relocated on or after 

June 1, 2007, is 0.50 gralllS per horsepower-hour (g/hp-hr). Landfill gas and other biogas are 

produced from anaerobic digestion or decomposition of organic matter and have sinlilar fuel 

and combustion characteristics. Both landfill gas and other biogas can contain contaminants 

such as sulfur, chlorine, and silicon. Consequently, engines fired on landfill gas and other biogas 

can have technological feasibility issues with regard to the installation of a NOx control catalyst 

because these contaminants can result in catalyst failure or deactivation in hours or days. The 

technological feasibility issues with regard to the installation of a NOx control catalyst is the 

basis for the o.6o g/hp-hr emission standard in the current rule and the justification for the 

proposed expansion of the existing emission specification to include lean-burn engines fired on 

biogas at minor sources ofNOx in the DFW 1997 eight-hour ozone nonattainment area. 

A public hearing for the proposed rulemaking and SIP revision has been scheduled in Fort 

Worth on December 14, 2010, at 2:00p.m. at the Texas Commission on Environmental Quality, 

Region 4 Office, DFW Public Meeting Room, 2309 Gravel Road, Fort Worth, TX 76118. The 

hearing will be structured for the receipt of oral or written comments by interested persons. 

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

when called upon in order of registration. A time limit may be established at the hearing to 

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

discussion during the hearing; however, commission staff members will be available to discuss 

the proposal30 minutes before the hearing. 

Persons who have special communication or other accommodation needs who are planning to 

attend the hearing should contact Charlotte Horn, Texas Register Team, Office of Legal Services, 

at (512) 239-0779. Requests should be made as far in advance as possible. 
Comments may be submitted to Natalia Henricksen, Texas Register Team, Office of Legal 

Services, Texas Commission on Environmental Quality, MC 205, P.O. Box 13087, Austin, Texas 

78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at 

wwws.tceq.state.tx.us/rulesjecommentsj. File size restrictions may apply to comments being 

submitted via the eComments system. All comments should reference Rule Project Number 

2010-048-117-EN. Comments must be received by December 20, 2010. Copies of the proposed 

rules can be obtained from the commission's Web site at 

http:/ jwww.tceq.state.tx.usjnavjrulesjpropose_adopt.html. For further information, please 

contact Ray Schubert, Air Quality Planning Section, at (512) 239-6615. 

Issued in Austin, Texas, on November 12, 2010. 
The commission will hold a publi hearing on this proposal in Austin 

on December 13, 2010, at 10:00 m. in Building E Room 201S, at 

the commission's central office lo ated at 12100 Park 35 Circle. The 

hearing is structured for the recei of oral or written comments by interested persons. Individuals may resent oral statements when called 

upon in order of registration. 0 n discussion will not be permitted 

during the bearing; however, com ission staff members will be avail· 

able to discuss the proposal 30 mi utes prior to the hearing. 

Persons who have special comm "cation or other accommodation 

needs who are planning to attend e bearing should contact Charlotte 

Hom, Office of Legal Services, a (512) 239-0779. Requests should 

be made as far in advance as poss le. 

Written comments may be sub itted to Devon Ryan, MC 205, 

Office of Legal Services, Te Commission on Environmental 

Quality, P.O. Box 13087, Au Texas 78711-3087, or faxed 

to (512) 239-4808. Electronic comments may be submitted at 

http:l!www5.tceq.state.t;J:.uslruleslo comments/. File size restric· 

tions may apply to comments g submitted via the eComments 

system. All comments should reference Rule Project Nwnber 

2010-020·101-PR. The comment riod closes December 20, 2010. 

Copies of the proposed rulem · g can be obtained from the 

commission's Web site at http:/, .tceq.state.tx.us/navlruleslpropose_adopt.html. For further · ormation, please contact Johnny 

Bowers, Air Permits Division, (51 ) 239-6770. 

TRD-201 006334 

Robert Martinez 

Diredor, Environmental Law Divisi 

Teus Commission on Environmen 

Filed: November 5, 2010 

• • 

Public Hearing on Proposed Revisions to 30 TAC Chapter 117 

and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding pTOJXlsed revisions to 30 TAC Chapter 117, Control of Air Pollution from Nitro· 

gen ComJXlunds; Subchapter D, Combustion Control at Minor Sources 

in Ozone Nonattainment Areas; Division 2, Dallas-Fort Worth Eight· 

Hour Ozone Nonattainment Area Minor Sources; §117.2110 and to 

the state implementation plan (SIP) under the requirements of Texas 

Health and Safety Code, §382.ot 7; Texas Government Code, Chapter 

2001, Subchapter B; and 40 Code of Federal Regulations §51.102, of 

the United States Environmental Protection Agency concerning SIPs. 

The proJXlsed rulemaking would amend Chapter 117, Subchapter D, 

Division 2, §117.2110(a)(l)(B)(ii)(l) to expand the emission specifi· 

cation for lean-burn engines fired on landfill gas to include lean-burn 

engines fired on biogas at minor sources of nitrogen oxides (NOx) in 

the DFW 1997 eight-hour ozone nonattainment area. The current applicable NO, emission specification in § 1I 7.211 O(a)(l )(B)(ii)(ll) for 

gas-fired lean-bmn engines using gaseous fuels other than landfill gas 

that are installed, modified, reconstructed, or relocated on or after June 

1, 2007, is 0.50 grams per horsepower-hour (glhp-hr). Landfill gas and 

other biogas are produced from anaerobic digestion or decomJXlsition 

of organic matter and have similar fuel and combustion characteristics. Both landfill gas and other biogas can contain contaminants such 

as sulfur, chlorine, and silicon. Consequently. engines fired on land· 

fill gas and other biogas can have technological feasibility issues with 

regard to the installation of a NOx control catalyst because these contaminants can result in catalyst failure or deactivation in hours or days. 

The technological feasibility issues with regard to the installation of a 

NOx control catalyst is the basis for the 0.60 glhp-hr emission standard 

in the current rule and the justification for the proposed expansion of 

the existing emission specification to include lean-bum engines fired 

on biogas at minor sources ofNOx in the DFW 1997 eight-hour ozone 

nonattainment area. 

A public hearing for the proposed rulemaking and SIP revision has been 

scheduled in Fort Worth on December 14, 2010, at 2:00p.m. at the 

Texas Commission on Environmental Quality, Region 4 Office, DFW 

Public Meeting Room, 2309 Gravel Road, Fort Worth, TX 76118. The 

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

by interested persons. Registration will begin 30 minutes prior to the 

hearing. Individuals may present oral statements when called upon in 

order of registration. A time limit may be established at the bearing to 

assure that enough time is allowed for every interested person to speak. 

There will be no discussion during the hearing; however, commission 

staff members will be available to discuss the proposal30 minutes before the bearing. 

Persons wbo have special communication or other accommodation 

needs who are planning to attend the hearing should contact Charlotte Hom, Texas Register Team, Office of Legal Services, at (512) 

239-0779. Requests should be made as far in advance as possible. 

Comments may be submitted to Natalia Henricksen, Texas Register 

Team, Office of Legal Services, Texas Commission on Environmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or 

faxed to (512) 239-4808. Electronic comments may be submitted at 

www.tceq.state.b:.us!ruleslecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All 

comments should reference Rule Project Number 20 I 0-048-117 -EN. 

Comments must be received by December 20, 2010. Copies of the 

proposed rules can be obtained from the commission's Web site at 

http:llwww.tceq.state.b:.uslnovlruleslpropose_adopt.html. For further 

information, please contact Ray Schubert, Air Quality Planning Section, at (512) 239-6615. 

TRD-201 006383 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: November 5, 2010 

• • 

Request for Proposals #303-1-

The Texas Facilities Commission C), on behalf of the Health and 

Hwnan Services Commission SC), Department of State Health 

Services (DSHS), and Department of Family and Protective Services 

(DFPS), announces the issuance o quest for Proposals (RFP) #303· 

1-20258. TFC seeks a five (5) or (10) year lease of approximately 

5,215 square feet of office space· County ofRockwall or County of 

Hunt, Texas. 

The deadline for questions is Dece 

proposals is December 17, 2010, 

is Janwuy 19, 2011. TFC reserv 

or all proposals submitted. TFC i 

to execute a lease on the basis of 

RFP. Neither this notice nor the 

incurred prior to the award of a 

Parties interested in submitting a 

contacting TFC Contract Speciali 

or sandy.williams@tfc.statc.tx.us. 

will be posted to the Electronic S 

ber 10, 2010, and the deadline for 

3:00 p.m. The target award date 

the right to accept or reject any 

under no legal or other obligation 

"s notice or the distribution of an 

commits TFC to pay for any costs 

t. 

posal may obtain information by 

Sandy Williams at (512) 475-0453 

y addendum to the original RFP 

Business Daily (ESBD). A copy of 

35 Tex.Reg 10330 November 19, 2010 Texas Register 
Robert Martinez 

Director, Environmental Law Divisi n 

Texas Commission on Environme I Quality 

Eariiest possible date of adoption: ecember 19, 2010 

For further infonnation, plesse call: (512) 239-6090 

• • 

CHAPTER 117. CONTROL OF AIR 

POLLUTION FROM NITROGEN COMPOUNDS 

SUBCHAPTER D. COMBUSTION 

CONTROL AT MINOR SOURCES IN 

OZONE NONAITAINMENT AREAS 

DIVISION 2. DALLAS-FORT WORTH 

EIGHT-HOUR OZONE NONATTAINMENT 

AREA MINOR SOURCES 

30 TAC §117.2110 

The Texas Commission on Environmental Quality (commission) 

proposes an amendment to §117.2110. 

If adopted, amended §117.2110 will be submitted to the United 

States Environmental Protection Agency (EPA) as a revision to 

the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULE 

On Aprtl 27, 2010, Ameresco of Texas (petitioner) submitted 

a petition for rulemaking requesting an amendment to Chapter 117, Subchapter D, Division 2, §117.2110 for the Dallas-Fort 

Worth (DFW) 1997 eight-hour ozone nonattainment area. The 

commission approved the petition for rulemaking on June 16, 

2010, and 1ssued an order on June 22, 2010, directing the executive d~rector to examine the issues in the petition and to initiate 

rulemaking. Currently, §117.2110 limits nitrogen oxides (NO,) 

em1ss1ons from stat1onary gas-fired, lean-bum engines installed 

modified, reconstructed, or relocated on or after June 1, 2007, u; 

0.60 grams per hmsepower-hour (g/hp-hr) if fired on landfill gas 

and 0.50 g/hp-hr for all other lean-bum engines. The proposed 

change would expand the emission specification for lean-bum 

eng1nes fired on landfill gas to include lean-bum engines fired on 

b1ogas at minor sources NO, in the DFW 1997 eight-hour ozone 

nonattainment area. 

Landfill gas and other biogas are produced from anaerobic digestion or decompos~ion of organic matter and have similar fuel 

and combustion charactenstics. Both landfill gas and other biogas can contain contaminants such as sulfur chlorine and silicon, which are present in other gaseous fue'ls. Cons~uently, eng1nes fired on landfill gas and other biogas can have technological feasibility issues with regard to the installation of a NO 

control catalyst because these contaminants can result in cata: 

lyst fail~re. or deactivation in hours or days. The technological 

feasibility 1ssues with regald to the Installation of a NO control 

catalyst is the basis for the 0.60 g/hp-hr emission standald in 

the current rule and the justification for the proposed expansion 

of the existing emission specification to include lean-bum engines fired on biogas at minor sources of NO in the DFW 1997 

eight-hour ozone nonattainment area. ~ 

Demonstrating Noninterference under Federal Clean Air Act 

Section 110(1) ' 

The commission provides the following information to demonstrate why the proposed change to expand the emission specification in §117.2110(a)(1)(B)(ii)(l) will not negatively impact the 

status of the state's attainment with the 1997 eight-hour ozone 

Nat1onal Ambient Air Quality Standald (NAAQS), will not interfere With control measures, and will not prevent reasonable further progress towald attainment of the ozone NAAQS. The commission acknowledges that the DFW area failed to attain the 

1997 eight-hour ozone NAAQS by the June 15 2010 attainment 

deadline based on mon~ortng data; however, ihe p,;,posed rule 

change will not adversely affect the ability of the DFW area to 

attain the 1997 eight-hour ozone NAAQS for the reasons discussed in this preamble. 

The requirement for reasonable notice and public heartng will be 

satisfied through a public heartng scheduled for December 14, 

2010. The public comment period will begin November 19, 2010, 

and end December 20, 2010. 

On May 23, 2007, as part of the DFW attainment demonstration, the commission adopted a new Chapter 117 Subchapter 

~· Divi~ion 2 with new emission control requireme'nts for minor 

1ndustr1al, commercial, or institutional sources of NO in the DFW 

1997 eight-hour ozone nonattainment area. Subchapter D, DiviSion 2 requ1res owners or operators of minor sources of NO in 

the DFW 1997 eight-hour ozone nonattainment area to red~ce NO, emissions from affected stationary internal combustion engines. A minor source of NO in the DFW 1997 eight-hour ozone 

nonattainment area is any st:.tionary source, or group of sources 

located within a contiguous area and under common control that 

emits or has the potential to emit less than 50 tons per ye~r of 

NO,. 

One source category newly regulated under Chapter 117 

durtng the 2007 rulemaking was lean-bum engines at minor 

sources. The curre_nt applicable NO, emission specWication in 

§117.2110(a)(1)(B)(n)(ll) for gas-fired lean-bum engines using 

gaseous fuels other than landfill gas that are installed, modified, 

reconstructed, or relocated on or after June 1, 2007, is 0.50 

g/hp-hr. Durtng the 2007 rulemaking, no landfill gas-fired en-

~ines were identified in the emissions inventory in the counties 

Impacted by the proposed rule; however, the emission specification of 0.60 g/hp-hr for gas-fired engines fired on landfill gas 

established by §117.211 O(a)(1 )(B)(ii)(l) is consistent with the 

emission specification for this category of engines in the Houston-Galveston-Brazorta 1997 eight-hour ozone nonattainment 

area. 

In the 2007 Chapter 117 rulemaking for the DFW 1997 eight-hour 

ozone attainment demonstration, no gas-fired engines fired on 

b1ogas or other non-landfill gaseous fuels were relied upon for 

creditable reductions for the SIP. Therefore, W the petitioner's 

proposed.change is adopted, allowing the slightly higher emisSion specification of 0.60 g/hp-hr on gas-fired engines fired on 

other b1ogas_ fuels would not result in a loss of any SIP credItable reductions for the DFW 1997 eight-hour ozone nonattainment area. 

The proposed change is lim~ to a narrow category of stationary gas-fired engines with NO, controls that were not relied upon 

1n the DFW 1997 eight-hour ozone attainment demonstration 

adopted in 2007, and the resulting change in future NO emissions is negligible. Furthermore, W the proposed rulemaking is 

not adopted and the petitioner is not able to comply with the 0.50 

g/hp-hr emission lim~ or purchase cred~ to offset the surplus 

emissions, the company may be forced to abandon the project 

Th1s outcome could actually resuH in a net NO emissions in- • 

35 TexReg 10162 November 19, 2010 Texas Register 
crease that is more than the 0.02 tons per day (tpd) increase anticipated if the rule is adopted. If the company is forced to send 

the emission stream to a flare for destruction rather than use the 

stream as a fuel source in the engines, the total uncontrolled 

NO, emission could exceed that of the controlled emissions under the proposed emission limn, as flares are exempt from NO, 

emission limns under Chapter 117. Based on these factors, the 

commission has detemnined that the proposed rule change wtll 

not negatively impact the status of the state's attainment wtth 

the 1997 eight-hour ozone NAAQS, will not interfere wtth control 

measures, and will not prevent reasonable further progress toward attainment of the ozone NAAQS. 

SECTION DISCUSSION 

Section 117.2110, Emission Specifications for Eight-Hour Attainment Demonstration 

The commission proposes to amend §117.2110(a)(1)(B)(ii)(l) by 

expanding the emission specification for lean-bum engines fired 

on landfill gas to include lean-bum engines fired on biogas at 

minor sources of NO, in the DFW 1997 eight-hour ozone nonattainment area. The proposed rule revision would require owners 

or operators of stationary ges-fired leen-bum internal combustion engines fired on biogas fuels other than landfill gas that are 

installed, modified, reconstructed, or relocated on or after June 

1, 2007, to comply wtth a NO, emission limit of 0.60 g/hp-hr. 

In addition to the proposed rule revisions, the commission pre>-

poses non-substantive fomnattlng changes to confomn with current Texas Register fomnat requirements. These non-substantive changes are not intended to aHer the existing rule requirements in any way and are not specifically discussed in this preamble. 

The commission is only accepting comments regarding the specific changes proposed by the petitioner and directed by the commissioners at the June 16, 2010, agenda when the commission 

considered and granted the petition for rulemaking. Comments 

received related to other portions of the section proposed for 

amendment will not be considered and no changes will be made 

in response to such comments. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Nina Chamness, Analyst, Strategic Planning and Assessment, 

has detemnined that, for the first five-year period the proposed 

rule is in effect, no significant fiscal implications are anticipated 

for the agency as a result of administration or enforcement of the 

proposed rule. The proposed rule is not expected to have fiscal 

implications for other units of state or local goVl!mment. 

The proposed rule would amend Chapter -117 regarding minor 

sources of NO, emissions in the DFW 1997 eight-hour ozone 

nonattainment area. The cunrent rule specifies that lean-burn engines fired on landfill gas at minor NO, sources in DFW have an 

emission standard of 0.60 g/hp-hr. Gas-fired lean-bum engines, 

using gaseous fuels other than landfill gas, have a 0.50 g/hp-hr 

emission standard. Biogas and landfill gas are produced from 

the anaerobic digestion or decomposition of organic matter. The 

agency has received a petition from a privately owned wastewater treatment faciltty in the DFW area to use biogas in lean-bum 

internal combustion engines. The biogas is a by-product of plant 

operations and would be used to produce electricity and themnal 

energy to fuel wastewater treatment functions at the plant. 

Under the cunrent rule, gas-fired lean-bum engines using bie>-

gas are limned to the 0.50 glhp-hr standard even though biogas 

has many of the characteristics and saturation of contaminants 

(such as sulfur, chlorine, and silicon) as landfill gas. The high 

contaminant content of landfill and other biogas can lead to high 

incidents of failure in catalyst controls and engine operations if 

engines using this type of fuel are not allowed to operate with 

an emission standard of 0.60 g/hp-hr. The proposed rule will allow lean-bum engines at minor NO, sources in the DFW 1997 

eight-hour ozone nonattainment area to operate at 0.60 g/hp-hr 

if they use biogas. Making the emission standards for these engines equal to standards for landfill gas engines will allow the 

company to use biogas that would otherwise be considered to be 

a source of volatile organic compounds or NOll emissions to produce power for tts own plant operations or for sale to the power 

grid. 

The expansion of the 0.60 glhp-hr emission standard is not expected to impact the SIP for the DFW 1997 eight-hour ozone 

nonattainment area since no engines fired on biogas or other 

non-landfill gaseous fuels were relied upon to provide SIP emission reductions. 

The proposed rule is not expected to have fiscal impacts on any 

facilities owned or operated by state agencies and local government in the DFW 1997 eight-hour ozone nonattainment area 

since no government owned facilities that are classified as minor 

sources of NO, are known to operate lean-bum engines using 

landfill gas or other biogas. 

PUBLIC BENEFITS AND COSTS 

Nina Chamness also detemnined that for each year of the first 

five years the proposed rule is in effect, the public benefit anticipated from the change seen in the proposed rule will be increased flexibility to use renewable fuels to produce electrictty 

and themnal energy without affecting the capability to reduce 

NO, emissions in the DFW 1997 eight-hour ozone nonattainment 

area. 

The proposed rule is not expected to affect individuals. 

The proposed rule is expected to allow biogas fueled lean-bum 

engines to operate with the same emission standard of 0.60 

glhp-hr as a landfill gas fueled lean-bum engine. The proposed 

rule will allow a wastewater treatment plant to use waste generated by tts own operations and eliminate the need to purchase 

additional emission credits equivalent to 0.02 tpd or add controls, 

which would be expensive and increase downtime at the treatment facility. The wastewater treatment faciltty will operate three 

biogas-fired lean-bum engines. Emission credits can range from 

$800 to $25,000 per ton. Cost savings could range from $3,360 

to $105,000 per year if the business is not required to operate 

these engines at the cunrent 0.50 g/hp-hr. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micr<>-

businesses as a result of the proposed rule. There are no known 

small businesses that are minor sources in the DFW 1997 eighthour ozone nonattainment area that are expected to use leanbum engines fueled by landfill gas or other biogas. 

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS 

The commission has reviewed this proposed rulemaking and detemnined that a small business regulatory flexibility analysis is not 

required because the proposed rule does not adversely affect a 

small or micr<>-business in a material way for the first five years 

that the proposed rule is in effect. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

PROPOSED RULES November 19, 2010 35 TexReg 10163 
The commission has reviewed this proposed rulemaking and detemnined that a local employment impact statement is not r&-

quired because the proposed rule does not adversely affect a 

local economy in a material way for the first five years that the 

proposed rule is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225 and detemnined that the proposed rule does not 

meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental 

rule" is, "a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the 

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

sector of the state." Furthemnore, while the proposed rulemaking does not cons- a major environmental rule, even if it did, 

a regulatory impact analysis would not be required because the 

proposed rulemaking does not meet any of the four applicability 

criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies 

only to a major environmental rule which, "(1) exceeds a stan-· 

dard set by federal law, unless the rule is specifically required by 

state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds a 

requirement of a delegation agreement or contract between the 

state and an agency or representative of the federal government 

to implement a state and federal program; or (4) adopts a rule 

solely under the general powers of the agency instead of under 

a specific state law." 

The proposed rulemaking implements requirements of the Federal Clean Air Act (FCAA). Under 42 United States Code (USC), 

§7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and 

enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or reductions in order to meet the standard, a SIP must include "enforceable emission limitations and other control measures, means or 

techniques (including economic incentives such as fees, marketable pemnits, and auctions of emissions rights), as well as 

schedules and timetables for compliance as may be necessary 

or appropriate to meet the applicable requirements of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control, 

otheiWise known as the FCAA). The provisions of the FCAA recognize that states are in the best position to detemnine what programs and controls are necessary or appropriate in order to meet 

the NAAQS. This flexibility allows states, affected industry, and 

the public, to collaborate on the best methods for attaining the 

NAAQS for the specific regions in the state. Even though the 

FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that 

meets the requirements of 42 USC, §7410. States are not free 

to ignore the requirements of 42 USC, §7410, and must develop 

programs and control measures to assure that their SIP provides 

for implementation, attainment, maintenance, and enforcement 

of the NAAQS within the state. 

The specific intent of the proposed rulemaking is to provide 

fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area. The current applicable NO, emission specification in §117.2110(a)(1)(B)(ii)(ll) for 

gas-fired lean-bum engines using gaseous fuels other than 

landfill gas that are installed, modified, reconstructed, or relocated on or after June 1, 2007, is 0.50 g/hp-hr. The current 

applicable NO, emission specification in §117.2110(a)(1)(B)(ii)(l) 

for gas-fired engines fired on landfill gas is 0.60 g/hp-hr. Landfill 

gas and other biogas are produced from anaerobic digestion 

or decomposition of organic matter and have similar fuel and 

combustion characteristics. Both landfill gas and other biogas 

can contain contaminants such as sulfur, chlorine, and silicon. 

Consequently, engines fired on landfill gas and other biogas 

can have technological feasibility issues with regard to the 

installation of a NO, control catalyst because these contaminants can result in catalyst failure or deactivation in hours or 

days. The technological feasibility issues with regard to the 

installation of a NO, control catalyst is the basis for the 0.60 

glhp-hr emission standard in the current §117.211 O(a)(1 )(B)(ii)(l) 

and the justification for the proposed expansion of the existing 

emission specification to include lean-bum engines fired on 

biogas at minor sources NO, in the DFW 1997 eight-hour ozone 

nonattainment area. To further the specific intent of providing 

fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area, the proposed rule will 

expand the current §117.2110(a)(1)(B)(ii)(l) to include biogas 

other than landfill gas. 

The proposed rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) 

because: 1) the specific intent of the proposed rule is not 

to protect the environment or reduce risks to human hearth 

from environmental exposure, but rather to provide fair and 

consistent application of SIP rules in the DFW eight-hour 

ozone nonattainment area by providing a specific expansion 

of §117.2110(a)(1)(B)(ii)(l) to apply to biogas other than landfill 

gas; and 2) as discussed in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED 

RULE, FISCAL NOTE, PUBLIC BENEFITS AND COSTS, 

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS, 

and the LOCAL EMPLOYMENT IMPACT STATEMENT sections 

of this preamble, the proposed rulemaking will not adversely 

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

productivity, competition, or jobs, nor will the proposed rule 

adversely affect in a material way the environment or the public 

health and safety of the state or a sector of the state. Because 

the proposed rulemaking is not a major environmental rule, 

tt is not subject to a regulatory impact analysis under Texas 

Government Code, §2001.0225. 

While the proposed rulemaking does not const~ute a major 

environmental rule, even if H did it would not be subject to a 

regulatory impact assessment under Texas Government Code, 

§2001.0225. The requirement to provide a fiscal analysis of 

regulations in the Texas Government Code was amended by 

Senate Bill (SB) 633 during the 75th Legislature, 1997. The 

intent of SB 633 was to require agencies to conduct a regulatory 

impact analysis of extraordinary rules. These are identified in 

the statutory language as major environmental rules that will 

have a material adverse impact and will exceed a requirement 

of state law, federal law, or a delegated federal program, or are 

adopted solely under the general powers of the agency. With 

the understanding that this requirement would seldom apply, the 

commission provided a cost estimate for SB 633 that concluded: 

"based on an assessment of rules adopted by the agency in 

the past, tt is not anticipated that the bill will have significant 

fiscal implications for the agency due to its limited application." 

The commission also noted that the number of rules that would 

require assessment under the provisions of the bill was not 

35 TexReg 10164 November 19, 2010 Texas Register 
large. This conclusion was based, in part, on the criteria set 

forth in the bill that exempted rules from the full analysis unless 

the rule was a major environmental rule that exceeds a federal 

law. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the NAAQS; thus, states must 

develop programs for each nonattainment area to help ensure 

that those areas will meet the attainment deadlines. Because of 

the ongoing need to address nonattainment issues, and to meet 

the requirements of 42 USC, §7410, the commission routinely 

proposes and adopts SIP rules. The legislature is presumed to 

understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule 

that exceeds federal law, then every SIP rule would require the 

full Regulatory Impact Analysis (RIA) contemplated by SB 633. 

This conclusion is inconsistent with the conclusions reached by 

the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills tt passes and 

that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 

633 was only to require the full RIA for rules that are extraordinary in nature. While the SIP rules have a broad impact, that 

impact is no greater than is necessary or appropriate to meet the 

requirements of the FCAA. For these reasons, rules adopted for 

inclusion in the SIP fall under the exception in Texas Government 

Code, §2001.0225(a), because they are required by federal law. 

The commission has consistently applied this construction to 

its rules since this statute was enacted in 1997. Since that 

time, the legislature has revised the Texas Government Code 

but left this provision substantially unamended. It is presumed 

that, ''when an agency interpretation is in effect at the time the 

legislature amends the laws wtthout making substantial change 

in the statute, the legislature is deemed to have accepted the 

agency's interpretation." Central Power & Light Co. v. Sharp, 

919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with 

per curiam opinion respecting another issue, 960 S.W.2d 617 

(Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 

(Tex. App. Austin 1990, no writ). ct. Humble Oil & Refining 

Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State 

Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 

2000); Southwestern Uf9 Ins. Co. v. Montemayor, 24 S.W.3d 

581 (Tex. App. Austin 2000, pet denied); and Coastallndust. 

Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 

(Tex. 1978). 

The commission's interpretation of the RIA requirements is 

also supported by a change made to the Texas Administrative 

Procedure Act (APA) by the legislature in 1999. In an attempt 

to limtt the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required 

to meet these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). 

The legislature specifically identified Texas Government Code, 

§2001.0225 as falling under this standard. The commission 

has substantially complied wtth the requirements of Texas 

Government Code, §2001.0225. 

Regardless of whether the proposed rulemaking constitutes 

a major environmental rule under Texas Government Code, 

§2001.0225(g)(3), a regulatory impact analysis is not required 

because this rule is part of the commission's SIP for making progress toward the attainment and maintenance of the 

eight-hour ozone NAAQS in the DFW nonattainment area. 

Therefore, the proposed rule does not exceed a standard set by 

federal law or exceed an express requirement of state law, since 

the rule is part of an overall regulatory scheme designed to 

meet, not exceed the relevant standard set by federal law - the 

NAAQS. The commission is charged wtth protecting air quality 

wtthin the state and to design and submtt a plan to achieve 

attainment and maintenance of the federally mandated NAAQS. 

The Third District Court of Appeals upheld this interpretation 

in Brazoria County v. Texas Comm'n on Envtl. Quality, t28 

S.W. 3d 728 (Tex. App. - Austin 2004, no writ). In addition, 

no contract or delegation agreement covers the topic that is 

the subject of this rulemaking. Finally, this rulemaking was not 

developed solely under the general powers of the agency but 

is authorized by specific sections of Texas Health and Safety 

Code (THSC), Chapter 382 (also known as the Texas Clean Air 

Act), and the Texas Water Code (TWC), which are cited in the 

STATUTORY AUTHORITY section of this preamble, including 

THSC, §§382.011, 382.012, and 382.017. 

This rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), for the following reasons. The proposed rulemaking is not a major environmental law because: 1) the specific intent of the proposed 

rule is not to protect the environment or reduce risks to human 

health from environmental exposure, but rather to provide fair 

and consistent application of SIP rules in the DFW 1997 eighthour ozone nonattainment area; and 2) the proposed rulemaking 

will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs, nor will tt 

adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state. Furthermore, even if the proposed rulemaking was a major environmental rule, ~ does not meet any of the four applicabiltty criteria 

listed in Texas Government Code, §2001.0225 because: 1) the 

proposed rulemaking is part of the DFW SIP, and as such is d&-

signed to meet, not exceed the relevant standard set by federal 

law; 2) no contract or delegation agreement covers the topic that 

is the subject ofthis rulemaking; and 3) the proposed rulemaking 

is authorized by specific sections ofTHSC, Chapter 382, and the 

TWC, which are cited in the STATUTORY AUTHORITY section 

of this preamble. 

The commission inwes public comment regarding the draft regulatory impact analysis determination during the public comment 

period. Written comments on the draft regulatory impact analysis determination may be submttted to the contact person at the 

address listed under the SUBMITTAL OF COMMENTS section 

of this preamble. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the proposed rule and performed an 

analysis of whether the proposed rule constitutas a taking under 

Texas Government Code, Chapter 2007. The commission's 

preliminary assessment indicates Texas Government Code, 

Chapter 2007 does not apply because this rulemaking provides 

for fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area by expanding the current 

§117.2110(a)(1)(B)(ii)(l) NO, emission specification to include 

biogas other than landfill gas. 

Under Texas Government Code, §2007.002(5), taking means: 

"(A) a governmental action that affects private real property, in 

whole or in part or temporarily or permanently, in a manner that 

requires the governmental entity to compensate the private real 

property owner as provided by the Fifth and Fourteenth Amendments to the Untted States Constitution or Section 17 or 19, ArPROPOSED RULES November 19, 2010 35 TexReg 10165 
ticle I, Texas Constitution; or (B) a governmental action that: (i) 

affects an owner's private real property that is the subject of the 

governmental action, in whole or in part or temporarily or pennanently, in a manner that restricts or limits the owner's right to the 

property that would otherwise exist in the absence of the governmental action; and (ii) is the producing cause of a reduction of at 

least 25% in the market value of the affected private real property, detennined by comparing the market value of the property 

as if the governmental action is not in effect and the market value 

of the property detennined as if the governmental action is in effect." 

The specific purpose of the proposed rulemaking is to provide 

fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area. The cument applicable 

NO, emission specification in §117.211 O(a)(1 )(B)(ii)(ll) for gasfired lean-bum engines using gaseous fuels other than landfill gas that are installed, mod~ied, reconstructed, ·or relocated 

on or after June 1, 2007, is 0.50 g/hp-hr. The current applicable NO, emission specification in §117.2110(a)(1)(B)(ii)(l) for 

gas-fired engines fired on landfill gas is 0.60 g/hp-hr. Landfill 

gas and other biogas are produced from anaerobic digestion 

or decomposition of organic matter and have similar fuel and 

combustion characteristics. Both landfill gas and other biogas 

can contain contaminants such as sulfur, chlorine, and silicon. 

Consequently, engines fired on landfill gas and other biogas can 

have technological feasibility issues with regard to the installation of a NO, control catalyst because these contaminants can 

result in catalyst failure or deactivation in hours or days. The 

technological feasibility issues with regard to the installation of 

a NO, control catalyst is the basis for the 0.60 g/hp-hr emission 

standard in the current §117.211 O(a)(1)(B)(ii)(l) and the justification for the proposed expansion of the existing emission specification to include lean-bum engines fired on biogas at minor 

sources NO, in the DFW 1997 eight-hour ozone nonattainment 

area. To further the spe~ic intent of providing fair and consistent application of SIP rules in the DFW 1997 eight-hour ozone 

nonattainment area, the proposed rule will broaden the cument 

§117.2110(a)(1)(B)(ii)(l) to biogas other than landfill gas. 

Promulgation and enforcement of the proposed rule would be 

neither a statutory nor a constitutional taking of private real property. Because the proposed rule promulgates an exemption, the 

rule is less burdensome, restrictive, or limiting of rights to private 

real property than the existing rule. Furthennore, the proposed 

rule will benetrt the public by providing fair and consistent application of SIP rules in the DFW 1997 eight-hour ozone nonattainment area .• The proposed rule does not affect a landowner's 

rights in private real property because this rulemaking does not 

burden, restrict, or limit the owner's right to property, nor does 

ij reduce the value of any private real property by 25% or more 

beyond that which would otherwise exist in the absence of the 

regulations. In other words, this rule simply expands the existing 

exemption in §117.403 to include sources that have technological feasibility issues similar to those of the sources covered by 

the cument exemption. Therefore, the rule will not constitute a 

taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking and found 

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), relating to 

rules subject to the Texas Coastal Management Program (CMP) 

and will, therefore, require that goals and policies of the CMP be 

considered during the rulemaking process. The commission reviewed this rulemaking for consistency with the CMP goals and 

policies in accordance wijh the regulations of the Coastal Coordination Council and detennined that the rulemaking will not affect 

any coastal natural resource areas because the rule only affects 

counties outside the CMP area and is, therefore, consistent with 

CMP goals and policies. 

Written comments on the consistency of this rulemaking may be 

submitted to the contact person at the address listed under the 

SUBMITIAL OF COMMENTS section of this preamble. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Chapter 117 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Pennits Program. If the proposed 

amendment to Chapter 117 is adopted, owners or operators subject to the federal operating penn its program that elect to comply 

with the amended emission specification must, consistent with 

the revision process in Chapter 122, upon the effective date of 

the rulemaking, revise their operating penni! to include the new 

Chapter 117 requirements. 

ANNOUNCEMENT OF HEARING 

The commission will hold a public hearing on this proposal in Fort 

Worth on December 14, 2010, at 2:00p.m. at the Texas Commission on Environmental Qualijy, Region 4 Office, DFW Public 

Meeting Room, 2309 Gravel Road. The hearing is structured for 

the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order 

of registration. Open discussion will not be pennijted during the 

hearing; however, commission staff members will be available to 

discuss the proposal 30 minutes prior to the hearing. 

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

Charlotte Hom, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible. 

SUBMITIAL OF COMMENTS 

Written comments may be submijted to Natalia Henricksen, 

MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, 

or faxed to (512) 239-4808. Electronic comments may be 

submitted at: http:l!www5.tceq.state.tx.us/rules/ecomments/. 

File size restrictions may apply to comments being submitted 

via the eComments system. All comments should reference 

Rule Project Number 2010-048-117-EN. The comment period 

closes December 20, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site at 

http:!!www.tr;eq.state.tx.us!navlrufes/propose_adopt.htmf. For 

further infonnation, please contact Ray Schubert, Air Qualijy 

Division, at (512) 239-6615. 

STATUTORY AUTHORITY 

The amendment is proposed under the authority of the following: Texas Government Code, §2001.021, Petition for the Adoption of Rules, which authorizes an interested person to petition 

a state agency for the adoption of a rule; Texas Weier Code 

(TWC). §5.102, General Powers, §5.103, Rules, and §5.105, 

General Policy (these provisions authorize the commission to 

adopt rules necessary to carry out its powers and duties under 

the TWC); Texas Health and Safety Code (THSC), Texas Clean 

Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the 

35 TexReg 10166 November 19, 2010 Texas Register 
TCAA; THSC, §382.002, Policy and Purpose, which establishes 

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

consistent with the protection of public health, general welfare, 

and physical property; THSC, §382.011, General Powers and 

Duties, which authorizes the commission to control the quality 

of the state's air; and THSC, TCAA, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's 

air. The amendment is also proposed under THSC, §382.016, 

Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe requirements for owners 

or operators of sources to make and maintain records of emissions measurements; THSC, §382.021, Sampling Methods and 

Procedures, which authorizes the commission to prescribe sampling methods and procedures; and THSC, §382.051, Pemnitting 

Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to pemnits under THSC, Chapter 382. The amendment is also proposed under Federal Clean 

Air Act {FCAA), 42 United States Code {USC), §§7401, et seq., 

which requires states to submit SIP revisions that specify the 

manner in which the National Ambient Air Quality Standards will 

be achieved and maintained within each air quality control region 

of the state. 

The proposed amendment implements TWC, §5.103 and §5.105 

and THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 

382.021,382.051, and FCAA, 42 USC, §§7401 etseq. 

§JJ7.2JJO. Emission Specifications for Eight-Hour Attainment 

Demonstration. 

(a) The o\\lller or operator of any source subject to this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment 

Area Minor Sources) shal1 not allow the discharge into the atmosphere 

emissiom of nitrogen oxides {NOx) in excess of the following emission 

specifications. 

(1) Emission specificatiom for stationary, gas-fired. reciprocating internal combustion engines are as follows: 

(A) rich-burn engines: 

(i) fired on landfill gas, 0.60 grams per horsepowerhour (glhp-br); and 

(ii) all other rich-burn engines, 0.50 glhp-br; and 

(B) Jean-buro engines: 

(i) placed into service before June I, 2007, that have 

not been modified. reconstructed. or relocated on or after June I, 2007 ~ 

0. 70 glhp-br; and 

(ii) placed into service, modified. reconstructed. or 

relocated on or after June 1, 2007: 

(I) fired on landfill gas or other biogas, 0.60 glhpbr;and 

(II) all other lean-bum engines, 0.50 glhp-br. 

(2) The emission specification for stationary, dual-fuel, reciprocating internal combustion engines is 5.83 g/hp-br. 

(3) Emission specificatiom for stationary, diesel, reciprocating internal combustion engines are as follows: 

(A) placed into service before March I, 2009, that have 

not been modified. reconstructed. or relocated on or after March 1~ 

2009, the lower of 11.0 glhp-br or the emission rate established by 

testing, monitoring, manufacturer's guarantee, or manufacturer's other 

data; and 

(B) for engines not subject to subparagraph (A) of this 

paragraph: 

(i) with a horsepower (hp) rating of 50 hp or greater, 

but less than I 00 bp, that are installed, modified, reconstructed, or relocated on or after March I, 2009, 3.3 glhp-hr; 

(ii) with a horsepower rating of I 00 hp or greater, 

but less than or equal to 750 hp, that are installed, modified, reconstructed, or relocated on or after March I, 2009, 2.8 glhp-br; and 

(iii) with a· horsepower rating of 750 hp or greater 

that are installed. modified, reconstructed. or relocated on or after 

March I, 2009, 4.5 glhp-br. 

( 4) As an alternative to the emission specifications in paragraphs (I) - (3) of this subsection for units with an annual capacity 

factor of 0.0383 or less, 0.060 oound per million British thermal units 

(lb!MMBtu) [laiMMBm] heat input For units placed into service on 

or before December 31, 2000, the annual capacity factor as of December 31, 2000, must be used to detennine eligibility for the alternative 

emission specification of this paragraph. For writs placed into service 

after December 31, 2000, a 12-month rolling average must be used to 

determine the annual capacity factor. 

(5) For the purposes of this subsection, the tenns "modification" and ''reconstruction" have the meanings defined in §116.10 

of this title (relating to General Definitions) and 40 Code of Federal 

Regulations §60.15 (December 16, 1975), respectively, and the term 

"relocated" means to newly install at an account, as defined in §I 01.1 

of this title (relating to Definitions), a used engine from anywhere outside that account. 

(b) The averaging time for the Nq)[ emission specifications of 

subsection (a) of this section is as follows: 

(I) if the writ is operated with a NOx continuous emissions 

monitoring system (CEMS) or predictive emissiom monitoring system 

(PEMS) under§ 117.2135(c) of this title (relating to Monitoring, Noti-

. fication, and Testing Requirements), either as: 

(A) a rolling 30-day average period, in the units of the 

applicable standard; 

(B) a block one-hour average, in the writs of the applicable standard, or alternatively; 

(C) a block one-hour average, in pounds per hour, for 

boilers, calculated as the product of the boiler's maximum rated capacity and its applicable limit in lb!MMBtu; or 

(2) if the unit is not operated with a NO, CEMS or PEMS 

under §117.2135(c) of this title, a block one-hour average, in the units 

of the applicable standard. 

(c) The maximum rated capacity used to determine the applicability of the emission specifications in subsection (a) of this section 

must be the greater of the following: 

(I) the maximum rated capacity as of December 31, 2000; 

or 

(2) the maximum rated capacity after December 31.2000. 

(d) A unit's classification is detennined by the most specific 

classification applicable to the unit as of December 31, 2000. For example, a unit that is classified as a stationary gas-fired engine as of 

December 31, 2000, but subsequently is authorized to operate as a 

PROPOSED RULES November 19, 2010 35 TexReg 10167 
dual-fuel engine, must be classified as a stationary gas-fired engine for 

the purposes of this chapter. 

(e) Changes after December 31, 2000, to a unit subject to an 

emission specification in subsection (a) of this section (ESAD unit) that 

result in increased NO,. emissions from a unit not subject to an emission 

specification in subsection (a) of this section (non-ESAD unit), such 

as redirecting one or more fuel or waste streams containing chemicalbound nitrogen to an incinerator or a flare, is only allowed if: 

(I) the increase in NOx emissions at the non-ESAD unit 

is determined using a CEMS or PEMS that meets the requirements 

of §117.2135(c) of this title, or through stack testing that meets the 

requirements of §117.2135(1) of this title; and 

(2) emission credits equal to the increase in NOx emissions at the non-ESAD unit are obtained and used in accordance 

with §117.9800 of this title (relating to Use of Emission Credits for 

Compliance). 

(0 A source that met the definition of major source on December 31, 2000, is always classified as a major source for purposes of this 

chapter. A source that did not meet the definition of major sow-ce (i.e., 

was a minor source, or did not yet exist) on December 31, 2000, but 

becomes a major source at any time after December 31,2000, is from 

that time forward always classified as a major source for purposes of 

this chapter. 

(g) The availability under subsection (a)(4) of this section of 

an emission specification for units with an annual capacity factor of 

0.0383 or less is based on the unit's status on December 31,2000. Reduced operation after December 31, 2000, cannot be used to qualify 

for a more lenient emission specification under subsection (a)(4) of this 

section than would otherwise apply to the unit. 

(h) No person shall allow the discharge into the atmosphere 

from any unit subject to NOx emission specifications in subsection (a) 

of this section, emissions in excess of the following, except as provided 

in §117.2125 of this title (relating to Alternative Case Specific Specifications): 

(I) carbon monoxide (CO), 400 ppmv at 3.0% oxygen (0,) 

[G,], dry basis (or alternatively, 3.0 g/hp-br for stationary internal coolbustion engines): 

(A) on a rolling 24-hour averaging period, ·fur units 

equipped with CEMS or PEMS for CO; and 

(B) on a one-hour average, for units not equipped with 

CEMS or PEMS for CO; and 

(2) for units that inject urea or ammonia into the exhaust 

stream for NOx control, ammonia emissions of 10 ppmv at IS% 0 2

, 

dry, for gas-fired lean-bum engines; and 3.0o/o 0 2

, dry, for all other 

units, based on: 

(A) a block one-hour averaging period fur units not 

equipped with a CEMS or PEMS for ammonia; or 

(B) a rolling 24-hour averaging period for units 

equipped with CEMS or PEMS for ammonia 

(i) An owner or operator may use emission reduction credits 

as specified in §117.9800 of this title to comply with the NOJl emission 

specifications of this section. 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be wtthin the agency's legal authority to adopt. 

Filed with the Office of the Secretary of State on November 5, 

2010. 

TRD-20t 006377 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: December 19, 2010 

For further information, please call: (5t2) 239-0177 

• • 

CHAPTER 298. ENVI ONMENTAL FLOW 

STANDARDS FOR S ACE WATER 

The Texas Commission on E ironmental Quality (TCEQ or 

commission) proposes new§ 98.1, 298.5, 298.10, 298.15, 

298.20, 298.25, 298.200, 298.2 5, 298.210, 298.215, 298.220, 

298.225, 298.230, 298.240, 298.250, 298.255, 298.260, 

298.265, 298.270, 298.275, 29 280, 298.285, and 298.290. 

BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

In 2007, the BOth Legislature, p ssed House Bill 3 (HB 3), relating to the management of the ater resources of the state, including the protection of instrea flows and freshwater inflows; 

and, Senate Bill 3 (SB 3), relati to the development, management, and preservation of thew ter resources of the state. Both 

of these bills amended Texas ter Code (TWC), §11.1471, 

which requires the commission to adopt rules related to env~ 

ronmental flow standards and et-asides. The commission is 

proposing to create a new Ch pier 298, Environmental Flow 

Standards for Surface Water, I implement the environmental 

flow provisions of HB 3, Article , and SB 3, Article 1, and propose environmental flow stand s for the Trinity and San Jacinto Rivers, their associated !rib !aries, and Galveston Bay; and 

the Sabine and Neches Rivers, eir associated tributaries, and 

Sabine Lake Bay. 

Prior to HB 3/SB 3, the commis ion had authority to protect environmental interests as tt pe illed state surface water. The 

commission had authority to m intain: existing instream uses 

under TWC, §11.147(d); water uality under TWC, §11.147(d) 

and §11.150; fish and wildlife ha · tunderTWC, §11. 147(e) and 

§11.152; and freshwater inflows o bay and estuary systems under TWC, §11.147(a)- (c). , §11.147(b)- (e) and §11.152 

required that these environme I considerations be included 

only to the extent practicable orr asonable and required that environmental considerations be nsidered along with other factors of public welfare. HB 3/SB did not make major changes 

to this commission authority. 

The commission also retains i ability, granted prior to HB 

3/SB 3, to place special cond· ·ons in water right permtts to 

protect environmental interests Before HB 3/SB 3, TWC, 

§11.134(b)(3)(D), required con ideration of environmental interests for new appropriations 'water, including amendments 

that granted an increase in lh amount of water that could 

be diverted and TWC, §11.0 , required consideration for 

interbasin transfers. Permits for water projects that call for the 

re-diversion of wastewater or re m flows to a watercourse, so 

called "indirect reuse" projects, were also subject to special 

conditions to protect environme tal uses under TWC, §11.042 

and §11.046. Amendments th were not new appropriations 

were required to be authoriz if, among other criteria, the 

35 TexReg 10168 November 19, 2010 TextlS Register 
WRITTEN AND 

ORAL TESTIMONY 
INDEX OF WRITIEN TESTIMONY 

Reference Nwnber Submitted by 

W-1 Guy Donaldson, United States Environmental Protection Agency 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGIONS 

Natalia Hendrickson (MC 205) 

Office of Legal Services 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

1£ 1 6 201U 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Ms. Hendrickson: 

W-1 

DEC 2 U 2ilil 

TEXAS REGISTER TEAM 

Thank you for the opportunity to comment on the proposed revision to 30 Texas 

·· Administrative Code (T AC}, .Chaptt!r 117 Control of Air Pollution from Nitrogen 

Compaunds. The proposed rulemaking would reviSe Chapter 117, Subchapter D, 

Division 2, section 117.2110 (a)(l)(BXii)(I) by expanding the nitrogen oxides (NOx) 

emission specification for lean-bum engines fired on landfill gas to include lean-bum 

engines fired on biogas at minor sources ofNOx in the Dallas Fort Worth 1997 eighthour ozone nonattainment area. 

As a result section 117:211 O(a)(l )(B)(ii)(I) will read : "(I) fired on landfill gas or other 

. biogas. 0.60 g/hp-hr;" 

As we understand, the proposed revision will allow a stationary diesel engine to be fired 

on biogas. Under the existing rules, the lean-bum engines would be held to 0.50 g/hp-hr . 

NOx emission limit'!. Under the proposed rule, the engines would be limited to 0.60 

glbp-hr ofNOx. Under the proposed rules, you have projected that 0.02 tons per day 

more NOx emissions would be allowed compaied to the existing NOx rules. 

On the other band, if a source ofbiogas does not recover it'l emissions and uses them to 

fuel an engine, it would most likely send the gas to a flare resulting in an increase in NOx 

emissions. Because the existing Texas State Implementation (SIP) would allow flaring of 

emissions and the consequc:11t ~e in NOx emissions, it does not appear to us that this 

rule change is in coiilli.ct Wii:h i 1 U(i).l'herefore, the proposed reVisioil does riOt interfere · 

with attainment or maintenance of the NAAQS. Especially, given the small amount of 

emissions change at issue and fact that the biogas will be used beneficially, this appears 

to be an appropriate revision to the SIP. Please confirm that our understanding is correct 

Also, please confirm that emissions from engines fired en biogas will be accounted for 

appropriately in future SIP revisions. 

Internet Address (URL)- htto:llwww.epa.gov/eerth1r61 

Recycled/Recyclable· Printed with Vegetable Oil Baaed Inks on Recycled Paper (Minimum 30% Postoonsumer) 
We appreciate the opportunity to comment on the proposed rule revisions. If you have 

any questions about this letter, please contact Mr. Alan Sbar at (214) 665-6691. 

Sincerely yours, 

fly~ Guy Donaldson· 

Chief 

Air Planning Section . · 
INDEX OF ORAL TESTIMONY 

NO ORAL TESTIMONY WAS RECEIVED PERTAINING TO THIS RULEMAKING. 
- 1 - . 

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: December 14, 2010 

T(me: 2:00 PM 

Rule Project No.: 201 0-048-117 -EN 

Short Title: Lean-Burn engines fired on BiOGAS in the DFW Ozone Nonattainment Area 

Location: Region 4 Office, DFW public meeting room. 2309 Gravel Rd. Ft. Worth 

Concerning: Proposed Revisions to 30 TAC Chapter 117 and to the State Implementation Plan 

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony? 

(Please Print) (Circle One) 

f~c ,.,/1 ·BeJ' ' Yes €). 'M_~tll. _E,A.II"'cQ.~:?C '11-bWl .AM el!e5C.O 

Yes No 

Yes No 

Yes No 

' Yes No 

Yes No 

Yes No 

Yes No .. 
HEARING OFFICER REPORT 

I am the hearing officer. assigned to conduct the public hearing regarding proposed 

revisions to 30 TAC Chapter 117 and to. the State Implementation Plan, TCEQ Rule 

Project No. 2010-048-117-EN. 

A public hearing was scheduled for December 14, 2010, in Fort Worth, TX, at 2:00pm 

At 1 :30 pm the room was open, TCEQ staff and a court reporter were present and ready 

to open the hearing for public comm~nt. After waiting for 20 minutes, no one had 

arrived to make comments on the record. Therefore, the public hearing was not formally 

opened for comment and no transcript was prepared. 

He8ri!l1iicer: ~~ Ray Schubert 

12/14/2010 

Date signed 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality 

INTEROFFICE MEMORANDUM 

To: Commissioners Date: April1, 2011 

Thru: l.aDonna Castaiiuela, Chief Clerk 

Mark R. Vickery, P.G., Executive Director 

From: Susana M. Hildebrand, P.E. A..\-

Chief Engineer D' 

Docket No.: 2010-1152-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 117, Control of Air Pollution from Nitrogen Compounds 

Expand the Emission Specification for Lean-Bum Engines in the Dallas-Fort 

Worth (DFW) 1997 Eight-Hour Ozone NonattainmentArea 

Rule Project No. 2010-048-117-EN 

Background and reason(s) for the rulemaking: 

On April· 27, 2010, Ameresco of Texas (petitioner) submitted a petition for rulemaking requesting 

an amendmentto Chapter 117, Subchapter· D. Division 2, §117.2110 for the Dallas-Fort Worth 

(DFW) 1997 eight-hour ozone nonattainment area. The commission approved the petition for 

rulemaking on June 16, 2010, and issued an order on June 22, 2010, directing the executive 

director to examine the issues in the petition and to initiate rulemaking. Currently, §117.2110 limits 

nitrogen oxides (NOx) emissions from stationary gas-fired, lean-bum engines installed, modified, 

reconstructed, or relocated on or after June 1, 2007, to o.6o grams per horsepower-hour (gfhp-hr) 

if fired on landfill gas and 0.50 gfhp-hr for all other lean-bum engines. 

During the 2007 rulemaking, no landfill gas-fired engines were identified in the point source 

emissions inventory in the counties impacted by the proposed rule. However, the emission 

specification of o.6o gfhp-hr for gas-fired engines fired on landfill gas that is established by 

§117.2110(a)(1)(B)(ii)(I) is consistent with the emission specification for this category of engiries in 

the Houston-Galveston-Brazoria 1997 eight-hour ozone nonattainment area. 

Landfill gas and other biogas are produced from anaerobic digestion or decomposition of organic 

matter and have similar fuel and combustion characteristics. Both landfill gas and other biogas can 

contain contaminants such as sulfur, chlorine, and silicon. Consequently, engines fired on landfill 

gas and other biogas can have technological feasibility issues with regard to the installation of a 

NOx control catalyst because these contaminants can result in catalyst failure or deactivation in 

hours or days. The technological feasibility issues with regard to the installation of a NOx control 

catalyst is the basis for the o. 6o gfhp-hr emission standard in the current rule and the justification 

for adopting the expansion of the existing emission specification to include lean-bum engines fired 

on biogas at minor sources of NOx in the DFW 1997 eight-hour ozone nonattainment area. 

Scope of the rulemaldng: 

Currently, §117.2110 limitsNOx emissions from stationary gas-fired, lean-bum engines installed, 

modified, reconstructed, or relocated on or after June 1, 2007, to o.6o gfhp-hr if fired on landfill 

gas and o.so gfhp-hr for all other lean-bum engines. The adopted rulemaking will amend 

§117.2110(a)(1)(B)(ii)(I) to expand the emission specification for lean-bum engines fired on landfill 

gas to include lean-bum engines fired on other biogas at minor sources ofNOx in the DFW 1997 

eight-hour ozone nonattsinment area. 
Commissioners 

Page2 

Apri11, 2011 

Re: Docket No. 2010-1152-RUL 

A) Summary of what the rulemaking will do: 

If adopted, the amended section will establish a o.6o g/hp-hr NOx emission limit for stationary 

gas-fired, lean-burn internal combustion engines fired on biogas fuels other than landfill gas that 

are installed, modified, reconstructed, or relocated on or after June 1, 2007. 

B) Scope required by federal regulations or state statutes: 

None. 

C) Additional staff recommendations that are not required by federal rule or state 

statute: 

None. 

Statutory authority: 

Texas Government Code, §2001.021, establishes the procedures by which an interested person may 

petition a state agency for the adoption of a rule and 30 Texas Administrative Code (TAC) §20.15 

provides such procedures specific to the commission. 

The following provisions authorize the commission to adopt rules necessary to carry out its powers 

and duties: Texas Water Code (1WC), §5.102, General Powers, §5.103, Rules, and §5.105, General 

Policy (these provisions authorize the commission to adopt rules necessary to carry out its powers 

and duties under the TWC); Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), · 

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

purposes of the TCAA; THSC, §382.002, Policy and Purpose, which establishes the commission's 

. purpose to safeguard the state's air resources, consistent with the protection of public health, 

general welfare, and physical property; THSC, §382.011, General Powers and Duties, which 

authorizes the commission to control the quality of the state's air; and THSC, §g82.o12, State Air 

Control Plan, which authorizes the commission to prepare and develop a general, comprel!ensive 

plan for the control of the state's air. 

Also, THSC, §382.016, concerning Monitoring Requirements; Examination of Records, authorizes 

the commission to prescnbe requirements for owners or operators of sources to make and maintain 

records of emissions measurements; §382.021, concerning Sampling Methods and Procedures, 

authorizes the commission to prescnbe the sampling methods and procedures; and §382.051 

concerning Permitting Authority of Commission; Rules, authorizes the commission to adopt rules 

as 'necessary to comply with changes in federal law or regulations applicable to permits under 

Chapter 382. The rule amendment would also be adopted Uiider 42 United States Code, §§7401, et 

seq., which requires states to submit state implementation plan (SIP) revisions that specify the 

manner in which the National Ambient Air Quality Standards (NAAQS) will be achieved and 

maintained within each air quality control region of the state. 

Effect on the: 

A) Regulated commwtity: 

The adopted rulemaking will affect owners and operators of stationary gas-fired, lean-burn 

internal combustion engines fired on biogas other than landfill gas that are located at minor 

sources of NOx in the DFW 1997 eight-hour ozone nonattainment area. If adopted, owners or 

operators of stationary gas-fired, lean-burn internal combustion engines fired on biogas fuels other 

than landfill gas that are installed, modified, reconstructed, or relocated on or after June 1, 2007, 

would be required to limit NOx emissions to o.6o gfhp-hr instead of 0.50 g/hp-hr. 
Commissioners 

Page3 

Apri11, 2011 

Re: Docket No. 2010-1152-RUL 

B) Public: 

There will be no impact on the public. 

C) Agency programs: 

There are no anticipated impacts on agency programs. 

Stakeholder meetings: 

No stakeholder ·meetings were held. 

Public comment: 

A public hearing for this rulemaking was scheduled on December 14, 2010, in Fort Worth, Texas. 

The hearing was not officially opened, because no one requested to present oral testimony. The 

proposed rule was published in the November 19, 2010, issue ofthe Texas Register (35 TexR.eg 

10162),. The comment period closed December 20, 2010. 

The commission received a written comment from the United States Environmental Protection 

Agency (EPA). The following is summB.lj' of the comment: 

The EPA stated its understanding that the proposed revision would expand the NOx emission 

specification for lean-bum engines fired on landfill gas to include lean-bum engines fired on biogas 

at minor sources in the DFW 1997 eight-hour ozone nonattainment area, and that the revision 

would allow a stationB.lj' diesel engine to be fired on biogas. The EPA also commented that 

although TCEQ has projected the potential for a small increase in NOx emissions from engines 

firing biogas resulting from the rule change, because a larger amount ofNOx emissions could result 

from the likely alternative of sending the gas to a flare, the rulemaking did not appear to conflict· 

with §110(1) of the Federal Clean Air Act. The EPA agreed with the commission's determination 

that the proposed rulemaking will not interfere with attainment or maintenance of the 1997 eighthour ozone NAAQS in the DFW area and commented that the proposed change appeared to be an 

appropriate revision to the SIP given the small amount of emissions change and the beneficisl use 

of the biogas. In addition, the EPA requested the commission confirm the EPA's understanding of 

the proposed amendment to §117.2110 and requested that emissions from engines :fired on biogas 

be accounted for in future SIP revisions. No changes were made to the rule based on this 

comment. 

Significant changes from proposal: . None. 

Potential controversial concerns and legislative interest remaining after proposal 

and public comment: 

None. 

Does this ruJemaJring a:lfect any current policies or require development of new 

policies? 

None. 

What are the consequences if this rulemaking does not go forward? 

If the proposed rulemaking is not adopted and the petitioner is not able to comply with the 0.50 

g/hp-hr emission limit or purchase credits to offset the surplus emissions, the company may be 

forced to abandon the project. If the company is forced to send the emission stream to a flare for 

destruction rather than use the stream as a fuel source in the engines, the total uncontrolled NOx 
Commissioners 

Page4 

Apri11, 2011 . 

Re: Docket No. 2010-1152-RUL 

emission could exceed that of the controlled emissions under the proposed emission limit, as flares 

are exempt from NOx emission limits under Chapter 117. 

Are there ahernatives to rulemaldng? 

Yes. The commission criuld decide not to adopt the proposed changes to the emission specifications 

in Chapter 117. 

Key points in adoption rulemaldng schedule: 

Texas Register proposal publication date: November 19, 2010 

Anticipated Texas Register publication date: May 6, 2011 

Anticipated effective date: May 12, 2011 

Six-month Texas Register.filing deadline: May 19, 2011 

Agency contacts: 

Ray Schubert, Rule Project Manager, 239-6615, Air Quality Division 

Amy Browning, Staff Attorney, 239-0891 . 

Michael Parrish, Texas Register Coordinator, 239-2548 

Attachments 

cc: . Chief Clerk, 2 copies 

Executive Director's Office 

Susana M. Hildebrand, P.E. 

Anneldsal 

Curtis Seaton 

Ashley Morgan 

Office of General Counsel 

Ray Schubert 

Michael Parrish 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the 

amendment to §117.2110 without changes to the proposed text as published in the 

November 19, 2010, issue of the Texas Register (35 TexReg 10162) and the text will not 

be republished. 

The amendment will be submitted to the United States Environmental Protection 

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

Background and Summary of the Factual Basis for the Adopted Rule 

On April27, 2010, Ameresco of Texas (petitioner) submitted a petition for rulemaking 

(Project Number 2010-026-PET -NR) requesting an amendment to Chapter 117, 

Subchapter D, Division 2, §117.2110 for the Dallas-Fort Worth (DFW) 1997 eight-hour 

ozone nonattainment area. The commission approved the petition for rulemaking on 

June 16, 2010, and issued an order on June 22, 2010, directing the executive director to 

examine the issues in the petition and to initiate rulemaking. Currently, §117.2110 limits 

nitrogen oxides (NOx) emissions from stationary gas-fired, lean-burn engines installed, 

modified, reconstructed, or relocated on or after June 1, 2007, to o.6o grams per 

horsepower-hour (gfhp-hr) if fired on landfill gas and o.so gfhp-hr for all other leanburn engines. The adopted change will expand the emission specification for lean-bum 

engines fired on landfill gas to include lean-bum engines fired on biogas at minor 

sources of NOx in the DFW 1997 eight-hour owne nonattainment area. 

1 
Landfill gas and other biogas are produced from anaerobic digestion or decomposition 

of organic matter and have similar fuel and combustion characteristics. Both landfill gas 

and other biogas can contain contaminants such as sulfur, chlorine, and silicon, which 

are present in other gaseous fuels. Consequently, engines fired on landfill gas and other 

biogas can have technological feasibility issues with regard to the installation of a NOx 

control catalyst because these contaminants can result in catalyst failure or deactivation 

in hours or days. The technological feasibility issues with regard to the installation of a 

NOx control catalyst is the basis for the 0.60 g/hp-hr emission standard in the current 

rule and the justification for the adopted expansion of the existing emission 

specification to include lean-burn engines fired on biogas at minor sources of NOx in the 

DFW 1997 eight-hour ozone nonattainment area. 

Demonstrating Noninterference under Federal Clean Air Act (FCAA), §uo(l) 

The commission provides the following information to demonstrate why the adopted 

change to expand the emission specification in §117.2110(a)(1)(B)(ii)(I) will not 

negatively impact the status of the state's attainment with the 1997 eight-hour ozone 

National Ambient Air Quality Standard (NAAQS), will not interfere with control 

measures, and will not prevent reasonable further progress toward attainment of the 

ozone NAAQS. The commission acknowledges that the DFW area failed to attain the 

1997 eight-hour ozone NAAQS by the June 15, 2010, attainment deadline based on 

monitoring data; however, the adopted rule change will not adversely affect the ability of 

the DFW area to attain the 1997 eight-hour ozone NAAQS for the reasons discussed in 

this preamble. 

2 
The requirement for reasonable notice and public hearing was satisfied through a public 

hearing scheduled for December 14, 2010, and the public comment period, held 

November 19, 2010, to December 20, 2010. The purpose of the hearing was to accept 

written and oral comments on the proposed rulemaking. A written comment was 

submitted by the EPA. The EPA stated their agreement with the commission's §1100) 

determination that the proposed rulemaking will not interfere with attainment or 

maintenance of the 1997 eight-hour ozone NAAQS in the DFW area. 

On May 23, 2007, as part of the DFW attainment demonstration, the commission 

adopted a new Chapter 117, Subchapter D, Division 2 with new emission control 

requirements for minor industrial, commercial, or institutional sources of NOx in the 

DFW 1997 eight-hour ozone nonattainment area. Subchapter D, Division 2 requires 

owners or operators of minor sources of NOx in the DFW 1997 eight-hour ozone 

nonattainment area to reduce NOx emissions from affected stationary internal 

combustion engines. A minor source of NOx in the DFW 1997 eight-hour ozone 

nonattainment area is any stationary source, or group of sources located within a 

contiguous area and under common control that emits or has the potential to emit less 

than 50 tons per year of NOx. 

One sourcy category newly regulated under Chapter 117 during the 2007 rulemaking 

was lean-burn engines at minor sources. The current applicable NOx emission 

specification in §117.2110(a)(1)(B)(ii)(II) for gas-fired, lean-burn engines using gaseous 

fuels other than landfill gas that are installed, modified, reconstructed, or relocated on 

or after June 1, 2007, is 0.50 g/hp-hr. During the 2007 rulemaking, no landfill gas-fired 

3 
engines were identified in the emissions inventory in the counties impacted by the 

proposed rule; however, the emission specification of o.6o g/hp-hr for gas-fired engines 

fired on landfill gas established by §117.2110(a}(1)(B)(ii}(I} is consistent with the 

emission specification for this category of engines in the Houston-Galveston-Brazoria 

1997 eight-hour ozone nonattainment area. 

In the 2007 Chapter 117 rulemaking for the DFW 1997 eight-hour ozone attainment 

demonstration, no gas-fired engines fired on biogas or other non-landfill gaseous fuels 

were relied upon for creditable reductions for the SIP. Therefore, if the petitioner's 

proposed change is adopted, allowing the slightly higher emission specification of o.6o 

gjhp-hr on gas-fired engines fired on other biogas fuels would not result in a loss of any 

SIP creditable reductions for the DFW 1997 eight-hour ozone nonattainment area. 

The adopted change is limited to a narrow category of stationary gas-fired engines with 

NOx controls that were not relied upon in the DFW 1997 eight-hour ozone attainment 

demonstration adopted in 2007, and the resulting change in future NOx emissions is 

negligible. Furthermore, if the rulemaking is not adopted and the petitioner is not able 

to comply with the o.so gjhp-hr emission limit or purchase credits to offset the surplus 

emissions, the petitioner may be forced to abandon the project. This outcome could 

actually result in a net NOx emissions increase that is more than the 0.02 tons per day 

increase anticipated if the rule is adopted. If the company is forced to send the emission 

stream to a flare for destruction rather than use the stream as a fuel source in the 

engines, the total uncontrolled NOx emissions could exceed that of the controlled 

emissions under the proposed emission limit, because flares are exempt from NOx 

emission limits under Chapter 117. Based on these factors, the commission has 

4 
determined that the adopted rule change will not negatively impact the status of the 

state's attainment demonstration for the 1997 eight-hour ozone NAAQS, will not 

interfere with control measures, and will not prevent reasonable further progress 

toward attainment of the ozone NAAQS. 

Section Discussion 

Section 117.2110, Emission Specifications for Eight-Hour Attainment Demonstration 

The commission adopts the amendment to §117.2110(a)(1)(B)(ii)(I) to expand the 

emission specification for lean-burn engines fired on landfill gas to include lean-burn 

engines fired on biogas at minor sources of NOx in the DFW 1997 eight-hour ozone 

nonattainment area. The adopted rule revision will require owners or operators of 

stationary gas-fired, lean-burn internal combustion engines fired on biogas fuels other 

than landfill gas that are installed, modified, reconstructed, or relocated on or after June 

1, 2007, to comply with a NOx emission limit of o.6o g/hp-hr. 

In addition to the adopted rule revision, the commission adopts non-substantive 

formatting changes to conform with current Texas Register format requirements. These 

non-substantive changes are not intended to alter the existing rule requirements in any 

way and are not specifically discussed in this preamble. 

Final Regulatory Impact Analysis Determination 

The commission reviewed the adopted rulemaking in light of the regulatory analysis 

requirements of Texas Government Code, §2001.0225 and determined that the adopted 

rule does not meet the definition of a "major environmental rule." Texas Government 

Code, §2001.0225 states that a "major environmental rule" is, "a rule the specific intent 

5 
of which is to protect the environment or reduce risks to human health from 

environmental exposure and that may adversely affect in a material way the economy, a 

sector of the economy, productivity, competition, jobs, the environment, or the public 

health and safety of the state or a sector of the state." Furthermore, while the adopted 

rulemaking does not constitute a major environmental rule, even if it did, a regulatory 

impact analysis would not be required because the adopted rulemaking does not meet 

any of the four applicability criteria for requiring a regulatory impact analysis for a 

major environmental rule. Texas Government Code, §2001.0225 applies only to a major 

environmental rule which, "(1) exceeds a standard set by federal law, unless the rule is 

specifically required by state law; (2) exceeds an express requirement of state law, 

unless the rule is specifically required by federal law; (3) exceeds a requirement of a 

delegation agreement or contract between the state and an agency or representative of 

the federal government to implement a state and federal program; or (4) adopts a rule 

solely under the general powers of the agency instead of under a specific state law." 

The adopted rulemaking implements requirements of the FCAA. Under 42 United States 

Code (USC), §7410, each state is required to adopt and implement a SIP containing 

adequate provisions to implement, attain, maintain, and enforce the NAAQS within the 

state. While 42 USC, §7410 generally does not require specific programs, methods, or 

reductions in order to meet the standard, a SIP must include "enforceable emission 

limitations and other control measures, means or techniques (including economic 

incentives such as fees, marketable permits, and auctions of emissions rights), as well as 

schedules and timetables for compliance as may be necessary or appropriate to meet the 

applicable requirements of this chapter," (meaning Chapter 85, Air Pollution Prevention 

6 
and Control, otherwise known as the FCAA). The provisions of the FCAA recognize that 

states are in the best position to determine what programs and controls are necessary or 

appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, 

and the public, to collaborate on the best methods for attaining the NAAQS for the 

specific regions in the state. Even though the FCAA allows states to develop their own 

programs, this flexibility does not relieve a state from developing a program that meets 

the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 

USC, §7410, and must develop programs and control measures to assure that their SIP 

provides for implementation, attainment, maintenance, and enforcement of the NAAQS 

within the state. 

The specific intent of the adopted rulemaking is to provide fair and consistent 

application of SIP rules in the DFW 1997 eight-hour ozone nonattainment area. The 

current applicable NOx emission specification in §117.211o(a)(1){B)(ii)(II) for gas-fired, 

lean-bum engines using gaseous fuels other than landfill gas that are installed, 

modified, reconstructed, or relocated on or after June 1, 2007, is o.so gfhp-hr. The 

current applicable NOx emission specification in §n7.2110(a)(1){B)(ii)(I) for gas-fired 

engines fired on landfill gas is o.6o gfhp-hr. Landfill gas and other biogas are produced 

from anaerobic digestion or decomposition of organic matter and have similar fuel and 

combustion characteristics. Both landfill gas and other biogas can contain contaminants 

such as sulfur, chlorine, and silicon. Consequently, engines fired on landfill gas and 

other biogas can have technological feasibility issues with regard to the installation of a 

NOx control catalyst, because these contaminants can result in catalyst failure or 

deactivation in hours or days. The technological feasibility issues with regard to the 

7 
installation of a NOx control catalyst is the basis for the o.6o g/hp-hr emission standard 

in the current §117.2110(a)(1)(B)(ii)(I) and the justification for the adopted expansion of 

the existing emission specification to include lean-burn engines fired on biogas at minor 

sources NOx in the DFW 1997 eight-hour ozone nonattainment area. To further the 

specific intent of providing fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area, the adopted rule will expand the current 

§117.2110(a)(1)(B)(ii)(I) to include biogas other than landfill gas. 

The adopted rulemaking does not constitute a major environmental rule under Texas 

Government Code, §2001.0225(g)(3) because: 1) the specific intent of the adopted rule 

is not to protect the environment or reduce risks to human health from environmental 

exposure, but rather to provide fair and consistent application of SIP rules in the DFW 

eight-hour ozone nonattainment area by providing a specific expansion of 

§117.211o(a)(1)(B)(ii)(I) to apply to biogas other than landfill gas; and 2) the adopted 

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

economy, productivity, competition, or jobs, nor will the adopted rule adversely affect in 

a material way the environment or the public health and safety of the state or a sector of 

the state. Because the adopted rulemaking is not a major environmental rule, it is not 

subject to a regulatory impact analysis under Texas Government Code, §2001.0225. 

While the adopted rulemaking does not constitute a major environmental rule, even if it 

did it would not be subject to a regulatory impact assessment under Texas Government 

Code, §2001.0225. The requirement to provide a fiscal analysis of regulations in the 

Texas Government Code was amended by Senate Bill (SB) 633 during the 75th 

8 
Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory . 

impact analysis of extraordinary rules. These are identified in the statutory language as 

major environmental rules that will have a material adverse impact and will exceed a 

requirement of state law, federal law, or a delegated federal program, or are adopted 

solely under the general powers of the agency. With the understanding that this 

requirement would seldom apply, the commission provided a cost estimate for SB 633 

that concluded: "based on an assessment of rules adopted by the agency in the past, it is 

not anticipated that the bill will have significant fiscal implications for the agency due to 

its limited application." The commission also noted that the number of rules that would 

require assessment under the provisions of the bill was not large. This conclusion was 

based, in part, on the criteria set forth in the bill that exempted rules from the full 

analysis unless the rule was a major environmental rule that exceeds a federal law. 

The FCAA does not always require specific programs, methods, or reductions in order to 

meet the NAAQS; thus, states must develop programs for each nonattainment area to 

help ensure that those areas will meet the attainment deadlines. Because of the ongoing 

need to address nonattainment issues, and to meet the requirements of 42 USC, §7410, 

the commission routinely proposes and adopts SIP rules. The legislature is presumed to 

understand this federal scheme. If each rule adopted for inclusion in the SIP was 

considered to be a major environmental rule that exceeds federal law, then every SIP 

rule would require the full regulatory impact analysis contemplated by SB 633. This 

conclusion is inconsistent with the conclusions reached by the commission in its cost 

estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the 

legislature is presumed to understand the fiscal impacts of the bills it passes and that 

9 
presumption is based on information provided by state agencies and the LBB, the 

commission believes that the intent of SB 633 was only to require the full regulatory 

impact analysis for rules that are extraordinary in nature. While the SIP rules have a 

broad impact, that impact is no greater than is necessary or appropriate to meet the 

requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall 

under the exception in Texas Government Code, §2001.0225(a), because they are 

required by federal law. 

The commission has consistently applied this construction to its rules since this statute 

was enacted in 1997. Since that time, the legislature has revised the Texas Government 

Code but left this provision substantially unamended. It is presumed that, "when an 

agency interpretation is in effect at the time the legislature amends the laws without 

making substantial change in the statute, the legislature is deemed to have accepted the 

agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485,489 (Tex. 

App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 

S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. 

Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 

1967); Dudneyv. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884,893 (Tex. App. Austin 

2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 

2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 

563 S.W.2d 916 (Tex. 1978). 

The commission's interpretation of the regulatory impact analysis requirements is also 

supported by a change made to the Texas Administrative Procedure Act (AP A) by the 

10 
legislature in 1999. In an attempt to limit the number of rule challenges based upon AP A 

requirements, the legislature clarified that state agencies are required to meet these 

sections of the AP A against the standard of "substantial compliance" (Texas 

Government Code, §2001.035). The legislature specifically identified Texas Government 

Code, §2001.0225 as falling under this standard. The commission has substantially 

complied with the requirements of Texas Government Code, §2001.0225. 

Regardless of whether the adopted rulemaking constitutes a major environmental rule 

under Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis is not 

required because this rule is part of the commission's SIP for making progress toward 

the attainment and maintenance of the eight-hour ozone NAAQS in the DFW 

nonattainment area. Therefore, the adopted rule does not exceed a standard set by 

federal law or exceed an express requirement of state law, since the rule is part of an 

overall regulatory scheme designed to meet, not exceed the relevant standard set by 

federal law - the NAAQS. The commission is charged with protecting air quality within 

the state and to design and submit a plan to achieve attainment and maintenance of the 

federally mandated NAAQS. The Third District Court of Appeals upheld this 

interpretation in Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W. 3d 728 

(Tex. App. -Austin 2004, no writ). In addition, no contract or delegation agreement 

covers the topic that is the subject of this rulemaking. Finally, this rulemaking was not 

developed solely under the general powers of the agency but is authorized by specific 

sections of Texas Health and Safety Code (THSC), Chapter 382 (also known as the Texas 

Clean Air Act), and the Texas Water Code (TWC), which are cited in the STATUTORY 

11 
AUTHOR11Y section of this preamble, including THSC, §§382.011, 382.012, and 

382.017. 

This rulemaking is not subject to the regulatory analysis provisions of Texas 

Government Code, §2001.0225(b), for the following reasons. The adopted rulemaking is 

not a major environmental law because: 1) the specific intent of the adopted rule is not 

to protect the environment or reduce risks to human health from environmental 

exposure, but rather to provide fair and consistent application of SIP rules in the DFW 

1997 eight-hour ozone nonattainment area; and 2) the adopted rulemaking will not 

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

competition, or jobs, nor will it adversely affect in a material ~ay the environment, or 

the public health and safety of the state or a sector of the state. Furthermore, even if the 

adopted rulemaking was a major environmental rule, it does not meet any of the four 

applicability criteria listed in Texas Government Code, §2001.0225 because: 1) the 

adopted rulemaking is part of the DFW SIP, and as such is designed to meet, not exceed 

the relevant standard set by federal law; 2) no contract or delegation agreement covers 

the topic that is the subject of this rulemaking; and 3) the adopted rulemaking is 

authorized by specific sections ofTHSC, Chapter 382, and the TWC, which are cited in 

the STATUTORY AUTHOR11Y section ofthis preamble. 

The commission invited public comment regarding the draft regulatory impact analysis 

determination during the public comment period. No comments were received on the 

draft regulatory impact analysis determination. 

12 
Takings Impact Assessment 

The commission evaluated the adopted rule and performed an analysis of whether the 

adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The 

commission's assessment indicates Texas Government Code, Chapter 2007 does not 

apply because this rule making provides for fair and consistent application of SIP rules in 

the DFW 1997 eight-hour ozone nonattainment area by expanding the current 

§u7.2110(a)(1)(B)(ii)(I) NOx emission specification to include biogas other than landfill 

gas. 

Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental 

action that affects private real property, in whole or in part or temporarily or 

permanently, in a manner that requires the governmental entity to compensate the 

private real property owner as provided by the Fifth and Fourteenth Amendments to the 

United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a 

governmental action that: (i) affects an owner's private real property that is the subject 

of the governmental action, in whole or in part or temporarily or permanently, in a 

manner that restricts or limits the owner's right to the property that would otherwise 

exist in the absence of the governmental action; and (ii) is the producing cause of a 

reduction of at least 25% in the market value of the affected private real property, 

determined by comparing the market value of the property as if the governmental action 

is not in effect and the market value of the property determined as if the governmental 

action is in effect." 

13 
The specific purpose of the adopted rulemaking is to provide fair and consistent 

application of SIP rules in the DFW 1997 eight-hour ozone nonattainment area. The 

current applicable NOx emission specification in §n7.2110(a)(1)(B)(ii)(II) for gas-fired, 

lean-burn engines using gaseous fuels other than landfill gas that are installed, 

modified, reconstructed, or relocated on or after June 1, 2007, is o.so g/hp-hr. The 

current applicable NOx emission specification in §117.2110(a)(1)(B)(ii)(I) for gas-fired 

engines fired on landfill gas is 0.60 g/hp-hr. Landfill gas and other biogas are produced 

from anaerobic digestion or decomposition of organic matter and have similar fuel and 

combustion characteristics. Both landfill gas and other biogas can contain contaminants 

such as sulfur, chlorine, and silicon. Consequently, engines fired on landfill gas and 

other biogas can have technological feasibility issues with regard to the installation of a 

NOx control catalyst because these contaminants can result in catalyst frulure or 

deactivation in hours or days. The technological feasibility issues with regard to the 

installation of a NOx control catalyst is the basis for the o.6o g/hp-hr emission standard 

in the current §117.2110(a)(1)(B)(ii)(I) and the justification for the adopted expansion of 

the existing emission specification to include lean-bum engines fired on biogas at minor 

sources ofNOx in the DFW 1997 eight-hour ozone nonattainment area. To further the 

specific intent of providing fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area, the adopted rule will broaden the current 

§117.2110(a)(1)(B)(ii)(I) to biogas other than landfill gas. 

Promulgation and enforcement of the adopted rule would be neither a statutory nor a 

constitutional taking of private real property. Because the adopted rule promulgates an 

exemption, the rule is less burdensome, restrictive, or limiting of rights to private real 

14 
property than the existing rule. Furthermore, the adopted rule will benefit the public by 

providing fair and consistent application of SIP rules in the DFW 1997 eight-hour ozone 

nonattainment area. The adopted rule does not affect a landowner's rights in private real 

property because this rulemaking does not burden, restrict, or limit the owner's right to 

property, nor does it reduce the value of any private real property by 25% or more 

beyond that which would otherwise exist in the absence of the regulations. In other 

words, this rule simply expands the existing exemption in §117.2110(a)(1)(B)(ii)(I) to 

include sources that have technological feasibility issues similar to those of the sources 

covered by the current exemption. Therefore, the rule will not constitute a taking under 

Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission invited public comment regarding the consistency with the coastal 

management program (CMP) during the public comment period. No comments were 

received concerning the Texas CMP. 

Effect on Sites Subject to the Federal Operating Permits Program 

Chapter 117 is an applicable requirement under 30 TAC Chapter 122, Federal Operating 

Permits Program. Owners or operators subject to the federal operating permits program 

that elect to comply with the emission specification in §117.2110(a)(1)(B)(ii)(I) may need 

to revise their operating permit. 

15 
Public Comment 

A public hearing was scheduled December 14, 2010, at 2:00 p.m., at the Texas 

Commission on Environmental Quality Region 4 office in Fort Worth, Texas. The 

hearing was not officially opened, because no one requested to present oral testimony. 

The comment period closed on December 20, 2010. A written comment was received 

from the EPA. 

Response to Comments 

The EPA stated its understanding that the proposed revision would expand the NOx 

emission specification for lean-burn engines fired on landfill gas to include lean-burn 

engines fired on biogas at minor sources in the DFW 1997 eight-hour ozone 

nonattainment area, and that the revision would allow a stationary diesel engine to be 

fired on biogas. The EPA also commented that although TCEQ has projected the 

potential for a small increase in NOx emissions from engines firing biogas resulting 

from the rule change, because a larger amount ofNOx emissions could result from the 

likely alternative of sending the gas to a flare, the rulemaking did not appear to conflict 

with FCAA, §1100). The EPA also commented that it agreed with the commission's 

determination that the proposed rulemaking will not interfere with attainment or 

maintenance of the 1997 eight-hour ozone NAAQS in the DFW area and commented 

that the proposed change appeared to be an appropriate revision to the SIP given the 

small amount of emissions change and the beneficial use of the biogas. In addition, the 

EPA requested the commission confirm the EPA's understanding of the proposed 

amendment to §117.2110 and requested that emissions from engines fired on biogas be 

accounted for in future SIP revisions. 

16 
The commission appreciates the comment. The EPA's understanding of the 

amendment to §117.2110 is partially correct. The amendment to §117.2110 in 

this rulemaking only applies to lean-bum engines fired on landfill gas and 

lean-bum engines fired on other biogas at minor sources ofNOx in the 

DFW 1997 eight-hour ozone nonattainment area; the amendment does not 

apply to stationary diesel engines. The EPA is correct in its understanding 

that the change is limited to a narrow category of stationary gas-fired 

engines with NOx controls that were not relied upon in the DFW 1997 eighthour ozone attainment demonstration adopted in 2007, and the resulting 

change in future NOx emissions is negligible. The commission agrees that 

the use ofbiogas as fuel is beneficial and preferential to sending the biogas 

to a flare for destruction. Lastly, all emissions from lean-bum engines fired 

on biogas will be accounted for in future SIP revisions. No change has been 

made to the rule based on this comment. 

Statutory Authority 

The amendment is adopted under the authority of Texas Government Code, §2001.021, 

Petition for the Adoption of Rules, which authorizes an interested person to petition a 

state agency for the adoption of a rule; Texas Water Code (TWC), §5.102, General 

Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorize the 

commission to adopt rules necessary to carry out its powers and duties under the TWC); 

Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), §382.017, Rules, 

which authorizes the commission to adopt rules consistent with the policy and purposes 

17 
of the TCAA; THSC, §382.002, Policy and Purpose, which establishes the commission's 

purpose to safeguard the state's air resources, consistent with the protection of public 

health, general welfare, and physical property; THSC, §382.011, General Powers and 

Duties, which authorizes the commission to control the quality of the state's air; and 

THSC, TCAA, §382.012, State Air Control Plan, which authorizes the commission to 

prepare and develop a general, comprehensive plan for the control of the state's air. The 

amendment is also adopted under THSC, §382.016, Monitoring Requirements; 

Examination of Records, which authorizes the commission to prescribe requirements 

for owners or operators of sources to make and maintain records of emissions 

measurements; THSC, §382.021, Sampling Methods and Procedures, which authorizes 

the commission to prescribe sampling methods and procedures; and THSC, §382.051, 

Permitting Authority of Commission; Rules, which authorizes the commission to adopt 

rules as necessary to comply with changes in federal law or regulations applicable to 

permits under THSC, Chapter 382. The amendment is also adopted under Federal Clean 

Air Act (FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to 

submit state implementation plan revisions that specify the manner in which the 

National Ambient Air Quality Standard will be achieved and maintained within each air 

quality control region of the state. 

The adopted amendment implements TWC, §5.103 and §5.105; THSC, §§382.002, 

382.011, 382.012, 382.016, 382.017, 382.021, 382.051; and FCAA, 42 USC, §§7401 et 

seq. 

18 
STAFF 

RECOMMENDATIONS
SUBCHAPTER D: COMBUSTION CONTROL AT MINOR SOURCES IN 

OZONE NONATTAINMENT AREAS 

DIVISION 2: DALLAS-FORT WORTH EIGHT-HOUR OZONE 

NONATTAINMENT AREA MINOR SOURCES 

§117.2110 

§117.2110. Emission Specifications for Eight-Hour Attainment 

Demonstration. 

(a) The owner or operator of any source subject to this division (relating to 

Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources) shall not 

allow the discharge into the atmosphere emissions of nitrogen oxides (NOx) in excess of 

the following emission specifications. 

(1) Emission specifications for stationary, gas-fired, reciprocating internal 

combustion engines are as follows: 

(A) rich-bum engines: 

(i) fired on landfill gas, 0.60 grams per horsepower-hour 

(gfhp-hr); and 

(ii) all other rich-bum engines, 0.50 gfhp-hr; and 

1 
(B) lean-burn engines: 

(i) placed into service before June 1, 2007, that have not 

been modified, reconstructed, or relocated on or after June 1, 2007, 0.70 g/hp-hr; and 

(ii) placed into service, modified, reconstructed, or relocated 

on or after June 1, 2007: 

(I) fired on landfill gas or other biogas, o.6o g/hp-hr; 

and 

(II) all other lean-burn engines, 0.50 g/hp-hr. 

(2) The emission specification for stationary, dual-fuel, reciprocating 

internal combustion engines is 5.83 g/hp-hr. 

(3) Emission specifications for stationary, diesel, reciprocating internal 

combustion engines are as follows: 

(A) placed into service before March 1, 2009, that have not been 

modified, reconstructed, or relocated on or after March 1, 2009, the lower of n.o g/hphr or the emission rate established by testing, monitoring, manufacturer's guarantee, or 

manufacturer's other data; and 

2 
(B) for engines not subject to subparagraph (A) of this paragraph: 

(i) with a horsepower (hp) rating of so hp or greater, but less 

than 100 hp, that are installed, modified, reconstructed, or relocated on or after March 

1, 2009, 3·3 g/hp-hr; 

(ii) with a horsepower rating of 100 hp or greater, but less 

than or equal to 750 hp, that are installed, modified, reconstructed, or relocated on or 

after March 1, 2009, 2.8 g/hp-hr; and 

(iii) with a horsepower rating of 750 hp or greater that are 

installed, modified, reconstructed, or relocated on or after March 1, 2009, 4.5 gfhp-hr. 

(4) As an alternative to the emission specifications in paragraphs (1) - (3) 

of this subsection for units with an annual capacity factor of 0.0383 or less, o.o6o 

pound per million British thermal units Ob/MMBtu) heat input. For units placed into 

service on or before December 31, 2000, the annual capacity factor as of December 31, 

2000, must be used to determine eligibility for the alternative emission specification of 

this paragraph. For units placed into service after December 31, 2000, a 12-month 

rolling average must be used to determine the annual capacity factor. 

(5) For the purposes of this subsection, the terms "modification" and 

"reconstruction" have the meanings defined in §116.10 of this title (relating to General 

3 
Definitions) and 40 Code of Federal Regulations §60.15 (December 16, 1975), 

respectively, and the term "relocated" means to newly install at an account, as defined in 

§101.1 of this title (relating to Definitions), a used engine from anywhere outside that 

account. 

(b) The averaging time for the NOx emission specifications of subsection (a) of 

this section is as follows: 

(1) if the unit is operated with a NOx continuous emissions monitoring 

system (CEMS) or predictive emissions monitoring system (PEMS) under §117.2135(c) 

of this title (relating to Monitoring, Notification, and Testing Requirements), either as: 

(A) a rolling 30-day average period, in the units of the applicable 

standard; 

(B) a block one-hour average, in the units of the applicable 

standard, or alternatively; 

(C) a block one-hour average, in pounds per hour, for boilers, 

calculated as the product of the boiler's maximum rated capacity and its applicable limit 

in lb/MMBtu; or 

4 
(2) if the unit is not operated with a NOx CEMS or PEMS under 

§n7.2135(c) of this title, a block one-hour average, in the units of the applicable 

standard. 

(c) The maximum rated capacity used to determine the applicability of the 

emission specifications in subsection (a) of tllis section must be the greater of the 

following: 

(1) the maximum rated capacity as of December 31, 2000; or 

(2) the maximum rated capacity after December 31, 2000. 

(d) A unit's classification is determined by the most specific classification 

applicable to the unit as of December 31, 2000. For example, a unit that is classified as a 

stationary gas-fired engine as of December 31, 2000, but subsequently is authorized to 

operate as a dual-fuel engine, must be classified as a stationary gas-fired engine for the 

purposes of this chapter. 

(e) Changes after December 31, 2000, to a unit subject to an emission 

specification in subsection (a) of this section (ESAD unit) that result in increased NOx 

emissions from a unit not subject to an emission specification in subsection (a) of this 

section (non-ESAD unit), such as redirecting one or more fuel or waste streams 

containing chemical-bound nitrogen to an incinerator or a flare, is only allowed if: 

5 
(1) the increase in NOx emissions at the non-ESAD unit is determined 

using a CEMS or PEMS that meets the requirements of §117.2135(c) of this title, or 

through stack testing that meets the requirements of §n7.2135(f) of this title; and 

(2) emission credits equal to the increase in NOx emissions at the nonESAD unit are obtained and used in accordance with §n7.98oo of this title (relating to 

Use of Emission Credits for Compliance). 

(f) A source that met the definition of major source on December 31, 2000, is 

always classified as a major source for purposes of this chapter. A source that did not 

meet the definition of major source (i.e., was a minor source, or did not yet exist) on 

December 31, 2000, but becomes a major source at any time after December 31, 2000, 

is from that time forward always classified as a major source for purposes of this 

chapter. 

(g) The availability under subsection (a)(4) of this section of an emission 

specification for units wit!I an annual capacity factor of 0.0383 or less is based on the 

unit's status on December 31, 2000. Reduced operation after December 31, 2000, 

cannot be used to qualify for a more lenient emission specification under subsection 

(a)(4) of this section than would otherwise apply to t!Ie unit. 

(h) No person shall allow t!Ie discharge into the atmosphere from any unit subject 

to NOx emission specifications in subsection (a) of this section, emissions in excess of 

6 
the following, except as provided in §117.2125 of this title (relating to Alternative Case 

Specific Specifications): 

(1) carbon monoxide (CO), 400 ppmv at 3.0% oxygen (0.), dry basis (or 

alternatively, 3.0 g/hp-hr for stationary internal combustion engines): 

(A) on a rolling 24-hour averaging period, for units equipped with 

CEMS or PEMS for CO; and 

(B) on a one-hour average, for units not equipped with CEMS or 

PEMS for CO; and 

(2) for units that inject urea or ammonia into the exhaust stream for NOx 

control, ammonia emissions of 10 ppmv at 15% o., dry, for gas-fired lean-burn engines; 

and 3.0% 02, dry, for all other units, based on: 

(A) a block one-hour averaging period for units not equipped with a 

CEMS or PEMS for ammonia; or 

(B) a rolling 24-hour averaging period for units equipped with 

CEMS or PEMS for ammonia. 

(i) An owner or operator may use emission reduction credits as specified in 

§117.9800 of this title to comply with the NOx emission specifications of this section. 

7 
La anna Ga•*c',<: ChiC ~lorl<, 

r .... ce"'"''"'"''" au ~'lV"Ilf1'il'lllfPI llYalily ORDER ADOPTING AMENDED RULE AND REVISION TO THE STATE 

IMPLEMENTATION PLAN 

Docket No. 2010-1152-RUL 

On Apri12o, 2011, the Texas Commission on Environmental Quality (Commission), 

during a public meeting, considered adoption of amended 30 Texas Administrative Code 

§117.2110(a)(1)(B)(ii)(I). The Commission adopts this amendment, in Chapter 117, Control of 

Air Pollution from Nitrogen Compounds, Subchapter D, Combustion Control at Minor Sources 

in Ozone Nonattainment Areas, Division 2, Dallas-Fort Worth 1997 Eight-Hour Ozone 

Nonattainment Area Minor Sources; and corresponding revision to the state implementation 

plan (SIP). The adopted amendment expands the emission specification for lean-burn engines 

fired on landfill gas to include lean-burn engines fired on biogas at minor sources of nitrogen 

oxides (NOx) in the DFW 1997 eight-hour owne nonattainment area. The adopted rule revision 

will require owners or operators of stationary gas-fired, lean-burn internal combustion engines 

fired on biogas fuels other than landfill gas that are installed, modified, reconstructed, or 

relocated on or after June 1, 2007, to comply with a NOx emission limit of o.6o grams per 

horsepower-hour (gfhp-hr). Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 

382.023 (Vernon 2001), the Commission has the authority to control the quality of the state's air 

and to issue orders consistent with the policies and purposes of the Texas Clean Air Act, Chapter 

382 of the Tex. Health & Safety Code. The proposed rules were published for comment in the 

November 19, 2010, issue of the Texas Register (35 TexReg 10162). 

Pursuant to Tex. Health & Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't 

Code Chapter 2001 (Vernon 2008), and 40 Code of Federal Regulations§ 51.102, and after 

proper notice, the Commission scheduled a public hearing to consider the amended rule and 

revision to the SIP. Proper notice included prominent advertisement in the areas affected at 

least 30 days prior to the date of the hearing. A public hearing for this rulemaking was 

scheduled on December 14, 2010, in Fort Worth, Texas. The hearing was not officially opened, 

because no one requested to present oral testimony. 

The Commission circulated hearing notices of its intended action to the public, 

including interested persons, the Regional Administrator of the United States Environmental 

Protection Agency (EPA), and all applicable local air pollution control agencies. The public was 

invited to submit data, views, and recommendations on the proposed amended rule and SIP 

revision, either orally or in writing, at the hearing or during the comment period. Prior to the 

scheduled hearing, copies of the proposed amended rule and SIP revision were available for 

public inspection at the Commission's central office and on the Commission's Web site. · 

Data, views, and recommendations of interested persons regarding the proposed 

amended rule and SIP revision were submitted to the Commission during the comment period 

and were considered by the Commission as reflected in the analysis of testimony incorporated 

by reference to this Order. The Commission finds that the analysis of testimony includes the 
names of all interested groups or associations offering comment on the proposed amended rule 

and the SIP revision and their position concerning the same. 

. IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rule 

and revision to the SIP incorporated by reference to this Order are hereby adopted. The 

Commission further authorizes staff to make any non-substantive revisions to the rule necessary 

to comply with Texas Register requirements. The adopted rule and the preamble to the adopted 

rule and the revision to the SIP are incorporated by reference in this Order as if set forth at 

length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the 

Commission, the Chairman should transmit a copy of this Order, together with the adopted rule 

and revision to the SIP, to the Regional Administrator of EPA as a proposed revision to the 

Texas SIP pursuant to the Federal Clean Air Act, codified at 42 U.S. Code Ann. §§ 7401- 7671q, 

asamended. · 

This Order constitutes the Order of the Commission required by the 

Administrative Procedure Act, Tex. Gov't Code, § 2001.033 (Vernon 2008). 

If any portion of this Order is for any reason held to be invalid by a court of 

competent jurisdiction, the invalidity of any portion shall not affect the validity of the remaining 

portions. 

Dateissued: APR 2 9 2011 

TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

~.,.L~ ;n: Shaw, Ph.D., Chairman 
EPA has proposed changes to e isting PM test methods in order to more accurately measure ~· EPA recognizes there are 

technical issues that need to be solved. TIP states that rule 

comments reflect a strong desire r EPA to consider other PM,. 

measurement approaches. The are concerns with sources being required to perfonn an emis ion test to demonstrate compliance with a PM~ PSD penni! mission limit when there are 

no federally approved methods, nd significant technical issues 

remain associated with the test ethods for measuring PM,.. 

TCEQ should allow regulated e ities to use test methods that 

are shown to be equivalent rath r than limiting sources to only 

the method or methods promulg ted by EPA. EPA issued additional PM,. rules on October 20 2010, establishing significant 

impact levels and de minimis m itoring levels for PM,.. TIP is 

concerned that this proposal doe not address the concepts established in that rulemaking. 

The commission did not mak any changes to the rule in 

response to these comments. PA proposed rulemaking for 

repealing the Grandfathered P isions, Implementation of the 

NSR Program for PM,; Noli of Proposed Rulemaking to 

repeal Grandfathering Provision nd the end to the PM,. Surr<>-

gate policy prior to the May 16, 2011 deadline, which has not 

been finalized. In efforts to ens the TCEQ meets regulatory 

requirements of the FCAA, the mmission is adopting amendments to add specific definitions related to PM,. regulation and 

to address known requirements or implementation. 

Subsequent to receipt of TIP's mments, EPA published the final rule on the Methods for Mea urement of Filterable PM,. and 

PM, and Measurement of Cond nsable PM Emissions (75 Federal Register80118, December 1, 2010}. 

This adoption addresses known equirements to date in order to 

meet the May 16, 2011 deadlin for implementation of the PM~ 

requirements and the end of th PM,. Surrogate policy. TCEQ 

will consider any Mure rulemak g as necessary to address future state or federal regulatory r uirements. 

Statutory Authority 

The amendment is adopted un er Texas water Code (TWC}, 

§5.1 02, concerning General Po ers, that provides the commission with the general powers t carry out its duties under the 

TWC; §5.103, concerning Rule , and §5.105, concerning General Policy, which authorize the mmission to adopt rules necessary to carry out its powers nd duties under the TWC; and 

under Texas Health and Safe Code (THSC}, §382.017, concerning Rules, which authoriz the commission to adopt rules 

consistent with the policy and rposes of the Texas Clean Air 

Act. The amendment is also a opted under THSC, §382.002, 

concerning Policy and Purpose which establishes the commission purpose to safeguard the tate's air resources, consistent 

with the protection of public hea h, general welfare, and physical 

property; §382.003, conoeming Definitions; §382.011, conoeming General Powers and Dutie , which authorizes the commission to control the quality of the tate's air; §382.012, concerning 

State Air Control Plan, which a thorizes the commission to prepare and develop a general, co prehensive plan for the control 

of the state's air; §382.051, oeming Permitting Authority of 

Commission; Rules, which aut orizes the commission to issue 

a penni! by rule for types of I cililies that will not significantiy 

contribute air contaminants tot e atmosphere; §382.0513, conoeming Permit Conditions, whi h authorizes the commission to 

establish and enforce permit nditions; and §382.0514, concerning Sampling, Monitoring, nd Certification. 

The adopted amendment i laments THSC, §§382.002, 

382.003,382.011,382.012,382 051,382.0513, and 382.0514. 

This agency hereby certifies that e adoption has been reviewed 

by legal counsel and found to b a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Sec tary of State on April 25, 2011. 

TRD-201101536 

Robert Martinez 

Director, Environmental Law DMsi 

Texas Commission on Environmen I Quality 

Elledive date: May 15, 2011 

Proposal publication date: Novemb r 19, 2010 

For furttler information, ptease call: (512) 239-0779 

• • 

CHAPTER 117. CON1ROL OF AIR 

POLLUTION FROM NllROGEN COMPOUNDS 

SUBCHAPTER D. COMBUSTION 

CON1ROL AT MINOR SOURCES IN 

OZONE NON ATTAINMENT AREAS 

DIVISION 2. DALLAS-FORT WORTH 

EIGHT-HOUR OZONE NONATTAINMENT 

AREA MINOR SOURCES 

30 TAC §117.2110 

The Texas Commission on Environmental Quality (TCEQ or 

commission} adopts the amendment to §117.2110. 

Section 117.2110 is adopted without changes to the proposed 

text as published in the November 19,2010, issue of the Texas 

Register (35 TexReg 1 0162} and the text will not be republished. 

The amendment will be submitted to the United States Environmental Protection Agency (EPA} as a revision to the state implementation plan (SIP}. 

Background and Summary of the Factual Basis for the Adopted 

Rule 

On April 27, 2010, Ameresco of Texas (petitioner} submitted a 

petition for rulemaking (Project Number 2010-026-PET-NR} requesting an amendment to Chapter 117, Subchapter D, Division 

2, §117.2110 for the Dallas-Fort Worth (DFW) 1997 eight-hour 

ozone nonattainment area. The commission approved the petition for rulemaking on June 16, 2010, and issued an order 

on June 22, 2010, directing the executive director to examine 

the issues in the petition and to initiate rulemaking. Currently, 

§117.2110 limits nitrogen oxides (NO,} emissions from stationary 

gas-fired, lean-burn engines installed, modified, reconstructed, 

or relocated on or after June 1, 2007, to 0.60 grams per horsepower-hour (glhp-hr} if fired on landfill gas and 0.50 glhp-hr for 

all other lean-bum engines. The adopted change will expand the 

emission specificetion for lean-bum engines fired on landfill gas 

to include lean-bum engines fired on biogas at minor sources of 

NO, in the DFW 1997 eight-hour ozone nonattainment area. 

Landfill gas and other biogas are produced from anaerobic digestion or decomposttion of mganic matter and have similar fuel 

and combustion characteristics. Both landfill gas and other bi<>-

gas can contain contaminants such as sulfur, chlorine, and silADOPTED RULES May 6, 2011 36 TexReg 2855 
icon, which are present in other gaseous fuels. Consequently, 

engines fired on landfill gas and other biogas can have technological feasibility issues with regard to the installation of a NO, 

control catalyst because these contaminants can resuH in catalyst failure or deactivation in hours or days. The technological 

feasibility issues with regard to the installation of a NO, control 

catalyst is the basis for the 0.60 glhp-hr emission standard in the 

current rule and the justification for the adopted expansion of the 

existing emission specification to include lean-bum engines fired 

on biogas at minor sources of NO, in the DFW 1997 eight-hour 

ozone nonattainment area. 

Demonstrating Noninterference under Federal Clean Air Act 

(FCAA), §110(1) 

The commission provides the following information to demonstrate why the adopted change to expand the emission specification in §117.2110(a)(1)(B)(ii)(l) will not negatively impact the 

status of the state's attainment with the 1997 eight-hour ozone 

National Ambient Air Quality Standard (NAAQS), will not interfere with control measures, and will not prevent reasonable further progress toward attainment of the ozone NAAQS. The commission acknowledges that the DFW area failed to attain the 

1997 eight-hour ozone NAAQS by the June 15, 2010, attainment deadline based on monitoring data; however, the adopted 

rule change will not adversely affect the ability of the DFW area 

to attain the 1997 eight-hour ozone NAAQS for the reasons discussed in this preamble. 

The requirement for reasonable notice and public hearing was 

satisfied through a public hearing scheduled for December 14, 

2010, and the public comment period, held November 19, 2010, 

to December 20, 2010. The purpose of the hearing was to accept written and oral comments on the proposed rulemaking. A 

written comment was submitted by the EPA. The EPA stated their 

agreement wijh the commission's § 11 0(1) determination that the 

proposed rulemaking will not intarfere with attainment or maintenance of the 1997 eight-hour ozone NAAQS in the DFW area. 

On May 23, 2007, as part of the DFW attainment demonstration, the commission adopted a new Chapter 117, Subchapter 

D, Division 2 with new emission control requirements for minor 

industrial, commercial, or institutional sources of NO, in the DFW 

1997 eight-hour ozone nonattainment area. Subchapter D, Division 2 requires owners or operators of minor sources of NOJ( in 

the DFW 1997 eight-hour ozone nonattainment area to reduce 

NO, emissions from affected stationary internal combustion engines. A minor source of NO, in the DFW 1997 eight-hour ozone 

nonattainment area is any stationary source, or group of sources 

located within a contiguous area and under common control that 

emits or has the potential to emij less than 50 tons per year of 

NO,. 

One source category newly regu Ia ted under Chapter 117 

during the 2007 rulemaking was lean-bum engines at minor 

sources. The current applicable NO emission specification in 

§117.2110(a)(1)(B)(ii)(ll) for gas-fired, lean-bum engines using 

gaseous fuels other than landfill gas that are installed, modified, 

reconstructed, or relocated on or alter June 1, 2007, is 0.50 

glhp-hr. During the 2007 rulemaking, no landfill gas-fired engines were identified in the emissions inventory in the counties 

impacted by the proposed rule; however, the emission specification of 0.60 g/hp-hr for gas-fired engines fired on landfill gas 

established by §117.2110(a)(1)(B)(ii)(l) is consistent with the 

emission specification for this category of engines in the Houston-Galveston-Brazoria 1997 eight-hour ozone nonattainment 

area. 

36 TexReg 2856 May 6, 2011 Texas Register 

In the 2007 Chapter 117 rulemaking for the DFW 1997 eight-hour 

ozone attainment demonstration, no gas-fired engines fired on 

biogas or other non-landfill gaseous fuels were relied upon for 

creditable reductions for the SIP. Therefore, if the petitioner's 

proposed change is adopted, allowing the slightly higher emission specification of 0.60 glhp-hr on gas-fired engines fired on 

other biogas fuels would not result in a loss of any SIP creditable reductions for the DFW 1997 eight-hour ozone nonattainment area. 

The adopted change is limtted to a narTOW category of stationary 

gas-fired engines with NO, controls that were not relied upon 

in the DFW 1997 eight-hour ozone attainment demonstration 

adopted in 2007, and the resulting change in Mure NO, emissions is negligible. Furthermore, if the rulemaking is not adopted 

and the petitioner is not able to comply with the 0.50 glhp-hr 

emission limij or purchase credits to offset the surplus emissions, 

the petitioner may be forced to abandon the project. This outcome could actually resuH in a net NO, emissions increase that 

is more than the 0.02 tons per day increase anticipated if the 

rule is adopted. If the company is forced to send the emission 

stream to a flare for destruction rather than use the stream as 

a fuel source in the engines, the total uncontrolled NO, emissions could exceed that of the controlled emissions under the 

proposed emission limij, because flares are exempt from NO, 

emission limijs under Chapter 117. Based on these factors, the 

commission has determined that the adopted rule change will 

not negatively impact the status of the state's attainment demonstration for the 1997 eight-hour ozone NAAQS, will not interfere 

with control measures, and will not prevent reasonable further 

progress toward attainment of the ozone NAAQS. 

Section Discussion 

Section 117.2110, Emission Specifications for Eight-Hour Attainment Demonstration 

The comm1ss1on adopts the amendment to 

§117.2110(a)(1)(B)(ii)(l) to expand the emission specification 

for lean-bum engines fired on landfill gas to include lean-bum 

engines fired on biogas at minor sources of NO, in the DFW 

1997 eight-hour ozone nonattainment area. The adopted 

rule revision will require owners or operators of stationary 

gas-fired, lean-bum internal combustion engines flred on 

biogas fuels other than landfill gas that are installed, modified, 

reconstructed, or relocated on or after June 1, 2007, to comply 

with a NO, emission limij of 0.60 g/hp-hr. 

In addition to the adopted rule revision, the commission adopts 

non~ubstantive formatting changes to conform with current 

Texas Register format requirements. These non-substantive 

changes are not intended to attar the existing rule requirements 

in any way and are not specifically discussed in this preamble. 

Final Regulatory Impact Analysis Determination 

The commission reviewed the adopted rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225 and determined that the adopted rule does not meet 

the definition of a "major environmental rule." Texas Government 

Code, §2001.0225 states that a "major environmental rule" is, 

"a rule the specific intent of which is to protect the environment 

or reduce risks to human health from environmental exposure 

and that may adversely affect in a material way the economy, a 

sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector 

of the state." Furthermore, while the adopted rulemaking does 

not constitute a major environmental rule, even if it did, a regula-
tory imp~ct analysis would not be required because the adopted 

rulemak1ng does not meet any of the four applicability criteria for 

requiring a regulatory impact analysis for a major environmental rule. Texas Govemment Code, §2001.0225 applies only to a 

major enVIronmental rule which, "(1) exceeds a standard set by 

federal law, unless the rule is specifically required by state law· 

(2) exceeds an express requirement of state law, unless the rule 

is specifically required by federal law; (3) exceeds a requirement 

of a delegation agreement or contract between the state and an 

agency or representative of the federal government to implement 

a state and federal program; or (4) adopts a rule solely under the 

general powers of the agency instead of under a specific state 

law." 

The adopted rulemaking implements requirements of the FCAA. 

Under 42 United States Code (USC), §7410, each state is required 1o adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS 

within the state. While 42 USC, §7410 generally does notreqwre specific programs, methods, or reductions in order to meet 

the standard, a SIP must include "enforceable emission limitations and other control measures, means or techniques (includIng economic incentives such as fees, marketable penmits and 

auctions of emissions rights), as well as schedules and ti,;,etebles for compliance as may be necessary or appropriate to meet 

the applicable requirements of this chapter." (meaning Chapter 

85, Air Pollution Prevention and Control, otheiWise known as the 

FCAA). The provisions of the FCAA recognize that states are in 

the best position to detenmine what programs and controls are 

necessary or appropriate in order 1o meet the NAAQS. This flexibility allows states, affected industry, and the public, 1o collaborate on the best methods for attaining the NAAQS for the specific 

regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state 

from developing a program that meets the requirements of 42 

USC, §7410. States are not free 1o ignore the requirements of42 

USC, §7410, and must develop programs and control measures 

to assure that their SIP provides for implementation attainment 

maintenance, and enforcement of the NAAQS within the state.' 

The specific _intent of the adopted rulemaking is to provide 

lair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area. The current applicable NO, em1ssion specification in §117.2110(a)(1)(B)(ii)(ll) for 

gas-fired, lean-bum engines using gaseous fuels other than 

landfill gas that are installed, modified, reconstructed, or relocated on or alter June 1, 2007, is 0.50 g/hp-hr. The current 

applicable NO, emission specification in §117.2110(a)(1 )(B)(ii)(l) 

for gas-fired engines fired on landfill gas is 0.60 g/hp-hr. Landfill 

gas and other biogas are produced from anaerobic digestion 

or decomposition of organic matter and have similar fuel and 

combustion characteristics. Both landfill gas and other biogas 

can contain contaminants such as sulfur, chlorine, and silicon. 

Consequentiy, engines fired on landfill gas and other biogas 

can have technological feasibility issues with regard to the 

installation of a NO, control catalyst, because these contaminants can result in catalyst failure or deactivation in hours or 

days. The technological feasibility issues with regard to the 

Installation of a NO control catalyst is the basis for the 0.60 

g/hp-hr emission standard in the current §117.2110(a)(1 )(B)(ii)(l) 

and the J ust1fication for th~ adopted expansion of the existing 

em1ss1on specification to Include lean-bum engines ftred on 

biogas at minor sources NO, in the DFW 1997 eight-hour ozone 

nonatta~nment area. To further the specific intent of providing 

lair and consistent appl1cat1on of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area, the adopted rule will 

expand the current §117.2110(a)(1)(B)(ii)(l) to include biogas 

other than landfill gas. 

The adopted rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) 

because: 1) the spec1f1c 1ntent of the adopted rule is not 

to protect the environment or reduce risks to human health 

from. environmental exposure, but rather to provide fair and 

cons1stent ap~l1cation of SIP rules in the DFW eight-hour 

ozone nonatta1nment _area by providing a specific expansion 

of §117.2110(a)(1)(B)(II)(I) to apply to biogas other than landfill 

gas; and 2) the adopted rulemaking will not adversely affect in a 

material way the economy, a sector of the economy, productivity 

competition, or jobs, nor wiU the adopted rule adversely affect 

1n a matenal way the env1ronment or the public health and 

safety of the state or a sector of the state. Because the adopted 

rulemak~ng IS not a major environmental rule, it is not subject 

to a regulalory impact analysis under Texas Government Code 

§2001.0225. • 

WhHe the adopted rulemaking does not constitute a major 

enVIronmental rule, even if it did tt would not be subject to a 

regulatory impact assessment under Texas Government Code 

§2001.0225. The requirement to provide a fiscal analysis oi 

regulations in the Texas Government Code was amended by 

Senate Bill (SB) 633 during the 75th Legislature, 1997. The 

1ntent of 58 633 was to require agencies to conduct a regulatory 

impact analysis of extraordinary rules. These are identified in 

the statutory language as major environmental rules that will 

have a material adverse impact and will exceed a requirement 

of state law, federal law, or a delegated federal program, or are 

adopted solely under the general powers of the agency. With 

the understandi"\1 that this requirement would seldom apply, the 

comm1ss1on prov1ded a cost estimate for 58 633 that concluded: 

"based on an assessment of rules adopted by the agency in 

the past, tt 1s. not antiCipated that the bill will have significant 

fiscal Implications for the agency due to its limited application. • 

The commission also noted that the number of rules that would 

require assessment under the provisions of the bill was not 

large: This conclusion was based, in part, on the criteria set 

forth 1n the bill that exempted rules from the full analysis unless 

the rule was a major environmental rule that exceeds a federal 

law. 

The FCAA does not always require specific programs methods 

or reductions in order to meet the NAAQS; thus, state~ must de: 

velop programs for each nonattainment area to help ensure that 

those areas will meet the attainment deadlines. Because of the 

ong~ing need to address nonattainment issues, and to meet the 

reqwrements of 42 USC, §7 410. the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule adopted for inclusion 

in the SIP was considered to be a major environmental rule that 

exceeds federal law, then every SIP rule would require the full 

regulatory impact analysis contemplated by 58 633. This concl~si?n is inconsistent with the conclusions reached by the commiSSion 1n 1ts cost estimate and by the Legislative Budget Board 

(LBB) in its fiscal notes. Since the legislature is presumed to 

understand the fiscal impacts of the bills tt passes and that presumption is basad on infonmation provided by state agencies and 

the LBB, the commission believes that the intent of 58 633 was 

only to require the full regulatory impact analysis for rules that 

are extraordinary in nature. While the SIP rules have a broad 

impact. that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, 

ADOPTED RULES May 6, 2011 36 TexReg 2857 
rules adopted for inclusion in the SIP fall under the exception in 

Texas Government Code, §2001.0225(a}, because they are required by federal law. 

The commission has consistently applied this construction to 

its rules since this statute was enacted in 1997. Since that 

time, the legislature has revised the Texas Government Code 

but left this provision substantially unamended. It is presumed 

that, "when an agency intei]Jretation is in effect at the time the 

legislature amends the laws without making substantial change 

1n the statute, the legislature is deemed to have accepted the 

agency's intei]Jretation." Central Power & Light Co. v. Shai]J, 

919 S.W.2d 485, 489 (Tex. App. Austin 1995}, writ denied with 

per curiam opinion respecting another issue, 960 S.W.2d 617 

(Tex. 1997}; Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 

(Tex. App. Austin 1990, no writ}. Cf. Humble Oil & Refining 

Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967}; Dudney v. State 

Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 

2000}; Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 

581 (Tex. App. Austin 2000, pel denied}; and Coastal lndusl 

water Aulh. v. Trinity Portland Cement Div., 563 S.W.2d 916 

(Tex. 1978}. 

The commission's .intei]Jretation of the regulatory impact analysis reqUirements 1s also supported by a change made to the 

Texas Administrative Procedure Act (APA} by the legislature in 

1999. In an attempt to lim~ the number of rule challenges based 

upon APA requirements, the legislature clarified that state agenCies are required to meet these sections of the APA against the 

standard of "substantial compliance" (Texas Government Code, 

§2001.035}. The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. The 

commission has substantially complied with the requirements of 

Texas Government Code, §2001.0225. 

Regardless of whether the adopted rulemaking consiliutes 

a major environmental rule under Texas Government Code 

§2001.0225(g}(3}, a regulatory impact analysis is not required 

because th1s rule 1s part of the commission's SjP for making progress toward the attainment and maintenance of the 

eight-hour ozone NAAQS in the DFW nonattainment area. 

Therefore, the adopted rule does not exceed a standard set by 

federal law or exceed an express requirement of state law since 

the rule is part of an overall regulatory scheme desig~d to 

meet, not exceed the relevant standard set by federal law - the 

NAAQS. The commission is charged with protecting air quality 

within the state and to design and submtl a plan to achieve 

attainment and maintenance of the federally mandated NAAQS. 

The Third District Court of Appeals upheld this intei]Jretation 

in Brazoria County v. Texas Comm'n on Envti. Qualtly, 128 

S.W. 3d 728 (Tex. App. -Austin 2004, no writ}. jn addition, 

no contract or delegation . agreement covers the topic that is 

the subject of th1s ru1emak1ng. Finally, this rulemaking was not 

developed solely under the general powers of the agency but 

IS authorized by specific sections of Texas Health and Safety 

Code (THSC}, Chapter 382 (also known as the Texas Clean Air 

Act}, and the Texas water Code (TWC}, which are cited in the 

STATUTORY AUTHORITY section of this preamble, including 

THSC, §§382.011, 382.012, and 382.017. 

This rulemaking is not subject to the regulatory analysis proviSions of Texas Government Code, §2001.0225(b}, for the following reasons. The adopted rulemaking is not a major environmental law because: 1} the specific intent of the adopted rule is not 

to protect the environment or reduce risks to human health from 

environmental exposure, but retherto provide fair and consistent 

36 TexReg 2858 May 6, 2011 Texas Register 

application of SIP rules in the DFW 1997 eight-hour ozone nonatta~nment area; and 2} the adopted rulemaking will not adversely 

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

productiVIty, competition, or jobs, nor will tl adversely affect in 

a material way the environment, or the public health and safety 

of the state or a sector of the state. Furthermore, even if the 

adopted rulemaking was a major environmental rule, tl does not 

meet any of the four applicabiltly criteria listed in Texas Government Code, §2001.0225 because: 1} the adopted rulemaking 

IS part of the DFW SIP, and as such is designed to meet, not 

exceed the relevant standard set by federal law; 2} no contract 

or delegation agreement covers the topic that is the subject of 

lh1s rulemak1ng; and 3} the adopted rulemaking is authorized by 

specific sections ofTHSC, Chapter 382, and the TWC which are 

cited in the STATUTORY AUTHORITY section of this' preamble. 

The commission invited public comment regarding the draft regulatory 1mpact analysis determination during the public comment 

penod. No comments were received on the draft regulatory impact analysis determination. 

Takings Impact Assessment 

The commission evaluated the adopted rule and performed 

an analysis of whether the adopted rule constitutes a taking 

under Texas Government Code, Chapter 2007. The commission's assessment indicates Texas Government Code, Chapter 

2007 does not apply because this rulemaking provides for 

fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area by expanding the current 

§117.2110(a}(1}(B}(ii}(l} NO, emission specification to include 

biogas other than landfill gas. 

Under Texas Government Code, §2007.002(5}, taking means: 

"(A) a governmental action that affects private real property, in 

whole or in part or temporarily or permanently, in a manner that 

requires the governmental eniliy to compensate the private real 

property owner as provided by the Fifth and Fourteenth Amendments to the United States Consttlution or Section 17 or 19 Article I, Texas Consiliution; or (B) a governmental action thai: (i} 

affects an owner's private real property that is the subject of the 

governmental action, in whole or in part or temporarily or permanenHy, 1n a manner that restricts or limits the owner's right to the 

property that would otheiWise exist in the absence of the governmental action; and (ii} is the producing cause of a reduction of at 

least 25% in the mail<et value of the affected private real pro~ 

erty, determined by comparing the mail<et value of the property 

as if the governmental action is not in effect and the mail<et value 

of the property determined as if the governmental action is in effect." 

The specific pui]JOSe of the adopted rulemaking is to provide 

fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area. The current applicable 

NO, emission specification in §117.2110(a}(1}(B}(ii}(ll} for gasfired, lean-bum engines using gaseous fuels other than landfill gas that are installed, modified, reconstructed, or relocated 

on or after June 1, 2007, is 0.50 glh~hr. The current applicable NO, emission specification in §117.2110(a}(1)(B}(ii}(l} for 

gas-fired engines fired on landfill gas is 0.60 glh~hr. Landfill 

gas and other biogas are produced from anaerobic digestion 

or decompostlion of organic mattar and have similar fuel and 

combustion characteristics. Both landfill gas and other biogas 

can contain contaminants such as sulfur, chlorine, and silicon. 

Consequently, engines fired on landfill gas and other biogas can 

have technological feasibility issues wtlh regard to the installation of a NO, control catalyst because these contaminants can 
resu~ in catalyst failure or deactivation in hours or days. The 

technological feasibility issues with regard to the installation of 

a NO, control catalyst is the basis for the 0.60 g/hp-hr emission 

standard in the current §117.2110{a)(1}{B}{ii}{l} and the justification for the adopted expansion of the existing emission specification to include lean-bum engines fired on biogas at minor 

sources of NO, in the DFW 1997 eight-hour ozone nonattainment area. To further the specific intent of providing fair and 

consistent application of SIP rules in the DFW 1997 eight-hour 

ozone nonattainment area, the adopted rule will broaden the current §117.2110{a}{1 ){B)(ii}{l} to biogas other than landfill gas. 

Promulgation and enforcement of the adopted rule would be neither a staMory nor a constitutional taking of private real property. 

Because the adopted rule promulgates an exemption, the rule is 

less burdensome, restrictive, or limiting of rights to private real 

property than the existing rule. Furthermore, the adopted rule 

will benefit the public by providing fair and consistent application 

of SIP rules in the DFW 1997 eight-hour ozone nonattainment 

area. The adopted rule does not affect a landowner's rights in 

private real property because this rulemaking does not burden, 

restrict, or limit the owner's right to property, nor does it reduce 

the value of any private real property by 25% or more beyond that 

which would otherwise exist in the absence of the regulations. In 

other words, this rule simply expands the existing exemption in 

§117.211 O{a}{1 }{B)(ii}{l} to include sources that have technological feasibility issues similar to those of the sources covered by 

the current exemption. Therefore, the rule will not constitute a 

taking under Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission invited public comment regarding the consistency with the coastal management program {CMP} during the 

public comment period. No comments were received concerning the Texas CMP. 

Effect on Sites Subject to the Federal Operating Permits Program 

Chapter 117 is an applicable requirement under 30 TAC 

Chapter 122, Federal Operating Permits Program. Owners 

or operators subject to the federal operating permits program that elect to comply with the emission specification in 

§117.2110{a}{1}{B}{ii}{l} may need to revise their operating 

permit. 

Public Comment 

A public hearing was scheduled December 14, 2010, at 2:00 

p.m., at the Texas Commission on Environmental Quality Region 4 office in Fort Worth, Texas. The hearing was not officially 

opened, because no one requested to present oral testimony. 

The comment period closed on December 20, 2010. A written 

comment was received from the EPA 

Response to Comments 

The EPA stated its understanding that the proposed revision 

would expand the NO, emission specification for lean-bum 

engines fired on landfill gas to include lean-bum engines fired 

on biogas at minor sources in the DFW 1997 eight-hour ozone 

nonattainment area, and that the revision would allow a stationary diesel engine to be fiJed on biogas. The EPA also 

commented that although TCEQ has projected the potential for 

a small increase in NO)( emissions from engines firing biogas 

resulting from the rule change, because a larger amount of NO, 

emissions could resu~ from the likely alternative of sending the 

gas to a flare, the rulemaking did not appear to conflict with 

FCAA, §110{1}. The EPA also commented that it agreed with 

the commission's determination that the proposed rulemaking 

will not interfere with attainment or maintenance of the 1997 

eight-hour ozone NAAQS in the DFW area and commented that 

the proposed change appeared to be an appropriate revision to 

the SIP given the small amount of emissions change and the 

beneficial use of the biogas. In addition, the EPA requested the 

commission confirm the EPA's understanding of the proposed 

amendment to §117.2110 and requested that emissions from 

engines fired on biogas be accounted for in future SIP revisions. 

The commission appreciates the comment The EPA's understanding of the amendmentto § 117.211 0 is partially correct. The 

amendmentto §117.2110 in this rulemaking only applies to leanbum engines fired on landfill gas and lean-bum engines fired on 

other biogas at minor sources of NO, in the DFW 1997 eight-hour 

ozone nonattainment area; the amendment does not apply to 

stationary diesel engines. The EPA is correct in its understanding that the change is limited to a narrow category of stationary 

gas-fired engines with NO, controls that were not relied upon 

in the DFW 1997 eight-hour ozone attainment demonstration 

adopted in 2007, and the resulting change in future NO, emissions is negligible. The commission agrees that the use of bi<>-

gas as fuel is beneficial and preferential to sending the biogas to 

a flare for destruction. Lastly, all emissions from lean-bum engines fired on biogas will be accounted for in future SIP revisions. 

No change has been made to the rule based on this comment. 

STATUTORY AUTHORITY 

The amendment is adopted under the authority of Texas Government Code, §2001.021, Petition for the Adoption of Rules, which 

authorizes an interested person to petition a state agency for the 

adoption of a rule; Texas water Code {TWC}, §5.1 02, General 

Powers, §5.1 03, Rules, and §5.1 05, General Policy {these provisions authorize the commission to adopt rules necessary to carry 

out its powers and duties under the lWC}; Texas Heaith and 

Safety Code {THSC}, Texas Clean Air Act {TCAA}, §382.017, 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; THSC, §382.002, 

Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the 

protection of public health, general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state's air; 

and THSC, TCAA, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. The amendment is also adopted under THSC, §382.016, Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe requirements for owners or operators of 

sources to make and maintain records of emissions measurements; THSC, §382.021, Sampling Methods and Procedures, 

which authorizes the commission to prescribe sampling methods 

and procedures; and THSC, §382.051, Permitting Authority of 

Commission; Rules, which authorizes the commission to adopt 

rules as necessary to comply with changes in federal law or regulations applicable to permits under THSC, Chapter 382. The 

amendment is also adopted under Federal Clean Air Act {FCAA}, 

42 United States Code {USC}, §§7 401, et seq., which requires 

stetes to submit stele implementation plan revisions that specify 

the manner in which the National Ambient Air Quality Standard 

will be achieved and maintained within each air quality control 

region of the stele. 

ADOPTED RULES May 6, 2011 36 TexReg 2859 
The adopted amendment implements TWC, §5.1 03 and §5.1 05; 

THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 

382.021, 382.051; and FCAA, 42 USC, §§7401 et seq. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on April 25, 2011. 

TRD-2011 01542 

Robert Martinez 

Director, EnVIronmental Law DMslon 

Texas Commission on EnVIronmental Quality 

Effective date: May Hi, 2011 

Proposal publication date: November 19, 201 0 

For further information, please call: (512) 239-2548 

• 

CHAPTER 290. 

• 

DRINKING WATER 

The Texas Commission on nvironmental Quality (TCEQ, 

agency, or commission) adop the amendments to §§290.38, 

290.39, 290.41, 290.42, 290. ' 290.47, 290.111 - 290.115, 

290.119, 290.121, 290.122, 2 0.271, and 290.272, and the 

repeal of §290.117. The ission simultaneously adopts 

new §290.117. 

Sections 290.39, 290.41, 290. 6, 290.112, 290.113, 290.115, 

290.119, 290.271, and 290.27 are adopted with changes to 

the proposed text as publish in the December 10, 2010, 

issue of the Texas Register 35 TexReg 10815). Sections 

290.38, 290.42, 290.47, 290.1 1, 290.114, 290.117, 290.121, 

and 290.122 are adopted with changes to the proposed text 

and will not be republished. 

Background and Summary oft e Factual Basis for the Adopted 

Rules 

The primary purpose of the ad ted rulemaking is to implement 

federal regulations pertaining t the safety of drinking water from 

groundwater and surface wate sources. Federal rules controlling levels of the metals lead a d copper in drinking water have 

been in place since 1991. Lea and copper can leach into drinking water from pipes or solder nder corrosive conditions. The 

federal rules require public w ter systems to monitor for lead 

and copper; monitor for water uality parameters related to corrosivity; perform corrosion cont ol studies; install optimum corrosion control treatment; meet le d and copper action levels; and, 

when action levels are exceed , educate the public. The United 

States Environmental Protecti Agency {EPA) adopted the National Primary Drinking \IVater egulations for Lead and Copper: 

Short-Term Regulatory Revisi s and Clarifications (LCSTR) on 

October 10, 2007. Under 40 ode of Federal Regulations (40 

CF R) §142.1 0, the commissio must adopt rules at least as stringent as the federal rules to mai tain primary enforcement authority (primacy) over public water ystems in Texas. This rulemaking adopts the federal rules for ad and copper and makes minor 

changes for consistency with e adopted federal rules to retain 

primacy for the Safe Drinkin Water Act and its amendments 

{SDWA). In addition, the com ission adopts the rule language 

for lead and copper to reorgan e the state rules to match the organizational structure for othe chemicals in drinking water. The 

intent of this reorganization is assist the regulated community 

by making the rules easier to se. No part of the adopted rule36 TexReg 2860 May 6, 2011 Texas Register 

making differs from the federal req rements or existing Texas 

requirements in stringency. 

This rulemaking also adopts minor hanges to Chapter 290 for 

consistency with the federal Long Te 2 Enhanced Surface \IVatar Treatment Rule (LT2), Stage 2 isinfectants and Disinfection Byproducts Rule (DBP2), and round \IVater Rule (GWR). 

Rule Project Number 2006-045-29 PR incorporated the major 

requirements of the federal L T2, DB 2, and GWR on December 

19, 2007. In the time since that ad ption, as part of the EPA's 

primacy review, the EPA identified me rule elements inadvertently omitted from that rulemaking. hese omissions have been 

corrected in this adopted rulemaki . These changes, though 

important in order to meet primacy, re relatively minor in terms 

of extent and scope. 

Section by Section Discussion 

In addition to implementation of the erallaws discussed previously, the commission adopts ad nistrative changes throughout the adopted rulemaking to refle the agency's current practices and to conform with Texas Re "sterand agency guidelines. 

These changes include updating s-references and correcting typographical, spelling, and gra matical errors. 

Subchapter D: Rules and Regulatio s for Public Water Systems 

The commission adopts the ame dment to §290.38, Definitions. The commission amends§ 0.38{4) and (11) to correct 

references to "certified" laboratori s. On July 1, 2005, the 

commission published rules unde 30 TAC §25.4(f) changing 

the requirements for environmental laboratories, a classification 

that includes laboratories that perfo sample analyses required 

under the SDWA. The rulemaking liminated the historical certification program, and replaced it th an accreditation program 

consistent with 1he environmental laboratory testing program 

known as the National Environme tal Laboratory Accreditation 

Conference standards. Specifical y, the rule stated that after 

the third anniversary of the publi hing in the Texas Register; 

an environmental testing labora ry that provides analytical 

data used for a commission de sian relating to the SDWA 

would no longer be certified, but ust be accredited. The third 

anniversary of publishing was Jun 30, 2008. Therefore, after 

June 30, 2008, laboratories cea ed to be "certified" by the 

agency, and are now "accredited" ccording to 30 TAC §25.4(f). 

The commission amends §290.3 ) to update the reference to 

the American Society for Testing d Materials standards. The 

commission amends §290.38(40) to ensure consistency with 

normal syntax standards by addin a closing parenthesis. 

The commission adopts §290.3 General Provisions. The 

commission amends §290.39(b) t remove the word "a" in order 

to ensure consistency with norm I English usage standards. 

The commission amends §290.39 ) to incorporate requirements 

contained in the federal LCSTR pecifically, the commission 

amends §290.39(j) to contain req irements of the federal rules 

under 40 CFR §§141.82(h), 141. 3{b)(6), and 141.86(d)(4)(vii) 

and (g){4)(iii} that systems seek pproval from the TCEQ for 

any change in treatment that rna affect the corrosivity of the 

water. The commission amend §290.390)(1 )(E) and {F) to 

move the word "and," together wi its sem ico Jon, to the correct 

location in the sequential list of uirements. The commission 

adopts §290.39(j)(1)(G) to inclu the requirements of the new 

federal LCSTR under 40 CFR § 41.90(a)(3) giving examples 

of changes that the TCEQ must a prove before use, consistent 

with requirements of repealed §2 0.117(g}(2)(E). The commission had proposed the addition o language in §290.39(j)(1)(G)