### 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 andPreventing 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 ProjectNo. 2012-031-117-AI

On April to, 2013, 

## theTexas Commission on Environmental Quality (Commission) adoptedrevisions to the State Implementation Plan {SIP). The Commission adoptedamendments to§§ 117.2103, 117.2130, 117.2135, 

## and 117.2145 

## in 30 

## Texas Administrative Code Chapter 117, 

## Control ofAir Pollution from Nitrogen Compounds, Subchapter D, Combustion Control atMinor Sources in Ozone NonattainmentAreas, Division 2, 

## Dallas-FortWorth Eight-Hour Ozone Nonattainment Area Minor Sources; and corresponding revisions to the SIP. The adopted amendments will provide an exemption from the emission testing requirementsin Chapter 117 

## for engines that are used exclusively for producttesting andpersonnel training, operate inlimited service, and meet the applicable federal emissions standards in 40 

## Code ofFederal Regulations Part 89. Engines used in this type ofservice .-illbe requiredto install andoperate a non-resettable elapsed run time meter, maintainrecords ofdaily hours ofoperation, and maintain records demonstrating compliance with theapplicable federal emissions standards. The rulemaking is a follow-up to a petition for rulemaking approvedby the Commission on May 30, 2012. 

## Enclosed are the proposed revisions tothe SIP, a publichearing certification, a complete record ofthe public hearings, andthe accompanying order. I lookforward to your expeditious approval ofthese SIP revisions. Sincerely,

# ~~~.~ Chairman BWS/al Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Ms. Kelly Kennedy, Office ofBudget, Planning and Policy, Office ofthe 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 ourcustomer 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 thatthe electronic file is a
true and correct copy ofdocuments for a revision to the Texas State Implementation Plan, adopted onApril10, 2013, pursuantto 40 Code ofFederal Regulations § 

## 51.104. I am the records administratorfor theAir Quality Division ofthe 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 TAC 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 ofAir 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 ofthe 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 ofthe House
Lieutenant Governor
Alamo Area Council of Governments Capital Area Planning Council City ofAustin, Mayor's Office City of Dallas, Department of Environmental Quality City of Dallas, Department ofAviation 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, 2012Robert Martinez Director. Environmental Law Divisi Texas Commission on Environmen I Quality Filed: November 6, 2012 

# • 

# • Notice ofPublic 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 ofAir 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 ofTexas Health and Safety Code, §382.0 17; Texas Government Code, Chapter 200I, Subchapter B; and 40 Code ofFederal Regulations (CFR) §51.102 ofthe 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 ofservice wouldbe requiredto install and operate a non-resettable elapsed run time meter, maintain records ofdaily hours ofoperation, 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 ofLegal 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://www5. 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 ofWater 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 ofthe ChiefClerk, Mail Code 105, P.O. Box 13087, ustin, Texas 78711-3087, WITHIN 30 DAYS OF THE DATE OF NE SPAPERPUBLICATION 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 ofmine.**~it** water and stormwater 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 ofthe intersection ofFarm-to-M ket Road 856 and Farm-to-Market Road 13, and 1.8 miles northwes ofthe Town ofConcord, 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-halfmile east ofState 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 asis via Outfall 00 1. The facility is

within the City ofHockley, Harris

CITY OF SEGUIN has applied fi r a major amendment to TPDES Permit No. WQ0010277003 to aut orize a relocation ofoutfall 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 ofthe intersection of State Highway 123 and U.S. Hi way 90A, and 3/4 mile north ofthe Guadalupe River in Guadalupe ounty, Texas 78155. CITY OF GEORGETOWN has pplied tor a renewal ofTPDES Permit No. WQ0010489006, whic authorizes the discharge oftreated 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 oftreated domestic astewater at a daily average flow not to exceed 100,000 gallons per d y via irrigation ofa 150 acres ofgolf 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 ofthe inter

## INADDITION November 16, 2012 37 TexReg 9165

### Bryan W. Shaw, Ph.D., 

### Chairman Carlos Rubinstein, 

### Commissioner Toby Baker, 

### Commissioner ZakCovar, 

### ExecutiveDirector



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas 

### byReducing andPreventing Pollution



## NOTICE OF PUBLIC HEARINGS ON PROPOSED REVISIONS TO 30TAC CHAPTER 117AND 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 ofAir Pollution from Nitrogen Compounds, §§117.2103, 117.2130, 117.2135, and 117.2145, and corresponding revisions to the state implementation plan (SIP) underthe requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and40 Code ofFederal Regulations (CFR) §51.102 ofthe United States Environmental ProtectionAgency (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 producttesting and personnel training, operate inlimited service, and meetthe applicable federal emissions standards in 40 CFR Part 89. Engines used in this type ofservice wouldberequiredto install and operate a non-resettable elapsed run time meter, maintain records ofdaily hours ofoperation, and maintain records demonstrating compliance with the applicable federal emissions standards. The proposed rulemaking is a follow-up to a petitionfor rulemaking approved bythe commission on May 30, 2012. The commission will hold publichearings on this proposal in FortWorth on December 13, 2012 at 2:00p.m. in the Dallas-FortWorth (DFW) Regional Office Public Meeting Room atthe 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, atthe commission's central office located at 12100 Park 35 Circle. The hearings are structured for the receipt oforal orwritten commentsby interestedpersons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will notbe permitted during the hearings; however, commission staffmembers will be available to discuss the proposal 30 minutes priorto the hearings.
Persons who have special communication or other accommodation needs who are planningto attendthe hearings shouldcontact SandyWong, Office ofLegal Services at (512) 239-1802. Requests shouldbe made as far in advance as possible. Written comments maybe submittedto Michael Parrish, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

# http:jjwwws.tceq.texas.govjrulesjecommentsj. File size restrictions may applyto commentsbeing submittedvia the 

# eComments system. All comments shouldreference 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 ourcustomerservice? tceq.texas.gov

## Igoto

## Icustomersurvey printedon recycled paper

## Copies ofthe proposed rulemaking can be obtainedfrom 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 ourcustomer service? tceq.texas.gov

## Igoto/customersurvey printed on recycled papertelemedicine 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 aTHSteps 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 ofthis title (relating to Reimbursement Rates}. This agency hereby certifies tha the proposal has been reviewed by legal counsel and found to bervvithin 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. Ifadopted, 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 ofthe 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 ofthe 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 ofa dynamometer, which is typically used by engine manufacturers for testing purposes. Preparing the engine for installation ofthe 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 ofthe 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 notsubject 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 stationaryto 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 ofexempt engines. Demonstrating Noninterference under Federal Clean Air Act, Section 11 0(1)



## 37 TexReg 9060 November 16,2012 Texas RegisterThe 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 ofthe 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 ofthe 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 ofemergency 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 ofthe 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 Registerformatting 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 ofthe 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 ofoperation 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 ofthe type ofemergency situation and the start and end times and date(s) ofthe 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 DFWarea. 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 incurthe costto rent ortransport 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 RegisterSmall 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 ofthe regulatory analysis requirements of Texas Government Code §2001.0225 and determined that the proposed rulemaking

### doe~ not meetthe definition ofa 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 ofthe 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; or4) 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 ofTexas 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), §7410, 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, §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,

### ~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 ofthis 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, §7410, and must develop programs and control measures to assure that their SIPs provide for implementation, attainment, maintenance, and enforcement ofthe 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 underTexas Government Code, §2001.0225(g)(3) because it does not adversely affect**i~ ~**  material way the economy, a sector of the economy, productivity, compet1t1on, orjobs, 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 underthe 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, §7410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature IS**presum~d** to**~nd~rstand** this federal scheme. Ifeach 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 con

## PROPOSED RULES November 16, 2012 37 TexReg 9063elusions 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 orappropriate to meetthe requirements ofthe 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 anotherpoint oflaw, Tax Code §112.108, Other Actions Prohibited, as recognized in, First State Bank ofDumas 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. WaterAuth. 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 underthis 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 producttesting 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 ofthe 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 underthe Submittal ofComments section ofthis 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 ofthe governmental action, in whole or in part ortemporarily or permanently, in a manner that restricts or limits the owner's right to the property thatwould otherwise exist in the absence ofthe 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 ofthe property as ifthe 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 producttesting 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 RegisterThe 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 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. Written comments on the consistency ofthis 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. Ifthe 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 receiptof 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 

### ofthe 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 ofa 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 ofthe 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 ofthe state's air; and THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan forthe control ofthe 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 

### ofsources to make and maintain records ofemissions 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), §§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 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 

### etseq. §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) ofthis 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; (3) engines used for purposes ofperformance 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 ofthis subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code ofFederal Reg· ulations (CFR) §60.15 (December 16, 1975), respectively, andthe term "relocated" means to newly install at an account, as defined in §101.1 ofthis 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 ofemergency; (7) engines used directly and exclusively by the owner or operator for agricultural operations necessary for the growing ofcrops or raising offowl 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 ofthis 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; [ 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 ofinstallation, modification, reconstruction, or relocation. For the purposes ofthis 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[~]** (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
(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 ofinstallation, modification, reconstruction, or relocation. For the purposes ofthis 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. §117.2130. Operating Requirements. (a) The owner or operator shall operate any unit subject to the emission specifications of§117.2110 ofthis title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) in compliance with those specifications. (b) All units subject to§ 117.2110 ofthis 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 ofthe engine between the hours of6:00 a.m. and noon, except: (1) for specific manufacturer's recommended testing requiring a run ofover 18 consecutive hours; (2) to verify reliability of emergency equipment (e.g., emergency generators orpumps) 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 ofApril through October. §117.2135. Monitoring, Notification, and Testing Requirements. (a) Oxygen (0,) monitors. Ifthe 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 ofthe monitor. (b) Nitrogen oxides 

### (NO) monitors. Ifthe 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§ 117.8100(a) or (b) ofthis title. Ifa PEMS is used, the PEMS must predict the pollution emissions in the units of the applicable emission limitations ofthis division. (c) Monitor installation schedule. Installation of monitors must be performed in accordance with the schedule specified in §117.9210 ofthistitle (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 ofthis 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 ofthe ammoniamonitoring procedures specified in §117.8130 ofthis title (relating to AmmoniaMonitoring) must be used to demonstrate compliance withthe ammoniaemission specification of §117.211O(h)(2) ofthis 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 ofthe 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 subsectiononnatural gas-fired reciprocating engines. Ifthe owner or operator elects to use ASTM D6522-00 for the testing requirements, the report must contain the information specified in §117.8010 ofthis title (relating to Compliance Stack Test Reports). (4) Test results must be reported in the units ofthe applicable emission specifications and averaging periods. Ifcompliance test

## 37 TexReg 9066 November 16, 2012 Texas Registering is based on 40 Code ofFederal Regulations Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 ofthis title. (5) Forunits equippedwith CEMS orPEMS, the CEMS or PEMS must be installed and operational before testing under this subsection. Verification ofoperational status must, at a minimum, include completion ofthe initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration ofthe device. (6) Initial compliance with the emission specifications of §117.2110 ofthis title for units operating with CEMS orPEMS mustbe 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) ofthis 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 ofthe owner or operator after any modification that could reasonably be expected to decrease the NO, emission rate, including, but not limited to, installation ofpost-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 ofthe testing. (10) The owneroroperatorofan affectedunitinthe DallasFort Worth eight-hour ozone nonattainment area must submit written notification ofany CEMS orPEMS relative accuracy test audit (RATA) or testing required under this section to the appropriate regional office and any local air pollution control agency havingjurisdiction at least 15 days in advance ofthe date ofRATA or testing. (e) Run time meters. The owner or operator ofany stationary diesel engine claimed exempt using the exemption of §117.2103(5), (8), [&] (9)L2!:1!Q2 ofthis title (relating to Exemptions) shall record the operating time with a non-resettable elapsed run time meter. §117.2145. Recordkeeping andReportingRequirements. (a) Recordkeeping. The owner or operator ofa unit subject to §117.2110 ofthis 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 ofat least five years and must be made available upon request by authorized representatives ofthe executive director, the United States Environmental Protection Agency, or local air pollution control agencies havingjurisdiction. 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 ofthis title, records of: (A) emissions measurements required by §117.2130(b)(3) ofthis title (relating to Operating Requirements); and (B) catalytic converter, air-fuel ratio controller, orother emissions-related control system maintenance, including the date and nature ofcorrective actions taken; (3) records ofcarbon monoxide (CO) measurements specified in §117.2130(b)(3) ofthis title; (4) records ofthe results ofinitial certificationtesting, evaluations, calibrations, checks, adjustments, and maintenance ofCEMS, PEMS, or steam-to-fuel orwater-to-fuel ratio monitoring systems; and (5) records ofthe results ofperformance testing, including the testing conducted in accordance with §117.2135(d) ofthis 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 §117.2103(5), fSf, & 

### f91**~this** title & §117.2130(b)(3)**~this~** Inatlditien,f&eooh eagffie elaimed eJrefllptflf!6er §117.2103(5)**~this** title, Wfitten rewffis fffiiSt be fll:!ti.Rtaifletl**~the ~** **~**eagffie operation arul, tfoperation wa5 f& an emergeacy situation, identificatioa**~the** type**~emergency** 

### s-ituatien andthest&tand end timesand 

### datefs1**~the** emergeacy situation.] The following records mustbe maintainedfor at leastfive years andmustbe made available upon request to representatives ofthe executive director, the United States Environmental Protection Agency, or any local air pollution control agency havingjurisdiction. (1) Written records ofthe number ofhours ofoperation for each day's operation must be maintained for each engine claimed exempt under §117.2103(5), (8), (9), or (10) ofthis title (relating to Exemptions) or §117.2130(b)(3) ofthis title. (2) Foreachengine claimed exemptunder 

### §117.2103(5) of this title, written records must be maintained ofthe purpose ofengine operation and, ifoperation was for an emergency situation, identification ofthe type ofemergency situation and the start and end times and date(s) ofthe 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 §117.2103(1 O)(C) ofthis 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 ofthe executive director, the United States Environmental Protection Agency, or local air pollution control agencies havingjurisdiction: (1) date(s) ofoperation; (2) start and end times ofoperation; (3) identification ofthe engine; and



## PROPOSED RULES November 16, 2012 37 TexReg 9067(4) total hours ofoperation for each month and for the most recent 12 consecutive months. This agency hereby certifies thatthe 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 thatsupport 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 ofthis 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. Heleman 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 ofthe 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 andPayments 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) ofthis subsection. Ape itted sellermay assign its right to refundto the purchaser, who may t n request a refund directly from the comptroller as provided by parag ph (4) ofthis 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 comptro1- 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. Ifthe refund claim relates to a return oftan ible personal property, a permitted seller is entitled to claim a credi or request a refund of sales tax equal to the amount ofsales tax refi ded to a purchaser when the purchaser receives a full or partial re d ofthe sales price ofa 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 ofthis title (relating to Resale Certificate; Sales orResale) and §3.287 ofthis 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 ofthe 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 offederal 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 doorfor 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, CenterpointTwo 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 100 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 of6 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. Ifthe 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 ofArlington AmirOmar Councilmember 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 10-12 ;:: 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 ofthe 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 ORALTESTIMONY



## NO ORALTESTIMONYWAS RECEIVED PERTAININGTOTHIS 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 FortWorth atthe 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 staffand 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 notformally openedfor 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 

## ShortTitle: Chapter 117 

## Stationary Diesel Engine Petition Location: Dallas-FortWorth Regional Office located at 2309 

## Gravel Drive Concerning: The proposed amendments of30

## TAC Chapter 117 

## to §§117.2103, 117.2130, 117.2135, 

## and 117.2145 Name Representing Presenting OralTestimony? (Please Print) I 

### (Circle One)

# v~~ 

# J/4u

# ,£.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 OFFICERREPORT



## I am the hearing officer assignedtoconductthepublichearing regardingthe Chapter 117 

## Stationary Diesel Petitionfor Rulemaking, (TCEQ Rule Project No. 2012-031-117-AI). 

## The proposed rulemaking wouldprovide an exemptionfrom the emissiontesting requirements in Chapter 117 

## for engines that are used exclusively for producttesting and personneltraining, operate inlimitedservice, andmeetthe applicable federal emissions standardsin 40 

## Code ofFederal Regulations Part 8g. Engines usedinthistype ofservice wouldbe requiredto install andoperate a non-resettable elapsednmtime meter, maintain records of dailyhours ofoperation, andmaintain records demonstrating compliancewith the applicable federal emissions standards. Theproposedrulemaldng

## is a followupto a petitionfor ndemaking approvedbythe commission onMay 30, 2012. 

## A public hearing was scheduledfor 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 staffand 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 hearingwas notformally openedfor commentand a transcriptwas notprepared.

Hearing Officer


# /2-/IJ ;./?_ 

## Date signed

## - 1 - 

# Texas CommissiononEnvironmental Quality Public Hearing Registration

Date: December 18, 2012 

### Time: 10:00

### AM 

## Rule ProjectNo.: 2012-031-117-AI ShortTitle: Chapter 117 StationaryDiesel Engine Petition Location: Building E, Conference Room 201S, atthe commission's central officelocatedat 12100 Park35 Circle Concerning: Proposedrevisions to 30TAC Chapter 117 andcorrespondingrevisions tothestateimplementationplan (SIP)

Name Representing Presenting OralTestimony? (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

· InterofficeMemorandum
To: Thru:

From: Commissioners Bridget C. Bohac, ChiefClerk Zak Covar, Executive Director ;,J,2teve Hagle,.P.E., DeputyDirector 

# IJf.-Office ofAir Date: March 22, 2013

Docl{etNo.: 2012-1388-RUL Subject: CommissionApproval for Rulemaking Adoption Chapter 117, Control ofAir Pollution from Nitrogen Compounds Chapter 117 StationaryDiesel Engine Petition Rule Project No. 2012-031-117-AI Backgroundandreason(s) forthe rulemaking: OnAprils, 2012, HalliburtonEnergy Services, Incorporated (Halliburton orpetitioner) submitted a petitionfor rulemaking requesting a partial exemption from the rules in 30 Texas Administrative Code (TAC) Chapter 117, Subchapter D, Division 2 thatlimit nitrogen oxides (NOx) emissions from minor sources inthe Dallas-FortWorth (DFW) 1997 eighthour ozone nonattainment area. The commission approvedthe petition for rulemaldng on May 30, 2012 andissued an order on June 1, 2012 directingtheexecutive directorto examine the issues in the petition andto initiate rulemaking. The unique service ofthe Halliburton Drawworks Engine makes ongoingtestingto demonstrate compliancewiththe Chapter 117 NOx emissionlimits impractical and comparativelymoreexpensive thanthe stationaryenginetesting envisioned at adoption of the rule in 2007. To complywiththe Chapter 117testingrequirements, Halliburton must arrange for theuse ofa dynamometer, which is typically usedbyengine manufacturers for testing purposes. Preparing the engine for installation ofthe dynamometer andreturning theengine to operational status subsequenttothe emissions testing presents significant safetyhazards associated withtheremoval ofthe drive train andtransmission, removal of thetorque converter, andtheplacement anduse ofnon-dedicatedhoisting equipment on therig floor. Performing a compliant emissionstest ofthe Drawworks Engine talzes three tofour days to complete whereas typical testing on stationaryengines only requires approximately a halfday. Additionally, engines usedto raise andlower down-hole equipment in actual oil and gas operationsinthe field, which the Drawworks Engine is designed to simulate, are typically not subjectto similar Chapter 117 testing requirements becausethose engines aretypically notinstalled at a locationlong enoughto triggerthe definition ofa stationaryinternal combustion engine in §117.10. The Drawworks Engine is subjectto Chapter 117, Subchapter D, Division 2 becausethe equipmenthasbeenmade stationaryto provide testing andtrainingfacilities for sources that are actuallynot subjecttotherule.

## Commissioners Page2 March 22, 2013
Re: Docket No. 2012-1388-RUL


# Scope ofthe rulemaking: A.) 

# Summaryofwhatthe rulemakingwill do: The adopted change expandsthelist ofexemptedsources in §117.2103 to include stationarydiesel engines that are used exclusivelyfor producttesting andpersonnel training, operate less than 1,000 hoursperyearon a rolling 12-monthbasis, andmeet applicable Tier emission standardsfor non-road engineslistedin 40 Code ofFederal Regulations (CFR) §89.112(a), Table 1 (October 23, 1998) in effect atthetime of installation, modification, reconstruction, or relocation. The adopted exemption is narrow in scope andconsistentwiththe similar existing exemptionsfor stationary diesel engines located atminor sources, such as stationary engines usedinresearch andtesting and stationaryengines usedfor purposes ofperformanceverification andtesting. The adopted change also revises the operating requirements of §117.2130, themonitoring requirements of §117.2135, andthe recordkeeping requirements of§117.2145 to reflect the newcategory ofexempt engines. Although notspecifically requestedinthe petitionfor nuemaking, the adoptedrules require records sufficientto demonstratethe engine meets the applicable emission standardlistedin 40 CFR §89.112(a), Table 1(October 23, 1998)to help ensure compliance withthe exemption criteria. Furthermore, the adopted rules will changethe petitioner's suggested operating restriction language from "rolling 12-month average" to "rolling 12-monthbasis" in adoptednew §117.2103(1o)(B) tomake clearthatcompliance is 

## based onthetotal annualhours ofoperation. Additionally, the existing rule language in §117.2130(c) prohibits a person from starting or operating any stationarydiesel or dual-fuel engine inthe DFW 1997 eight-hour ozone nonattainment areafor testing or maintenance betweenthe hours of6:oo a.m. and noon exceptunder specific conditions. The petitionerrequested clarification thatthis prohibition did not apply to producttesting. The adoptedrules amend §117.2130(c)(1)- (3) to distinguishbetweenproducttesting as usedinthenew exemption in §117.2103(10) and enginetesting as usedinthe existing rule language in §117.2130(c). The adoptedrevision clarifies thatthe prohibitionis specific to testing ormaintenance ofthe engineto avoid conflict with the newexemption in §117.2103(10) for stationaryenginesthat are used exclusively for producttesting andpersonnel training andmore accuratelyreflect the intent ofthe prohibition. The adopted amendmentsto Chapter 117 will be submittedtothe United States Environmental ProtectionAgency (EPA) as 

## a revision to the state implementation plan (SIP). 

## B.) 

# Scope required

# byfederal regulations orstate statutes: None. C.) 

# Additional staffrecommendationsthat arenotrequired

# byfederal ruleor state.statute: None.

## Commissioners Pages March 22, 2013 Re: Docket No. 2012-1388-RUL


## Statutoryauthority: Texas Government Code, §2001.021, establishestheprocedures bywhich an interested personmaypetition a state agency for the adoption ofa rule and 30 TAC §20.15 provides suchprocedures specific to the commission. The following provisions authorizethe commission to adopt rules necessaryto carry outits powers and duties: Texas Government Code, §2001.021, Petition for theAdoption ofRules, which authorizes aninterestedpersonto petition a stateagencyfor the adoption ofa rule; Texas Water Code (TWC), §5.102, General Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorizethe commission to adoptrules necessaryto carry outits powers and duties undertheTWC); Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), §382.017, Rules, which authorizes the commissionto adoptrules consistent withthepolicy andpurposes oftheTCAA; THSC, §382.002, Policy and Purpose, which establishes the commission's purposeto safeguardthe state's air resources, consistentwith theprotection ofpublichealth, general welfare, andphysical property; THSC, §382.011, General Powers and Duties, which authorizes the commissionto controlthe quality ofthe state's air; andTHSC, §382.012, StateAir Control Plan, which authorizesthe commission to prepare and develop a general, comprehensive planfor thecontrol ofthe state's air. Also, THSC, §382.016, Monitoring Requirements; Examination ofRecords, authorizesthe commission toprescribe requirements for owners or operators ofsourcesto make and maintain records ofemissions measurements; §382.021, Sampling Methods and Procedures, authorizes the commissionto prescribe the sampling methods and procedures; and §382.051 PermittingAuthorityofCommission; Rules, authorizes the commission to adopt rules as necessaryto complywith changes infederal law or regulations applicable to permitsunder Chapter 382. The n1le amendments are also adoptedtmder42 United States Code, §§7401, etseq., 

## which requires statesto submit SIP revisions that specifythe mannerin which theNational AmbientAir Quality Standards will be achieved andmaintainedwithin each air quality control region ofthe state. 

## Effectonthe: A.) 

## Regulated community: The adopted rulemakingwill affect owners or operators ofstationarydiesel engines located atminor sources ofNOx in the DFW 1997 eight-hourozone nonattainment area andused exclusively for producttesting andpersonnel training, operate inlimited service, andmeet applicable federal emission standardsfor non-road engines listed in 40 CFR Part 8g. Engines meeting these requirements will be exemptfrom the emission specifications for attainment demonstration andthe emissions testing requirements ofSubchapter D, Division 2 ofChapter 117. 

## However, owners or operators ofsuch engines will be requiredto install andoperate a non-resettable elapsedruntime meter, maintain writtenrecords of the number ofhours ofoperationfor each day's operation, andmaintain records of manufacturer's specifications ortest data sufficientto demonstrate compliance withthe corresponding emission standardfor non-road engines listed in40 CFR Part 8g.

## Commissioners Page4 March 22, 2013 

## Re: Docket No. 2012-1388-RUL


## B.) Public: The publicbenefit anticipatedfrom the adopted rules is continuedprotection ofthe environment andpublichealth and safety combinedwith efficient andfair administration ofNOx emission standards for the DFW 1997

## eight-hour ozone nonattainment area. 

## C.) Agencyprograms: The adopted rulemaking will notimpact agency programs. 

## Stakeholdermeetings: No stakeholder meetings occurred. 

## Public comment: The commission scheduledpublichearings onthe rulemaking in FortWorth on December 13, 2012 

## and inAustin onDecember 18, 2012. 

## However, the commission did notofficially open eitherhearingbecause noone registeredto provide comments. The public comment period closed on December 19, 2012. 

## Written comments were acceptedvia mail, fax, and throughthe eCornments system. The commission received commentsfrom the North Central Texas Council ofGovernments (NCTCOG) objectingto therulemaking. Significant public comments are summarized as follows.

• NCTCOG requestedthe commission require engines usedfor training purposesto be located outside ofall nonattainment areas or**requir~** 

## all eligible engines tobe 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 attainmentcounty oralternative location within the nonattainmentcounty through this rulemaking wouldbe equivalentto revoking an existing facility's authorization and force consideration of location for newNew Source Review (NSR) authorizations, which is contrary to the TCEQ's authority under the Texas CleanAirAct(TCAA). Additionally, the adopted exemption willnot result in additionalNOx emissions in the DFWarea. The exemption criteria require compliance with the federal standards in 40 

## CFR Part 89 

## from which theNOx emission limits for station.ary diesel engines in §117.2110 

## were derived. BasedonFebruary 2012 

## emissions test results, theDrawworks Engine at the Halliburton Carrollton Plantmeets Tier 3 emission standards for non-roadengines 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 requestedconfirmation onthe number andlocation ofengines affectedby the rulemaking andtheprojectedincrease in annual emissions. NCTCOG also asked ifthe commission consideredthe possibility andimpact ofadditional engines used for this purposeinthe DFW area. NCTCOG requestedthecommission provide documentation onthe analysis ofemission estimates andtheimpact ofthe additional emissions from the newly exemptedengine 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 meetsthe adoptednew exemption criteria and that is theHalliburton Drawworks Engine located in Carrollton, Texas. The commission does notexpecta significant number of engines to meetthe new exemption criteria. The new exemption in §117.2103(10) requires the engine to meetthe applicable Tier emission standards for non-roadengines listed in40 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 meetthe exemption criteria in §117.2103(10), theNOxemissions from such units arenotexpected to exceed theNOx emissions anticipated 

# if the samenew units were required to meetthe applicableNOxemission limits in §117.2110. The commission makes no changes in response to this comment.



## • NCTCOG asked whythe proposedmaximum annual operatinghours was 1,000 

## hours given thatthe existing exemptions in §117.2103(5), 

## (8), and (9) are limitedto 100

## hours per year. The existing exemptions in §117.2103(5), (8), and (9) are intended to apply to sources thatoperate in very limitedservice, such as emergency backup generator engines. The hours limitations in §117.2103(5), (8), and (9) are designed for engines thatare in emergency or limitedservice. Other existing rules, such as §117.2103(2) and (3), exemptengines used for specific purposes, such as those usedin research and testing and those used for the. purposesof performanceverification and testing. The HalliburtonDrawworks Engine is notan emergency backup engine or limited-use engine. Rather, the DrawworksEngine is aprimaryservice engine and is similar to the engines used for specificpurposes thatqualify for the exemptions in §117.2103(2) and (3). However, the existing exemptions in §117.2103 do notcover the full operating range of**Halliburton~** 

## DrawworksEngine due to the unique nature of its service. Instead of granting the full exemptionafforded to other engines thatoperatein specific service, the commission is adding an additional layer of stringency to the exemption by limiting the engine's hours ofoperation. The commissionmakesno changes in response to this comment.



## • NCTCOG requestedthecommissionjustifywhytheproposedrule provides an exemption from the operating requirements in §117.2130, 

## which prohibit affected engines from being startedbetweenthehours of6:oo a.m. andnoon. 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 commissionis amending §117.2130( c)(l)- (3) to distinguish betweenproducttesting asused in the adopted new exemption in §11J.2103(10) andengine 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 thatthe prohibition is specific to testing or maintenance of the engine to avoid conflict with the adoptednew exemption in §117.2103(1o]for stationary engines thatare used

## Commissioners Page6 March 22,2013 Re: Docket No. 2012-1388-RUL
exclusively forproducttesting andpersonnel training andmoreaccurately reflect the intentof theprohibition. The commission's intent for §117.2130(c) hasalways been that theprohibition applies to testing andmaintenance of the engine itself because these activities can typically be scheduled outside the 6:ooa.m. to noon time frame withoutsignificantly interfering with the daily operations of afacility. Section 117.2130(c) does apply to the Halliburton DrawworksEngine when Halliburton operates the engine aspartof the engine's routine testing and maintenance. However, §117.2130(c) does notapply whenHalliburton is operating the engine aspartof the facility's normaloperation of testing drilling equipment and trainingpersonnel. The commission makes no changes in response to this comment.

• NCTCOG askedifthere are recenttime-of-dayphotochemical model sensitivityruns thatindicate howearlymorning NOx andvolatile organic compounds emissions impact afternoon ozone formation. The commission didnotconductphotochemical modeling aspartof this rule revision. The DFW AttainmentDemonstration SIP Revision for the 1997Eight-Hour Ozone Standard adopted by the commission on December 7, 2011 (ProjectNumber2010-022-SIP-NR) contains the most recent photochemical modeling analysis for theDFWarea. Thephotochemicalmodeling for the 2011 DFW AttainmentDemonstrationSIPRevision usedemissions that were temporally allocated according to emission category butmodeling runs were notconducted 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 requestedtheTCEQ examinethebenefits andfeasibility ofrequiring independentthird-partyverification ofindustry-reported monitoring and compliance data. The commenter's requestis outside the scope of this rulemaking. The intentof this rulemaking is toprovide an exemption for stationary diesel engines thatare used exclusively forproduct testing andpersonnel training, operate less than 1,000 hoursperyear, andmeetapplicable emission standards in 40 CFR §89.112(a), Table 1 (October 23, 1998). The commission makes no changes in response to this comment.

• NCTCOG requestedtheTCEQ require training to include smartoperating practices such as no idling, proper engine maintenance, and other emission reducing strategies. The intentof this rulemaking is toprovidean exemption for stationary diesel engines thatare used exclusively forproduct testing andpersonnel training, operate less than 1,000 hoursperyear, andmeetapplicable emission standards in 40 CFR §89.112( a), Table 1 (October 23, 1998). The training suggestedby the commenter is notnecessary to ensure compliance with the adoptednew exemption criteria in §117.2103(10). Additionally, applying such training requirements generally under Chapter 117, SubchapterD, Division 2 is outside the scope of this rulemaking. The commissionmakes no changes in response to this comment.

## Commissioners Page7 March 22, 2013
Re: Docket No. 2012-1388-RUL

• NCTCOG requestedthecommission require Halliburtonto identify andimplement emission reduction offsets for increased emissions. 

## The new exemption will not increaseNOxemissions in theDFWarea, and test results indicate the NOx emissions from Halliburton's DrawworksEngine are below the applicable emission specification in §117.2110. 

## The commission makesno changes in 

## response to this comment. 

## Significant changesfromproposal: The commission clid notrevise therule from proposal. 

## Potential controversial concerns andlegislativeinterest: The Chapter 117 rules for minor sources inthe DFWarea are includedinthe SIP. The adopted amendmentsto Chapter 117 willbe submittedtothe EPA as a revision tothe SIP. The adopted exemption criteria require compliance with thefederal standards in 40 CFR Part 89 from whichtheNOx emission limits in §117.2110 were derived. Therefore, the adopted exemption will notresult in additional NOx emissions inthe DFW area and should notbe considered as backsliding undertheFederal CleanAirAct. However, therevisions arestill subjectto EPA review and approval as a SIP revision. 

## Doesthis rulemaking affect anycurrentpolicies orrequire development of newpolicies? No. 

## What arethe consequencesifthis rulemakingdoesnotgoforward?Arethere alternatives to rulemaking? The affected regulated entitywill havetoconduct an emissions performancetestin accordance with current Chapter 117 requirements for stationary sources. Testingwill be required everytwoyears orwithin 15,000hours ofengine operation after theprevious emissionstest. In order to run an emissions test, the owner oroperatorwill have to dismantlethetransmissionin orderto install andusethe dynamometer. Additionally, these activities will consumethree tofour days ofan owner's oroperator's time. 

## Keypoints inthe**adop~ion** 

## rulemakingschedule: TexasRegisterproposalpublication date: November 16, 2012 

## Anticipated TexasRegisterpublication date: April26, 2013 

## Anticipated effective date: May 2, 2013 

## Six-month TexasRegisterfiling deadline: May 16, 2013 

## Agencycontacts: Javier Galvan, Rule Project Manager, 239-1492, Air Quality Division Alexis Lorick, StaffAttorney, 239-0649 Michael Parrish, Texas Register Coordinator, 239-2548

## Commissioners PageS March 22, 2013
Re: Docket No. 2012-1388-RUL



## Attachments

cc: 

## ChiefClerk, 2 

## copies Executive Director's Office Susana

## M. Hildebrand, P.E. Anne Idsal Curtis Seaton TuckerRoyall Office ofGeneral 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 

# withoutchanges to the proposedtext as publishedinthe November 16, 2012 issue ofthe 

# Texas Register (37 TexReg 9060) andthe text will notbe republished.

The adopted amendments will be submittedtothe United States Environmental ProtectionAgency (EPA) as a revision to the stateimplementation plan (SIP).



# Backgroundand Summaryofthe Factual Basisfor theAdopted Rules OnAprils, 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 thatlimit nitrogen oxides (NOx) emissions from minor

sources inthe Dallas-FortWorth (DFW) 1997 eight-hour ozone nonattainment area (DFW area). The commission approvedthe petition for rulemaking on May 30, 2012 andissued an order on June 1, 2012 directing the executive director to examine the issues in the petition andto 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 NOx emission limits impractical and comparatively more expensive than the stationary engine testing envisioned during the adoption ofthe 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) andfor the rental, transport, and use ofa dynamometer, which is typically usedbyengine manufacturers for testing purposes. Preparingthe engine for installation ofthe dynamometer andreturning the engine to operational

status subsequenttothe emissions testing presents significant safety hazards associated with the removal ofthe drive train andtransmission, removal ofthe torque converter, andthe placement anduse ofnon-dedicated hoisting equipment onthe rig floor. Performing a compliant emissions test ofthe Drawworks Engine takes three to four days

to complete, whereas compliant emissions testing on a typical stationaryengine only requires approximatelyhalfa day. Additionally, engines usedto raise andlower downhole equipment in actual oil and gas operations in the field, which the Drawworks Engine is designedto simulate, are typically not subjectto similar Chapter 117 testing requirements because they are notinstalled at a location long enough to triggerthe definition ofa stationaryinternal combustion engine in §117.10. The Drawworks Engine is subjectto Chapter 117, Subchapter D, Division 2 because the equipmenthas been made stationaryto provide testing andtraining facilities for sources that are not subject

to the rule.

The adopted change will expandthe list ofexempted sources in §117.2103 to include stationarydiesel engines that are used exclusively for producttesting andpersonnel training, operate less than 1,000 hours peryear on a rolling 12-monthbasis, and meet applicable Tier emission standardsfor non-road engines listedin 40 Code ofFederal Regulations (CFR) §89.112(a), Table 1(October 23, 1998) in effect atthe time of installation, modification, reconstruction, or relocation. The adopted exemption is

narrowin scope and consistent with the similar existing exemptions for stationary diesel

2

# engines located at minor sources, such as stationary engines usedin research and testing and stationary engines usedfor purposes ofperformance verification andtesting. The adopted change will also revise the operating requirements of §117.2130, 

# the monitoring requirements of §117.2135, 

# andthe recordkeeping requirements of §117.2145


# to reflect the new category ofexempt engines.

DemonstratingNoninterference underFederal CleanAirAct, Section 110(1) 

# The commission provides the following informationto demonstrate why the adopted

new exemption in §117.2103 

# will not negatively impactthe status ofthe state's progress towards attainmentwiththe 1997

# eight-hour ozone National AmbientAir Quality Standard (NAAQS), will not interfere with control measures, andwill notprevent reasonable further progress toward attainment ofthe ozone NAAQS.

On December 6, 2000, 

# as partofthe Houston-Galveston-Brazoria (HGB) attainment demonstration SIP revision, the commission adopted a new control strategyfor stationaryreciprocating internal combustion engines, boilers, andprocess heaters located at minor industrial, commercial, andinstitutional sources ofNOxin the HGB

area. The adopted rulemaking exempted engines used for specific purposes, such as those used in research andtesting andthose usedfor the purposes ofperformance verification andtesting.

On May 23, 2007, 

# as part ofthe 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 ofNOx inthe DFW area. The NOx emission reductions were necessaryfor the DFW areato attainthe 1997 eight-hour ozone NAAQS. Similar to the HGB rulemaking, the DFW rulemaking also adopted exemptions for engines usedfor specific purposes, such as those usedin research andtesting andthose usedfor the
purposes ofperformance verification andtesting.

The adopted partial exemption is narrowlytailored andwill not adversely impactthe
DFW area's progress in attainingthe 1997 eight-hour ozone NAAQS. During the 2000 and 2007rulemakings, no stationaryengines similar in function to the Halliburton Drawworks Engine were identified inthe emissions inventory in the counties impacted bythe rulemakings, and no such engines were reliedupon for creditable reductions for the SIP revision. Therefore, the adopted rulemaking will notresult in a loss ofany SIP creditable reductions for the DFW 1997 eight-hour ozone nonattainment area. Additionally, based on February 2012 emissions test results and a limit ofno morethan 1,000 hours ofrun time peryear, the Drawworks Engine has maximum potential annual NOx emissions of0.87tons peryear and is well belowthe emission standards establishedin the Chapter 117 minor source NOx rules. The adopted exemption criteria require compliance with thefederal standards in40 CFR Part 89 to ensure thatthe adopted exemption will notresult inbacksliding. Based onthe test results, the Drawworks Engine atthe 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 meetthe 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 theTier standards in40 CFR Part 89. Therefore, the adopted exemption will not result in additional NOx emissions inthe DFW area.

Based onthese factors, the commission has determinedthatthe adopted rule change will not negatively impactthe status ofthe state's attainment demonstration for the 1997 eight-hour ozone NAAQS, will not interfere with control measures, andwill notprevent reasonable further progress toward attainment ofthe ozone NAAQS.



# Section

# by Section Discussion 

# Section 117.2103, 

# Exemptions The commission adopts §117.2103(10) to exempt stationarydiesel engines that are used exclusively for producttesting andpersonnel training, operate less than 1,000 hours per year on a rolling 12-monthbasis, and meet applicable Tier emission standards for nonroad engines listed in 40 CFR §89.112(a), Table 1(October 23, 1998) in effect atthetime ofinstallation, modification, reconstruction, orrelocation. The adopted exemption only applies to an engine that is in dedicated service for product testing andpersonnel training and does not applyto an engine usedfor any additional purpose. The adopted amendmentwill exempt engines inthis unique service from ongoing testing to demonstrate compliance with the Chapter 117 NOx emission limitsbecause 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 thatthe adopted exemption will not result in additional NOx emissions in the DFW areabecause 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-monthbasis" in adopted §117.2103(1o)(B) to make clear that compliance is based on the total annual hours ofoperation.



# Section 117.2130, 

# Operating Requirements The commission amends §117.2130(c)(1)- (3) to distinguishbetween producttesting as used inthe 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 ormaintenance betweenthehours of6:oo a.m. and noon, except under specific conditions. The adoptedrevision clarifies thattheprohibition is specific to testing or maintenance ofthe engine to avoid potential conflict with the adopted exemption in §117.2103(10) for stationaryengines that are used exclusively for product testing and personnel training and more accurately reflect the intent oftheprohibition.



# 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 monitorthe operating time with a non-resettable elapsed run time meter in orderto 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.

6

# Section 117.2145, 

# Recordkeeping andReporting Requirements The commission amends §117.2145(b) byreformattingthe existing provision and adding

newrecordkeeping requirements associated with the adopted exemption in §117.2103(10). The commission is reformattingthe existing requirements in §117.2145(b) to accommodate the newrecordkeeping requirements associated with the adopted exemption in §117.2103(10). The adopted amendment does not alterthe intent ofthe existing recordkeeping requirements for sources currently complying with §117.2145(b) orimpose any newrequirements on engines claimed exempt under §117.2103(5), (8), or (g) or §117.2130(b)(3).

The adopted changes to §117.2145(b) reformatthe record retention requirement in existing §117.2145(b) to require the records specified in paragraphs (1)- (3) tobe maintainedfor atleast five years and mustbe made available upon request to representatives ofthe executive director, the EPA, or anylocal air pollution control
agencyhavingjurisdiction.

Adopted §117.2145(b)(1) requires written records ofthe number ofhours ofoperation for each day's operationtobe maintainedfor 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 exemptunder §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 ofthe number of hours ofoperation for each day's operationin orderto 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 ofeach engine claimed exemptunder §117.2103(5) to maintain written records ofthe purpose ofengine operation and, ifoperation was for an emergency situation, identification ofthe type ofemergency situation andthe start and endtimes and date(s) ofthe emergency situation.

Adopted §117.2145(b)(3) requires the owner oroperator ofeach engine claimed exempt under §117.2103(10) to maintain records ofmanufacturer's specifications ortest data sufficient to demonstrate compliance with the corresponding emission standardfor 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 approvedbythe commission on May 30, 2012 did not include a specific request for this recordkeeping requirement. However, the commission is adopting this recordkeeping requirement to clearlyindicate the records required to demonstrate compliance with the adopted exemption criteria in §117.2103(10) andfacilitate enforcement ofthe 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 thatthe engine meetsthe exemption criteria.

Final Regulatory Impact Determination 

## The commission reviewedthe adopted rulemaking in light ofthe regulatory analysis requirements ofTexas Government Code, §2001.0225 and determinedthatthe adopted


# 8

## rulemaking does not meetthe definition ofa major environmental rule. Texas Government Code, §2001.0225 

## states that a major environmental rule is a rule for which the specific intentis to protectthe environment orreduce risks to humanhealth from environmental exposure andthat may adversely affect in a material way the
economy, a sector ofthe economy, productivity, competition,jobs, the environment, or the publichealth and safety ofthe state or a sector ofthe state. Furthermore, while the adopted rulemaking does not constitute a major environmental rule, even ifit did, a regulatory impact analysis would notbe requiredbecause the adopted rulemaking does

not meet any ofthe four applicability criteriafor requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 

## applies onlyto a major environmental rule that: 1) 

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

## exceeds an express requirement ofstatelaw, unless the rule is specifically requiredby federal law; 3) exceeds a requirement ofa delegation agreement or contractbetween the state and an agency orrepresentative of the federal governmentto implement a state andfederal program; or4) adopts a rule solely under the general powers ofthe agency instead ofunder a specific state law. Specifically, it does not meet any ofthe four applicability criterialisted in Texas Government Code, §2001.0225

## because: 1) 

## the adopted rulemaking is part ofthe SIP, and as such is designedto meet, not exceed the relevant standard setby federal law; 2) 

## parts ofthe adopted rulemaking are directly requiredby state law; 3) no contract or delegation agreement covers the topic thatis the subject ofthis adopted rulemaking; and 4) the adopted rulemaking is authorizedby specific sections ofTexas Health and Safety Code (THSC), Chapter 382 

## (also known as theTexas Clean Air Act), andthe
Texas Water Code, which are citedinthe StatutoryAuthority section ofthis preamble.
9

## The adopted rulemaking implements requirements ofthe Federal Clean Air Act (FCAA). Under 42 

## United States Code (USC), §7410, 

## each state is requiredto 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 orderto 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 ofemissions rights), as well as schedules andtimetables for compliance as may be necessary or appropriateto meetthe applicable requirements ofthis chapter, (meaning 42 

## USC, Chapter 85, Air Pollution Prevention and Control, otherwise known

as the FCAA). The provisions ofthe FCAA recognize that states are inthebestposition

to determine what programs and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affected industry, andthe publicto collaborate

onthebest 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 of42 

## USC, §7410. 

## States are notfree to ignore the requirements of42 

## USC, §7410, 

## and must develop programs and control measures to assure thattheir SIPs provide for implementation, attainment, maintenance, and enforcement ofthe 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 ofexempted

sources operating inlimited services in §117.2103 

## to include stationarydiesel engines that are used exclusively for producttesting andpersonneltraining, and meet applicable
10

## Tier emission standards for non-road engines listedinthe applicable CFR.

While the adopted rulemaking protects the environment orreduces 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 ofthe economy, productivity, competition, orjobs,

norwouldthe rulemaking adversely affect in a material way the environment, orthe public health and safety ofthe state or a sector ofthe state. The rulemaking as a result is

not subject to a regulatory impact analysis underTexas Government Code, §2001.0225 because itis not a major environmental rule.

The requirementtoprovide a fiscal analysis ofregulations in the Texas Government Code was amendedby Senate Bill (SB) 633, 75th Legislature, 1997. The intent ofSB 633

was to require agencies to conduct a regulatory impact analysis ofextraordinaryrules. These are identifiedinthe statutorylanguage as major environmental rules thatwill have a material adverse impact andwill exceed a requirement ofstatelaw, federal law,

or a delegated federal program; or are adopted solely underthe general powers ofthe TCEQ. With the understanding thatthis requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: based on an
assessment ofrules adoptedby the agency in the past, it is not anticipatedthatthebill will have significant fiscal implications for the agency due to its limited application. The commission also notedthatthe number ofrules thatwould require assessmentunder theprovisions ofthebill was notlarge. This conclusion was based, inpart, on the criteria setforth in thebill 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 orderto
meet the NAAQS; thus, states must develop programs for each nonattainment area to help ensure thatthose areas will meetthe attainment deadlines. Because ofthe ongoing needto address nonattainmentissues andto meetthe requirements of42 USC, §7410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature is presumedto understandthis federal scheme. If

## each rule proposedfor inclusion inthe SIP was consideredto be a major environmental rule that exceeds federal law, then every revision to the SIP would require the full regulatory impact analysis contemplatedby SB 633. This conclusion is inconsistentwith the conclusions reachedbythe commission in its cost estimate andbythe Legislative Budget Board (LBB) inits fiscal notes. Since thelegislature is presumedto understandthefiscal impacts ofthebills itpasses andthatpresumption is based on information providedby

state agencies andthe LBB, the commissionbelieves thatthe intent ofSB 633 was only

to require the full regulatory impact analysis for rules that are extraordinary in nature. While the rules have a broadimpact, that impact is no greaterthan is necessary or appropriateto meet the requirements ofthe FCAA. Forthese reasons, rules adoptedfor inclusion inthe SIP fall underthe exception inTexas Government Code, §2001.0225(a), because theyare requiredbyfederal law.

The commission has consistently applied this construction to its rules since this statute

was enactedin 1997. Since thattime, the legislature has revisedthe Texas Government Code butleft this provision substantiallyunamended. It

## is presumedthat, when an 12

## agency interpretationis in effect atthe timethe legislature amends the laws without making substantial change inthe statute, the legislature is deemedto have acceptedthe agency's interpretation 

# (Central Power & 

# Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), 

# writdenied withpercuriam 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 anotherpointof law, Tax Code §112.108, OtherActions Prohibited, 

# as recognized in, FirstStateBank of Dumas v. Sharp, 863 S.W.2d 81,83 (Tex. App. Austin 1993, 

# no writ); CfHumble Oil & 

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

# Dudney v. State FarmMut.AutoIns. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); 

# Southwestern LifeIns. Co. v. Montemayor,
24 S.W.3d 581 (Tex. App. Austin 2000,

# pet. denied); and 

# CoastalIndust. WaterAuth. v. Trinity Portland CementDiv., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation ofthe regulatory impact analysis requirements is also supportedbya change made to the Texas Administrative ProcedureAct (APA) bythe legislature in 1999. In an attemptto limit the number ofrule challenges baseduponAPA requirements, the legislature clarified that state agencies are required to meetthese sections oftheAPA against the standard ofsubstantial compliance as required inTexas 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 ofTexas Government Code, §2001.0225.

Even ifthe adoptedrulemaking 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 ofthe commission's SIP for making progress towardthe attainment and maintenance ofthe NAAQS. Therefore, the adopted rulemaking does

not exceed a standard setbyfederal law orexceed an express requirement ofstatelaw, since they are part ofan overall regulatory scheme designed to meet, not exceedthe relevant standardsetbyfederal law (NAAQS). The commission is chargedwith protecting air quality within the state andto design and submit a plan to achieve attainment and maintenance ofthefederally mandated NAAQS. The Third District Court ofAppeals upheldthis interpretation in

# Brazoria County v. Texas Comm 'n on Envtl. Quality, 128 S.W. 3d728 (Tex. App. -Austin 2004, 

# no writ). The specific intent ofthe adopted rulemaking is to implement changes within the Chapter 117, Subchapter D, Division 2 rules expanding the list ofexempted sources listed in §117.2103 to include stationarydiesel engines used exclusively for producttesting andpersonnel training and

meet applicable Tier emission standards for non-road engines listedinthe applicable CFR. This adoption, therefore, does not exceed an express requirement offederal law. The amendments are neededto implement state lawbut do exceed those new requirements. Finally, this rulemaking was not developed solelyunderthe general
powers ofthe agency butis authorizedby specific sections ofTHSC, Chapter 382, which

are citedinthe StatutoryAuthority section ofthis preamble, including THSC, §382.012 and §382.019. Because this adopted rulemaking does not meet any ofthefour 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 commentperiod andreceived no comments.
14

## Takings ImpactAssessment 

# The commission evaluatedthe adopted rulemaking andperformed an analysis of whetherthe adopted rulemaking constitutes a taking underTexas 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 orinpart or temporarily or permanently, in a mannerthatrequires the governmental entityto compensatethe private real property owner as providedbythe Fifth and FourteenthAmendments 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 propertythatis the subject ofthe governmental action, in whole orin partortemporarily orpermanently, in a

mannerthatrestricts or limits the owner's right tothe propertythatwould otherwise exist in the absence ofthe governmental action; and (ii) 

# is the producing cause ofa reduction ofatleast 25 

# percent in the market value ofthe affected private real property, determinedby comparing the market value ofthe property as ifthe governmental action is not in effect andthe market value ofthe propertydetermined as ifthe governmental action is in effect."

Promulgation and enforcement ofthe rulemaking would be neither a statutory nor a constitutional taking ofprivate real property. The primarypurpose ofthe rulemaking is

an update to Chapter 117, 

# Subchapter D, Division 2 

# expanding thelist ofexempted
15

## sources listed in §117.2103 

## to include stationarydiesel engines used exclusively for producttesting andpersonnel training and meet applicable Tier emission standards for
non-road engines. This rulemaking is notburdensome, restrictive, orlimiting ofrights

to private real propertybecause the rulemaking regulates the use ofstationaryengines
in limited circumstances. Furthermore, the rulemakingbenefits the publicbyproviding
oil andgas field operators an opportunityfor safe simulation without incurringthe significant safetyhazards typically associated with the currenttesting requirements of stationary engines.

The rulemaking does not affect a landowner's rights inprivate real propertybecause this rulemaking does notburden, restrict, orlimit the owner's right to property, nor does it
reduce thevalue ofany private real propertyby 25% 

## ormore beyondthatwhich would otherwise exist in the absence ofthe regulations. Therefore, this rulemaking does not constitute a taking underTexas Government Code, Chapter 2007.



## Consistencywith the CoastalManagement Program
The commission reviewed the adoptedrulemaking andfound the adoption is a**rulema~ing** 

## identified in the Coastal CoordinationAct Implementation Rules, 31 

## TAC §sos.n(b)(2) 

## relating to rules subjectto the Coastal Management Program (CMP), and will, therefore, require that goals andpolicies ofthe CMP be considered duringthe rulemaking process. The commission reviewedthis rulemaking for consistencywith the CMP goals and policies in accordance withthe regulations ofthe Coastal CoordinationAdvisory
Committee and determinedthat the rulemaking will not affect any coastal natural
16

## resource areas because the rules only affect counties outside the CMP area andis, therefore, consistentwith CMP goals andpolicies.

The commission invitedpublic comment regarding the consistency withthe CMP during the public commentperiod. The commission received no comments onthe CMP.

Effect on Sites Subjectto the Federal Operating Permits Program 

## Chapter 117

## is an applicable requirement under 30 

## TAC Chapter 122, 

## Federal Operating Permits Program. Owners or operators subjectto the federal operating permitprogram must, consistentwiththe revision process in Chapter 122,

## upon the effective date ofthe rulemaking, revise their operating permitto include the new Chapter 117

## requirements.

Public Comment 

## The commission scheduled a publichearing onthe rulemaking in FortWorth on December 13, 2012 

## and a secondhearing inAustin on December 18, 2012. 

## The commission didnot open either hearing as no interested individuals registeredto provide comments. The public commentperiod closed on December 19, 2012. 

## The commission received one commentfrom the North Central Texas Council of Governments (NCTCOG) opposing theproposed rule revisions.

Response to Comments 

## Comment NCTCOG commentedthatthis and similartraining sites shouldbe located outside ofall nonattainment areas inthe statebecause approving an exemption could contribute to
17

## the exceedance offederal ozone standards in the DFW area. Alternatively, NCTCOG requestedthat ifthe commission approves the exemption, it require that all eligible enginesbelocated awayfrom air quality monitors and sensitive groups.



# Response The commission makes no changesto the adoptedrules inresponsetothis
comment. The intent ofthis rulemakingis toprovide an exemptionfor stationarydiesel engines that are used exclusivelyfor producttesting and personneltraining, operatelessthan 1,000hoursperyear, and meet applicable emission standards in40 CFR §89.112(a), Table 1 (October 23, 1998).The commenter's suggested changeis outsidethe scope ofthis rulemaking. Requiringfacilities subjectto the exemptionto relocateto an attainment countyor alternativelocationwithinthe nonattainment county through this rulemakingwouldbe equivalentto revoking an existing facility's authorization andforce consideration oflocationfor newNew Source Review authorizations, whichis contrarytotheTCEQ's authority underthe Texas CleanAirAct.Additionally, the adopted exemptionwill not resultin additional NOx emissions in the DFW area. The exemption criteria require compliancewith the federal standards in 40 CFRPart 89from whichthe NOx emission limits for stationarydiesel enginesin §117.2110

were derived. Basedon February2012 emissionstestresults, the Drawworks Engine atthe Halliburton Carrollton Plant meets Tier 3 emission standardsfor non-road engines listedin40 CFR §89.112(a), Table
1 (October 23, 1998) andiswellbelowthe applicable emission standards in
18

## §117.2110.



## Comment NCTCOG requested confirmationthatthe engine referenced in Halliburton's petition for rulemaking is located in Carrollton, Texas. NCTCOG requestedthe commission confirm thattheproposed rulemaking only exempts one engine or alternatively confirm the number ofaffected engines andthe projected increase in annual emissions. NCTCOG also requestedthe commission provide documentation onthe analysis ofemission estimates andthe impact ofthe additional emissions from the newly exempted engine

on air quality monitors and sensitive populations. NCTCOG asked iftheproposed exemption allows additional training sites to be located inthe DFW area. NCTCOG also askedifthe commission consideredthe possibility andimpact ofadditional engines usedfor this purpose in the DFW area.



# Response The commissionis currentlyaware ofonlyone engine that meets the newly adopted exemption criteria, andthatis the Halliburton Drawworks Engine locatedin Carrollton, Texas. However, other engines that meetthe adopted exemption criteriain §117.2103(10) 

# could also qualifyfor exemption. As 

# discussed inthe Background and Summaryofthe Factual Basisfor the Adopted Rules, and Response to Comments sections ofthis preamble, the adopted exemptionwill notincrease annual NOx emissions inthe DFW

area. The exemptionin §117.2103(10) 

# requiresthe engineto meetthe applicableTier emission standardsfor non-road engines listedin40 

# CFR
19

# §89.112(a), Table 1 (October 23, 1998).The NOx emissionlimits for stationarydiesel enginesin §117.2110 were derivedfrom the sameTier standardsin40 CFR §89.112(a). Therefore, even ifadditional units do meet the exemption criteriain §117.2103(10), the NOx emissionsfrom suchunits

are not expectedto exceedthe NOx emissions anticipatedifthe samenew units were requiredto meetthe applicable NOx emissionlimitsin §117.2110. The commission makes no changes in responseto this comment.

Comment NCTCOG askedwhy the proposed maximum annual operating hours were 1,000

## hours given thatthe existing exemptions in §117.2103(5), 

## (8), and (9) are limitedto 100 

## hours
peryear.



# Response The existingexemptionsin §117.2103(5), (8), and (9) are intendedto apply
to sources thatoperateinverylimited service, such as emergencybackup generator engines. Thehours limitations in §117.2103(5), (8), and (9) are designedfor enginesthat are in emergencyorlimited service. Other existingrules, such as §117.2103(2) and (3), exempt engines usedfor specificpurposes, such asthoseused inresearch andtesting andthoseused for thepurposes ofperformanceverification andtesting. The Halliburton Drawworks Engine is not an emergencybackup engine orlimited-use engine. Rather, the Drawworks Engine is a primaryservice engine andis similartothe engines usedfor specificpurposesthat qualifyfor the

20

# exemptionsin §117.2103(2) and (3). However, the existing exemptions in §117.2103 do not coverthefull operatingrange ofHalliburton's Drawworks Engine dueto the unique nature ofits service. Instead ofgrantingthefull exemption affordedto other engines that operatein specific service, the commissionis adding an additionallayer ofstringencyto the exemptionby limitingthe engine'shours ofoperation. The commission makes no changes inresponsetothis comment.

Comment NCTCOG requested the commissionjustifywhy the proposed rule provides an exemption from the operating requirements in §117.2130, 

# which prohibit affected engines from being startedbetween the hours of6:ooa.m. and noon.

Response The operatingrequirementin §117.2130(c) prohibitsthe operation ofany stationarydiesel or dual-fuel engine for testing ormaintenancebetweenthe hours of6:oo a.m. andnoon except underlimitedcircumstances. The commissionis amending §117.2130(c)(1)- (3) to distinguishbetween producttesting as used inthe adoptedexemptionin §117.2103(10) and enginetesting as usedinthe existingrulelanguage in §117.2130(c). The commissionis notproviding an exemptionfrom the operatingrequirement in §117.2130(c). The adoptedrevision clarifies thattheprohibitionis specificto testing ormaintenance ofthe engineto avoidconflictwiththe adoptedexemptionin §117.2103(10) for stationaryengines that are used

21

# exclusivelyfor producttesting andpersonneltraining and more accurately reflectthe intent oftheprohibition. The commission'sintentfor §117.2130(c) has alwaysbeenthattheprohibition appliesto testing and maintenance ofthe engineitself. These activities cantypicallybe scheduled outsidethe 6:oo a.m. to noontime-framewithout significantlyinterfering withthe daily operations ofa facility. Section 117.2130(c) does applytothe Halliburton Drawworks Enginewhen Halliburton operatesthe engine as part ofthe engine's routinetesting and maintenance. However, §117.2130(c) does not applywhen Halliburtonis operatingthe engine aspart ofthe facility's normal operation oftesting drillingequipment andtraining personnel. The commission makes no changesinresponse to this comment.

Comment NCTCOG asked ifthere are recent time-of-day photochemical model sensitivity runs thatindicate how early morning NOx andvolatile organic compound emissions impact afternoon ozone formation.



# Response The commission did not conductphotochemicalmodelingin support ofthis rule revision. The DFW attainment demonstration SIPrevisionfor the 1997 eight-hour ozone standard adoptedbythe commission on December 7, 2011 (Project Number 2010-022-SIP-NR) containsthe mostrecent photochemical modeling analysisfor the DFWarea. The photochemical modelingfor the 2011 DFWattainment demonstration SIPrevisionused

22

# emissionsthatweretemporally allocated accordingto emission category butmodelingruns were not conductedto determine the sensitivityofthe modelto changesin emissionsbytime ofday. The commission makes no changesinresponseto this comment.

Comment NCTCOG requestedthe TCEQ examine thebenefits andfeasibility ofrequiring independentthird-partyverification ofindustry-reported monitoring and compliance data.



# Response The commenter's requestis outside the scope ofthis rulemaking. Theintent ofthis rulemakingis toprovide an exemptionfor stationarydiesel engines that areused exclusivelyfor producttesting andpersonneltraining, operatelessthan 1,000hoursperyear, andmeet applicable emission standardsin 40 CFR §89.112(a),Table 1 (October 23, 1998).The commission makes no changes inresponse tothis comment.

Comment NCTCOG requestedtheTCEQ require trainingto include smart operating practices such

as no idling, proper engine maintenance, and other emission reducing strategies.



# Response The intent ofthis rulemakingistoprovide an exemptionfor stationary


# 23

# diesel enginesthat are used exclusivelyfor producttesting andpersonnel training, operateless than 1,000hours peryear, andmeet applicable emission standards in 40 CFR §89.112(a), Table 1 (October 23, 1998).The training suggestedbythe commenteris not necessaryto ensure compliance withthe adopted exemption criteriain §117.2103(10). Additionally, applying suchtrainingrequirements generallyunder Chapter 117, SubchapterD, Division 2 is outsidethe scope ofthis rulemaking. The commission makes

no changesinresponsetothis comment.

Comment NCTCOG requestedthe TCEQ require Halliburton to identify and implement emission
reduction offsets for increased emissions.



# Response
As 

# discussedinthe Background and Summaryofthe Factual Basisfor the Adopted Rules, and Responseto Comments sections ofthis preamble,the adopted exemptionwill notincrease NOx emissions inthe DFWarea. Therefore, emissionreduction offsets arenotnecessary. The adopted exemptionin §117.2103(10) requires the engineto meetthe federal Tier standardusedto derive the applicable Chapter 117 NOx emission specification. Thefederal standardis atleast as stringent as the correspondingNOx emission limitin §117.2110 andthereforethe adopted exemptionwill notresultin additional NOx emissionsin the DFWarea. In addition, test results indicate the NOx emissionsfrom Halliburton's
24

# Drawworks Engine arebelowthe applicable Chapter 117 

# NOx emission specification. The commissionmakes no changesinresponse to this
comment.

25

# RECOMMENDATION

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

## DALLAS-FORTWORTH EIGHT-HOUROZONE NONATTMNMENTAREAMINORSOURCES

§§117.2103, 117.2130, 117.2135, 

# and 117.2145


## StatutoryAuthority 

## This rulemaking is adopted underthe authority ofthe following: Texas Government Code, §2001.021, 

## Petition for theAdoption ofRules, which authorizes aninterested
person to petition a state agency for the adoption ofa rule; Texas Water Code (TWC), §5.102, 

## General Powers, §5.103, 

## Rules, and §5.105, 

## General Policy, which authorize the commission to adopt rules necessaryto carry out its powers and duties as well as all general policies underthe TWC; Texas Health and Safety Code (THSC), The Texas Clean Air Act (TCAA), §382.017, 

## Rules, which authorizes the commission to adopt rules consistentwith thepolicy andpurposes ofthe TCAA; THSC, §382.002, 

## Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air

resources, consistentwith theprotection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

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

## State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air. The amendments are also adopted underTHSC,**§382.~n6,** 

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

## Sampling Methods and Procedures, which authorizes the commission to prescribe sampling
1

## methods andprocedures; andTHSC, §382.051(d), PermittingAuthority ofCommission; Rules, which authorizes the commission to adoptrules as necessaryto comply with changes in federal law orregulations applicable to permits under THSC, Chapter 382. Finally, the amendments are also adoptedunder the Federal Clean Air Act (FCAA), 42 USC, §§7401, 

# etseq., which requires statesto submit stateimplementation plan revisions that specifythe mannerin which the National AmbientAir Quality Standard will be achieved and maintainedwithin each air quality control region ofthe state.

The adopted amendments implementTWC, §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-FortWorth Eight-Hour Ozone Nonattainment
Area Minor Sources) does not applyto the following stationaryengines, except as specified in §§117.2130(c), 117.2135(e), and 117.2145(b) and (c) ofthis title (relatingto Operating Requirements; Monitoring, Notification, and Testing Requirements; and Recordkeeping and Reporting Requirements):

(1) engines with a horsepower (hp) rating oflessthan 50 hp;

(2) engines used in research andtesting;
2

## (3) engines usedfor purposes ofperformanceverification andtesting;

(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 peryear, 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. Forthe purposes ofthis subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 ofthis title (relating to General Definitions) and40 Code ofFederal Regulations (CFR) §60.15 (December 16, 1975), respectively, andthe term "relocated" meansto newly install at an account, as defined in §101.1 ofthis title (relating to Definitions), a used engine from anywhere outside that account;

(6) engines used in response to and during the existence ofany officially declared disaster or state ofemergency;

(7) engines used directly and exclusivelybythe owner oroperatorfor agricultural operations necessaryfor the growing ofcrops orraising offowl or animals;

3

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

(A) operateless than 100 hours peryear, based on a rolling 12- month average; and

(B) have notbeen modified, reconstructed, or relocated on or after
June 1, 2007. Forthe purposes ofthis clause, the terms "modification" and "reconstruction" have the meanings defined in §116.10 ofthis title and40 CFR §60.15 (December 16, 1975), respectively, andthe term "relocated" means to newly install at an account, as defined in §101.1 ofthis 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 peryear, based on a rolling 12- month average, in otherthan emergency situations; and

(B) meetthe corresponding emission standardfor non-road engines listed in 40 CFR §89.112(a), Table 1(October 23, 1998) andin effect atthe time of installation, modification, reconstruction, orrelocation. For the purposes ofthis subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 ofthis title and40 CFR §60.15 (December 16, 1975), respectively, and 4

## theterm "relocated" means to newly install at an account, as defined in §101.1 ofthis 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 solelyfor producttesting andpersonnel training;

(B) operateless than 1,000 hours peryear, on a rolling 12-month basis; and

(C) meetthe corresponding emission standardfor non-road engines listed in 40 CFR §89.112(a), Table 1(October 23, 1998) andin effect atthe time of installation, modification, reconstruction, orrelocation. For the purposes ofthis subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 ofthis title and40 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.

§117.2130. 

## OperatingRequirements.

5

## (a) The owner or operator shall operate anyunit subjectto the emission specifications of §117.2110 

## ofthis title (relating to Emission Specifications for EightHourAttainment Demonstration) in compliance with those specifications.

(b) All units subject to §117.2110 

## ofthis title mustbe operated so as to minimize nitrogen oxides (NOx) emissions, consistentwith the emission control techniques selected, over the unit's operating orload range during normal operations. Such operational requirements include the following.

(1) 

## Each unit controlled with post-combustion control techniques mustbe operated suchthatthe reducing agent injection rate is maintainedto limit NOx concentrations to less than or equal to the NOx concentrations achieved at maximum rated capacity.

(2) 

## Each stationaryinternal combustion engine controlled with nonselective catalytic reduction mustbe equipped with an automatic air-fuel ratio (AFR) controllerthat operates on exhaust 02 

## orCO control and maintainsAFR inthe
range requiredto meetthe engine's applicable emission specifications.

(3) Each stationary internal combustion engine mustbe checked for
proper operation according to §117.814o(b) ofthe title (relating to Emission Monitoring for Engines).

6

## (c) No person shall start oroperate any stationary diesel or dual-fuel engine for testing or maintenance ofthe enginebetween thehours of6:ooa.m. and noon, except:

(1) for specific manufacturer's recommended testing requiring a run of

over 18 consecutive hours;

(2) 

## to verify reliability ofemergency equipment (e.g., emergency generators orpumps) immediately after unforeseen repairs. Routine maintenance such

as an oil change is not consideredtobe an unforeseen repair; or

(3) firewater pumpsfor emergency response training conducted in the months ofApril 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) ofthis title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources) shouldbe consideredthe appropriate guidance for the location and calibration ofthe monitor.

(b) 

## Nitrogen oxides (NOx) monitors. If

## the owner or operatorinstalls a continuous emissions monitoring system (CEMS) orpredictive emissions monitoring system (PEMS), the CEMS or PEMS must meetthe requirements of§117.81oo(a) or (b) 

## 7

## ofthis title. If

## a PEMS is used, the PEMS mustpredictthe pollution emissions inthe units ofthe applicable emission limitations ofthis division.

(c) Monitor installation schedule. Installation ofmonitors mustbe performedin accordance with the schedule specified in §117.9210 ofthis title (relating to Compliance Schedule for Dallas-FortWorth Eight-Hour Ozone NonattainmentArea Minor Sources).

(d) Testing requirements. The owner or operator ofany unit subject to §117.2110 ofthis title (relating to Emission Specifications for Eight-HourAttainment Demonstration) shall complywiththe following testing requirements.

(1) Each unit mustbetestedfor NOx, carbon monoxide (CO), and 02 emissions.

(2) One ofthe ammonia monitoring procedures specified in §117.8130 of this title (relating toAmmonia Monitoring) mustbe usedto demonstrate compliance with the ammonia emission specification of§117.2110(h)(2) ofthis title for units that inject urea or ammonia into the exhaust stream for NOx control.

(3) Forunits not equippedwith CEMS or PEMS, all testing mustbe conducted according to §117.8000 ofthis title (relating to StackTesting Requirements).
Inlieu ofthe test methods specified in §117.8000 ofthis 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 requiredbythis subsection on natural gas-fired reciprocating engines. If

## the owner oroperator elects to use ASTM D6522-00 

## for the testing requirements, the report must contain the information specified in §117.8010 

## ofthis title (relating to Compliance StackTest Reports).

(4) Test results mustbe reported in the units ofthe applicable emission specifications and averaging periods. If

## compliance testing is based on 40 

## Code of Federal Regulations Part 60,

## Appendix Areference methods, the report must contain theinformation specified in §117.8010 

## ofthis title.

(5) Forunits equipped with CEMS or PEMS, the CEMS or PEMS mustbe installed and operational before testing under this subsection. Verification of operational status must, at a minimum, include completion ofthe initial monitor certification andthe manufacturer's written requirements or recommendations for installation, operation, and calibration ofthe device.

(6) 

## Initial compliance with the emission specifications of §117.2110 

## ofthis title for units operating with CEMS or PEMS mustbe 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) ofthis subsection is required within 60 days after any modification that could reasonablybe expected to increasethe NOx emission rate.

(B) 

## Retesting as specified in paragraphs (1)

- (4) ofthis subsection
maybe conducted atthe discretion ofthe owner or operator after any modification that could reasonablybe expected to decrease the NOx emission rate, including, but not limitedto, installation ofpost-combustion controls, low-NOx burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, andfuellean and conventional (fuel-rich) reburn.

(C) Stationary, reciprocating internal combustion engines not equipped with CEMS or PEMS mustbe periodicallytestedfor NOx and CO emissions as specified in §117.8140(a) ofthistitle (relating to Emission Monitoring for Engines).

(8) Testing mustbe performed in accordance with the schedule specified in §117.9210 ofthis title.

(9) All test reports mustbe submittedto the executive director for review and approval within 60 days after completion ofthetesting.

(10) The owner oroperator ofan affected unit in the Dallas-FortWorth eight-hour ozone nonattainment area must submitwritten notification ofany CEMS or 10

## PEMS relative accuracytest audit (RATA) ortesting required underthis section to the appropriate regional office and any local air pollution control agency havingjurisdiction

atleast 15 

## days in advance ofthe date ofRATA ortesting.

(e) Run time meters. The owner or operator ofany stationary diesel engine claimed exempt using the exemption of §117.2103(5), 

## (8), (9), or (10) 

## ofthis title (relating to Exemptions) shall record the operatingtime with a non-resettable elapsed

runtime meter.

§117.2145· 

# Recordkeepingand Reporting Requirements.

(a) Recordkeeping. The owner or operator ofa unit subjectto §117.2110 

## ofthis title (relating to Emission Specifications for Eight-HourAttainment Demonstration) shall maintain written or electronic records ofthe data specified in this subsection. Such records mustbe keptfor a period ofatleastfive years and mustbe made available upon requestby authorized representatives ofthe executive director, the United States Environmental ProtectionAgency, orlocal air pollution control agencies having jurisdiction. The records must include:

(1) 

## for each unitusing a continuous emission monitoring system (CEMS)

orpredictive emission monitoring system (PEMS) in accordance with §117.2135(b) 

## of this title (relating to Monitoring, Notification, andTesting 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 mustbe recorded in units of:

(i) pounds permillion British thermal units (MMBtu) heat input; and

(ii) pounds ortons per day;

(2) for each stationary internal combustion engine subjectto §117.2110 of this title, records of:

(A) 

## emissions measurements requiredby §117.2130(b)(3) ofthis title (relating to Operating Requirements); and

(B) catalytic converter, air-fuel ratio controller, or other emissionsrelated control system maintenance, including the date and nature ofcorrective actions taken;

12

## (3) records ofcarbon monoxide (CO) measurements specified in §117.2130(b)(3) ofthistitle;

(4) records ofthe results ofinitial certificationtesting, evaluations, calibrations, checks, adjustments, and maintenance ofCEMS, PEMS, or steam-to-fuel

orwater-to-fuel ratio monitoring systems; and

(5) records ofthe results ofperformance testing, including the testing conducted in accordance with §117.2135(d) ofthis title.

(b) Records for exempt engines. The following records mustbe maintainedfor at leastfive years and mustbe made available upon request to representatives ofthe executive director, the United States Environmental ProtectionAgency, or anylocal air pollution control agency havingjurisdiction.

(1) Written records ofthe number ofhours ofoperation for each day's operation mustbe maintainedfor each engine claimed exemptunder §117.2103(5), (8), (9), 

## or (10) ofthis title (relating to Exemptions) or §117.2130(b)(3) ofthis title.

(2) For each engine claimed exempt under §117.2103(5) ofthis title, written records mustbe maintained ofthe purpose ofengine operation and, ifoperation

was for an emergency situation, identification ofthe type ofemergency situation andthe
start and endtimes and date(s) ofthe emergency situation. 13

## (3) 

## For each engine claimed exemptunder §117.2103(10) 

## ofthis title, records mustbe maintained ofmanufacturer's specifications ortest data sufficient to demonstrate compliance with the emission standard specified in §117.2103(1o)(C) 

## of this title.

(c) Records ofoperation 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 requestby authorized representatives of the executive director, the United States Environmental ProtectionAgency, orlocal air pollution control agencies havingjurisdiction:

(1) 

## date(s) ofoperation;

(2) 

## start and endtimes ofoperation;

(3) identification ofthe engine; and

(4) total hours ofoperation for each month and for the most recent 12 

## consecutive months.

14**~** 

# TEXAS COMMISSION ON ENVIRONMENTAL

# QuALii~~!~~~";;;:;:?~:_~:~:~~~'-L:,**:~.)** :'i**~' •.:~J.~Ic-:**  · ::T ;:,•_,,,,_._**--~_,.:** -': :.· :.**~~**...':**~~** ;::c_:**:_~** - ·:,
. ;::::, ',xi

## ·~· 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 ofamended §§ 117.2103, 117.2130, 117.2135, and 117.2145. The Commission adopts this amendment, in Chapter 117, Control ofAir Pollutionfrom Nitrogen Compounds, Subchapter D, Combustion Control at Minor Sources in Ozone NonattainmentAreas, Division 2, Dallas-Fort Worth Eight-Hour Ozone NonattainmentArea 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 exclusivelyfor producttesting and personnel training, operate inlimited service, and meetthe applicable federal emissions standardsin 40 Code ofFederal Regulations Part 89. Engines used inthis type ofservice ·will be requiredto install and operate a non-resettable elapsed run time meter, maintain records ofdaily hours ofoperation, and maintain records demonstrating compliance with the applicable federal emissions standards. The rulemaking is a follow-up to a petition for rulemaking approvedby 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 ofthe state's air andto issue orders consistentvvith the policies and

purppses o{the Texas Clean Air Act, Chapter 382 ofthe Tex. Health &

## Safety Code. The

, proposedrules -vv-ere published for commentin the November 16, 2012, issue ofthe 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 ofFederal 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 inthe areas affected at least 30 days priorto the dates ofthe hearings. Public hearings for this rulemaking vvere held in FortWorth, Texas on December 13, 2012 and in Austin, Texas on December 18, 2012. The Commission circulated hearing notices ofits intended action to the public, including interested.persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was imitedto submit data, -vie1vs, and recommendations onthe proposed amended rules and SIP revisions, either orally or in vvTiting, atthe hearings or during the commentperiod. Prior to the scheduledhearings,

## copies ofthe 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 ofinterested persons regarding the proposed amended**rul~s** 

## and SIP revisions were submittedto the Commission during the comment period, 

# and \vere consideredbythe Commission as reflected in the analysis oftestimony incorporatedby reference to this Order. The Commission finds thatthe analysis oftestimony includes the names ofall interested groups or associations offering comment on the proposed amended rules andthe SIP revisions andtheir position concerning the same. IT IS THEREFORE ORDERED BY THE COMMISSION thatthe amended rules and re-visions to the SIP incorporatedby reference to this Order are hereby adopted. The Commission further authorizes staffto make anynon-substantive revisions tothe rules necessary to comply with Texas Registerrequirements. The adopted rules andthe preamble to the adopted rules andthe revisions to the SIP are incorporatedby reference in this Order as ifset forth atlengthverbatim in this Order.
IT IS FURTHER ORDERED BY THE COMMISSION that onbehalfofthe Commission, the Chairman shouldtransmit a copy ofthis Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator ofEPA as a proposed revision to the Texas SIP pursuantto the Federal Clean Air Act, codified at42 U.S. Code Ann.§§ 7401- 7671q, as amended. This Order constitutes the Order ofthe Commission requiredbytheAdministrative ProcedureAct, Tex. Gov't Code,§ 2001.033 (Vernon 2008). If

## any portion ofthis Order is for any reason held to be invalid by a court ofcompetent jurisdiction, the invalidity ofany portion shall not affect thevalidity ofthe remaining portions.

Issued date: 

# APR 

# 222013

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

### anyassociated ductburners and sidered to be utility boilers. ed waste heatboilers, are not con- (53) Wood--\Vood, wo d residue, bark, or any derivative fuel 

### or residue thereofin any form including, 

### but not limitedto, sa.vdust. sander dust, wood chips, sc ps, slabs, millings, shavings, and

### pr~ssedpellets made from woo or otherforest residues. This agency herebycertifiestha theadoption has been reviewed by legal counsel and found to b a valid exercise ofthe agency's legal authority. Filed with the Office ofthe 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 30TAC §§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 tothe United States Environmental ProtectionAgency(EPA)as a revision tothe state implementation plan (SIP). Background and Summary ofthe 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 compliancewith 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 forthe rental, transport, and use of a dynamometer,



## 38 TexReg 2634 Apri/26, 2013 Texas Register which istypically used by engine manufacturers for testing purposes. Preparing the engine for installation ofthe dynamometer and returning the engine to operational status subsequent tothe 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 ofthe Drawworks Engine takes three tofour days to complete, whereas compliant emissions testing on a typical stationary engine only requires approximately halfa 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 notsubjecttosimilar 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 becausethe equipment has been madestationaryto providetesting and training facilities for sources that are not subject to the rule. The adopted change will expand the list ofexempted sources in §117.21 03 to include stationarydiesel enginesthat are used exclusively for product testing and personnel training, operate less than 1,000 hours peryear 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 minorsources, such as stationary engines used in research and testing and stationary engines used for purposes ofperformance 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 AirAct, Section 110(0 The commission provides the following information to demonstratewhythe adopted newexemption in §117.21 03 will not negatively impact the status ofthe state's progress towards attainmentwith 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 forspecific purposes, such as those used in research and testing and those used forthe purposes ofperformance 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-hourozone NAAQS. Similartothe HGB rulemaking, the DFW rulemaking also adopted exemptions for engines used for specific purposes, such as those used in research andtesting and those used forthe purposes ofperformance 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 peryear, 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 minorsource 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 ofthe 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 ofthe 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 becausethe 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 ofthe prohibition. Section 117.2135, Monitoring, Notification, and Testing Requirements The commission amends § 117.2135(e) to reference theadopted 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 amendmentdoes not alterthe intent oftheexisting 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) reformatthe record retention requirement in existing §117.2145(b) to require the records specified in paragraphs (1}- (3) to be maintained for at leastfive years and must be made available upon request to representatives ofthe 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 ofthe numberofhours ofoperation foreach day's operation in orderto 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) ofthe emergency situation.



## ADOPTEDRULES April26, 2013 38 TexReg2635Adopted §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 forthis 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 ofthe regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the adopted rulemaking does not meetthedefinition ofa 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, asector ofthe economy, productivity, competition, jobs, the environment, orthe public health and safety ofthestate or a sector ofthe state. Furthermore, while the adopted rulemaking does not constitute a majorenvironmental rule, even ifitdid, a regulatory impact analysis would not be required because the adopted rulemaking does not meet any ofthe fourapplicability 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 ofstate law, unless the rule is specifically required byfederal law; 3) exceeds a requirement of adelegation agreement or contract between the state and an agencyor representative ofthe federal governmentto implement a state and federal program; or4) adopts a rule solely under the general powers ofthe agency instead of under a specific state law. Specifically, it does not meet any ofthe 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 ofthe 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 AirAct), and the Texas Water Code, which are cited in the Statutory Authority section ofthis preamble. The adopted rulemaking implements requirements ofthe 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 orderto 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 appropriateto meet the applicable requirements ofthis chapter (meaning 42 USC, Chapter 85, Air Pollution Prevention and Control, otherwise known as the FCAA}. The provisions ofthe 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 notconstitute a majorenvironmental rule under Texas Government Code, §2001.0225(g)(3) because it does not adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, orjobs, norwould the rulemaking adversely affect in a material way the environment, or the public health and safety ofthe state or a sector ofthe state. The rulemaking as a result is not subject to a regulatory impact analysis urider 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 ofstate law, federal law, or a delegated federal program; orare adopted solely underthe 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 forthe 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 orderto meetthe NMOS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet the attainment deadlines. Because ofthe ongoing need to address nonattainment issues and to meet the requirements of42 USC, §7410, the commission routinely proposes and adopts revisions tothe SIP and rules. The legislature is presumed to understand this federal scheme. Ifeach rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every 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 orappropriate to meetthe requirements ofthe 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 anotherpoint oflaw, Tax Code §112.108, Other Actions Prohibited, as recognized in, First State Bank ofDumas 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. WaterAuth. 

## 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 attemptto limitthe number ofrule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections ofthe APA against the standard of substantial compliance 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 ofthe 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 ofthe 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 doexceed 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 ofthe 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 impactanalysis 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 mannerthat 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 ofthe governmental action, in whole or in part ortemporarily or permanently, in a mannerthat restricts or limits the owner's right to the propertythat would otherwise exist in theabsence ofthe 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 marketvalue ofthe property as ifthe governmental action is not in effect and the market value ofthe 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 ofexempted sources listed in §117.2103 to include stationary diesel engines used exclusivelyfor 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 regulatesthe use ofstationary engines in limited circumstances. Furthermore, the rulemaking benefits the public by providing oil and gasfield 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 ofthe regulations. Therefore. this rulemaking does not constitute a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management Program



## ADOPTEDRULES April26, 2013 38 TexReg 2637The 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. requirethat 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 subjectto 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 ofGovernments (NCTCOG) opposing the proposed rule revisions. Response to Comments Comment NCTCOG commented that this and similartraining sites should be located outside of all nonattainment areas in the state because approving an exemption could contribute to the exceedance offederal ozone standards in the DFW area. Alternatively, NCTCOG requested that ifthe 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 ofthis rulemaking is to provide an exemption forstationary diesel engines that are used exclusively for product testing and personnel training, operate less than 1,000 hours peryear, and meet applicable emission standards in 40 CFR §89.112(a}. Table 1 (October 23, 1998). The commenter's suggested change isoutside 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 underthe Texas Clean AirAct. Additionally, the adopted exemption will not result in additional NO, emissions in the DFW area. The exemption criteria require compliance with thefederal 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 ifthe proposed exemption allows additional training sitesto be located in the DFWarea. 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 currentlyaware ofonly 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 meetthe 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 purposesthatqualifyforthe exemptions in §117.2103(2) and (3). However, the existing exemptions in §117.2103 do not cover the full operating range ofHalliburton's Drawworks Engine duetothe unique nature ofits service. Instead ofgranting thefullexemption afforded to otherengines that operate in specific service, the commission is adding an additional layer of stringency tothe exemption by limiting the engine's hours ofoperation. 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 of6:00a.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 ofthe prohibition. The commission's intent for §117.2130(c} hasalways been thatthe prohibition appliestotesting and maintenance ofthe engine itself. These activities can typically be scheduled outside the 6:00a.m. to noon time-frame withoutsignificantly interfering with thedaily operations ofa facility. Section 117.2130(c) does applytothe Halliburton Drawworks Engine when Halliburton operates the engine as part ofthe engine's routine testing and maintenance. However, §117.2130(c) does not apply when Halliburton is operating the engine as part ofthefacility's normal operation oftesting 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 ofthis rule revision. The DFWattainment demonstration 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 forthe DFW area. The photochemical modeling forthe 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 ofthe model to changes in emissions by time ofday. 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 ofthis 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 ofthe following: Texas Government Code, §2001.021, Petition forthe 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 tocarry out its powers and duties aswell asall 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 tosafeguard 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 authorizesthe commission to control the quality ofthe state's air; and THSC, TCAA, §382.012, State Air Control Plan, which authorizes the commission to pre

## ADOPTEDRULES April26, 2013 38 TexReg2639pare 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 requirementsfor owners or operators ofsources 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 underthe Federal Clean AirAct (FCAA), 42 USC, §§7401, 

## etseq., which requires statestosubmit 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 ofthe 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, §§7401, 

## et seq. This agency hereby certifiesthatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary of State on April 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 34TAC §§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 ofthe 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 ofthe datethe 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 herebycertifiesthat t e adoption hasbeen reviewed by legal counsel and found to be valid exercise ofthe 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 ofthe date the new Chapter 15 rules take effect. The rules in Chapter 15, Subcha ter A, address the applicability, definitions, and payment cat ries forthe 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 definitionsforthe 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-