### Kathleen HartnettWhite. 

### Chairman Larry 

### R. Soward, 

### Commissioner Glenn Shankle, 

### ExecutiveDirector 

# RECEIVED- 6POL 

# AIR PLANNING SEC. 

# 07 JUL 30**P~1** 

# 4:**~S** 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by

### Reducing andPreventingPollution



## July 25, 2007

Richard E. Greene, Regional Administrator U.S. Environmental Protection Agency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733
Dear Mayor Greene: Docket 

## No. 2006-1864-RUL



## On June 27, 2007, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 30 Texas Administrative Code (TAC) Chapter 114 and corresponding revisions to the Transportation Conformity State Implementation Plan (SIP). The Commission approved these changes to incorporate federal transportation conformity revisions from the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The rulemaking also incorporated previous federal transportation conformity revisions and guidance that include: requesting states to incorporate into SIPs when a regionally significant, non-federal project is considered 

## adopted or 

## approved by a non-federal entity; adding transportation-related PM2.s precursors to the transportation conformity regulations; and deleting aprevious quantitative 

## PMw and PM2.s hot-spot analysis. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying order. I look forward to your expeditious approval ofthese SIP revisions. Sincerely, ·

# d~o/1~~**~l~~~an** KHW/ts 

## Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Zak Covar, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet**addre~s:** 

### w\vw.tceq.state.tx.us

## TExAs CoMMISSION oN ENVIRONMENTAL QuALITY

THE STATE OF TEXAS
COUNTY OF TRAVIS

This is to certify that the attached are true and correct copies ofdocuments for a revision to the Texas
State Implementation Plan, adopted on June 27, 2007, pursuant to 40 Code ofFederal Regulations (C.P.R.) §


## 51.104. I 

## am the records administrator for the Air Quality Division of the Texas Commission on Environmental Quality (Commission).

Susana M. Hildebrand, P.E., Director Air Quality Division Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality Public Hearing March 6, 2007 Concerning Revisions to 30 TAC Chapter 114

Control ofAir Pollution from MotorVehicles Transportation Conformity Rule And State Implementation Plan Revision Rule Project No. 2006-046-114-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on March 6, 2007, to receive testimony regarding revisions to 30 TAC Chapter 114, Control ofAir Pollution from MotorVehicles; and corresponding revisions to the state implementation plan.

The comment period closed on March 12, 2007. All testimonyand comments have been reviewed and seriously considered. This hearing record contains a complete record ofthe public hearing and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation ofTestimony

o Staff Recommendations (including Order and 

## Texas Registerpublication)

Additional copies ofthis hearing record are maintained in theTCEQ central officeat 12100 Park35 Circle, Austin, Texas 78753. Forfurther information, please contact Marivel Rodriguez, AirQuality Division, at (512) 239-2474.

# PUBLIC NOTIFICATION AND PROPOSAL

## PUBLIC NOTIFICATION

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

1. Publication ofnotice of public hearings in the following newspapers on the date listed: AustinAmerican-Statesman: 

## February 1, 2007 Fort Worth Star-Telegram: 

## February 1, 2007 Houston Chronicle: 

## February 1, 2007

2. Publication ofthe proposed rules in the February 9, 2007, issue ofthe Texas Register 

## (32 TexReg 499).

3. Publication ofthe Notice of Public Hearing in the December 29, 2006, issue ofthe Texas Register

## (32 TexReg 578).

4. Correspondence forwarding the notice of public hearingsto the following officials and agencies: Speaker ofthe House Lieutenant Governor Alamo Area Council of Governments Capital Area Planning Council City ofVictoria Planning Department Dallas Department of Environmental and Health Services Dallas Department ofAviation East Texas Council of Governments El Paso City-County Health and Environmental District El Paso Metropolitan Planning Organization Federal HighwayAdministration

### Fort Worth Environmental Management Department Galveston County Health District Houston Department of Health and Human Services Harris County Pollution Control Department North Central Texas Council of Governments Houston-Galveston Area Council South EastTexas Regional Planning Commission Texas Department ofTransportation Texas Transportation Institute Arkansas Department of Pollution Control and Ecology Louisiana Department of Environmental Quality New Mexico Environmental Department Oklahoma Department of Environmental Quality U.S. Environmental Protection Agency

### Example of Newspaper Classified Ad
Fort Worth Star-Telegram, 

### February 1, 2007

NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND TO THE STATE

IMPLEMENTATION PLAN The- Texas Commis-

sion on Environmental Quality (commission) will 9onduct a put;>lic heapng to rece_1ve i . testimony rl?!gard1ng proposed reVISions to 30
.Texas Adminis- trative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Sub-

. chapter G, Transpor- tation · Planning, §114.260, Transpor- tation Conformity, and to the state Imple- mentation plan (SIP). under-: the·· require- ments ofTexas Health and Safety. ·Code, 1:>382.017;··•,, -r... Texas Government'· ·Code, Chapter 2001, Suo-**~~~d~r 0~;** **aredde~** Regulations &51.102 of the Unitecf State• Environmental Pro· taction_Agency (EPA) 1 regulations., concern·

ing SIPs.

. . . The proposed

.. rule·

making would incor- ,

### fr~~i~o~a'tfon~**~~~1~-­ ~~{./;'vg:1i~n~~~~~~~e**  I including ·those from

-

### {~:ns~6J~r6n**su~~~:** 

# . thorization":

_ act o1 j 2005, the Safe, Ac- 1 countable, Flexible, Eff1cient · Transporta- j· lion Equity Act: A Leaag_y_ for:

_ Users : (SAFETEA-LU):. In J addition to addressing 1 the Sll.FETEA·LU Te-

- visions, the rulemak· 1 ing would also incor-,

### ~~~rte**r~:~~~6~~ttf~~** 

### i conformity revisions

. and guii:lance that include:**requesting~** states to incorporate·. into SIPs when a, regionally significant, f**non-~ederal** project is 1 cons1dered :.,adopted or approved bya:non- federal entity; adding**trans~ortation-relatea**

### ~~~**· r::~~;~rt~tici~**  c;ori!ormity

. ·**r~gula** tJons; and delet1nQ a grevfous auantitafJve PM 10 and PM2.5 ho!- soot analysis. A

### tr~gg~:,s~.tlr%~n~~~i~ I 1n Austin, Texas, on March 6, 2007, at 10:00 a.m

.. 1n Building B, Room 201A, at the Texas Commission on Environmental Quality

### 1~'1'cf~**~ark §~** **~9rcl~~** The; hearing will be structured for the r&- eeipt of oral or written comments by inter- ested persons. Re.Q- IStration will begin ..;o minutes prior fo the hearing. Individuals**~~femfr~tessent w~~~**  .called upon in order of registration. There will tie no opeh dis- cuss.lon dunng the heanng;
. however, commiSSIOn

. staff members will be available to discuss the proposal 30 min- utes prior to the hearing.·_.

..· · . ·! Persons

_/{Ianning to:

### ~~~;~d**h1v~ h;~~ib\~1**  communication or other accommodation needs, should contact Lola Brown, Office of

### r~fl2J**1**

### 2~~-'0~~e8~'**R;~** quests·· should be; made as far in ad- vance· as possible. Comments may be submitted toe

.Lola Brown.- MC · 205 Texas RegisterTeam' "Office of Legal Ser: vices, Texas Com-**missior.~** on Environ-**[3'~~taj 3i?~f'lityAu~if;;**  Texas 78711'3087 01 faxedto (512) 239· 4808,·

..--. · .Electronic comr11ents may bE submitted"" ·· .• a http:llwww5.tceq state.tx. us/rules, ecomments. The comment perioc closes lvlarch 12. 2007. All comments should reference Rule**b~~-~c tj'!E~.ber** **21f~~** proposed rule may be**VI~Wed** on the com· mission's Web site at http:II w w w
.. Iceq. state.tx.us/.nav/rulest

### ~~~P~Grtn:~**i~1o~~~~** tior:-l or qu_estions concerning th1s**pro~**

### ~f:rfJeF~eoad~fa.3~i**A~:.**

. Oualiiy DiviSion,' at

(512) 239-2474. issued in .1\ustin, Tex- as. on January 24 i 2007. ',

### 1\athkcn Hartnett White, 

### Chairman Larry 

### H. Soward, 

### Commissioner Martin A Hubert, 

### Commissioner Glenn Shankle, 

### ExecutiveDirector

.. ,.... A.:;,r-
... -.-.s



### - ....r-;

## jt;~tTEXAS 

# COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by

### Reducing andPreventingPollution


### AIR ,·-11 1,-,,, 

### NOTICE OF PUBLIC HEARING BY THE

# PLAr:;;:;;~~{J:Y TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

.. <:..;;1 

### ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND TO THE STATE IMPLEMENTATIONPLAN
The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter G, Transportation Pla1ming, §114.260, Transportation Conformity, and to the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs.
The proposed rulemaking would incorporate recent federal transportation conformity rev1s10ns into the state's SIP and rule, including those from the six-year surface transportation reauthorization act of2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In addition to addressing the SAFETEA-LU revisions, the rulemaking would also incorporate previous federal transportation conformity revisions and guidance that include: requesting states to incorporate into SIPs when a regionally significant, non-federal project is considered adopted or approved by a non-federal entity; adding transportation-related PM2.s precursors to the transportation conformity regulations; and deleting a previous quantitative PM10 and PM2.s hot-spot analysis.

A public hearing on this proposal will be held in Austin, Texas, on March 6, 2007, at 10:00 a.m., in Building B, Room 201A, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes prior to the hearing.
Persons planning to attend the hearing, who have special communication or other accmmnodation needs, should contactLola Brown, Office ofLegal Services, at (512) 239-0348. Requests should be made as far in advance as possible.
Comments may be submitted to Lola Brown, MC 205, Texas Register Team, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electro11ic comments may be submitted at 

### http://www5.tceq.state.rx.us!rulesleconzments. The cmrunent period closes March 12, 2007. All cmrunents should reference Rule Project Number 2006-046- 114-EN. The proposed rule may be viewed on the commission's Web site at 

### http:I lwww.tceq.srate.tx.uslnav /rules!propose_adopt.html. For further information or questions concerning this proposal, please contact Marivel Rodriguez, Air Quality Division, at (512) 239-2474.


### Issued in Austin, Texas, onJanua/)' 24, 2007.

P.O. l3ox L\Ut\7 • Austin, Texas 78711-3087 • 512/2:)9-1000 • lnl<::rnet acldres.,: wwvl'.lccq.state.tx.usSTAFF ATTORNEY: Laurencia asoyiro, Litigation Division, MC R-12, (713) 422-8914; REGION L OFFICE: Beaumont Regional Office, 3870 Eastex Freeway, Be umont, Texas 77703-1892, (409) 898-3838. (9) COMPANY: Transit Mix oncrete & Materials Company; DOCKET NUMBER: 2005-060 MLM-E; TCEQ ID NUMBER: RN104352869; LOCATION: 3902 East Stan Schlueter Loop, Killeen, Bell County, Texas; TYPE OF FA ILITY: concrete ready mix plant; RULES VIOLATED: 30 TAC §3 0.5(a), by failing to prevent the unauthorized disposal of munici a! waste; and TWC, §26.12l(a) and Texas Pollutant Discharge Eli ination System (TPDES) General Permit No. TXR05P896 Part V, S ction E(4), page 56, by failing to preventthe unauthorized discharge [municipalwaste into oradjacent to waters in the state; PENALT : $27,500; STAFF ATTORNEY: Kathleen Decker, Litigation Div sion, MC 175, (512) 239-6500; REGIONAL OFFICE: Waco Reg· nal Office, 6801 Sanger Avenue, Suite 2500, Waco, Texas 76710-78 6, (254) 751-0335. TRD-200700259 Mary Risner Director, Litigation Division Texas Commission on Environment I Quality Filed: January 30, 2007 

# • • Notice ofPublic Hearing on Proposed Revisions to 30 TAC Chapter 114 and to the State Implementation Plan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control ofAir Pollution from Motor Vehicles, Subchapter G, Transportation Planning, §114.260, Transportation Conformity, and to the stateimplementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederal Regulations §5!.102 ofthe United StatesEnvironmentalProtectionAgency(EPA)regulationsconcerning SIPs. Theproposedrulemakingwould incorporaterecent federal transportation conformityrevisions into the state's SIP andrule, including those from the six-year surface transportation reauthorization act of2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In addition to addressing the SAFETEA-LU revisions, the rulemaking would also incorporate previous federal transportation conformityrevisions andguidancethat include: requesting states to incorporate into SIPs whenaregionally significant, non-federal project is considered adopted or approved by a non-federalentity; addingtransportation-relatedPM,,precursorsto the transportation conformity regulations; and deleting aprevious quantitative PM 10 and PM,, hot-spot analysis. A public hearing on this proposal will be held in Austin, Texas, on March 6, 2007, at 10:00 a.m., in BuildingB,Room 201A, attheTexas Commissionon Environmental Qualitycomplexlocated at 12100Park 35 Circle. The hearingwill be structured for the receipt oforal orwritten comments by interested persons. Registration will begin 30 minutespriorto the hearing. Individualsmaypresentoral statementswhen called upon in orderofregistration. There will be no open discussion during the hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes priorto the hearing. Persons planning to attend the hearing, who have special communicationor otheraccommodationneeds, shouldcontactLola Brown, Office ofLegal Services, at (512) 239-0348. Requests should be made as far in advance as possible.



## 32 TexReg 578 February 9, 2007 Texas Register Comments maybe submitted to Lola Brown, MC 205, Texas Register Team, 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:II1Aww5.tceq.state.tx.uslrules/ecomrnents. The comment period closes March 12, 2007. All comments should reference Rule Project Number 2006-046-114-EN. The proposed rule may be viewed on the commission's Web site at http://www.tceq.state.tx.us/nav!rules/propose_adopt.htrnl. For further information orquestions concerning this proposal, please contact Marivel Rodriguez, Air Quality Division, at (512) 239-2474. TRD-200700213 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: January 26, 2007 

# • Notice ofRequest for Public C Meeting for One Total Maximu 

# • ent andNotice ofa Public Daily Load TheTexas Commission on Environ ental Quality (TCEQ orcommission)hasmade availableforpublic ommentonedraftTotalMaximum DailyLoad (TMDL) forbacteria in Gilleland Creek (Segment 1428C) ofthe Colorado River Basin, loca d in northeastern Travis County. The TCEQ will conduct apublic eting to receive comments on the draftTMDL.Thisannouncemental oconstitutesnoticethattheTMDL willbecomepartofthe StateWater ualityManagementPlanupon approval by the United States Enviro ental ProtectionAgency (EPA).

orimpairedwaterbodiesincluded in the State ofTexas CleanWater ct, §303(d) list ofimpaired water bodies. A TMDL is a detailed wat r quality assessment that provides the scientific foundation to allocate ollutant loads in acertainbodyof waterin order to restore and maint indesignated uses. The TCEQ will conduct apublic eting on the draftTMDL for bacteria in Gilleland Creek (Segment 428C). The purpose ofthe public meetingis toprovidethepublic an portunityto commentonthedraft TMDL. The commission requests omment on each ofthe six major components ofthe TMDL: proble definition, endpoint identification, source analysis, linkagebetween s ces andreceivingwaters, margin ofsafety, and pollutant loading all cation. After the public comment period, TCEQ staffmay revise th TMDL, ifappropriate. The final TMDLwill thenbe consideredby ecommission for adoption. Upon adoption ofthe TMDL by the co ission, the final TMDL and aresponse to all comments will be rna e available onthe TCEQ Web site referenced below. The TMDL will hen be submitted to EPARegion 6 for approval. Upon approval, the DL will be certified as anupdate to the State ofTexas Water Qualit Management Plan. The public comment meeting will be held on February 22, 2007, at 7:00p.m., at the Pflugerville Justi Center, 1611 East Pfennig Lane, Pflugerville,Texas78691. At this eeting, individualshavethe opportunity to present oral statements w encalledupon in order ofregistration. There will be no agenda or p esentations given, open discussion will not occur during the meeting. However, an agency staffmember will be available to discuss the rna er 30 minutes priorto the meeting and will answer questions before nd after all public comments have been received. Written comments should be sub 'tted to Edward Ling, Texas CommissiononEnvironmental Quality, aterProgramsDivision,MC 203, P.O. Box 13087, Austin, Texas 7 711-3087 or faxed to (512) 239- 1414. All comments mustbe rece· ed by 5:00p.m., March 12, 2007, and should reference, One Total ·imurn DailyLoad forBacteria in

### This agency herebycertifiesth the proposal has been reviewed by legal counsel and found to b within the agency's legal authority to adopt. Filed with the Office of the S retary of State on January 26, 2007. TRD-200700221 J. Randel (Jerry) Hill General Counsel Texas State Board of Public Accou tancy Earliest possible date of adoption: arch 11, 2007 For further information, please call: (512) 305-7848 

# • • TITLE 30. ENVIRONMENTAL QUALITY 

# PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTORVEHICLES SUBCHAPTER G. TRANSPORTATION PLANNING 30 TAC §114.260 The Texas Commission on Environmental Quality (commission) proposes an amendment to §114.260 and corresponding revisions to the Transportation Conformity State Implementation Plan (SIP) for Texas Nonattainment and Maintenance Areas. Ifadopted, the revisionswould be submitted tothe United States Environmental Protection Agency (EPA) as a revision tothe SIP. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The Federal Clean Air Act (FCAA) Amendments of 1990 as codified in 42 United States Code (USC), §§7401 et seq. 

### required each state to submit a revision to its SIP by November 25, 1994, establishing enforceable criteria and procedures for making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects funded by the Federal Highway Administration (FHWA) or the Federal Transit Administration (FTA). Final rules regarding conformity requirements were published by EPA on November 24, 1993. The Texas SIP revision that incorporated conformity requirements was adopted October 19, 1994, and approved by EPA November 8, 1995. EPA has amended the federal transportation conformity rule eight times: August 7, 1995; November 14, 1995; August 15, 1997; April 10, 2000; August 6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The commission previously incorporated the federal changes up to, and including, the 2004 amendments. The commission is now updating its SIP and rule to incorporate the May 6, 2005, and March 10, 2006, federal amendments. In addition to the 2005 and 2006 federal amendments, changes to the transportation conformity federal rule were enacted with passage ofthe Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which was signed into law August 10, 2005. Furthermore, EPA issued guidance in May 1999, that a state should spell out in its SIP when a regionally significant, non-federal project is considered adopted or approved

### by a non-federal entity. The addition ofthese changes to the existing state rules would align the state rule with the current federal requirements and would address when a non-federal, regionally significant project is considered adoptedorapproved 

### by a non-federal entity. Lastly, this proposed rulemaking would make administrative and grammatical changes and corrections to the existing rule language. Transportation conformity is required under FCAA, §176(c) to ensure that federally supported highway and transit project activities are consistent with the purpose ofthe state's SlP. Conformity applies to areas designated nonattainment and those redesignated to attainment after 1990 with a maintenance plan developed under the FCAA. Conformity to the purpose of the SIP meansthat transportation activities would not cause new air quality violations, worsen existing violations, or delay timely attainment ofthe relevant National AmbientAir Quality Standards (NAAQS). EPA's transportation conformity rule establishes the criteria and procedures for determining whether transportation activities conform to the SIP. EPA amended the transportation conformity rule on May 6, 2005. The Transportation Conformity RuleAmendments for the New PM,, NAAQS: PM,, Precursors 

### (70 FR 24280) specifies the transportation-related PM,, precursors and when they apply in transportation conformity determinations in PM,, (particulate matter) nonattainment and maintenance areas. The proposal would incorporate PM,, precursors in the state rule and make a technical correction to a United States Department of Transportation (U.S. DOT) planning regulation cross-reference. EPA's 2005 revisions were codified in 40 Code of Federal Regulations (CFR) Part 93. Sections revised were §§93.102, 93.105, and 93.119. EPA also amended the transportation conformity rule on March 10, 2006: the PM,, andPM, Hot-SpotAnalysis in Project Level Transportation Conformity Determinations for the New PM,., andExisting PM 10 NationalAmbientAir QualityStandards Final Rule 

### (71 FR 12468). The proposal would delete the current quantitative PM, and PM,, hot-spot analysis requirement from the state's conformity consultation requirements. The federal amendments were codified in 40 CFR Part 93. Sections revised were §§93.101, 93.105, 93.109, 93.116, 93.123, 93.125, 93.126, and 93.127. The transportation conformity provisions in the SAFETEA-LU streamlined the requirements for state conformity SIPs. Prior to enactment of SAFETEA-LU, states were required to address all of the federal conformity rule's provisions in their conformity SIPs. Most of the sections of the federal rule were required to be copied verbatim from the federal rule into a state's SIP, as previously required under 40 CFR §51.390(d). Now, under SAFETEA-LU, states are required to address and tailor only the following three sections of the conformity rule in their conformity SIPs: 1.) 40 CFR §93.1 05, which addresses consultation procedures; 2.) 40 CFR §93.122(a)(4)(ii), which requires that written commitments to control measures that are not included in a Metropolitan Planning Organization's transportation plans must be obtained prior to a conformity determination and that such commitments must be fulfilled; and 3.) 40 CFR §93.125(c), which requires thatwritten commitments to mitigation measures must be obtained prior to a project-level conformity determination and that project sponsors must comply with such commitments. In May 1999, EPA issued guidance titled Conformity Guidance on Implementation ofMarch 

### 2, 1999, Conformity Court Decision



## PROPOSEDRULES February 9, 2007 32 TexReg499addressing which projects could move forward during a conformity lapse. EPA recommended that states decide through the interagency consultation process when a regionally significant, non-federal projectis considered adoptedorapprovedby a non-federal entitythatroutinely receives funds from the FHWAor FTA. The interagency consultation group for Texas, the Technical Work Group (TWG), has agreed on languagethat is included in this proposed rulemaking. The commission is also proposing administrative and grammatical changes and corrections to the existing rule language in order to be consistent with current agency style and format. The commission is also proposing to renumber certain parts of §114.260 to make adjustments forthe proposed deletions and additions throughout the rule. SECTION DISCUSSION §114.260. Transportation Conformity. The proposed revisionsto§114.260(a)would changethe phrase in the requirements and replace it with certain requirements. The last sentence in this subsection would be changed from, It includes policy, criteria, andprocedures to demonstrate and assure conformity oftransportation planning activities with the state implementation plan (SIP) and replaced with, This section addresses the consultation process and the written commitmentrequirements forcontrolmeasures andmitigation measures thatare used to help demonstrate and assure conformity oftransportation planning activities to the state implementation plan (SIP) to more clearly describe the transportation conformity streamlining provisions in SAFETEA-LU. The proposed revisionsto§114.260(b)would add the term criteria in the first sentence to change the phrase transportation-relatedpollutants to transportation-related criteria pollutants. The purpose of this change is to clarify that the applicable pollutants are criteria pollutants. The second sentence would add transportation-relatedcriteria to form the phrase transportationrelated criteriapollutants. The word include is replaced with are and the precursor pollutants are listed in a separate sentence, which is then amended by adding PM,, as a precursor and referring to 40 CFR §93.102. The addition of PM,,to the sentence reflects the substantive change in EPA's May 6, 2005, final rule, the Transportation Conformity Rule Amendments for the New PM,, National AmbientAir Quality Standard: PM,**Precurso~s** (70 FR 24280). The purpose of referring to 40 CFR §93.102 IS to indicate the applicable precursors to be analyzed depending on the characteristics ofthe nonattainmentarea. Finally, the last sentence is deleted because its reference to nonattainmentarea boundaries is not needed in the rule language. The proposed revisions to §114.260(c) would delete the reference to 40 CFR Part 93, Subpart A, (62 FR 43780), and add the replacement reference 40 CFR §93.122(a)(4)(ii) and 40 CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, §7506(c)(4)(E) direct that only these two sections plus CFR §93.105 need to be in the state conformity rule. The addition of these three sections would streamline the requirements for state conformity SIPs. The proposal would revise §114.260(d)(2)(A)(i) to delete the rule language Air QualityPlanning andImplementation Division and replace it with executive director. The proposal would revise §114.260(d)(2)(A)(ii) to delete the word involvement and replace it with participation and would change the 23 CFR reference §450.316(b)(1) to Part 450. The proposal would revise §114.260(d)(2)(A)(iii) to delete by the Metropolitan Planning Rule and change the 23 CFR reference §450.316(b)(1) to



## 32 TexReg 500 February 9, 2007 Texas Register Part 450. The proposal would revise §114.260(d)(2)(A)(v) to delete the word involvement and replace it with participation, and would delete §114.260(d)(2)(A)(vii). The proposal would revise §114.260(d)(2)(B)(v) to correct the reference to 40 CFR §93.109(g)(2)(iii) with a reference to 40 CFR §93.109(1)(2)(iii). The proposal would revise §114.260(d)(3)(A) to delete the word involvement and replace it with participation. The proposal would revise §114.260(d)(3)(C) to delete the words identifiedas the Technical Working Group for Mobile Emissions and would delete the last sentence, The function ofthis workinggroup may be delegated to an existing group with similarcomposition and purpose. The proposal would revise §114.260(d)(5)to deletethe word involvementand replace itwith participation and renumber the CFR reference for the fee schedule for public inspection and copying. These proposed revisions would align the state rule with the federal rule; allow the executive director to delegate authorityto staffwithout explicitly naming the designee; provide flexibility to the Technical Work Group; and bring existing rule language into agreement with Texas Register requirements, agency format guidelines, and guidance provided in the Texas Legislative Council Drafting Manual, August2006. The proposed new §114.260(e) would address when a regionally significant, non-federal project is considered adoptedor approved by a non-federal agency. This section was added to clarify the approval and adoption process of a non-federal, regionally significant project. In the event ofa transportation conformity lapse, the provision may allow certain project phases to continue. The proposed amendmentto §114.260(f)would deletethe words beginsonand replacethemwith fortransportation conformitydeterminations thatbegin the interagencyconsultation process after. The purposeofthis change is to make clearthat compliance with this rule revision applies atthe beginning ofthe interagency consultation process. The proposed revision would make administrative and grammatical changes and corrections to the existing rule language in order to be consistent with current agency style and format guidelines. The proposal would also renumber certain parts of §114.260 to make adjustments for the proposed deletions and additions throughout the rule. FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT Jeff Horvath, Analyst, Strategic Planning and Assessment Section, has determined that for the first five-year period the proposed rule is in effect, no fiscal implications are anticipated for the agency orother unitsofstate orlocal governmentas a result ofthe administration or enforcement ofthe proposed rule. The proposed rulemaking would incorporate recent federal transportation conformity revisions into the state's SIP, including those from the surface transportation reauthorization act of 2005, SAFETEA-LU. Transportation conformity is an FCM requirement ensuring that federally supported highway and transit projects conform to each state's SIP. In addition to the SAFETEA-LU revisions, the rulemaking would also incorporate previous federal transportation conformity revisions and guidance that includes: 1.) May 1999 EPA guidance that asked statesto incorporate into their SIPsthe process used to determine when a regionally significant, non-federal project is considered adopted or approved by a non-federal entity. This clarifies when certain projects, like toll roads, can move forward during a conformity lapse; 2.) EPA rules that added transporta-tion-related PM,precursorsto the transportation conformity regulations and made a technical correction to a cross-reference of the U.S. DOT planning regulations; and 3.) EPA rules that deleted a previous consultation requirementforquantitative PM,, and PM, hot-spot analysis. The transportation conformity rule is only being revised to reflect existing language in the federal transportation conformity rule and otherfederal transportation conformity-related rules and guidance. Therefore, no fiscal implications are anticipated for the agency or other units ofstate or local governments as a result ofthe enforcement and administration ofthe proposed rule. PUBLIC BENEFITS AND COSTS Mr. Horvath has also determined that for each year ofthe first five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be compliance with state and federal law, continued conformity with the SIP, and continued protection of public health and the environment through improved air quality. The transportation conformity rule is only being revised to reflect existing language in the federal transportation conformity rule and otherfederal transportation conformity-related rules and guidance. Therefore, no fiscal implications are anticipated for businesses or individuals as a result ofthe enforcementand administration of the proposed rule. SMALL BUSINESS AND MICRO-BUSINESSASSESSMENT No adverse fiscal implications are anticipated for small or microbusinesses as a result ofthe proposed rule. LOCAL EMPLOYMENT IMPACT STATEMENT The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect. DRAFT REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewed the proposed rulemaking in light of the regulatory impact analysis requirements of the Texas Government Code, §2001.0225, and determined that the proposed rulemaking meets the definition of a major environmental rule as defined in that statute. A major environmental rule means a rule, the specific intent ofwhich is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety ofthe state or a sector of the state. The proposed amendments meet the definition of a major environmental rule because the transportation conformity requirements are specifically intended to protect the environment and/or reduce risksto human health, and may have material affects on the economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state orasectorofthe state. Federal transportation conformity requirements subject all nonattainment and maintenance areas to demonstrate conformity with specific emissions budgets, or be subject to loss of highway or othertransportation funding. The proposed amendments to §114.260 will incorporate recent federal transportation conformity revisions into the state's SIP, including those from the surfacetransportation reauthorization act of2005, SAFETEA-LU. Transportation conformity is an FCAA requirement ensuring that federally supported highway and transit projects conform to each state's SIP. Additionally, the proposed amendments to §114.260 will reflect existing language in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance. The proposed rulemaking does not, however, meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule, theresult ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed 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) adopt a rule solely underthe general powers ofthe agency instead of under a specific state law. The proposed rulemaking would implement requirements ofthe FCAAand SAFETEA-LU. Under42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcementand enforceability in accordancewith the EPA's criteria and procedures for consultation, enforcement, and enforceability. The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intentofSB 633wasto require agenciesto conducta regulatory impactanalysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely underthe general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded basedon an assessmentofrules adoptedbythe agencyin the past, it is not anticipatedthatthe bill

### wi/1 have significantfiscalimplications for the agencydue 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 proposed rules from the full analysis unlessthe rule was a majorenvironmental rule that exceeds a federal law. The FCAA does not always require specific programs, methods, or reductions in orderto meetthe goals ofthe FCAA; thus, states must develop programs and strategiesto help ensure thatthose goals are met. However, in this instance, the FCAA is clear in requiring that states complywith EPA's criteria and procedures for consultation, enforcement, and enforceability. EPA's transportation conformity rule and SAFETEA-LU provide specific requirements and limited flexibilitythat must be met by states. Because of the ongoing need to address the requirements of 42 USC, §§7401, etseq., the commission routinely proposes and adopts SIP rules. As discussed elsewhere in this preamble, states are required to incorporate requirements for transportation conformity in compliance with EPA's transportation conformity rule and SAFETEA-LU. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand



## PROPOSEDRULES February 9, 2007 32 TexReg 501the fiscal impacts ofthe 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 proposed rule may have a broad impact, that impact is no greaterthan is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall underthe exception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that when an agencyinterpretation is in effectat the time the legislature amends the laws withoutmaking substantialchange in the statute, the legislature is deemed to have acceptedthe agency's interpretation. CentralPower& LightCo. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with percuriam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullock

### v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil&Refining Co. 

### v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. 

### v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. WaterAuth. v. Trinity Portland CementDiv., 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 numberofrule challenges based upon APA requirements, the legislature clarified thatstate agencies are required to meet these sections ofthe APA againstthe standard of substantialcompliance. The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements ofTexas Government Code, §2001.0225. The specific intent ofthe proposed rulemaking is to incorporate recent federal transportation conformity revisions intothe state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in thefederal transportation conformity rule and otherfederal transportation conformity-related rules and guidance. There is no contractordelegationagreementthatcovers the topic that is the subject of this action. Therefore, the proposed rulemaking does not exceed a standard set byfederal law, exceed an express requirement of state· law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely underthe general powers of the agency, but isauthorized byspecificsections ofTexas Health and Safety Code (THSC), Chapter382 (also known astheTexas Clean AirAct (TCAA)), and theTexasWater Code (TWC), which are cited in the STATUTORYAUTHORITYsection ofthis preamble, including THSC, §§382.012, 382.017, and 382.208. Therefore, this rulemaking action is not subjectto the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because although the proposed rulemaking meets the definition of a majorenvironmental rule, it does not meet any ofthe four applicability requirements. The commission invites public comment on the draft regulatory impact analysis determination. TAKINGS IMPACTASSESSMENT



## 32 TexReg502 February 9, 2007 Texas Register The commission evaluated the proposed rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific purpose of the proposed rulemaking is 

### to incorporate recentfederal transportation conformity revisions into the state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance, as discussed elsewhere in this preamble. Under FCAA, 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcementand enforceability in accordancewith the EPA's criteria and procedures for consultation, enforcement and enforceability. The commission's assessmentindicatesthatTexas Government Code, Chapter 2007 does not apply to this proposed rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt underTexas GovernmentCode, §2007.003(b)(4). For this reason, Texas Government Code, Chapter 2007 does not apply to this proposed rulemaking. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter 8, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC §505.11 (b)(2), concerning Actions and Rules Subjecttothe Coastal Management Program, commission rules governing air pollutant emissions must be consistentwith the applicable goals and policies ofthe CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and determined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). This rulemaking action complies with 40 CFR Part 51, concerning Requirementsfor Preparation, Adoption, and Submittal of Implementation Plans, and Title 40 generally. Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies. Thecommission solicits comment on the consistency ofthe proposed rulemaking with the CMP during the public comment period. ANNOUNCEMENT OF HEARING A public hearing on this proposal will be held in Austin on March 6, 2007, at 10:00a.m. atthe Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building B, Room 201A. The hearing will be structured forthe receipt of oral orwritten comments by interested persons. Individuals may presentoral statementswhen called upon in orderofregistration. There will be no open discussion during the hearing; however, an agency staffmemberwill be available to discussthe proposal 30 minutes prior to the hearing. Personswho have special communication orotheraccommodation needswho are planning to attend the**hearin~** should contactLola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in advance as possible. SUBMITTAL OF COMMENTS Written comments may be submitted to Lola Brown, 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.state.tx.us/rules/ecomments! All comments should reference Rule Project Number 2006-046-114-EN. The comment period closes March 12, 2007. Copies of the proposed rule can be obtained from the commission's Web site at http://www.tceq.state.tx.uslnav/ru/es/propose_adopt.htm/. For further information, please contact Marivel Rodriguez, Air Quality Division, (512) 239-2474. STATUTORY AUTHORITY The rule will be proposed underTWC, §5.1 03, which authorizes the commission to adoptrules necessaryto carry out its powers and duties underthe TWC; and §5.105, concerning General Policy; and underTHSC, TCAA, §382.017, concerning Rules, which authorizesthe commission to adopt rules consistentwith the policyand purposesofthe TCAA; §382.011, which providesforgeneral powers and duties underthe TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control ofthe state's air; §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of NAAQS. The rule will also be proposed underthe statutory requirementfortransportation conformity found in §176(c) ofthe 1990 FCAA Amendments. In addition, 40 CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whethertransportation plans, programs, and projects in nonattainment and maintenance areas conform with the SIP. The proposed revisions implement Texas Water Code, §5.103 and §5.1 03, and Texas Health and Safety Code, §§382.011, 382.012, and 382.208. 

### §114.260. Transportation Conformity. (a) Purpose. The purpose ofthis section is to implementcertain [tile] requirements set forth in 40 Code ofFederal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State orFederal ImplementationPlansofTransportationPlans, Programs, andProjects Developed, Funded, or Approved Under Title 23 United States Code (USC) orthe Federal Transit Laws), which are the regulations developedbytheUnitedStates EnvironmentalProtectionAgency (EPA) underthe FederalCleanAirActAmendmentsof1990, §176(c). This sectionaddresses the consultationprocessandthewrittencommitmentrequirements forcontrolmeasures and mitigationmeasuresthatareused 

### [H 

### ifle.llides peHey, 

### efi.teHa, aftfl procedures] to**~** demonstrate and assure conformity oftransportation planning activities with the state implementation plan (SIP). (b) Applicability. This section applies to transportation-related criteriapollutants for which an area is designated nonattainment or is subjectto a maintenanceplan. Thetransportation-related criteria pollutants are [ifleltlde] ozone, carbon monoxide, nitrogen dioxide, particleswith an aerodynamicdiameter often micrometers(PM,,) and smaller, and particles with an aerodynamic diameterless than or equal to a nominal2.5 micrometers (PM.J [;]This section also applies to [antl] the precursors ofozone, nitrogen dioxide, [aftfl] PM,, and PM,, as required in 40 CFR §93.I02. [(Feftile effletal list aftfl boundaries ef nonattainment areas, see**~** 

## m Part 8+ aOO peHffieHt Fetieffll Regi9leF 

### notiees-:1] (c) CFR incorporation. The written commitment requirements [transportation conformity rules,] as specified in 40 CFR §93.122(a)(4)(ii) and §93.125(c) [Part 9-3, &tbpart**A;~** 

### FR**~** tlatedAugtist#;-l-99-1tlfffi amended

### throt!gftffilyi-;-**~]** are adopted by reference [ witb tile exception· ef**~ ~**  requirements ef**~are** addressed HI subsection fd.) eftfti.s seetien]. (d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures mustbe undertaken in nonattainment and maintenance areas before making conformity determinations and before adopting applicable SIP revisions. (l) (No change.) (2) Roles andresponsibilities ofaffected agencies. (A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (!)(A) of this subsection in the development ofMetropolitan Transportation Plans (MTPs), Transportation Improvement Programs (TIPs), projects, technical analyses, travel demand or other modeling, and data collection. Specifically, the MPOs shall: (i) allow the commission's executive director [Air Quality Planffiflg aftfl**Implementation~** direeter,] or a designatedrepresentative,tobea votingmemberoftechnicalcommitteeson surfacetransportation and airquality in each nonattainment andmaintenance area in order to consult directly with the particular committee duringthe development ofthe transportation plans, programs, and projects; 

### (ii) send information on time and location, an agenda, and supporting materials (including preliminary versions ofMTPs and TIPs) for all regularly scheduled meetings on surface transportation or air quality to each ofthe contacts specified in paragraph (I)(B) ofthis subsection. This information must be provided in accordancewiththe locally adoptedpublicparticipation [involvement] process as required[!! [by]23 CFRPart 450 [§450.316(b)(l)]; (iii) afterpreparationoffinal draftversions ofMTPs andTIPs, andbefore adoption and approval bythe affected governing body, ensurethatthe contacts specified inparagraph(I)(B)ofthis subsection receive a copy, and that they are included in the local area's public participation process as required [!! [by tile MetropolitanPianftffigltlHe-;]23 CFRPart450[§450.316(b)(l)]. UponapprovalofMTPs andTIPs,MPOs shalldistributefinal approvedcopiesofthedocuments to the contacts specified in paragraph (I)(B) ofthis subsection; (iv) (No change.) (v) include in the TIP a list ofprojects exempted from the requirements ofa conformity determination under 40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (I)(A) ofthis subsection in determining if a project on the list has potentially adverse emissions for any reason, including whetherornot the exemptproject"will interfere with implementation ofan adopted transportation control measure (TCM). The MPO shall respond in writing to all comments within30 days onfinal MTP and TIP documents. In addition, ifno comments are received as part ofthe subsequent public participation [involvement] process for the TIP, the MPOmay proceedwith implementation ofthe exempt project; (vi) (No change.) [fffi;! as 

### rettllired by**~** 

## m**~** iffifl**~** aftfl HI cooperation witb**~** make a preliminary identification ef



## PROPOSEDRULES February 9, 2007 32 TexReg 503these prejeets !ooatee at

### sites iR PM,.oooottaffimell.t and maiHtenanee !lrellS tfiat 

## feEJttire tjl:Hlfltitati:ve PM,.ftet spet analyses. After these prejeets have been identified, the MPG 

### sOOll 5tlbmit a list ef these projeets and suffieient data 

## re the agencies specified iR paragraph 

### fl1W efthis subsectionfef review and comment;] 

## 6!JJl [Evtti1] beforeadoption ofany new or substantially differentmethods or assumptionsused in thehotspot orregional emissions analysis, provide an opportunity for the agencies specified in paragraph (I)(A) ofthis subsection to review and comment; 

## 6:iJil [Ei*.)] incoordinationwithTxDOTandthe localtransitagencies, discloseallknown,regionallysignificant, non-federal projects, even ifthe sponsor has not made a final decision on its implementation; include all disclosed, orotherwiseknown, regionally significant, non-federal projects in the regional emissions analysis for thenonattainmentarea; respondinwritingto anycommentsthatknown plans for a regionally significant, non-federal project have not been properly reflected in the regional emissions analysis; and have recipients offederal funds determine annually that their regionally significant, non-federal projects are included in a conforming MTP or TIP, or are included in a regional emissions analysis ofthe MTP and TIP. TheMPOshall consultwithprojectsponsorsto determinethenon-federal projects' location and design concept and scope to be used in the regional emissions analysis, particularly for projects that the sponsor does notreport a single intentbecausethesponsor'salternatives selectionprocessis notyetcomplete. IftheMPO assumes adesignconcept and scopethatis different from the sponsor'sultimatechoice,thenext regionalemissionsanalysisforaconformitydeterminationmustreflect themostrecentinformationregardingtheproject'sdesign conceptand scope; 

### fM [f*:)] ensure timely TCM implementation and report on the implementation and emissions reductions status of adopted TCMs annually to the commission; g)_ 

## [MJ cooperatively share the responsibility for conductingconformity determinations ontransportation activities that cross the borders ofMPOs or nonattainment and maintenance areas. The affected MPOs will enter into a Memorandum of Agreement (MOA) that will define the effective boundary and the respective responsibilities ofeach MPO for regional emissions· analysis. The MPOs will be responsible within their respective metropolitan area boundaries and, at their option, beyond to the boundaries of the nonattainment/maintenance areas, for regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas or basins will share information concerning air quality modeling assumptions and emissionrates that affect both areas; and 

### fuJ. [0ffij] for the purpose of determining the conformity ofall projects outside the metropolitan planning area, but within the nonattainment or maintenance area, enter into an MOA involving the MPO and TxDOTfor cooperativeplanningandanalysis ofprojects. (B) The commission, as the lead air quality planning agency, shall workin consultation with the agencies specified inparagraph( 1)(A)ofthis subsectionindevelopingapplicabletransportationrelated SIPrevisions, airqualitymodeling,general emissions analysis, emissions inventory, and all related activities. Specifically, the commission shall: (i)

- (iv) (No change.) (v) consultwiththe applicableagencies specifiedin paragraph (I)(A) ofthis subsection, in order to cooperatively choose conformity tests and methodologies for isolated rural nonattainment



## 32 TexReg 504 February 9, 2007 Texas Register and maintenance areas, as required by 40 CFR §93.102f.!.2Glfiill [§93.1 09(g)(2)(iiiJ]. (C) (No change.) (3) General procedures. (A) TheMPO, TxDOT, orthe commission, as applicable, shall respond to comments ofaffected agencies on MTPs, TIPs, projects, or SIP revisions in accordance with the public participation [involvemeat] procedures that govern the involved action. TheMPO, TxDOT, orthe commission, as applicable, shall include all comments and the replies to those commentswithfinal documentswhen theyare submitted for adoption by the agency's governingboard. In the event that comments are notadequatelyresolved, the procedures outlined in paragraph (4) ofthis subsection regarding conflictresolution apply. (B) (No change.) (C) For the purposes of evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot spot and regional emissions analyses, agencies specified in paragraph (I)(A) ofthis subsection shall participate in a working group [identified tiS the Teelmieal Wefking 

### Gretip fef MebHe 

### Swree Emissions]. The frequency of meetings and agendas for them will be cooperatively determined by the agencies specified in paragraph (I)(A) ofthis subsection. [:rfte

### funetien efthiswtH'Iftng groupmaybe delegated

## re an

### ClHs#ng groupwith

### similar composition**and~]** (D)- (E) (No change.) (4) (No change.) (5) Public comment on conformity determinations. Consistent with the requirements of23 CFR Part 450, concerning public participation [involvement], the agencies making conformity determinations on transportation plans, programs, and projects must establish a proactive public participation [involvement] process that provides opportunity for public review and comment.**[~** preeess mttSt; at a minimum, 

### provide reasoaable pOOlie aeeess

## re technical and peHey iafermation coasidered by the

### agency at the beginning 

### efthe pubJ.ie commentpefletl.andbefefetakingfefmal 

### aetien ORconformitydeterminations fer all M:rFs and

### +IPs, tiS

### required by

### 2JGFR §450.316(b) 

### aadthisseetiefr.] Anychargesimposedforpublicinspectionandcopying should be consistent with the fee schedule contained in 49 CFR §7.43**[~].** In addition, these agencies shall address in writingany public comment claiming that a non-FHWA!FTA funded, regionally significantprojecthas notbeenproperly representedin the conformity determination for an MTPor TIP. Finally, these agencies shall provide opportunity for public involvement in conformity determinations for projects where otherwiserequired by law. (6) (No change.) 

### {e.l Regionally significant, non-federal projects. For the pur-**~s** of40 CFR §93.121, adoption or approval ofa**regiona~** nificant, non-federal project (a regionally significantprojectthat does notrequire FHWA orFTA approval orfunding) occurs when affected agencies that are recipients offederal funds designated under23 USC orthe federal transit laws take one ofthe following actions: 

## ill boardapproval,action,orresolution**(such~val,** a'C 

### !iQ11 orresolution does notincludeMPO**~QIOval** for the**~~SJlf approvi~project**  in a currently conformingMTP or TIP); 

## GU issuance of administrative permits for the regionally**~ignificant** project; 

## ill action ofofficial authorizing the regionally significant project to proceed;

### ill providing grants or loans for the construction ofa regionally significant project; or 

### ill contractexecutionforthe regionally significantproject. 

## ill [fe1] Compliance date. Compliance with this section is required for transportation conformity determinations that begin the interagency consultation process after [begffis 6ft] the date ofEPA approval ofthe transportation conformity SIP associated with this rule. This agency hereby certifiesthatthe 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 January 26, 2007. TRD-200700212 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: March 11, 2007 For further information, please call: (512) 239-0348 

# • TITLE 37. PUBLIC S TIONS 

# • FETY AND CORREC
# PART 1. TEXAS D PARTMENT OF PUBLIC SAFETY CHAPTER 35. SUBCHAPTERC. 37 TAC §35.36 

## SECURITY DARDS

The Texas Department of Pu lie Safety proposes to amend §35.36, concerning Consumer I formation and Vehicle Signage. Amendmentofthe section is ne essary in orderto clarifythe rule by limiting thescope ofthe lice e number signage requirement to those vehicles on which the ompany name is displayed. Oscar Ybarra, Chief of Finane , has determined that for each year ofthe first five-year period the rule is in effect there will be no fiscal implications for state local governments. Mr. Ybarra also has determin d that for each year of the first five-year period the rule is in e ect the anticipated public benefit resulting from adoption of he section will be the clarification ofthis rule and the resultin display of license numbers on company vehicles will benefitt public by providing greaterassurance of licensure and by fa ilitating the filing of complaints. There is no adverse economic i pact anticipated for individuals, small businesses, or micro-bus nesses. The department has determine that Chapter 2007 ofthe Government Code does not apply o this rule. Accordingly, the department is not required to co plete a takings impact assessment regarding this rule. Written comments on the prop sal are requested and may be sent to Steve Moninger, RLS egal Staff, Department of Public Safety-Private Security Bur au, P.O. Box 4087, MSC-0246, Austin, Texas 78773-0246, (5 2) 424-5842, (fax: (512) 424- 7725). The amendment is proposed pur uant to Texas Government Code, §411.004(3), which authori es the Public Safety Commission to adopt rules conside ed necessary for carrying out the department's work; and Texas Occupations Code, §1702.061(b), which authorizes t department to adopt rules to administer this chapter. Texas Government Code, §411.0 (3) and Texas Occupations Code, §1702.061(b) are affected this proposal. 

### §35.36. ConsumerInformation and ehicle Signage. (a) A licensee shall, either or lly or in writing, notify all consumers or recipients ofservices ofth license number and the name, mailing address, and telephonenumb ofthe Private SecurityBureau for the purpose ofdirecting complain

. (b) Ifa licenseechoosestopr videthenoticerequiredby subsection (a) ofthis sectionin written fo , the notification shall contain theirlicensenumber, the name, maili address and telephonenumber ofthe Bureau, in a type-face ofthe sa e size as that which appears in the documentas a whole, butinno ca e less than 10 point size. (c) A licensed company mu t display conspicuously in the principal place of business and any ranch office, a sign containing the name, mailing address, and tel phone number of the bureau, and a statement informing consume s or recipients of services that complaints against licensees canbe d ected to thebureau.



### [ fe1 ¥effieles

### eperetetlby teeti6ft effieefs are**~** and purposes**are~]** This agency herebycertifiesthatt by legal counsel and found to bew ity to adopt. proposal has been reviewed hinthe agency's legal authorFiled with the Office of the Seer tary of State on January 26, 2007. TRD-200700225 Thomas A. Davis, Jr. Director Texas Departmentof Public Safety Earliest possible date ofadoption: M rch 11, 2007 For further information, please call: ( 12) 424-2135 

# • • SUBCHAPTERM. CO PANY RECORDS 37 TAC §35.204 The Texas Department of Publi Safety proposes to amend §35.204, concerning Pre-Empl yment Check. Amendment reformats the section in order to add new subsections (b) and (c). The new subsections are n cessary in order to clarify the scope of the rule's requiremen that an employer perform a pre-employment check on all ap licants for non-commissioned security guard positions, and t require that employers keep records ofthis check.



## PROPOSEDRULES February 9, 2007 32 TexReg505

# WRITTEN AND ORAL TESTIMONY

### Reference Number W-1 INDEX OF WRITTEN TESTIMONY

Submitted by Thomas H. Diggs, United States Environmental Protection Agency

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6



## Ms. LolaBrown Texas RegisterTeam Office ofLegal Services, MC 205 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733



## March 12, 2007

TexasCommission on Environmental Quality P.O. Box 13087 Austin, TX 78711-3087
Re: RuleProjectNumber2006-046-114-EN
DearMs. Brown:
We receivedfrom yourofficeon February7, 2007, apackagecontainingproposed revisions to the StateImplementationPlan (SIP) fortransportation confonnityrequirements. Theserevisions serveto incorporatechanges to the state'srule andplaninresponseto implementationoffederal legislation, notablythe 2005 Safe, Accountable,Flexible,Efficient, TransportationEquityAct- aLegacyforUsers (SAFETEA-LU), which significantly streamlined therequirements for stateconformitySIPs.
We appreciatethe opportunityto review this proposal, and are supportiveofthese revisions to theTexasconformitySIP andrule. Wedo, however, respectfully submitthe following commentsfor yourconsideration. 1) The appropriate statutoryreference for theimplementation ofconformityin Section 114.260(a) is 176(c)(4)(e)ofthe Clean AirAct, as amended (42 USC 7401 et seq). Also, the new languageto "helpdemonstrate conformity"is not appropriate; please delete the word "help." 2) Section 114.260(b)isnot necessary and shouldbedeleted. 3) Whilethe approach taken in Section 114.260(c) to incorporate the federal provisions found at40CFR 93.102(a)(4)(ii) and40CFR 93.125(c) byreference into the stateconformityrule is adequate, webelieve addedclaritycan be providedby customizing theseprovisions, as encouragedinEPA'sInterim

Racycled!Recyclable • Printed with Vegetable 011 Based Inks on 100% Recycled Paper(40"/o PoSiccnsumer)

## 2
Guidance for ImplementingtheTransportation ConfonnityProvisions in SAFETEA-LU (EPA420-B-06-901,February 2006) andEPA's ConformitySIP Guidance (EPA420-B-04-017, November2004). Such custornization could include identification oftheentityresponsible forobtaining written commitments for control measureimplementation (e.g., the local Metropolitan Planning Organization ortheFederal HighwayAdministration). 

## Ifyou have anyquestions regardingthis matter, pleasefeel free to contactme or PeggyWade ofmy staffat (214) 665-7247.

2 

## Sincerelyyours,

Thomas H. Diggs Chief AirPlanningSection

### INDEX OF ORAL TESTIMONY



### No oral testimonywas received pertaining to this proposal.

# EVALUATION OF

TESTIMONY

# Texas Commission on EnvironmentalQuality INTEROFFICEMEMORANDUM



## To: 

## Commissioners Date: 

## June 8, 2007 Thru: 

## LaDonna Castafiuela, Chief

## Clerk Glenn Shankle, Executive Director
From: 

## David C. Schanbacher, P.E., Chief

# Engineer~') ChiefEngineer's Office

Docket No.: 

## 2006-1864-RUL Subject: 

## Commission Approval for Rulemaking Adoption Chapter 114, Control ofAir Pollution from Motor Vehicles Transportation Conformity Rule and State Implementation Plan (SIP) Revision Rule Project No. 2006-046-114-EN
Reasons for the rule package:


## The adopted rule revision would incorporate recent federal transportation conformity revisions to federal law, rules, and guidance into the existing SIP and rule. The recent federal changes include the conformity revisions from the six-year surface transportation reauthorization act of 2005, known as the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In particular, SAFETEA-LU provisions substantially reduce the requirement for states to revise their rules and/or SIPs eachtimethereis a federal revision oftransportationconformityrules.
SAFETEA-LU revisions. 

## Prior to enactment of SAFETEA-LU, states were required to address almost all ofthefederal transportationconformityrule's provisions intheir conformity SIPs, andto update state SIPs within one year each time there was a federal rule revision. Under SAFETEALU, states are only required to address the following three sections ofthe federal transportation conformityrule in

## their stateconformity SIPs:
40 Code ofFederalRegulations (CFR) §93.105, consultationprocedures 40 CFR §93.122(a)(4)(ii), written commitments to control measures not included in transportationplans; and 40 CFR §93.125(c), written commitments to mitigationmeasures Additional federal revisions. 

## In addition to addressing the adopted SAFETEA-LU revisions, the rulernaking also incorporates previous federal transportation conformity revisions and guidancethat include:
Toll roads. 

## May 1999 EPA guidance recommended that states incorporate into their SIPs, throughthe interagency consultationprocess, when a regionally significant non-federal project is considered "adopted or approved" by a non-federal entity. The adopted revision clarifies when certain projects, liketoll roads, canmove forward during aconformitylapse. Particulate matter (PM) 

## PM2

### .s 

## precursors. 

## EPA published the Transportation Conformity Rule Amendments for the New PM2.s National Ambient Air Quality Standard: PM2

.5 

## Precursors; FinalRule (70 FR 24280) on May 6, 2005. This rule addedtransportation-related PM2.s precursors to the transportation conformity regulations and made a technical correction to a cross-reference of the U.S. Department of Transportation (U.S. DOT) planning regulations.

## Commissioners Page 2 June 8, 2007
Re: DocketNo. 2006-1864-RUL Hot-spot analysis. 

## EPA published the PM2.5 

## and PM 1

### o

## Hot-Spot Analysis in Project Level Transportation Conformity Determinations for the New PM2

### .s 

## and Existing PM 10 

## National Ambient Air Quality Standards; Final Rule (71 FR 12468) on March 10, 2006. This rule deletes aprevious consultationrequirement for quantitative PM 10 

## and PM2.5

## hot-spot analysis.
Underwhat authority are we adopting these changes? 

## The Texas Water Code (TWC), §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe TCAA; §382.011, which provides for general powers and duties' under the TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control ofthe state's air; and §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of National Ambient Air Quality Standards (NAAQS). The rules will also be adopted under the statutory requirement for transportation conformity found in §176(c) ofthe 1990 Federal Clean Air Act (FCAA) Amendments, 40 CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whether transportation plans, programs, and projects in nonattainment andmaintenance areas conformwith the SIP. Is this rulemaking required by federal rule or state statute? Which ones? 

## Although the federal conformityrule at 40 CFR Part 51 requires states to incorporate federal revisions into its conformity SIP and rule, these particular revisions are not required to be incorporated ifa state already has a federally approved conformity SIP. However, states with a federally approved conformity SIP, like Texas, must revise its SIP to include the revisions in order to take advantage ofthe flexibility and streamlining the revisions provide. The federal statute, SAFETEA-LU, amended the FCAA to add a requirement that states are only required to address the following three sections of the federal transportation conformityrule in their state conformity SIPs: 40 CFR §93.105, consultationprocedures 40 CFR §93.122(a)(4)(ii), written commitments to control measures not included m transportation plans 40 CFR §93.125(c),written commitments to mitigation measures
Are there any legal deadlines by which these rules must be adopted or effective? 

## Although the federal conformityrule requires states to incorporate federal revisions within oneyear ofpublication, these particular revisions are not required to be incorporated if a state already has a federally approved confonnity SIP. However, states with a federally approved conformity SIP, like Texas, must revise its SIP to include the revisions in order to take advantage of the flexibility and streamlining the revisions provide.
What issue(s) or problem(s) are we trying to solve? 

## The adopted revision will substantially reducethe requirement for state regulatoryrevisions each time there is a federal revision. Why is it important that we do this rule package? In 

## addition to adopting the SAFETEA-LU revisions, this rulemaking also reflects changes in the federal transportation conformity rule and otherfederal transportation conformity-relatedrules and guidance that include:
•ToiJ roads. 

## May 1999 Environmental Protection Agency (EPA) guidance asks states to incorporate into SIPs, through the interagency consultation process, when a regionally significant non-federal

## Commissioners Page 3 June 8, 2007
Re Docket No. 2006-1864-RUL •Toll roads. May 1999 Environmental Protection Agency (EPA) guidance asks states to incorporate into SIPs, through the interagency consultation process, when a regionally significant non-federal project is considered "adopted or approved" by a non-federal entity. This adoption clarifies when certain projects, like toll roads, can move forward during a conformity lapse.
•PM2.5 

## (particulate matter) precursors. EPA published the Transportation Conformity Rule Amendments for the New PM2

## .s National Ambient Air Quality Standard: PMz.s Precursors; Final Rule (70 FR24280) on May 6, 2005. This rule added transportation-related PM2.5 

## precursors to the transportation conformityregulations and made atechnical correctionto a cross-reference ofthe U.S. DOTplanning regulations. •Hot-spot analysis. EPA published the PM2

## s and 

## PMw Hot-Spot Analysis 

## in Project Level Transportation Conformity Determinations for the New PMz.s and Existing 

## PMw National Ambient Air Quality Standards; Final Rule (71 FR 12468) on March 10, 2006. This rule deletes a previous consultation requirement for quantitative

## PMw and PMz.s hot-spot analysis.
Otherimportant background orhistorical information. None. Scope ofthe rulemaking:
The adopted rulemaking will make the following revlSlons to the state transportation conformity rule, §114.260, and SIP narrative. Adopt by reference 40 CFR §93.122(a)(4)(ii) and 40 CFR §93.125(c) and continue to include the state's consultation requirements in the state conformity rule. (The state's consultation provisions were adapted from 40 CFR §93.105, Interagency Consultation Procedures.) Add a new subsection that will address when a regionally significant non-federal project is considered "adopted or approved"by anon-federal entity. Ensurethat PM2
.5

## precursors are addressed inthe transportation conformityprocess. Make a correction to a cross-referenceto U.S. DOTregulations contained in the state's consultation requirements. Delete the quantitative 

## PMw and PMz.s hot-spot analysis requirement contained in the state's consultation requirements. Make administrative changes, edits, andcorrectionsto the existingrule, ifnecessary. Changes required by federal rule: None ofthechanges in the rulemaking are required by federal rule or statute. However, a state with a federally approved conformity SIP must revise its SIP to include the revisions in ordertotake advantage ofthe flexibility and streamliningthe revisions provide. Changes required by state statute: None.
Staffrecommendations that are not expressly required by federal rule or state statute: None. Impact on the regulated community:
Who will 

## be affected? A revision that specifies when non-federally funded projects (for example, a toll road) may advance during a conformity lapse would provide regional transportation planners increased certainty.

## Commissioners Page4 June 8, 2007
Re: Docket No. 2006-1864-RUL
Does it create a group ofaffected persons who were not affected previously? How? No.
Will there be a fiscal impact? Ifso, estimate. No. Impact onthe public:
Who will be affected? None.
Does it create a group ofaffected persons who were not affected previously? How? No.
Will there be a fiscal impact? Ifso, estimate. No. Impact on agency programs: Fewer staterule and SJPrevisions would beneeded.
Stakeholder meetings:
Have any stakeholdermeetings been held? A teleconference was held to seek feedback from the interagency consultation partners that are identified 

## in the state's conformity rule and the state's Technical Work Group.
With whom? Agency staff, the Technical Work Group, and interagency consultation partners. V\'hat were the general sentiments? Agreement with proposed rule changes.
Were any changes made in response to stakeholder concerns? No. Policy issues:
What policy issues are affected? None.
Are any policies thatare not currentlybased onrule being made into arule? No.
What arethe consequences ifthis rulemaking is not approved to go forward? Notrevising the rule now would mean the state rule incorporates by reference more sections of the federal transportation conformity rule. than is required. If

## and when EPA revises those sections, the state would have to incorporate those revisions by way of a SIP and rule revision within one year of publication ofthe federal rule.
Are there alternatives? The commission could choose to not adopt the revisions. However, a state with a federally approved conformity SIP must revise its SIP to include·the revisions in order to take advantage ofthe flexibility and streamlining the revisions provide. Potentially controversial matters: None.

## Commissioners Page 5 June 8, 2007
Re: Docket No. 2006-1864-RUL Key points in 

## adoption rulemaking schedule:


## Texas Registerproposal publication date: February 9, 2007 Anticipated effective date: July 19, 2007 Six-month 

## Texas Registerfiling date: August 9, 2007
Public comment: The public hearing for the rulemaking was held on March 5, 2007, 10:00 a.m., Texas Commission on Environmental Quality, Building B, Room 201A, 12100 Park 35 Circle, Austin.
The EPA submitted written comment in general support ofthe rule with suggested changes to the proposal as explained in the next section. Significant changes from proposal: Changes have been made to §114.260(a) in response to comments made by the EPA. Statutory reference for the implementation of conformity has been changed from §176(c) to §176(c)(4)(e) to offer a more specific reference to the FCAA. Additionally, the EPA noted that the word "help" in §114.260(a) is not necessary; therefore, ithas beenremoved. Agency contacts: Marivel Rodriguez, Rule Project Manager, 239-2474, Air Quality Division Terry Salem, StaffAttorney, 239-0469 Lisa Martin, Texas Register Coordinator, 239-1966
Attachments

cc: ChiefClerk, 5 copies Executive Director's Office Jason Skaggs Ashley K. 

## Wadick David C. Schanbacher, P.E. Office ofGeneral Counsel Susana M. Hildebrand, P.E. Marivel Rodriguez Lisa Martin

cc: (without attachments): Terry Salem, StaffAttorney Kerry Howard, Program Office Liaison Joyce Spencer, Division Liaison Theresa Pella, AQP Section Manager Margie McAllister, Team Leader Brian Roe, AQP Section Booker Harrison, OLS Liaison Russ Kimble, OLS

### EVALUATION OF TESTIMOI\IY

The Texas Commission on Environmental Quality (commission) adopts an amendment
to §114.260 and corresponding revisions to the Transportation Conformity State Implementation Plan (SIP). Section 114.260 is adopted 

## with changesto the proposed
text as published in the February 9, 2007, issue ofthe 

## Texas Register(32 TexReg 499).

The adopted revisions will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THEADOPTED RULES The Federal Clean AirAct (FCAA) Amendments of 1990 as codified in 42 United States Code (USC), §§7401 

## etseq. required each state to submit a revision to its SIP by November 25, 1994, establishing enforceable criteria and procedures for making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects funded by the Federal Highway Administration (FHWA) orthe Federal Transit Administration (FTA). Final rules regarding conformity requirements were published by EPA on November 24, 1993. The Texas SIP revision that incorporated conformity requirements was adopted October 19, 1994, and approved by EPA November 8, 1995. EPA has amended the federal transportation conformity rule eight times: August 7, 1995; November 14, 1995; August 15, 1997; April 10, 2000; August 6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The commission previously incorporated the federal changes up to, and including, the 2004 amendments. The commission is now updating its SIP and rule to incorporate the May

### 6, 2005, and March 10, 2006, federal amendments. In addition to the 2005 and 2006 federal amendments, changes to the transportation conformity federal rule were enacted with passage ofthe Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which was signed into lawAugust 10, 2005. Furthermore, EPA issued guidance in May 1999·, that a state should include in its SIP when a regionally significant, non-federal project is considered adoptedor approvedby a non-federal entity. The addition ofthese changes to the existing state rules would align the state rule with the current federal requirements and would address when a non-federal, regionally significant project is considered adoptedor approvedby a non-federal entity. Lastly, this adopted rulemaking makes administrative and grammatical changes and corrections to the existing rule language.

Transportation conformity is required under FCAA, §176(c) to ensure that federally supported highway and transit project activities are consistent with the purpose ofthe state's SIP. Conformity applies to areas designated nonattainment and those redesignated to attainment after 1990with a maintenance plan developed underthe FCAA. Conformity to the purpose ofthe SIP means that transportation activities would
not cause new air quality violations, worsen existing violations, or delaytimely attainment ofthe relevant National Ambient Air Quality Standards (NAAQS). EPA's transportation conformity rule establishes the criteria and procedures for determining whethertransportation activities conform to the SIP.

EPA amended the transportation conformity rule on May 6, 2005. The Transportation ConformityRule Amendments forthe NewPM 25 

### NAAQS: PMz.s Precursors (70 FR 24280) specifies the transportation-related PM25 

### precursors and when they apply in transportation conformity determinations in PM2

### .s 

### (particulate matter) nonattainment

2

### and maintenance areas. The adoption would incorporate PM2 5precursors in the state rule and make atechnical correction to a United States Department ofTransportation (U.S. DOT) planning regulation cross-reference. EPA's 2005 revisions were codified in 40 Code of Federal Regulations (CFR) Part 93. Sections revised were §§93.102, 93.105, and 93.119.

EPA also amended the transportation conformity rule on March 10, 2006: the PM2.5 and PM10 

### Hot-SpotAnalysis in Project Level Transportation Conformity Determinations forthe NewPM 2

.5 

### and Existing PM10 

### NationalAmbientAirQualityStandards Final Rule 

### (71 FR 12468). The adoption would delete the current quantitative PM10 and PM2.5 hotspot analysis requirement from the state's conformity consultation requirements. The federal amendments were codified in 40 CFR Part 93. Sections revised were §§93.101, 93.105, 93.109, 93.116, 93.123, 93.125, 93.126, and 93.127.

The transportation conformity provisions in the SAFETEA-LU streamlined the requirements for state conformity SIPs. Priorto enactment of SAFETEA-LU, states

were required to address all ofthe federal conformity rule's provisions in their conformity SIPs. Most ofthe sections ofthe federal rule were required to be copied verbatim from the federal rule into a state's SIP, as previously required under 40 CFR §51.390(d). Now, under SAFETEA-LU, states are required to address and tailor only the following three sections ofthe conformity rule in their conformity SIPs: 1.) 40 CFR §93.105, which addresses consultation procedures; 2.) 40 CFR §93.122(a)(4)(ii), which requires that written commitments to control measures that are not included in a Metropolitan Planning Organization's transportation plans must be obtained priorto a conformity determination and that such commitments must be fulfilled; and 3.) 40 CFR §93.125(c), which requires that written commitments to mitigation measures must be

3

### obtained priorto a project-level conformity determination and that project sponsors must comply with such commitments. In May 1999, EPA issued guidance titled Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision addressing which projects could move forward during a conformity lapse. EPA recommended that states decide through the interagency consultation process when a regionally significant, non-federal project is considered adoptedorapprovedby a non-federal entity that routinely receives funds from the FHWA or FTA. The interagency consultation group forTexas, the Technical Work Group (TWG), has agreed on language that is included in this adopted rulemaking. The commission adopts administrative and grammatical changes and corrections to the existing rule language in orderto be consistent with current agency style and format. The commission also adopts the renumbering ofcertain parts of §114.260 to make adjustments forthe adopted deletions and additions throughout the rule.

SECTION BY SECTION DISCUSSION §114.260. Transportation Conformity. The adopted change to §114.260(a) modifies the phrase in the requirements and replaces it with certain requirements. The last sentence in this subsection, Itincludes policy, criteria, andprocedures to demonstrate andassure conformityoftransportation planning activities with the state implementation plan (SIP) is replaced with, This section addresses the consultationprocess and the written commitmentrequirements forcontrolmeasures andmitigation measures that are used to demonstrate andassure conformityoftransportation planning activities to the state implementation plan (SIP) to

more clearly describe the transportation conformity streamlining provisions in SAFETEA-LU.

4

## Additionally, §114.260(a) is adopted with changes to the proposed text. The statutory reference forthe implementation of conformity in section §114.260(a) has been changed from §176(c) to §176(c)(4)(e) to more specifically reflect the location in the FCAA.

The adopted change to §114.260(b) adds the term criteria 

## in the first sentence to change the phrase transportation-relatedpollutants

## to transportation-related criteria pollutants. 

## This change clarifies that the applicable pollutants are criteria pollutants. The second sentence adds transportation-relatedcriteria 

## to form the phrase transportation-related criteria pollutants. 

## The word include 

## is replaced with are 

## and the
precursor pollutants are listed in a separate sentence, which is then amended by adding PM2.5 

## as a precursor and referring to 40 CFR §93.102. The addition of PM2.5 

## to the sentence reflects the substantive change in EPA's May 6, 2005, final rule, the Transportation Conformity Rule Amendments forthe New

## PM2.5 

### NationalAmbientAir QualityStandard: 

## PM2
.5 

### Precursors 

## (70 FR 24280). The purpose of referring to 40 CFR §93.1 02 is to indicate the applicable precursors to be analyzed depending on the characteristics ofthe nonattainment area. Finally, the last sentence is deleted because its reference to nonattainment area boundaries is not needed in the rule language.

The adopted change to §114.260(c) deletes the reference to 40 CFR Part 93, Subpart A, (62 FR 43780), and adds the replacement reference 40 CFR §93.122(a)(4)(ii) and
40 CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, §7506(c)(4)(E) directs that only these two sections plus CFR §93.105 need to be in the state conformity rule. The addition ofthese three sections streamlines the requirements for
state conformity SIPs.

5

### The adopted change revises §114.260(d)(2)(A)(i) by deleting the rule language Air QualityPlanning andImplementation Division and replacing it with executive director. The adoption revises §114.260(d)(2)(A)(ii) by deleting the word involvementand replacing it with patticipation and changes the 23 CFR reference §450.316(b)(1) to Patt
450. The adoption revises §114.260(d)(2)(A)(iii) by deleting bythe Metropolitan Planning Rule and changing the 23 CFR reference §450.316(b)(1) to Part 450. The adoption revises §114.260(d)(2)(A)(v) by deleting the word involvementand replacing it with participation, and deleting §114.260(d)(2)(A)(vii). The adoption revises §114.260(d)(2)(B)(v) by correcting the reference to 40 CFR §93.109(g)(2)(iii) with a reference to 40 CFR §93.109(1)(2)(iii). The adoption revises §114.260(d)(3)(A) by deleting the word involvementand replacing it with participation. The adoption revises §114.260(d)(3)(C) by deleting the words identifiedas the Technical Working Group for
Mobile Emissions and deleting the last sentence, The function ofthis working group maybe delegated to an existinggroup with similarcomposition andpurpose. The adoption revises §114.260(d)(5) by deleting the word involvementand replacing it with participation and renumbering the CFR reference forthe fee schedule for public inspection and copying. These adopted revisions align the state rule with the federal rule; allow the executive directorto delegate authority to staffwithout explicitly naming the design_ee; provide flexibility to the Technical Work Group; and bring existing rule language into agreement with Texas Register requirements, agency format guidelines, and guidance provided in the Texas Legislative Council Drafting Manual, August2006.

The adopted change to §114.260(e) addresses when a regionally significant, nonfederal project is considered adoptedor approvedby a non-federal agency. This section was added to clarify the approval and adoption process of a non-federal,

6

### regionally significant project. In the event of a transportation conformity lapse, the provision may allow certain project phases to continue.

The adopted change to §114.260(f) deletes the words 

## begins on and replaces them with 

## fortransportation conformitydeterminations thatbegin the interagency consultation process after. The purpose of this change is to make clearthat compliance with this rule revision applies at the beginning ofthe interagency consultation process.

The adopted revision makes administrative and grammatical changes and corrections
to the existing rule language in orderto be consistent with current agency style and format guidelines. The adoption also renumbers certain parts of §114.260 to make adjustments for the adopted deletions and additions throughout the rule.

FINAL REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewed the adopted rulemaking considering the regulatory impact analysis requirements ofthe Texas Government Code, §2001.0225, and determined that the adopted rulemaking meets the definition of a 

## majorenvironmentalrule as defined in that statute. A 

## majorenvironmentalrule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental
exposure, and that may adversely affect in a material way the economy, a sector ofthe
economy, productivity, competition, jobs, the environment, or the public health and safety ofthe state or a sector ofthe state. The adopted rulemaking meets the definition ofa 

## majorenvironmentalrule because the transportation conformity requirements are specifically intended to protect the environment and/or reduce risks to human health, and may have material affects on the economy, a sector of the

7

### economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. Federal transportation conformity requirements subject all nonattainment and maintenance areas to demonstrate conformity with specific emissions budgets, or be subject to loss of highway or other transportation funding. The adopted change to §114.260 will incorporate recent federal transportation conformity revisions into the state's SIP, including those from the surface transportation reauthorization act of2005, SAFETEA-LU. Transportation conformity is

an FCAA requirement ensuring thatfederally supported highway and transit projects conform to each state's SIP. Additionally, the adopted change to §114.260 will reflect existing language in the federal transportation conformity rule and otherfederal transportation conformity-related rules and guidance.

The adopted rulemaking does not, however, meet any ofthe four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies onlyto a major environmental rule, the result ofwhich is to: 1)
exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement ofstate law, unless the rule is specifically required by federal law; 3) exceed a requirement ofa delegation agreement or contract between the state and an agency or representative ofthe federal governmentto implement a state and federal program; or4) adopt a rule solely underthe general
powers ofthe agency instead of under a specific state law.

The adopted rulemaking implements requirements ofthe FCAA and SAFETEA-LU. Under42 USC, §7506, each SIP must contain criteria and proceduresfor consultation,

8

## and enforcement and enforceability in accordance with the EPA's criteria and procedures for consultation, enforcement, and enforceability.

The requirement to provide afiscal analysis ofadopted regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis ofextraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely underthe general powers ofthe agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded basedon an assessment ofrules adoptedby the agencyin the past, it is not anticipated that the bill

# wm have significant fiscal implications forthe agencydue
to its limitedapplication. 

## The commission also noted that the number of rules that would require assessment underthe provisions ofthe bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted adopted rules from the full analysis unless the rule was a major environmental rule that exceeds

a federal law.

The FCAA does not always require specific programs, methods, or reductions in order
to meet the goals ofthe FCAA; thus, states must develop programs and strategies to help ensure that those goals are met. However, in this instance, the FCAA is clear in requiring that states comply with EPA's criteria and procedures for consultation, enforcement, and enforceability. EPA's transportation conformity rule and SAFETEALU provide specific requirements and limited flexibility that must be met by states. Because ofthe ongoing need to address the requirements of42 USC, §§7401, etseq.,

9

### the commission routinely proposes and adopts SIP rules. As discussed elsewhere in this preamble, states are required to incorporate requirements for transportation conformity in compliance with EPA's transportation conformity rule and SAFETEA-LU. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts ofthe bills 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 adopted rule may have a broad impact, that impact is no greaterthan is
necessary or appropriate to meet the requirements ofthe FCAA. Forthese reasons, rules adopted for inclusion in the SIP fall underthe exception in Texas Government Code, §2001.0225(a), because they are required by federal law.

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

was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that when an agencyinterpretation is in effectat the time the legislature amends the 

## laws withoutmaking substantialchange in the statute, the legislature 

## is deemed to have acceptedthe agency's interpretation. Central Power

## & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with percuriam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon OilCo., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil

## & Refining Co. v. Calvert,

10

### 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 

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

The commission's interpretation ofthe 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 ofthe APA against the standard of 

## substantialcompliance. The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

The specific intent ofthe adopted rulemaking is to incorporate recent federal transportation conformity revisions into the state's SIP, including those from SAFETEALU, in addition to reflecting already existing changes in the federal transportation conformity rule and otherfederal transportation conformity-related rules and guidance. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement ofstate law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely under the general powers ofthe agency, but is authorized by specific sections ofTexas Health and Safety Code (THSC), Chapter 382 (also known as the Texas Clean AirAct (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section ofthis preamble, including THSC, §§382.012, 382.017, and

11

### 382.208. Therefore, this rulemaking action is not subject to the regulatory analysis provisions ofTexas Government Code, §2001.0225(b), because although the adopted rulemaking meets the definition ofa majorenvironmentalrule, 

### it does not meet any of the four applicability requirements.

The commission solicited comments on the Regulatory ImpactAnalysis Determination during the public comment period, but did not receive any comments during the public
comment period.

TAKINGS IMPACTASSESSMENT The commission evaluated the adopted rulemaking and performed an assessment of whetherTexas Government Code, Chapter2007 is applicable. The specific purpose of the adopted rulemaking is to incorporate recent federal transportation conformity revisions into the state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in the federal transportation conformity rule and otherfederal transportation conformity-related rules and guidance, as discussed elsewhere in this preamble. Under FCAA, 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcement and enforceability in accordance with the EPA's criteria and procedures for consultation, enforcement and enforceability.

The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, as explained elsewhere in this preamble, which is exempt underTexas Government Code, §2007.003(b)(4). Forthis

12

### reason, Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking. CONSISTENCYWITH THE COASTAL MANAGEI'v1EI\JT PROGRAM The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 etseq.), 

### and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC §505.11 (b)(2), concerning Actions and Rules Subjectto the Coastal Management Program, commission rules governing air pollutant emissions
must be consistent with the applicable goals and policies ofthe CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules ofthe Coastal Coordination Council, and determined that the action is consistentwith the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values ofcoastal natural resource areas (31 TAC §501.12(1)). This rulemaking action complies with 40 CFR Part 51, concerning Requirements for Preparation, Adoption, and Submittal of Implementation Plans, and Title 40 generally. Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.

The commission solicited comment on the consistency ofthe adopted rulemaking with the CMP during the public comment period, but received no comments on this issue.

13

### PUBLIC COMI\IIENT The public hearing for this rulemaking was held on March 5, 2007, 10:00 a.m., Texas Commission on Environmental Quality, Building B, 

### Room 201A, 12100 Park 35 

### Circle, Austin.

The EPA submitted written comment in general support ofthe rule with suggested changes to the proposal.

RESPONSE TO COMMENTS Statutory Reference The EPA commented thatthe appropriate statutory reference for the implementation of conformity in §114.260(a) is §176(c)(4)(e) ofthe FCAA. The EPA also commented that the new language to "help demonstrate conformity" is not appropriate and recommended removing the word "help."



## The commission appreciates the commentand has included the more specific reference to §176(c)(4)(e), instead ofthe more broad reference to §176(c) ofthe FCAA. 

## The commission also agrees thatthe word "help" is not necessary and has removed it.

Applicability Section The EPA commented that §114.260(b) is not necessary and should be deleted.



## The commission agrees thatthe section is not necessary, but has decided to leave the section in the rule as additional information to help the public understand the conformity process.

14

### CFR Incorporation 

## The EPA commented that the approach taken in §114.260(c) to incorporate the federal provisions found at 40 CFR §93.102(a)(4)(ii) and §93.125(c) is adequate, but commented that added clarity can be provided by customizing these provisions.

The commission agrees and will workwith interagency consultation partners to develop customized language to include during a future SIP and rule revision.

15

# STAFF RECOMMENDATIONS

## SUBCHAPTER G: TRANSPORTATION PLANNING §114.260



### STATUTORY AUTHORITY The rule is adopted underTWC, §5.1 03, which authorizes the commission to adopt rules
necessary to carry out its powers and duties underthe TWC; and §5.105, concerning General Policy; and underTHSC, TCAA, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes ofthe TCAA; §382.011, which provides for general powers and duties underthe TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan forthe proper control ofthe state's air; and §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of NAAQS. The rule is also adopted underthe statutory requirement fortransportation conformityfound in §176(c) ofthe 1990 FCAA Amendments, 40 CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whether transportation plans, programs, and projects in nonattainment and maintenance areas conform with the SIP.

The adopted revisions implement Texas Water Code, §5.1 03 and §5.1 03, and Texas Health and Safety Code, §§382.011, 382.012, and 382.208.

§114.260. Transportation Conformity.



### (a) Purpose. The purpose ofthis section is to implement certain requirements set forth in 40 Code of Federal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State or 1

### Federal Implementation Plans ofTransportation Plans, Programs, and Projects Developed, Funded, or Approved UnderTitle 23 United States Code (USC) orthe Federal Transit Laws), which are the regulations developed by the United States Environmental Protection Agency (EPA) underthe Federal Clean Air Act Amendments of 1990, §176(c)(4)(e). This section addresses the consultation process and the written commitment requirements for control

measures and mitigation measures that are used to demonstrate and assure conformity of transportation planning activities with the state implementation plan (SIP).

(b) Applicability. This section applies to transportation-related criteria pollutants for which

an area is designated nonattainment or is subjectto a maintenance plan. The transportationrelated criteria pollutants are ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic diameter often micrometers (PM 10 ) 

### and smaller, and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2s). This section also applies to the precursors of ozone, nitrogen dioxide, PM 10, 

### and PM2

.5 

### as required in 40 CFR §93.102.

(c) CFR incorporation. The written commitment requirements as specified in 40 CFR §93.122(a)(4)(ii) and §93.125(c) are adopted by reference.

(d) Consultation. Under40 CFR §93.1 05, regarding consultation, the following procedures must be undertaken in nonattainment and maintenance areas before making conformity determinations and before adopting applicable SIP revisions.

(1) General factors.

2

### (A) For the purposes ofthis subsection, concerning consultation, the
affected agencies include:

(i) EPA;

(ii) Federal HighwayAdministration (FHWA);

(iii) Federal Transit Administration (FTA);

(iv) Texas Department ofTransportation (TxDOT);

(v) metropolitan planning organizations (MPOs) in nonattainment

or maintenance areas; (vi) local publicly owned transit services in nonattainment or maintenance areas (the designated recipient of FTA §5307 funds);

(vii) Texas Commission on Environmental Quality (commission);

(viii) local air quality agencies in nonattainment or maintenance

areas (recipients of42 USC, §7405 funds).

(B) All correspondence with the affected agencies in subparagraph (A) of
this paragraph must be addressed to the following designated points ofcontact:

3

### (i) I\IIPO: executive director or designee;

(ii) commission: executive director or designee;

(iii) TxDOT: director ofTransportation Planning and Programming

ordesignee;

(iv) TxDOT: director of Environmental Affairs Division or designee;

(v) FHWA: administrator ofTexas Division ordesignee;

(vi) FTA: director of Office of Program Development or designeeFTA Region 6;

(vii) EPA: regional administrator or designee- EPA Region 6;

(viii) TxDOT District: district engineer ordesignee;

(ix) local publicly owned transit services (the designated recipient
of FTA §5307 funds): general manager or designee;

(x) local air quality agencies (recipients of42 USC, §7405 funds):
director ordesignee; and



### 4

### (xi) commission regions in nonattainment or maintenance areas: regional director or designee.

(2) Roles and responsibilities of affected agencies.

(A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (1)(A) ofthis subsection in the development of Metropolitan Transportation Plans (MTPs), Transportation Improvement Programs (TIPs), projects, technical analyses, travel demand or other modeling, and data collection. Specifically, the MPOs shall: (i) allow the commission's executive directoror a designated representative, to be a voting member oftechnical committees on surface transportation and air quality in each nonattainment and maintenance area in order to consult directly with the particular committee during the development ofthe transportation plans, programs, and projects;

(ii) send information on time and location, an agenda, and supporting materials (including preliminary versions of MTPs and TIPs) for all regularly scheduled meetings on surface transportation or air quality to each ofthe contacts specified in paragraph (1)(B) ofthis subsection. This information must be provided in accordance with the locally adopted public participation process as required in 23 CFR Part 450;

5

### (iii) after preparation offinal draft versions of MTPs and TIPs, and before adoption and approval by the affected governing body, ensure that the contacts specified
in paragraph (1 )(B) of this subsection receive a copy, and that they are included in the local area's public participation process as required in 23 CFR Part 450. Upon approval of MTPs and TIPs, MPOs shall distribute final approved copies ofthe documents to the contacts specified in paragraph (1)(B) of this subsection;

(iv) forthe purposes of regional emissions analysis, initiate a consultation process with the affected agencies specified in paragraph (1)(A) ofthis subsection during the development stage of new or revised MTPs and TIPs to determine which transportation projects should be considered regionally significant and which projects should be considered to have a significant change in design concept and scopefrom the effective MTP and TIP. Regionally significant projects will include, at a minimum, all facilities classified as principal arterial or higher, orfixed guideway systems or extensions that offer an alternative to regional highway travel. Also, these include minor arterials included in the travel demand modeling process that serve sjgnificant interregional .and intraregional travel, and connect rural population centers not already served by a principal arterial, or connect with intermodal transportation terminals not already served by a principal arterial. A significant change in design concept and scope is defined as a revision of a project in the MTP or TIP that would significantly affect model speeds, vehicle miles traveled, or network connections. In addition to new facilities, examples include changes in the number ofthrough lanes or length of project (more than one mile), access control, addition of major intermodal terminal facilities (such as new international bridges, park-and-ride lots, and transfer terminals), addition/deletion of interchanges, or changing between free and toll facilities. When a significant change in the design and scope ofa

6

### project is proposed, the MPO shall documentthe rationale for the change and give the affected agencies specified in paragraph (1)(A) ofthis subsection a 30-day opportunity to comment on the rationale. The MPO shall considerthe views ofeach agency that comments, and respond in writing before anyfinal action on these issues. Ifthe MPO receives no comments within 30 days, the MPO may assume concurrence by the agencies specified in paragraph (1)(A) ofthis subsection;

(v) include in the TlP a list of projects exempted from the requirements ofa conformity determination under40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (1)(A) ofthis subsection in determining ifa project on the list has potentially adverse emissions for any reason, including whether or not the exempt project will interfere with implementation of an adopted transportation control

measure (TCM). The MPO shall respond in writing to all comments within 30 days on final MTP and TlP documents. In addition, if no comments are received as part ofthe subsequent public participation process forthe TIP, the MPO may proceed with implementation ofthe exempt project;

(vi) notify the affected agencies specified in paragraph ( 1 )(A) of this subsection in writing of any MTP orTIP revisions or amendments that add or delete the exempt projects identified in 40 CFR §93.126;

7

### (vii) before adoption ofany new orsubstantially different methods

or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified in paragraph (1)(A) ofthis subsection to review and comment;

(viii) in coordination with TxDOT and the local transit agencies, disclose all known, regionally significant, non-federal projects, even ifthe sponsor has not made

a final decision on its implementation; include all disclosed, or otherwise known, regionally significant, non-federal projects in the regional emissions analysis forthe nonattainment area; respond in writing to any comments that known plans for a regionally significant, non-federal project have not been properly reflected in the regional emissions analysis; and have recipients offederal funds determine annually thattheir regionally significant, non-federal projects are included in a conforming MTP or TIP, orare included in a regional emissions analysis ofthe
MTP and TIP. The MPO shall consult with project sponsors to determine the non-federal projects' location and design concept and scope to be used in the regional emissions analysis, particularly for projects thatthe sponsor does not report a single intent because the sponsor's
alternatives selection process is not yet complete. Ifthe MPO assumes a design concept and
scopethat is differentfrom the sponsor's ultimate choice, the next regional emissions analysis for a conformity determination must reflect the most recent information regarding the project's design concept and scope;

(ix) ensure timely TCM implementation and report on the implementation and emissions reductions status of adopted TCMs annually to the commission;

8

### (x) cooperatively share the responsibility for conducting conformity determinations on transportation activities that cross the borders of MPOs or nonattainment and maintenance areas. The affected MPOs will enter into a Memorandum ofAgreement (MOA) that will define the effective boundary and the respective responsibilities of each MPO for regional emissions analysis. The MPOs will be responsible within their respective metropolitan area boundaries and, at their option, beyond to the boundaries ofthe nonattainment/maintenance
areas, for regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas or basins will share information concerning air quality modeling assumptions and emission rates that affect both areas; and

(xi) forthe purpose of determining the conformity of all projects outside the metropolitan planning area, but within the nonattainment or maintenance area, enter into an MOA involving the MPO and TxDOTfor cooperative planning and analysis of projects.

(B) The commission, as the lead airquality planning agency, shall work in consultation with the agencies specified in paragraph (1)(A) ofthis subsection in developing applicable transportation-related SIP revisions, air quality modeling, general emissions analysis, emissions inventory, and all related activities. Specifically, the commission shall:

(i) set agendas and schedule meetings to seek advice and
comments from all agencies specified in paragraph (1)(A) ofthis subsection during preparation ofapplicable transportation-related SIP revisions;

9

### (ii) schedule public hearings in orderto gather public input on the applicable transportation-related SIP revisions in accordance with 40 CFR §51.102 and notify the agencies specified in paragraph (1 )(B) ofthis subsection ofthe hearings;

(iii) provide copies offinal documents, including applicable
' 

### adopted or approved transportation-related SIP revisions and supporting information, to all agencies specified in paragraph (1)(B) ofthis subsection;

(iv) after consultation with the MPO regarding TCMs, distribute to all agencies specified in paragraph ( 1 )(B) ofthis subsection and other interested persons the list ofTCMs proposed for inclusion in the SIP. In consultation with the agencies specified in paragraph {1)(A) ofthis subsection, the commission shall determine whether past obstacles to implementation ofTCMs have been identified and are being overcome, and determine whether the MPOs and the implementing agencies are giving maximum priority to approval orfunding for TCMs. Also, the commission shall consider, in consultation with the affected agencies, whether delays in TCM implementation necessitate a SIP revision to remove TCMs orto substitute TCMs or other emission reduction measures; and

(v) consult with the applicable agencies specified in paragraph (1 )(A) ofthis subsection, in orderto cooperatively choose conformity tests and methodologies for isolated rural. nonattainment and maintenance areas, as required by 40 CFR §93.109(1)(2)(iii).

10

### (C) Any group, entity, or individual planning to construct a regionally significant transportation project that is not an FHWA-FTA project (including projects forwhich alternative locations, design concept and scope, orthe no-build option are still being considered) shall disclose project plans to the MPO on a regular basis and disclose any changes to those plans immediately. This requirement also applies to recipients offunds designated under23 USC orthe federal transit laws.

(3) General procedures.

(A) The MPO, TxDOT, orthe commission, as applicable, shall respond to
comments of affected agencies on MTPs, TIPs, projects, or SIP revisions in accordance with the public participation procedures that govern the involved action. The MPO, TxDOT, orthe commission, as applicable, shall include all comments and the replies to those comments with final documents when they are submitted for adoption by the agency's governing board. In the
event that comments are not adequately resolved, the procedures outlined in paragraph (4) of this subsection regarding conflict resolution apply.

(B) Because the validity ofthe regional emissions analysis depends on transportation modeling assumptions that need periodic updates, the MPO, with the assistance ofTxDOT and local publicly owned transit agencies, will conduct meetings with the agencies specified in paragraph (1)(A) ofthis subsection to cooperatively establish research and data collection efforts and regional model development (e.g., household/transportation surveys).

11

### (C) Forthe purposes ofevaluating and choosing a model (or models) and associated methods and assumptions to be used in hot spot and regional emissions analyses, agencies specified in paragraph (1)(A) ofthis subsection shall participate in a working group. The frequency of meetings and agendas forthem will be cooperatively determined by the agencies specified in paragraph (1 )(A) ofthis subsection.

(D) The commission, affected MPOs, affected local air quality agencies, and TxDOT shall cooperatively evaluate events that will triggerthe need for new conformity determinations. New conformity determinations may be triggered by events established in 40 CFR §93.1 04 as well as other events, including emergency relief projects that require substantial functional, locational, and capacity changes, or in the event of any other unforeseeable circumstances.

(E) The MPO and its governing body, orTxDOT if applicable, shall make conformity determinations for all MTPs, TIPs, regionally significant projects, and all other events

as required by 40 CFR Part 93, SubpartA and this section. Upon completion ofthe transportation conformity determination review process (including consultation, public participation, and all other requirements of this section), FHWA and FTA will issue ajoint conformity finding, indicating the transportation conformity status ofthe document(s) under review. The effective date ofthe conformity determination for an area is the date of the joint conformity finding made by FHWA-FTA.

(4) Conflict resolution.

12

### (A) The commission and the MPO (or TxDOT where appropriate) shall make a good-faith effort to address the major concerns ofthe other party in the event they are unable to reach agreement on the conformity determination ofa proposed MTP orTIP. The efforts must include meetings ofthe agency executive directors, if necessary.

(B) In the event thatthe MPO orTxDOT determines that every effort has been made to address the commission's concerns, and that no further progress is possible, the MPO or TxDOT shall notify the commission's executive director in writing to this effect. This subparagraph must be cited by the MPO orTxDOT in any notification of a conflict that may require action by the governor, or his or her delegate under subparagraph (C) ofthis paragraph.

(C) The commission has 14 calendar days from date of receipt of notification, as required in subparagraph (B) ofthis paragraph, to appeal to the governor. Ifthe commission appeals to the governor, the final conformity determination mustthen have the

concurrence ofthe governor. The governor may delegate his or her role in this process, but not
to the commission orcommission staff, a local air quality agency, the Texas Transportation Commission orTxDOT staff, or an MPO. This subparagraph must be cited by the commission in
any notification ofa conflict that may require action by the governor or his or her delegate. Ifthe commission does not appeal to the governorwithin 14 calendar days from receipt ofwritten notification, the MPO orTxDOT may proceed with the final conformity determination.

{5) Public comment on conformity determinations. Consistentwith the requirements of23 CFR Part 450, concerning public participation, the agencies making conformity determinations on transportation plans, programs, and projects must establish a
13

### proactive public participation process that provides opportunity for public review and comment. Any charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR §7.43. In addition, these agencies shall address in writing any public comment claiming that a non-FHWAIFTAfunded, regionally significant project has not been properly represented in the conformity determination for an MTP or TIP. Finally, these agencies shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

(6) Good-faith effort made by the consulting agencies. In formulating an enforcement policy regarding a violation ofthis subsection (relating to the consultation process) the commission may consider any good-faith effort made by the consulting agencies to comply.

(e) Regionally significant, non-federal projects. Forthe purposes of40 CFR §93.121, adoption or approval ofa regionally significant, non-federal project (a regionally significant project that does not require FHWA or FTA approval orfunding) occurs when affected agencies that are recipients offederal funds designated under 23 USC orthe federal transit laws take one ofthe following actions: (1) board approval, action, or resolution (such approval, action, or resolution does not include MPO approval for the purposes ofapproving a project in a currently conforming MTP orTIP);

(2) issuance ofadministrative permits forthe regionally significant project;

(3) action of official authorizing the regionally significant project to proceed;

14

## (4) providing grants or loans for the construction ofa regionally significant project; or

(5) contract execution for the regionally significant project.

(f) Compliance date. Compliance with this section is required for transportation conformity determinations that begin the interagency consultation process after the date of EPA approval ofthe transportation conformity SIP associated with this rule.

15

## TEXAS CoMMISSION

# ON.,.~;vrRONMENTA~-~~s**'-c)"·-~** 

### ): Ihereby certifythat this is atrue and correct copyofa '

### _:~·~ ). Texas CommiSSion on EnVIronmental 

### Qualitydocument,

·• &

### ·:::::! which isfiled 1nthe permanent records ofthe Commission. Given un ermy hand andthe seal ofofficeon 

# '"' 1'1.

# 2001

La nna Castanuela, ChiefClerk

· Texas Commission on Environmental 

### Quality 

## ORDERADOPTING AMENDED RULES AND REVISIONS TO THE STATE IMPLEMENTATION PLAN (SIP)

Docket No. 2006-1864-RUL
On June 27, 2007, the Texas Cmmnission on Environmental Quality (Commission), during a public meeting, considered adoption of amendments to 30 Texas Administrative Code (TAC) § 

### 114.260, Transportation Conformity, and corresponding revisions to the Transportation Conformity State Implementation Plan (SIP). The Commission adopts this amendment to 30 TAC Chapter 114, Subchapter G, § 114.260, Transportation Conformity, and corresponding revisions to the Transportation Conformity SIP. These amendments incorporate recent federal transportation conformity revisions from the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The rulemaking also incorporates previous federal transportation conformity revisions and guidance that include: requesting states to incorporate into SIPs when a regionally significant, non-federal projectis considered 

### adopted or 

### approvedby a non-federal entity; adding transportation-related PM2.5 

### precursors to the transportation conformity regulations; and deleting a previous quantitativePM 10 

### andPM2.5 

### hot-spotanalysis.
Under Tex. Health 

## & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the authority to control the quality of the state's air and to issue orders consistent with the policies and purposes ofthe Texas Clean Air Act, Chapter 382 of the Tex. Health 

## & Safety Code. Notice of the proposed amendments and revisions to the SIP was published for cmm11ent in the February 9, 2007 issue ofthe 

## Texas Register (32 TexReg 499).
Pursuant to Tex. Health & 

### Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 (Vernon 2000 & 

### Vernon Supp. 2005), and 40 Code of Federal Regulations § 

### 51.102 and after proper notice, the Commission conducted a public hearing to consider the amended rules and revisions to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date ofthe hearing. The public hearing for these revisions was held on March 5, 2007 at 10:00 a.m. in Austin, Texas.
The Commission circulated hearing notices of its intended action to the public, including interested persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recmmnendations on the proposed SIP revisions, either orally or in writing, at the hearings or during the comment period. Prior to the scheduled hearing, copies of the proposed amendments and SIP revision were available for public inspection at the Commission's central office and on the Cmmnission's Web site. Data, views, and recmmnendations of interested persons regarding the proposed amendments and SIP revision were submitted to the Commission during the comment period, and were considered by the Commission as reflected in the analysis of testimony incorporated by reference to this Order. The Commission finds that the analysis of testimony includes the names of all interested groups or associations offering comment on the proposed amendments and SIP revision and their position concerning the same.

### IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions to the Transportation Conformity SIP are incorporated by reference to this Order and are hereby adopted. The Commission further authorizes staffto make anynon-substantive revisions to the rules necessaryto comply with 

## Texas Registerrequirements. The adopted rules and the preamble to the adopted rules and the revisions to the**~n> ar,~,i,ncorporated**  

### byreference in this Order as ifset forth at lengthverbatim in this Order

.



## .**~ ~;** 

## (**.1':£~·** 

### IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the Transportation Conformity SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, § 

### 110, codified at 42 U.S. Code Ann. §§ 7401

- 7671q, as amended.
This Order constitutes the Order ofthe Commissionrequiredbythe Administrative Procedure Act, Tex. Gov't Code,§ 2001.033 (Vernon2000 & 

### Vernon Supp. 2005). 

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

Date issued: 

# JUL 1 3

# 20011 TEXAS COMMISSION ON ENVIRONMENTAL QUALITYI (D) any modification to the TCM since the last annual report and/or projected modification for the next reporting period to compensate for a shortfall in the imp ementation ofthe TCM or in the associated emissions reductions; an (3) make such records a ailable to representatives ofthe commission, the EPA, the Federal 'ghway Administration, the Federal Transit Administration, the Tex s Department ofTransportation, local airpollutionagencieshavingju isdictioninthe area, andthepublic, upon request; (e) Implementing agency re ponsibilities. The implementing agency shall have the responsibility o: (I) ensure that all respo sibilities required by subsection (c) ofthis section are fulfilled; and (2) provide to the MPO pon request: (A) acomplete desc tion ofthe TCMs andtheirassociated estimated emission reduction enefits; (B) evidencethatthe CMswereproperlyadoptedbya jurisdictionwithlegalauthorityto c mmitto and executetheprogram; (C) evidencethatfun inghasbeen,orwillbe,obligated to implement the TCMs; and (D) a description of he monitoring program to assess the TCM effectiveness. Thisagency herebycertifiesthat he adoption has been reviewed by legal counsel and found to be valid exercise ofthe agency's legal authority. Filed with the Office ofthe Seer ary ofState on June 29, 2007. TRD-200702753 Robert Martinez Director, Environmental Law Divisio Texas Commission on Environment IQuality Effective date: July 19, 2007 Proposal publication date: March 9, 007 Forfurther information, please call: 512) 239-2461 

# • • SUBCHAPTER K. 

## MO ILE SOURCE INCENTIVEPROGRAM DIVISION2. LIGHT-D PURCHASE ORLEASE 30 TAC §114.618 STATUTORY AUTHORITY 

## TYMOTORVEHICLE CENTIVEPROGRAM

The repeal is adopted under Te sWater Code (TWC), §5.102, concerning General Powers; §5. 03, which authorizes the commission to adopt rules necessar to carry out its powers and duties under the

## .rwc; and under exas Health and Safety Code, Texas Clean A1rAct (TCAA), §3 .017, concerning Rules, which**~uthorizes**the commission to ad pt rules consistentwith the polICYand purposesof**t~e** TCAA; § 82.011, which providesforgeneral powers and duties under t TCAA. The repeal is adopted under.THSC, §382.002, concer ing Policy and Purpose, which**e~tablishes** the**co~mission's** p rpose to safeguard the state's a1r resources, consistentwith th protection ofpublic health, general welfare, and physical prop y; §382.012, which authorizes the commission to develop a g neral, comprehensive plan for



## 32 TexReg4404 July 13, 2007 Texas Register the proper control ofthe state's air; and §382.019 which authorizes the commission to adopt r les to control and reduce emissions from engines used to pro el land vehicles. The adopted repeal implemen:s THSC, §§382.002, 382.011, 382.012, and 382.019. Thisagency herebycertifiestha theadoption has been reviewed by legal counsel and found to b lavalid exerciseofthe agency's legal authority. Filed with the Office ofthe Seer**~tary** of State on June 29, 2007. TRD-200702754 Robert Martinez I Director, Environmental Law Divisi 

# h Texas Commission on Environmen ,al Quality Effective date: July 19, 2007 Proposal publication date: March 9 2007 Forfurther information, please call: (512) 239-2461 

# • • SUBCHAPTER G. TRANSPORTATION PLANNING 30 TAC §114.260 The Texas Commission on Environmental Quality (commission) adopts an amendmentto §114.260 and corresponding revisions to the Transportation Conformity State Implementation Plan (SIP). Section 114.260 is adopted with changesto the proposed text as published in the February 9, 2007, issue of the Texas Register(32 TexReg 499). The adopted revisions will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the SIP. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES The Federal Clean Air Act (FCAA) Amendments of 1990 as codified in 42 United States Code (USC), §§7401 et seq. required each state to submit a revision to its SIP by November 25, 1994, establishing enforceable criteria and procedures for making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects funded by the Federal Highway Administration (FHWA) or the Federal Transit Administration (FTA). Final rules regarding conformity requirements were published by EPA on November 24,**~**993. The Texas SIP revision that incorporated conformity requirements was adopted October 19, 1994, and approved by EPA November 8, 1995. EPA has amended the federal transportation conformity rule eight times: August 7, 1995; November 14, 1995; August 15, 1997; April 10, 2000; August 6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The**com~issio_n** previously incorporated the federal changes up to, and Including, the 2004 amendments. The commission is now updating its SIP and rule to incorporate the May 6, 2005, and March 10, 2006, federal amendments. In addition to the 2005 and 2006 federal amendments, changes to the transportation conformity federal rule were enacted with passage ofthe Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which was signed into law August 10, 2005. Furthermore, EPA issued guidance in May 1**~-99,** that astate should include in its SIP when a regionally significant, non-federal project is considered adopted orapproved by a non-federal entity. The addition of these changes to theexisting state rules would align the state rule with the current federal requirements and would address when a non-federal, regionally significant project is considered adoptedorapproved by a non-federal entity. Lastly, this adopted rulemaking makes administrative and grammatical changes and corrections to the existing rule language. Transportation conformity is required under FCM, §176(c) to ensure that federally supported highway and transit project activities are consistentwith the purpose ofthe state's SIP. Conformity applies to areas designated nonattainment and those redesignated to attainment after 1990 with a maintenance plan developed under the FCAA. Conformity to the purpose of the SIP means thattransportation activities would not cause new air quality violations, worsen existing violations, or delay timely attainment ofthe relevant National Ambient Air Quality Standards (NMQS). EPA's transportation conformity rule establishes the criteria and procedures for determining whether transportation activities conform to the SIP. EPA amended the transportation conformity rule on May 6, 2005. The Transportation ConformityRule Amendments forthe New PM 25 NAAQS: PM 25 Precursors (70 FR 24280) specifies the transportation-related PM,.• precursors and when they apply in transportation conformity determinations in PM,. (particulate matter) nonattainment and maintenance areas. The adoption would incorporate PM,. precursors in the state rule and make a technical correction to a United States Department ofTransportation (U.S. DOT) planning regulation cross-reference. EPA's 2005 revisions were codified in 40 Code of Federal Regulations (CFR) Part 93. Sections revised were §§93.102, 93.105, and 93.119. EPA also amended the transportation conformity rule on March 10, 2006: the PM., andPM,. Hot-SpotAnalysis in ProjectLevel Transportation Conformity Determinations for the New PM,. andExisting PM,. NationalAmbientAir QualityStandards Final Rule (71 FR 12468). The adoption would delete the current quantitative PM,. and PM,. hot-spot analysis requirement from the state's conformity consultation requirements. The federal amendments were codified in 40 CFR Part 93. Sections revised were §§93.101, 93.105, 93.109, 93.116, 93.123, 93.125, 93.126, and 93.127. The transportation conformity provisions in the SAFETEA-LU streamlined the requirements for state conformity SIPs. Prior to enactment of SAFETEA-LU, states were required to address all of the federal conformity rule's provisions in their conformity SIPs. Most of the sections of the federal rule were required to be copied verbatim from the federal rule into a state's SIP, as previously required under 40 CFR §51.390(d). Now, under SAFETEA-LU, states are required to address and tailoronly the following three sections of the conformity rule in their conformity SIPs: 1.) 40 CFR §93.105, which addresses consultation procedures; 2.) 40 CFR §93.122(a)(4)(ii), which requires that written commitments to control measures that are not included in a Metropolitan Planning Organization's transportation plans must be obtained prior to a conformity determination and that such commitments must be fulfilled; and 3.) 40 CFR §93.125(c), which requires thatwritten commitments to mitigation measures must be obtained prior to a project-level conformity determination and that project sponsors must comply with such commitments. In May 1999, EPA issued guidance titled Conformity Guidance on Implementation ofMarch 2, 1999, ConformityCourtDecision addressing which projects could move forward during a conformity lapse. EPA recommended that states decide through the interagency consultation process when a regionally significant, non-federal project is considered adoptedorapprovedby a non-federal entitythat routinely receivesfundsfromthe FHWAor FTA. The interagency consultation group for Texas, the Technical Work Group (TWG), has agreed on language that is included in this adopted rulemaking. The commission adopts administrative and grammatical changes and correctionstothe existing rule language in orderto be consistentwith current agency style and format. The commission also adopts the renumbering of certain parts of§114.260to make adjustmentsforthe adopted deletions and additions throughout the rule. SECTION BY SECTION DISCUSSION §114.260. Transportation Conformity. The adopted change to §114.260(a) modifies the phrase in the requirements and replaces it with certain requirements. The last sentence in this subsection, It includespolicy, criteria, andprocedures to demonstrate andassure conformityoftransportation planning activities with the state implementation plan (SIP) is replaced with, This section addresses the consultation process and the written commitment requirements forcontrolmeasures and mitigation measures that are used to demonstrate andassure conformity oftransportation planning activities to the state implementation plan (SIP) to more clearly describe the transportation conformity streamlining provisions in SAFETEA-LU. Additionally, §114.260(a) is adopted with changes to the proposed text. The statutory reference for the implementation of conformity in section §114.260(a) has been changed from §176(c) to §176(c)(4)(e) to more specifically reflect the location in the FCM. The adopted change to §114.260(b) adds the term criteria in the first sentence to change the phrase transportation-relatedpollutants to transportation-related criteria pollutants. This change clarifiesthatthe applicable pollutants are criteria pollutants. The second sentence adds transportation-related criteria to form the phrase transportation-related criteria pollutants. The word include is replaced with are and the precursor pollutants are listed in a separate sentence, which is then amended by adding PM,, as a precursor and referring to 40 CFR §93.102. The addition of PM,.to the sentence reflects the substantive change in EPA's May 6, 2005, final rule, the Transportation Conformity Rule Amendments for the New PM,, National Ambient Air QualityStandard: PM,, Precursors (70 FR 24280). The purpose of referring to 40 CFR §93.102 is to indicate the applicable precursors to be analyzed depending on the characteristics of the nonattainment area. Finally, the last sentence is deleted because its reference to nonattainment area boundaries is not needed in the rule language. The adopted change to §114.260(c) deletes the reference to 40 CFR Part 93, Subpart A, (62 FR 43780), and adds the replacement reference 40 CFR §93.122(a)(4)(ii) and 40 CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, §7506(c)(4)(E) directs that only these two sections plus CFR §93.105 need to be in the state conformity rule. The addition of these three sections streamlines the requirements for state conformity SIPs. The adopted change revises §114.260(d)(2)(A)(i) by deleting the rule language Air Quality Planning and Implementation Division and replacing it with executive director. The adoption revises §114.260(d)(2)(A)(ii) by deleting the word involvement and replacing it with participation and changes the 23 CFR



## ADOPTEDRULES July 13, 2007 32 TexReg4405reference §450.316(b)(1) to Part 450. The adoption revises §114.260(d)(2)(A)(iii) by deleting by the Metropolitan Planning Rule and changing the 23 CFR reference §450.316(b)(1) to Part 450. The adoption revises §114.260(d)(2)(A)(v) by deleting the word involvement and replacing it with participation, and deleting §114.260(d)(2)(A)(vii). The adoption revises §114.260(d)(2)(B)(v) by correcting the reference to 40 CFR §93.109(g)(2)(iii) with a reference to 40 CFR §93.109(1)(2)(iii). The adoption revises §114.260(d)(3)(A) by deleting the word involvement and replacing it with participation. The adoption revises §114.260(d)(3)(C) by deleting the words identified as the Technical Working Group forMobile Emissions and deleting the last sentence, The function of this working group may be delegatedto an existinggroup with similarcomposition andpurpose. The adoption revises §114.260(d)(5) by deleting the word involvementand replacing it with participation and renumbering the CFR reference forthe fee schedulefor public inspection and copying. These adopted revisions align the state rule with the federal rule; allow the executive directorto delegate authorityto staff without explicitly naming the designee; provide flexibility to the Technical Work Group; and bring existing rule language into agreement with Texas Register requirements, agency format guidelines, and guidance provided in the Texas Legislative Council Drafting Manual, August2006. The adopted change to §114.260(e) addresses when a regionally significant, non-federal project is considered adoptedor approved by a non-federal agency. This section was added to clarify the approval and adoption process of a non-federal, regionally significant project. In the event of atransportation conformity lapse, the provision may allow certain project phasesto continue. The adopted change to §114.260(f) deletesthewords begins on and replaces them with fortransportation conformitydeterminati9ns thatbegin the interagencyconsultation process after. The purpose ofthis change isto make clearthatcompliance with this rule revision applies atthe beginning ofthe interagency consultation process. The adopted revision makes administrative and grammatical changes and corrections to the existing rule language in order to be consistentwith current agency style and formatguidelines. The adoption also renumbers certain parts of§114.260 to make adjustments for the adopted deletions and additions throughout the rule. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the adopted rulemaking considering the regulatory impact analysis requirements of the Texas Government Code, §2001.0225, and determined that the adopted rulemaking meets the definition of a major environmental rule as defined in that statute. A majorenvironmental rule means a rule, the specific intent ofwhich is to protect the environment or reduce risks to human health from environmental exposure, and thatmayadverselyaffectin a material waythe economy, asector ofthe economy, productivity, competition,jobs, theenvironment, orthe public health and safetyofthe stateorasectorofthestate. The adopted rulemaking meetsthe definition ofa majorenvironmentalrule because the transportation conformity requirements are specifically intended to protect the environment and/or reduce risks to human health, and may have material affects on the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety ofthe state or a sector of the state. Federal transportation conformity requirements subject all nonattainment and maintenance areas



## 32 TexReg4406 July 

## 13, 2007 Texas Register to demonstrate conformity with specific emissions budgets, or be subject to loss of highway or other transportation funding. The adopted change to §114.260 will incorporate recent federal transportation conformity revisions into the state's SIP, including those from the surface transportation reauthorization act of 2005, SAFETEA-LU. Transportation conformity is an FCAA requirementensuring thatfederally supported highway and transit projects conform to each state's SIP. Additionally, the adopted change to §114.260 will reflect existing language in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance. The adopted rulemaking does not, however, meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule, the result ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed 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) adopt a rule solely underthe general powers ofthe agency instead of under a specific state law. The adopted rulemaking implements requirements ofthe FCAA and SAFETEA-LU. Under 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcement and enforceability in accordance with the EPA's criteria and procedures for consultation, enforcement, and enforceability. The requirement to provide a fiscal analysis of adopted regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intentof SB 633wasto requireagenciesto conducta regulatory impactanalysis 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, or are adopted solely under the general powers ofthe agency. With the understanding that this requirement would seldom apply, the commission provided acostestimatefor SB 633 that concluded basedon an assessment ofrules adoptedby the agencyin the past, itis not anticipatedthat the bill willhave significant fiscalimplications for the agency due to its limitedapplication. The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted adopted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. The FCAAdoes notalways require specific programs, methods, or reductions in orderto meetthe goalsofthe FCAA; thus, states must develop programs and strategiesto help ensurethatthose goals are met. However, in this instance, the FCAA is clear in requiring that states complywith EPA's criteria and proceduresfor consultation, enforcement, and enforceability. EPA's transportation conformity rule and SAFETEA-LU provide specific requirements and limited flexibility that must be met by states. Because of the ongoing need to address the requirements of 42 USC, §§7401, etseq., the commission routinely proposes and adopts SIP rules. As discussed elsewhere in this preamble, states are required to incorporate requirements for transportation conformity in compliancewith EPA's transportation conformity rule and SAFETEA-LU. The legislature is presumed to understand thisfederal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts ofthe bills 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 adopted rule may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall underthe exception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that when an agencyinterpretation is in effectatthe time the legislature amends the laws without making substantialchange in the statute, the legislature isdeemed to have acceptedthe agency's interpretation. CentralPower& LightCo. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with percuriam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullock

### v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil& Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney

### v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. 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 numberof rule challenges based upon APA requirements, the legislatureclarified that state agencies are required to meet these sections ofthe APA againstthe standard of substantial compliance. The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements ofTexas Government Code, §2001.0225. The specific intent ofthe adopted rulemaking is to incorporate recent federal transportation conformity revisions intothe state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in the federaltransportation conformity rule and otherfederal transportation conformity-related rules and guidance. There is no contractordelegation agreementthatcovers the topic that is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely underthe general powers of the agency, but is authorized by specific sections ofTexas Health and Safety Code (THSC), Chapter382 (also known asthe Texas Clean AirAct (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORYAUTHORITY section ofthis preamble, including THSC, §§382.012, 382.017, and 382.208. Therefore, this rulemaking action is not subject to the regulatory analysis provisions ofTexas Government Code; §2001.0225(b), because although the adopted rulemaking meets the definition of a majorenvironmentalrule, it does not meet any ofthe four applicability requirements. The commission solicited comments on the Regulatory Impact Analysis Determination during the public comment period, but did not receive any comments duringthe publiccomment period. TAKINGS IMPACT ASSESSMENT The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific purpose of the adopted rulemaking is to incorporate recent federal transportation conformity revisions into the state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance, as discussed elsewhere in this preamble. Under FCAA, 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcement and enforceability in accordance with the EPA's criteria and procedures for consultation, enforcement and enforceability. The commission's assessmentindicatesthatTexas Government Code, Chapter 2007 does not apply to this adopted rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, as explained elsewhere in this preamble, which is exempt under Texas Government Code, §2007.003(b)(4). For this reason, Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC §505.11 (b)(2), concerning Actions and Rules Subjecttothe Coastal Management Program, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies ofthe CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules ofthe Coastal Coordination Council, and determined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). This rulemaking action complieswith 40 CFR Part51, concerning Requirementsfor Preparation, Adoption, and Submittal of Implementation Plans, and Title 40 generally. Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies. The commission solicited comment on the consistency of the adopted rulemaking with the CMP during the public comment period, but received no comments on this issue. PUBLIC COMMENT The public hearing for this rulemaking was held on March 5, 2007, 10:00 a.m., Texas Commission on Environmental Quality, Building B, Room 201A, 12100 Park 35 Circle, Austin.



## ADOPTEDRULES July 13, 2007 32 TexReg4407The EPA submitted written comment in general support of the rule with suggested changes to the proposal. RESPONSE TO COMMENTS Statutory Reference The EPA commented thatthe appropriate statutory reference for the implementation ofconformity in §114.260(a) is §176(c)(4)(e) of the FCAA. The EPA also commented that the new language to "help demonstrate conformity" is not appropriate and recommended removing the word "help." The commission appreciates the comment and has included the more specific reference to §176(c)(4)(e), instead of the more broad reference to §176(c) of the FCAA. The commission also agreesthatthe word "help" is not necessary and has removed it. Applicability Section The EPA commented that §114.260(b) is not necessary and should be deleted. The commission agrees that the section is not necessary, but has decided to leave the section in the rule as additional information to help the public understand the conformity process. CFR Incorporation The EPA commented that the approach taken in §114.260(c) to incorporate the federal provisions found at 40 CFR §93.102(a)(4)(ii) and §93.125(c) is adequate, but commented that added clarity can be provided by customizing these provisions. The commission agrees and will workwith interagency consultation partners to develop customized language to include during a future SIP and rule revision. STATUTORY AUTHORITY The amendment is adopted under TWC, §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and §5.105, concerning General Policy; and underTHSC, TCAA, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of NMQS.The rule is also adopted underthe statutory requirement for transportation conformity found in §176(c) ofthe 1990 FCAA Amendments, 40 CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whether transportation plans, programs, and projects in nonattainment and maintenance areas conform with the SIP. The adopted revisions implement Texas Water Code, §5.103 and §5.103, and Texas Health and Safety Code, §§382.011, 382.012, and 382.208. §114.260. Transportation Conjom1ity. (a) Purpose. The purpose ofthis section is to implement certain requirements set forth in 40 Code ofFederal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded, orApproved Under Title 23 United States Code



## 32 TexReg 4408 July 13, 2007 Texas Register (USC) or the Federal Transit Laws), which are the regulations developedbytheUnited StatesEnvironmental ProtectionAgency (EPA) under the Federal Clean Air Act Amendments of 1990, §!76(c)(4)(e). This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used to demonstrate and assure conformity oftransportation planning activities with the state implementationplan (SIP). (b) Applicability. This section applies to transportation-related criteriapollutants for which an area is designated nonattainment or is subjectto amaintenanceplan. Thetransportation-related criteria pollutants are ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic diameter oftenmicrometers (PM 10 ) and smaller, and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM,). This section also applies to the precursors ofozone, nitrogen dioxide, PM 10, and PM, as required in 40 CFR §93.102. (c) CFRincorporation. Thewritten commitmentrequirements as specifiedin40 CFR§93.122(a)(4)(ii)and §93.125(c) are adoptedby reference. (d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures mustbe undertaken in nonattainment and maintena_nce areas before making conformity determinations and before adopting applicable SIP revisions. (1) General factors. (A) For the purposes of this subsection, conceming consultation, the affected agencies include: (i) EPA; (ii) Federal HighwayAdministration (FHWA); (iii) Federal TransitAdministration (FTA); (iv) Texas Department ofTransportation (TxDOT); (v) metropolitan planning organizations (MPOs) in nonattainment or maintenance areas; (vi) local publicly owned transit services in nonattainmentormaintenance areas (the designatedrecipient ofFTA §5307 funds); (vii) Texas Commission on Environmental Quality (commission); (viii) local air quality agencies in nonattainment or maintenance areas (recipients of42 USC, §7405 funds). (B) All correspondence with the affected agencies in subparagraph (A) ofthis paragraph must be addressed to the following designated points ofcontact: (i) MPO: executive director or designee; (ii) commission: executive director ordesignee; (iii) TxDOT: director of Transportation Planning and Programming or designee; (iv) TxDOT: director ofEnvironmental Affairs Division or designee; (v) FHWA: administrator ofTexas Division or designee; (vi) FTA: director of Office of Program Development or designee

- FTA Region 6; (vii) EPA: regional administrator ordesignee

- EPA Region 6;(viii) TxDOTDistrict: districtengineerordesignee; (ix) local publiclyowned transit services (the designated recipient ofFTA §5307 funds): general managerordesignee; (x) local air quality agencies (recipients of42 USC, §7405 funds): directoror designee; and (xi) commiSSIOn regions in nonattainment or maintenance areas: regional director or designee. (2) Roles and responsibilities ofaffected agencies. (A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (I)(A) of this subsection in the development ofMetropolitan Transportation Plans (MTPs), Transportation Improvement Programs (TIPs), projects, technical analyses, travel demand or othermodeling, and data collection. Specifically, the MPOs shall: (i) allow the commission's executive director or a designatedrepresentative, to be avotingmemberoftechnical committees on surfacetransportation and airqualityin eachnonattainmentand maintenance area in order to consult directly with the particular committee during the development ofthe transportation plans, programs, and projects; (ii) send information on time and location, an agenda, and supporting materials (including preliminary versions ofMTPs and TIPs) for all regularly scheduled meetings on surface transportation or air quality to each ofthe contacts specified in paragraph (l)(B) ofthis subsection. This information must be provided in accordance with the locally adopted public participationprocess as required in 23 CFRPart 450; (iii) afterpreparationoffinal draftversions ofMTPs and TIPs, and beforeadoption and approval by the affected governing body, ensurethat the contacts specified in paragraph ( l)(B) ofthis subsection receive a copy, and that they are included in the local area's publicparticipation process as required in23 CFRPart450. Upon approval ofMTPsand TIPs, MPOs shall distributefinal approved copies ofthe documents to the contacts specified in paragraph (I)(B) ofthis subsection; (iv) for the purposes ofregional emissions analysis, initiate a consultation process with the affected agencies specified in paragraph (l)(A) ofthis subsection during the development stage ofnew or revised MTPs and TIPs to determine which transportation projectsshouldbeconsideredregionally significantand which projects shouldbeconsideredtohaveasignificantchangeindesignconcept and scope from the effectiveMTP and TIP. Regionally significantprojects will include, at a minimum, all facilities classified as principal arterial or higher, or fixed guideway systems or extensions that offer an alternativeto regional highway travel. Also, these include minor arterials included in thetravel demand modelingprocess that serve significant interregional and intraregional travel, and connect rural population centers not already served by aprincipal arterial, or connectwith intermodal transportation terminals not already served by a principal arterial. A significant change in design concept and scope is defined as a revision ofa project in the MTP or TIP that would significantly affect model speeds, vehicle miles traveled, or network connections. In addition to new facilities, examples include changes in the number ofthrough lanes or length ofproject (more than one mile), access control, addition ofmajor intermodal terminal facilities (such as new international bridges, park-and-ride lots, and transfer terminals), addition/deletion ofinterchanges, or changing between free and toll facilities. When a significant change in the design and scope ofa project is proposed, the MPO shall document the rationale for the change and give the affected agencies specified in paragraph (1)(A) ofthis subsection a 30-day opportunity to comment on the rationale. The MPO shall considertheviews ofeach agency thatcomments, and respond in writingbefore anyfinal action on these issues. Ifthe MPO receives no comments within 30 days, the MPO may assume concurrence by the agencies specified in paragraph (1 )(A) ofthis subsection; (v) include in the TIP a list ofprojects exempted from the requirements of a conformity determination under 40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (I )(A) ofthis. subsection in determining if a project on the list has potentially adverse emissions for any reason, including whether or not the exempt projectwill interfere with implementation ofan adopted transportation control measure (TCM). The MPO shall respond in writing to all comments within 30 days on final MTP and TIP documents. In addition, ifno comments are received as part ofthe subsequent public participation process for the TIP, the MPO may proceed with implementation ofthe exempt project; (vi) notify the affected agencies specified in paragraph (I)(A) ofthis subsection in writing ofany MTP orTIPrevisions or amendments that add ordelete the exempt projects identified in 40 CFR §93.126; (vii) beforeadoptionofanyneworsubstantiallydifferent methods or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified in paragraph (l)(A) ofthis subsection to review and comment; (viii) in coordination with TxDOT and the local transit agencies, discloseallknown,regionally significant, non-federal projects, even if the sponsor has not made a final decision on its implementation; include all disclosed, or otherwise known, regionally significant, non-federal projects in the regional emissions analysis for the nonattainment area; respond in writing to any comments that known plans for a regionally significant, non-federal project have not been properly reflected in the regional emissions analysis; and have recipients of federal funds determine annually that their regionally significant, non-federal projects are included in a conforming MTP or TIP, or are included in a regional emissions analysis ofthe MTP and TIP. The MPO shall consult with project sponsors to determine the non-federal projects' location and design concept and scope to be used in the regional emissions analysis, particularly for projects that the sponsor does not report a single intent because the sponsor's alternatives selectionprocess is notyet complete. IftheMPO assumes a design concept and scope that is different from the sponsor's ultimate choice, the next regional emissions analysis for a conformity determination must reflect the most recent information regarding the project's design concept and scope; (ix) ensure timely TCM implementation and report on the implementation and emissions reductions status of adopted TCMs annually to the commission; (x) cooperatively share the responsibility for conducting conformity determinations on transportation activities that cross the borders ofMPOs or nonattainment and maintenance areas. The affected MPOs will enter into a Memorandum of Agreement (MOA) that will define the effective boundary and the respective responsibilities of each MPO for regional emissions analysis. The MPOs will be responsible within their respective metropolitan area boundaries and, at their option, beyond to the boundaries of the nonattainment/maintenance areas, for regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas or basins will share information concerning air quality modeling assumptions and emission rates that affect both areas; and (xi) for the purpose ofdetermining the conformity ofall projects outside the metropolitan planning area, but within the



## ADOPTEDRULES July 13, 2007 32 TexReg4409nonattainment or maintenance area, enter into an MOA involving the MPO and TxDOT for cooperativeplanning and analysis ofprojects. (B) The commission, as the lead air quality planning agency, shall work in consultation with the agencies specified in paragraph (1)(A) ofthis subsection in developingapplicabletransportationrelated SIPrevisions, airquality modeling, general emissionsanalysis, emissions inventory, and all related activities. Specifically, the commission shall: (i) setagendas and schedulemeetingsto seek advice and comments from all agencies specified in paragraph (1 )(A) ofthis subsection during preparation ofapplicable transportation-related SIP revisions; (ii) schedulepublic hearings in orderto gatherpublic input on the applicable transportation-related SIP revisions in accordance with 40 CFR §51.102 and notify the agencies specified in paragraph (l)(B) ofthis subsection ofthe hearings; (iii) provide copies of final documents, including applicable adopted or approved transportation-related SIP revisions and supporting information, to all agencies specified in paragraph (l)(B) ofthis subsection; (iv) after consultation with the MPO regarding TCMs, distribute to all agencies specified in paragraph (1)(B) ofthis subsection and other interested persons the list ofTCMs proposed for inclusion in the SIP. In consultation with the agencies specified in paragraph ( 1 )(A) of this subsection, the commission shall determine whether past obstacles to implementation of TCMs have been identified and are being overcome, and determine whether the MPOs and the implementingagencies are givingmaximumpriorityto approval or funding for TCMs. Also, the commission shall consider, in consultation with the affected agencies, whether delays in TCM implementation necessitate a SIP revision to remove TCMs or to substituteTCMs or otheremissionreduction measures; and (v) consult with the applicable agencies specified in paragraph ( 1 )(A) ofthis subsection, in order to cooperatively choose conformity tests and methodologies for isolated rural nonattainment andmaintenance areas, as requiredby 40 CFR §93.109(1)(2)(iii). (C) Any group, entity, or individual planning to construct a regionally significant transportation project that is not an FHWA-FTA project (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered) shall disclose project plans to theMPO on aregular basis and discloseany changesto thoseplansimmediately. Thisrequirement also applies to recipients of funds designated under 23 USC or the federal transit laws. (3) General procedures. (A) TheMPO, TxDOT, orthe commission, as applicable, shall respond to comments ofaffected agencies on MTPs, TIPs, projects, or SIP revisions in accordance with the public participation procedures that govern the involved action. The MPO, TxDOT, orthe commission, as applicable, shall include all comments and the replies to those comments with final documents when they are submitted for adoptionbythe agency'sgoverningboard. In the eventthat comments are not adequately resolved, the procedures outlined in paragraph (4) ofthis subsection regarding conflictresolution apply. (B) Becausethevalidity ofthe regional emissions analysis depends on transportation modeling assumptions that need periodic updates, the MPO, with the assistance ofTxDOT and local publicly owned transit agencies, will conduct meetings with the agencies specified in paragraph (l)(A)ofthis subsectionto cooperativelyestab

## 32 TexReg4410 July 13, 2007 Texas Register !ish research and data collection efforts and regional model development (e.g., household/transportation surveys). (C) For the purposes of evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot spot and regional emissions analyses, agencies specified in paragraph (I)(A) ofthis subsection shall participate in a working group. The frequency ofmeetings and agendas for them will be cooperatively determined by the agencies specified in paragraph (I)(A) ofthis subsection. (D) The commission, affectedMPOs, affected local air quality agencies, and TxDOT shall cooperatively evaluate events that will triggerthe need for new conformity determinations. New conformity determinationsmaybetriggeredbyevents established in40 CFR §93.104 as well as other events, including emergency reliefprojects thatrequire substantial functional, locational, and capacitychanges, or in the event ofany otherunforeseeable circumstances. (E) The MPO and its governingbody, orTxDOT ifapplicable, shall make conformitydeterminations for all MTPs, TIPs, regionallysignificantprojects, andall othereventsas requiredby40CFR Part93, SubpartAandthis section. Upon completionofthetransportation conformity determination reviewprocess (including consultation, publicparticipation, and all otherrequirements ofthis section), FHWA andFTAwillissueajointconformityfinding, indicatingthetransportation conformity status ofthe document(s) underreview. The effective date ofthe conformity determination for anareais thedate ofthejoint conformity finding made by FHWA-FTA. (4) Conflict resolution. (A) The commission and the MPO (or TxDOT where appropriate) shall make a good-faith effort to address the major concerns ofthe otherparty in the event they are unableto reach agreement onthe conformitydeterminationofaproposedMTP orTIP. Theefforts must include meetings ofthe agency executivedirectors, ifnecessary. (B) In the event that the MPO or TxDOT determines that every efforthas been madeto address the commission's concerns, and that no further progress is possible, the MPO or TxDOT shall notify the commission's executive director in writing to this effect. This subparagraph mustbe citedby the MPO orTxDOT in any notification ofaconflict that mayrequire actionbythe governor, or his orher delegate under subparagraph (C) ofthis paragraph. (C) The commission has 14 calendar days from date of receipt ofnotification, as required in subparagraph (B) of this paragraph, to appeal to the governor. Ifthe commission appeals to the governor, the final conformity determination must then have the concurrence ofthe governor. The governor may delegate his or her role in this process, butnot to the commission or commission staff, a local air quality agency, theTexas TransportationCommission orTxDOT staff, or anMPO. This subparagraphmustbe citedbythe commissionin any notification ofa conflictthatmay require actionbythe governororhis or her delegate. Ifthe commission does not appeal to the governor within 14 calendardays from receipt ofwritten notification, the MPO or TxDOT may proceed with the final conformity determination. (5) Public comment on conformity determinations. Consistent with the requirements of23 CFR Part 450, concerning public participation,theagenciesmakingconformitydeterminationsontransportationplans,programs, andprojectsmustestablish aproactivepublic participation process that provides opportunity for public review and comment. Any chargesimposed forpublicinspection andcopying shouldbeconsistent with the fee schedule contained in 49 CFR §7.43. In addition, theseagenciesshall addressinwritinganypubliccomment claiming that anon-FHWNFTA funded, regionally significant projecthas not been properly represented in the conformity determination for an MTP or TIP. Finally, these agencies shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law. (6) Good-faith effort made by the consulting agencies. In formulating an enforcementpolicyregardingaviolation ofthis subsection(relatingto theconsultationprocess)thecommissionmayconsider any good-faith effort madebytheconsulting agencies to comply. (e) Regionally significant, non-federal projects. For the purposes of40 CFR §93.121, adoption or approval ofa regionally significant, non-federal project (aregionally significant project that does notrequireFHWA or FTA approval or funding) occurs when affected agencies that are recipients offederal funds designated under 23 USC orthe federal transit laws take oneofthe following actions: (I) board approval, action, or resolution (such approval, action, or resolution does not include MPO approval for the purposes ofapproving a project in a currently conformingMTP orTIP); (2) issuance of administrative permits for the regionally significantproject; (3) action ofofficial authorizing the regionally significant project to proceed; (4) providing grants or loans for the construction ofa regionally significant project; or (5) contractexecutionfortheregionallysignificantproject. (f) Compliance date. Compliancewiththis sectionis required fortransportationconformitydeterminationsthatbegintheinteragency consultationprocessafterthedateofEPAapprovalofthetransportation conformity SIP associated with this rule. This agency herebycertifiesthattheadoption hasbeen reviewed by legal counsel and found to be avalid exerciseofthe agency's legal authority. Filed with the Office ofthe Secretary of State on June 29, 2007. TRD-200702756 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: July 19, 2007 Proposal publication date: February 9, 2007 For further information, please call: (512) 239-0177 

# • CHAPTER 115. 

# •

POLLUTION FROM V ATILE ORGANIC COMPOUNDS SUBCHAPTER C. ATILE ORGANIC COMPOUJ'l"D TRANSFE OPERATIONS DIVISION 4. L OF VEHICLE REFUELING EMISSIO S (STAGE II) AT MOTOR VEHICLE FU DISPENSING FACILITIES 30 TAC §115.247 The Texas Commission on Envi onmental Quality (commission) adoptsthe amendmentto §115. 47. Section 115.247 is adopted with changes to the proposed t xt as published in the January 26, 2007, issue ofthe Texas Re ister(32 TexReg 282). The adopted amendment will b submitted to the United States Environmental Protection Age y (EPA) as a revision to the State Implementation Plan. BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS FOR THE ADOPTED RULE Forfacilities where 95% or mor ofthe motorvehicle fleet being fueled onsite is equipped with nboard refueling vapor recovery (ORVR) equipment, Stage I vapor recovery equipment is an unnecessary expense beca e refueling emissions are captured via the vehicle's ORVR quipment instead of the Stage II dispenser. The EPA estimat s it costs about $40,000 to install a Stage II vacuum-assist ystem and $4,100 per year to maintain it. ORVR systems cap ure vapors otherwise vented to theatmosphere. ORVR system are passive systems thatforce gasoline vapors displaced fror,n a vehicle's fuel tank during refueling to be directed to a carb n-canister holding system and ultimatelytothe engine wheret ey are consumed. EPA phased in ORVRsystemsforautomobil s starting with model year 1998. All automobiles manufactured a er2000 must be equipped with ORVR. Phase-in of ORVR for I hi-duty trucks began in model year 2001, and by model year 2003, all new light-duty trucks were required to have ORVR s stems. SECTION DISCUSSION The adopted amendment to §1 5.247, Exemptions, would add paragraph (3) anymotor vehicl dispensing facility where 95% ormore ofthe motorvehicle flee beingfueledonsite is equipped with onboard refueling vapor,., overy equipment. To maintain a facility's exemptstatus under is paragraph, the owneroroperatormust submit documentalon showing the fleet meets the requirements underthis paragr. ph on an annualbasis no later than January31 ofeach year

### t the executive directorordesignatedrepresentative. ANTI-BACKSLIDING DEMONS rRATION The Stage II program is a Fed al Clean Air Act (FCM) specified volatile organic compound ( OC) control strategyfor certain ozone nonattainment areas. St ge II vapor recovery equipment must be certified by EPA to achi ve a minimum 95% control efficiency forVOC emissions, as d tailed in their Stage II Vapor Recovery Systems-Options Paper ated February 7, 2006. ORVR systems capture VOC emission inside the vehiclethus making Stage II vapor recovery equipm nt unnecessary. Therefore, exempting facilities that refuel onl ORVR-equipped vehicles from the Stage II program will not re It in increased VOC emissions because the fugitive emissions ill be captured via the vehicle's ORVR system. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined t e rulemaking is not subject to §2001.0225 because it does n meetthe definition ofa "major environmental rule" as defined · the act. A "majorenvironmental rule" is a rule which is sp ifically intended to protect the environment or reduce risks to uman health from environmental exposure, and that may ad ersely affect in a material way the economy, asectorofthe ec nomy, productivity, competition, jobs, the environment, or the ublic health and safety of the



## ADOPTEDRULES July 13, 2007 32 TexReg 4411