Bryan W. Shaw, Ph.D., Chairman 

Carlos Rubinstein, Commissioner 

Toby Baker, Commissioner 

Zak Covar, Executive Director 

RECEIVED- 61'0L 

AIR PLANNING SEC. 

13 HAY 13 PH 5: 07 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

May 8, 2013 

Ron Curry 

Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Curry: 

DocketNo. 2012-1388-RUL 

Rule Project No. 2012-031-117-AI 

On April to, 2013, the Texas Commission on Environmental Quality (Commission) adopted revisions 

to the State Implementation Plan {SIP). 

The Commission adopted amendments to§§ 117.2103, 117.2130, 117.2135, and 117.2145 in 30 Texas 

Administrative Code Chapter 117, Control of Air Pollution from Nitrogen Compounds, Subchapter D, 

Combustion Control at Minor Sources in Ozone NonattainmentAreas, Division 2, Dallas-Fort Worth 

Eight-Hour Ozone Nonattainment Area Minor Sources; and corresponding revisions to the SIP. The 

adopted amendments will provide an exemption from the emission testing requirements in Chapter 

117 for engines that are used exclusively for product testing and personnel training, operate in limited 

service, and meet the applicable federal emissions standards in 40 Code of Federal Regulations Part 

89. Engines used in this type of service .-ill be required to install and operate a non-resettable elapsed 

run time meter, maintain records of daily hours of operation, and maintain records demonstrating 

compliance with the applicable federal emissions standards. The rulemaking is a follow-up to a 

petition for rulemaking approved by the Commission on May 30, 2012. 

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

public hearings, and the accompanying order. I look forward to your expeditious approval of these 

SIP revisions. 

Sincerely, 

~~~.~ Chairman 

BWS/al 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Ms. Kelly Kennedy, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • treq.texas.gov ------

How is our customer service? tceq.texas,govjcustornersurvey 
TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY 

THE STATE OF TEXAS 

COUNTY OF TRAVIS 

Docket No. 2012-1388-RUL 

Rule Project No. 2012-031-117-AI 

This is to certify that the attached electronic file is included and that the electronic file is a 

true and correct copy of documents for a revision to the Texas State Implementation Plan, 

adopted on April10, 2013, pursuant to 40 Code of Federal Regulations § 51.104. I am the 

records administrator for the Air Quality Division of the Texas Commission on 

Environmental Quality (Commission). 

~r~Jj,~ Air Quality Division 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearings 

December 13 and 18, 2012 

Concerning Revisions to 30 T AC Chapter 117 

Control of Air Pollution from Nitrogen Compounds 

and corresponding revisions to the 

State Implementation Plan 

Project No. 2012-031-117-AI 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) scheduled public hearings in 

Fort Worth on December 13, 2012 and in Austin on December 18, 2012 to receive testimony 

regarding 30 TAC Chapter 117, Control of Air Pollution from Nitrogen Compounds and 

corresponding revisions to the state implementation plan. 

The rulemaking provides an exemption from the emission testing requirements in Chapter 117 

for engines that are used exclusively for product testing and personnel training, operate in 

limited service, and meet the applicable federal emissions standards in 40 Code of Federal 

Regulations Part 89. Engines used in this type of service will be required to install and operate a 

non-resettable elapsed run time meter, maintain records of daily hours of operation, and 

maintain records demonstrating compliance with the applicable federal emissions standards. 

This rulemaking is a follow-up to a petition for rulemaking approved by the commission on May 

30, 2012. 

The comment period closed on December 19, 2012. All testimony and comments have been 

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

public hearings and is divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations/Order 
Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 

35 Circle, Austin, Texas 78753. For further information, please contact Javier Galvan at (512) 

239-1492. 
NOTICE & PROPOSAL 
PUBLIC NOTIFICATION 

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

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

Austin American-Statesman: November 5, 2012 

Fort Worth Star-Telegram: November 5, 2012 

2. Publication of the proposed rules in the November 16, 2012, issue of the Texas Register (37 

TexReg 9060). 

3. Publication of the Notice of Public Hearings in the November 16, 2012, issue of the Texas 

Register(37 TexReg 9165). 

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

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Austin, Mayor's Office 

City of Dallas, Department of Environmental Quality 

City of Dallas, Department of Aviation 

City of El Paso, Environmental SeNices 

City of Fort Worth, Environmental Management Department 

City of Fort Worth, Mayor's Office 

City of Houston, Department of Health and Human SeNices 
East Texas Council of Governments 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Harris County Public Health and Environmental Services 

Houston-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Tarrant County Judge 

Texas Department of Transportation 

Travis County Judge 

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 

Austin American-Statesman, November 5, 2012 
Robert Martinez 

Director. Environmental Law Divisi 

Texas Commission on Environmen I Quality 

Filed: November 6, 2012 

• • 

Notice of Public Hearings on Proposed Revisions to 30 TAC 

Chapter 117 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct public hearings to receive testimony regarding proposed revisions to 30 TAC Chapter 117, Control of Air Pollution from Nitrogen 

Compounds, §§117.2103, 117.2130, 117.2135, and 117.2145, and corresponding revisions to the state implementation plan (SIP) under the 

requirements of Texas Health and Safety Code, §382.0 17; Texas Government Code, Chapter 200 I, Subchapter B; and 40 Code of Federal 

Regulations (CFR) §51.102 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would provide an exemption from the emission testing requirements in Chapter 117 for engines that are used exelusively for product testing and personnel training, operate in limited 

service, and meet the applicable federal emissions standards in 40 CFR 

Part 89. Engines used in this type of service would be required to install 

and operate a non-resettable elapsed run time meter, maintain records 

of daily hours of operation, and maintain records demonstrating compliance with the applicable federal emissions standards. The proposed 

rulemaking is a follow-up to a petition for rulemaking approved by the 

commission on May 30, 2012. 

The commission will hold public hearings on this proposal in Fort 

Worth on December 13, 2012 at 2:00 p.m. in the Dallas-Fort Worth 

(DFW) Regional Office Public Meeting Room at the commission's 

DFW Regional Office located at 2309 Gravel Dr.; and in Austin on 

December 18, 2012 at 10:00 a.m. in Building E, Conference Room 

201S, at the commission's central office located at 12100 Park 35 

Circle. The hearings are structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion 

will not be permitted during the hearings; however, commission staff 

members will be available to discuss the proposal 30 minutes prior to 

the hearings. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearings should contact Sandy 

Wong, Office of Legal Services, at (512) 239-1802. Requests should 

be made as far in advance as possible. 

Written comments may be submitted to Michael Parrish, 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://www 5. tceq. texas.govlrules/ecomments/. File size restrictions may apply to comments being submitted via the eComments 

system. All comments should reference Rule Project Number 

2012-031-117-Al. The comment period closes December 19, 2012. 

Copies of the proposed rulemaking can be obtained from the 

commission's website at http://www.tceq.texas.gov/navlruleslpropose_adopt.html. For further information, please contact Javier 

Galvan, Air Quality Planning Section, (512) 239-1492. 

TRD-201205664 

Robert Martinez 

Director. Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: November 2, 2012 

I 

• • • 

Notice of Water Quality Applitations 

The following notices were issu d on October 26, 2012, through 

November 2, 2012 . 

The following require the applicadts to publish notice in a newspaper. 

Public comments, requests for pulj!ic meetings, or requests for a contested case hearing may be submi' ed to the Office of the Chief Clerk, 

Mail Code 105, P.O. Box 13087, ustin, Texas 78711-3087, WITHIN 

30 DAYS OF THE DATE OF NE SPAPER PUBLICATION OF THE 

NOTICE. 

INFORMATION SECTION ~ 

UNIMIN CORPORATION whic operates the Troup Plant, a ball 

clay mine, has applied for a ajor amendment with renewal to 

Texas Pollutant Discharge Elimi ation System (TPDES) Permit No. 

WQ0002973000 to reduce the a~ual sulfate loading from 360,000 

lbs/year to 36,000 lbs/year at Out all 001; to increase daily maximum 

sulfate limits from 900 mg!L to 1 800 mg!L at Outfalls 001, 002, and 

005; to remove daily average sui ate limits at Outfalls 001, 002, and 

005; and to remove Outfall 004 f}'om the permit. The current permit 

authorizes the discharge of mine. ~it water and storm water runoff on 

an intermittent and flow variable fsis via Outfalls 001, 002, 004, 005, 

006, and 007. The facility is locat d approximately one mile southwest 

of the intersection of Farm-to-M ket Road 856 and Farm-to-Market 

Road 13, and 1.8 miles northwes of the Town of Concord, Cherokee 

County, Texas 75789. 

BELL COUNTY WATER cqNTROL AND IMPROVEMENT 

DISTRICT NO 2 has applied fi r a renewal of TCEQ Permit No. 

WQ0004436000, which authori es the land application of sewage 

sludge for beneficial use. The cu ent permit authorizes land application of sewage sludge for benefi ial use on 3.27 acres. The sewage 

sludge land application site is lo ated on Farm-to-Market Road 436, 

one-half mile east of State High y 95, in Bell County, Texas 76554. 

VLS RECOVERY SERVICE 

cleaning facility, has applied 

No.WQ0003627000, which aut 

on an intermittent and variable 

located at 17020 Premium Driv 

County, Texas 77447. 

LLC which operates a railcar 

r the renewal of TPDES Permit 

rizes the discharge of storm water 

as is via Outfall 00 1. The facility is 

within the City of Hockley, Harris 

CITY OF SEGUIN has applied fi r a major amendment to TPDES Permit No. WQ0010277003 to aut orize a relocation of outfall from its 

current location at Geronimo Cr ek to a downstream point closer to 

Geronimo Creek's confluence w· h the Guadalupe River. The current 

permit authorizes the discharge f treated domestic wastewater at an 

annual average flow not to exc ed 2,130,000 gallons per day. The 

facility is located at 450 Seitz ad, approximately one mile east of 

Farm-to-Market Road 466, 1.8 iles southeast of the intersection of 

State Highway 123 and U.S. Hi way 90A, and 3/4 mile north of the 

Guadalupe River in Guadalupe ounty, Texas 78155. 

CITY OF GEORGETOWN has pplied tor a renewal ofTPDES Permit No. WQ0010489006, whic authorizes the discharge of treated 

domestic wastewater at a daily verage flow not to exceed 400,000 

gallons per day via Outfall 001 The current permit also authorizes 

the disposal of treated domestic astewater at a daily average flow not 

to exceed 100,000 gallons per d y via irrigation of a 150 acres of golf 

course via Outfall 002. The com ined daily average flow from Outfall 

001 and 002 shall not exceed 50 ,000 gallons per day. No discharge of 

pollutants into water in the stat ·s authorized from Outfall 002. The 

facility is located at 30002 Bri Crest, Georgetown, Texas, approximately 2,000 feet north-northe st of Williamson Country Road 190 

crossing Berry Creek, approxim' tely 4,250 feet northwest of the interIN ADDITION November 16, 2012 37 TexReg 9165 
Bryan W. Shaw, Ph.D., Chairman 

Carlos Rubinstein, Commissioner 

Toby Baker, Commissioner 

Zak Covar, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARINGS ON PROPOSED REVISIONS TO 30 TAC 

CHAPTER 117 AND TO THE STATE IMPLEMENTATION PLAN 

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

hearings to receive testimony regarding proposed revisions to 30 TAC Chapter 117, 

Control of Air Pollution from Nitrogen Compounds, §§117.2103, 117.2130, 117.2135, and 

117.2145, and corresponding revisions to the state implementation plan (SIP) under the 

requirements of Texas Health and Safety Code, §382.017; Texas Government Code, 

Chapter 2001, Subchapter B; and 40 Code of Federal Regulations (CFR) §51.102 of the 

United States Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would provide an exemption from the emission testing 

requirements in Chapter 117 for engines that are used exclusively for product testing and 

personnel training, operate in limited service, and meet the applicable federal emissions 

standards in 40 CFR Part 89. Engines used in this type of service would be required to 

install and operate a non-resettable elapsed run time meter, maintain records of daily 

hours of operation, and maintain records demonstrating compliance with the applicable 

federal emissions standards. The proposed rulemaking is a follow-up to a petition for 

rulemaking approved by the commission on May 30, 2012. 

The commission will hold public hearings on this proposal in Fort Worth on December 

13, 2012 at 2:00p.m. in the Dallas-Fort Worth (DFW) Regional Office Public Meeting 

Room at the commission's DFW Regional Office located at 2309 Gravel Drive; and in 

Austin on December 18, 2012 at 10:00 a.m. in Building E, Conference Room 201S, at the 

commission's central office located at 12100 Park 35 Circle. The hearings are structured 

for the receipt of oral or written comments by interested persons. Individuals may 

present oral statements when called upon in order of registration. Open discussion will 

not be permitted during the hearings; however, commission staff members will be 

available to discuss the proposal 30 minutes prior to the hearings. 

Persons who have special communication or other accommodation needs who are 

planning to attend the hearings should contact Sandy Wong, Office of Legal Services at 

(512) 239-1802. Requests should be made as far in advance as possible. 

Written comments may be submitted to Michael Parrish, 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:jjwwws.tceq.texas.govjrulesjecommentsj. File size restrictions may apply to 

comments being submitted via the eComments system. All comments should reference 

Rule Project Number 2012-031-117-AI. The comment period closes December 19, 2012. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq. texas.gov I go to I customersurvey 

printed on recycled paper 
Copies of the proposed rulemaking can be obtained from the commission's website at 

http:jjwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further information, 

please contact Javier Galvan, Air Quality Planning Section, (512) 239-1492. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq. texas.gov I go to/ customersurvey 

printed on recycled paper 
telemedicine medical services or elehealth services. Health care or 

treatment provided using telemedi ine medical services or telehealth 

services after a THSteps preventiv health visit for conditions identitied during a THSteps preventive t ealth visit may be reimbursed. 

(B) Documentation ·n the patient's medical record for a 

telemedicine medical service or a elehealth service must be the same 

as for a comparable in-person eva! ation. 

(C) Providers of t lemedicine medical services and 

telehealth services must maintain confidentiality of protected health 

information (PHI) as required bv 2 CFR Part 2, 45 CFR Parts 160 

and 164, chapters Ill and 159 o the Occupations Code, and other 

aQQlicable federal and state law. 

(D) Providers of t lemedicine medical services and 

telehealth services must comply v. th the requirements for authorized 

disclosure of PHI relating to patie 11ts in state mental health facilities 

and residents in state supported li · ng centers. which are included in 

but not limited to 42 CFR Part 2 ~5 CFR Parts 160 and 164 Health 

and Safety Code §611.004, and otl r applicable federal and state law. 

(E) Telemedicine n edical services and telehealth services are reimbursed in accordanc with Chapter 355 of this title (relating to Reimbursement Rates}. 

This agency hereby certifies tha the proposal has been reviewed 

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

Filed with the Office of the Sec etary of State on November 5, 

2012. 

TRD-20 1205694 

Steve Aragon 

Chief Counsel 

Texas Health and Human Services ~ommission 

Earliest possible date of adoption: December 16, 2012 

For further information, please call: (512) 424-6900 

• • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 117. CONTROL OF AIR 

POLLUTION FROM NITROGEN COMPOUNDS 

SUBCHAPTER D. COMBUSTION 

CONTROL AT MINOR SOURCES IN 

OZONE NONATTAINMENT AREAS 

DIVISION 2. DALLAS-FORT WORTH 

EIGHT-HOUR OZONE NONATTAINMENT 

AREA MINOR SOURCES 

30 TAC §§117.2103, 117.2130, 117.2135, 117.2145 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) proposes amendments to §§117.2103, 

117.2130, 117.2135, and 117.2145. 

If adopted, the amended sections will be submitted to the United 

States Environmental Protection Agency (EPA) as a revision to 

the state implementation plan (SIP). 

Background and Summary of the Factual Basis for the Proposed 

Rules 

On April 5, 2012, Halliburton Energy Services, Incorporated 

(Halliburton) submitted a petition for rulemaking requesting 

a partial exemption from the rules in 30 TAC Chapter 117, 

Subchapter D, Division 2 that limit nitrogen oxides (NOJ emissions from minor sources in the Dallas-Fort Worth (DFW) 1997 

eight-hour ozone nonattainment area. The commission approved the petition for rulemaking on May 30, 2012, and issued 

an order on June 1, 2012, directing the executive director to 

examine the issues in the petition and to initiate rulemaking 

(Project No. 2012-029-PET-NR). 

The unique service of the Halliburton Drawworks Engine makes 

ongoing testing to demonstrate compliance with the Chapter 117 

NOx emission limits impractical and comparatively more expensive than the stationary engine testing envisioned during the 

adoption of the Chapter 117 rules in 2007. To comply with the 

Chapter 117 testing requirements, Halliburton must arrange for 

both emissions testing equipment (a normal and expected expense) and for the rental, transport, and use of a dynamometer, 

which is typically used by engine manufacturers for testing purposes. Preparing the engine for installation of the dynamometer 

and returning the engine to operational status subsequent to the 

emissions testing presents significant safety hazards associated 

with the removal of the drive train and transmission, removal of 

the torque converter, and the placement and use of non-dedicated hoisting equipment on the rig floor. Performing a compliant 

emissions test of the Drawworks Engine takes three to four days 

to complete, whereas compliant emissions testing on a typical 

stationary engine only requires approximately half a day. Additionally, engines used to raise and lower down-hole equipment 

in actual oil and gas operations in the field, which the Drawworks 

Engine is designed to simulate, are typically not subject to similar 

Chapter 117 testing requirements because they are not installed 

at a location long enough to trigger the definition of a stationary 

internal combustion engine in §117.10. The Drawworks Engine 

is subject to Chapter 117, Subchapter D, Division 2 because the 

equipment has been made stationary to provide testing and training facilities for sources that are not subject to the rule. 

The proposed change would expand the list of exempted 

sources in §117.2103 to include stationary diesel engines 

that are used exclusively for product testing and personnel 

training, operate less than 1 ,000 hours per year on a rolling 

12-month basis, and meet applicable Tier emission standards 

for non-road engines listed in 40 Code of Federal Regulations 

(CFR) §89.112(a), Table 1 (October 23, 1998) in effect at the 

time of installation, modification, reconstruction, or relocation. 

The proposed exemption is narrow in scope and consistent with 

the similar existing exemptions for stationary diesel engines 

located at minor sources, such as stationary engines used in 

research and testing and stationary engines used for purposes 

of performance verification and testing. The proposed change 

would also revise the operating requirements of §117.2130, the 

monitoring requirements of §117.2135, and the recordkeeping 

requirements of §117.2145 to reflect the new category of exempt 

engines. 

Demonstrating Noninterference under Federal Clean Air Act, 

Section 11 0(1) 

37 TexReg 9060 November 16,2012 Texas Register 
The commission provides the following information to demonstrate why the proposed new exemption in § 117.2103 would not 

negatively impact the status of the state's progress towards attainment with the 1997 eight-hour ozone National Ambient Air 

Quality Standard (NAAQS), would not interfere with control measures, and would not prevent reasonable further progress toward 

attainment of the ozone NAAQS. 

On December 6, 2000, as part of the Houston-Galveston-Brazoria (HGB) attainment demonstration SIP, the commission 

adopted a new control strategy for stationary reciprocating internal combustion engines, boilers, and process heaters located 

at minor industrial, commercial, and institutional sources of NOx 

in the HGB area. The adopted rulemaking exempted engines 

used for specific· purposes, such as those used in research 

and testing and those used for the purposes of performance 

verification and testing. 

On May 23, 2007, as part of the DFW 1997 eight-hour ozone 

attainment demonstration SIP, the commission adopted new 

emission control requirements for stationary reciprocating internal combustion engines located at minor industrial, commercial, 

and institutional sources of NOx in the DFW area. The NOx 

emission reductions were necessary for the DFW area to attain 

the 1997 eight-hour ozone NAAQS. Similar to the HGB rulemaking, the DFW rulemaking also adopted exemptions for engines 

used for specific purposes, such as those used in research 

and testing and those used for the purposes of performance 

verification and testing. 

The proposed partial exemption is narrowly tailored and will not 

adversely impact the DFW area's progress in attaining the 1997 

eight-hour ozone NAAQS. During the 2000 and 2007 rulemakings, no stationary engines similar in function to the Halliburton 

Drawworks engine were identified in the emissions inventory in 

the counties impacted by the rulemakings, and no such engines 

were relied upon for creditable reductions for the SIP. Therefore, if the proposed rulemaking is adopted, it would not result 

in a loss of any SIP creditable reductions for the DFW 1997 

eight-hour ozone nonattainment area. Additionally, based on 

February 2012 emissions test results and a limit of 1,000 hours 

of run time per year, the Drawworks Engine has maximum potential annual NOx emissions of 0.87 tons per year and is well 

below the emission standards established in the Chapter 117 

minor source NOx rules. The proposed exemption criteria require compliance with the federal standards in 40 CFR Part 89 

to ensure that the proposed exemption will not result in backsliding. Based on the test results, the Drawworks Engine at the 

Halliburton Carrollton Plant meets Tier 3 emission standards for 

non-road engines listed in 40 CFR §89.112(a), Table 1 (October 

23, 1998). Therefore, the Drawworks Engine would be required 

to and does meet the applicable federal emission standards in 

40 CFR §89.112(a), Table 1 (October 23, 1998) for the engine's 

size and installation date. The NOx emission limits for stationary diesel engines in §117.2110 were derived from the Tier standards in 40 CFR Part 89. Therefore, the proposed exemption 

should not result in additional NOx emissions in the DFW area. 

Based on these factors, the commission has determined that 

the proposed rule change will not negatively impact the status 

of the state's attainment demonstration for the 1997 eight-hour 

ozone NAAQS, will not interfere with control measures, and will 

not prevent reasonable further progress toward attainment of the 

ozone NAAQS. 

Section by Section Discussion 

Section 117.2103, Exemptions 

The commission proposes §117.2103(10) to exempt stationary 

diesel engines that are used exclusively for product testing and 

personnel training, operate less than 1,000 hours per year on a 

rolling 12-month basis, and meet applicable Tier emission standards for non-road engines listed in 40 CFR §89.112(a), Table 

1 (October 23, 1998) in effect at the time of installation, modification, reconstruction, or relocation. The proposed exemption is 

only intended to apply to an engine that is in dedicated service 

for product testing and personnel training and is not intended to 

apply to an engine that is used for any additional purpose. The 

proposed amendment would exempt engines in this unique service from ongoing testing to demonstrate compliance with the 

Chapter 117 NOx emission limits because the testing requirements are impractical and comparatively more expensive than 

the stationary engine testing envisioned at adoption of the rule. 

Requiring compliance with the federal standards in 40 CFR Part 

89 ensures that the proposed exemption will not result in additional NOx emissions in the DFW area because the Chapter 117 

NOx emission limits were derived from these federal standards. 

The petitioner requested the proposed exemption limit the engine's operating hours to less than 1 ,000 hours per year based 

on a rolling 12-month average. The commission is proposing to 

limit the engine's operating hours to less than 1,000 hours per 

year on a rolling 12-month basis to more accurately reflect how 

an affected source would demonstrate compliance with the operating restriction of a total of 1,000 hours per year. 

Section 117.2130, Operating Requirements 

The commission proposes to amend §117.2130(c) to distinguish 

between product testing as used in the proposed exemption in 

§117.2103(10) and engine testing as used in the existing rule 

language in §117.2130(c). Currently, the existing rule language 

in §117.2130(c) prohibits a person from starting or operating any 

stationary diesel or dual-fuel engine in the DFW 1997 eight-hour 

ozone nonattainment area for testing or maintenance between 

the hours of 6:00a.m. and noon, except when a specific manufacturer's recommended test requires a run of over 18 consecutive hours, to verify the reliability of emergency equipment immediately after unforeseen repairs, and to use firewater pumps for 

emergency response training conducted in the months of April 

through October. The proposed revision clarifies that the prohibition is specific to testing or maintenance of the engine to avoid 

conflict with the proposed new exemption in §117.2103(10) for 

stationary engines that are used exclusively for product testing 

and personnel training and more accurately reflect the intent of 

the prohibition. 

Section 117.2135, Monitoring, Notification, and Testing Requirements 

The commission proposes to amend §117.2135(e) by including 

by reference the proposed exemption in §117.2103(10). The 

proposed revision would require sources claiming the proposed 

exemption in §117.21 03(1 0) to monitor the operating time with a 

non-resettable elapsed run time meter in order to demonstrate 

compliance with the operating restrictions in §117.2103(10). To 

conform to Texas Register formatting standards, the commission 

also proposes to amend subsection (e) to add a reference to the 

title of §117.2103. 

Section 117.2145, Recordkeeping and Reporting Requirements 

The commission proposes to amend §117.2145(b) by reformatting the existing provision and adding new recordkeeping 

requirements associated with the proposed exemption in 

PROPOSED RULES November 16,2012 37 TexReg 9061 
§117.2103(10). The existing requirements in §117.2145(b) are 

only proposed for reformatting to accommodate the new recordkeeping requirements associated with the proposed exemption 

in §117.2103(10). The proposed amendment will not alter the 

intent of the existing recordkeeping requirements for sources 

currently complying with §117.2145(b) or impose any new 

requirements on engines claimed exempt under §117.2103(5), 

(8), or (9) or §117.2130(b)(3). The commission requests comment on any instance where the reformatting of §117.2145(b) 

inadvertently altered the existing recordkeeping requirements. 

The proposed changes to §117.2145(b) modify the record retention requirement in existing §117.2145(b) to apply to the records 

specified in paragraphs (1)- (3). Consistent with the current requirements, records are required to be maintained for at least 

five years and must be made available upon request to representatives of the executive director, the EPA, or any local air pollution control agency having jurisdiction. 

Proposed §117.2145(b)(1) requires written records of the 

number of hours of operation for each day's operation to be 

maintained for each engine claimed exempt under §117 .21 03(5), 

(8), (9), or (10) or §117.2130(b)(3). Proposed §117.2145(b)(1) 

includes the existing requirements in §117.2145(b) for engines claimed exempt under §117.2103(5), (8), or (9) or 

§117.2130(b)(3) and would apply the same requirements to 

engines claimed exempt under proposed §117.2103(10). The 

proposed revision would require sources claiming the proposed 

exemption in §117.2103(10) to maintain written records of the 

number of hours of operation for each day's operation in order to 

demonstrate compliance with the operating restrictions included 

in §117.2103(10). 

Proposed §117.2145(b)(2) includes the existing requirements in 

§ 117 .2145(b) for the owner or operator of each engine claimed 

exempt under §117.2103(5) to maintain written records of the 

purpose of engine operation and, if operation was for an emergency situation, identification of the type of emergency situation 

and the start and end times and date(s) of the emergency situation. 

Proposed §117.2145(b)(3) requires the owner or operator of 

each engine claimed exempt under §117.2103(10) to maintain 

records of manufacturer's specifications or test data sufficient 

to demonstrate compliance with the corresponding emission 

standard for non-road engines listed in 40 CFR §89.112(a), 

Table 1 (October 23, 1998) as specified in §117.2103(10)(C). 

This recordkeeping requirement was not specifically requested 

in the petition for rulemaking approved by the commission 

on May 30, 2012. However, the commission is proposing to 

include this recordkeeping requirement to clearly indicate the 

records required to demonstrate compliance with the proposed 

exemption criteria in §117.2103(10) and facilitate enforcement 

of the proposed exemption. Additionally, the proposed recordkeeping provision in subsection (b)(3) makes clear that either 

engine manufacturer's specifications or actual emission testing 

are acceptable for demonstrating that the engine meets the 

exemption criteria. 

Fiscal Note: Costs to State and Local Government 

Nina Chamness, Analyst, Strategic Planning and Assessment, 

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

rules are in effect, no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rules since currently available resources 

would be used to implement them. Other units of state or local 

government would not experience fiscal impacts under the proposed rules since these entities do not typically own or operate 

the type of stationary diesel engines addressed by the proposed 

rules. 

The proposed rules are narrow in scope and would apply only to 

the DFW 1997 eight-hour ozone nonattainment area. The proposed rules would expand the list of exempt stationary engines 

in Chapter 117 to include a certain type of stationary diesel engine. The proposed exemption would be similar to existing exemptions for stationary diesel engines located at minor sources 

in the DFW area. The proposed exemption would be for stationary diesel engines that are used exclusively for product testing 

and personnel training; that operate less than 1 ,000 hours per 

year; and that meet applicable ner emission standards found in 

federal regulations for non-road engines. The proposed rules 

would also clarify monitoring and recordkeeping requirements 

for this type of engine. 

No units of local government or other state agencies are known 

to own or use the type of stationary engine that is the subject of 

this rulemaking. Therefore, the proposed rules would have no 

fiscal impact on these governmental entities. 

Public Benefits and Costs 

. Nina Chamness also determined that for each year of the first 

five years the proposed rules are in effect, the public benefit 

anticipated from the changes seen in the proposed rules will 

be continued protection of the environment and public health 

and safety combined with efficient and fair administration of NOx 

emission standards for the DFW 1997 eight-hour ozone nonattainment area. 

The proposed rules would not have a fiscal impact on individuals 

in the DFW 1997 eight-hour ozone nonattainment area. 

The proposed rules would give a limited exemption from the 

emission limits, monitoring requirements, and testing requirements found in Chapter 117 for one large business in the DFW 

1997 eight-hour ozone nonattainment area that owns and operates a stationary diesel engine that is used exclusively for product testing and personnel training; that operates less than 1,000 

hours per year; and that meets applicable federal ner emission 

standards for non-road engines. The narrow scope of the proposed rulemaking would not result in additional NOx emissions 

in the DFW 1997 eight-hour ozone nonattainment area since 

the maximum potential NOx emissions for this engine operating 

within this exemption would be 0.87 tons per year. 

The proposed rulemaking would require the large business to 

install and operate a non-resettable run time meter and to maintain records of engine operating hours. However, the business 

would not be required to dismantle the transmission of the engine to install a dynamometer or incur the cost to rent or transport 

the dynamometer to comply with emission testing requirements 

under the current rules. An emissions test using a dynamometer could be as much as $26,000 per testing event, and testing 

could take up to four days. The one-time cost of a run time meter is estimated to be $2,000 to $3,000, and recordkeeping costs 

are expected to be minimal under the proposed rules. 

Small Business and Micro-Business Assessment 

No adverse fiscal implications are anticipated for small or microbusinesses as a result of the proposed rules. A small business 

does not typically own or operate an engine that would be used 

in the type of service addressed by the proposed rules. 

37 TexReg 9062 November 16, 2012 Texas Register 
Small Business Regulatory Flexibility Analysis 

The ?ommission has revi~wed this proposed rulemaking and determmed that a small busmess regulatory flexibility analysis is not 

required because the proposed rules do not adversely affect a 

small or micro-business in a material way for the first five years 

that the proposed rules are in effect. 

Local Employment Impact Statement 

The ?ommission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the 

proposed rules are in effect. 

Draft Regulatory Impact Analysis Determination 

The commission reviewed the proposed rulemaking in light of the 

regulatory analysis requirements of Texas Government Code 

§2001.0225 and determined that the proposed rulemaking doe~ not meet the definition of a major environmental rule. Texas Government Code, §2001.0225 states that a major environmental 

rule is a rule for which the specific intent 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 proposed rulemaking does not constitute a major environmental rule, even if it did, 

a regulatory impact analysis would not be required because the 

pr?p~sed rule~~king does not meet any of the four applicability 

cntena for requ1nng a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies 

only to a major environmental rule that: 1) exceeds a standard 

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

law; 2) exceeds an express requirement of state law, unless the 

rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state 

and an agency or representative of the federal government to 

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

u_n_der the general powers of the agency instead of under a speCific state law. Specifically, it does not meet any of the four applicability criteria listed in Texas Government Code, §2001.0225 

because: 1) the proposed rulemaking is part of the SIP and as 

such is designed to meet, not exceed the relevant standard set 

by f~deral law; 2) parts of the proposed rulemaking are directly 

requ1red by state law; 3) no contract or delegation agreement 

~overs the topic that is the subject of this proposed rulemaklng; and 4) the proposed rulemaking 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, which are cited in the Statutory Authority section of this 

preamble. 

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

§7 410, each state is required to adopt and implement a Sl P containing adequate provisions to implement, attain, maintain, and 

enforce the NAAQS within the state. While 42 USC, §7 410 generally does not require specific programs, methods, or reductions in order to meet the standard, SIPs must include enforceable emission limitations and other control measures, means or 

techniques (including economic incentives such as fees, ~ar­ ketable permits, and auctions of emissions rights), as well as 

schedules .and timetables for c?mpliance as may be necessary 

or appropnate to meet the applicable requirements of this chapter (meaning 42 USC, Chapter 85, Air Pollution Prevention and 

Control, otherwise known as the FCAA). The provisions of the 

FCAA recognize that states are in the best position to determine 

what programs and controls are necessary or appropriate in or-

~er to meet the NAAQS. This flexibility allows states, affected 

mdustry, and the public to collaborate on the best methods for 

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

th?ugh ~h~. FCAA allows states to develop their own programs, 

th1s flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States 

are not free to ignore the requirements of 42 USC, §7 410, and 

must develop programs and control measures to assure that 

their SIPs provide for implementation, attainment, maintenance, 

and enforcement of the NAAQS within the state. The specific intent of the proposed rulemaking is to implement changes within 

the Chapt~r 117, Subchapter D, Division 2 rules, which will expand the list of ~xempted sources operating in limited services 

1n §117.2103 to Include stationary diesel engines that are used 

excl~sively f?r pro~uc_t testing and personnel training, and meet 

applicable T1er emiSSion standards for non-road engines listed 

in the applicable CFR. 

While the proposed rulemaking protects the environment or reduces risks to human health from environmental exposure, it 

does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because it does not adversely 

affect i~ ~ material way the economy, a sector of the economy, 

productivity, compet1t1on, or jobs, nor would the rulemaking adversely affect in a material way the environment, or the public 

health and safety of the state or a sector of the state. The rulemaking as a result is not subject to a regulatory impact analysis 

under Texas Government Code, §2001.0225 because it is not a 

major environmental rule. 

The requirement to provide a fiscal analysis of regulations in the 

Texas Go_vernment Code was amended by Senate Bill (SB) 633, 

75th ~eg1slature, 1997. The intent of SB 633 was to require 

agenc1es to conduct a regulatory impact analysis of extraordi-

~ary ru!es. 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 TCEQ. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: based on an assessment of 

rules adopted by the agency in the past, it is not anticipated that 

the_ billwiU have si_gni~icant fiscal implications for the agency due 

to 1ts l1m1ted appl1cat1on. The commission also noted that the 

n_u~ber of rule~ that would require assessment under the proVISions of the bill was not large. This conclusion was based in 

part, on the criteria set forth in the bill that exempted rules fr~m the full analysis unless the rule was a major environmental rule 

that exceeded a federal law. 

The FCAA does not always require specific programs, methods, 

or reduct1ons 1n order to meet the NAAQS; thus, states must develop program_s for each nonattainment area to help ensure that 

those areas Will meet the attainment deadlines. Because of the 

ongoing need to address nonattainment issues and to meet the 

requirements of 42 USC, §7 410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature 

IS presum~d to ~nd~rstand this federal scheme. If each rule proP?Sed for 1nclus1on 1n the SIP was considered to be a major enVironmental rule that exceeds federal law, then every revision to 

the SIP would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conPROPOSED RULES November 16, 2012 37 TexReg 9063 
elusions reached by the commission in its cost estimate and by 

the Legislative Budget Board (LBB) in its fiscal notes. Since the 

legislature is presumed to understand the fiscal impacts of the 

bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes 

that the intent of SB 633 was only to require the full regulatory 

impact analysis for rules that are extraordinary in nature. While 

the rules have a broad impact, that impact is no greater than is 

necessary or appropriate to meet the requirements of the FCAA. 

For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), 

because they are required by federal law. 

The commission has consistently applied this construction to 

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

time, the legislature has revised the Texas Government Code 

but left this provision substantially unamended. It is presumed 

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

legislature amends the laws without making substantial change 

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

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

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

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

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

(Tex. App. Austin 1990, no writ); superseded by statute on 

another point of law, Tax Code § 112.108, Other Actions Prohibited, as recognized in, First State Bank of Dumas v. Sharp, 863 

S.W.2d 81, 83 (Tex. App. Austin 1993, 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, pet. denied); and Coastal 

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

916 (Tex. 1978)). 

The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the 

Texas Administrative Procedure Act (APA) by the legislature in 

1999. In an attempt to limit 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 as required in Texas Government Code, §2001.035. The legislature specifically identified 

Texas Government Code, §2001.0225 as falling under this standard. The commission has complied with the requirements of 

Texas Government Code, §2001.0225. 

Even if 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 exemption is part of the commission's Sl P for making progress toward 

the attainment and maintenance of the NAAQS. Therefore, the 

proposed rulemaking does not exceed a standard set by federal law or exceed an express requirement of state law, since 

they are part of an overall regulatory scheme designed to meet, 

not exceed the relevant standard set by federal law (NAAQS). 

The commission is charged with protecting air quality within the 

state and to design and submit a plan to achieve attainment 

and maintenance of the federally mandated NAAQS. The Third 

District Court of Appeals upheld this interpretation in Brazoria 

County v. Texas Comm'n on Envtl. Quality, 128 S.W. 3d 728 

(Tex. App. - Austin 2004, no writ). The specific intent of the 

proposed rulemaking is to implement changes within the Chapter 117, Subchapter D, Division 2 rules expanding the list of exempted sources listed in §117.2103 to include stationary diesel 

engines used exclusively for product testing and personnel training, and meet applicable Tier emission standards for non-road 

engines listed in the applicable CFR. This proposal, therefore, 

does not exceed an express requirement of federal law. The 

amendment is needed to implement state law but does exceed 

those new requirements. Finally, this rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of THSC, Chapter 382, which are 

cited in the Statutory Authority section of this preamble, including THSC, §382.012 and §382.019. Because this proposed rulemaking does not meet any of the four applicability requirements, 

Texas Government Code, §2001.0225(b) does not apply, and a 

regulatory impact analysis is not required. 

Written comments on the draft regulatory impact analysis determination may be submitted 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 rulemaking and performed an analysis of whether the proposed rulemaking constitutes a taking under Texas Government Code, Chapter 2007. 

The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply. 

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

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

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

requires the governmental entity to compensate the private real 

property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) 

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

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

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

least 25 percent in the market value of the affected private real 

property, determined by comparing the market value of the property as if the governmental action is not in effect and the market 

value of the property determined as if the governmental action 

is in effect." 

Promulgation and enforcement of the rulemaking would be neither a statutory nor a constitutional taking of private real property. The primary purpose of the rulemaking is an update to 

Chapter 117, Subchapter D, Division 2 expanding the list of exempted sources listed in §117.2103 to include stationary diesel 

engines used exclusively for product testing and personnel training, and meet applicable Tier emission standards for non-road 

engines. This rulemaking is not burdensome, restrictive, or limiting of rights to private real property because the rulemaking 

regulates the use of stationary engines in limited circumstances. 

Furthermore, the rulemaking benefits the public by providing oil 

and gas field operators an opportunity for safe simulation without 

incurring the significant safety hazards typically associated with 

the current testing requirements of stationary engines. 

The rulemaking does not affect a landowner's rights in private 

real property because this rulemaking does not burden, restrict, 

or limit the owner's right to property, nor does it reduce the value 

of any private real property by 25% or more beyond that which 

would otherwise exist in the absence of the regulations. Therefore, this rulemaking does not constitute a taking under Texas 

Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

37 TexReg 9064 November 16,2012 Texas Register 
The commission reviewed the proposed rulemaking and found 

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAG §505.11 (b)(2) relating to 

rules subject to the Coastal Management Program (CMP), and 

will, therefore, require that goals and policies of the CMP be considered during the rulemaking process. 

The commission reviewed this rulemaking for consistency with 

the CMP goals and policies in accordance with the regulations of 

the Coastal Coordination Advisory Committee and determined 

that the rulemaking will not affect any coastal natural resource 

areas because the rules only affect counties outside the CMP 

area and is, therefore, consistent with CMP goals and policies. 

Written comments on the consistency of this rulemaking may be 

submitted to the contact person at the address listed under the 

Submittal of Comments section of this preamble. 

Effect on Sites Subject to the Federal Operating Permits Program 

Chapter 117 is an applicable requirement under 30 TAG Chapter 

122, Federal Operating Permits Program. If the amendments to 

Chapter 117 are adopted, owners or operators subject to the federal operating permit program must, consistent with the revision 

process in Chapter 122, upon the effective date of the rulemaking, revise their operating permit to include the new Chapter 117 

requirements. 

Announcement of Hearing 

The commission will hold two public hearings on this proposal: 

one in Fort Worth on December 13, 2012 at 2:00p.m. at the 

commission's Dallas-Fort Worth Regional Office located at 2309 

Gravel Drive; and a second hearing in Austin on December 18, 

2012 at 10:00 a.m. in Building E, Conference Room 201 S, at the 

commission's central office located at 12100 Park 35 Circle. The 

hearing is structured for the receipt of oral or written comments 

by interested persons. Individuals may present oral statements 

when called upon in order of registration. Open discussion will 

not be permitted 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 

Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. 

Submittal of Comments 

Written comments may be submitted to Michael Parrish, 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://www5. tceq. texas.govlru/es/ecomments! 

File size restrictions may apply to comments being submitted 

via the eComments system. All comments should reference 

Rule Project Number 2012-031-117-AI. The comment period 

closes. December 19, 2012. Copies of the proposed rulemaking can be obtained from the commission's Web site at 

http:llwww.tceq.texas.gov/navlru/es/propose_adopt.html. For 

further information, please contact Javier Galvan, Air Quality 

Planning Section, (512) 239-1492. 

Statutory Authority 

The amendments are 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 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 as well as all general policies under the TWC); Texas Health and Safety Code 

(THSC), §382.017, Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the Texas 

Clean Air Act; 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, §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 sections are 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 (d), 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. Finally, the amendment is also proposed under Federal 

Clean Air Act, 42 United States Code (USC), §§7 401, et seq., 

which requires states to submit state implementation plan revisions that specify the manner in which the National Ambient Air 

Quality Standard will be achieved and maintained within each air 

quality control region of the state. 

The proposed amendment implements TWC, §5.1 03 and 

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

382.017, 382.021, 382.051, and FCAA, 42 USC, §§7401 et seq. 

§117.2103. Exemptions. 

This division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainrnent Area Minor Sources) does not apply to the following stationary engines, except as specified in §§117.2130(c), 117.2135(e), and 

117.2145(b) and (c) of this title (relating to Operating Requirements; 

Monitoring, Notification, and Testing Requirements; and Recordkeeping and Reporting Requirements): 

(1) engines with a horsepower (hp) rating of less than 50 

hp; 

(2) engines used in research and testing; 

(3) engines used for purposes of performance verification 

and testing; 

(4) engines used solely to power other engines or gas turbines during startups; 

(5) engines operated exclusively in emergency situations, 

except that operation for testing or maintenance purposes is allowed 

for up to 100 hours per year, based on a rolling 12-month average. 

Any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after June 1, 2007, is ineligible for this 

exemption. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in § 116.10 of 

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

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

"relocated" means to newly install at an account, as defined in § 101.1 

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

PROPOSED RULES November 16, 2012 37 TexReg 9065 
(6) engines used in response to and during the existence of 

any officially declared disaster or state of emergency; 

(7) engines used directly and exclusively by the owner or 

operator for agricultural operations necessary for the growing of crops 

or raising of fowl or animals; 

(8) diesel engines placed into service before June 1, 2007, 

that: 

(A) operate less than 100 hours per year, based on a 

rolling 12-month average; and 

(B) have not been modified, reconstructed, or relocated 

on or after June 1, 2007. For the purposes of this clause, the terms 

"modification" and "reconstruction" have the meanings defined in 

§116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, 

as defined in §101.1 of this title, a used engine from anywhere outside 

that account; [ ood] 

(9) new, modified, reconstructed, or relocated stationary 

diesel engines placed into service on or after June 1, 2007, that: 

(A) operate less than 100 hours per year, based on a 

rolling 12-month average, in other than emergency situations; and 

(B) meet the corresponding emission standard for nonroad engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) 

and in effect at the time of installation, modification, reconstruction, or 

relocation. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of 

this title and 40 CFR §60.15 (December 16, 1975), respectively, and 

the term "relocated" means to newly install at an account, as defined in 

§101.1 ofthis title, a used engine from anywhere outside that account;_ 

and[~] 

(1 0) new, modified. reconstructed, or relocated stationary 

diesel engines placed into service on or after June 1, 2007, that: 

(A) are used solely for product testing and personnel 

(B) operate less than 1,000 hours per year, on a rolling 

12-month basis; and 

(C) meet the corresponding emission standard for nonroad engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) 

and in effect at the time of installation, modification, reconstruction, or 

relocation. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of 

this title and 40 CFR §60.15 (December 16, 1975). respectively. and 

the term "relocated" means to newly install at an account. as defined in 

§ 101.1 of this title, a used engine from anywhere outside that account. 

§117.2130. Operating Requirements. 

(a) The owner or operator shall operate any unit subject to the 

emission specifications of§ 117.2110 of this title (relating to Emission 

Specifications for Eight-Hour Attainment Demonstration) in compliance with those specifications. 

(b) All units subject to§ 117.2110 of this title must be operated 

so as to minimize nitrogen oxides (NO) emissions, consistent with 

the emission control techniques selected, over the unit's operating or 

load range during normal operations. Such operational requirements 

include the following. 

( 1) Each unit controlled with post-combustion control 

techniques must be operated such that the reducing agent injection rate 

is maintained to limit NO, concentrations to less than or equal to the 

NO, concentrations achieved at maximum rated capacity. 

(2) Each stationary internal combustion engine controlled 

with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust 0, or CO 

control and maintains AFR in the range required to meet the engine's 

applicable emission specifications. 

(3) Each stationary internal combustion engine must be 

checked for proper operation according to § 117. 8140(b) of the title 

(relating to Emission Monitoring for Engines). 

(c) No person shall start or operate any stationary diesel or 

dual-fuel engine for testing or maintenance of the engine between the 

hours of 6:00 a.m. and noon, except: 

(1) for specific manufacturer's recommended testing 

requiring a run of over 18 consecutive hours; 

(2) to verify reliability of emergency equipment (e.g., 

emergency generators or pumps) immediately after unforeseen repairs. 

Routine maintenance such as an oil change is not considered to be an 

unforeseen repair; or 

(3) firewater pumps for emergency response training conducted in the months of April through October. 

§117.2135. Monitoring, Notification, and Testing Requirements. 

(a) Oxygen (0,) monitors. If the owner or operator installs an 

0, monitor, the criteria-in §117.8100(a) ofthis title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and 

Institutional Sources) should be considered the appropriate guidance 

for the location and calibration of the monitor. 

(b) Nitrogen oxides (NO) monitors. If the owner or operator 

installs a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS), the CEMS or PEMS must 

meet the requirements of§ 117.81 00( a) or (b) of this title. If a PEMS 

is used, the PEMS must predict the pollution emissions in the units of 

the applicable emission limitations of this division. 

(c) Monitor installation schedule. Installation of monitors 

must be performed in accordance with the schedule specified in 

§ 117.9210 of this title (relating to Compliance Schedule for Dallas-Fort 

Worth Eight-Hour Ozone Nonattainrnent Area Minor Sources). 

(d) Testing requirements. The owner or operator of any unit 

subject to § 117.2110 of this title (relating to Emission Specifications 

for Eight-Hour Attainment Demonstration) shall comply with the following testing requirements. 

(1) Each unit must be tested for NOx, carbon monoxide 

(CO), and 0, emissions. 

(2) One of the ammonia monitoring procedures specified in 

§117.8130 of this title (relating to Ammonia Monitoring) must be used 

to demonstrate compliance with the ammonia emission specification of 

§ 117.211 O(h)(2) of this title for units that inject urea or ammonia into 

the exhaust stream for NO, control. 

(3) For units not equipped with CEMS or PEMS, all testing must be conducted according to §117.8000 of this title (relating 

to Stack Testing Requirements). In lieu of the test methods specified 

in § 117.8000 of this title, the owner or operator may use American 

Society for Testing and Materials (ASTM) D6522-00 to perform the 

NOx, CO, and 0, testing required by this subsection on natural gas-fired 

reciprocating engines. If the owner or operator elects to use ASTM 

D6522-00 for the testing requirements, the report must contain the information specified in § 117.8010 of this title (relating to Compliance 

Stack Test Reports). 

(4) Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance test37 TexReg 9066 November 16, 2012 Texas Register 
ing is based on 40 Code of Federal Regulations Part 60, Appendix A 

reference methods, the report must contain the information specified in 

§ 117.8010 of this title. 

(5) For units equipped with CEMS or PEMS, the CEMS or 

PEMS must be installed and operational before testing under this subsection. Verification of operational status must, at a minimum, include 

completion of the initial monitor certification and the manufacturer's 

written requirements or recommendations for installation, operation, 

and calibration of the device. 

(6) Initial compliance with the emission specifications of 

§ 117.2110 of this title for units operating with CEMS or PEMS must be 

demonstrated after monitor certification testing using the NOx CEMS 

or PEMS. 

(7) For units not operating with CEMS or PEMS, the following apply. 

(A) Retesting as specified in paragraphs (1)- (4) of this 

subsection is required within 60 days after any modification that could 

reasonably be expected to increase the NO, emission rate. 

(B) Retesting as specified in paragraphs (1)- (4) ofthis 

subsection may be conducted at the discretion of the owner or operator after any modification that could reasonably be expected to decrease the NO, emission rate, including, but not limited to, installation 

of post-combustion controls, low-NO, burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, and fuel-lean and conventional (fuel-rich) reburn. 

(C) Stationary, reciprocating internal combustion engines not equipped with CEMS or PEMS must be periodically tested 

for NO, and CO emissions as specified in §117.8140(a) of this title 

(relating to Emission Monitoring for Engines). 

(8) Testing must be performed in accordance with the 

schedule specified in §117.9210 ofthis title. 

(9) All test reports must be submitted to the executive director for review and approval within 60 days after completion of the 

testing. 

(10) The owner or operator of an affected unit in the DallasFort Worth eight-hour ozone nonattainment area must submit written 

notification of any CEMS or PEMS relative accuracy test audit (RATA) 

or testing required under this section to the appropriate regional office 

and any local air pollution control agency having jurisdiction at least 

15 days in advance of the date of RATA or testing. 

(e) Run time meters. The owner or operator of any stationary 

diesel engine claimed exempt using the exemption of §117.2103(5), 

(8), [&] (9)L2!:1!Q2 of this title (relating to Exemptions) shall record 

the operating time with a non-resettable elapsed run time meter. 

§117.2145. Recordkeeping and Reporting Requirements. 

(a) Recordkeeping. The owner or operator of a unit subject to 

§ 117.2110 of this title (relating to Emission Specifications for EightHour Attainment Demonstration) shall maintain written or electronic 

records of the data specified in this subsection. Such records must 

be kept for a period of at least five years and must be made available 

upon request by authorized representatives of the executive director, 

the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include: 

(1) for each unit using a continuous emission monitoring 

system (CEMS) or predictive emission monitoring system (PEMS) in 

accordance with §117.2135(b) ofthis title (relating to Monitoring, Notification, and Testing Requirements) monitoring records of: 

(A) hourly emissions for units complying with an emission specification enforced on a block one-hour average; and 

(B) daily emissions for units complying with an emission specification enforced on a rolling 30-day average. Emissions 

must be recorded in units of: 

(i) pounds per million British thermal units 

(MMBtu) heat input; and 

(ii) pounds or tons per day; 

(2) for each stationary internal combustion engine subject 

to § 117.2110 of this title, records of: 

(A) emissions measurements required by 

§ 117.2130(b)(3) of this title (relating to Operating Requirements); and 

(B) catalytic converter, air-fuel ratio controller, or other 

emissions-related control system maintenance, including the date and 

nature of corrective actions taken; 

(3) records of carbon monoxide (CO) measurements specified in §117.2130(b)(3) ofthis title; 

(4) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance ofCEMS, 

PEMS, or steam-to-fuel or water-to-fuel ratio monitoring systems; and 

(5) records of the results of performance testing, including 

the testing conducted in accordance with § 117.2135( d) of this title. 

(b) Records for exempt engines. [Wflttea rewffis ~the fitlffibef ~ hetlfS ~ operatioa f& eooh 4ifs operatioa fffiiSt be made f& 

eooh eagffie elaimed eJrefllpt flf!6er § 117.21 03 (5), fSf, & f91 ~this title & § 117 .2130(b)(3) ~this~ In atlditien, f& eooh eagffie elaimed 

eJrefllpt flf!6er § 117.21 03 (5) ~this title, Wfitten rewffis fffiiSt be fll:!ti.Rtaifletl ~the ~ ~ eagffie operation arul, tf operation wa5 f& an 

emergeacy situation, identificatioa ~the type ~emergency s-ituatien 

and the st&t and end times and datefs1 ~the emergeacy situation.] The 

following records must be maintained for at least five years and must be 

made available upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local 

air pollution control agency having jurisdiction. 

(1) Written records of the number of hours of operation for 

each day's operation must be maintained for each engine claimed exempt under §117.2103(5), (8), (9), or (10) of this title (relating to Exemptions) or § 117.2130(b)(3) of this title. 

(2) For each engine claimed exempt under § 117.21 03( 5) of 

this title, written records must be maintained of the purpose of engine 

operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and 

date(s) of the emergency situation. 

(3) For each engine claimed exempt under §117.2103(10) 

of this title, records must be maintained of manufacturer's specifications or test data sufficient to demonstrate compliance with the emission standard specified in § 117.21 03(1 O)(C) of this title. 

(c) Records of operation for testing and maintenance. The 

owner or operator of each stationary diesel or dual-fuel engine shall 

maintain the following records for at least five years and make them 

available upon request by authorized representatives of the executive 

director, the United States Environmental Protection Agency, or local 

air pollution control agencies having jurisdiction: 

(1) date(s) of operation; 

(2) start and end times of operation; 

(3) identification of the engine; and 

PROPOSED RULES November 16, 2012 37 TexReg 9067 
( 4) total hours of operation for each month and for the most 

recent 12 consecutive months. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on November 2, 

2012. 

TRD-201205663 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: December 16, 2012 

For further information, please call: (512) 239-2548 

• • • 

TITLE 34. PUBLIC FI*ANCE 

PART 1. COMPTRQLLER OF PUBLIC 

ACCOUNTS I 

CHAPTER 3. TAX AD INISTRATION 

SUBCHAPTER 0. STA: E SALES AND USE 

TAX 

34 TAC §3.325 

The Comptroller of Public Ace unts proposes amendments to 

§3.325, concerning refunds and payments under protest. 

Subsection (a)(2) is amended to~add a new subparagraph (E) to 

expressly state longstanding po icy with respect to third parties 

to whom permitted sellers may ssign a right to a refund, such 

as creditors and successor entiti s, as provided for in Tax Code, 

§ 111.1 04(b ). The proposed am ndment does not concern the 

assignment of any right to refun by a permitted seller to a nonpermitted purchaser, which is co ered in subsection (a)(1) ofthis 

section. It is intended to make lear that third-party assignees 

and successors are subject to t e same requirements to claim 

and receive a refund as the orig nal permitted seller. 

Subsection (a)(4)(A)- (C) is reo anized to provide greater clarity as to the requirements for r fund claims under Tax Code, 

§ 111.104. Subparagraph (E) o this paragraph is amended to 

better identify the types of doc ments that are needed by the 

comptroller to verify a claim and to also provide guidance if the 

documents are voluminous and cannot be easily submitted to 

the agency. 

New subsection (b)(1 0), concer ing the statute of limitations for 

refund claims, identifies the item that must be submitted with a 

refund claim in order to toll the tatute of limitations. This subsection explains that a refund cia m may not meet all the requirements for the comptroller to pay he requested amount, but may 

still toll the statute of limitations and allow a person to request 

an administrative hearing. The ubsection also explains that if 

certain requirements are not m t, the statute of limitations will 

not be tolled. 

Subsection (e) is amended to a1d a new paragraph (3) to state 

expressly in this section the co~troller's right under Tax Code, 

§ 111.1 05( e) to issue a demand n tice for documents that support 

the refund claim once a timely re uest for a hearing is made if a 

claim is denied in whole or in part. THis right is also stated in §1.9 

of this title concerning the issuance pf position letters during the 

administrative hearing process. S1section (e)(1) is amended 

to state that when the comptroller d ies a refund claim in whole 

or in part, the comptroller will also dentify the requirements of 

subsection (a)(4) that were not metj 

Non-substantive changes have bee · made to add greater clarity 

in subsections (a)(1) and (b)(9). 

John Heleman, Chief Revenue Est mater, has determined that 

for the first five-year period the rul will be in effect, there will 

be no significant revenue impact o the state or units of local 

government. 

Mr. Helem an also has determined at for each year of the first 

five years the rule is in effect, the ublic benefit anticipated as 

a result of enforcing the rule will be by clarifying the procedures 

and requirements for claiming and eceiving a refund. This rule 

is proposed under Tax Code, Titl 2, and does not require a 

statement of fiscal implications for small businesses. There is 

no significant anticipated economi cost to individuals who are 

required to comply with the propos d rule. 

Comments on the proposal may be submitted to Bryant K. 

Lomax, Manager, Tax Policy Divisi n, P.O. Box 13528, Austin, 

Texas 78711. Comments must b received no later than 30 

days from the date of publication f the proposal in the Texas 

Register. 

This amendment is proposed und r Tax Code, §111.002, which 

provides the comptroller with the uthority to prescribe, adopt, 

and enforce rules relating to the ad inistration and enforcement 

of the provisions of Tax Code, Titl 2. 

The amendment implements Tax ode, §111.104(b) (Refunds) 

and §111.105(e) (Tax Refund: He ring). 

§3.325. Refunds and Payments Und r Protest. 

(a) Requirements for refund !aims. 

(1) Refund claims by non permitted purchasers. A person 

who does not have a sales and use t x permit and who has paid tax 

in error to a permitted seller may re uest a refund Q!!ly from [ooly] 

the permitted seller to whom the tax was paid. The permitted seller 

who refunds tax to a purchaser may claim a refund as provided by 

paragraph (2) of this subsection. Ape itted seller may assign its right 

to refund to the purchaser, who may t n request a refund directly from 

the comptroller as provided by parag ph (4) of this subsection. 

(2) Refund claims by pe itted sellers and third party assignees and successors. 

(A) With one excepti n relating to the return transactions, no taxes, penalties, or interest ill be refunded by the comptro 1-

ler to a permitted seller who has colle ted tax in error from a purchaser 

until all such taxes are first refunde or credited with the purchaser's 

written consent to the person from hom they were collected. If the 

refund claim relates to a return of tan ible personal property, a permitted seller is entitled to claim a credi or request a refund of sales tax 

equal to the amount of sales tax refi ded to a purchaser when the purchaser receives a full or partial re d of the sales price of a taxable 

item that is returned to the seller. 

(B) Before a permitte seller refunds to a purchaser tax 

collected in error on the sale of a t able item, the permitted seller 

must obtain from the purchaser a pro erly completed exemption or resale certificate that meets all the re uirements of §3.285 of this title 

(relating to Resale Certificate; Sales or Resale) and §3.287 of this title 

37 TexReg 9068 November 16,2012 Texas Register 
TESTIMONY 
Reference Number 

W-1 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Mark Burroughs and Jungus Jordan, North Texas 

Clean Air Steering Committee 
North Central Texas Council Of Governments 

Mr. Michael Parrish 

MC 205, Office of Legal Services 

Texas Commission on Environmental Quality 

PO Box 13087 

Austin, TX 78711-3087 

December 18, 2012 

W-1 

SUBJECT: Public Comment on Proposed Stationary Diesel Engine Exemption Rule RevisionsRule Project Number 2012-031-117-AI 

Dear Mr. Parrish: 

As chairs of the North Texas Clean Air Steering Committee (NTCASC) and Oil and Gas Task Force, 

we appreciate the opportunity to comment on the Texas Commission on Environmental Quality's 

(TCEQ) Proposed Revisions to 30 Texas Administrative Code (TAC) Chapter 117, Subchapter D, 

Division 2 that limit nitrogen oxide (NOx) emissions from minor sources in the Dallas-Fort Worth 

(DFW) ozone nonattainment area. The NTCASC was formed to work in partnership with the TCEQ 

and the Environmental Protection Agency (EPA) in development of State Implementation Plan (SIP) 

revisions for the DFW ozone nonattainment area and to support their implementation once 

approved. Members are appointed by the North Central Texas Council of Governments Executive 

Board. Attachment 1 contains a Committee roster. Please accept the following comments along 

with supporting attachments. 

Attachment 2 highlights the region's historical fourth highest, eight-hour trend over three-year 

periods, which continues to fall short of EPA standards. Since the late 1990's, primary focus in 

minimizing ozone formation has been by way of reducing NOx emissions. As the ozone standard 

has continued to become more stringent, all potential emission increases that affect ozone formation 

are important and need careful consideration, no matter how small they may seem. Each increase 

in emissions such as the one proposed has the potential of placing more need for reducing on-road 

emissions and this, in turn, places more stress in demonstrating transportation conformity. 

Although the industry needs to adequately train its staff in all areas and phases of the natural gas 

drilling and extraction process, this proposed exemption cannot be fully supported due to several 

implications this rule may have on the DFW nonattainment region. There is concern that this 

exemption could contribute to the continuing exceedance of federal ozone standards in this area; 

and therefore, we are requesting additional consideration on the following items before a final 

decision is made: 

1. Are there other areas in the State that are in attainment that could host this training site? 

2. Based on supporting information, it can be interpreted that only one engine would be newly 

exempted under this proposed rulemaking. Is this the case? If not, how many engines are 

included and what is the projected increase in annual emissions? 

3. As proposed, does this exemption open the door for additional training sites to be located 

within the North Central Texas nonattainment area? 

4. Has the possibility and impacts of additional engines used for this purpose in the DFW area 

been taken into consideration? 

5. Review of Halliburton's petition for rulemaking identifies the engine location to be located in 

Carrollton. Can this be confirmed? 

6. Please document analysis of emission estimates. 

7. Please document technical analysis to determine how the additional emissions from the 

newly exempted engine will impact air quality monitors and sensitive populations. 

616 Six Flags Drive, Centerpoint Two 

P. 0. Box 5888, Arlington, Texas 76005-5888 

(817) 640-3300 FAX: 817-640-7806 ®recycled paper 

www.nctcog.org 
Mr. Michael Parrish 

Page Two 

December 18, 2012 

8. Why did the TCEQ propose the threshold for maximum annual operating hours at 1 ,000, 

knowing that existing exemptions under §§117.2103(5), §§117.21 03(8), and §§117.2103(9) 

are limited to only 1 00 hours per year? 

9. The proposed rulemaking also includes a new exemption under §§117.21 03, Operating 

Requirements, which prohibits affected engines from being started between the hours of 6 

am and noon. Can the TCEQ provide justification as to why an exemption from this 

requirement is also being included in the proposed rulemaking? 

10. Do recent time of day photochemical model sensitivity runs exist that indicate how early 

morning NOx and volatile organic compound 0/0C) emissions impact afternoon formation of 

ozone? 

In addition to the questions posed above, it is requested that the TCEQ consider the following 

suggestions for this proposed rulemaking: 

1. Consider locating engines used for training purposes outside of all nonattainment areas 

rather than providing a special exemption. 

2. If the exemption is granted, require that all eligible engines be located away from air quality 

monitors and sensitive groups. 

3. Examine the benefits and feasibility of requiring independent third-party verification of 

industry-reported monitoring/compliance data. 

4. Require training to include smart operating practices such as no idling, proper engine 

maintenance, and other emission reducing strategies. 

5. Require Halliburton to identify and implement emission reduction offsets for increased 

emissions 

The opportunity to comment is appreciated and we look forward to a continued partnership with the 

TCEQ as we work toward the common goal of cleaner air. Should you have any questions, please 

contact Chris Klaus, Senior Program Manager, at (817) 695-9286 or cklaus@nctcog.org. 

RN:ch 

Attachments 

cc: North Texas Clean Air Steering Committee 

Mark Burroughs, Chair 

North Texas Clean Air Steering Committee 

Mayor, City of Denton 

Jungus Jordan, Chair 

North Texas Clean Air Steering CommitteeOil and Gas Task Force 

Councilmember, City of Fort Worth 

Mike Eastland, Executive Director, North Central Texas Council of Governments 

Chris Klaus, Senior Program Manager, North Central Texas Council of Governments 
ATTACHMENT 1 

NORTH TEXAS CLEAN AIR STEERING COMMITTEE 

ROSTER 

Roy Brooks 

County Commissioner 

Tarrant County 

Mark Riley 

County Judge 

Parker County 

Mark Burroughs - Chair 

Mayor 

City of Denton 

Linda Koop 

Councilmember 

City of Dallas 

Howard Gilberg 

Dallas Regional Chamber 

Margaret Keliher 

Texas Business for Clean Air 

Ramon Alvarez 

Environmental Defense Fund 

COUNTIES 

Maurine Dickey 

County Commissioner 

Dallas County 

Keith Self 

County Judge 

Collin County 

CITIES 

Dr. Robert Cluck 

Mayor 

City of Arlington 

AmirOmar 

Council member 

City of Richardson 

BUSINESS ORGANIZATIONS 

Mabrie Jackson 

North Texas Commission 

Ron Marchant 

County Commissioner 

Denton County 

I 

VACANT 

Jungus Jordan -Vice Chair 

Councilmember 

City of Fort Worth 

Darren Rozell 

Mayor 

City of Forney 

Tim Keleher 

Fort Worth Chamber of 

Commerce 

ENVIRONMENTAL INTERESTS 

IIRita Beving 

IISierra Club/Public Citizen 

IIJim Schermbeck 

IIDownwinders At Risk 

Updated: November 3, 2011 

I 
105 

:0 

Q. 

102 

2012 OZONE SEASON 

8-Hour Ozone Historical Trends 

95 

.!:: 90 

Cl) a.. t»O 

cu~ 

a.. s::: 

Cl) 0 

~::2: 

- s::: tn Cl) 

Cl) > 

.s:: ·- .~ (!) 

1997 Standard < 85 ppb 

~ ~ 80 +-------------------------------------------------------------------------------

cu 

-

cu 2008 Revised Standard S 75 ppbA 

75 +-----------~--------------~----------------~--------------~------~> -f 

-f 

> 0 

~ 

70 +-----~----~---.-----.-----.-----.----.-----.-----.-----.----,,----,-----,~ z 

98-00 99-01 00-02 01-03 02-04 03-05 04-06 05-07 06-08 07-09 08-1 0 09-11 1 0-12 ;:: 

Consecutive Three-Year Periods 

"Attainment Goal- According to the US EPA National Ambient Air Quality Standards, attainment is reached when, at each monitor, the three-year 

average of the annual fourth-highest daily maximum 8-hour average ozone concentration is equal to or less than 75 parts per billion (ppb ). Source: NCTCOG TR Dept 
INDEX OF ORAL TESTIMONY 

NO ORAL TESTIMONY WAS RECEIVED PERTAINING TO THIS RULE REVISION. 
HEARING OFFICER REPORT 

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

Chapter 117 Stationary Diesel Engine Petition for Rulemaking, (TCEQ Rule 

Project No. 2012-031-117-AI). The proposed rulemaking would provide an 

exemption from the emission testing requirements in Chapter 117 for engines 

that are used exclusively for product testing and personnel training, operate in 

limited service, and meet the applicable federal emissions standards in 40 Code 

of Federal Regulations Part 89. Engines used in this type of service would be 

required to install and operate a non-resettable elapsed run time meter, maintain 

records of daily hours of operation, and maintain records demonstrating 

compliance with the applicable federal emissions standards. The proposed 

rulemaking is a follow-up to a petition for rulemaking approved by the 

commission on May 30, 2012. Public hearings were scheduled for December 13, 

2012, at 2:00p.m. in Fort Worth at the commission's Dallas-Fort Worth Regional 

Office located at 2309 Gravel Drive; and for December 18, 2012, at 10:00 a.m. in 

Austin in Building E, Conference Room 2018, at the commission's central office 

located at 12100 Park 35 Circle. 

At 1:30 p.m., the room was open and TCEQ staff members were available to 

discuss the proposal. At 2:00p.m., TCEQ staff and a court reporter were present 

and ready to open the hearing for public comment. 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 a transcript was not prepared. 

Hearing Officer 

( )...{ 1(. ~~ 

Date signed 
- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: December 13,2012 

Time: 2:00pm 

Rule Project No.: 2012-031-117-AI 

Short Title: Chapter 117 Stationary Diesel Engine Petition 

Location: Dallas-Fort Worth Regional Office located at 2309 Gravel Drive 

Concerning: The proposed amendments of 30 TAC Chapter 117 to §§117.2103, 117.2130, 117.2135, and 117.2145 

Name Representing Presenting Oral Testimony? 

(Please Print) I (Circle One) 

v~~ J/4 u ,£.uf~J Yes €;J 

~)\UX\t\ N~o.( t'l cr co~ Yes ~ 

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 the 

Chapter 117 Stationary Diesel Petition for Rulemaking, (TCEQ Rule Project No. 

2012-031-117-AI). The proposed rulemaking would provide an exemption from 

the emission testing requirements in Chapter 117 for engines that are used 

exclusively for product testing and personnel training, operate in limited service, 

and meet the applicable federal emissions standards in 40 Code of Federal 

Regulations Part 8g. Engines used in this type of service would be required to 

install and operate a non-resettable elapsed nm time meter, maintain records of 

daily hours of operation, and maintain records demonstrating compliance with 

the applicable federal emissions standards. The proposed rulemaldng is a followup to a petition for ndemaking approved by the commission on May 30, 2012. 

A public hearing was scheduled for Austin on December 18, 2012 at 10:00 a.m. in 

Building E, Conference Room 2018, at the commission's central office located at 

12100 Park 35 Circle. 

At 9:30 a.m., the room was open and TCEQ staff members were available to 

discuss the proposal. At 10:00 a.m., TCEQ staff and a court reporter were present 

and ready to open the hearing for public comment. After waiting for 10 minutes, 

no one had arrived to make comments on the record. Therefore, the public 

hearing was not formally opened for comment and a transcript was not prepared. 

Hearing Officer 

/2-/IJ ;./?_ 

Date signed 
- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: December 18, 2012 

Time: 10:00 AM 

Rule Project No.: 2012-031-117-AI 

Short Title: Chapter 117 Stationary Diesel Engine Petition 

Location: Building E, Conference Room 201S, at the commission's central office located at 12100 Park 35 Circle 

Concerning: Proposed revisions to 30 TAC Chapter 117 and corresponding revisions to the state implementation plan (SIP) 

Name Representing Presenting Oral Testimony? 

(Please Print) (Circle One) 

T~r: s~(.,_. Ss...L-lD'... -<- s ( .e.o.A~ 

Yes@ 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 
EVALUATION 
Texas Commission on Environmental Quality 

· Interoffice Memorandum 

To: 

Thru: 

From: 

Commissioners 

Bridget C. Bohac, Chief Clerk 

Zak Covar, Executive Director 

;,J,2teve Hagle,.P.E., Deputy Director 

IJf .-Office of Air 

Date: March 22, 2013 

Docl{et No.: 2012-1388-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 117, Control of Air Pollution from Nitrogen Compounds 

Chapter 117 Stationary Diesel Engine Petition 

Rule Project No. 2012-031-117-AI 

Background and reason(s) for the rulemaking: 

On Aprils, 2012, Halliburton Energy Services, Incorporated (Halliburton or petitioner) 

submitted a petition for rulemaking requesting a partial exemption from the rules in 30 

Texas Administrative Code (TAC) Chapter 117, Subchapter D, Division 2 that limit nitrogen 

oxides (NOx) emissions from minor sources in the Dallas-Fort Worth (DFW) 1997 eighthour ozone nonattainment area. The commission approved the petition for rulemaldng on 

May 30, 2012 and issued an order on June 1, 2012 directing the executive director to 

examine the issues in the petition and to initiate rulemaking. 

The unique service of the Halliburton Drawworks Engine makes ongoing testing to 

demonstrate compliance with the Chapter 117 NOx emission limits impractical and 

comparatively more expensive than the stationary engine testing envisioned at adoption of 

the rule in 2007. To comply with the Chapter 117 testing requirements, Halliburton must 

arrange for the use of a dynamometer, which is typically used by engine manufacturers for 

testing purposes. Preparing the engine for installation of the dynamometer and returning 

the engine to operational status subsequent to the emissions testing presents significant 

safety hazards associated with the removal of the drive train and transmission, removal of 

the torque converter, and the placement and use of non-dedicated hoisting equipment on 

the rig floor. Performing a compliant emissions test of the Drawworks Engine talzes three 

to four days to complete whereas typical testing on stationary engines only requires 

approximately a half day. 

Additionally, engines used to raise and lower down-hole equipment in actual oil and gas 

operations in the field, which the Drawworks Engine is designed to simulate, are typically 

not subject to similar Chapter 117 testing requirements because those engines are typically 

not installed at a location long enough to trigger the definition of a stationary internal 

combustion engine in §117.10. The Drawworks Engine is subject to Chapter 117, 

Subchapter D, Division 2 because the equipment has been made stationary to provide 

testing and training facilities for sources that are actually not subject to the rule. 
Commissioners 

Page2 

March 22, 2013 

Re: Docket No. 2012-1388-RUL 

Scope of the rulemaking: 

A.) Summary of what the rulemaking will do: 

The adopted change expands the list of exempted sources in §117.2103 to include 

stationary diesel engines that are used exclusively for product testing and personnel 

training, operate less than 1,000 hours per year on a rolling 12-month basis, and meet 

applicable Tier emission standards for non-road engines listed in 40 Code of Federal 

Regulations (CFR) §89.112(a), Table 1 (October 23, 1998) in effect at the time of 

installation, modification, reconstruction, or relocation. The adopted exemption is narrow 

in scope and consistent with the similar existing exemptions for stationary diesel engines 

located at minor sources, such as stationary engines used in research and testing and 

stationary engines used for purposes of performance verification and testing. The adopted 

change also revises the operating requirements of §117.2130, the monitoring requirements 

of §117.2135, and the recordkeeping requirements of §117.2145 to reflect the new category 

of exempt engines. Although not specifically requested in the petition for nuemaking, the 

adopted rules require records sufficient to demonstrate the engine meets the applicable 

emission standard listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) to help ensure 

compliance with the exemption criteria. Furthermore, the adopted rules will change the 

petitioner's suggested operating restriction language from "rolling 12-month average" to 

"rolling 12-month basis" in adopted new §117.2103(1o)(B) to make clear that compliance is 

based on the total annual hours of operation. 

Additionally, the existing rule language in §117.2130(c) prohibits a person from starting or 

operating any stationary diesel or dual-fuel engine in the DFW 1997 eight-hour ozone 

nonattainment area for testing or maintenance between the hours of 6:oo a.m. and noon 

except under specific conditions. The petitioner requested clarification that this 

prohibition did not apply to product testing. The adopted rules amend §117.2130(c)(1)- (3) 

to distinguish between product testing as used in the new exemption in §117.2103(10) and 

engine testing as used in the existing rule language in §117.2130(c). The adopted revision 

clarifies that the prohibition is specific to testing or maintenance of the engine to avoid 

conflict with the new exemption in §117.2103(10) for stationary engines that are used 

exclusively for product testing and personnel training and more accurately reflect the 

intent of the prohibition. The adopted amendments to Chapter 117 will be submitted to the 

United States Environmental Protection Agency (EPA) as a revision to the state 

implementation plan (SIP). 

B.) Scope required by federal regulations or state statutes: 

None. 

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

state. statute: 

None. 
Commissioners 

Pages 

March 22, 2013 

Re: Docket No. 2012-1388-RUL 

Statutory authority: 

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

person may petition a state agency for the adoption of a rule and 30 TAC §20.15 provides 

such procedures specific to the commission. 

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

powers and duties: Texas Government Code, §2001.021, Petition for the Adoption of Rules, 

which authorizes an interested person to petition a state agency for the adoption of a rule; 

Texas Water Code (TWC), §5.102, General Powers, §5.103, Rules, and §5.105, General 

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

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

Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent 

with the policy and purposes of the TCAA; THSC, §382.002, Policy and Purpose, which 

establishes the commission's purpose to safeguard the state's air resources, consistent with 

the protection of public health, general welfare, and physical property; THSC, §382.011, 

General Powers and Duties, which authorizes the commission to control the quality of the 

state's air; and THSC, §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. 

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

commission to prescribe requirements for owners or operators of sources to make and 

maintain records of emissions measurements; §382.021, Sampling Methods and 

Procedures, authorizes the commission to prescribe the sampling methods and 

procedures; and §382.051 Permitting Authority of Commission; Rules, authorizes the 

commission to adopt rules as necessary to comply with changes in federal law or 

regulations applicable to permits under Chapter 382. The n1le amendments are also 

adopted tmder 42 United States Code, §§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. 

Effect on the: 

A.) Regulated community: 

The adopted rulemaking will affect owners or operators of stationary diesel engines located 

at minor sources of NOx in the DFW 1997 eight-hour ozone nonattainment area and used 

exclusively for product testing and personnel training, operate in limited service, and meet 

applicable federal emission standards for non-road engines listed in 40 CFR Part 8g. 

Engines meeting these requirements will be exempt from the emission specifications for 

attainment demonstration and the emissions testing requirements of Subchapter D, 

Division 2 of Chapter 117. However, owners or operators of such engines will be required to 

install and operate a non-resettable elapsed run time meter, maintain written records of 

the number of hours of operation for each day's operation, and maintain records of 

manufacturer's specifications or test data sufficient to demonstrate compliance with the 

corresponding emission standard for non-road engines listed in 40 CFR Part 8g. 
Commissioners 

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March 22, 2013 

Re: Docket No. 2012-1388-RUL 

B.) Public: 

The public benefit anticipated from the adopted rules is continued protection of the 

environment and public health and safety combined with efficient and fair administration 

ofNOx emission standards for the DFW 1997 eight-hour ozone nonattainment area. 

C.) Agency programs: 

The adopted rulemaking will not impact agency programs. 

Stakeholder meetings: 

No stakeholder meetings occurred. 

Public comment: 

The commission scheduled public hearings on the rulemaking in Fort Worth on December 

13, 2012 and in Austin on December 18, 2012. However, the commission did not officially 

open either hearing because no one registered to provide comments. The public comment 

period closed on December 19, 2012. Written comments were accepted via mail, fax, and 

through the eCornments system. The commission received comments from the North 

Central Texas Council of Governments (NCTCOG) objecting to the rulemaking. Significant 

public comments are summarized as follows. 

• NCTCOG requested the commission require engines used for training purposes to 

be located outside of all nonattainment areas or requir~ all eligible engines to be 

located away from air quality monitors and sensitive groups. The commenter's 

suggested change is outside the scope of this rulemaking. Requiring facilities 

subject to the exemption to relocate to an attainment county or alternative location 

within the nonattainment county through this rulemaking would be equivalent to 

revoking an existing facility's authorization and force consideration of location for 

new New Source Review (NSR) authorizations, which is contrary to the TCEQ's 

authority under the Texas Clean Air Act (TCAA). Additionally, the adopted 

exemption will not result in additional NOx emissions in the DFW area. The 

exemption criteria require compliance with the federal standards in 40 CFR Part 

89 from which the NOx emission limits for station.ary diesel engines in §117.2110 

were derived. Based on February 2012 emissions test results, the Drawworks 

Engine at the Halliburton Carrollton Plant meets Tier 3 emission standards for 

non-road engines listed in 40 CFR §89.112( a)) Table 1 (October 23, 1998) and is 

well below the applicable emission standards in §117.2110. The commission makes 

no changes in response to this comment. 

• NCTCOG requested confirmation on the number and location of engines affected by 

the rulemaking and the projected increase in annual emissions. NCTCOG also asked 

if the commission considered the possibility and impact of additional engines used 

for this purpose in the DFW area. NCTCOG requested the commission provide 

documentation on the analysis of emission estimates and the impact of the 

additional emissions from the newly exempted engine on air quality monitors and 
Commissioners 

Pages 

March 22, 2013 

Re: Docket No. 2012-1388-RUL 

sensitive populations. The commission is currently only aware of one engine that 

meets the adopted new exemption criteria and that is the Halliburton Drawworks 

Engine located in Carrollton, Texas. The commission does not expect a significant 

number of engines to meet the new exemption criteria. The new exemption in 

§117.2103(10) requires the engine to meet the applicable Tier emission standards 

for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998). The 

NOxemission limits for stationary diesel engines in §117.2110 were derivedfrom 

the same Tier standards in 40 CFR §89.112(a). Therefore, even if additional units 

do meet the exemption criteria in §117.2103(10), the NOx emissions from such units 

are not expected to exceed the NOx emissions anticipated if the same new units 

were required to meet the applicable NOx emission limits in §117.2110. The 

commission makes no changes in response to this comment. 

• NCTCOG asked why the proposed maximum annual operating hours was 1,000 

hours given that the existing exemptions in §117.2103(5), (8), and (9) are limited to 

100 hours per year. The existing exemptions in §117.2103(5), (8), and (9) are 

intended to apply to sources that operate in very limited service, such as 

emergency backup generator engines. The hours limitations in §117.2103(5), (8), 

and (9) are designed for engines that are in emergency or limited service. Other 

existing rules, such as §117.2103(2) and (3), exempt engines used for specific 

purposes, such as those used in research and testing and those used for the. 

purposes of performance verification and testing. The Halliburton Drawworks 

Engine is not an emergency backup engine or limited-use engine. Rather, the 

Drawworks Engine is a primary service engine and is similar to the engines used 

for specific purposes that qualify for the exemptions in §117.2103(2) and (3). 

However, the existing exemptions in §117.2103 do not cover the full operating 

range of Halliburton~ Drawworks Engine due to the unique nature of its service. 

Instead of granting the full exemption afforded to other engines that operate in 

specific service, the commission is adding an additional layer of stringency to the 

exemption by limiting the engine's hours ofoperation. The commission makes no 

changes in response to this comment. 

• NCTCOG requested the commission justify why the proposed rule provides an 

exemption from the operating requirements in §117.2130, which prohibit affected 

engines from being started between the hours of 6:oo a.m. and noon. The operating 

requirement in §117.2130(c) prohibits the operation of any stationary diesel or 

dual-fuel engine for testing or maintenance between the hours of6:oo a.m. and 

noon except under limited circumstances. The commission is amending 

§117.2130( c)(l)- (3) to distinguish between product testing as used in the adopted 

new exemption in §11J.2103(10) and engine testing as used in the existing rule 

language in §117.2130(c). The commission is not providing an exemptionfrom the 

operating requirement in §117.2130(c). The adopted revision clarifies that the 

prohibition is specific to testing or maintenance of the engine to avoid conflict with 

the adopted new exemption in §117.2103(1o]for stationary engines that are used 
Commissioners 

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March 22,2013 

Re: Docket No. 2012-1388-RUL 

exclusively for product testing and personnel training and more accurately reflect 

the intent of the prohibition. The commission's intent for §117.2130(c) has always 

been that the prohibition applies to testing and maintenance of the engine itself 

because these activities can typically be scheduled outside the 6:ooa.m. to noon 

time frame without significantly interfering with the daily operations of afacility. 

Section 117.2130(c) does apply to the Halliburton Drawworks Engine when 

Halliburton operates the engine as part of the engine's routine testing and 

maintenance. However, §117.2130(c) does not apply when Halliburton is operating 

the engine as part of the facility's normal operation of testing drilling equipment 

and training personnel. The commission makes no changes in response to this 

comment. 

• NCTCOG asked if there are recent time-of-day photochemical model sensitivity runs 

that indicate how early morning NOx and volatile organic compounds emissions 

impact afternoon ozone formation. The commission did not conduct photochemical 

modeling as part of this rule revision. The DFW Attainment Demonstration SIP 

Revision for the 1997 Eight-Hour Ozone Standard adopted by the commission on 

December 7, 2011 (Project Number 2010-022-SIP-NR) contains the most recent 

photochemical modeling analysis for the DFW area. The photochemical modeling 

for the 2011 DFW Attainment Demonstration SIP Revision used emissions that 

were temporally allocated according to emission category but modeling runs were 

not conducted to determine the sensitivity of the model to changes in emissions by 

time of day. The commission makes no changes in response to this comment. 

• NCTCOG requested the TCEQ examine the benefits and feasibility of requiring 

independent third-party verification of industry-reported monitoring and 

compliance data. The commenter's request is outside the scope of this rulemaking. 

The intent of this rulemaking is to provide an exemption for stationary diesel 

engines that are used exclusively for product testing and personnel training, 

operate less than 1,000 hours per year, and meet applicable emission standards in 

40 CFR §89.112(a), Table 1 (October 23, 1998). The commission makes no changes 

in response to this comment. 

• NCTCOG requested the TCEQ require training to include smart operating practices 

such as no idling, proper engine maintenance, and other emission reducing 

strategies. The intent of this rulemaking is to provide an exemption for stationary 

diesel engines that are used exclusively for product testing and personnel training, 

operate less than 1,000 hours per year, and meet applicable emission standards in 

40 CFR §89.112( a), Table 1 (October 23, 1998). The training suggested by the 

commenter is not necessary to ensure compliance with the adopted new exemption 

criteria in §117.2103(10). Additionally, applying such training requirements 

generally under Chapter 117, Subchapter D, Division 2 is outside the scope of this 

rulemaking. The commission makes no changes in response to this comment. 
Commissioners 

Page7 

March 22, 2013 

Re: Docket No. 2012-1388-RUL 

• NCTCOG requested the commission require Halliburton to identify and implement 

emission reduction offsets for increased emissions. The new exemption will not 

increase NOx emissions in the DFW area, and test results indicate the NOx 

emissions from Halliburton's Drawworks Engine are below the applicable 

emission specification in §117.2110. The commission makes no changes in response 

to this comment. 

Significant changes from proposal: 

The commission clid not revise the rule from proposal. 

Potential controversial concerns and legislative interest: 

The Chapter 117 rules for minor sources in the DFWarea are included in the SIP. The 

adopted amendments to Chapter 117 will be submitted to the EPA as a revision to the SIP. 

The adopted exemption criteria require compliance with the federal standards in 40 CFR 

Part 89 from which the NOx emission limits in §117.2110 were derived. Therefore, the 

adopted exemption will not result in additional NOx emissions in the DFW area and should 

not be considered as backsliding under the Federal Clean Air Act. However, the revisions 

are still subject to EPA review and approval as a SIP revision. 

Does this rulemaking affect any current policies or require development of 

new policies? 

No. 

What are the consequences if this rule making does not go forward? Are there 

alternatives to rulemaking? 

The affected regulated entity will have to conduct an emissions performance test in 

accordance with current Chapter 117 requirements for stationary sources. Testing will be 

required every two years or within 15,000 hours of engine operation after the previous 

emissions test. In order to run an emissions test, the owner or operator will have to 

dismantle the transmission in order to install and use the dynamometer. Additionally, 

these activities will consume three to four days of an owner's or operator's time. 

Key points in the adop~ion rulemaking schedule: 

Texas Register proposal publication date: November 16, 2012 

Anticipated Texas Register publication date: April26, 2013 

Anticipated effective date: May 2, 2013 

Six-month Texas Register filing deadline: May 16, 2013 

Agency contacts: 

Javier Galvan, Rule Project Manager, 239-1492, Air Quality Division 

Alexis Lorick, Staff Attorney, 239-0649 

Michael Parrish, Texas Register Coordinator, 239-2548 
Commissioners 

PageS 

March 22, 2013 

Re: Docket No. 2012-1388-RUL 

Attachments 

cc: Chief Clerk, 2 copies 

Executive Director's Office 

Susana M. Hildebrand, P.E. 

Anne Idsal 

Curtis Seaton 

Tucker Royall 

Office of General Counsel 

Javier Galvan 

Michaei Parrish 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ, agency, commission) adopts 

amendments to §§117.2103, 117.2130, 117.2135, and 117.2145 without changes to the 

proposed text as published in the November 16, 2012 issue of the Texas Register (37 

TexReg 9060) and the text will not be republished. 

The adopted amendments will be submitted to the United States Environmental 

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

Background and Summary of the Factual Basis for the Adopted Rules 

On Aprils, 2012, Halliburton Energy Services, Incorporated (Halliburton) submitted a 

petition for rulemaking requesting a partial exemption from the rules in 30 TAC Chapter 

117, Subchapter D, Division 2 that limit nitrogen oxides (NOx) emissions from minor 

sources in the Dallas-Fort Worth (DFW) 1997 eight-hour ozone nonattainment area 

(DFW area). The commission approved the petition for rulemaking on May 30, 2012 

and issued an order on June 1, 2012 directing the executive director to examine the 

issues in the petition and to initiate rulemaking (Project No. 2012-029-PET-NR). 

The unique service of the Halliburton Drawworks Engine makes ongoing testing to 

demonstrate compliance with the Chapter 117 NOx emission limits impractical and 

comparatively more expensive than the stationary engine testing envisioned during the 

adoption of the Chapter 117 rules in 2007. To comply with the Chapter 117 testing 

requirements, Halliburton must arrange for both emissions testing equipment (a 

1 
normal and expected expense) and for the rental, transport, and use of a dynamometer, 

which is typically used by engine manufacturers for testing purposes. Preparing the 

engine for installation of the dynamometer and returning the engine to operational 

status subsequent to the emissions testing presents significant safety hazards associated 

with the removal of the drive train and transmission, removal of the torque converter, 

and the placement and use of non-dedicated hoisting equipment on the rig floor. 

Performing a compliant emissions test of the Drawworks Engine takes three to four days 

to complete, whereas compliant emissions testing on a typical stationary engine only 

requires approximately half a day. Additionally, engines used to raise and lower downhole equipment in actual oil and gas operations in the field, which the Drawworks 

Engine is designed to simulate, are typically not subject to similar Chapter 117 testing 

requirements because they are not installed at a location long enough to trigger the 

definition of a stationary internal combustion engine in §117.10. The Drawworks Engine 

is subject to Chapter 117, Subchapter D, Division 2 because the equipment has been 

made stationary to provide testing and training facilities for sources that are not subject 

to the rule. 

The adopted change will expand the list of exempted sources in §117.2103 to include 

stationary diesel engines that are used exclusively for product testing and personnel 

training, operate less than 1,000 hours per year on a rolling 12-month basis, and meet 

applicable Tier emission standards for non-road engines listed in 40 Code of Federal 

Regulations (CFR) §89.112(a), Table 1 (October 23, 1998) in effect at the time of 

installation, modification, reconstruction, or relocation. The adopted exemption is 

narrow in scope and consistent with the similar existing exemptions for stationary diesel 

2 
engines located at minor sources, such as stationary engines used in research and 

testing and stationary engines used for purposes of performance verification and testing. 

The adopted change will also revise the operating requirements of §117.2130, the 

monitoring requirements of §117.2135, and the recordkeeping requirements of §117.2145 

to reflect the new category of exempt engines. 

Demonstrating Noninterference under Federal Clean Air Act, Section 110(1) 

The commission provides the following information to demonstrate why the adopted 

new exemption in §117.2103 will not negatively impact the status of the state's progress 

towards attainment with the 1997 eight-hour ozone National Ambient Air Quality 

Standard (NAAQS), will not interfere with control measures, and will not prevent 

reasonable further progress toward attainment of the ozone NAAQS. 

On December 6, 2000, as part ofthe Houston-Galveston-Brazoria (HGB) attainment 

demonstration SIP revision, the commission adopted a new control strategy for 

stationary reciprocating internal combustion engines, boilers, and process heaters 

located at minor industrial, commercial, and institutional sources ofNOx in the HGB 

area. The adopted rulemaking exempted engines used for specific purposes, such as 

those used in research and testing and those used for the purposes of performance 

verification and testing. 

On May 23, 2007, as part of the DFW 1997 eight-hour ozone attainment demonstration 

SIP revision, the commission adopted new emission control requirements for stationary 

reciprocating internal combustion engines located at minor industrial, commercial, and 

3 
institutional sources of NOx in the DFW area. The NOx emission reductions were 

necessary for the DFW area to attain the 1997 eight-hour ozone NAAQS. Similar to the 

HGB rulemaking, the DFW rulemaking also adopted exemptions for engines used for 

specific purposes, such as those used in research and testing and those used for the 

purposes of performance verification and testing. 

The adopted partial exemption is narrowly tailored and will not adversely impact the 

DFW area's progress in attaining the 1997 eight-hour ozone NAAQS. During the 2000 

and 2007 rulemakings, no stationary engines similar in function to the Halliburton 

Drawworks Engine were identified in the emissions inventory in the counties impacted 

by the rulemakings, and no such engines were relied upon for creditable reductions for 

the SIP revision. Therefore, the adopted rulemaking will not result in a loss of any SIP 

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

Additionally, based on February 2012 emissions test results and a limit of no more than 

1,000 hours of run time per year, the Drawworks Engine has maximum potential annual 

NOx emissions of 0.87 tons per year and is well below the emission standards 

established in the Chapter 117 minor source NOx rules. The adopted exemption criteria 

require compliance with the federal standards in 40 CFR Part 89 to ensure that the 

adopted exemption will not result in backsliding. Based on the test results, the 

Drawworks Engine at the Halliburton Carrollton Plant meets Tier 3 emission standards 

for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998). Therefore, 

the Drawworks Engine will be required to and does meet the applicable federal emission 

standards in 40 CFR §89.112(a), Table 1 (October 23, 1998) for the engine's size and 

installation date. The NOx emission limits for stationary diesel engines in §117.2110 

4 
were derived from the Tier standards in 40 CFR Part 89. Therefore, the adopted 

exemption will not result in additional NOx emissions in the DFW area. 

Based on these factors, the commission has determined that the adopted rule change 

will not negatively impact the status of the state's attainment demonstration for the 1997 

eight-hour ozone NAAQS, will not interfere with control measures, and will not prevent 

reasonable further progress toward attainment of the ozone NAAQS. 

Section by Section Discussion 

Section 117.2103, Exemptions 

The commission adopts §117.2103(10) to exempt stationary diesel engines that are used 

exclusively for product testing and personnel training, operate less than 1,000 hours per 

year on a rolling 12-month basis, and meet applicable Tier emission standards for nonroad engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) in effect at the time 

of installation, modification, reconstruction, or relocation. The adopted exemption only 

applies to an engine that is in dedicated service for product testing and personnel 

training and does not apply to an engine used for any additional purpose. The adopted 

amendment will exempt engines in this unique service from ongoing testing to 

demonstrate compliance with the Chapter 117 NOx emission limits because the testing 

requirements are impractical and comparatively more expensive than the stationary 

engine testing envisioned at adoption of the rule. Requiring compliance with the federal 

standards in 40 CFR Part 89 ensures that the adopted exemption will not result in 

additional NOx emissions in the DFW area because the Chapter 117 NOx emission limits 

were derived from these federal standards. Furthermore, the adopted rules change the 

5 
petitioner's suggested operating restriction language from "rolling 12-month average" to 

"rolling 12-month basis" in adopted §117.2103(1o)(B) to make clear that compliance is 

based on the total annual hours of operation. 

Section 117.2130, Operating Requirements 

The commission amends §117.2130(c)(1)- (3) to distinguish between product testing as 

used in the adopted exemption in §117.2103(10) and engine testing as used in the 

existing rule language in §117.2130(c). Existing §117.2130(c) prohibits a person from 

starting or operating any stationary diesel or dual-fuel engine in the DFW area for 

testing or maintenance between the hours of 6:oo a.m. and noon, except under specific 

conditions. The adopted revision clarifies that the prohibition is specific to testing or 

maintenance of the engine to avoid potential conflict with the adopted exemption in 

§117.2103(10) for stationary engines that are used exclusively for product testing and 

personnel training and more accurately reflect the intent of the prohibition. 

Section 117.2135, Monitoring, Notification, and Testing Requirements 

The commission amends §117.2135(e) to reference the adopted exemption in 

§117.2103(10). Revised §117.2135(e) requires sources claiming the adopted exemption in 

§117.2103(10) to monitor the operating time with a non-resettable elapsed run time 

meter in order to demonstrate compliance with the operating restrictions in 

§117.2103(10). To conform to Texas Register formatting standards, the commission is 

also amending subsection (e) by adding a reference to the title of §117.2103. 

6 
Section 117.2145, Recordkeeping and Reporting Requirements 

The commission amends §117.2145(b) by reformatting the existing provision and adding 

new recordkeeping requirements associated with the adopted exemption in 

§117.2103(10). The commission is reformatting the existing requirements in 

§117.2145(b) to accommodate the new recordkeeping requirements associated with the 

adopted exemption in §117.2103(10). The adopted amendment does not alter the intent 

of the existing recordkeeping requirements for sources currently complying with 

§117.2145(b) or impose any new requirements on engines claimed exempt under 

§117.2103(5), (8), or (g) or §117.2130(b)(3). 

The adopted changes to §117.2145(b) reformat the record retention requirement in 

existing §117.2145(b) to require the records specified in paragraphs (1)- (3) to be 

maintained for at least five years and must be made available upon request to 

representatives of the executive director, the EPA, or any local air pollution control 

agency having jurisdiction. 

Adopted §117.2145(b)(1) requires written records of the number of hours of operation 

for each day's operation to be maintained for each engine claimed exempt under 

§117.2103(5), (8), (g), or (10) or §117.2130(b)(3). Adopted §117.2145(b)(1) includes the 

existing requirements in §117.2145(b) for engines claimed exempt under §117.2103(5), 

(8), or (g) or §117.2130(b)(3) and applies the same requirements to engines claimed 

exempt under adopted §117.2103(10). The adopted revision requires sources claiming 

the adopted exemption in §117.2103(10) to maintain written records of the number of 

hours of operation for each day's operation in order to demonstrate compliance with the 

7 
operating restrictions included in §117.2103(10). 

Adopted §117.2145(b)(2) includes the existing requirements in §117.2145(b) for the 

owner or operator of each engine claimed exempt under §117.2103(5) to maintain 

written records of the purpose of engine operation and, if operation was for an 

emergency situation, identification of the type of emergency situation and the start and 

end times and date(s) of the emergency situation. 

Adopted §117.2145(b)(3) requires the owner or operator of each engine claimed exempt 

under §117.2103(10) to maintain records of manufacturer's specifications or test data 

sufficient to demonstrate compliance with the corresponding emission standard for 

non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) as specified in 

§117.2103(1o)(C). The petition for rulemaking approved by the commission on May 30, 

2012 did not include a specific request for this recordkeeping requirement. However, 

the commission is adopting this recordkeeping requirement to clearly indicate the 

records required to demonstrate compliance with the adopted exemption criteria in 

§117.2103(10) and facilitate enforcement of the adopted exemption. Additionally, the 

adopted recordkeeping provision in subsection (b)(3) clarifies that either engine 

manufacturer's specifications or actual emission testing are acceptable for 

demonstrating that the engine meets the exemption criteria. 

Final Regulatory Impact Determination 

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

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

8 
rulemaking does not meet the definition of a major environmental rule. Texas 

Government Code, §2001.0225 states that a major environmental rule is a rule for 

which the specific intent is to protect the environment or reduce risks to human health 

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

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

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

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

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

not meet any of the four applicability criteria for requiring a regulatory impact analysis 

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

major environmental rule that: 1) exceeds a standard set by federal law, unless the rule 

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

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

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

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

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

Specifically, it does not meet any of the four applicability criteria listed in Texas 

Government Code, §2001.0225 because: 1) the adopted rulemaking is part of the SIP, 

and as such is designed to meet, not exceed the relevant standard set by federal law; 2) 

parts of the adopted rulemaking are directly required by state law; 3) no contract or 

delegation agreement covers the topic that is the subject of this adopted rulemaking; 

and 4) the adopted rulemaking 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, which are cited in the Statutory Authority section of this preamble. 

9 
The adopted rulemaking implements requirements of the Federal Clean Air Act (FCAA). 

Under 42 United States Code (USC), §7410, each state is required to adopt and 

implement a SIP containing adequate provisions to implement, attain, maintain, and 

enforce the NAAQS within the state. While 42 USC, §7410 generally does not require 

specific programs, methods, or reductions in order to meet the standard, SIPs must 

include enforceable emission limitations and other control measures, means, or 

techniques (including economic incentives such as fees, marketable permits, and 

auctions of emissions rights), as well as schedules and timetables for compliance as may 

be necessary or appropriate to meet the applicable requirements of this chapter, 

(meaning 42 USC, Chapter 85, Air Pollution Prevention and Control, otherwise known 

as the FCAA). The provisions of the FCAA recognize that states are in the best position 

to determine what programs and controls are necessary or appropriate in order to meet 

the NAAQS. This flexibility allows states, affected industry, and the public to collaborate 

on the best methods for attaining the NAAQS for the specific regions in the state. Even 

though the FCAA allows states to develop their own programs, this flexibility does not 

relieve a state from developing a program that meets the requirements of 42 USC, 

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

develop programs and control measures to assure that their SIPs provide for 

implementation, attainment, maintenance, and enforcement of the NAAQS within the 

state. The specific intent of the adopted rulemaking is to implement changes within the 

Chapter 117, Subchapter D, Division 2 rules, which will expand the list of exempted 

sources operating in limited services in §117.2103 to include stationary diesel engines 

that are used exclusively for product testing and personnel training, and meet applicable 

10 
Tier emission standards for non-road engines listed in the applicable CFR. 

While the adopted rulemaking protects the environment or reduces risks to human 

health from environmental exposure, it does not constitute a major environmental rule 

under Texas Government Code, §2001.0225(g)(3) because it does not adversely affect in 

a material way the economy, a sector of the economy, productivity, competition, or jobs, 

nor would the rulemaking adversely affect in a material way the environment, or the 

public health and safety of the state or a sector of the state. The rulemaking as a result is 

not subject to a regulatory impact analysis under Texas Government Code, §2001.0225 

because it is not a major environmental rule. 

The requirement to provide a fiscal analysis of regulations in the Texas Government 

Code was amended by Senate Bill (SB) 633, 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 

TCEQ. With the understanding that this requirement would seldom apply, the 

commission provided a cost estimate for SB 633 that concluded: based on an 

assessment of rules adopted by the agency in the past, it is not anticipated that the bill 

will have significant fiscal implications for the agency due to its limited application. The 

commission also noted that the number of rules that would require assessment under 

the provisions of the bill was not large. This conclusion was based, in part, on the 

criteria set forth in the bill that exempted rules from the full analysis unless the rule was 

11 
a major environmental rule that exceeded a federal law. 

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

meet the NAAQS; thus, states must develop programs for each nonattainment area to 

help ensure that those areas will meet the attainment deadlines. Because of the ongoing 

need to address nonattainment issues and to meet the requirements of 42 USC, §7410, 

the commission routinely proposes and adopts revisions to the SIP and rules. The 

legislature is presumed to understand this federal scheme. If each rule proposed for 

inclusion in the SIP was considered to be a major environmental rule that exceeds 

federal law, then every revision to the SIP would require the full regulatory impact 

analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions 

reached by the commission in its cost estimate and by the Legislative Budget Board 

(LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal 

impacts of the bills it passes and that presumption is based on information provided by 

state agencies and the LBB, the commission believes that the intent of SB 633 was only 

to require the full regulatory impact analysis for rules that are extraordinary in nature. 

While the rules have a broad impact, that impact is no greater than is necessary or 

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

inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), 

because they are required by federal law. 

The commission has consistently applied this construction to its rules since this statute 

was enacted in 1997. Since that time, the legislature has revised the Texas Government 

Code but left this provision substantially unamended. It is presumed that, when an 

12 
agency interpretation is in effect at the time the legislature amends the laws without 

making substantial change in the statute, the legislature is deemed to have accepted the 

agency's interpretation (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. 

App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 

S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. 

Austin 1990, no writ);) superseded by statute on another point of law, Tax Code 

§112.108, Other Actions Prohibited, as recognized in, First State Bank of Dumas v. 

Sharp, 863 S.W.2d 81,83 (Tex. App. Austin 1993, 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, pet. denied); and Coastal Indust. Water Auth. v. 

Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). 

The commission's interpretation of the regulatory impact analysis requirements is also 

supported by a change made to the Texas Administrative Procedure Act (AP A) by the 

legislature in 1999. In an attempt to limit 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 as required in Texas 

Government Code, §2001.035. The legislature specifically identified Texas Government 

Code, §2001.0225 as falling under this standard. The commission has complied with the 

requirements of Texas Government Code, §2001.0225. 

Even if the adopted rulemaking constitutes a major environmental rule under Texas 

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

13 
because this exemption is part of the commission's SIP for making progress toward the 

attainment and maintenance of the NAAQS. Therefore, the adopted rulemaking does 

not exceed a standard set by federal law or exceed an express requirement of state law, 

since they are part of an overall regulatory scheme designed to meet, not exceed the 

relevant standard set by federal law (NAAQS). The commission is charged with 

protecting air quality within the state and to design and submit a plan to achieve 

attainment and maintenance of the federally mandated NAAQS. The Third District 

Court of Appeals upheld this interpretation in Brazoria County v. Texas Comm 'n on 

Envtl. Quality, 128 S.W. 3d 728 (Tex. App. -Austin 2004, no writ). The specific intent 

of the adopted rulemaking is to implement changes within the Chapter 117, Subchapter 

D, Division 2 rules expanding the list of exempted sources listed in §117.2103 to include 

stationary diesel engines used exclusively for product testing and personnel training and 

meet applicable Tier emission standards for non-road engines listed in the applicable 

CFR. This adoption, therefore, does not exceed an express requirement of federal law. 

The amendments are needed to implement state law but do exceed those new 

requirements. Finally, this rulemaking was not developed solely under the general 

powers of the agency but is authorized by specific sections of THSC, Chapter 382, which 

are cited in the Statutory Authority section of this preamble, including THSC, §382.012 

and §382.019. Because this adopted rulemaking does not meet any of the four 

applicability requirements, Texas Government Code, §2001.0225(b) does not apply and 

a regulatory impact analysis is not required. 

The commission invited public comment regarding the draft regulatory impact analysis 

determination during the public comment period and received no comments. 

14 
Takings Impact Assessment 

The commission evaluated the adopted rulemaking and performed an analysis of 

whether the adopted rulemaking constitutes a taking under Texas Government Code, 

Chapter 2007. The commission's preliminary assessment indicates Texas Government 

Code, Chapter 2007 does not apply. 

Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental 

action that affects private real property, in whole or in part or temporarily or 

permanently, in a manner that requires the governmental entity to compensate the 

private real property owner as provided by the Fifth and Fourteenth Amendments to the 

United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a 

governmental action that: (i) affects an owner's private real property that is the subject 

of the governmental action, in whole or in part or temporarily or permanently, in a 

manner that restricts or limits the owner's right to the property that would otherwise 

exist in the absence of the governmental action; and (ii) is the producing cause of a 

reduction of at least 25 percent in the market value of the affected private real property, 

determined by comparing the market value of the property as if the governmental action 

is not in effect and the market value of the property determined as if the governmental 

action is in effect." 

Promulgation and enforcement of the rulemaking would be neither a statutory nor a 

constitutional taking of private real property. The primary purpose of the rulemaking is 

an update to Chapter 117, Subchapter D, Division 2 expanding the list of exempted 

15 
sources listed in §117.2103 to include stationary diesel engines used exclusively for 

product testing and personnel training and meet applicable Tier emission standards for 

non-road engines. This rulemaking is not burdensome, restrictive, or limiting of rights 

to private real property because the rulemaking regulates the use of stationary engines 

in limited circumstances. Furthermore, the rulemaking benefits the public by providing 

oil and gas field operators an opportunity for safe simulation without incurring the 

significant safety hazards typically associated with the current testing requirements of 

stationary engines. 

The rulemaking does not affect a landowner's rights in private real property because this 

rulemaking does not burden, restrict, or limit the owner's right to property, nor does it 

reduce the value of any private real property by 25% or more beyond that which would 

otherwise exist in the absence of the regulations. Therefore, this rule making does not 

constitute a taking under Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission reviewed the adopted rulemaking and found the adoption is a 

rulema~ing identified in the Coastal Coordination Act Implementation Rules, 31 TAC 

§sos.n(b)(2) relating to rules subject to the Coastal Management Program (CMP), and 

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

rulemaking process. 

The commission reviewed this rulemaking for consistency with the CMP goals and 

policies in accordance with the regulations of the Coastal Coordination Advisory 

Committee and determined that the rulemaking will not affect any coastal natural 

16 
resource areas because the rules only affect counties outside the CMP area and is, 

therefore, consistent with CMP goals and policies. 

The commission invited public comment regarding the consistency with the CMP during 

the public comment period. The commission received no comments on the 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 permit program 

must, consistent with the revision process in Chapter 122, upon the effective date of the 

rulemaking, revise their operating permit to include the new Chapter 117 requirements. 

Public Comment 

The commission scheduled a public hearing on the rulemaking in Fort Worth on 

December 13, 2012 and a second hearing in Austin on December 18, 2012. The 

commission did not open either hearing as no interested individuals registered to 

provide comments. The public comment period closed on December 19, 2012. The 

commission received one comment from the North Central Texas Council of 

Governments (NCTCOG) opposing the proposed rule revisions. 

Response to Comments 

Comment 

NCTCOG commented that this and similar training sites should be located outside of all 

nonattainment areas in the state because approving an exemption could contribute to 

17 
the exceedance of federal ozone standards in the DFW area. Alternatively, NCTCOG 

requested that if the commission approves the exemption, it require that all eligible 

engines be located away from air quality monitors and sensitive groups. 

Response 

The commission makes no changes to the adopted rules in response to this 

comment. The intent of this rulemaking is to provide an exemption for 

stationary diesel engines that are used exclusively for product testing and 

personnel training, operate less than 1,000 hours per year, and meet 

applicable emission standards in 40 CFR §89.112(a), Table 1 (October 23, 

1998). The commenter's suggested change is outside the scope of this 

rulemaking. Requiring facilities subject to the exemption to relocate to an 

attainment county or alternative location within the nonattainment county 

through this rulemaking would be equivalent to revoking an existing 

facility's authorization and force consideration of location for new New 

Source Review authorizations, which is contrary to the TCEQ's authority 

under the Texas Clean Air Act. Additionally, the adopted exemption will not 

result in additional NOx emissions in the DFW area. The exemption criteria 

require compliance with the federal standards in 40 CFR Part 89 from 

which the NOx emission limits for stationary diesel engines in §117.2110 

were derived. Based on February 2012 emissions test results, the 

Drawworks Engine at the Halliburton Carrollton Plant meets Tier 3 

emission standards for non-road engines listed in 40 CFR §89.112(a), Table 

1 (October 23, 1998) and is well below the applicable emission standards in 

18 
§117.2110. 

Comment 

NCTCOG requested confirmation that the engine referenced in Halliburton's petition for 

rulemaking is located in Carrollton, Texas. NCTCOG requested the commission confirm 

that the proposed rulemaking only exempts one engine or alternatively confirm the 

number of affected engines and the projected increase in annual emissions. NCTCOG 

also requested the commission provide documentation on the analysis of emission 

estimates and the impact of the additional emissions from the newly exempted engine 

on air quality monitors and sensitive populations. NCTCOG asked if the proposed 

exemption allows additional training sites to be located in the DFW area. NCTCOG also 

asked if the commission considered the possibility and impact of additional engines 

used for this purpose in the DFW area. 

Response 

The commission is currently aware of only one engine that meets the newly 

adopted exemption criteria, and that is the Halliburton Drawworks Engine 

located in Carrollton, Texas. However, other engines that meet the adopted 

exemption criteria in §117.2103(10) could also qualify for exemption. As 

discussed in the Background and Summary of the Factual Basis for the 

Adopted Rules, and Response to Comments sections of this preamble, the 

adopted exemption will not increase annual NOx emissions in the DFW 

area. The exemption in §117.2103(10) requires the engine to meet the 

applicable Tier emission standards for non-road engines listed in 40 CFR 

19 
§89.112(a), Table 1 (October 23, 1998). The NOx emission limits for 

stationary diesel engines in §117.2110 were derived from the same Tier 

standards in 40 CFR §89.112(a). Therefore, even if additional units do meet 

the exemption criteria in §117.2103(10), the NOx emissions from such units 

are not expected to exceed the NOx emissions anticipated if the same new 

units were required to meet the applicable NOx emission limits in §117.2110. 

The commission makes no changes in response to this comment. 

Comment 

NCTCOG asked why the proposed maximum annual operating hours were 1,000 hours 

given that the existing exemptions in §117.2103(5), (8), and (9) are limited to 100 hours 

per year. 

Response 

The existing exemptions in §117.2103(5), (8), and (9) are intended to apply 

to sources that operate in very limited service, such as emergency backup 

generator engines. The hours limitations in §117.2103(5), (8), and (9) are 

designed for engines that are in emergency or limited service. Other 

existing rules, such as §117.2103(2) and (3), exempt engines used for 

specific purposes, such as those used in research and testing and those used 

for the purposes of performance verification and testing. The Halliburton 

Drawworks Engine is not an emergency backup engine or limited-use 

engine. Rather, the Drawworks Engine is a primary service engine and is 

similar to the engines used for specific purposes that qualify for the 

20 
exemptions in §117.2103(2) and (3). However, the existing exemptions in 

§117.2103 do not cover the full operating range of Halliburton's Drawworks 

Engine due to the unique nature of its service. Instead of granting the full 

exemption afforded to other engines that operate in specific service, the 

commission is adding an additional layer of stringency to the exemption by 

limiting the engine's hours of operation. The commission makes no changes 

in response to this comment. 

Comment 

NCTCOG requested the commission justify why the proposed rule provides an 

exemption from the operating requirements in §117.2130, which prohibit affected 

engines from being started between the hours of 6:ooa.m. and noon. 

Response 

The operating requirement in §117.2130(c) prohibits the operation of any 

stationary diesel or dual-fuel engine for testing or maintenance between the 

hours of 6:oo a.m. and noon except under limited circumstances. The 

commission is amending §117.2130(c)(1)- (3) to distinguish between 

product testing as used in the adopted exemption in §117.2103(10) and 

engine testing as used in the existing rule language in §117.2130(c). The 

commission is not providing an exemption from the operating requirement 

in §117.2130(c). The adopted revision clarifies that the prohibition is 

specific to testing or maintenance of the engine to avoid conflict with the 

adopted exemption in §117.2103(10) for stationary engines that are used 

21 
exclusively for product testing and personnel training and more accurately 

reflect the intent of the prohibition. The commission's intent for 

§117.2130(c) has always been that the prohibition applies to testing and 

maintenance of the engine itself. These activities can typically be scheduled 

outside the 6:oo a.m. to noon time-frame without significantly interfering 

with the daily operations of a facility. Section 117.2130(c) does apply to the 

Halliburton Drawworks Engine when Halliburton operates the engine as 

part of the engine's routine testing and maintenance. However, §117.2130(c) 

does not apply when Halliburton is operating the engine as part of the 

facility's normal operation of testing drilling equipment and training 

personnel. The commission makes no changes in response to this comment. 

Comment 

NCTCOG asked if there are recent time-of-day photochemical model sensitivity runs 

that indicate how early morning NOx and volatile organic compound emissions impact 

afternoon ozone formation. 

Response 

The commission did not conduct photochemical modeling in support of this 

rule revision. The DFW attainment demonstration SIP revision for the 1997 

eight-hour ozone standard adopted by the commission on December 7, 2011 

(Project Number 2010-022-SIP-NR) contains the most recent 

photochemical modeling analysis for the DFW area. The photochemical 

modeling for the 2011 DFW attainment demonstration SIP revision used 

22 
emissions that were temporally allocated according to emission category 

but modeling runs were not conducted to determine the sensitivity of the 

model to changes in emissions by time of day. The commission makes no 

changes in response to this comment. 

Comment 

NCTCOG requested the TCEQ examine the benefits and feasibility of requiring 

independent third-party verification of industry-reported monitoring and compliance 

data. 

Response 

The commenter's request is outside the scope of this rulemaking. The intent 

of this rule making is to provide an exemption for stationary diesel engines 

that are used exclusively for product testing and personnel training, 

operate less than 1,000 hours per year, and meet applicable emission 

standards in 40 CFR §89.112(a), Table 1 (October 23, 1998). The 

commission makes no changes in response to this comment. 

Comment 

NCTCOG requested the TCEQ require training to include smart operating practices such 

as no idling, proper engine maintenance, and other emission reducing strategies. 

Response 

The intent of this rulemaking is to provide an exemption for stationary 

23 
diesel engines that are used exclusively for product testing and personnel 

training, operate less than 1,000 hours per year, and meet applicable 

emission standards in 40 CFR §89.112(a), Table 1 (October 23, 1998). The 

training suggested by the commenter is not necessary to ensure compliance 

with the adopted exemption criteria in §117.2103(10). Additionally, applying 

such training requirements generally under Chapter 117, Subchapter D, 

Division 2 is outside the scope of this rulemaking. The commission makes 

no changes in response to this comment. 

Comment 

NCTCOG requested the TCEQ require Halliburton to identify and implement emission 

reduction offsets for increased emissions. 

Response 

As discussed in the Background and Summary of the Factual Basis for the 

Adopted Rules, and Response to Comments sections of this preamble, the 

adopted exemption will not increase NOx emissions in the DFW area. 

Therefore, emission reduction offsets are not necessary. The adopted 

exemption in §117.2103(10) requires the engine to meet the federal Tier 

standard used to derive the applicable Chapter 117 NOx emission 

specification. The federal standard is at least as stringent as the 

corresponding NOx emission limit in §117.2110 and therefore the adopted 

exemption will not result in additional NOx emissions in the DFW area. In 

addition, test results indicate the NOx emissions from Halliburton's 

24 
Drawworks Engine are below the applicable Chapter 117 NOx emission 

specification. The commission makes no changes in response to this 

comment. 

25 
RECOMMENDATION 
SUBCHAPTER D: COMBUSTION CONTROL AT MINOR SOURCES IN 

OZONENONATTMNMENTAREAS 

DIVISION 2: DALLAS-FORT WORTH EIGHT-HOUR OZONE 

NONATTMNMENT AREA MINOR SOURCES 

§§117.2103, 117.2130, 117.2135, and 117.2145 

Statutory Authority 

This rulemaking is adopted 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 Water Code (TWC), 

§5.102, General Powers, §5.103, Rules, and §5.105, General Policy, which authorize the 

commission to adopt rules necessary to carry out its powers and duties as well as all 

general policies under the TWC; Texas Health and Safety Code (THSC), The Texas Clean 

Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the TCAA; THSC, §382.002, Policy and 

Purpose, which establishes the commission's purpose to safeguard the state's air 

resources, consistent with the protection of public health, general welfare, and physical 

property; THSC, §382.011, General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; and THSC, TCAA, §382.012, State 

Air Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state's air. The amendments are also adopted 

under THSC, §382.~n6, 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 

1 
methods and procedures; and THSC, §382.051(d), 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. 

Finally, the amendments are also adopted under the Federal Clean Air Act (FCAA), 42 

USC, §§7401, et seq., which requires states to submit state implementation plan 

revisions that specify the manner in which the National Ambient Air Quality Standard 

will be achieved and maintained within each air quality control region of the state. 

The adopted amendments implement TWC, §5.103 and §5.105, THSC, §§382.002, 

382.011, 382.012, 382.016, 382.017, 382.021, 382.051; and FCAA, 42 USC, §§7401, et 

seq. 

§117.2103. Exemptions. 

This division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment 

Area Minor Sources) does not apply to the following stationary engines, except as 

specified in §§117.2130(c), 117.2135(e), and 117.2145(b) and (c) of this title (relating to 

Operating Requirements; Monitoring, Notification, and Testing Requirements; and 

Recordkeeping and Reporting Requirements): 

(1) engines with a horsepower (hp) rating ofless than 50 hp; 

(2) engines used in research and testing; 

2 
(3) engines used for purposes of performance verification and testing; 

(4) engines used solely to power other engines or gas turbines during 

startups; 

(5) engines operated exclusively in emergency situations, except that 

operation for testing or maintenance purposes is allowed for up to 100 hours per year, 

based on a rolling 12-month average. Any new, modified, reconstructed, or relocated 

stationary diesel engine placed into service on or after June 1, 2007, is ineligible for this 

exemption. For the purposes of this subparagraph, the terms "modification" and 

"reconstruction" have the meanings defined in §116.10 of this title (relating to General 

Definitions) and 40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), 

respectively, and the term "relocated" means to newly install at an account, as defined in 

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

account; 

(6) engines used in response to and during the existence of any officially 

declared disaster or state of emergency; 

(7) engines used directly and exclusively by the owner or operator for 

agricultural operations necessary for the growing of crops or raising of fowl or animals; 

3 
(8) diesel engines placed into service before June 1, 2007, that: 

(A) operate less than 100 hours per year, based on a rolling 12-

month average; and 

(B) have not been modified, reconstructed, or relocated on or after 

June 1, 2007. For the purposes of this clause, the terms "modification" and 

"reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 

(December 16, 1975), respectively, and the term "relocated" means to newly install at an 

account, as defined in §101.1 of this title, a used engine from anywhere outside that 

account; 

(9) new, modified, reconstructed, or relocated stationary diesel engines 

placed into service on or after June 1, 2007, that: 

(A) operate less than 100 hours per year, based on a rolling 12-

month average, in other than emergency situations; and 

(B) meet the corresponding emission standard for non-road engines 

listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and in effect at the time of 

installation, modification, reconstruction, or relocation. For the purposes of this 

subparagraph, the terms "modification" and "reconstruction" have the meanings 

defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and 

4 
the term "relocated" means to newly install at an account, as defined in §101.1 of this 

title, a used engine from anywhere outside that account; and 

(10) new, modified, reconstructed, or relocated stationary diesel engines 

placed into service on or after June 1, 2007, that: 

(A) are used solely for product testing and personnel training; 

(B) operate less than 1,000 hours per year, on a rolling 12-month 

basis; and 

(C) meet the corresponding emission standard for non-road engines 

listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and in effect at the time of 

installation, modification, reconstruction, or relocation. For the purposes of this 

subparagraph, the terms "modification" and "reconstruction" have the meanings 

defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and 

the term "relocated" means to newly install at an account, as defined in §101.1 of this 

title, a used engine from anywhere outside that account. 

§117 .2130. Operating Requirements. 

5 
(a) The owner or operator shall operate any unit subject to the emission 

specifications of §117.2110 of this title (relating to Emission Specifications for EightHour Attainment Demonstration) in compliance with those specifications. 

(b) All units subject to §117.2110 of this title must be operated so as to minimize 

nitrogen oxides (NOx) emissions, consistent with the emission control techniques 

selected, over the unit's operating or load range during normal operations. Such 

operational requirements include the following. 

(1) Each unit controlled with post-combustion control techniques must be 

operated such that the reducing agent injection rate is maintained to limit NOx 

concentrations to less than or equal to the NOx concentrations achieved at maximum 

rated capacity. 

(2) Each stationary internal combustion engine controlled with 

nonselective catalytic reduction must be equipped with an automatic air-fuel ratio 

(AFR) controller that operates on exhaust 02 or CO control and maintains AFR in the 

range required to meet the engine's applicable emission specifications. 

(3) Each stationary internal combustion engine must be checked for 

proper operation according to §117.814o(b) of the title (relating to Emission Monitoring 

for Engines). 

6 
(c) No person shall start or operate any stationary diesel or dual-fuel engine for 

testing or maintenance of the engine between the hours of 6:ooa.m. and noon, except: 

(1) for specific manufacturer's recommended testing requiring a run of 

over 18 consecutive hours; 

(2) to verify reliability of emergency equipment (e.g., emergency 

generators or pumps) immediately after unforeseen repairs. Routine maintenance such 

as an oil change is not considered to be an unforeseen repair; or 

(3) firewater pumps for emergency response training conducted in the 

months of April through October. 

§117.2135· Monitoring, Notification, and Testing Requirements. 

(a) Oxygen C02) monitors. If the owner or operator installs an 02 monitor, the 

criteria in §117.81oo(a) of this title (relating to Emission Monitoring System 

Requirements for Industrial, Commercial, and Institutional Sources) should be 

considered the appropriate guidance for the location and calibration of the monitor. 

(b) Nitrogen oxides (NOx) monitors. If the owner or operator installs a 

continuous emissions monitoring system (CEMS) or predictive emissions monitoring 

system (PEMS), the CEMS or PEMS must meet the requirements of §117.81oo(a) or (b) 

7 
of this title. If a PEMS is used, the PEMS must predict the pollution emissions in the 

units of the applicable emission limitations of this division. 

(c) Monitor installation schedule. Installation of monitors must be performed in 

accordance with the schedule specified in §117.9210 of this title (relating to Compliance 

Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources). 

(d) Testing requirements. The owner or operator of any unit subject to §117.2110 

of this title (relating to Emission Specifications for Eight-Hour Attainment 

Demonstration) shall comply with the following testing requirements. 

(1) Each unit must be tested for NOx, carbon monoxide (CO), and 02 

emissions. 

(2) One of the ammonia monitoring procedures specified in §117.8130 of 

this title (relating to Ammonia Monitoring) must be used to demonstrate compliance 

with the ammonia emission specification of §117.2110(h)(2) of this title for units that 

inject urea or ammonia into the exhaust stream for NOx control. 

(3) For units not equipped with CEMS or PEMS, all testing must be 

conducted according to §117.8000 of this title (relating to Stack Testing Requirements). 

In lieu of the test methods specified in §117.8000 of this title, the owner or operator may 

use American Society for Testing and Materials (ASTM) D6522-00 to perform the NOx, 

8 
CO, and 02 testing required by this subsection on natural gas-fired reciprocating 

engines. If the owner or operator elects to use ASTM D6522-00 for the testing 

requirements, the report must contain the information specified in §117.8010 of this title 

(relating to Compliance Stack Test Reports). 

(4) Test results must be reported in the units of the applicable emission 

specifications and averaging periods. If compliance testing is based on 40 Code of 

Federal Regulations Part 60, Appendix A reference methods, the report must contain 

the information specified in §117.8010 of this title. 

(5) For units equipped with CEMS or PEMS, the CEMS or PEMS must be 

installed and operational before testing under this subsection. Verification of 

operational status must, at a minimum, include completion of the initial monitor 

certification and the manufacturer's written requirements or recommendations for 

installation, operation, and calibration of the device. 

(6) Initial compliance with the emission specifications of §117.2110 of this 

title for units operating with CEMS or PEMS must be demonstrated after monitor 

certification testing using the NOx CEMS or PEMS. 

(7) For units not operating with CEMS or PEMS, the following apply. 

9 
(A) Retesting as specified in paragraphs (1) - (4) of this subsection 

is required within 60 days after any modification that could reasonably be expected to 

increase the NOx emission rate. 

(B) Retesting as specified in paragraphs (1) - (4) of this subsection 

may be conducted at the discretion of the owner or operator after any modification that 

could reasonably be expected to decrease the NOx emission rate, including, but not 

limited to, installation of post-combustion controls, low-NOx burners, low excess air 

operation, staged combustion (for example, overfire air), flue gas recirculation, and fuellean and conventional (fuel-rich) reburn. 

(C) Stationary, reciprocating internal combustion engines not 

equipped with CEMS or PEMS must be periodically tested for NOx and CO emissions as 

specified in §117.8140(a) ofthis title (relating to Emission Monitoring for Engines). 

(8) Testing must be performed in accordance with the schedule specified 

in §117.9210 of this title. 

(9) All test reports must be submitted to the executive director for review 

and approval within 60 days after completion of the testing. 

(10) The owner or operator of an affected unit in the Dallas-Fort Worth 

eight-hour ozone nonattainment area must submit written notification of any CEMS or 

10 
PEMS relative accuracy test audit (RATA) or testing required under this section to the 

appropriate regional office and any local air pollution control agency having jurisdiction 

at least 15 days in advance of the date of RATA or testing. 

(e) Run time meters. The owner or operator of any stationary diesel engine 

claimed exempt using the exemption of §117.2103(5), (8), (9), or (10) of this title 

(relating to Exemptions) shall record the operating time with a non-resettable elapsed 

run time meter. 

§117.2145· Recordkeeping and Reporting Requirements. 

(a) Recordkeeping. The owner or operator of a unit subject to §117.2110 of this 

title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) 

shall maintain written or electronic records of the data specified in this subsection. Such 

records must be kept for a period of at least five years and must be made available upon 

request by authorized representatives of the executive director, the United States 

Environmental Protection Agency, or local air pollution control agencies having 

jurisdiction. The records must include: 

(1) for each unit using a continuous emission monitoring system (CEMS) 

or predictive emission monitoring system (PEMS) in accordance with §117.2135(b) of 

this title (relating to Monitoring, Notification, and Testing Requirements) monitoring 

records of: 

11 
(A) hourly emissions for units complying with an emission 

specification enforced on a block one-hour average; and 

(B) daily emissions for units complying with an emission 

specification enforced on a rolling 30-day average. Emissions must be recorded in units 

of: 

(i) pounds per million British thermal units (MMBtu) heat 

input; and 

(ii) pounds or tons per day; 

(2) for each stationary internal combustion engine subject to §117.2110 of 

this title, records of: 

(A) emissions measurements required by §117.2130(b)(3) of this 

title (relating to Operating Requirements); and 

(B) catalytic converter, air-fuel ratio controller, or other emissionsrelated control system maintenance, including the date and nature of corrective actions 

taken; 

12 
(3) records of carbon monoxide (CO) measurements specified in 

§117.2130(b)(3) ofthis title; 

(4) records of the results of initial certification testing, evaluations, 

calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or steam-to-fuel 

or water-to-fuel ratio monitoring systems; and 

(5) records of the results of performance testing, including the testing 

conducted in accordance with §117.2135(d) of this title. 

(b) Records for exempt engines. The following records must be maintained for at 

least five years and must be made available upon request to representatives of the 

executive director, the United States Environmental Protection Agency, or any local air 

pollution control agency having jurisdiction. 

(1) Written records of the number of hours of operation for each day's 

operation must be maintained for each engine claimed exempt under §117.2103(5), (8), 

(9), or (10) of this title (relating to Exemptions) or §117.2130(b)(3) of this title. 

(2) For each engine claimed exempt under §117.2103(5) of this title, 

written records must be maintained of the purpose of engine operation and, if operation 

was for an emergency situation, identification of the type of emergency situation and the 

start and end times and date(s) of the emergency situation. 

13 
(3) For each engine claimed exempt under §117.2103(10) of this title, 

records must be maintained of manufacturer's specifications or test data sufficient to 

demonstrate compliance with the emission standard specified in §117.2103(1o)(C) of 

this title. 

(c) Records of operation for testing and maintenance. The owner or operator of 

each stationary diesel or dual-fuel engine shall maintain the following records for at 

least five years and make them available upon request by authorized representatives of 

the executive director, the United States Environmental Protection Agency, or local air 

pollution control agencies having jurisdiction: 

(1) date(s) of operation; 

(2) start and end times of operation; 

(3) identification of the engine; and 

(4) total hours of operation for each month and for the most recent 12 

consecutive months. 

14 
~ 

TEXAS COMMISSION ON ENVIRONMENTAL QuALii~~!~~~";;;:;:?~:_~:~:~~~'-L:, :~.) :'i 

~' •.:~J.~Ic-: · ::T ;:,•_,,,,_._ --~_,.: -': :.· :. 

~~ ... ': ~~ ;::c_: :_~ - ·:, . 

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·~· 15) AP8 2 2 ZU\3 ~j 

~f~ttJ%~f&fr~p::J: '-::8 ~~F::~;: ~- ~~ ORDERADOPTINGAMENDEDRULESAND(/' .... , .... d 

REVISIONS TO THE STATE IMPLEMENTATION PEAN·-~--- _.;,~·-' 

Docket No. 2012-1388-RUL 

Ru1e Project No. 2012-031-117-AI 

On April10, 2013, the Texas Commission on Environmental Quality (Commission), 

during a public meeting, considered adoption of amended §§ 117.2103, 117.2130, 117.2135, 

and 117.2145. The Commission adopts this amendment, in Chapter 117, Control of Air 

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

Ozone Nonattainment Areas, Division 2, Dallas-Fort Worth Eight-Hour Ozone 

Nonattainment Area Minor Sources; and corresponding revisions to the state implementation 

plan (SIP). The adopted amendments will provide an exemption from the emission testing 

requirements in Chapter 117 for engines that are used exclusively for product testing and 

personnel training, operate in limited service, and meet the applicable federal emissions 

standards in 40 Code of Federal Regulations Part 89. Engines used in this type of service ·will 

be required to install and operate a non-resettable elapsed run time meter, maintain records 

of daily hours of operation, and maintain records demonstrating compliance with the 

applicable federal emissions standards. The rulemaking is a follow-up to a petition for 

rulemaking approved by the Commission on May 30, 2012. Under Tex. Health & Safety Code 

Ann.:§§ 3~2,..011, 382.012, and 382.023 (Vernon 2011), the Commission has the authority to 

· control the' quality of the state's air and to issue orders consistent vvith the policies and 

purppses o{the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The 

, proposed rules -vv-ere published for comment in the November 16, 2012, issue of the Texas 

/_,Register C.37 TexReg 9060). s~:·~-

t.cPur&{lant to Tex. Health & Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code 

~4 Chapter 2tt"'cn (Vernon 2008), and 40 Code of Federal Regulations§ 51.102, and after proper 

notice·, the Commission conducted public hearings to consider the amended rules and 

re-visions to the SIP. Proper notice included prominent advertisement in the areas affected at 

least 30 days prior to the dates of the hearings. Public hearings for this rule making vvere held 

in Fort Worth, Texas on December 13, 2012 and in Austin, Texas on December 18, 2012. 

The Commission circulated hearing notices of its intended action to the public, 

including interested.persons, the Regional Administrator ofthe EPA, and all applicable local 

air pollution control agencies. The public was imited to submit data, -vie1vs, and 

recommendations on the proposed amended rules and SIP revisions, either orally or in 

vvTiting, at the hearings or during the comment period. Prior to the scheduled hearings, 
copies of the proposed amended rules and SIP revisions were available for public inspection 

at the Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed 

amended rul~s and SIP revisions were submitted to the Commission during the comment 

period, and \vere considered by the Commission as reflected in the analysis of testimony 

incorporated by reference to this Order. The Commission finds that the analysis of testimony 

includes the names of all interested groups or associations offering comment on the proposed 

amended rules and the SIP revisions and their position concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and 

re-visions to the SIP incorporated by reference to this Order are hereby adopted. The 

Commission further authorizes staff to make any non-substantive revisions to the rules 

necessary to comply with Texas Register requirements. The adopted rules and the preamble 

to the adopted rules and the revisions to the SIP are incorporated by reference in this Order 

as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the 

Commission, the Chairman should transmit a copy of this Order, together with the adopted 

rules and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to 

the Texas SIP pursuant to the Federal Clean Air Act, codified at 42 U.S. Code Ann.§§ 7401-

7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative 

Procedure Act, Tex. Gov't Code,§ 2001.033 (Vernon 2008). 

If any portion of this Order is for any reason held to be invalid by a court of competent 

jurisdiction, the invalidity of any portion shall not affect the validity of the remaining 

portions. 

Issued date: APR 2 2 2013 

TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
any associated duct burners and 

sidered to be utility boilers. 

ed waste heat boilers, are not con-

(53) Wood--\Vood, wo d residue, bark, or any derivative 

fuel or residue thereof in any form including, but not limited to, sa.vdust. sander dust, wood chips, sc ps, slabs, millings, shavings, and 

pr~ssed pellets made from woo or other forest residues. 

This agency hereby certifies tha the adoption has been reviewed 

by legal counsel and found to b a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer tary of State on April 12, 2013. 

TRD-201301491 

Robert Martinez 

Director, Environmental Law Divisi 

Texas Commission on Environmen I Quality 

Effective date: May 2, 2013 

Proposal publication date: Novem r 2, 2012 

For further information, please call: (512) 239-2141 

• • 

SUBCHAPTER D. COMBUSTION 

CONTROL AT MINOR SOURCES IN 

OZONE NONATTAINMENT AREAS 

DNISION 2. DALLAS-FORT WORTH 

EIGHT-HOUR OZONE NONATTAINMENT 

AREA MINOR SOURCES 

30 TAC §§117.2103,117.2130,117.2135,117.2145 

The Texas Commission on Environmental Quality (TCEQ, 

agency, commission) adopts amendments to §§117.2103, 

117.2130, 117.2135, and 117.2145 without changes to the 

proposed text as published in the November 16, 2012 •. issue of 

the Texas Register (37 TexReg 9060) and the text Will not be 

republished. 

The adopted amendments will be submitted to the United States 

Environmental ProtectionAgency(EPA)as a revision to the state 

implementation plan (SIP). 

Background and Summary of the Factual Basis for the Adopted 

Rules 

On April 5, 2012, Halliburton Energy Services, lncorpora~ed 

(Halliburton) submitted a petition for rulemaking requesting 

a partial exemption from the rules in 30 TAC Chapter 11_7. 

Subchapter D, Division 2 that limit nitrogen oxides (NOJ emissions from minor sources in the Dallas-Fort Worth (DFW) 1997 

eight-hour ozone nonattainment area (DFW area). The commission approved the petition for rulemaking on May 30, 2012 and 

issued an order on June 1, 2012 directing the executive director 

to examine the issues in the petition and to initiate rulemaking 

(Project No. 2012-029-PET-NR). 

The unique service ofthe Halliburton Drawworks Engine makes 

ongoing testing to demonstrate compliance with the Chapter 117 

NO emission limits impractical and comparatively more expensive than the stationary engine testing envisioned during the 

adoption of the Chapter 117 rules in 2007. To comply with the 

Chapter 117 testing requirements, Halliburton must arrange for 

both emissions testing equipment (a normal and expected expense) and for the rental, transport, and use of a dynamometer, 

38 TexReg 2634 Apri/26, 2013 Texas Register 

which is typically used by engine manufacturers for testing purposes. Preparing the engine for installation of the dynamometer 

and returning the engine to operational status subsequent to the 

emissions testing presents significant safety hazards associated 

with the removal of the drive train and transmission, removal of 

the torque converter, and the placement and use of non-dedicated hoisting equipment on the rig floor. Performing a compliant 

emissions test of the Drawworks Engine takes three to four days 

to complete, whereas compliant emissions testing on a typical 

stationary engine only requires approximately half a day. Additionally, engines used to raise and lower down-hole equipment 

in actual oil and gas operations in the field, which the Drawworks 

Engine is designed to simulate, are typically not subject to similar 

Chapter 117 testing requirements because they are not installed 

at a location long enough to trigger the definition of a stationary 

internal combustion engine in §117.10. The Drawworks Engine 

is subject to Chapter 117, Subchapter D, Division 2 because the 

equipment has been made stationary to provide testing and training facilities for sources that are not subject to the rule. 

The adopted change will expand the list of exempted sources in 

§117.21 03 to include stationary diesel engines that are used exclusively for product testing and personnel training, operate less 

than 1,000 hours per year on a rolling 12-m onth basis, and meet 

applicable Tier emission standards for non-road engines listed in 

40 Code of Federal Regulations (CFR) §89.112(a), Table 1 (October 23, 1998) in effect at the time of installation, modification, 

reconstruction, or relocation. The adopted exemption is narrow 

in scope and consistent with the similar existing exemptions for 

stationary diesel engines located at minor sources, such as stationary engines used in research and testing and stationary engines used for purposes of performance verification and testing. 

The adopted change will also revise the operating requirements 

of §117.2130, the monitoring requirements of §117.2135, and 

the recordkeeping requirements of §117.2145 to reflect the new 

category of exempt engines. 

Demonstrating Noninterference under Federal Clean Air Act, 

Section 11 0(0 

The commission provides the following information to demonstrate why the adopted new exemption in § 117.21 03 will not negatively impact the status of the state's progress towards attainment with the 1997 eight-hour ozone National Ambient Air Quality Standard (NMOS), will not interfere with control measures, 

and will not prevent reasonable further progress toward attainment of the ozone NMQS. 

On DecemberS, 2000, as part ofthe Houston-Galveston-Brazoria (HGB} attainment demonstration SIP revision, the commission adopted a new control strategy for stationary reciprocating 

internal combustion engines, boilers, and process heaters located at minor industrial, commercial, and institutional sources 

ofNOx in the HGB area. The adopted rulemaking exempted engines used for specific purposes, such as those used in research 

and testing and those used for the purposes of performance verification and testing. 

On May 23, 2007, as part of the DFW 1997 eight-hour ozone 

attainment demonstration SIP revision, the commission adopted 

new emission control requirements for stationary reciprocating 

internal combustion engines located at minor industrial, commercial, and institutional sources of NO in the DFW area. The NOx 

emission reductions were necessarY for the DFW area to attain 

the 1997 eight-hour ozone NAAQS. Similar to the HGB rulemaking, the DFW rulemaking also adopted exemptions for engines 

used for specific purposes, such as those used in research and 
testing and those used for the purposes of performance verification and testing. 

The adopted partial exemption is narrowly tailored and will not 

adversely impact the DFW area's progress in attaining the 1997 

eight-hour ozone NAAQS. During the 2000 and 2007 rulemakings, no stationary engines similar in function to the Halliburton 

Drawworks Engine were identified in the emissions inventory in 

the counties impacted by the rulemakings. and no such engines 

were relied upon for creditable reductions for the SIP revision. 

Therefore, the adopted rulemaking will not result in a loss of any 

SIP creditable reductions for the DFW 1997 eight-hour ozone 

nonattainmentarea. Additionally, based on February2012 emissions test results and a limit of no more than 1,000 hours of run 

time per year, the Drawworks Engine has maximum potential annual NO, emissions of0.87 tons per year and is well below the 

emission standards established in the Chapter 117 minor source 

NO, rules. The adopted exemption criteria require compliance 

with the federal standards in 40 CFR Part 89 to ensure that the 

adopted exemption will not result in backsliding. Based on the 

test results, the Drawworks Engine at the Halliburton Carrollton Plant meets Tier 3 emission standards for non-road engines 

listed in 40 CFR §89.112(a), Table 1 (October 23, 1998). Therefore, the Drawworks Engine will be required to and does meet 

the applicable federal emission standards in 40 CFR §89. 112( a). 

Table 1 (October 23, 1998) for the engine's size and installation 

date. The NO, emission limits for stationary diesel engines in 

§117.2110 were derived from the Tier standards in 40 CFR Part 

89. Therefore, the adopted exemption will not result in additional 

NO. emissions in the DFW area. 

Based on these factors, the commission has determined that 

the adopted rule change will not negatively impact the status 

of the state's attainment demonstration for the 1997 eight-hour 

ozone NMQS, will not interfere with control measures, and will 

not prevent reasonable further progress toward attainment of the 

ozone NMQS. 

Section by Section Discussion 

Section 117.2103, Exemptions 

The commission adopts §117.2103(10) to exempt stationary 

diesel engines that are used exclusively for product testing and 

personnel training, operate less than 1,000 hours per year on 

a rolling 12-month basis, and meet applicable Tier emission 

standards for non-road engines listed in 40 CFR §89.112(a), 

Table 1 (October 23, 1998) in effect at the time of installation, 

modification, reconstruction, or relocation. The adopted exemption only applies to an engine that is in dedicated service for 

product testing and personnel training and does not apply to an 

engine used for any additional purpose. The adopted amendment will exempt engines in this unique service from ongoing 

testing to demonstrate compliance with the Chapter 117 NO, 

emission limits because the testing requirements are impractical 

and comparatively more expensive than the stationary engine 

testing envisioned at adoption ofthe rule. Requiring compliance 

with the federal standards in 40 CFR Part 89 ensures that the 

adopted exemption will not result in additional NO. emissions 

in the DFW area because the Chapter 117 NOx emission limits 

were derived from these federal standards. Furthermore, the 

adopted rules change the petitioner's suggested operating 

restriction language from "rolling 12-month average" to "rolling 

12-month basis" in adopted §117.2103(10)(B) to make clear 

that compliance is based on the total annual hours of operation. 

Section 117.2130, Operating Requirements 

The commission amends §117.2130(c}(1) - (3) to distinguish 

between product testing as used in the adopted exemption 

in §117.2103(10) and engine testing as used in the existing 

rule language in §117.2130(c}. Existing §117.2130(c) prohibits 

a person from starting or operating any stationary diesel or 

dual-fuel engine in the DFW area for testing or maintenance 

between the hours ofG:OO a.m. and noon, except under specific 

conditions. The adopted revision clarifies that the prohibition 

is specific to testing or maintenance of the engine to avoid 

potential conflict with the adopted exemption in §117.2103(10} 

for stationary engines that are used exclusively for product 

testing and personnel training and more accurately reflect the 

intent of the prohibition. 

Section 117.2135, Monitoring, Notification, and Testing Requirements 

The commission amends § 117 .2135( e) to reference the adopted 

exemption in §117.2103(10). Revised §117.2135(e) requires 

sources claiming the adopted exemption in §117.2103(10) 

to monitor the operating time with a non-resettable elapsed 

run time meter in order to demonstrate compliance with the 

operating restrictions in §117.2103(10). To conform to Texas 

Registerformatting standards, the commission is also amending 

subsection (e) by adding a reference to the title of §117.2103. 

Section 117.2145, Recordkeeping and Reporting Requrements 

The commission amends §117.2145(b) by reformatting the 

existing provision and adding new recordkeeping requirements 

associated with the adopted exemption in §117.2103(10). 

The commission is reformatting the existing requirements in 

§117.2145(b} to accommodate the new recordkeeping requirements associated with the adopted exemption in §117.2103(10). 

The adopted amendment does not alter the intent ofthe existing 

recordkeeping requirements for sources currently complying with §117.2145(b} or impose any new requirements on 

engines claimed exempt under §117.2103(5}, (8}, or (9) or 

§117.2130(b)(3). 

The adopted changes to § 117 .2145(b) reform at the record retention requirement in existing §117.2145(b) to require the records 

specified in paragraphs (1}- (3) to be maintained for at least five 

years and must be made available upon request to representatives of the executive director, the EPA, or any local air pollution 

control agency having jurisdiction. 

Adopted §117.2145(b)(1) requires written records ofthe number 

of hours of operation for each day's operation to be maintained 

for each engine claimed exempt under §117.2103(5), (8), (9), 

or (10) or §117.2130(b)(3). Adopted §117.2145(b)(1) includes 

the existing requirements in §117.2145(b) for engines claimed 

exempt under §117.2103(5), (8}, or (9} or §117.2130(b)(3) and 

applies the same requirements to engines claimed exempt under 

adopted §117.2103(10}. The adopted revision requires sources 

claiming the adopted exemption in §117.2103(10) to maintain 

written records of the number of hours of operation for each day's 

operation in order to demonstrate compliance with the operating 

restrictions included in §117.2103(10). 

Adopted §117.2145(b)(2} includes the existing requirements in 

§117.2145(b) for the owner or operator of each engine claimed 

exempt under §117.2103(5} to maintain written records of the 

purpose of engine operation and, if operation was for an emergency situation, identification ofthe type of emergency situation 

and the start and end times and date(s) of the emergency situation. 

ADOPTED RULES April 26, 2013 38 TexReg 2635 
Adopted §117.2145(b)(3) requires the owner or operator of 

each engine claimed exempt under §117.2103(10) to maintain 

records of manufacturer's specifications or test data sufficient 

to demonstrate compliance with the corresponding emission 

standard for non-road engines listed in 40 CFR §89.112(a), 

Table 1 (October 23, 1998) as specified in §117.2103(10}(C). 

The petition for rulemaking approved by the commission on May 

30, 2012 did not include a specific request for this record keeping 

requirement. However, the commission is adopting this recordkeeping requirement to clearly indicate the records required to 

demonstrate compliance with the adopted exemption criteria 

in §117.2103(10) and facilitate enforcement of the adopted 

exemption. Additionally, the adopted recordkeeping provision 

in subsection (b)(3) clarifies that either engine manufacturer's 

specifications or actual emission testing are acceptable for 

demonstrating that the engine meets the exemption criteria. 

Final Regulatory Impact Determination 

The commission reviewed the adopted rulemaking in light ofthe 

regulatory analysis requirements of Texas Government Code, 

§2001.0225 and determined that the adopted rulemaking does 

not meet the definition of a major environmental rule. Texas Government Code, §2001.0225 states that a major environmental 

rule is a rule for which the specific intent 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 ofthestate or a sector ofthe state. Furthermore, while the adopted rulemaking does 

not constitute a major environmental rule, even if it did, a regulatory impact analysis would not be required because the adopted 

rulemaking does not meet any of the four applicability criteria for 

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

a major environmental rule that: 1) exceeds a standard set by 

federal law, unless the rule is specifically required by state law; 

2) exceeds an express requirement of state law, unless the rule 

is specifically required by federal law; 3) exceeds a requirement 

of a delegation agreement or contract between the state and an 

agency or representative of the federal governmentto 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. Specifically, it does not meet any of the four applicability 

criteria listed in Texas Government Code, §2001.0225 because: 

1) the adopted rulemaking is part ofthe SIP, and as such is designed to meet, not exceed the relevant standard set by federal law; 2) parts of the adopted rulemaking are directly required 

by state law; 3) no contract or delegation agreement covers the 

topic that is the subject of this adopted rulemaking; and 4} the 

adopted rulemaking 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, which are 

cited in the Statutory Authority section of this preamble. 

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

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

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

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

schedules and timetables for compliance as may be necessary 

38 TexReg 2636 Apri/26, 2013 Texas Register 

or appropriate to meet the applicable requirements of this chapter (meaning 42 USC, Chapter 85, Air Pollution Prevention and 

Control, otherwise known as the FCAA}. The provisions of the 

FCAA recognize that states are in the best position to determine 

what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected 

industry, and the public to collaborate on the best methods for 

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

though the FCAA allows states to develop their own programs, 

this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States 

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

must develop programs and control measures to assure that 

their SIPs provide for implementation, attainment, maintenance, 

and enforcement of the NAAQS within the state. The specific 

intent ofthe adopted rulemaking is to implement changes within 

the Chapter 117, Subchapter D, Division 2 rules, which will expand the list of exempted sources operating in limited services 

in §117.2103 to include stationary diesel engines that are used 

exclusively for product testing and personnel training, and meet 

applicable Tier emission standards for non-road engines listed 

in the applicable CFR. 

While the adopted rulemaking protects the environment or reduces risks to human health from environmental exposure, it 

does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because it does not adversely 

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

productivity, competition, or jobs, nor would the rulemaking adversely affect in a material way the environment, or the public 

health and safety of the state or a sector of the state. The rulemaking as a result is not subject to a regulatory impact analysis 

urider Texas Government Code, §200 1.0225 because it is not a 

major environmental rule. 

The requirement to provide a fiscal analysis of regulations in the 

Texas Government Code was amended by Senate Bill (SB) 633, 

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 TCEQ. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: based on an assessment of 

rules adopted by the agency in the past, it is not anticipated that 

the bill will have significant fiscal implications for the agency due 

to its limited application. The commission also noted that the 

number of rules that would require assessment under the provisions ofthe bill was not large. This conclusion was based, in 

part, on the criteria set forth in the bill that exempted rules from 

the full analysis unless the rule was a major environmental rule 

that exceeded a federal law. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the NMOS; thus, states must develop programs for each nonattainment area to help ensure that 

those areas will meet the attainment deadlines. Because of the 

ongoing need to address nonattainment issues and to meet the 

requirements of 42 USC, §7410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature 

is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every revision to 

the SIP would require the full regulatory impact analysis contem-
plated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by 

the Legislative Budget Board (LBB) in its fiscal notes. Since the 

legislature is presumed to understand the fiscal impacts of the 

bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes 

that the intent of SB 633 was only to require the full regulatory 

impact analysis for rules that are extraordinary in nature. While 

the rules have a broad impact, that impact is no greater than is 

necessary or appropriate to meet the requirements of the FCAA. 

For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a}, 

because they are required by federal law. 

The commission has consistently applied this construction to 

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

time, the legislature has revised the Texas Government Code 

but left this provision substantially unamended. It is presumed 

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

legislature amends the laws without making substantial change 

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

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

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

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

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

(Tex. App. Austin 1990, no writ); superseded by statute on 

another point of law, Tax Code § 112.108, Other Actions Prohibited, as recognized in, First State Bank of Dumas v. Sharp, 863 

S.W.2d 81,83 (Tex. App. Austin 1993, 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, pet. denied); and Coastal 

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

916 (Tex. 1978). 

The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the 

Texas Administrative Procedure Act (APA) by the legislature in 

1999. In an attempt to limit 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 as required in Texas Government Code, §2001.035. The legislature specifically identified 

Texas Government Code, §2001.0225 as falling under this standard. The commission has complied with the requirements of 

Texas Government Code, §2001.0225. 

Even ifthe adopted rulemaking constitutes a major environmental rule under Texas Government Code, §2001.0225(g)(3), a 

regulatory impact analysis is not required because this exemption is part of the commission's SIP for making progress toward 

the attainment and maintenance of the NAAQS. Therefore, 

the adopted rulemaking does not exceed a standard set by 

federal law or exceed an express requirement of state law, 

since they are part of an overall regulatory scheme designed 

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

(NAAQS). The commission is charged with protecting air quality 

within the state and to design and submit a plan to achieve 

attainment and maintenance of the federally mandated NAAQS. 

The Third District Court of Appeals upheld this interpretation in 

Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W. 

3d 728 (Tex. App. -Austin 2004, no writ). The specific intent 

of the adopted rulemaking is to implement changes within the 

Chapter 117, Subchapter D. Division 2 rules expanding the list 

of exempted sources listed in §117.2103 to include stationary 

diesel engines used exclusively for product testing and personnel training and meet applicable Tier emission standards for 

non-road engines listed in the applicable CFR. This adoption, 

therefore, does not exceed an express requirement of federal 

law. The amendments are needed to implement state law but 

do exceed those new requirements. Finally, this rulemaking was 

not developed solely under the general powers of the agency 

but is authorized by specific sections of THSC, Chapter 382, 

which are cited in the statutory Authority section of this preamble, including THSC, §382.012 and §382.019. Because this 

adopted rulemaking does not meet any of the four applicability 

requirements, Texas Government Code, §2001.0225(b) does 

not apply and a regulatory impact analysis is not required. 

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

period and received no comments. 

Takings Impact Assessment 

The commission evaluated the adopted rulemaking and 

performed an analysis of whether the adopted rulemaking 

constitutes a taking under Texas Government Code, Chapter 

2007. The commission's preliminary assessment indicates 

Texas Government Code, Chapter 2007 does not apply. 

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

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

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

requires the governmental entity to compensate the private real 

property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) 

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

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

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

least 25 percent in the market value of the affected private real 

property, determined by comparing the market value of the property as if the governmental action is not in effect and the market 

value of the property determined as if the governmental action 

is in effect." 

Promulgation and enforcement ofthe rulemaking would be neither a statutory nor a constitutional taking of private real property. The primary purpose of the rulemaking is an update to 

Chapter 117, Subchapter D, Division 2 expanding the list of exempted sources listed in §117.2103 to include stationary diesel 

engines used exclusively for product testing and personnel training and meet applicable Tier emission standards for non-road 

engines. This rulemaking is not burdensome. restrictive, or limiting of rights to private real property because the rulemaking 

regulates the use of stationary engines in limited circumstances. 

Furthermore, the rulemaking benefits the public by providing oil 

and gas field operators an opportunity for safe simulation without 

incurring the significant safety hazards typically associated with 

the current testing requirements of stationary engines. 

The rulemaking does not affect a landowner's rights in private 

real property because this rulemaking does not burden, restrict, 

or limit the owner's right to property, nor does it reduce the value 

of any private real property by 25% or more beyond that which 

would otherwise exist in the absence of the regulations. Therefore. this rulemaking does not constitute a taking under Texas 

Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

ADOPTED RULES April 26, 2013 38 TexReg 2637 
The commission reviewed the adopted rulemaking and found 

the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11 (b}(2) relating to 

rules subject to the 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 with the regulations of 

the Coastal Coordination Advisory Committee and determined 

that the rulemaking will not affect any coastal natural resource 

areas because the rules only affect counties outside the CMP 

area and is, therefore. consistent with CMP goals and policies. 

The commission invited public comment regarding the consistency with the CMP during the public comment period. The commission received no comments on the 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 perm it program must, consistent 

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

of the rulemaking, revise their operating permit to include the 

new Chapter 117 requirements. 

Public Comment 

The commission scheduled a public hearing on the rulemaking 

in Fort Worth on December 13, 2012 and a second hearing in 

Austin on December 18, 2012. The commission did not open 

either hearing as no interested individuals registered to provide 

comments. The public comment period closed on December 19, 

2012. The commission received one comment from the North 

Central Texas Council of Governments (NCTCOG) opposing the 

proposed rule revisions. 

Response to Comments 

Comment 

NCTCOG commented that this and similar training sites should 

be located outside of all nonattainment areas in the state 

because approving an exemption could contribute to the 

exceedance of federal ozone standards in the DFW area. Alternatively, NCTCOG requested that if the commission approves 

the exemption. it require that all eligible engines be located 

away from air quality monitors and sensitive groups. 

Response 

The commission makes no changes to the adopted rules in response to this comment. The intent of this rulemaking is to provide an exemption for stationary diesel engines that are used exclusively for product testing and personnel training, operate less 

than 1,000 hours per year, and meet applicable emission standards in 40 CFR §89.112(a}. Table 1 (October 23, 1998). The 

commenter's suggested change is outside the scope ofthis rulemaking. Requiring facilities subject to the exemption to relocate 

to an attainment county or alternative location within the nonattainment county through this rulemaking would be equivalent 

to revoking an existing facility's authorization and force consideration of location for new New Source Review authorizations, 

which is contrary to the TCEQ's authority under the Texas Clean 

Air Act. Additionally, the adopted exemption will not result in additional NO, emissions in the DFW area. The exemption criteria 

require compliance with the federal standards in 40 CFR Part 89 

from which the NO, emission limits for stationary diesel engines 

38 TexReg 2638 April26, 2013 Texas Register 

in §117.2110 were derived. Based on February 2012 emissions 

test results, the Drawworks Engine at the Halliburton Carrollton Plant meets Tier 3 emission standards for non-road engines 

listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and is 

well below the applicable emission standards in §117.2110. 

Comment 

NCTCOG requested confirmation that the engine referenced 

in Halliburton's petition for rulemaking is located in Carrollton, 

Texas. NCTCOG requested the commission confirm that the 

proposed rulemaking only exempts one engine or alternatively 

confirm the number of affected engines and the projected 

increase in annual emissions. NCTCOG also requested the 

commission provide documentation on the analysis of emission 

estimates and the impact of the additional emissions from the 

newly exempted engine on air quality monitors and sensitive 

populations. NCTCOG asked if the proposed exemption allows 

additional training sites to be located in the DFW area. NCTCOG 

also asked if the commission considered the possibility and 

impact of additional engines used for this purpose in the DFW 

area. 

Response 

The commission is currently aware of only one engine that meets 

the newly adopted exemption criteria, and that is the Halliburton 

Drawworks Engine located in Carrollton, Texas. However, 

other engines that meet the adopted exemption criteria in 

§117.2103(10) could also qualify for exemption. As discussed 

in the Background and Summary of the Factual Basis for the 

Adopted Rules, and Response to Comments sections of this 

preamble, the adopted exemption will not increase annual NOx 

emissions in the DFW area. The exemption in §117.2103(10) 

requires the engine to meet the applicable 1ier emission standards for non-road engines listed in 40 CFR §89.112(a), Table 

1 (October 23, 1998). The NO. emission limits for stationary 

diesel engines in §117.2110 were derived from the same 1ier 

standards in 40 CFR §89.112(a). Therefore, even if additional 

units do meet the exemption criteria in §117.2103(10), the NOx 

emissions from such units are not expected to exceed the NOx 

emissions anticipated if the same new units were required to 

meet the applicable NO. emission limits in §117.2110. The 

commission makes no changes in response to this comment. 

Comment 

NCTCOG asked why the proposed maximum annual operating 

hours were 1,000 hours given that the existing exemptions in 

§117.2103(5), {8), and (9) are limited to 100 hours per year. 

Response 

The existing exemptions in §117.2103(5), (8), and (9) are intended to apply to sources that operate in very limited service, 

such as emergency backup generator engines. The hours limitations in §117.2103(5), (8), and (9) are designed for engines 

that are in emergency or limited service. Other existing rules. 

such as §117.2103(2) and (3), exempt engines used for specific 

purposes, such as those used in research and testing and those 

used for the purposes of performance verification and testing. 

The Halliburton Drawworks Engine is not an emergency backup 

engine or limited-use engine. Rather. the Drawworks Engine is 

a primary service engine and is similar to the engines used for 

specific purposes that qualify for the exemptions in §117.2103(2) 

and (3). However, the existing exemptions in §117.2103 do not 

cover the full operating range of Halliburton's Drawworks Engine 

due to the unique nature of its service. Instead of granting the full 
exemption afforded to other engines that operate in specific service, the commission is adding an additional layer of stringency 

to the exemption by limiting the engine's hours of operation. The 

commission makes no changes in response to this comment. 

Comment 

NCTCOG requested the commission justify why the proposed 

rule provides an exemption from the operating requirements in 

§117.2130, which prohibit affected engines from being started 

between the hours of 6:00a.m. and noon. 

Response 

The operating requirement in §117.2130(c) prohibits the operation of any stationary diesel or dual-fuel engine for testing or 

maintenance between the hours of 6:00 a.m. and noon except under limited circumstances. The commission is amending §117.2130(c)(1)- (3} to distinguish between product testing 

as used in the adopted exemption in §117.2103(10) and engine 

testing as used in the existing rule language in §117.2130(c). 

The commission is not providing an exemption from the operating requirement in §117.2130(c). The adopted revision clarifies that the prohibition is specific to testing or maintenance 

of the engine to avoid conflict with the adopted exemption in 

§117.2103(10) for stationary engines that are used exclusively 

for product testing and personnel training and more accurately 

reflect the intent of the prohibition. The commission's intent for 

§ 117 .2130( c} has always been thatthe prohibition applies to testing and maintenance of the engine itself. These activities can 

typically be scheduled outside the 6:00a.m. to noon time-frame 

without significantly interfering with the daily operations of a facility. Section 117 .2130( c) does apply to the Halliburton Drawworks 

Engine when Halliburton operates the engine as part of the engine's routine testing and maintenance. However, §117.2130(c) 

does not apply when Halliburton is operating the engine as part 

of the facility's normal operation of testing drilling equipment and 

training personnel. The commission makes no changes in response to this comment. 

Comment 

NCTCOG asked if there are recent time-of-day photochemical 

model sensitivity runs that indicate how early morning NO. and 

volatile organic compound emissions impact afternoon ozone 

formation. 

Response 

The commission did not conduct photochemical modeling in support of this rule revision. The DFW attainment demon strati on Sl P 

revision for the 1997 eight-hour ozone standard adopted by the 

commission on December 7, 2011 (Project Number 2010-022-

SIP-NR) contains the most recent photochemical modeling analysis for the DFW area. The photochemical modeling for the 2011 

DFW attainment demonstration SIP revision used emissions that 

were temporally allocated according to emission category but 

modeling runs were not conducted to determine the sensitivity 

of the model to changes in emissions by time of day. The commission makes no changes in response to this comment. 

Comment 

NCTCOG requested the TCEQ examine the benefits and feasibility of requiring independent third-party verification of industry-reported monitoring and compliance data. 

Response 

The commenter's request is outside the scope of this rulemaking. The intent of this rulemaking is to provide an exemption for 

stationary diesel engines that are used exclusively for product 

testing and personnel training, operate less than 1 ,000 hours 

per year, and meet applicable emission standards in 40 CFR 

§89.112(a}, Table 1 (October23, 1998). The commission makes 

no changes in response to this comment. 

Comment 

NCTCOG requested the TCEQ require training to include smart 

operating practices such as no idling, proper engine maintenance, and other emission reducing strategies. 

Response 

The intent of this rulemaking is to provide an exemption for 

stationary diesel engines that are used exclusively for product 

testing and personnel training, operate less than 1 ,000 hours 

per year. and meet applicable emission standards in 40 CFR 

§89.112(a), Table 1 (October 23, 1998}. The training suggested 

by the commenter is not necessary to ensure compliance with 

the adopted exemption criteria in §117.21 03(1 0). Additionally, 

applying such training requirements generally under Chapter 

117, Subchapter D, Division 2 is outside the scope of this 

rulemaking. The commission makes no changes in response to 

this comment. 

Comment 

NCTCOG requested the TCEQ require Halliburton to identify and 

implement emission reduction offsets for increased emissions. 

Response 

As discussed in the Background and Summary of the Factual 

Basis for the Adopted Rules, and Response to Comments 

sections of this preamble, the adopted exemption will not increase NOx emissions in the DFW area. Therefore, emission 

reduction offsets are not necessary. The adopted exemption 

in §117.2103(10) requires the engine to meet the federal lier 

standard used to derive the applicable Chapter 117 NOx emission specification. The federal standard is at least as stringent 

as the corresponding NO, emission limit in §117.2110 and 

therefore the adopted exemption will not result in additional NO, 

emissions in the DFW area. In addition, test results indicate the 

NO, emissions from Halliburton's Drawworks Engine are below 

the applicable Chapter 117 NOx emission specification. The 

commission makes no changes in response to this comment. 

Statutory Authority 

The amendments are adopted 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 Water Code 

(TWC), §5.1 02, General Powers, §5.1 03, Rules, and §5.1 05, 

General Policy, which authorize the commission to adopt rules 

necessary to carry out its powers and duties as well as all general 

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

The Texas Clean Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy 

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

the state's air resources, consistent with the protection of public 

health, general welfare, and physical property; THSC, §382.011, 

General Powers and Duties, which authorizes the commission to 

control the quality of the state's air; and THSC, TCAA, §382.012, 

State Air Control Plan, which authorizes the commission to preADOPTED RULES April 26, 2013 38 TexReg 2639 
pare and develop a general, comprehensive plan for the control of the state's air. The amendments are also adopted underTHSC, §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 (d), 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. Finally, the amendments are 

also adopted under the Federal Clean Air Act (FCAA), 42 USC, 

§§7 401, et seq., which requires states to submit state im plem entation plan revisions that specify the manner in which the National Ambient Air Quality Standard will be achieved and maintained within each air quality control region of the state. 

The adopted amendments implement TWC, §5.103 and §5.1 05, 

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

382.021, 382.051; and FCAA, 42 USC, §§7 401, et seq. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on April 12, 2013. 

TRD-201301492 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: May 2, 2013 

Proposal publication date: November 16, 2012 

For further information, please call: (512) 239-2548 

• 

TITLE 34. PUBLIC 

PART 1. COMPTR 

ACCOUNTS 

CHAPTER 15. 

• 

ANCE 

LLER OF PUBLIC 

ONIC TRANSFER OF 

CERTAIN PAY:tviENTS T STATE AGENCIES 

34 TAC §§15.1 - 15.18 

The Comptroller of Public Acco nts adopts the repeal of Chapter 15, §§15.1 - 15.18, concerni g the electronic transfer of certain payments to state agencies pursuant to Government Code, 

§404.095, without changes to t e proposal as published in the 

February 15, 2013, issue of the exas Register(38 TexReg 782). 

The comptroller is adopting a n w set of Chapter 15 rules that 

will update and replace the exi ting Chapters 15 and 16 rules. 

Government Code, §404.095 re uires the Comptroller of Public 

Accounts to adopt rules specifyi g the approved means of electronic funds transfer and to sp cify the separate categories of 

payments. The new Chapter 1 rules do not contain any major 

substantive or procedural chan es to the existing practice and 

procedures for electronic trans r of certain payments to state 

agencies pursuant to Governm nt Code, §404.095. The repeal 

of Chapter 15 will be effective a of the date the new Chapter 15 

rules take effect. 

No comments were received arding adoption ofthe repeal. 

38 TexReg 2640 April26, 2013 Texas Register 

The repeal of Chapter 15 is ado ed under Government Code, 

§404.095, which provides the c ptroller with the authority to 

prescribe, adopt, and enforce rul s relating to the administration 

and enforcement ofthe provision ofthe Electronic Funds Transfer of Certain Payments under G vernment Code, §404.095. 

The repeal of Chapter 15 is p suant to Government Code, 

§404.095. 

This agency hereby certifies that t e adoption has been reviewed 

by legal counsel and found to be valid exercise of the agency's 

legal authority. 

Filed with the Office ofthe Secre ry of State on April 12, 2013. 

TRD-201301484 

Ashley Harden 

General Counsel 

Comptroller of Public Accounts 

Effective date: May 2, 2013 

Proposal publication date: February 5, 2013 

For further information, please call: ( 12) 475-0387 

• • • 

SUBCHAPTER A. APP ICABILITY, 

DEFINITIONS AND PA 1ENT CATEGORIES 

34 TAC §§15.1 - 15.8 

The Comptroller of Public Acco nts adopts new Chapter 15, 

Subchapter A, §§ 15.1 - 15.8, c ncerning Applicability, Definitions and Payment Categories, rsuant to Government Code, 

§404.095, without changes to th proposed text as published in 

the February 15, 2013, issue oft e Texas Register (38 TexReg 

783) . 

The comptroller is adopting new hapter 15 rules, including new 

Subchapters A - D, to update a d replace the existing Chapters 15 and 16 rules. Govern nt Code, §404.095 requires 

the Comptroller of Public Accoun to adopt rules specifying the 

approved means of electronic fu ds transfer and to specify the 

separate categories of payments The new Chapter 15 rules do 

not contain any major substantiv or procedural changes to the 

existing practice and procedure for electronic transfer of certain payments to state agencies ursuant to Government Code, 

§404.095. The Comptroller of Pu lie Accounts' repeal of Chapters 15 and 16 will be effective a of the date the new Chapter 

15 rules take effect. 

The rules in Chapter 15, Subcha ter A, address the applicability, definitions, and payment cat ries for the electronic transfer 

of certain payments to state agen ies under Government Code, 

§404.095. Section 15.1, Applic bility and Additional Information, explains the applicability to electronically transfer certain 

payments to a state agency by an approved means of electronic funds transfer under Gov mment Code, §404.095, and 

how to find additional informatio on the subject. Section 15.2, 

Approved Means of Electronic F nds Transfer, sets out the approved means of electronic fun s transfer under Government 

Code, §404.095. Section 15.3, finitions, contains the definitions for the Chapter 15 rules. Se tion 15.4, Applicable Payment 

Categories and Voluntary Paym nts, discusses the applicable 

payment categories and volunta payments. Section 15.5, Payment Category: Fees, discusses the payment category of fees 

and §15.6, Payment Category: axes, relates to the payment 

category oftaxes. Section 15. 7, ayment Category: Other Pay-