### 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 andPreventing Pollution 

## May 

## 18,2011 

# 0

DocketNo. 2010-1152-RUL Rule ProjectNo. 2010-048-117-EN

Alfredo Armendariz,Ph.D. RegionalAdministrator U.S. Environmental ProtectionAgency- Region 6 1445 RossAvenue Dallas, Texas 75202-2733
Dear Dr. Armendariz: 

## w;o e.nd

## 6RA.~~L.6eN**6DRA.<;:;m~!.l.aw~** 

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OnApril2o, 2011, theTexas Commission on Environmental Quality (Commission) adoptedrevisions to the State Implementation Plan (SIP).
The Commission adopted an amendmentto 30 Texas Administrative Code§ 117.2110 (a)(1)(B)(ii)(I) in Chapter 117, Control ofAir 

## Pollution from Nitrogen Compounds, Subchapter D, Combustion Control atMinor Sources in Ozone NonattainmentAreas, Division 2, Dallas-FortWorth (DFW) 1997 Eight-Hour Ozone Nonattainment Area Minor Sources; and a corresponding revisiontothe SIP. The adopted amendment expands the emission specification for lean-burn engines fired on landfill gas toinclude lean-burn enginesfired onbiogas at minor sources ofnitrogen oxides (NOx) in the DFW 1997 eight-hour ozone nonattainment area. The adopted rule revision 

## will require owners oroperators ofstationarygas-fired, lean-burn internal combustion enginesfired onbiogasfuels otherthan landfill gas that are installed, modified, reconstructed, orrelocated on or afterJune 1, 2007, to comply with a NOx emission limit ofo.6o grams perhorsepower-hour (g/hp-hr).
Enclosed aretheproposed revision to the SIP, a public hearing certification, a complete record ofthe public hearing, and the accompanying order. I lookforward toyour expeditious approval ofthis SIIQ'evision.

BWS/alb Enclosures

cc: The Honorable 

## Rick Perry, Governor ofTexas Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe 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 

### ;o 

## m (") 

## m 

# < m 0

## TEXAS COMMISSION ON ENVIRONMENTAL QuALITY

THE STATE OF TEXAS COUN1YOFTRAVIS This 

## is to certifythatthe attached are true andcorrect copies ofdocuments for revisions to the Texas StateImplementation Plan, adopted onApril2o, 2011, pursuantto 40 Code of Federal Regulations § 

## 51.104 I amthe records administrator for the

## Air Quality Division ofthe Texas Commission onEnvironmental 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 FortWorth

on December 14, 2010, to receive testimony regarding 30 TAC Chapter 117, Control ofAir 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 DallasFortWorth 1997 eight-hour ozone nonattainmentarea. 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 ofthe public hearing and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation ofTestimony

o Staff Recommendations/Order

Additional copies ofthis 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 ofthe 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 ofthe proposed rules in the November 19, 2010, issue ofthe 

### Texas Register (35 TexReg 10162).

3. Publication ofthe 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 ofthe 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 ofAviation 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

### BryanW. Shaw, Ph.D., 

### Chainnan Buddy Garcia, 

### Commissioner Carlos Rubinstein, Commissioner 

### Mark R Vickery, P.G., 

### ExecutiveDirector



## TEXAS COMMISSION ON ENVIRONMENTAL QUALI'IY Protecting Texas by

### Reducing andPreventing Pollution



## NOTICEOFPUBUCHEMUNG ON PROPOSED REVISIONS TO 30TAC 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 ofAir 

## 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 underthe requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102, ofthe 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 otherbiogas can have technological feasibility issues with regard to the installation ofa 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 ofthe existing emission specification to include lean-burn engines fired on biogas at minor sources ofNOx in the DFW 1997eight-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 minutespriorto 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 minutesbefore 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 ofLegal Services, at (512) 239-0779. Requests shouldbe 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 ofthe 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 oforal 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 duringthe bearing; however, com ission staffmembers 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 ofLegal 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 ofAir Pollution from Nitro· gen ComJXlunds; SubchapterD, 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.ot7; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal 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 ofnitrogen oxides (NOx) in the DFW 1997 eight-hour ozone nonattainment area. The current applicable NO, emission specification in §1I7.211 O(a)(l)(B)(ii)(ll) for gas-fired lean-bmn engines using gaseous fuels other than landfill gas that 

### are installed, modified, reconstructed, orrelocated 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 ofa 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 ofa NOx control catalyst isthebasis for the 0.60 glhp-hremission 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 hearingfor the proposedrulemaking and SIP revisionhas 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 GravelRoad, Fort Worth, 

### TX 76118. The hearing 

### will be structured for the receipt oforal 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 ofregistration. A time limit may be established at the bearing to assurethatenough time is allowed for every interested person to speak. There will be no discussion during the hearing; however, commission staffmembers 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 ofLegal 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 20I0-048-117-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 behalfofthe Health and Hwnan Services Commission SC), Department of State Health Services (DSHS), and Department ofFamily and Protective Services (DFPS), announces the issuance o quest for Proposals (RFP) #303· 1-20258. TFC seeks a five (5) or (10) year lease ofapproximately 5,215 square feet ofoffice 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. Neitherthisnotice northe incurred prior to 

### the award ofa Parties interested 

### in submitting a contacting TFC Contract Speciali or sandy.williams@tfc.statc.tx.us. will be posted totheElectronic S ber 10, 2010, andthe 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 BusinessDaily (ESBD). Acopy of



## 35 Tex.Reg 10330 November 19, 2010 Texas RegisterRobert 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 forthe 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 afterJune 1, 2007, 

# u; 0.60 grams per hmsepower-hour (g/hp-hr) iffired 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 enginesfired 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** oforganic 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 ofthe ozone NAAQS. The commission acknowledges that the DFW area failed to attain the 1997 eight-hour ozone NAAQS bythe 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, Divi

### Sion 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, orgroup 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 forthe 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 nonattain

### ment area. The proposed change is**lim~** to a narrow category of stationary gas-fired engines with NO, controls thatwere 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 Registercrease that is more than the 0.02 tons perday 

### (tpd) increase anticipated ifthe rule is adopted. Ifthe 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 interferewtth control measures, and will not prevent reasonable further progress toward attainment of the ozone NAAQS. SECTION DISCUSSION Section 117.2110, Emission Specifications forEight-HourAttainment 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 amendmentwill 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 ofadministration or enforcement ofthe 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 specifiesthat 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 oforganic 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 ifthey use biogas. Making the emission standards for these engines equal to standards for landfill gas engines will allow the company to use biogas thatwould otherwise be considered to be 

### a source 

### ofvolatile 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 1997eight-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 equivalentto 0.02 

### tpd or add controls, which would be expensive and increase downtime at the treatment facility. The wastewatertreatment 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 ofthe 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



## PROPOSEDRULES November 19, 2010 35 TexReg 10163The 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 ofthe 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 ofthe 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 ofthe 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 AirAct (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 meetthe 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 ofthis 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 orderto 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 ignorethe requirements of42 USC, §7410, and must develop programs and control measures to assurethat 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 ofthe 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 Registerlarge. 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 thatthose 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. Ifeach 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 ofthe 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 greaterthan is necessary or appropriate to meet the requirements 

### of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall underthe 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. WaterAuth. 

### 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 ofthe 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 ofthe 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 ifthe 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 topicthat 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 duringthe 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 ofwhether 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, Ar

## PROPOSED RULES November 19, 2010 35 TexReg 10165ticle 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 ortemporarily or pennanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence ofthe 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 ifthe governmental action is not in effect and the marketvalue ofthe property detennined as ifthe 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 thejustification 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 ofprivate 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 ofthe 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 ofthe 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 ofthe 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 ofthis rulemaking may be submitted to the contact person at the address listed under the SUBMITIAL OF COMMENTS section 

### of this preamble. EFFECT ON SITES SUBJECTTOTHE FEDERAL OPERATING PERMITS PROGRAM Chapter 117 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Pennits Program. If the proposed amendmentto Chapter 117 is adopted, owners or operators subjectto the federal operating pennits program that electto 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 oforal orwritten 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 ofthe



## 35 TexReg 10166 November 19, 2010 Texas RegisterTCAA; THSC, §382.002, Policy and Purpose, which establishes the commission's purposeto 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 ofthe 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 applicableto pemnits underTHSC, 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 ofany source subject to this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment AreaMinor Sources) shal1 not allow the discharge into the atmosphere emissiomofnitrogen oxides {NOx) inexcess ofthe 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 beforeJune I, 2007, that have not beenmodified. reconstructed. or relocated onorafterJune I, 2007**~** 0.70 glhp-br; and (ii) placed into service, modified. reconstructed. or relocated on or after June 1, 2007: (I) fired onlandfill gasorotherbiogas, 0.60glhpbr;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, ormanufacturer's other data; and (B) for engines not subject to subparagraph (A) ofthis paragraph: (i) with a horsepower (hp) ratingof50 hp orgreater, but less than I00 bp, that are installed, modified, reconstructed, or relocated on or after March I, 2009, 3.3 glhp-hr; (ii) with a horsepower rating of I00 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 

### inparagraphs (I)

- (3) of this subsection for units with an annual capacity factor of0.0383 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 ofDecember 31, 2000, must be used to detennine eligibility for the alternative emission specification ofthis 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 ofthis subsection, the tenns "modification" and ''reconstruction" have the meanings defined in §116.10 ofthis title (relating to General Definitions) and 40 Code ofFederal Regulations §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at 

### an account, as defined in §I01.1 ofthis title (relatingto Definitions), a used engine from anywhere outside that account. (b) The averagingtime for the Nq)[ emission specifications of subsection (a) ofthis section is as follows: (I) ifthe writ is operated with a 

### NOx continuous emissions monitoring system (CEMS) orpredictive emissiommonitoring system (PEMS) under§117.2135(c) ofthis title (relating to Monitoring, Noti-

. fication, and Testing Requirements), either as: (A) a rolling 30-day average period, in the units ofthe applicable standard; (B) a block one-hour average, in the writs ofthe applicable standard, or alternatively; (C) a block one-hour average, 

### in pounds per hour, for boilers, calculated asthe product ofthe boiler's maximum rated capacity and its applicable limit in lb!MMBtu; or (2) ifthe unit is not operated with a NO, CEMS or PEMS under §117.2135(c) ofthis title, a block one-hour average, inthe units ofthe applicable standard. (c) The maximum rated capacity used to determine the applicability ofthe emission specifications 

### in subsection (a) ofthis section must be the greater ofthe following: (I) the maximum rated capacity as ofDecember 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 ofDecember 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 10167dual-fuel engine, must be classified as a stationary gas-fired engine for the purposes ofthis chapter. (e) Changes after December 31, 2000, to a unit subject to 

### an emission specification in subsection (a) ofthis section (ESAD unit) that result 

### in increasedNO,. emissions from aunit not subject to an emission specification in subsection (a) ofthis 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) ofthis title, or through stack testing that meets the requirements of §117.2135(1) ofthis 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 ofEmission Credits for Compliance). 

### (0 A source that met the definition ofmajor source on December 31, 2000, is always classified as amajor source for purposes ofthis chapter. A source that did not meet the definition ofmajor 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) ofthis 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 amore lenient emission specification under subsection (a)(4) ofthis 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) ofthis section, emissions in excess of

### the following, except as provided in §117.2125 ofthis 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 ofthis section. 

### This agency hereby certifies thatthe 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 ofthew ter resources ofthe 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 pro

### pose 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 ofLegal 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 2U 

# 2ilil TEXAS REGISTER TEAM

Thank 

## youfor 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 aresult section 117:211O(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'!. Underthe proposed rule, the engines would be limited to 0.60 glbp-hr ofNOx. Underthe 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 themto fuel an engine, it would most likely send the gas to a flare resulting in an increase inNOx emissions. Becausethe existing

## Texas State Implementation (SIP) would allow flaring of emissions and 

## the consequc:11t**~e** 

## inNOx emissions, it does not appearto us that this rule change 

## isin coiilli.ct

# Wii:h i 

# 1 U(i).l'herefore, the proposedreVisioil does

# riOt interfere · with attainment ormaintenance oftheNAAQS. Especially, given the smallamount of emissions change at issue and

## fact thatthe biogas 

## will be 

## used beneficially, this appears to be an appropriate revision to the SIP. Please confirm 

## that our understanding is correct Also, please confirmthat emissions from engines fired

# en biogas 

## will be accounted for appropriately infuture 

## 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 onthe proposed rule revisions. 

## Ifyou have any questions about this letter, please contactMr. Alan Sbar at (214) 665-6691.

Sincerely yours,

# fly~ Guy Donaldson· Chief 

## AirPlanning Section

. ·

### INDEX OF ORALTESTIMONY



## NO ORALTESTIMONYWAS RECEIVED PERTAININGTOTHIS 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 

# .AMel!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 ProjectNo. 2010-048-117-EN.
A public hearing was scheduled for December 14, 2010, 

## inFort Worth, TX, at 2:00pm At 1:30 pm the room was open, TCEQ staffand 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 CommissiononEnvironmental Quality INTEROFFICE MEMORANDUM To: Commissioners Date: April1, 2011 

## Thru: l.aDonna 

## Castaiiuela, ChiefClerk Mark R. 

## Vickery, P.G., Executive Director 

## From: SusanaM. Hildebrand, P.E. 

# A..\- Chief

## Engineer 

# D'

DocketNo.: 2010-1152-RUL 

## Subject: CommissionApprovalfor RulemakingAdoption Chapter 117, Control of

## Air Pollutionfrom Nitrogen Compounds Expandthe Emission Specification for Lean-BumEngines inthe Dallas-Fort Worth (DFW) 1997 Eight-Hour Ozone NonattainmentArea Rule ProjectNo. 2010-048-117-EN 

## Backgroundandreason(s)fortherulemaking: OnApril· 27, 2010, Ameresco of

## Texas (petitioner) submitteda petitionfor rulemakingrequesting an amendmentto Chapter 117, Subchapter·D. Division 2, §117.2110 for the Dallas-FortWorth (DFW) 1997 eight-hour ozone nonattainment area. Thecommission approvedthe petitionfor rulemaking onJune 16, 2010, andissued an order onJune 22, 2010, directing 

## the executive director

## to examine the issues inthepetition andto initiate rulemaking. Currently, §117.2110 limits nitrogen oxides (NOx) 

## emissions from stationarygas-fired, lean-bum enginesinstalled, modified, reconstructed, or relocated on or afterJune 1, 2007, to o.6o grams

## perhorsepower-hour (gfhp-hr) 

## iffired onlandfill gas and0.50 gfhp-hrfor all otherlean-bum engines. Duringthe 2007 rulemaking, nolandfill gas-fired engines were identifiedin

## the point source emissions inventoryinthecounties impactedbytheproposedrule. However, the emission specification ofo.6o gfhp-hrfor gas-fired engines fired onlandfill gasthat is establishedby §117.2110(a)(1)(B)(ii)(I) is consistent withthe emission specification for 

## this category ofengiries in the Houston-Galveston-Brazoria 1997eight-hour ozone nonattainment area. Landfill gas andotherbiogas areproducedfrom anaerobicdigestion ordecomposition oforganic matter and

## have similarfuel and combustion characteristics. Both landfill gas andotherbiogas can contain contaminants such as 

## sulfur, chlorine, and silicon. Consequently, engines fired onlandfill gas andotherbiogas canhave technological feasibility issues with regardto the installationofa NOx control catalystbecausethese contaminants canresultin catalystfailure or deactivationin hours or

## days. Thetechnological feasibilityissues withregard

## to theinstallation ofa NOx control catalyst is

## thebasisfor the o.6o gfhp-hremission 

## standardinthe currentrule andthejustification for adoptingthe expansion ofthe existing 

## emission specification to include lean-bum enginesfired onbiogas atminor sources of

## NOx inthe DFW 1997 eight-hour ozone nonattainmentarea. 

## Scope ofthe 

## rulemaldng: Currently, §117.2110 limitsNOxemissionsfrom stationarygas-fired, lean-bumengines installed, modified, reconstructed, orrelocated onorafterJune 1, 2007,to o.6o gfhp-hr 

## iffired onlandfill gas and o.so gfhp-hrfor all otherlean-bumengines. The adopted rulemaking

## will amend §117.2110(a)(1)(B)(ii)(I) to 

## expandthe emission specificationfor lean-bumenginesfired onlandfill gas to 

## includelean-bumengines fired onotherbiogas atminor sources ofNOxinthe DFW 1997 eight-hourozone nonattsinmentarea.

## Commissioners Page2 Apri11, 2011 Re: Docket No. 2010-1152-RUL


## A) Summaryofwhattherulemakingwill

## do: Ifadopted, the amended section

## will establish a o.6o g/hp-hrNOx emissionlimitfor stationary gas-fired, lean-burninternal combustion engines fired onbiogas fuels otherthanlandfill gas that areinstalled, modified, reconstructed, orrelocated onor afterJune 1, 2007. B) Scope 

## requiredby

## federalregulationsorstatestatutes: None. C)

## Additional staffrecommendationsthat are

## notrequiredbyfederal

## rule orstate 

## statute: None. 

## Statutoryauthority: Texas GovernmentCode, §2001.021, establishesthe procedures

## bywhich aninterestedpersonmay petitiona state agencyfor the adoption ofa rule and 30TexasAdministrativeCode (TAC) §20.15 provides 

## such procedures specific to the commission.
Thefollowing provisions authorize the commission to adoptrules necessaryto carry 

## outitspowers and duties: TexasWaterCode (1WC), §5.102, General Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorizethecommissionto adoptrules necessaryto carry 

## outitspowers and duties undertheTWC); Texas Health and Safety Code (THSC), Texas Clean

## AirAct (TCAA), · 

## §382.017, Rules, which authorizesthe commission to adoptrules consistentwiththe policy and purposes 

## oftheTCAA; THSC, §382.002, Policyand Purpose, which establishesthe commission's

. purposeto safeguardthe state's 

## air resources, consistentwiththeprotection

## ofpublichealth,

general welfare, andphysicalproperty; THSC, §382.011, General Powers and Duties, which authorizes the commissionto controlthe quality ofthe state's 

## air; andTHSC, §g82.o12, State

## Air ControlPlan, which authorizesthe commissiontoprepareand develop a general, comprel!ensive planfor the control ofthe state's 

## air. 

## Also, THSC, §382.016, concerningMonitoringRequirements; Examination ofRecords, authorizes the commissiontoprescnbe requirementsfor owners oroperators ofsourcestomake andmaintain records ofemissionsmeasurements; §382.021, concerningSamplingMethods and Procedures, authorizesthe commissiontoprescnbethe samplingmethods andprocedures; and §382.051 concerningPermittingAuthority

## ofCommission; Rules, authorizesthe commissionto adoptrules as 'necessaryto complywith changes infederal law orregulations applicableto permitsunder Chapter 382. The rule amendmentwould also 

## be adoptedUiider42 United States Code, §§7401, 

## et seq., whichrequires states to submit state implementation plan (SIP) revisions that specifythe mannerinwhich

## the NationalAmbient

## Air Quality Standards (NAAQS) 

## willbe achieved and maintainedwithin each 

## air quality controlregion ofthe state. 

## Effect onthe: A) 

## Regulated commwtity: The adopted rulemaking

## will affect owners and operators 

## ofstationarygas-fired, lean-burn internal combustion engines fired onbiogas otherthanlandfill gasthat arelocated atminor sources ofNOx inthe DFW 1997eight-hourozone nonattainmentarea. 

## Ifadopted, owners or operators ofstationarygas-fired, lean-burninternal combustion engines fired onbiogasfuels other 

## thanlandfillgasthat are installed, modified, reconstructed, orrelocated on orafterJune 1, 2007, wouldbe requiredto 

## limitNOx emissions to o.6o gfhp-hrinstead

## of0.50 g/hp-hr.

## Commissioners Page3 Apri11, 2011 Re: Docket No. 2010-1152-RUL


## B) Public: There

## willbe no impactonthe public. 

## C)

## Agencyprograms: There are no anticipatedimpacts on agencyprograms. 

## Stakeholdermeetings: No stakeholder·meetings wereheld. 

## Publiccomment: A publichearingfor

## this rulemaking

## was scheduled on December 14, 2010, inFortWorth, Texas. Thehearing

## was notofficially opened, becausenoone requestedtopresent oraltestimony. The proposedrule

## was publishedintheNovember 19, 2010, issue ofthe 

## Texas Register (35 

## TexR.eg 10162),. The commentperiodclosed December 20, 2010.
Thecommission received a 

## written commentfrom the United States Environmental Protection Agency (EPA). Thefollowing 

## is summB.lj' 

## ofthe comment: The EPAstatedits understandingthatthe proposedrevisionwould expandtheNOx emission specificationfor lean-bum engines fired onlandfill gas toinclude lean-bum enginesfired onbiogas at minor sources inthe DFW 1997 eight-hour ozone nonattainment 

## area, andthatthe revision would allowa stationB.lj' diesel enginetobefired onbiogas. The 

## EPA also commentedthat althoughTCEQ 

## has projectedthepotentialfor a 

## small increaseinNOx emissionsfrom engines 

## firingbiogasresultingfrom therule change, because a larger amount ofNOx emissions couldresult fromthelikely alternative ofsendingthe gas

## to a 

## flare, the rulemaking did not appeartoconflict· with §110(1) oftheFederalClean

## AirAct. The EPAagreedwiththe commission's determination thattheproposed rulemaking

## will notinterferewith attainmentormaintenance ofthe 1997eighthour ozone NAAQS inthe DFW area andcommentedthattheproposedchange appeared

## to 

## be an appropriate revision

## to the SIPgiven the small amount ofemissions change andthebeneficisluse ofthebiogas. In 

## addition, the EPArequestedthe commissionconfirmtheEPA's understanding of the proposed amendmentto §117.2110 andrequestedthatemissions from engines :fired onbiogas 

## be accountedfor in

## future SIP revisions.

## No changes were 

## made to 

## the rule basedon this 

## comment. Significant 

## changes from

## proposal:

. None. 

## Potentialcontroversialconcerns and legislativeinterestremaining 

## afterproposal andpubliccomment: None. 

## Does

## thisruJemaJringa:lfect 

## anycurrentpolicies or

## require development of 

## new policies? None. 

## What arethe consequences if 

## thisrulemaking

## does notgoforward? Iftheproposedrulemaking

## is not adopted andthepetitioner

## is not able to complywiththe0.50 g/hp-hr emission

## limit orpurchase credits

## to offsetthe surplusemissions, the companymay

## be forced to abandontheproject. 

## Ifthe company

## isforcedto sendtheemission stream to a flare for destructionratherthanusethe 

## stream as a fuel sourceintheengines, thetotal uncontrolledNOx

## Commissioners Page4 Apri11, 2011

. Re: DocketNo. 2010-1152-RUL

emission couldexceedthatofthe controlled emissions undertheproposedemissionlimit, asflares 

## are exempt

## from NOx emissionlimitsunder Chapter 117. 

## Arethere ahernativestorulemaldng? Yes. The commission criuld decide notto adopt

## the proposedchanges tothe emission specifications 

## in Chapter 117. Key

## pointsin adoptionrulemaldng schedule: 

## TexasRegisterproposalpublicationdate: November 19, 2010 

## Anticipated 

## TexasRegisterpublicationdate: May 6, 2011 

## Anticipatedeffective date: May 12, 2011 

## Six-month 

## TexasRegister.filingdeadline: May 19, 2011 

## Agencycontacts: Ray Schubert, Rule ProjectManager, 239-6615, Air Quality 

## Division Amy Browning, StaffAttorney, 239-0891

. Michael Parrish,

## Texas Register Coordinator, 239-2548 Attachments



## cc:
. ChiefClerk, 2 copies 

## Executive Director's 

## Office Susana M. Hildebrand, P.E. Anneldsal Curtis Seaton Ashley Morgan 

## Office ofGeneral Counsel Ray Schubert Michael Parrish

## EVALUATION OFTESTIMONY

TheTexas Commission on Environmental Quality (TCEQ orcommission) adopts the
amendmentto §117.2110 

# withoutchanges totheproposedtext as publishedinthe
November 19, 2010, issue ofthe 

# Texas Register (35 TexReg 10162) andthetext will not be republished.

The amendmentwill be submittedtothe United States Environmental Protection Agency (EPA) as a revisiontothe state implementation plan (SIP).



## Background and Summary ofthe Factual Basisfor the Adopted Rule OnApril27, 2010, Ameresco ofTexas (petitioner) submitted a petitionfor rulemaking (Project Number 2010-026-PET-NR) requesting an amendmentto Chapter 117, SubchapterD, Division 2, §117.2110 for the Dallas-Fort Worth (DFW) 1997eight-hour

ozone nonattainment area. The commission approvedthe petitionfor rulemaking on June 16, 2010, andissued an orderon June 22, 2010, directingthe executive directorto examine the issues in the petition andtoinitiate rulemaking. Currently, §117.2110 limits nitrogen oxides (NOx) emissions from stationarygas-fired, lean-burn engines installed, modified, reconstructed, or relocated on orafterJune 1, 2007, to o.6o gramsper horsepower-hour (gfhp-hr) iffired on landfill gas and o.so gfhp-hrfor all otherleanburn engines. The adoptedchangewill expandtheemission specification for lean-bum engines fired on landfill gas to include lean-bum engines fired onbiogas atminor

sources ofNOx in the DFW 1997eight-hour

# owne nonattainment area.

1

## Landfill gas and other biogas are producedfrom anaerobic digestion or decomposition oforganic matter andhave similar fuel and combustion characteristics. Both landfill gas and otherbiogas can contain contaminants such as sulfur, chlorine, and silicon, which

are presentin othergaseous fuels. Consequently, engines fired onlandfill gas andother biogas canhave technological feasibility issues with regardtotheinstallation ofa NOx
control catalystbecause these contaminants can resultin catalyst failure ordeactivation
in hours or days. The technological feasibility issues withregardtothe installation ofa NOx control catalyst is thebasis for the 0.60 g/hp-hr emission standardinthe current rule andthejustification for the adopted expansion ofthe existing emission specification toinclude lean-burn engines fired on biogas at minor sources ofNOx inthe
DFW 1997 eight-hour ozone nonattainment area.



## Demonstrating Noninterference underFederal Clean Air

## Act(FCAA), §uo(l)


## The commission provides the following informationto demonstrate whythe adopted changetoexpand the emission specification in §117.2110(a)(1)(B)(ii)(I) will not negativelyimpactthe status ofthe state's attainmentwiththe 1997 eight-hour ozone National AmbientAir Quality Standard (NAAQS), will notinterfere with control

measures, andwill not prevent reasonable further progress toward attainment ofthe

ozone NAAQS. The commission acknowledges thatthe DFW area failed to attainthe
1997 eight-hour ozone NAAQS bytheJune 15, 2010, attainmentdeadline basedon monitoring data; however, the adopted rule change will not adversely affect 

## the ability of the DFW areato attainthe 1997eight-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 commentperiod, held November 19, 2010, to December 20, 2010. The purpose ofthehearing was to accept written and oral comments ontheproposed rulemaking. Awritten comment was 

## submittedby the EPA. The EPA statedtheir agreement with the commission's §1100) determination thatthe proposed rulemaking will not interfere with attainment or maintenance ofthe 1997 eight-hour ozone NAAQS in the DFW area.

On May 23, 2007, as partofthe DFW attainment demonstration, the commission adopted a new Chapter 117, Subchapter D, Division 2 with new emission control requirements for minor industrial, commercial, orinstitutional sources ofNOx in the
DFW 1997 eight-hour ozone nonattainment area. SubchapterD, Division 2 requires

owners oroperators ofminor sources ofNOx inthe DFW 1997 eight-hour ozone nonattainment area to reduce NOx emissions from affected stationaryinternal combustion engines. A minor source ofNOx in the DFW 1997 eight-hour ozone nonattainment area is any stationary source, orgroup ofsources located within a contiguous area and undercommon control thatemits orhas the potential toemitless than 50tonsperyear ofNOx.

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

was 

## lean-burn engines at minor sources. The currentapplicable NOx emission specification in §117.2110(a)(1)(B)(ii)(II) for gas-fired, lean-burn engines using gaseous fuels otherthanlandfill gas that are installed, modified, reconstructed, orrelocated on

orafterJune 1, 2007, is 0.50g/hp-hr. Duringthe 2007rulemaking, nolandfill gas-fired

3

## engines were identified in the emissions inventory inthe counties impacted by

## the proposedrule; however, the emission specification ofo.6o g/hp-hrfor gas-fired engines fired onlandfill gas establishedby §117.2110(a}(1)(B)(ii}(I} is consistent with the
emission specification for this category ofengines in the Houston-Galveston-Brazoria 1997 eight-hour ozone nonattainment area.

Inthe 2007 Chapter 117 rulemaking for the DFW 1997 eight-hour ozone attainment demonstration, no gas-fired engines fired onbiogasorother non-landfill gaseous fuels

were relied upon for creditable reductions for the SIP. Therefore, ifthe petitioner's proposed change is adopted, allowing the slightly higher emission specification ofo.6o gjhp-hron gas-fired engines fired on otherbiogas fuels would not result ina loss ofany SIP creditable reductions for the DFW 1997 eight-hour ozone nonattainment area. The adopted change is limitedto a narrow category ofstationary gas-fired engines with NOx controls thatwere not relied upon inthe DFW 1997 eight-hour ozone attainment demonstration adoptedin 2007, and the resulting change infuture NOx emissions is negligible. Furthermore, ifthe rulemakingis not adopted andthepetitioneris not able
to comply with the o.so gjhp-hr emission limit orpurchase credits to offsetthe surplus emissions, thepetitionermaybe forced to abandon the project. This outcome could actually result in a net NOx emissions increasethatis more thanthe 0.02tonsperday increase anticipated iftherule is adopted. If

## the company is forced to sendtheemission

streamto a flare for destruction ratherthanuse the stream as a fuel source in

## the engines, thetotal uncontrolled NOx emissions could exceed that ofthe controlled emissions underthe proposed emission limit, because flares are exemptfrom NOx emission limits under Chapter 117. Based onthesefactors, the commissionhas

4

## determinedthatthe adopted rule change will not negatively impactthe status ofthe
state's attainmentdemonstrationfor the 1997 eight-hour ozone NAAQS, will not interfere with control measures, andwill not prevent reasonable further progress toward attainment ofthe ozone NAAQS.



## SectionDiscussion Section 117.2110, Emission Specifications for Eight-HourAttainment Demonstration The commission adopts the amendmentto §117.2110(a)(1)(B)(ii)(I) to expandthe emission specification for lean-burn engines fired onlandfill gas to include lean-burn engines fired onbiogas at minor sources ofNOx in

## the DFW 1997 eight-hour ozone nonattainment area. The adoptedrule revision will require owners or operators of stationarygas-fired, lean-burn internal combustion engines fired onbiogas fuels other
than landfill gas that are installed, modified, reconstructed, or relocated on or after June 1, 2007, tocomply with a NOx emission limit ofo.6o g/hp-hr.

In addition tothe adopted rule revision, the commission adopts non-substantive formatting changes to conform with currentTexas Register format requirements. These non-substantive changes are notintendedto alterthe existing rule requirements in 

## any
way and are not specifically discussed inthispreamble.

Final 

## RegulatoryImpactAnalysis 

## Determination 

## The commission reviewedthe adopted rulemaking inlight ofthe regulatory analysis requirements ofTexas Government Code, §2001.0225 and determinedthatthe adopted rule does not meet the definition ofa "major environmental rule." Texas Government Code, §2001.0225 statesthat a "major environmental rule" is, "a rulethe specificintent
5

## ofwhich is to protectthe environment orreduce risks tohumanhealthfrom environmental exposure and that may adversely affect in a material way the economy, a
sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state." Furthermore, while the adopted rulemaking does not constitute a major environmental rule, even ifit did, a regulatory impact analysis would notbe required because the adopted rulemaking does not meet
any ofthefour applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 

## applies onlyto a major environmental rule which, "(1) 

## exceeds a standard setbyfederal law, unless the rule is specifically required by statelaw; (2) 

## exceeds an express requirement ofstatelaw, unless the rule is specifically required byfederal law; (3) exceeds a requirement ofa delegation agreement or contractbetween the state and an agency or representative of the federal governmentto implement a state and federal program; or (4) adopts a rule solely under the general powers ofthe agencyinstead ofunder a specific state law."

The adopted rulemaking implements requirements ofthe FCAA. Under 42 

## United States Code (USC), §7410, 

## each state is required to adopt and implement a SIP containing adequateprovisions to implement, attain, maintain, and enforce the NAAQS withinthe

state. While 42 

## USC, §7410 

## generally does not require specific programs, methods, or reductions in orderto meetthe standard, a SIP mustinclude "enforceable emission limitations and other control measures, means ortechniques (including economic incentives such as fees, marketable permits, and auctions ofemissions rights), aswell as schedules and timetables for compliance as maybe necessary orappropriateto meetthe applicable requirements ofthis chapter," (meaning Chapter 85, Air Pollution Prevention
6

## andControl, otherwise known as the FCAA). The provisions ofthe FCAA recognize that

states are inthebestposition to determine what programs and controls are necessary or appropriate in orderto meetthe NAAQS. This flexibility allows states, affectedindustry,
andthe public, to collaborate onthebest methods for attaining the NAAQS for the specific regions in the state. Even thoughthe FCAA allows states to develop their own
programs, this flexibility does not relieve a statefrom developing a programthat meets the requirements of42 USC, §7410. States are notfree to ignore the requirements of42 USC, §7410, andmust develop programs and control measures to assure thattheir SIP provides for implementation, attainment, maintenance, andenforcement ofthe NAAQS within the state.

The specific intentofthe adoptedrulemaking is to provide fair and consistent application ofSIP rules inthe 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 otherthanlandfill gas that areinstalled, 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 andotherbiogas are produced from anaerobic digestion or decomposition oforganic matter andhave similarfuel and combustion characteristics. Both landfill gas andotherbiogas can contain contaminants such as sulfur, chlorine, and silicon. Consequently, engines fired on landfill gas and otherbiogas can have technological feasibility issues with regardto the installation ofa NOx control catalyst, because these contaminants can result in catalyst failure or deactivation in hours or days. Thetechnological feasibility issues with regardtothe

7

## installation ofa NOx control catalyst is thebasis for the o.6o g/hp-hr emission standard
in the current §117.2110(a)(1)(B)(ii)(I) andthejustificationfor the adopted expansion of
theexisting emission specificationtoinclude lean-burn engines fired on biogas at minor

sources NOx inthe DFW 1997 eight-hour ozone nonattainment area. To further the specific intent ofprovidingfair andconsistent application ofSIP rules inthe DFW 1997 eight-hour ozone nonattainment area, the adopted rule will expandthecurrent §117.2110(a)(1)(B)(ii)(I) to includebiogas otherthanlandfill gas.

The adopted rulemaking does notconstitute a major environmental rule underTexas
Government Code, §2001.0225(g)(3) because: 1) the specific intent ofthe adoptedrule
is notto protectthe environment or reduce risksto humanhealthfrom environmental
exposure, but rather to providefair and consistent application ofSIP rules inthe DFW eight-hour ozone nonattainment areaby providing a specific expansion of §117.211o(a)(1)(B)(ii)(I) to applytobiogas otherthanlandfill gas; and 2) the adopted rulemakingwill not adversely affect in a material waythe economy, a sector ofthe
economy, productivity, competition, orjobs, norwill the adopted rule adversely affect in

a material way the environment orthe publichealth and safetyofthe state or a sector of
the state. Because the adopted rulemaking is not a major environmental rule, it is not subjectto a regulatory impact analysis underTexas Government Code, §2001.0225.

While the adoptedrulemaking does not constitute a major environmental rule, even ifit
diditwouldnotbe subjectto a regulatory impact assessmentunderTexas Government Code, §2001.0225. The requirementto provide a fiscal analysis ofregulations inthe
Texas Government Code was amendedby Senate Bill (SB) 633 duringthe 75th
8

## Legislature, 1997. The intent ofSB 633 was to require agencies to conduct a regulatory

. impact analysis ofextraordinary rules. These are identifiedinthe statutorylanguage as majorenvironmental rules that will have a material adverse impact andwill exceed a requirement ofstatelaw, federal law, or a delegatedfederal program, or areadopted solelyunderthe general powersofthe agency. With theunderstandingthatthis requirement would seldom apply, the commission provided a cost estimatefor SB 633
thatconcluded: "based on an assessment ofrules adoptedbythe agencyin the past, it is

not anticipatedthatthe bill will have significantfiscal implications for the agency due to itslimited application." The commission also notedthatthe number ofrules that would require assessment underthe provisions ofthebill was notlarge. This conclusion was based, in part, onthe criteria setforth in the bill that exempted rules from the full analysis unlessthe rule was a majorenvironmental rule that exceeds a federal law.

The FCAA does not always require specific programs, methods, or reductions in orderto

meetthe NAAQS; thus, states must develop programs for each nonattainment areato help ensure thatthose areas will meetthe attainment deadlines. Because ofthe ongoing
needto address nonattainment issues, andto meetthe requirements of

## 42 USC, 

## §7410,
the commission routinelyproposes and adopts SIP rules. Thelegislatureispresumedto understandthisfederal scheme. 

## Ifeach rule adoptedfor inclusion inthe SIP was consideredtobe a majorenvironmental rule that exceeds federal law, then every SIP
rule would require the full regulatoryimpact analysis contemplatedby SB 633. This
conclusion is inconsistent withthe conclusions reachedbythe commission in itscost estimate andbythe Legislative Budget Board (LBB) in itsfiscal notes. Since the legislatureis presumedto understandthe fiscal impacts ofthebills it passes andthat
9

## presumption is based on information providedby state agencies andthe LBB, the commissionbelieves thatthe intent ofSB 633 was onlyto require thefull regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules have a broad impact, that impactis no greaterthan is necessary or appropriate to meet the requirements ofthe FCAA. Forthese reasons, rules adoptedfor inclusion inthe SIP fall
underthe exception in Texas Government Code, §2001.0225(a), because they are requiredbyfederal law.

The commissionhas consistently applied this constructionto its rules since this statute

was enactedin 1997. Since thattime, the legislaturehas revisedthe Texas Government Code butleft this provision substantiallyunamended. Itis presumedthat, "when an
agency interpretation is in effect atthe time the legislature amends thelaws without making substantial change inthe statute, the legislature is deemedtohave acceptedthe agency's interpretation." Central Power & 

## Light Co. v. Sharp, 919 S.W.2d 485,489 (Tex. App. Austin 1995), writ deniedwith percuriam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullockv. 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); andCoastal Indust. WaterAuth. v. TrinityPortlandCement Div.,
563 S.W.2d 916 (Tex. 1978).

The commission's interpretation ofthe regulatory impact analysis requirementsis also supportedby a change madetothe Texas Administrative Procedure Act (AP A) bythe

10

## legislature in 1999. In an attempttolimitthe number ofrule challengesbased uponAPA requirements, the legislatureclarified that state agencies are requiredto meetthese
sections oftheAPA againstthe standard of"substantial compliance" (Texas
Government Code, §2001.035). Thelegislature specificallyidentifiedTexas Government Code, §2001.0225 as falling underthis standard. The commission has substantially complied with the requirements ofTexas Government Code, §2001.0225.

Regardless ofwhetherthe adoptedrulemaking constitutesa majorenvironmental rule
underTexas Government Code, §2001.0225(g)(3), a regulatory impact analysis isnot requiredbecausethis rule is part ofthe commission's SIP for making progress toward
the attainment and maintenance ofthe eight-hour ozone NAAQS inthe DFW
nonattainment area. Therefore, the adopted rule does notexceed a standard setby
federal law orexceed an express requirement ofstate law, since the rule is partofan overall regulatory scheme designed to meet, notexceed the relevant standard setby
federal law

- the NAAQS. Thecommission is charged withprotectingair qualitywithin
the state andto design and submita planto achieve attainment andmaintenance ofthe federally mandated NAAQS. TheThird District Court ofAppeals upheldthis interpretation in BrazoriaCountyv. Texas Comm'n on Envtl. Quality, 128 S.W. 3d728 (Tex. App. -Austin 2004, no writ). In addition, no contractordelegation agreement

covers the topicthat is the subject ofthisrulemaking. Finally, this rulemaking was not developed solely underthe general powers ofthe agency butis authorizedby specific
sections ofTexas Health and Safety Code (THSC), Chapter 382 (also known astheTexas
CleanAir Act), and theTexasWater Code (TWC), which are citedinthe STATUTORY

11

## AUTHOR11Y section ofthis preamble, including THSC, §§382.011, 382.012, 

## and
382.017.



## This rulemaking is not subjecttothe regulatory analysis provisions ofTexas Government Code, §2001.0225(b), 

## for the following reasons. The adopted rulemaking is

not a major environmentallawbecause: 1) 

## the specific intent ofthe adoptedrule is not
to protectthe environment orreduce risks tohumanhealth from environmental
exposure, butratherto provide fair andconsistent application ofSIP 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 ofthe economy, productivity, competition, orjobs, nor will itadversely affect in a material**~ay** 

## the environment, or thepublic health and safety ofthe state or a sector ofthe state. Furthermore, even ifthe adopted rulemaking was a major environmental rule, itdoes not meet any ofthe four applicability criterialistedinTexas Government Code, §2001.0225

## because: 1) 

## the adopted rulemaking is 

## part ofthe DFW SIP, and as suchis designedto meet, notexceed the relevant standard setby federal law; 2) 

## no contractordelegation agreement covers thetopic thatis the subject ofthis rulemaking; and 3) the adoptedrulemaking is authorized by specific sections ofTHSC, Chapter 382, 

## andtheTWC, which are citedin the STATUTORYAUTHOR11Y section ofthis preamble.

The commission invited public comment regarding the draft regulatory impact analysis determination during the public commentperiod. No comments were received onthe draft regulatory impact analysis determination.

12

## Takings ImpactAssessment 

## The commission evaluatedthe adopted rule andperformed an analysis ofwhetherthe adopted rule constitutes a taking underTexas Government Code, Chapter 2007. The
commission's assessment indicates Texas Government Code, Chapter 2007 does not applybecause this rulemaking provides for fair and consistent application ofSIP rules in the DFW 1997 eight-hour ozone nonattainment areaby expandingthe current §u7.2110(a)(1)(B)(ii)(I) NOx emission specification to include biogas otherthanlandfill
gas.

UnderTexas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in partortemporarily or permanently, in a mannerthat requires the governmental entityto compensate the private real propertyowner as providedbythe Fifth andFourteenthAmendments tothe United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental actionthat: (i) affects an owner's private real propertythatis the subject
ofthe governmental action, in whole or in partortemporarily orpermanently, in a

mannerthatrestricts orlimits the owner's righttothe propertythatwould otherwise exist in the absence ofthe governmental action; and (ii) is the producing cause ofa reduction ofatleast 25% in the marketvalue ofthe affectedprivate real property, determinedby comparing the marketvalue ofthe property as ifthe governmental action is notin effect andthe market value ofthepropertydetermined as ifthe governmental action is in effect."

13

## The specific purpose ofthe adopted rulemaking is to provide fair andconsistent application ofSIP rules inthe DFW 1997 eight-hour ozone nonattainment area. The

currentapplicable NOx emission specification in §n7.2110(a)(1)(B)(ii)(II) for gas-fired,
lean-burn engines using gaseous fuels otherthan landfill gas that are installed, modified, reconstructed, or relocated on orafterJune 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 otherbiogas are produced from anaerobic digestion or decomposition oforganic matter andhave similarfuel and combustion characteristics. Both landfill gas andotherbiogas can contain contaminants such as sulfur, chlorine, and silicon. Consequently, engines fired onlandfill gas and
otherbiogas canhave technological feasibility issues with regardtothe installation ofa NOx control catalystbecausethese contaminants can result in catalyst frulure or deactivation inhours or days. The technological feasibility issues with regardtothe installation ofa NOx control catalyst is thebasis for the o.6o g/hp-hr emission standard
inthe current §117.2110(a)(1)(B)(ii)(I) andthejustificationfor the adopted expansion of the existing emission specification to include lean-bum engines fired onbiogas at minor

sources ofNOx in the DFW 1997 eight-hour ozone nonattainment area. To further the specific intent ofproviding fair andconsistent application ofSIP rules in the DFW 1997 eight-hour ozone nonattainment area, the adoptedrule will broadenthecurrent §117.2110(a)(1)(B)(ii)(I) to biogas otherthanlandfill gas.

Promulgation andenforcementofthe adoptedrule wouldbe neither a statutory nor a constitutional taking ofprivate real property. Because the adopted rule promulgates an exemption, the rule is less burdensome, restrictive, orlimiting ofrights toprivate real
14

## propertythanthe existing rule. Furthermore,the adopted rule will benefitthepublic by providing fair andconsistent application ofSIP rules inthe 

# DFW 1997 eight-hour ozone nonattainment area. The adopted rule does not affect a landowner's rights in private real propertybecause this rulemaking does notburden, restrict, orlimit the owner's right to property, nor does it reduce thevalue ofany private real propertyby 25% or more beyondthatwhich would otherwise exist inthe absence ofthe regulations. Inother words, this rule simply expandsthe existing exemption in §117.2110(a)(1)(B)(ii)(I) to include sources thathave technological feasibility issues similartothose ofthe sources covered by the current exemption. Therefore, the rule will not constitute a taking under
Texas Government Code, Chapter 2007.



## Consistencywith the CoastalManagement Program The commission invitedpublic comment regarding the consistency with the coastal managementprogram (CMP) duringthe public commentperiod. No commentswere received concerning theTexas CMP.



## Effect on Sites Subjectto the Federal OperatingPermitsProgram Chapter 117 is an applicable requirementunder 30TAC Chapter 122, Federal Operating Permits Program. Owners or operators subjecttothefederal operating permitsprogram thatelectto 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., atthe Texas
Commission on Environmental Quality Region 4 office in FortWorth, Texas. The hearing 

## was not officially opened, because no one requested to present oral testimony.
The commentperiod closed on December 20, 2010. 

## A written commentwas received
from the EPA.



## Responseto Comments The EPA stated its understandingthattheproposed revision would expandtheNOx
emission specification for lean-burn engines fired on landfill gas to includelean-burn engines fired onbiogas atminor sources inthe DFW 1997 eight-hour ozone nonattainment area, andthatthe revision would allow a stationarydiesel engine tobe
fired onbiogas. 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 ofsendingthe gas to a flare, the rulemaking did not appearto conflict
with FCAA, §1100). 

## The EPA also commented thatit agreed with the commission's
determinationthat theproposed rulemaking will notinterfere with attainmentor maintenance ofthe 1997 eight-hourozone NAAQS inthe DFW area and commented
thatthe proposed change appearedtobe an appropriate revision tothe SIP given the
small amount ofemissions change andthe beneficial use ofthebiogas. In addition, the
EPA requested the commission confirm the EPA's understanding oftheproposed amendmentto §117.2110 

## and requested that emissions from engines fired onbiogas be
accounted for infuture SIP revisions.

16

# The commission appreciatesthe comment. The EPA's understanding ofthe amendmentto §117.2110 

# ispartiallycorrect. The amendmentto §117.2110 

# in this rulemaking onlyapplies to lean-bumengines fired onlandfill gas and lean-bumenginesfired on otherbiogas atminor sources ofNOxinthe DFW 1997eight-hour ozonenonattainmentarea; the amendment does not applyto stationarydiesel engines. The EPAis correctinits understanding thatthe changeislimitedto a narrow category ofstationarygas-fired engineswith NOx controlsthatwere notrelieduponinthe DFW 1997eighthour ozone attainment demonstration adoptedin 2007, 

# andtheresulting changeinfuture NOxemissionsisnegligible. The commission agreesthat the use ofbiogas as fuel isbeneficial andpreferentialto sendingthebiogas
to a flare for destruction. Lastly, all emissionsfrom lean-bumenginesfired

onbiogaswillbe accountedfor infuture SIPrevisions. No changehasbeen madeto therulebased onthis comment.

StatutoryAuthority The amendment is adoptedunderthe authority ofTexas Government Code, §2001.021, 

## Petitionfor theAdoption ofRules, which authorizes an interestedpersonto petition a
state agencyfor the adoption ofa 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 necessaryto carry 

## outits powers andduties underthe TWC);
Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), §382.017, 

## Rules, which authorizes the commissionto adopt rules consistent withthe policy andpurposes

17

## oftheTCAA; THSC, §382.002, 

## Policy andPurpose, which establishes the commission's
purposeto safeguardthe state's air resources, consistent withtheprotection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

## General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; and THSC, TCAA, §382.012, 

## StateAir Control Plan, which authorizes the commissionto
prepare and develop a general, comprehensive planfor the control ofthe state's air. The amendmentis also adoptedunderTHSC, §382.016, 

## Monitoring Requirements;
Examination ofRecords, which authorizes the commission toprescribe requirements for owners or operators ofsourcesto make and maintain records ofemissions measurements; THSC, §382.021, 

## Sampling Methods and Procedures, which authorizes the commissiontoprescribe sampling methods andprocedures; andTHSC, §382.051, 

## Permitting Authority ofCommission; Rules, which authorizesthe commission to adopt rules as necessaryto comply with changes in federal law orregulations applicable to permitsunderTHSC, Chapter 382. 

## The amendment is also adoptedunder Federal Clean Air Act (FCAA), 42 

## United States Code (USC), §§7401, 

# etseq., which requires statesto submit state implementation plan revisions that specifythe mannerinwhich the National AmbientAir Quality Standard will be achieved andmaintained within each air quality control region ofthe state.

The adopted amendment implementsTWC, §5.103 

## and §5.105; 

## THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 382.021, 382.051; 

## andFCAA, 42 

## USC, §§7401 

# et
seq.

18

# STAFF RECOMMENDATIONS

## SUBCHAPTERD: COMBUSTION CONTROLAT MINORSOURCES IN OZONENONATTAINMENTAREAS DIVISION 2: 

## DALLAS-FORTWORTH EIGHT-HOUROZONE NONATTAINMENTAREAMINORSOURCES 

## §117.2110

§117.2110. Emission Specificationsfor Eight-HourAttainment Demonstration.

(a) The owner oroperator ofany source subject to this division (relating to Dallas-FortWorth Eight-Hour Ozone NonattainmentArea Minor Sources) shall not allow the discharge into the atmosphere emissions ofnitrogen 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 onlandfill gas, 0.60 

## gramsperhorsepower-hour (gfhp-hr); and

(ii) 

## all otherrich-bum engines, 0.50 

## gfhp-hr; and

1

## (B) lean-burn engines:

(i) placed into service before June 1, 2007, 

## thathave not been modified, reconstructed, or relocated on or after June 1, 

### 2007, 0.70 

## g/hp-hr; and

(ii) 

## placed into service, modified, reconstructed, orrelocated

on or after June 1, 

### 2007:



## (I) 

## fired onlandfill gas or otherbiogas, 

# 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) placedinto service before March 1, 2009, 

## thathave notbeen modified, reconstructed, orrelocated on orafterMarch 1, 2009, 

## thelower of

# n.o g/hphrorthe emission rate establishedby testing, monitoring, manufacturer's guarantee, or manufacturer's other data; and

2

## (B) for engines not subject to subparagraph (A) ofthis paragraph:

(i) with a horsepower (hp) rating ofsohp orgreater,butless
than 100 hp, that are installed, modified, reconstructed, orrelocated on or after March 1, 2009, 3·3 g/hp-hr;

(ii) with a horsepower rating of 100 hp or greater, butless 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 of750 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)
ofthis subsection for units with an annual capacity factor of0.0383 or less, o.o6o poundper million British thermal units Ob/MMBtu) heat input. For units placed into service on orbefore December 31, 2000, the annual capacityfactor as ofDecember 31, 2000, mustbe usedto determine eligibility for the alternative emission specification of this paragraph. For units placed into service after December 31, 2000, a 12-month rolling average mustbe usedto determine the annual capacityfactor.

(5) Forthe purposes ofthis subsection, theterms "modification" and "reconstruction" have the meanings defined in §116.10 ofthistitle (relating to General
3

## Definitions) and 40 Code ofFederal Regulations §60.15 (December 16, 1975), respectively, andtheterm "relocated" means to newly install at an account, as defined in §101.1 ofthistitle (relating to Definitions), a used engine from anywhere outsidethat

account.

(b) 

## The averaging time for the NOx emission specifications ofsubsection (a) of
this section is asfollows:

(1) ifthe unit is operatedwith a NOx continuous emissions monitoring system (CEMS) orpredictive emissions monitoring system (PEMS) under §117.2135(c)
ofthistitle (relating to Monitoring, Notification, andTesting Requirements), either as:

(A) a rolling 30-dayaverage period, inthe units ofthe applicable standard;

(B) a block one-houraverage, inthe units ofthe applicable standard, oralternatively;

(C) a block one-houraverage, inpounds perhour, for boilers,
calculatedastheproductoftheboiler's maximum rated capacity anditsapplicable limit
inlb/MMBtu; or



## 4

## (2) ifthe unitis not operatedwith a NOx CEMS or PEMS under §n7.2135(c) ofthistitle, a block one-hour average, in the units ofthe applicable standard.

(c) The maximum rated capacityusedto determine the applicability ofthe emission specifications in subsection (a) oftllis section mustbe the greater ofthe following:

(1) the maximum rated capacity as ofDecember 31, 2000; or

(2) the maximum ratedcapacity after December 31, 2000.

(d) Aunit's classification is determinedbythe most specific classification applicable totheunit as ofDecember 31, 2000. Forexample, a unitthat is classified as a stationarygas-fired engine as ofDecember 31, 2000, but subsequently is authorizedto operate as a dual-fuel engine, mustbe classified as a stationary gas-fired engine for the
purposes ofthis chapter.

(e) Changes after December 31, 2000, to a unit subjectto anemission specification in subsection (a) ofthis section (ESAD unit) thatresult in increased NOx emissions from a unit not subjectto an emission specification in subsection (a) ofthis section (non-ESAD unit), such as redirecting oneormore fuel orwaste streams containing chemical-bound nitrogen to an incinerator ora flare, is only allowed if:

5

## (1) the increase in NOx emissions atthe non-ESAD unitis determined using a CEMS or PEMS that meets therequirements of§117.2135(c) ofthistitle, or through stacktesting that meets the requirements of §n7.2135(f) ofthistitle; and

(2) emission credits equal tothe increase in NOx emissions atthe nonESAD unit are obtained andusedin accordance with §n7.98oo ofthistitle (relating to Use ofEmission Credits for Compliance).

(f) A sourcethat metthe definition ofmajor source on December 31, 2000, is always classified as a major source for purposes ofthis chapter. A source that did not
meet the definition ofmajor source (i.e., was a minor source, or did not yet exist) on December 31, 2000, butbecomes a major source at anytime after December 31, 2000, is from thattimeforward always classified as a major source for purposes ofthis chapter.

(g) The availability under subsection (a)(4) ofthis section ofan emission specification for units wit!I an annual capacityfactor of0.0383 orless is based onthe unit's status on December 31, 2000. Reduced operation after December 31, 2000,

cannot

# be usedto qualifyfor a morelenientemission specification under subsection (a)(4) ofthis section than would otherwise applytot!Ie unit.

(h) 

## No person shall allow t!Ie discharge intothe atmospherefrom anyunit subject

to NOx emission specifications in subsection (a) ofthis section, emissions in excess of



## 6

## thefollowing, except as providedin §117.2125 ofthistitle (relating toAlternative Case Specific Specifications):

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

## drybasis (or alternatively, 3.0 g/hp-hrfor stationaryinternal 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 notequippedwith CEMS or PEMS for CO; and

(2) for units that inject urea or ammonia into theexhaust stream for NOx control, ammonia emissions of 10

## ppmv at 15% 

# o., dry, for gas-firedlean-burn engines; and 3.0% 

## 02, dry, for all other units, basedon:

(A) a block one-hour averaging periodfor units not equippedwith a CEMS or PEMS for ammonia; or

(B) a rolling 24-hour averaging periodfor units equipped with
CEMS or PEMS for ammonia.

(i) 

## An 

## owner oroperator mayuse emission reduction credits as specified in §117.9800 ofthistitle to comply withthe NOx emission specifications ofthis section.



## 7

### La 

### annaGa•*c',<: ChiC**~lorl<,** 

# r

....ce"'"''"'"''"au**~'lV"Ilf1'il'lllfPI** llYalily 

## ORDERADOPTINGAMENDED RULE AND REVISION TO THE STATE IMPLEMENTATION PLAN

Docket No. 2010-1152-RUL


## On Apri12o, 2011, theTexas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamended 30 Texas Administrative Code §117.2110(a)(1)(B)(ii)(I). The Commission adopts this 

## amendment, in Chapter 117, Control of Air 

## Pollutionfrom Nitrogen Compounds, Subchapter D, Combustion Control at Minor Sources in Ozone NonattainmentAreas, Division 2, Dallas-FortWorth 1997 Eight-Hour Ozone NonattainmentArea 

## Minor Sources; and correspondingrevision to the stateimplementation plan (SIP). The adopted amendment expands the emission specification for lean-burn engines fired onlandfill gas to include lean-burn engines fired onbiogas at minor sources ofnitrogen oxides (NOx) in the DFW 1997 eight-hour

## owne nonattainment area. The adopted rule revision 

## will require owners oroperators ofstationary gas-fired, lean-burn internal combustion engines fired on biogas fuels otherthan landfill gas that are installed, modified, reconstructed, or relocated on or afterJune 1, 

## 2007, to complywith a NOx emissionlimit ofo.6o grams per horsepower-hour (gfhp-hr). UnderTex. Health & 

## Safety Code

## Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the Commissionhas the authority to controlthe quality ofthe state's air 

## andto issue orders consistent with the policies andpurposes ofthe Texas Clean Air 

## Act, Chapter 382 oftheTex. Health & 

## Safety Code. Theproposed rules were publishedfor comment inthe November 19, 2010, issue ofthe 

## 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 ofFederal Regulations§ 51.102, and after proper notice, the Commission scheduled a publichearingto considerthe amended rule and revision tothe SIP. Propernotice includedprominent advertisementin the areas affected at least 30 days priortothe date ofthe hearing. Apublichearing forthis rulemaking was scheduled on December 14, 

## 2010, inFortWorth, Texas. Thehearingwas not officially opened, because no onerequestedto present oral testimony. The Commission circulatedhearing notices ofits intended action to the public, including interested persons, the Regional Administrator ofthe United States Environmental ProtectionAgency (EPA), and all applicablelocal air

## pollution control agencies. The publicwas invitedto submit data, views, andrecommendations onthe proposedamended rule and SIP revision, either orally orinwriting, at the hearing or during the commentperiod. Prior to the scheduledhearing, copies ofthe proposed amended rule andSIP revision were available for publicinspection atthe Commission's central office andon the Commission'sWeb site. · Data, views, andrecommendations ofinterestedpersons regarding the proposed amended rule andSIP revision were submittedto the Commission during the comment period andwere consideredbythe Commission as reflected in the analysis oftestimonyincorporated byreference to this 

## Order. The Commission finds thatthe analysis oftestimonyincludesthe

## names of

## all interested groups orassociations offering comment onthe proposed amended rule and the SIP revision and theirposition concerningthe same.

. IT IS THEREFORE ORDERED BYTHE COMMISSION thatthe amended rule andrevision tothe SIP incorporatedby reference to this Order are hereby adopted. The Commission further authorizes staffto make any non-substantive revisions to the rulenecessary to comply with 

## Texas Register requirements. The adopted rule and the preambleto the adopted rule andthe revision to the SIP are incorporatedby reference in this Order as 

## ifsetforth at lengthverbatim inthis Order.
IT IS FURTHERORDERED BYTHE COMMISSION that onbehalfofthe Commission, the Chairman shouldtransmita copy ofthis 

## Order, togetherwith the adoptedrule andrevision to the SIP, to the RegionalAdministrator ofEPA as a proposed revision to the Texas SIP pursuanttothe Federal Clean AirAct, codified at 42 U.S. Code Ann. §§ 

## 7401- 7671q, asamended. · 

## This Order constitutes the Order ofthe Commission requiredbythe Administrative ProcedureAct, Tex. Gov't Code, § 

## 2001.033 (Vernon 2008). Ifany portion ofthis Orderis for any reason heldto beinvalidby a courtof competentjurisdiction, the invalidity ofanyportion shall not affect thevalidity ofthe remaining portions.

Dateissued: 

# APR 2 9 2011

TEXAS 

## COMMISSION ON ENVIRONMENTAL QUALITY

# ~.,.L~ 

# ;n: Shaw, Ph.D., ChairmanEPA 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 ofthe FCAA, the mmission is adopting amendments to add specific definitions related to PM,. regulation and to address known requirements or implementation. Subsequent to receipt 

### ofTIP's mments, EPA published the final rule on the Methods for Mea urement of Filterable PM,. and PM, and Measurement ofCond nsable PM Emissions (75 Federal Register80118, December 1, 2010}. This adoption addresses known equirements to date in orderto meet the May 16, 2011 deadlin for implementation ofthe**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 ofthe 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 ofthe 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 certifiesthat e adoption has been reviewed by legal counsel and found 

### to b a valid exercise ofthe agency's legal authority. Filed with the Office ofthe 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 NONATTAINMENT 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 ofthe 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 ofthe 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 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 (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} iffired 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 ofmganic matter and have similar fuel and combustion characteristics. Both landfill gas and other bi<>- gas can contain contaminants such as sulfur, chlorine, and sil

## ADOPTEDRULES 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 isthe basis for the 0.60 glhp-hr emission standard in the current rule and thejustification for the adopted expansion ofthe 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 ofthe 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 

### ofthe hearing was to accept written and oral comments on the proposed rulemaking. A written commentwas submitted by the EPA. The EPAstated their agreement wijh the commission's §11 0(1) determination that the proposed rulemaking will not intarfere 

### with attainment or maintenance ofthe 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 ofsources 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

### Iated 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 forthe 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 ofstationary 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, ifthe rulemaking is not adopted and the petitioner is not able to comply with the 0.50 glhp-hr emission limij or purchase credits to offsetthe 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 ofthe 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 forEight-HourAttainment 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 ofthe regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the adopted rule does not meet the definition 

### ofa "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental rule" is, "a rule the specific intent 

### ofwhich 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 ofthe 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 ofstate 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 ofthe federal governmentto implement a state and federal program; or (4) adopts a rule solely underthe general powers of the agency instead of under a specific state 

### law." The adopted rulemaking implements requirements ofthe 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 

### Just1fication 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 ofthe economy, productivity competition, or jobs, nor wiU the adopted rule adversely affect 1n a matenal way the env1ronment or the public health and safety ofthe state or a sector ofthe 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 of58 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, §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 58 633. This con**cl~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 ofthe 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 greaterthan is necessary or appropriate to meet the requirements of the FCAA. For these reasons,



## ADOPTED RULES May 6, 2011 36 TexReg 2857rules 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 ofstate 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 ofthe 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 ofTexas Government Code, §2001.0225(b}, for the following reasons. The adopted rulemaking is not a majorenvironmental 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 ofSIP rules in the DFW 1997eight-hour ozone nonat**ta~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 majorenvironmental rule, tl does not meet any ofthe 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 theTWC which are cited in the STATUTORY AUTHORITY section ofthis'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 subjectofthe governmental action, in whole or in part ortemporarily or permanenHy, 1n a manner that restricts or limits the owner's right to the property thatwould otheiWise exist in the absence ofthe governmental action; and (ii} is the producing cause of a reduction ofat 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 ifthe governmental action is not in effect and the mail<et value ofthe property determined as ifthe governmental action is in ef

### fect." 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 ofthe adopted rule would be neither a staMory nor a constitutional taking ofprivate 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 benefitthe 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 ofany private real property by 25% or more beyondthat which would otherwise exist in the absence ofthe 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 ofthe 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 ofthe 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 minorsources of NO, in 

### the DFW 1997eight-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 biogaswill 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 underthe authority ofTexas 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 consistentwith the policy and purposes ofthe 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 AirAct {FCAA}, 42 United States Code {USC}, §§7401, 

### 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.



## ADOPTEDRULES May 6, 2011 36 TexReg 

## 2859The 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 ofthe agency's legal authority. Filed with the Office ofthe 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 Forfurther 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 ofthe 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 leastas stringent asthe 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 ofthis reorganization is assist the regulated community by making the rules easier to se. No part of the adopted rule

## 36 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 ofthe 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 ofthe 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. SubchapterD: Rules andRegulatio s forPublic 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 icoJon, 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)