Kathleen Hartnett White, Chairman H. B. "Halph" Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shankle, Executive Director 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing andPreventing Poltution

May 15, 2006

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

Dear Mayor Greene: Docket Nos. 2005-1442-RUL 2005-1443-RUL 2005-1444-RUL

On April 26, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP).

The Commission adopted amendments to §§114.6, 114.312, 114.313, 114.315- 114.318 in 30 Texas Administrative Code (TAC) Chapter 114, Control ofAir Pollution from Motor Vehicles, Subchapter H, Low Emission Fuels, Division 2, Low Emission Diesel; and corresponding revisions to the SIP. This rulemaking amends the definition ofadditive; specifies that the executive director must consult with EPA before approving an alternative test method; revises the documentation requirements for the alternative diesel formulation approvalprocedures; revises the minimum requirements for candidate fuel formulations used for testing purposes; specifies requirements for the test engine used for alternative diesel fuel formulation testing; adds clarifying language to the alternative test sequences; revises the emission comparison requirements to be more consistent with similar California Air Resource Board regulations; clarifiesdemonstration methods for alternative diesel formulation approval; clarifies records requirements relating to sampling; revises reporting requirements for producers with alternative emission reduction plans; establishes procedures that require producers to submit alternativeemissionreductionplans that are eitherdeveloped in accordance with the EPA's Unified Model oruse diesel credits from early introduction oflow-sulfur gasoline in affected counties; and corrects citations and cross-references. (Rule Project No. 2005-063-114-EN)

The Commission also adopted amendments to §114.512 and §114.517 in 30 TAC Chapter 114 and corresponding revisions to the SIP, This rulemaking implements House Bill1540, 79thLegislature, 2005, Regular Session, as well as adds language that the Austin Early Action Compact members have requested be added so as to more greatly protect public health and safety. (Rule Project No. 2005-064-114-EN)

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.usMayor Greene Page 2

The Commission adopted the repeal of §§114.3 114.150, 114.151, and 114.153- 114.157 in 30 TACJ Chapter 114 andcorresponding revisions to the SIP. This action repeals the state regulations implementing the Texas Clean Fleet Program in its entirety, in accordance with Senate Bill 1032, 79th Legislature, Regular Session, 2005. (Rule Project No. 2005-067-114-EN)

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the public hearing, and the accompanying orders. I look forward to your expeditious approval of these SIP revisions.
Sinc/ly,

. ·

# c?J~'-f/tJ/uJ&_

K1thleen Hartnett White Chairman

KHW!lb

cc: The Honorable Rick Perry, Governor ofTexas Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental QualityTexas Commission on Environmental Quality Public Hearings January 10, 2006 Concerning Revisions to 30 TAG Chapter 114,

Control ofAir Pollution from Motor Vehicles Senate Bill1032: Repeal of Low Emission Vehicle Fleet Requirements Rule Project No. 2005-067-114-ENINTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on January 10,
2006, to receive testimony regarding revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor
Vehicles; and corresponding revisions to the Texas state implementation plan.

The adoption repeals the state regulations implementing the Texas Clean Fleet Program in its entirety, in
accordance with Senate Bill1032, 79th Texas Legislature, Regular Session, 2005.

The comment period closed on January 17, 2006. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete record ofthe public hearing and is divided into
the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations (including Order and Texas Register publication)

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle,
Austin, Texas 78753. Forfurther information, please contact Morris Brown at (512) 239-1438 or Erik Gribbin

at (512) 239-2590.

# PUBLIC NOTIFICATION AND PROPOSALPUBLIC NOTIFICATION

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

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

Austin American-Statesman: December5, 2005 Fort Worth Star-Telegram: December 8, 2005 Houston Chronicle: December5, 2005 Beaumont Enterprise: December 5, 2005 Corpus Christi Caller-Times: December 3, 2005 El Paso Times: December 5, 2005 San Antonio Express-News: December 5, 2005 Tyler Morning Telegraph: December 5, 2005 Victoria Advocate: December 6, 2005

2. Publication ofthe proposed rules in the November 25, 2005, issue ofthe Texas Register (30 TexReg 7824).

3. Publication ofthe Notice of Public Hearing in the December 16, 2005, issue ofthe Texas Register (30 TexReg 8473).

4. Correspondence forwarding the notice ofpublic hearings to the following officials and agencies: Speaker ofthe House
Lieutenant Governor
Alamo Area Council of Governments Capital Area Planning Council City of Dallas Department of Environmental and Health ServicesCity of Dallas Department ofAviation City of Fort Worth Environmental Management Department City of Houston Department of Health and Human Services City ofVictoria Planning Department
East Texas Council of Governments

El Paso City-County Health and Environmental District

El Paso Metropolitan Planning Organization

Federal Highway Administration
Galveston County Health District

Harris County Pollution Control Department
Houston-Galveston Area Council

North Central Texas Council of Governments
South East Texas 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 AgencyExample of Newspaper Classified Ad

Aust!n Amer1can-Statesman I! statesman.com**:~~~1day, December~.:**  2005**··--~---~--··-··---...** I -;;;.ICE OF P;;LIC HE.4RINu R'

### •1

11-lf:TEXAS COMMISSION ON ENVIRONMENTAL OUf,LITYON PROPOSED REVISIONS TO 30 lAC CHIIP"IEH 114 AND TO THE STATE

IMPLHilENl A liON PLAN lhl:' 1**exrt~** Conuniss.ior1 on Envi- romneulill Ouiililvwill conduct il public he;u1ng ,o receivt> teiti· ."'o!'v.cnnrefliinlJ revisrom ro 30 rA.C**Cha~ller** 11·1. Control of Air PoUuC\0\'1 frotn Mawr Vehiclt>:;,**~:.~~~~h**the**;~~~uire;~(~;~s** of**i~~:: 3~S2.0**  17; 'Tew.as Govrrnment Codt', Ch.:.pler 2001. Subchilpter**l~; ~nd**  -10 CodP. of Feder<tl rtegu·**~non:. §~LI02,**  of the Unirccl**~late!>** EnvhoumPntnl Prcurttion A!Jency IEPAI**re9ulalion~** cnn- (ernin'cr state**irnpl~mentllliorr** plan.\ (!;!PSI. Apuhlc heiuino wi.ll bE' held ilr**AU~Iin,** Texa.s, on J.anuarv 10

. .:!006. nr**W~OO** .1.m. in l!uildina £. ltoom 2015 ill thp**lex::.~~** Lnmn1ission Oil Em•iron- 111en1al Qu;,IU1• conlfllex locaaed al l2l00 Pnrl; 35 Circle. The**henrin~l** will be muclured 101 the receipt of onl CIT written com·**rnPnl~** b)' lnlerened**per~om.** Reglstralion will l.tegin 30 min·**~j~i~rs~i~~;~~:~,'~;~r~~ ~~:~**  ten statl'menu wherr**cal~d** upon _in order or regismnion. A lime hmit may be**~s"r:tbli,hed** a! the hearing 1(1 ilUure that enuugh lime is**rlllm~ed** for every lnreresred person to speak. There \VIII be llCl open discussion dur-**In~** the hearing; howe\•er. a!=lency stafl membru. w\U be availllb\e Ia**disc~rss** the proposal 30 rnln· utes prror 10 t_he hearing olnd will**~~s7h~ ~~~s~~~;5** **~~o~,;~~s=~** ruiPmaklng would repeal ;.he .mue n!'9Ularlcn!· lmplememlng**~hP TC?~as**  Oe:tm Fleet Program in**~~n:~!u~\U· ;r~3~~,~~~~** **11 ~~a~~~**  ture, JOO!:i. !Rule Projecl-. No.**20!1,-061-114-~N}** II' addition, tht' oroposcd**ruiE'maldn~** would 1rilplemen1 House Dill 1540, 79th legislalure ::!005,**it~** \'tell a\ add**limgu~~** t!tat lhP. Austin Eo""l,ly Aclion lurnpacl memlleh h<rvl:.' requt."!\t•d be added ttl more**9re<~!l.\'** protect public health o'lnd silfel\'. tnule Projf.!ct No. :wo.;-06·1-11·'\-f.Nl Th!• propasecl ruiC"n-wlr.ing would ill'iO**<~mend** lhl' defillilion of o:uldhiv_e: :O\lCcii)• thut {he er.ecuttvc> dtreclor must consuh wHit the llnited**Slo'llt'~** Environ· tnt'nt,d Prt"IIPcUon J\Qell(V !EPA) bt"fou•**~pproving** ,,.; ilhfnhlllve**re~t** /HC'thod; • fe'vise the**do(ttmt"m>~~lon** rettuirelnents lor**ttl~** allent.-.uvr.o d•esel fmnu..ll,lliOil**ilflp~ov,,\ procedure~;** **revi~e** thP. mimmum**''~f)llir~rnenl~** for can- didate luC"I fonnu\all(•ns to onl)• illlow**dh~5el** IIJC'\ whirless !hrm IS )>iiiiS \lei LHiliitm StriiUJ \(l**b~** used. for teslin9 purpost>s;**~peoly** thar Ihe t('sl**~nqine u~ed**  h)1**~hf'.mall\'f'** diewl ftl!!llarmu- lnrion tE!sring rnmr h.we 11 m1niruum o( I**:!~i** hour:, of use**0\f"\l~** f'):hlbil**M·"lbh~** .Ofll:'lalion hefme**h~oinntnq** !he te!.lintt and must nor**exH~f:!d** 11**O~t.** Or**It~** i\pfJ!icahte !Kh.-.ust emissior·,**~TJm.lards** When· tHirlCl lh!? reiP.rcrlC.e fuel; cldd**cl~rifvurg** t.lngu.tg'i' to lhe**<~lt~rn.ttive** "tes"t**sequcr1ce~** to**~Peel!)• llh~**  numl..ler of htH start test**Lycle~** lhJL IIlllS! he _1-wrforrn<>cl lc11 e.1ch sequenc!;';**rf'vr~!:** the**rmls~ion ~ompari!;on** **r'!qwu~mf:'rW** ra be mme comis· tent IYith**~imil;n** L11ilorni.t Air I"!!!§C•tiiC('**Bot~rcJ** rNlUiilliom lw ll!ntm-inn rhf' f'Oli55ions ol lotrll hychocarbom ITH() und non**nt·~rhnne** lwdrocarDr:m:. tt•IMHC) hom the comp.ltison**cr~lc.l,\ation** bul**spccifl•in~** that lhr**E'mis\iou~** r.f THL nnd NMHC nl thr.**'=.1mJidl'lr~** h11?l**tnu~l** no! rxre<.'d lllf emrssion ccnif,c,,lron Sl1lnd.ul1s applic.-.bl'c' w the \'Nr mociP.I of**rh~ re~r**  ('mJine.**cl~rify** : g J**~z ~-~~);n** **~ ~!~**  1**;l~;o ~c~sr** **,7.r it:~:f:**  dedartr_19

- '""'**anpror.nar~ <Lrom~tr;.·**  hvdiOcar!JOrt**<"~~nteul sran~.J;url**  of tltP tuel;**rc;ov1~f** rr 

## I**!?~!~In~-.. ~~.q~i:.P!Ilf'rll~·**  f_OI produceu willi illtern.:uive emis· siun reducllon plans tc tncludt! iniormLlrjon. in their qumrerl\' report thiH i5 required ro be coll!cted in ilccord;rncf' wlrh rhe**SiliT\~iny** and teuing reqUirE'tnents;**e~r.:sbllsh proc~·**  dures !hal cequrr-F:**producer~** to**~ubmi\** ahemntivt: emiuion ro!dUction plitnS lll.J: ate dE-vel· oped in accord.i:mcc wlrh tOe Eflll.'$. Unified model m denlCn!.;trate that the averaye- of all on-road**die~el** fuel praduceri**~~~:~~~~ i~:e;!1:.'** **s~~~~r~~. 1** **~~** oftered tor supply bTr the**c~O::~~~~ ~~~~ea~~~~~~~** **~~!~~** 55% reduction In nitroQP.Il oxide**~mlssions** for the year**~001,** arlrl ar least a 6.2110 reduclion from**~~~~~1~f ~l~~o~;~~J~~~ie~~:**  use m tht' afteCle-d counties, and allow Jllcrnative emission**n~du~rton** ph1ns to usE:**die~t.!l** c1edHs from emly gasoline sultur reduc.lion thJt Can only be qc!'Ht!.tatcd frcn1 !he gasollrr'!**sup~;>lfed b~·**  the producer t(l the**au<~rnrnenr** counrles**~n** 200j, 2004, am1 2005, and can O!llv be used to demonstrate compluince thro_ugtJ 

### Deceml.ter 31, 201o, in aua1nmem cmrntie!i within tin: lexas low emission diesel conlrnl ;ucct: ar1cl correct citations nnd cross-reoiereuce). (note Project No. 200S·063·1 H-EN)**Person~** who have !opP.Ci.:rl com· munit:ali(m or other i!.CCormnodalion lleed5 who are planning tc .a11cnd the hearing .shuuld con1a.:r Hally Vierk, Office ol Legal Setvices, "' IS\2) 239·0177. lieques1s shrmlrt be made as filr in**advolllC~t** as possible. Wrirten comments may bt>**~ubmltred** to Br<1ndon Srnith. MC :206, Chief Engineer's Oftice, Texas Commission on EnviJor'lmenroJI Quality P. 0. l:'UA HOU7. Ausllll,lexas 7B]' 1-308);**l<t!!~d** IP 15121 139 5687; or enr;11terl 10**~ipr\tle:-l"'rceq.n**..lc-.rx.us. All r.onrmenb**sho~ltl rel~nmc:c.·** **th~** ru/("**proj~ct** _number!. rhnt lhey pellllin 10. Lnmmenh rnus1 be rect.'ived by**~:on** IJ.m on J<rmi<H\' 17. 2006. Th!..' ptopojtXf rule:s may be**vi~\yed** on lhi:' t:ornmi!>!>iou':. Wt?b**~ill:'** at**h11p://w't"'W:Il:e~l-~ICLoiC.IX.ll~/llcW/ ntle!.tt.tropos>;>_il~opt.**  html. Fhr hJrtht!t rnform.iltnln.**pl~ns£>** con· liiCT**Mtmi~** Brown. Atr (Ju.1lity**Pl~nnlt\9** .mr! lmplement<J\IOf\ \.)IVi!"otUII, Lil {51 :t) J39·1•1JH or i:Jik. Gribbm. Air Quaht\• l'l,tnrtir,q and**)mpl~tmPm,ltJOJI** [})·,.i>JDf•,**r:.t·l~** I2) 1.1'.1-2)90.**t~:;UP.t!** ill AltHill, '1eJoeaS, 011 I Novemh.:; 30,**;'.llG~**The Texas Commission on Environmental Quality (TCEQ or commission) staff is providing an opportunity for written public comment on the listed Agreed Orders (AOs) in accordance with Texas Water Code (TWC), §7.075. Section 7.075 requires that, before the commissionmay approve the AOs, the commission shall allow the public an opportunity to submit written comments on the proposed AOs. Section7.075 requires that notice of the opportunity to comment must be published in the Texas Registerno later than the 30th day before the date on which the public comment period closes, which in this case is January 16, 2006. Section 7.075 also requires that the commission promptly consider any written comments received and that the commission may withdraw or withhold approval of an AO if a comment discloses factsor considerations that the consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules within the commission’s orders and permits issued in accordance with the commission’s regulatory authority. Additional notice of changes to a proposed AO is not required to be published if those changes are made in response to written comments. A copy of each proposed AO is available for public inspection at both the commission’s central of ce, located at 12100 Park 35 Circle, Building A, 3rd Floor, Austin, Texas 78753, (512) 239-3400 and at the applicable regional of ce listed as follows. Comments about an AO should be sent to the attorney designated for the AO at the commission’s central of ce at P. O. Box 13087, MC 175, Austin, Texas 78711-3087 and must be received by 5:00 p.m. on January 16, 2006. Comments may also be sent by facsimile machine to the attorney at (512) 239-3434.The designated attorney is available to discuss the AO and/or the comment procedure at the listed phone number; however, §7.075 provides that comments on an AO should be submitted to the commission in writing

. (1) COMPANY: Al Barkaat Enterprises, Inc. dba Amans GroceryStore; DOCKET NUMBER: 2005-0184-PST-E; TCEQ ID NUMBERS: 36861 and RN102719895; LOCATION: 703 East Second Street, El Campo, Wharton County, Texas; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC §37.815(a) and (b), by failing to demonstrate acceptable nancial assurance for taking corrective action and for compensatingthird parties for bodily injury and property damage caused by accidental release arising from the operation of petroleum underground storage tanks (USTs); PENALTY: $1,120; STAFF ATTORNEY: Amie Richardson, Litigation Division, MC 175, (512) 239-2999; REGIONAL OFFICE: Houston Regional Of ce, 5425 Polk Avenue, Suite H, Houston, Texas 77023-1486, (713) 767-3500. (2) COMPANY: American Chrome & Chemicals L.P.; DOCKET NUMBER: 2000-0711- MLM-E; TCEQ ID NUMBER: RN100210814; LOCATION: 3800 Buddy Lawrence Drive on the south bank of the Corpus Christi Inner Harbor, Corpus Christi, Nueces County, Texas; TYPE OF FACILITY: manufacturing plant for processing chromite ore and producing chromium compounds; RULES VIOLATED: 30 TAC §335.4 and §327.5, and TWC, §26.121 and §26.266, by failing to prevent an unauthorized discharge of groundwater contaminated with industrial waste that originated from the facility into surface waters of the state because the coffer dam groundwater recovery system was not in operation from January 17 - January 27, 2000; 30 TAC §305.125(1), Texas Pollutant Discharge Elimination System Permit Number 00349, Efuent Limitations and Monitoring Requirement 1, and TWC, §26.121, by failing to comply with permitted limits at Outfall 101A; 30 TAC §116.115(c) and Air Permit Number 7736, Special Condition Number 1, by failing to comply with special permit conditions by allowing nitrous oxide emissions in excess of the permit limit for a failed stack test dated June 29, 2000; PENALTY: $20,625; STAFF ATTORNEY: Amie Richardson, Litigation Division, MC 175, (512) 239-2999; REGIONAL OFFICE: Corpus Christi Regional Of ce, 6300 Ocean Drive, Suite 1200, Corpus Christi, Texas 78412-5503, (361) 825-3100. (3) COMPANY: Exxon Mobil Corporation dba ExxonMobil Rening & Supply Company; DOCKET NUMBER: 2004-0818-AIR-E; TCEQ ID NUMBERS: HG-0232-Q and RN102579307; LOCATION: 2800 Decker Drive, Baytown, Harris County, Texas; TYPE OF FACILITY: petroleum rening plant; RULES VIOLATED: 30 TAC §116.715(a), TCEQ Flexible Permit Number 18287/PSD-TX-730M2, and Texas Health and Safety Code, §382.085(b), by failing to prevent unauthorized emissions; PENALTY: $7,500; STAFF ATTORNEY: Laurencia Fasoyiro, Litigation Division, MC R-12, (713) 422-8914; REGIONAL OFFICE: Houston Regional Of ce, 5425 Polk Avenue, Suite H, Houston, Texas 77023-1486, (713) 767-3500. (4) COMPANY: MBE, Inc. dba Bryan’s 2 and dba Bryan’s 3; DOCKET NUMBER: 2003- 1144-PST-E; TCEQ ID NUMBERS: RN101432334 and RN102375557; LOCATION: 901 East Main, San Augustine, and 462 State Highway 7 East, San AugustineCounty, Texas; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: at Bryan’s 2, 30 TAC §334.45(c)(3)(A), by failing to install a secure anchor at the base of the dispenser in each pressurized delivery or product line and a UL-listed emergency shutoff valve in piping systems in which regulated substances are conveyed under pressure to an aboveground dispensing unit; 30 TAC §37.815(a) and (b), by failing to demonstrate acceptable nancial assurance for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs; and 30 TAC §334.48(c), by failing to conduct inventory control and reconciliation for all USTs involved in the retail sales of petroleum substances used as motor fuel; at Bryan’s 3, 30 TAC §334.45(c)(3)(A), by failing to install a secure anchor at the base of the dispenser in each pressurized delivery or product line and a UL-listed emergency shutoff valve in piping systems in which regulated substances are conveyed under pressure to an aboveground dispensing unit; 30 TAC §334.50(b)(2)(A)(i)(III), by failing to test a line detector at least once per year for performance and operational reliability; 30 TAC §334.48(c), by failing to reconcile inventory control records on a monthly basis in a manner suf ciently accurate to detect a release which equals or exceeds the sum of 1% of the total substanceow-through for the month plus 130 gallons; and 30 TAC §334.22(a) and §334.128, by failing to pay UST and aboveground storage tank fees; PENALTY: $18,000; STAFF ATTORNEY: Courtney St. Julian, Litigation Division, MC 175, (512) 239-0617; REGIONAL OFFICE: Beaumont Regional Of ce, 3870 Eastex Freeway, Beaumont, Texas 77703-1892, (409) 898-3838. TRD-200505616 Stephanie Bergeron Perdue Acting Deputy Director, Of¿ce of Legal Services Texas Commission on Environmental Quality Filed: December 6, 2005

Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 114 The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony concerning revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, under the requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102, of the United States Environmental Protection Agency (EPA) regulations concerning state implementation plans (SIPs).



### IN ADDITION December 16, 2005 30 TexReg 8473A public hearing will be held in Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E, Room 201S, 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 or written statements when called upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during the hearing;however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.The proposed rulemaking would repeal the state regulations implementing the Texas Clean Fleet Program in its entirety, in accordance with Senate Bill 1032, 79th Legislature, 2005. (Rule Project No. 2005- 067-114-EN) In addition, the proposed rulemaking would implement House Bill 1540, 79th Legislature, 2005, as well as add language that the Austin Early Action Compact members have requested be added to more greatly protect public health and safety. (Rule Project No. 2005-064-114-EN) The proposed rulemaking would also amend the denition of additive;specify that the executive director must consult with the EPA before approving an alternative test method; revise the documentation requirements for the alternative diesel formulation approval procedures; revisethe minimum requirements for candidate fuel formulations to only allow diesel fuel with less than 15 parts per million sulfur to be used for testing purposes; specify that the test engine used for alternative diesel fuel formulation testing must have a minimum of 125 hours of use andexhibit stable operation before beginning the testing and must not exceed 110% of its applicable exhaust emission standards when using the reference fuel; add clarifying language to the alternative test sequences to specify the number of hot start test cycles that must be performed for each sequence; revise the emission comparison requirements tobe more consistent with similar California Air Resource Board regulations by removing the emissions of total hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from the comparison calculation but specifying that the emissions of THC and NMHC of the candidate fuel must not exceed the emission certication standards applicable tothe year model of the test engine; clarify that only those records relating to sampling require a statement declaring the appropriate aromatic hydrocarbon content standard of the fuel; revise reporting requirementsfor producers with alternative emission reduction plans to include information in their quarterly report that is required to be collected inaccordance with the sampling and testing requirements; establish procedures that require producers to submit alternative emission reduction plans that are developed in accordance with the EPA ’s Unied model to demonstrate that the average of all on-road diesel fuel produced in any given calendar year that is sold, offered for sale, supplied, or offered for supply by the producer in the counties affected by these rules achieves at least a 5.5% reduction in nitrogen oxide emissions for the year 2007, and at least a 6.2% reduction from the average of all non-road diesel produced by the producer for use in the affected counties, and allow alternative emission reduction plans to use diesel credits from early gasoline sulfur reduction that can only be generated from the gasoline supplied by the producer to the attainment counties in 2003, 2004, and2005, and can only be used to demonstrate compliance through December 31, 2010, in attainment counties within the Texas low emission diesel control area; and correct citations and cross-references. (Rule Project No. 2005-063-114-EN). Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Holly Vierk, Of ce of Legal Services, at (512) 239-0177. Requests should be made as far in advance as possible. Written comments may be submitted to Brandon Smith, MC 206, Chief Engineer’s Of ce, Texas Commission on Environmental Quality, P. O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-5687; or e-mailed to siprules@tceq.state.tx.us. All commentsshould reference the rule project numbers that they pertain to. Comments must be received by 5:00 p.m. on January 17, 2006. The proposed rules may be viewed on the commission’s web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Morris Brown, Air Quality Planning and Implementation Division, at (512) 239-1438 or Erik Gribbin, Air Quality Planning and Implementation Division, at (512) 239-2590. TRD-200505569 Stephanie Bergeron Perdue Director, Environmental Law Division Texas Commission on Environmental Quality Filed: December 1, 2005

Notice of Water Rights Application Notice issued November 30, 2005: APPLICATION NO. 5893; Blanch Double Diamond Development Corp., 415 Highway 46 West, Boerne, Texas, 78006, applicant, has applied to the Texas Commission on Environmental Quality (TCEQ) for a Water Use Permit pursuant to 11.143, Texas Water Code, and TCEQ Rules 30 Texas Administrative Code (TAC) 295.1, et seq. Blanch Double Diamond Development Corp., applicant, seeks to maintain an existing, exempt on-channel dam and reservoir with a capacity of 25 acre-feet of water (normal maximum operating level) on an unnamed tributary of Deep Hollow Creek, tributary of Frederick Creek, tributary of Cibolo Creek, tributary of the San Antonio River, San Antonio River Basin, with a surface area of 3.5 acres of land for in-place recreation purposes in Kendall County. The dam is located in the C&M. R.R. Co. Original Survey No. 283, Abstract No. 746. Station 0 +00 on the centerline of the dam is S 72.858 W, 1,462 feet from the northeast corner of the C&M. R.R. Co. Survey at Latitude 29.753 N, Longitude 98.792 W, approximately 5.0 miles southwest direction from the City of Boerne, Kendall County, Texas. Ownership of the innundated land is evidenced by a General Warranty Deed led as Volume 866, Pages 472 though 482 in the of cial records of Kendall County. The Commission will review the application as submitted by the applicant and may or may not grant the applicationas requested. The application was received on March 24, 2005. Additional information was received on June 14, August 4, and November 3, 2005. The application was declared administratively complete and led with the Of ce of the Chief Clerk on August 12, 2005. Written public comments and requests for a public meeting should be received in the Of ce of Chief Clerk, at the address provided in the information section below, within 30 days of the date of newspaper publication of the notice. INFORMATION SECTION A public meeting is intended for the taking of public comment, and is not a contested case hearing. The Executive Director can consider approval of an application unless a written request for a contested case hearing is led. To request a contested case hearing, you must submit the following: (1) your name (or for a group or association, an of cial representative), mailing address, daytime phone number, and fax number, if any: (2) applicant’s name and permit number; (3) the statement "[I/we] request a contested case



### 30 T exReg 8474 December 16, 2005 Texas Register§501.12(l)). No new sources of air contaminants will be authorized and the proposed revisions will maintain the same level ofemissions control as the existing rules. The CMP policy applicable to this rulemaking action is the policy that commission rulescomply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies with 40 Code of Federal Regulations Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31 TAC §505.22(e), the commission afrms that this rulemaking action is consistent with CMP goals and policies. EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM Because §111.155 is an applicable requirement under 30 TACChapter 122, Federal Operating Permits Program, owners or operators subject to the Federal Operating Permit Program must, consistent with the revision process in Chapter 122, revise their operating permit to delete requirements relating to §111.155. ANNOUNCEMENT OF HEARING The commission will hold a public hearing on this proposal in Austin on December 15, 2005, at 2:00 p.m. in Building E, Room 254S, at the commission’s central ofce located at 12100 Park35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however,commission staff members will be available to discuss the proposal 30 minutes before the hearing and will answer questions before and after the hearing. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact Joyce Spencer, Ofce of Legal Services, at (512) 239-5017. Requests should be made as far in advance as possible. SUBMITTAL OF COMMENTS Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Ofce of Legal Services, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Comments mustbe received by 5:00 p.m., January 13, 2006, and should reference Rule Project Number 2005-013-111- EN. Copies of the proposal can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Kathy Singleton, Air Quality Planning and Implementation Division, at (512) 239-6098. STATUTORY AUTHORITY The repeal is proposed under Texas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code (THSC), §382.017, concerningRules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeal is also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state air. The proposed repeal implements THSC, §§382.002, 382.011, 382.012, 382.016, and 382.017. §111.155. Ground Level Concentrations. This agency hereby certies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.
Filed with the Ofce of the Secretary of State on November 10, 2005. TRD-200505198 Stephanie Bergeron Perdue Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 25, 2005 For further information, please call: (512) 239-5017



### CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES The Texas Commission on Environmental Quality (TCEQ or commission) proposes the repeal of §§114.3, 114.150, 114.151, and 114.153 - 114.157. The commission also proposes to submit to the United States Environmental Protection Agency (EPA) revisions to the state implementation plan (SIP) addressing the repeal of these rules. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The Federal Clean Air Act Amendments of 1990 (FCAA), §182(c)(4), required states to either adopt the Federal Clean Fuel Fleet (FCFF) Program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions in ozone-producing and toxic air emissions equal to those achieved under the FCFF Program.The FCFF Program requires federal, state, and local governments, and private eets to purchase low emission vehicles (LEVs) in areas classied by the EPA as being in serious, severe, or extreme nonattainment of the National Ambient Air Quality Standards (NAAQS) for ozone and carbon monoxide (CO). The federal program mandates increasing percentages of LEV purchases by the affected eets in the covered nonattainment areas in vehicle model years 1999, 2000, and 2001. The State of Texas, in a committal SIP revision submitted to the EPA on November 15, 1992, opted out of the FCFF Program in order to implement a eet emission control program designed by the state. In 1994, the commission submitted the state’s opt-out program in a SIP revision to the EPA and adopted rules to implement the Texas Alternative Fuel Fleet Program as a substitute to the FCFF Program in the areas of Texas classied by EPA as being in serious, severe, or extreme nonattainment of the NAAQS for ozone or CO. In 1995, the 74th Legislature modied the state’s alternative fuels program through the passage of Senate Bill (SB) 200. The legislature facilitated fuel neutrality through the incorporation of the federal LEV standards for certain affected eets regardless



### 30 T exReg 7824 November 25, 2005 Texas Registerof fuel type. The legislation required the commission to adopt regulations to implement the program in all ozone nonattainment areas. In response, the commission adopted regulations to implement the modied program and developed a revision to the SIP outlining the state’s substitute program to the FCFF Program. However, the 75th Legislature met in 1997 and removed the commission’s authority to require the program in moderate nonattainment areas through passage of SB 681. This new legislation limited the commission’s authority to the serious and above ozone nonattainment areas. In addition, SB 681 modied the state’salternative fuels program. The legislature retained the basic requirement of LEV purchases, but modied the implementation schedule, added an additional exception from the program, and altered the grandfathering provisions of the statute. This newlegislation required the commission to adopt regulations to implement the program. On December 16, 1997, the EPA nalized federal regulations for the National Low Emission Vehicle (NLEV) Program. TheNLEV Program was developed to allow manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that were more stringent than the EPA could mandate prior to 2004. The EPA made a nal determination on implementation of NLEVon March 2, 1998. With the NLEV Program successfully implemented nationally, the commission was able to use emission reductions achieved through the NLEV Program to offset any shortfall in emission reductions resulting from the state’s substitute for the FCFF Program. On July 29, 1998, the commission adopted regulations and a revision of the Texas Clean Fleet (TCF) SIP to set forth the LEV requirements for mass transit eets in each of the serious and above nonattainment areas, and for local government and private eets operated primarily within the serious and above nonattainment areas. These rules satised the state requirements to adopt rules to implement SB 681. On February 10, 2000, the EPA nalized federal regulations forthe Tier II emission standards for all passenger vehicles, including sport utility vehicles (SUVs), minivans, vans, and light-duty trucks that were 77% - 95% cleaner than the current emissionstandards. The new emission standards set a corporate average standard for nitrogen oxides of 0.07 grams per mile for all classes of passenger vehicles beginning in 2004. This includesall light-duty trucks, as well as the largest SUVs. Vehicles weighing less than 6,000 pounds will be phased-in to this standard between 2004 and 2007. Later that same year on October 6, 2000, the EPA nalized federal regulations for emission standards for model year 2004 and newer heavy-duty diesel engines (HDDE)and vehicles that were equivalent to the ultra low emission vehicle (ULEV) standards under the FCFF Program. In June 2005, the state statutes requiring the commission to establish and implement LEV requirements for mass transit eets and for private and local government eets (i.e., the TCF Program) as codied in Texas Health and Safety Code (THSC), Chapter 382, Subchapter F, were repealed by SB 1032 by the 79th Legislature, 2005. Currently, the commission’s rules in §§114.3 and 114.150, 114.151, and 114.153 - 114.157 implementing these statutes require mass transit authorities, private companies, and local government eets in the Houston-Galveston-Brazoria (HGB), Dallas-Fort Worth (DFW), and El Paso ozone nonattainment areas to ensure that a specied percentage of their new eet vehicle purchases are vehicles that have been certied by the EPA to the federal LEV standards. The commission had recommended that the Texas Legislature repeal these enabling statutes because the LEV standards havebeen superseded by the cleaner federal Tier II emission standards that were promulgated in February 2000 and the federal2004 heavy-duty engine emission standards that were promulgated in October 2000. As a result of these new emission standards, requiring eets to comply with a mandatory LEV percentof-purchase requirement is no longer an effective method to reduce emissions from eet vehicles. In addition, the continued implementation of a mandatory vehicle purchase program is no longer necessary since, under the Texas Emissions Reduction Plan (TERP), the commission’s Emissions Reduction Incentive Grants Program provides nancial incentives to private, local government (including school districts), and mass transit eets to voluntarily purchase the cleanest vehicles possible that meet their operational needs. The proposed repeal of these rules would have no impact on the emissions from eets since all new eet vehicles are being certi-ed by the EPA to either the federal Tier II emission standards or the federal 2004 heavy-duty engine emission standards, both ofwhich are cleaner than the federal LEV standards currently being required under these rules. In addition, the proposed repeals would remove an administrative burden since the affected eets would no longer be required to submit biennial eet compliance reports to the commission.In conjunction with the proposed repeal of these rules, the commission proposes to revise the SIP to remove the TCF Programas an ozone control strategy since the federal emission standards for model year 2004 and later light-duty and heavy-duty motor vehicles are more stringent than those required by the FCFF Program as outlined in the FCAA. The federal emission standards for HDDE in model years 2004 - 2006 are equivalent to the heavy-duty ULEV standards under the FCFF Program and the federal standards for HDDE in model years 2007 and laterare approximately 90% cleaner than ULEV. The emission reductions achieved by the Tier II and HDDE standards far surpassthe emission reductions that would be expected from implementation of the TCF Program in any of the state’s ozone nonattainment areas. The commission requests that the EPA accept the implementation of the Tier II and HDDE emission standards as a substitute to the FCFF Program in the areas of Texas classiedby the EPA as being in serious, severe, or extreme nonattainment of the NAAQS for ozone or CO. SECTION BY SECTION DISCUSSION The proposed rulemaking would repeal §114.3 in Subchapter A and §§114.150, 114.151, and 114.153 - 114.157, Subchapter E, in its entirety, in accordance with the directive indicated by SB 1032 by the 79th Legislature.FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTWalter Perry, Analyst, Strategic Planning and Assessment Section, determined that for the rst ve-year period the proposed repeals are in effect, no signicant scal implications are anticipated for the agency or other units of state or local government. The proposed action implements SB 1032, and would repeal theexisting rules governing the TCF Program. The standards identied under this program have since been superseded by the cleaner federal Tier II emission standards and the federal 2004heavy-duty engine emission standards. The continued implementation of the TCF Program is no longer necessary. Under TERP, the commission’s Emissions Reduction Incentive Grants



### PROPOSED RULES November 25, 2005 30 TexReg 7825Program provides nancial incentives to private, local government (including school districts), and mass transit authorities to voluntarily purchase the cleanest vehicles possible that meet their operational needs. The vehicles purchased through thisprogram meet or exceed the new Tier II and federal 2004 heavyduty engine emission standards. The proposed repeals would affect all mass transit authorities in the state and all state government, local government, and private eets in the HGB, DFW, and El Paso ozone nonattainment areas. Under the existing rules, the affected entities were required to report their percentage of the eet purchases that were certi-ed to be compliant with the EPA ’s federal LEV standards. Entities that were required to report this information to the agencyon a biennial basis would no longer be required to report the information or maintain compliance records. State and local governments may realize a cost savings as a result of the reduced administrative costs required to ensure that a percentage of their new eet vehicle purchases are certied by the EPA to meet the LEV standards and the costs to prepare and submit compliancereports on a biennial basis. These cost savings are not anticipated to be signicant. PUBLIC BENEFITS AND COSTS Mr. Perry also determined that for each year of the rstve years the proposed repeals are in effect, the public benet anticipated from the changes seen in the proposed action would be a more efcient use of state resources. The proposed repeal of the TCF rules would eliminate the needfor mass transit authorities in the state, as well as state and local governments, and private eets that operate primarily in the HGB, DWF, and El Paso ozone nonattainment areas to report the percentage of their eet purchases that have been certied to be compliant with the EPA ’s federal LEV standards. The affected entities that were required to report this information to the agency on a biennial basis would no longer be required to report the information or maintain compliance records. The anticipated cost savings associated with the proposed action would result from the reduction in administrative costs required to ensure that a percentage of their neweet vehicle purchases are certied by the EPA to meet the LEV standards and the costs to prepare andsubmit compliance reports on a biennial basis. These cost savings are not anticipated to be signicant. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT No adverse scal implications are anticipated for small or microbusinesses as a result of the proposed action. The repeal ofthe rules would result in no additional costs for small and microbusinesses. Small and micro-businesses would experience the same potential cost savings as local governments and industry. LOCAL EMPLOYMENT IMPACT STATEMENT The commission reviewed this proposed action and determinedthat a local employment impact statement is not required because the proposed repeals do not adversely affect a local economy in a material way for the rst ve years that the proposed repeals are in effect. DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the proposed repeals in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the repeals do not meet the denition of a "major environmental rule." Under Texas Government Code, §2001.0225, "major environmental rule" means a rule the specic intent of which is to protect the environment or reduce risks to human health from environmental exposure, andthat may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed repeals would eliminate commissionrules that currently require mass transit authorities, private companies, and local government eets in the HGB, DFW, and El Paso ozone nonattainment areas to ensure that a specied percentage of their neweet vehicle purchases are vehicles certiedby the EPA as LEVs under the federal LEV standards. The proposed action is a rules repeal, and it is not specically intended to protect the environment or reduce risks to human health from environmental exposure. The TCF Program currently regulatesa sector of the economy. Repeal of the program is therefore unlikely to adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs. Under TERP, the commission’s Emissions Reduction Incentive Grants Program provides nancial incentives to private, local government (including school districts), and mass transit eets to voluntarilypurchase the cleanest vehicles possible that meet their operational needs. This means the repeals are also unlikely to adversely affect in a material way the environment or public health and safety. Because the repeals would not adversely affect in amaterial way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state, the repeals do not t the Texas Government Code, §2001.0225, denition of "major environmental rule." Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the proposed repeals do not constitute a major environmentalrule, a regulatory impact analysis is not required. The commission invites public comment regarding this draft regulatory impact analysis determination. TAKINGS IMPACT ASSESSMENT Under Texas Government Code, §2007.002(5), "taking" means: 1) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private realproperty owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or 2) a governmental action that affects an owner’s private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner’s right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.The commission completed a taking impact analysis for the proposed repeals. The repeal of the rules would not affect privatereal property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The repeals also would not affect private real property in a manner that restricts or limits an owner’s right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed repeals would not cause a taking under Texas Government Code, Chapter 2007.



### 30 T exReg 7826 November 25, 2005 Texas RegisterCONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined the proposed repeals relate to anaction 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 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the proposed repeals are consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission protectair quality in coastal areas. The proposed action and SIP revision would ensure that the repeals comply with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality Standards, and 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. This proposed action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e).The commission solicits comments on the consistency of the proposed repeals with the CMP during the public comment period. EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAMChapter 114 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program; therefore, owners or operators subject to the federal operating permit program must, consistent with the revision process in Chapter 122, revisetheir operating permit to include the revised Chapter 114 requirements at their sites affected by the revisions to Chapter 114. ANNOUNCEMENT OF HEARING The commission will hold a public hearing on this proposal in Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E,Room 201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. The hearing willbe 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 or written statements whencalled upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed forevery interested person to speak. There will be no open discussion during the hearing; however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Holly Vierk, Ofce of Legal Services, at (512) 239-0177. Requests should be made as far in advance as possible. SUBMITTAL OF COMMENTS Written comments may be submitted to Brandon Smith, MC 206, Chief Engineer’s Ofce, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-5687; or emailed to siprules@tceq.state.tx.us . All comments should reference Rule Project Number 2005-067-114-EN. Comments mustbe received by 5:00 p.m. on January 17, 2006. The proposed rules may be viewed on the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Morris Brown, Air Quality Planning and Implementation Division, at (512) 239-1438. 

### SUBCHAPTER A. DEFINITIONS 30 TAC §114.3 (Editor’ s note: The text of the following section proposed for repeal will not be published. The section may be examined in the ofces of the Texas Commission on Environmental Quality or in the Texas Register of

ce, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repeal is proposed under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeal is also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizesthe commission to prepare and develop a general, comprehensive plan for the control of the state’s air; and §382.019, which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles. The proposed repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019. §114.3. Low Emission Vehicle Fleet Denitions. This agency hereby certies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.
Filed with the Ofce of the Secretary of State on November 10, 2005. TRD-200505191 Stephanie Bergeron Perdue Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 25, 2005 For further information, please call: (512) 239-0177



### SUBCHAPTER E. LOW EMISSION VEHICLE FLEET REQUIREMENTS 30 TAC §§114.150, 114.151, 114.153 - 114.157 (Editor’ s note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the ofces of the Texas Commission on Environmental Quality or in the Texas Register



### PROPOSED RULES November 25, 2005 30 TexReg 7827ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repeals are proposed under TWC, §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission toadopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeals are also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; and §382.019, which authorizes the commission to adoptrules to control and reduce emissions from engines used to propel land vehicles. The proposed repeals implement THSC, §§382.002, 382.011, 382.012, and 382.019. §114.150. Requirements for Mass Transit Authorities. §114.151. Requirements for Local Governments and Private Entities. §114.153. Exceptions. §114.154. Exceptions for Certain Mass Transit Authorities. §114.155. Reporting. §114.156. Record Keeping. §114.157. Low Emission Vehicle Fleet Program Compliance Credits. This agency hereby certies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.
Filed with the Ofce of the Secretary of State on November 10, 2005. TRD-200505192 Stephanie Bergeron Perdue Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 25, 2005 For further information, please call: (512) 239-0177



### SUBCHAPTER J. OPERATIONAL CONTROLS FOR MOTOR VEHICLES DIVISION 2. LOCALLY ENFORCED MOTOR VEHICLE IDLING LIMITATIONS 30 TAC §114.512, §114.517 The Texas Commission on Environmental Quality (commission or TCEQ) proposes amendments to §114.512 and §114.517; and corresponding revisions to the state implementation plan (SIP).The amended rules will be submitted to the United States Environmental Protection Agency (EPA) as proposed revisions to the SIP. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The concept of an early, voluntary eight-hour air quality plan, or early action compact (EAC), was endorsed by EPA Region 6 in June 2002, then slightly modied and made available nationally in November 2002. The EACs are tailored to local needs and driven by local decisions. A key point of an EAC is the exibility afforded areas to select emission reduction measures. Based on quality science, signatories may choose the combination of measures that meet both local needs and emission reduction targets. Each EAC recognizes that not every entity within the EAC area will implement every measure.Chapter 114, Subchapter J, Operational Controls for Motor Vehicles, Division 2, Locally Enforced Motor Vehicle Idling Limitations rule, was proposed at the request of the local air qualityplanning organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for use as a control strategy in its EAC agreement to maintain attainment with the federal eight-hour ozone national ambient air quality standards. The rule package also provided local governments in other areas of the state the option of applying these rules in their areas when additional control measures were needed to achieve or maintain attainment of the federal eight-hour ozone standard in the future. The rules were adopted on November 17, 2004.The December 18, 2002, EAC committed the commission to incorporate a Clean Air Action Plan for the Austin area into the SIP and adopt a revised SIP by December 31, 2004. The idling restriction rule was part of that attainment demonstration. While the Austin Metropolitan Statistical Area (MSA) was monitoringattainment with the eight-hour ozone standard, future monitoring could have shown nonattainment. Therefore, members of the Austin MSA worked to ratify a memorandum of agreement (MOA) with the TCEQ that would allow them to enforce the idlingrestriction rule in their region. The Locally Enforced Idling Restriction MOA was signed by the commission and members of the Austin EAC area on August 1, 2005. In meetings with ofcials of the Austin EAC to develop the idling rule MOA, concerns arose regarding language in the locally enforced idling restrictions. Austin EAC members voiced concern that parts of §114.517, Exemptions, were ambiguous and needed revision. Members of the EAC felt that §114.517(7) and (8) could be misinterpreted to mean that a transit vehicle could idle for a total of one hour. There was also concern that the commission’s rule conicted with Texas Departmentof Transportation (TxDOT) guidelines for vehicle idling by employees. Austin EAC members brought to the commission’s attention TxDOT’s policy regarding idling. The guidelines advise employees to idle their vehicles to operate the air conditioner orheating system for employee health and safety while they perform an essential job function related to roadway construction or maintenance. In many instances on-road and off-road vehicles at roadway construction sites must remain in idle mode during normal operations. The commission agrees with the Austin EAC members that the locally enforced idling restrictions should be revised in light of these concerns. At the request of the Austin



### 30 T exReg 7828 November 25, 2005 Texas RegisterKathleen Hartnett White, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shankle, ExecutiveDirector 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas byReducing andPreventingPollution

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 Conunission on Environmental Quality will conduct a public hearing to receive testimony concerning revisions to 30 TAC Chapter 114, Control ofAir Pollution from Motor Vehicles, under the requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederalRegulations §51.102, ofthe United States Environmental Protection Agency (EPA) regulations concerning state implementation plans (SIPs).

A public hearing will be held in Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E, Room 201S, at the Texas ConunissiononEnvironmental Quality complex located at 12100Park 35 Circle. The hearing will be structured for the receipt oforal or written conunents by interestedpersons. Registration will begin 30minutes prior to the hearing. Individuals may present oral or written statements when called upon in order ofregistration. A time limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during the hearing; however, agency staffmembers will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

The proposedrulemaking would repeal the state regulations implementing the Texas CleanFleetProgram in its entirety, in accordance with Senate Bill1032, 79th Legislature, 2005. (Rule Project No. 2005-067- 114-EN)

In addition, the proposed rulemaking would implement House Bill 1540, 79th Legislature, 2005, as well
as add language that the Austin Early Action Compact members have requested be added to more greatly protect public health and safety. (Rule Project No. 2005-064-114-EN)

The proposed rulemaking would also amend the definition ofadditive; specify that the executive director must consult with the United States Environmental Protection Agency (EPA) before approving an alternative test method; revise the documentation requirements for the alternative diesel formulation approvalprocedures; revise the minimumrequirements for candidate fuel formulations to only allow diesel fuel with less than 15 parts per million sulfur to be used for testing purposes; specify that the test engine used for alternative diesel fuel formulation testing must have a minimum of 125 hours ofuse and exhibit stable operation before beginning the testing and must not exceed 110% ofits applicable exhaust emission standards when using the reference fuel; add clarifying language to the alternative test sequences to specify the number of hot start test cycles that must be performed for each sequence; revise the emission comparison requirements to be more consistent with similar California Air Resource Board regulations by removing the emissions oftotal hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from thecomparison calculation but specifying that the emissions ofTHC and NMHC ofthe candidate fuel must not exceed the emission certification standards applicable to the year model ofthe test engine; clarify that only those records relating to sampling require a statementdeclaring the appropriate aromatichydrocarbon content standard of the fuel; revise reporting requirements for producers with alternative emission reduction plans to include information in theirquarterly report that is required to be collected in accordance with the sampling and testing requirements; establish procedures that require producers to submit alternative emission reduction plans that are developed in accordance with the EPA's Unified model to demonstrate that the average of all on-road diesel fuel produced in any given calendar year that is sold, offered for sale, supplied, or offered for supply by the producer in the counties affected by these rules achieves at least a 5.5% reduction in nitrogen oxide emissions for the year 2007, and at least a 6.2% reduction from the average ofall non-roaddiesel producedby the producerfor use in the affected counties, and allow alternative emissionreductionplans to use diesel credits from early gasoline sulfur reductionthat
can only be generated from the gasoline suppliedby the producerto the attainment counties in 2003, 2004, and 2005, and can only be used to demonstrate compliance through December 31, 2010, in attainment counties within the Texas low emission diesel control area; and correct citations and cross-references. (Rule Project No. 2005-063-114-EN)

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Holly Vierk, Office of Legal Services, at (512) 239-0177. Requests should be made as far in advance as possible.

Written comments may be submitted to Brandon Smith, MC 206, Chief Engineer's Office, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239- 5687; or emailed to siprules@tceq.state.tx.us. All cmmnents should reference the rule project numbers that they pertain to. Cmmnents must be received by 5:00p.m. on January 17, 2006: Theproposed rules may be viewed onthe cmmnission'sWeb site athttp://www.tceq.state.tx.us!nav!ruleslpropose _adopt.html. Forfurther information, please contactMorris Brown, Air Quality Planning and ImplementationDivision, at (512) 239-1438 or ErikGribbin, Air Quality Planning and ImplementationDivision, at (512) 239-2590.

Issued in Austin, Texas, on November 30, 2005.

# WRITTEN AND ORAL TESTIMONYReference Number**w~1** W-2 INDEX OF WRITTEN TESTIMONY

Submitted by
Brandt Mannchen, Sierra Club, Houston Regional Group

Thomas Diggs, United States Environmental Protection Agency

# SIERRA CLUB

FOUNDED 1892



### December 13, 2005
Mr. Brandon Smith Chief Engineer's Office Texas Commission on Environmental Quality MC206 P.O. Box 13087 Austin, Texas 78711-3087
Dear Mr. Smith, 

## HoustonRegional Group P. 0.Box.3021 Houston, Texas 77253-3021 713-895-9309 http://texas.sierraclub.org/houston/



### Enclosed are the comments of the Houston -Regional Group of the Sierra Club (HSC) regarding the Texas Commission on Environmental Quality's (TCEQ) proposed repeal of 114.3, 114.150, 114.151, and 114.153-114-157, Low Emission Vehicle Fleet Requirements; amendments to 114.512 and 114.517, Locally Enforced Motor Vehicle Idling Limitations; and amendments to 114.6, 114.312, 114.313, and 114.315-114.318, Definitions and Low Emission Diesel. 1) The HSC is concerned about the constant changes that TCEQ has made to the Low Emission Vehicle Fleet Requirements program. We understand that some of these changes may have been predicated by the Texas Legislature. However, as a general rule, for several years TCEQ required that fleet owners conduct business in a certain way. Then TCEQ changed the program. Now TCEQ proposes a repeal of all the requirements.
The HSC is concerned that this leads to economic inefficiencies; operational inefficiencies; higher costs for businesses and consumers; disillusionment with the law; and temporary or non-existent reductions in air pollutants from motor vehicle fleets. The HSC is concerned that the Low Emission Vehicle Fleet Requirements were used to meet legal requirements but were not used as a long-term commitment by TCEQ to reduce emissions from fleet owners. TCEQ must look more carefully at its control strategies to determine whether they will be needed in the long-term and are notjust short-term stop-gap efforts. 2) Regarding the proposed changes to the Locally Enforced Motor Vehicle Idling Limitations, 114.512 and 114.517, the HSC supports these changes. 3) Regarding the proposed changes to Definitions and Low Emission Diesel, 114.6, 114.312, 114.313, and 114.315-114.318, the HSC is opposed to any proposal that allows alternative emission reduction plans to be labeled as "confidential business information" and kept from the public. It is one thing to

"Whenwetryto pickout anything

### byitself, we fmd 

### it hitchedto everything else 

### in theuniverse."

### johnMftir

Printed on 100% Kena£tree free paper

### have some informc;ition that is confidential and placed in a separate file. It is entirely a different situation to allow entire plans to be labeled as confidential and hidden from the public. The HSC opposes any such regulation, rule, program, or policy that supports this. The public has the right to know, review, and comment on what alternative emission reduction plans are proposed and approved by TCEQ

.. On page 5 ofthe proposal, the TCEQ states, "Diesel engines emit very little VOC emissions". However, on page 6 TCEQ states, "

... these changes would also require that the average individual emissions of total hydrocarbons (THC) and non-methane hydrocarbons (1\IMHC), respectively, recorded during testing with the candidate fuel not exceed 

### 110% of the test engine's applicable exhaust emission standards in order to prevent unacceptable increase in VOC emissions."
These two statements appear, at best confusing, and at worst contradictory. If there are**f~w** 

### VOC emissions in diesel then there should be little concern for any minimal increase. In addition, the soot particles that diesel engines generate act as adsorption surfaces for VOC, whether THC, NMHC, or toxic VOC fractions (for example, aromatic hydrocarbons or polycyclic aromatic hydrocarbons), which make the diesel particulates particularly dangerous to the deep lung areas like the alveoli. TCEQ should more clearly explain the importance of VOC in the

. control of air pollution fromthe evaporation and combustion of diesel fuels. Overall, the rule is very c;:onfusing because of the multiple average percentage requirements listed in the rule proposal 

### (5.5%, 5.7%, 5.78%, and 

### 6.2%). TCEQ should develop a rule that is easy for the public and regulated entities to understand and complywith. The HSC requests that TCEQ simplifythis rule.
The HSC appreciates this opportunity to comment. Thank you

.. Sincerely,
.Brandt Mannchen Chair, Air Quality Committee Houston Regional Group ofthe Sierra Club Lone Star Chapter 

### 5431 Carew Houston, Texas 

### 77096 713-664-5962 brandtshnfbt@juno.com



### 2UNITED STATES ENVIRONMENTAL PROTECTION AGENCY R'EGJOIIJ 6



### Mr. Brandon**~mith** 1445 ROSS AVENUE, SUlTE 12DO DALLAS, TX 75202-2733



### Texas Commissitm on E11vironmental Quallty 

# 8

Chief

### Engineer's Office W-2 

### MC 206 P.O. 

### Box 13087 Austin, TX 78711-3087

Reference: Rule Project Nos. 2005-067-114-EN; 2005-064-114-.CN: and 2005-063-114-EN



### Dear

### Mr. Smith:

Thank you forthe oppo!tunltyto comment on proposed

### revisions to the 

### Texas Low Emis.sion Diesel Rule, theLocally Enforced Motor Vehicle Idling 

### T .imitations tllle, 

### and the Texas 

### Cleau P[eet Rule. The

### Region 6 detailed comments 

### em lhese rules 

### arc found in the enc.:losure. Additional 

### comments from EPA wi11 

### be rorwarded 

### when we receive them.



### Tn summary, we 

### do not oppose the

### repeal ofthe

### Texas Clean Fleet. 

### program as·it was designed before. but the federal clean**ru~l** neeL 

### requirement must be fulfilled by 

### measUTes other 

### than federal 

### requirements. We may

### not be able to approve

### the revisions lo Lhe 

### Locally 

### Enforced Motor Vehicle Idling Limitations because 

### that would be a weakening ofthe 'federally 

### approved STP. Our 

### comments on the

### Texas Low Emlsslo11 

### Diesel mle revisions 

### focus primarily on LesL 

### methods and altcmative emission 

### reduction plans. While we support

### many of

### the revisions that

are 

### proposed ror thi:-: rule, 

### our concern is 

### with con·ecting 

### director discretion and with 

### establishing


### areplicable procedure 

### thu.t is approvablc. We also offer 

### comments as requested 

### on No Harm Testing 

### and use ofcredits for EarlyImplementation ofLr.Jw Sulfur Gasoline.
Region 6 continues to offer

### Texas our supp011 

### during the rule rcvision**proces~.** 

### Please let
us lmow huw we may

### be offurther assistance.
Sin,.ely**y~mrs,**

# /~~~£/~~**~;Thomas** Diggt-;, Chief 

# r· - Air

### Planning Section
Enclm;ure

cc: CanLiiGe Garrett, 

### Director Air Quality Planning and ImplementationDivision**Rl!lc:vt:l:Jti!Re~Vt:lob\CJ** o Printed wlrh Ve:Jelilble Oil &Jsfld Inks on 1CO% Aocycfod Papor(40% Poslcon&umer}

### EPA Reg:i.on 6 Comments

Texas CJean Ploct**Rul~** 

### Repeal

We 

### do not oppose 

### the repeal 

### ofthe Texas Clean Fleer program, bLJL 

### we do take 

### issue with Lhe 

### substi Lur.e 

### measures 

### that are proposed 

### to 

### usc in its place.

Section 246(2)(A) ofthe 1990 

### Clean Air 

### Act requires**~tates** to implement 

### rhe Clean Fuel Fleet (CFF) program 

### in certain ozone nonattninment .areas. Sccrion l82(c)(**~-)(B)** 

### allows a 

### state to opr om ofthe CFF

### program provided the state submits a SIP 

### revision consisting ofa 

### substitute program lhat results 

### in as much· OJ' 

### gl'eater long term emissions reductions as the 

### CFFprogram. The EPA may approve such arevision only ifthe substitute program is not required by 

### the Act. See 

### for e,>:.umple, 70 Fed. Reg. 13425, 13435 

### (March 21, 

### 2005). Thus, the state ofTexas 

### may substitute irs Texas Clean Fleet (TCF) program with any other program that results in 

# as much or 

### grealerlong-tem1 

### emil;sicms reductions as t.he CFF program. In no event, however, 

### can the subsliluLe 

### pmgram be eitherthe Tierll orheavy-duty diesel engines 

### (HDDE) standards. 

### Also, the tennlnation of!hcTCFprogram prior 

### w EPA approval ofany substitute measure would likely rcsulr in a weakening of

### the existing 

### SJP and thus, appear to be in violation 

# orLhe Act. 

### Kcnrucky 

### ReBources Council, Inc_, v. 

### EPA, 304F:Supp. 2d 920 

### (W.D.Ky. 2004).
Further, the EPAhas 

### dererrnined that only certain vehicles and 

### engines certified to current Pan 86 c.rrrissions standards 

### are eithera.s stringent or

### more stringentthan corresponding 

### CFF 

### cmissiot1 standards. 

### Accordingly, the EPA has advised t1eet managers**~e~king** Lo meet 

### the CFF program 

### requirements t11at 

### only such 

### vehicles and engines meet CFF 

### emission standards. 

### See EPA guidance Jetter**CCD~05-12,** 

### (July 21, 2005), which is available on-line 

### at: http://www.cpa.gov/orag/certldearmfr/ccd0512.pdf. 

### Tl would, therefore, 

### be-premature ro assen that either 

### rhe Tier IT 

### orJ-IDDE 

### standardo have superseded the CF.F standards.

We recommend that ademonstration be provided in the final rule submittal to show what federal C.FF CTCd1t8 need**lob~ :subslituL~::d**  by**SLat~:.** 

### rule 

### 'crec.Hts For 

### each affected nonattainment
area. We believe there are 

### sufficient State rule credits that are beyond RACT to fulfill this requirement. 

### Locally 

### Enforced Motor Vehicle .ldling .Limitations**Rul~** 

### The addilion ofexemption number (11) 

### and the 

### revision to exemption number (l) weaken the SIP nt1es 

### that were approved 

### by EPA in 2005. We can appreciate and understand why che 

### Legislature would make this mandate. Technology to 

### accommodate overnight comfort for drivers ofrl1ese vehicles is not 

### rcad1Jy available and spotty at most in the nonattainment areas.Even though ynu 

### must adopt these changes, we will 

### not be able IO approve 

### them into the SIP



### · unless you can provide 

### substitute**reduction~** 

### or model to show Lhat attainment can 

### be mer without

those credits. We'

### gemly remind yoll that approved 

### programs in the 

### SlP still have 

### to be enforcecl 

### unless we approve 

### a SIP. revision.
'J'e;Kas Low Emission DJcscJ Rule Revision



### We recommend the 

### following 

### for some 

### ofthe proposed 

### provisions:

Section 114.6. 

### We do not see the v'tlue 

### ofadding 

### the 

### phrase "required to 

### he" in this definition. Some may misinterpret this 

### to mean that additives can be used in Texas before 

### being approved 

### and reg1stered 

### by the 

### EPA We know that is 

### not the 

### case, therefore we recommend thii' change notbe 

### t1nalized.
Section 114.315(b). _Section 114.315(b) 

### does not go far enough t(l resnlve concems regarding Executive

### Director discretion. Consulration 

### is not adequate 

### in case of disagreements. 

### We suggest Lhe section 

### be changed co rcacl "with the consent 

### ofEPA" or "consultation and 

### agreement by 

### EPA.'' Another acceptable ex.ample is in Section 114.315(d) where something must be dernonstrated 

### t.o tl1e 

### satisfactiorl oflho Exct:ulive Director

### and the

### EPA.

. Section 114.315(c) 4. Add 

### lhe words "and in the Envlronmemal Tcchr10logy Verification Protocol ofthe EPA, 

### v,;here**applicab~e"** at the end ofthe reference to 40CFR86 SubpanN. Note:**T1u~** TCEQpreamble on page 6 refers to the 

### necessity of being c(msistent1-\Jith 

### the ETVPror.ocol.
There 

### is an issue 

### with cumulative effect additives beingusedin vehicles that arc 

### not consistently fueled wiLh Lhe same additives. Our Office of Transportation and Air Quality 

### wi 11 be addressing this 

### further in comments whic.:h we

### will forward to 

### you. ,Section 

### 114.31S(d). (d)(2) reads: 

### "Ifthe alternative diesel fuel 

### formulation has been demonstrated to the satisfaction ofthe executive director Eo achieve comparable or betterreductions in 

### emissio11s ofNOx [,THC, NMHC,] and PM underthis subsection

..'' To be consistent with (d), ''and the EPA'' shollld be addedjust afler executive director here. '


### No 

### harm tests. The supplier should

### be in 

### a posiLinn tn guaranty

### that "the approved fllels and fuel additives are not harmful to the mechanical operation of diesel engines." Such a 

### clause 

### could be included 

### in the document under

### review.

The key facwr in detennining "(he approved 

### fuels and fuel additives arc not harmful ro Lhe mechanic.:a] nperation ofdiesel engines" is the effect 

### it woll1c1 have on the elastomers used in Diesel Engines. The engine manufacturers shouldbe able TO provide samples of all the elastomers exposed to the fuel, used in their engines. 

### The sample could then 

### be resred for resistance La the fuel being evaluated. There are several ASTM stanclards to Lest the properties ofelastomers under different 

### conditions and .there are several labs that 

### coulcl cmiy om 

### these tests. 

### Such a test 

### system should be fomllllated.
The !>Llppliers' vvarranty 

### or the results of

### such tests 

### prior to 

### appnwul of a formulation 

### would he appropriate. · With 

### regard 

### to 

### meclwnicctl weur and tear ofthe engine, Lhe protocol for a 'no harm' 

### test co check whether ''the approved fuels and fuel addir1ves 

### nre not hnrn1ful to the mechanical operation CJf 

### diesel engines" would extend to a periodequivalent to a million m1les on a diesel engine under diverse load conditions, 

### ambient temperatures, stops and starts. Lubricant 

### rn1mufacturers in collaboration with engine manufacturers ca1ry om simulared rests to check the wear and rear on piston rings, cylinders and crankshaft 

### bearing::; elu. Such a**Le~t ~sing**  a lubricant with.lcnown characteristics and the candidate fuel should

### provide useful results. · Section 114.318. We do not oppose the removal ofEPA approval from §114.318(a)**hec:aw;~** a replicable pr9cedurefor the State to approve the ABRP plans is being proposed. Should Lhe State adopt arevision of this Section 

### and lhm;epruvisions be approved into rhc SIP 

### hy EPA, EPA approval thenis implicit for any plan a.pproved 

### by the State. A critical parr_ofa replicable 

### procedure such as lhi!\ in which credits from one 

### source are substituted for another is public 

### part:icipation in 

### the p1·ocess at the State level. 

### That public pa11icipation is belng cnnicd uul 

### LhrClugh the notice and commentperiod in which the Stateis enactingthe revised 114.318.


### Early Implementation of

### Low Sulfur 

### Gasoline Credits. While

### iL it> 

### indicated that credits for**~arly** implementation oflow sulfur gasoline may only

## be generated in 2003, 2004 and 2005, you
are 

### taidng comments for 

### allowing those 

### credits to be usedthrough 2010. The benefits for early implementation of low sulfurgasoline 

### will havebeen replaced years prior 

### by the mandated low .sulfur gasoline. ByMarch l, 

### 2006, 

### low sulfur 

### gasoline willbe 

### fully implemented in Texas by all the majorret1ners that provide rhe majorily ofgasoline sold

### at retail in-the state. Using early 

### credits 

### unti12010 is 

### prob1ematiG for the Beaumont-PortArthur (BPA) nonanainment urea and the 

### Early Acrion Compacl areas that wouJd benefit greatlyfrom real-time NOx reduct(ons. Although iris possible forthe MOBILE model to calculate a benefit to pre-Tier2 vehicles, we do not believe the model canreflect**real~worlcl** benefits 

### because ofthe 

### m1certainty offueling 11ab1ts of the general public. Therefore, we do TID[ support a.llowing 

### credits for early lmplcmcnration of low sulfur gasoline for 

### use in the areas me11tioned above pastDecember3 1, 2006. Real-time 

### NOx benefits from a low-NOx fuel couldpotentiallybe used to 

### partially satisfy thefederal 

### Clean Fuel Fleetrequirement for BPA, for example.INDEX OF ORAL TESTIMONY

January 10, 2006, 10:00 a.m.- Texas Commission on Environmental Quality complex

No oral testimony was received pertaining to this proposal.Page 1



### Texas Commission on Environmental Quality Public Hearing Registration**~:·** - 

### Location: Austin 

### (10:00 a.m.) 

### Date: January 

### 10, 2006
Concerning: 30 TAC 

### Chapter 114 (Rule ProjectNo.'s 2005-063-114-EN, 2005-064-114-EN, 2005-067-114)

Name and Address Representing Presenting Oral Testimony?

· (Circle One) (Please Print) 

## j;/1 l]yt.,I(DOoU( 0 It

## y(It fit!/tr/l (J""(

. tJA<j/t4.s #.vr') 

### (jtYoJVr... Yes 

## NQJ 

## (;oo Co;vr,/l.J(et. ln/r.,_ 

### ri:. J3c?" fton.,.,;

## 7\c**~** <;"' c.A-,v \;l-.:..._

### Se:'~

# ~**~~~** 

### u
..**~~N** LrJ

·- Yes Le.c,rr**~** 

## ·---rr' 7 'fbc..rJ 

# c tWts**r~pcr.** (L 

# l"Relt(**CocJ~ ~** 

# h 'u "'- ®No 

### .fjf(p**Cot-~** 

### />w.L.

Au.f)ll;.J 

# IX
f2-++.L. 

# Tor dan ..-=...

## .~~s_Q_.**~**

## ~ .. ""- "". 

# ("
/- -



# -**·~** 

# --**~ ~** **~~** 'VL:::c

.... -

# ·~''' 6,)

# I clj-Ptt!J6·- 

# 1/-ustcV:.**~4-L**

# ~ No 

# fgJ ({ck?/}j__

# ~lv Yes 

# b

" 

# 5Ft( 

# DsUtL:trt/ .. 

## ;Cc,ct.._ Yes(§)

# EVALUATION OF TESTIMONY

# Texas Commission on Environmental Quality

__ INTEROFFICE MEMORANDUM

To: Commissioners Date: April 7, 2006
Thru: LaDonna Castafiuela, Chief Clerk Glenn Shankle, Executive Director

From: David C. Schanbacher,

# P.E."'c) ChiefEngineer V

Docket No.: 2005-1444-RUL
Subject: Commission Approval for Rulemaking Adoption Chapter 114, Control ofAir Pollution from Motor Vehicles SB 1032: Repeal ofLow Emission Vehicle (LEV) Fleet Requirements Rule Project No. 2005-067-114-EN

Reasons for the rule package: Under what authority are we adopting these changes? The repeal is adopted under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeal is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; and §382.019, which authorizes the

· commission to adopt rules to control and reduce emissions from engines used to propel land

vehicles. The repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019.

Is this rulemaking required by federal rule or state statute? Which ones? Yes. SB 1032 repealed the state statutes in THSC, Chapter 382, Subchapter F, requiring the commission to establish and implement the Texas Clean Fleet (TCF) Program.

Are there any legal deadlines by which these rules must be adopted or effective? No.

What issue(s) or problem(s) are we trying to solve? Requiring fleets to meet a mandatory LEV percent-of-purchase requirement is no longer an effective method to reduce emissions from fleet vehicles since the LEV standards have been superseded by the cleaner federal Tier II emission standards and the federal 2004 heavy-duty engine emission standards.CotTUTJissioncrs Page 2 

### April 7, 2006

Rc: Docket 1'1o. 

### 2005-1444-RUL
Why 

### is it important that we do this rule package? This rulemaking is at the directive ofthe legislature as indicatedby SB 1032.

Other important background or 

### historical information. The legislature repealed the enabling statutes because requiring fleets to meet 

### a mandatory LEV percent-of-purchase requirement is no longer an effective method to reduce emissions from fleet vehicles since the LEV standards have been superseded by the cleaner federal Tier II emission standards and the federal 2004 heavy-duty engine emission standards. In addition, the continued implementation of a mandatory vehicle purchase program is diminished due to programs such as the Texas Emission Reduction Plan (TERP), including the Emission Reduction Incentive Grants Program; Clean Cities; The Congestion Mitigation and Air Quality Improvement Program (CMAQ); and EPA funding programs. The programs provide financial incentives to private, local government (including school districts), and mass transit fleets to voluntarily purchase the cleanest vehicles possible that meet their operational needs.
Scope of

### the rulemaking: This rulemaking will repeal the regulations implementing the Texas Clean Fleet Program in its entirety. Changes required by 

### federal rule: None. Changes required by 

### state statute: The repeal is necessary to implement SB 1032, 

### that repealed THSC, Chapter 382, Subchapter F, §§382.131

- 

### 382.143, in its entirety.

Staff 

### recommendations that are not expressly required by federal rule or 

### state statute: 

### None.
Impact on 

### the regulated community: 

### Who will be affected? Mass transit authorities, private companies with vehicle fleets of more than 25 fleet vehicles, and local governments with vehicle fleets 

### of more than 

### 15 vehicles that operate primarily in the Houston-Galveston-Brazoria, Dallas-Fort Worth, and E1 Paso ozone nonattainment areas that are currently affected by the existing regulations.

Does it create a group of 

### affected persons who were not affected previously? How? 

### No.

Will there 

### be a fiscal impad:? If

### so, estimate. 

### Yes. The repeal will result in a fiscal benefit for those fleets affected by the existing rules since they will no longer be required to ensure that a percentage oftheir new fleet vehicle purchases are vehicles that !lave been certified by the EPA to the fecleral LEV standards that have now been superseded by the cleaner federal Tier II emission standards and the federal 2004 heavy··cluty engine emission standards. In addition, the affected fleets will 

### no longer be requirec1 to submit biennial fleet compliance reports to the commission.Commissioners Page 3 April 7, 2006



### Re: DocketNo. 2005-1444-RUL

Impact on the public:

Who will be affected? The repeal 

### will have no effect on the public since requiring fleets to meet a mandatory LEV

· percent-of-purchase requirement is no longer an effective method to reduce emissions from fleet

vehicles because the LEV standards have been superseded by the cleaner federal Tier 

### II emission standards and the federal 2004 heavy-duty engine emission standards.

Does it create a group ofaffected persons who were not affected previously? How? 

### No.

Will there be a fiscal impact? Ifso, estimate. The repeal 

### will have no fiscal impact on the public.
Impact on agency programs:

The repeal 

### will have minimal fiscal impact to agency programs. Staffresources currently assigned to implement the existing LEV fleet regulations have been reallocated to other agency programs that are in need ofadditional resources, such as the 

### TERP Emissions Reduction Incentive Grants Program.

Stakeholder meetings:

Have any stakeholder meetings been held? 

### No. The rulemaking to repeal the LEV fleet requirements is at the directive of the legislature as indicated by SB 1032.

With whom? 

### N/A

What were the general sentiments? NIA

Were any changes made in response to stakeholder concerns? 

### N/A
Policy issues:

What policy issues are affected? None. SB 1032 repealed the statutes requiring the commission to implement the LEV fleet regulations.

Are any policies that are not currently based on rule being made into a rule? No.C:onTnli ssioncn;
Jl<tFC 4 '·' April 7, 2006

He: Docket No. 2005-1444-RUL

What are the consequences if this rulemaldng is not approved to go forward? The repeal of the regulations implementing the Texas Clean Fleet Program is at the directive ofthe legislature as indicated by SB 1032. Are there alternatives? No. SB 1032 repealed the statutes enabling the commission to implement the LEV fleet regulations.**Potentiall~'** controversial 

### matters: None
Key points in adoption rulemaking schedule:

Texas Register proposal publication date: November 25, 2005 Anticipated effective date: May 18, 2006 Six-month Texas Register filing deadline: May 25, 2006



### Public comment:

• Comments were received from two groups. The groups did not indicate support for or against the proposed repeal.

• Sierra Club-Houston cmmnented that the commission's constant changes to the Low Emission Vehicle Fleet requirements have resulted in higher costs for businesses and consumers and temporary or non-existent reductions in air pollutants from motor vehicle fleets, and that the commission should look at its control strategies to determine whether the strategies will be needed in the long term or arejust short-term stop··gap efforts.

"' EPA commented that although they do not oppose the repeal of the Texas Clean Fleet program, they do take issue with the substitute measures that are proposed to be used in its place. EPA further commented that Tier II or heavy-duty diesel engines (HDDE) standards programs could not be used as substitute programs. EPA recommended that a demonstration be provided to show what federal CFF credits need to be substituted by the state rule credits that are beyond RACT to fulfill this requirement.
Significant changes from proposal:

Staff has deterrninecl that the implementation of the NLEV program has macle the TCF requirements redundant. There are no new aclclitional benefits to be gained from the TCF program, but the current benefits from existing TCF vehicles shall remain. ln the State's 1998 SIP revision for Federal Clean Fuel Fleet (FCFF) substitute program, the commission iclentifiecl reductions achieved through contingency

measures such as the State's Fugitive Emissions Controls tlmt resulted in more emission reductions than the FCFF program These requirements continue to be effective and provide reductions. Staff has determined that no additional substitute emission reduction strategies are necessary in order to 

### fully satisfy the Section 182(c)(4)(B) statutory requirements of tbe Clean Air Act. ,Staff will continue to work withCommissioners Page 5 April 7, 2006

Re: Docket No. 2005-1444-RUL

EPA to ensure that the TCF repeal satisfied EPA and Clean Air Act requirements, including antibacksliding requirements.

An analysis comparing the TCF program and the National Low Emission Vehicle (NLEV) program is available on the TCEQ website at www.tceq.state.tx.us/implementation/air/sip/apr2006txled.htrnl and is attached to this executive summary.

No changes were made to the rulemaking from proposal.

Agency contacts: Santos Olivarez, Rule Project Manager, 239-4718, Air Quality Planning and Implementation Division Les Trobman, StaffAttorney, 239-6056 Holly Vierk, Texas Register Coordinator, 239-0177

Attachments

cc: Chief Clerk, 5 copies Executive Director's Office David C. Schanbacher, P.E. Jason Skaggs Ashley K. 

### Wadick Brent Wade Office ofGeneral Counsel Santos Olivarez Holly Vierk

cc (without attachments): Les Trobman, StaffAttorney Kerry Howard, Program Office Liaison Candice Garrett, Division Liaison Booker Harrison, OLS Liaison Russ Kimble, OLS

### Analysis ofEPA Comments on Texas Clean FleetRepeal



### EPA Comments

"

...the federal clean fuel fleet requirement must be fulfilled by measures other than federal requirements."

"

...Texas may substitute its Texas Clean Fleet (TCF) program with anyotherprogram that results in as much greater long-term emissions reductions as the CFFprogram."


### "Inno event, however, canthe substitute program be either the TierII orheavy-duty diesel engines (HDDE standards."

Reference to EPA guidance letter CCD-05-12 (July 21, 2005)

"Itwould, therefore, be premature to assertthat eitherthe Tier II orHDDE standards have superseded the CFF standards."

"Werecommend that a demonstration beprovided 

### inthe final rule submittalto show what federal CFF credits need to be substitutedby State rule credits for each affected nonattainment area."



### DraftResponse

The August 1998 

### Clean FuelFleetProgram Implementation Guidance (EPA420-R-98- 011) is available onEPA's Clean Fuel Fleets (CFF) webpage, which was last updated on May 23, 2001 andis located at http://www.epa.gov/oms/regs/fuels/cff/cffp-imp.pdf. Page4 ofthis guidance states that "Clean-Fuel Fleet light duty standards are the same as for Low Emission Vehicles (LEVs)

..." The full useful life Clean Fuel Vehicle (CFV) LEV standards are summarized 

### in the table below and were extracted from the following
sources:

- CleanAir Act, Section 242, Requirements Applicable to Clean Fuel Vehicles Phase II (beginning with 2001 model year) for the 100,000 Mile Standard;

- Code ofFederal Regulations, Part 88

- Clean-Fuel Vehicles, Subpart A- Emission Standards for Clean-Fuel Vehicles, Section 88.104-94- Clean-fuel vehicle tailpipe emission standards for light-duty vehicles and light-duty trucks, Tables AI04-2, AI04-4, AI04-6; and

-EPAFederal and California Exhaust and Evaporative Emission Standards for LightDuty Vehicles and Light-Duty Trucks, February 2000. EPA420-B-OO-OO 1, which is available at http://wwv.J.epa.Qov/otag/stds-ld.htm.

# I~DV Vehicle NOx NJ10G 

# co Class (gramsper mile) (gramsper mile) (gramsper mile) 

### 0.3 0.090 4.2 LD'J'1 0.3 0.090 4.2

--



### LDT2 0.5 0.130 5.5 LDT3 (0-3,750 

### ALVWl 0.6 0.180 5.0 LDT3 (3,751··5,750 ALVW) 1.0 0.230 6.4 LDT4 1.5 0.280 7.3

With the advent oftheNational Low Emission Vehicle (NLEV) program beginning in the 2001 model year, the majority ofthe light-duty vehicles purchased around the country met LEV or better requirements. Therefore, ifsubject fleets were going to purchase "LEV-or-better" vehicles anyway, the CFF requirements were redundant for most light-duty purchases beginning with the 2001 model year. Certainly, there were exceptions to this, but the phase-in ofthe Tier 2 standards from the 2004-2007 model years make the CFF requirements redundant for all subjectvehicles.
Therefore, staffbelieves there is no requirement for Texas to provide a substitute programthat will yield equivalent benefits to the TCF program. The primary benefits of the TCFprogram are the result ofsubjectfleets having purchased "LEV-or-better" vehicles inthe 1999 and 2000 model years, priorto the introduction ofthe NLEV program

...Without the TCF program, these subject fleets would have purchased higher emittingTier 1vehicles. These 1999 and 2000 "LEV or better" vehicles are still operating on the road today and still yielding benefits, which would only be removed if the TCEQ now required those fleets to replace these older "LEV-m·-better" vehicles with equivalent 1999 and 2000 model year Tier 1vehicles.

The TCEQ is simply proposing to repeal the redundant "LEV-or-better" requirement for
new vehicle purchases. In short, there are no new additional benefits to be gained from the TCFprogram, but the currentbenefits**fi~om** 

### existing TCF vehicles shall remain.

In their comments, EPA references a 

### July 21, 2005 letter to manufacturers (CCD-05-12). Provided below are excerpts from this letter: "Subsequentto publishing its CFV regulations, EPA has promulgated new emission standards that are generally more stringentthan or equivalentto the CFV emission standards for light-duty vehicles, light-duty trucks, and heavy-duty engines."

"Tier 2 LDVs, LDT1-4s, and MDPVs ce1iifi.ed to the following Tier 2

### bin ·standards are 

### equivalent to or.more stringent than CFV LEV emission standards:

LDV LDTl LDT2 LDT3 Bins 1-7 and Bin 9 Bins 1-7 and 

### Bin 9 

### Bins 1-9 Bins l-10'I 

### LDT4 MDPV Bins 1-10 Bins 1-11"

"The following determinations are made for 2005 and later model year Otto cycle heavy-duty vehicles:
8,501-10,000 GVWR Otto-cycle heavy-duty vehicle chassis standards are more stringentthanthe CFV Otto cycle heavy-duty engine LEV emission standard.
10,001-14,000 GVWR Otto-cycle heavy-duty vehicle chassis standards
are more stringent than the CFV Otto cycle heavy-duty engine LEV emission standard.

The following determinations are made for 2005 and latermodel year heavy-duty Otto cycle engines and diesel engines:

Current emission standards for heavy-duty engine Otto cycle engines and diesel engines are more stringent than CFV LEV heavy-duty Otto cycle engines, orheavy-duty diesel engine emission standards."

The excerpts fromthe July 21, 2005 letterprovided above supportthe TCEQposition that any vehiclepurchasedbeginningwiththe 2007 model yearis goingto meetthe "LEV-or-better" benchmark. Providedbelow are the 

### full useful life Tier 2 standards extracted from Table S04-1 inEPA's February 10,2000 Tier 

### 21 Low SulfurFinal Rule. Also provided are excerpts from the qualifying noteswhichaccompanythe table.



### Bin 

### NOx NMOG 

# co Number (gramspermile) (gramsper mile) (gramsper mile) 

### 11 0.90 0.280 7.3 

### 10 0.60 0.15610.230 

### 4.216.4 

### 9 0.30 0.090 

### I 0.180 4.2 

### 8 0.20 0.125 

### I 0.156 4.2 

### 7 0.15 0.090 4.2 

### 6 0.10 0.090 4.2 

### 5 0.07 0.090 4.2 

### 4 0.04 0.070 I 

### 2.1 3 

### 0.03 0.055 2.1 

### 2 0.02 0.010 2.1 

### I 0.00 0.000 0.0

Notes:

- Bins 9-11 are deleted at end of2006 model year (end of2008 model year for HLDTs and MDPVs).

- Higher NMOG and CO values for Bins 8-10 are for HLDTs and MDPVs only. -Bin ll is for MDPVs only.

### - Higher NMOG standard of0.156**grams~per~mile** 

### for Bin 8 deleted at end of2008 model year.

Shown below is an extract from the file entitled "T2EXH.D", which is provided with the latest version ofthe MOBILE6.2 model, available at http://www.epa.gov/otag/m6.htm. This table summarizes the assumed distribution ofTier 2 vehicles byvehicle class and bin for the 2007 model year:


### Bin Vehicle Class 

### Number 

### LDV LDTJ LDT2 LDT3 LDT4 I 0% 0% 0% 0% 0% 

### 2 10% 10% 0% 0% 0% 

### 3 30% 30% 0% 0% 0% 

### 4 20% 20% 0% 0% 0% 

### 5 40% 40% 40% 0% 0% 

### 6 0% 0% 30% 0% 0% 7 0% 0% 30% 0% 0% 

### 8 0% 0% 0% 100% 100% 

### 9 0% 0% 0% 0% 0% 

### 10 0% 0% 0% 0% 0% 

### 11 0% 0% 0% 0% 0% 

### Total 100% 100% 100% 100% 100%

As shown, all ofthe 2007 LDVs and LDTls are assumed to be Bin 5 or better. ForNOx, VOC, and CO, the Tier 2 Bin 5 useful life standards of0.07, 0.09, and 4.2 grams-permile, respectively, are all equal to or less than the LEV NOx, VOC, and CO standards for LDVs and LDT1 s of0.3, 0.09, ancl4.2 grams-per-mile, respectively.

The 2007 LDT2s are assumed to be Bin 7 or better. ForNOx, VOC; and CO, the. Tier 2 Bin 7 useful life standards of0.15, 0.09, and 4.2 grams-per-mile, respectively, are all equal to or less than the LEV NOx, VOC, and CO standards for LDT2s of0.5, 0.13, and 5.5 grru:ns-per-mile, respectively.

The 2007 LDT3s and LDT4s are assumedto be in Bin 8. ForNOx, VOC, and CO, the Tier 2 Bin 8 useful life standards of0.2, 0.125, and 4.2 grams-per-mile, respectively, are all equal to or less than the LEVNOx, VOC, and CO standards for 0-3,750 ALVW LDT3s of0.6, 0.18, and 5.0 grams-per-mile, respectively. Even the higher 0.156 NMOG Bin 8 standard whicl:t expires with the 2008 model year is less than the LEV LDT3 0.18 NMOG standmd. Forthis example, the 0-3,750 ALVW LDT3 LEV standards were used becausethey are more stringent tban the LEV standards for both 3,751-5,750 ALVW LDT3s and LDT4s.

Provided below is a similar distribution ofvehicle class by Tier 2 bin for the 2009 model year:

### Bin Vehicle Class Number LDV LDTJ LDT2 LDT3 LDT4 1 

### 0% 0% 0% 0% 0% 2 

### 25% 25% 0% 0% 0% 

### 3 55% 55% 0% 0% 0% 4 

### 10% 10% 20% 0% 0% 

### 5 10% 10% 20% 74% 0% 6 

### 0% 0% 30% 0% 0% 

### 7 0% 0% 30% 0% 0% 

### 8 0% 0% 0% 26% 100% 9 

### 0% 0% 0% 0% 0% 

### 10 0% 0% 0% 0% 0% 

### 11 0% 0% 0% 0% 0% Total 

### 100% 100% 100% 100% 100%

As shown, any Tier 2 vehicle purchased in2007 or later will meet the "'LEV or better" benchmarkrequired by the CFF guidance. Even though the July 21, 2005 EPA letter impliedthat LDV and LDT1 Tier 2 vehicles for Bin 8would not meet "'LEV or better", the MOBILE6 model assumes thatthere are no Bin 8LDVs and LDT1s. Similarly, the EPA letter impliedthat LDT2 vehicles for Bins 10 and 11 would not·meet "LEV or better", butthe MOBILE6 model assumes that no Bins 10 and 11 LDT2s exist for 2007- and-later. Finally, the EPAletter implied that LDT3 and LDT4 Bin 11 vehicles would not meet "LEV or better", butMOBILE6 assumes that no 2007-and-later Bin 11 vehicles exist. 

### In fact, EPA's Tier 2 rule clearly states thatBin 11 is for lviDPVs only.

Staffbelieves a similar demonstration is not necessary for heavy-duty emission standards becausethe July 21, 2005 EPA letter clearly indicated that a112005-and-later heavy-duty vehicle emission standards are more stringent than CFV LEV standards for heavy-duty vehicles. As shown, staffbelieves it is notpremature, (i.e., reference EPA's comment that "it would, therefore, be premature to assert that either the Tier IT or HDDE standards have superseded the CFF standards").EVALUATION OF TESTIMONY

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the repeal of
§§114.3, 114.150, 114.151, and 114.153- 114.157 without changes as published in the November 25,
2005, issue ofthe Texas Register (30 TexReg 7824).

The commission will submit to the United States Environmental Protection Agency (EPA) revisions to

the state implementation plan (SIP) addressing the repeal ofthese rules.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The Federal Clean Air Act Amendments of 1990 (FCAA), §182(c)(4), required states to either adopt

the Federal Clean Fuel Fleet (FCFF) Program outlined in FCAA, §246, or implement a program that

demonstrates long-term reductions in ozone-producing and toxic air emissions equal to those achieved

under the FCFF Program.

The FCFF Program requires federal, state, and local governments, and private fleets to purchase low

emission vehicles (LEVs) in areas classified by the EPA as being in serious, severe, or extreme

nonattainment ofthe national ambient air quality standards (NAAQS) for ozone and carbon monoxide
(CO). The federal program mandates increasing percentages ofLEV purchases by the affected fleets

in the covered nonattainment areas in vehicle model years 1999, 2000, and 2001.

The State ofTexas, in a committal SIP revision submitted to the EPA on November 15, 1992, opted

out ofthe FCFF Program in order to implement a fleet emission control program designed by the state.

1In 1994, the commission submitted the state's opt-out program in a SIP revision to the EPA and
adopted rules to implement the Texas Alternative Fuel Fleet Program as a substitute to the FCFF
Program in the areas ofTexas classified by EPA as being in serious, severe, or extreme nonattainment

ofthe NAAQS for ozone or CO.

In 1995, the 74th Legislature modified the state's alternative fuels program through the passage of

Senate Bill (SB) 200. The legislature facilitated fuel neutrality through the incorporation ofthe federal

LEV standards for certain affected fleets regardless offuel type. The legislation required the

commission to adopt regulations to implement the program in all ozone nonattainment areas.

In response, the commission adopted regulations to implement the modified program and developed a
revision to the SIP outlining the state's substitute program to the FCFF Program. However, the 75th
Legislature met in 1997 and removed the commission's authority to require the program in moderate

nonattainment areas through passage of SB 681. This new legislation limited the commission's
authority to the serious and above ozone nonattainment areas. In addition, SB 681 modified the state's

alternative fuels program. The legislature retained the basic requirement ofLEV purchases, but

modified the implementation schedule, added an additional exception from the program, and altered the
grandfathering provisions of the statute. This new legislation required the commission to adopt
regulations to implement the program.

On December 16, 1997, the EPA finalized federal regulations for the National Low Emission Vehicle
(NLEV) Program. The NLEV Program was developed to allow manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that were more stringent than the EPA could mandate

2prior to 2004. The EPA made a final determination on implementation ofNLEV on March 2, 1998.

With the NLEV Program successfully implemented nationally, the commission was able to use

emission reductions achieved through the NLEV Program to offset any shortfall in emission reductions
resulting from the state's substitute for the FCFF Program.

OnJuly 29, 1998, the commission adopted regulations and a revision ofthe Texas Clean Fleet (TCF)

SIP to set forth the LEV requirements for mass transit fleets in each ofthe serious and above

nonattainment areas, and for local government and private fleets operated primarily within the serious

and above nonattainment areas. These rules satisfied the state requirements to adopt rules to
implement SB 681.

On February 10, 2000, the EPA finalized federal regulations for the Tier II emission standards for all

passenger vehicles, including sport utility vehicles (SUVs), minivans, vans, and light-duty

trucks that were 77%

- 95% cleaner than the current emission standards. The new emission standards

set a corporate average standard for nitrogen oxides of0.07 grams per mile for all classes ofpassenger

vehicles beginning in 2004. This includes all light-duty trucks, as well as the largest SUVs. Vehicles
weighing less than 6,000 pounds will be phased-in to this standard between 2004 and 2007. Later that

same year on October 6, 2000, the EPA finalized federal regulations for emission standards for model

year 2004 and newer heavy-duty diesel engines (HDDE) and vehicles that were equivalent to the ultra

low emission vehicle (ULEV) standards under the FCFF Program.

In June 2005, the state statutes requiring the commission to establish and implement LEV requirements

for mass transit fleets and for private and local government fleets (i.e., the TCF Program) as codified

3in Texas Health and Safety Code (THSC), Chapter 382, Subchapter F, were repealed by SB 1032 by

the 79th Legislature, 2005. The commission's rules in §§114.3 and 114.150, 114.151, and 114.153-

114.157 implementing these statutes required mass transit authorities, private companies, and local

government fleets in the Houston-Galveston-Brazoria (HGB), Dallas-Fort Worth (DFW), and El Paso

ozone nonattainment areas to ensure that a specified percentage oftheir new fleet vehicle purchases

were vehicles that had been certified by the EPA to the federal LEV standards.

Tbe commission recommended that the Texas Legislature repeal these enabling statutes because the

LEV standards have been superseded by the cleaner federal Tier II emission standards that were promulgated in February 2000 and the federal 2004 heavy-duty engine emission standards that were promulgated in October 2000. As a result ofthese new emission standards, requiring fleets to comply

with a mandatory LEV percent-of-purchase requirement is no longer an effective method to reduce

emissions from fleet vehicles. In addition, the continued implementation ofa mandatory vehicle
purchase program is diminished due to programs such as the Texas Emissions Reduction Plan (TERP),

the commission's Emissions Reduction Incentive Grants Program, Clean Cities, Congestion Mitigation

and Air Quality (CMAQ) Improvement Program, and EPA fund programs that provide financial

incentives to private, local government (including school districts), and mass transit fleets to voluntarily
purchase the cleanest vehicles possible that meet their operational needs.

The repeal ofthese rules has no impact on the emissions from fleets since new fleet vehicles are being

certified by the EPA to either the federal Tier II emission standards or the federal 2004 heavy-duty
engine emission standards, both ofwhich are cleaner than the federal LEV standards currently required

4under these rules. In addition, the repeal removes an administrative burden since the affected fleets

will no longer be required to submit biennial fleet compliance reports to the commission.

In conjunction with the repeal ofthese rules, the commission has revised the SIP to remove the TCF
Program as an ozone control strategy since the federal emission standards for model year 2004 and

later light-duty and heavy-duty motor vehicles are more stringent than those required by the FCFF
Program as outlined in the FCAA. The federal emission standards for HDDE in model years 2004-

2006 are equivalent to the heavy-duty ULEV standards under the FCFF Program and the federal

standards for HDDE in model years 2007 and later are approximately 90% cleaner than ULEV. The

emission reductions achieved by the Tier II and HDDE standards far surpass the emission reductions

that would be expected from implementation ofthe TCF Program in any ofthe state's ozone

nonattainment areas.

SECTION BY SECTION DISCUSSION

This rulemaking action repeals §114.3 in Subchapter A and §§114.150, 114.151, and 114.153-
114.157, Subchapter E, in its entirety, in accordance with the directive indicated by SB 1032 by the

79th Legislature.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the repeals in light ofthe regulatory analysis requirements ofTexas

Government Code, §2001.0225, and determined that the repeals do not meet the definition ofa "major

environmental rule." Under Texas Government Code, §2001.0225, "major environmental rule"

means a rule the specific intent ofwhich is to protect the environment or reduce risks to human health

5from 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 ofthe state. The repeal eliminates commission rules that require mass transit
authorities, private companies, and local government fleets in the HGB, DFW, and El Paso ozone
nonattainment areas to ensure that a specified percentage oftheir new fleet vehicle purchases are

vehicles certified by the EPA as LEVs under the federal LEV standards. The adopted action is a rules
repeal, and it is not specifically intended to protect the environment or reduce risks to human health

from environmental exposure. The TCF Program regulated a sector ofthe economy. Repeal ofthe

program is unlikely to adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, orjobs. Under TERP, the commission's Emissions Reduction Incentive

Grants Program provides financial incentives to private, local government (including school districts),

and mass transit fleets to voluntarily purchase the cleanest vehicles possible that meet their operational

needs. This means that the repeal is also unlikely to adversely affect in a material way the environment

or public health and safety. Because the repeal does not 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 repeal does not fit the Texas Government
Code, §2001.0225, definition of "major environmental rule."

Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory
impact analysis. Because the adopted repeals do not constitute a major environmental rule, a regulatory impact analysis is not required.

6TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2007.002(5), "taking" means: 1) a governmental action that affects
private real property, in whole or in part or temporarily or permanently, in a manner that requires the
governmental entity to compensate the private real property owner as provided by the Fifth and

Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution;

or 2) a governmental action that affects an owner's private real property that is the subject ofthe
governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or

limits the owner's right to the property that would otherwise exist in the absence ofthe governmental
action; and is the producing cause ofa reduction ofat least 25% in the market value ofthe affected
private real property, determined by comparing the market value ofthe property as ifthe governmental

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

in effect.

The commission completed a taking impact analysis for the repeal. The repeal ofthe rules does not

affect private real property in a manner that requires compensation to private real property owners

under the United States Constitution or the Texas Constitution. The repeals also do not affect private

real property in a manner that restricts or limits an owner's right to the property that would otherwise

exist in the absence ofthe governmental action. Therefore, the repeal does not cause a taking under

Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that the repeal 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

7(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

30 TAC §281.45(a)(3) and 31 TAC §505.1l(b)(2), relating to actions and rules subject to the CMP,

commission rules governing air pollutant emissions must be consistent with the applicable goals and
policies of the CMP. The commission reviewed this action for consistency with the CMP goals and
policies in accordance with the regulations ofthe Coastal Coordination Council and determined that the
repeal is consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) ofprotecting and
preserving the quality and values ofcoastal natural resource areas, and the policy in 31 TAC
§501.14(q), which requires that the commission protect air quality in coastal areas. The rulemaking

action and SIP revision ensures that the repeal complies with 40 Code ofFederal Regulations (CFR)

Part 50, National Primary and Secondary Air Quality Standards, and 40 CFR Part 51, Requirements

for Preparation, Adoption, and Submittal of Implementation Plans. This rulemaking action is

consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e).

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Chapter 114 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits
Program; therefore, owners or operators subject to the federal operating permit program must,

consistent with the revision process in Chapter 122, revise their operating permit to include the revised
Chapter 114 requirements at their sites affected by the revisions to Chapter 114.

PUBLIC COMMENT

A public hearing on this rulemaking proposal was held in Austin, Texas, on January 10, 2006, at 10:00

a.m. in Building E, Room 201S, at the Texas Commission on Environmental Quality complex located



### 8at 12100 Park 35 Circle, but no oral comments were received. The public comment period closed at 5:00p.m. on January 17, 2006. Written comments were submitted by the Houston Regional Group of

Sierra Clubs (Sierra Club-Houston) and EPA. Sierra Club-Houston and EPA did not indicate whether
they were for or against the adoption ofthe rule but provided specific comments on the rule.

RESPONSE TO COMMENTS

Sierra Club-Houston commented that the commission's constant changes to the Low Emission Vehicle

Fleet requirements have resulted in economic and operational inefficiencies, higher costs for businesses

and consumers, disillusionment with the law, and temporary or nonexistent reductions in air pollutants

from motor vehicle fleets. Sierra Club-Houston commented that although these proposed repeals are predicated by Texas Legislature, the commission should look at its control strategies to determine

whether the strategies will be needed in the long term or arejust short-term stop-gap efforts.



### The commission has made every effort to balance the effectiveness ofthe Texas Clean Fleet (TCF)

program with the development ofcleaner vehicles. As emissions standards for vehicles and
engines have improved and become as stringent or more stringent than the TCF program, the

commission has recognized the need for consistency and clarity with the Clean Fuel Fleet (CFF)
requirements. At its inception, the TCF program was the state's substitute for the federal Clean

Fuel Fleet program, and was developed to provide greater long-term emissions reductions through participation by private and government entities. With the development ofcleaner
running vehicles through the Tier II andheavy-duty diesel engines (HDDE) standards requirements, these same participating entities are continuing to provide for long-term emissions

9

### reductions by 

### purchasing and replenishing their fleets with these cleaner vehicles. The

commission did not revise the rule in response to this comment.

EPA commented that although they do not oppose the repeal ofthe Texas Clean Fleet program, they

do take issue with the substitute measures that are proposed to be used in its place. EPA commented
that, as allowed by §182(c)(4)(B) ofthe 1990 Clean Air Act, the State ofTexas could substitute its

TCF program with any program that results in as much or greater long-term emissions reductions as
the federal Clean Fuel Fleet program. However, EPA further commented that Tier II or heavy-duty

diesel engines (HDDE) standards programs could not be used as substitute programs. EPA commented

that only certain vehicles and engines certified to current Part 86 emissions standards are either as stringent or more stringent than federal CFF emissions standards, and that it would be premature to

assert that either Tier II or HDDE standards have superseded the CFF standards. EPA recommended

that a demonstration be provided to show what federal CFF credits need to be substituted by the state

rule credits that are beyond reasonably available control technology (RACT) to fulfill this requirement.



### The commission appreciates the comment and EPA's concern related to the substitute measures

to be used in place ofthe TCF program. As stated in 

### the comments, §182(c)(4)(B) ofthe 1990

Clean Air Act permits a state to submit a revision to the state implementation plan which "will

achieve long-term reductions in 

### ozone-producing and toxic air emissions 

### equal to those achieved

under part C ofsubchapter II ofthis chapter, or the percentage thereofattributable to the portion ofthe clean-fuel vehicle program for which the revision is to substitute." 

### (emphasis
added) 

### Through this rulemaking, the TCEQ is repealing its Clean Fleet Program. As described

10

### more fully in the following paragraph, this revision will result in emission reductions in at least equal amounts to those achieved prior to the repeal ofthe TCF program.

The August 1998 Clean Fuel Fleet Program Implementation Guidance 

### (EPA420-R-98-011) states

that "Clean-Fuel Fleet light duty standards are the same as for Low Emission Vehicles (LEVs)

.. . . " With the advent ofthe National Low Emission Vehicle (NLEV) program beginning in the

2001 model year, the majority ofthe light-duty vehicles purchased around the country met LEV

or better requirements. Therefore, if

### subject fleets were going to purchase "LEV -or-better"

vehicles anyway, the CFF requirements were redundant for most light-duty purchases beginning

with the 2001 model year. Certainly, there were exceptions to this, butthe phase-in ofthe Tier 2

standards from the 2004

- 2007 model years make the CFF requirements redundant for all 

### subject vehicles.

The primary benefits ofthe TCF program are the result ofsubject fleets having purchased

"LEV-or-better" vehicles in the 1999 and 2000 model years, prior to introduction ofthe NLEV

program. Without the TCF program, these subject fleets would have purchased higher emitting

Tier 1 vehicles.

The TCEQ is simply proposing to repeal the redundant "LEV-or-better" requirement for new
vehicle purchases. In short, there are no new additional benefits to be gained from the TCF

program, but the current benefits from existing TCF vehicles shall remain.

11

### Due to various factors, including existing vehicle emission requirements, the TCF program does

not currently provide for, or result in reductions in ozone-producing and/or toxic air emissions.

The Texas Clean Fleet SIP dated July 29, 1998, listed total volatile organic compounds (VOC)

reductions of4.937 tons per day for Houston-Galveston-Brazoria, Dallas-Fort Worth, andEl

Paso County combined. The VOC benefits were not broken out by area in this SIP or any other subsequent SIP. No Attainment Demonstration SIPbenefit was ever claimed because no NOx

benefits were provided in the TCF SIP. One reason for not claiming an Attainment

Demonstration SIP benefit is that the NLEV program was initiated at the same time, thus introducing LEV vehicles nationwide with the 2001 model year. Further, the TCEQ submitted

the foJiowing interpretation ofresults in the TCF SIP: "The fleet analysis presented in the

Results section clearly indicates that the state's substitute program, when combined with the

reductions attributed to the NLEV program as shown in Table F, or with the reductions

attributed to the state controls on fugitive emissions and VOC transfer operations as shown in

Table G, will result in significant more emission reductions than the FCFF program in all

affected nonattainment areas in Texas when examined over the long term (10 years)." (Revisions

to the State Implementation Plan (SIP)for the Substitution ofthe Federal Clean Fuel Fleets
Program, July 29, 1998, Appendix B, Page 14). 

### Consequently, the repeal ofthis program results

in reductions which are equal to those achieved prior to the repeal. No additional substitute

emission reduction strategies are necessary in order to fully satisfy the §182(c)(4)(B) statutory requirements.

Staffhas determined that the Houston-Galveston-Brazoria (HGB), Dallas-Fort Worth (DFW),

and El Paso SIPs will not be affected by the repeal because no reduction credits attributable to

12

### the TCF program have been claimed or credited in attainment demonstrations for these SIPs. Additionally, due to the timing ofthe development ofthe Beaumont-Port Arthur (BPA) EightHour Ozone Attainment Demonstration SIP adopted by the commission on September 28, 2005,

the region did not benefit from the TCF program and is also not affected by this repeal. As

stated in the BPA SIP, LEV emissions standards outlined in the FCAA and referenced in the TCF

program were surpassed by federal Tier 2 standards beginning with model year 2004 vehicles makingthe TCF requirements redundant. This occurred well before the development ofthe BPA

SIP. Reduction credits claimed in the BP A attainment demonstration SIP were limited to those

achieved through the NLEV programto avoid the possibility of "double counting" credits.

The availability and purchase ofNLEV and Tier 2 vehicles have provided more reductions than

the TCF program, thus making these programs more accurately identifiable as the most current reasonably available control measures (RACM). Repealing the TCF program, a program for

which "zero" credits have been accounted in SIP attainment demonstrations, does not interfere

with attainment and maintenance measures and does not constitute a "backsliding" activity.

An analysis ofthe TCF program and the NLEV program is available on the TCEQ website at www.tceq.state.tx.us/implementationlair/sip/apr2006txled.html.



### Additionally, the TCEQ points to emission-reducing control strategies, not required under the

Clean Air Act, which result in emission reductions beyond those achieved through the TCF

program. Specifically, reductions achieved through the state's rules in 30 TAC §§115.352-

115.359 in Subchapter D, Division 3, Fugitive Emission Control in Petroleum Refming, Natural

13

### Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas, in 

### conjunction with requirements in §115.211(a)(1) in Subchapter C, Volatile Organic Compound

Transfer Operations, provide additional emission reductions in furtherance ofbuttressing the repeal ofthe Clean Fleet Program with substantive credits. These identified reductions totaled

more than 535.3 tons per day ofVOC statewide. These requirements, identified in the TCF SIP,

continue to be effective and provide reductions. Additionally, identified excess NOx emission

reductions resulting from state mandated reduction requirements placed on electric generating

facilities (EGFs) by the 76th Texas Legislature in Senate Bill 7 for the HGB and DFW areas and

identified as reductions used to make up any shortfall between the TCF andthe federal CFF

programs continue to be effective. The abundance ofcredits, beyond those necessary to conform

with the implementation ofa substitute program, was acknowledged by the EPA in its approval

ofthe state's Clean Fleet Program. (See the February 7, 2001, issue ofthe 

### Federal Register (66

FR9203)). Irrespective ofthe fact that the repeal will not result in a loss ofreductions, the use of

these emissions to cover any shortfall in the Texas Clean Fleet Program was articulated in the

state's 1998 SIP revision for Federal Clean Fuel Fleet substitute program. Such reductions not previously claimed or credited in SIP attainment demonstrations, along with reductions incurred

as a result ofthe currently existing NLEV and Tier 2 programs, should amply satisfy the

concerns raised by the EPA in connection with the Clean Fleet Program repeal. The commission

does not consider the currently existing NLEV and Tier 2 programs as substitute measures for

the TCF program. Additionally, the Clean Cities, CMAQ, and TERP programs provide funding

for replacing older equipment or vehicles with newer, cleaner vehicles or equipment. These voluntary programs will continue to encourage turnover at a more accelerated pace. The

commission did not revise the rule as a result ofthis comment.

14

# STAFF RECOMMENDATIONS

### CHAPTER 114: CONTROL OF AIR POLLUTION FROM MOTORVEHICLES

SUBCHAPTER A: DEFINITIONS
[§114.3]

§114.3. Low Emission Vehicle Fleet Defmitions.

1

### CHAPTER 114: CONTROL OF AIR POLLUTIONFROM MOTOR VEHICLES
[SUBCHAPTER E: LOW EMISSION VEIDCLE FLEET REQUIREMENTS]
[§§114.150, 114.151, 114.153

- 114.157]

§114.150. Requirements for Mass Transit Authorities.

§114.151. Requirements for Local Governments and Private Entities.

§114.153. Exceptions.

§114.154. Exceptions for Certain Mass Transit Authorities.

§114.155. Reporting.

§114.156. Record Keeping.

§114.157. Low Emission Vehicle Fleet Program Compliance Credits.

2

### TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

·k:\E-**~~** )oo!l:**Tt=.Y'll~** COUNTV OF TRAVIS l hereby certify that tn1s is atrue and correct copy ofa Texas Commission on Environmental Qualitydocument, which is filed in the permanent records ofthe COmmi&lion. Given un ermy han and the seal ofoffice on

U1 onne Castanuale, ChiefClerk 'Texas Commission on Environmental Quality ORDER ADOPTING REPEALED RULES AND REVISIONS TO THE STATE IMPLEMENTATION PLAN

Docket No. 2005-1444-RUL

On April 26, 2006, the Texas Cmmnission on Environmental Quality (Commission), during a public meeting, considered adoption of the repeal of§§ 114.3, 114.150, 114.151, and 114.153- 114.157. The Commission adopts the repeals in Chapter 114, Control of Air Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan (SIP). Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the authority to control the quality of the. state's air and to issue orders consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed repeals were published for comment in the November 25, 2005, issue ofthe 

### Texas Register (30 TexReg 7824).

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 repealed 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. A public hearing was held in Austin on January 10, 2006.

The Commission circulated hearing notices of its intended action to the public, including interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed repealed rules and SIP revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled hearing, copies of the proposed repealed rules and SIP revisions were available for public inspection at the Commission's central office and on the Commission's Web site.
Data, views, and recommendations of interested persons regarding the proposed repealed rules and SIP revisions 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 repealed rules and the SIP revisions and their position concerning the
same.

IT IS THEREFORE ORDERED BY THE COMMISSION that the repealed rules and revisions to the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff to make any non-substantive revisions to the rules necessary to comply with Texas Registerrequirements. The adopted repealed rules and the preamble to the adopted repealed rules and the revisions to the SIP are incorporated by reference in this Order as if set forth at length verbatim in this Order.

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the Chairman should transmit a copy of this Order, together with the adopted repealed rules and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, § 110, codified at 42 U.S. Code Ann. §§ 7410- 7671q, as amended.

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, Tex. Gov't Code, § 2001.033 (Vernon 2000 

### & Vernon Supp. 2005).

Ifany portion of this Order is for any reason held to be invalid by a court ofcompetentjurisdiction, the invalidity ofany portion shall not affect the validity of the remaining portions.

Date issued: 

# .MAY 032006 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

### SUBCHAPTER D. RULES AND PROCEDURES FOR COUNCIL OFFICERS, COUNCIL EMPLOYEES, DONORS AND DONATIONS 25 TAC §§460.201 - 460.204 STATUTORY AUTHORITY The repeals are authorized by Government Code, §531.0055;and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code Chapter 1001. This agency hereby certies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Ofce of the Secretary of State on May 1, 2006. TRD-200602410 Cathy Campbell General Counsel Department of State Health Services Effective date: May 21, 2006 Proposal publication date: January 13, 2006 For further information, please call: (512) 458-7111, x6972



### SUBCHAPTER E. HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM 25 TAC §460.211 STATUTORY AUTHORITY The repeal is authorized by Government Code, §531.0055; andHealth and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. This agency hereby certies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Ofce of the Secretary of State on May 1, 2006. TRD-200602411 Cathy Campbell General Counsel Department of State Health Services Effective date: May 21, 2006 Proposal publication date: January 13, 2006 For further information, please call: (512) 458-7111, x6972



### TITLE 30. ENVIRONMENTAL QUALITY 

## PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES The Texas Commission on Environmental Quality (TCEQ or commission) adopts the repeal of §§114.3, 114.150, 114.151, and 114.153 - 114.157 without changes as published in the November 25, 2005, issue of the Texas Register (30 TexReg 7824). The commission will submit to the United States Environmental Protection Agency (EPA) revisions to the state implementation plan (SIP) addressing the repeal of these rules. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES The Federal Clean Air Act Amendments of 1990 (FCAA), §182(c)(4), required states to either adopt the Federal CleanFuel Fleet (FCFF) Program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions in ozone-producing and toxic air emissions equal to those achieved under the FCFF Program.The FCFF Program requires federal, state, and local governments, and private eets to purchase low emission vehicles (LEVs) in areas classied by the EPA as being in serious, severe, or extreme nonattainment of the national ambient air quality standards (NAAQS) for ozone and carbon monoxide (CO). The federal program mandates increasing percentages of LEV purchases by the affected eets in the covered nonattainment areas in vehicle model years 1999, 2000, and 2001. The State of Texas, in a committal SIP revision submitted to the EPA on November 15, 1992, opted out of the FCFF Program in order to implement a eet emission control program designed by the state. In 1994, the commission submitted the state’s opt-out program in a SIP revision to the EPA and adopted rules to implement the Texas Alternative Fuel Fleet Program as a substitute to the FCFF Program in the areas of Texas classied by EPA as being in serious, severe, or extreme nonattainment of the NAAQS for ozone or CO. In 1995, the 74th Legislature modied the state’s alternative fuels program through the passage of Senate Bill (SB) 200. The legislature facilitated fuel neutrality through the incorporation of the federal LEV standards for certain affected eets regardless of fuel type. The legislation required the commission to adopt regulations to implement the program in all ozone nonattainment areas. In response, the commission adopted regulations to implement the modied program and developed a revision to the SIP outlining the state’s substitute program to the FCFF Program. However, the 75th Legislature met in 1997 and removed the commission’s authority to require the program in moderate nonattainment areas through passage of SB 681. This new legislation limited the commission’s authority to the serious and above ozone nonattainment areas. In addition, SB 681 modied the state’salternative fuels program. The legislature retained the basic requirement of LEV purchases, but modied the implementation schedule, added an additional exception from the program, and altered the grandfathering provisions of the statute. This newlegislation required the commission to adopt regulations to implement the program. On December 16, 1997, the EPA nalized federal regulations for the National Low Emission Vehicle (NLEV) Program. The



### ADOPTED RULES May 12, 2006 31 TexReg 3877NLEV Program was developed to allow manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that were more stringent than the EPA could mandate prior to 2004. The EPA made a nal determination on implementation of NLEVon March 2, 1998. With the NLEV Program successfully implemented nationally, the commission was able to use emission reductions achieved through the NLEV Program to offset anyshortfall in emission reductions resulting from the state’s substitute for the FCFF Program. On July 29, 1998, the commission adopted regulations and a revision of the Texas Clean Fleet (TCF) SIP to set forth the LEV requirements for mass transit eets in each of the serious and above nonattainment areas, and for local government and private eets operated primarily within the serious and above nonattainment areas. These rules satised the state requirements to adopt rules to implement SB 681. On February 10, 2000, the EPA nalized federal regulations forthe Tier II emission standards for all passenger vehicles, including sport utility vehicles (SUVs), minivans, vans, and light-duty trucks that were 77% - 95% cleaner than the current emissionstandards. The new emission standards set a corporate average standard for nitrogen oxides of 0.07 grams per mile for all classes of passenger vehicles beginning in 2004. This includesall light-duty trucks, as well as the largest SUVs. Vehicles weighing less than 6,000 pounds will be phased-in to this standard between 2004 and 2007. Later that same year on October 6, 2000, the EPA nalized federal regulations for emission standards for model year 2004 and newer heavy-duty diesel engines (HDDE)and vehicles that were equivalent to the ultra low emission vehicle (ULEV) standards under the FCFF Program. In June 2005, the state statutes requiring the commission to establish and implement LEV requirements for mass transit eets and for private and local government eets (i.e., the TCF Program) as codied in Texas Health and Safety Code (THSC), Chapter 382, Subchapter F, were repealed by SB 1032 by the 79th Legislature, 2005. The commission’s rules in §§114.3, 114.150, 114.151, and 114.153 - 114.157 implementing these statutes required mass transit authorities, private companies, and local government eets in the Houston-Galveston-Brazoria(HGB), Dallas-Fort Worth (DFW), and El Paso ozone nonattainment areas to ensure that a specied percentage of their new eet vehicle purchases were vehicles that had been certied by the EPA to the federal LEV standards.The commission recommended that the Texas Legislature repeal these enabling statutes because the LEV standards havebeen superseded by the cleaner federal Tier II emission standards that were promulgated in February 2000 and the federal2004 heavy-duty engine emission standards that were promulgated in October 2000. As a result of these new emission standards, requiring eets to comply with a mandatory LEV percentof-purchase requirement is no longer an effective method to reduce emissions from eet vehicles. In addition, the continuedimplementation of a mandatory vehicle purchase program is diminished due to programs such as the Texas Emissions Reduction Plan (TERP), the commission’s Emissions Reduction Incentive Grants Program, Clean Cities, Congestion Mitigation and Air Quality (CMAQ) Improvement Program, and EPA fund programs that provide nancial incentives to private, local government (including school districts), and mass transit eets to voluntarilypurchase the cleanest vehicles possible that meet their operational needs. The adopted repeal of these rules has no impact on the emissions from eets since new eet vehicles are being certied bythe EPA to either the federal Tier II emission standards or the federal 2004 heavy-duty engine emission standards, both of which are cleaner than the federal LEV standards currently requiredunder these rules. In addition, the repeal removes an administrative burden since the affected eets will no longer be required to submit biennial eet compliance reports to the commission. In conjunction with the adopted repeal of these rules, the commission has revised the SIP to remove the TCF Program as an ozone control strategy since the federal emission standards for model year 2004 and later light-duty and heavy-duty motor vehicles are more stringent than those required by the FCFFProgram as outlined in the FCAA. The federal emission standards for HDDE in model years 2004 - 2006 are equivalent to the heavy-duty ULEV standards under the FCFF Program and the federal standards for HDDE in model years 2007 and laterare approximately 90% cleaner than ULEV. The emission reductions achieved by the Tier II and HDDE standards far surpassthe emission reductions that would be expected from implementation of the TCF Program in any of the state’s ozone nonattainment areas. SECTION BY SECTION DISCUSSION This rulemaking action repeals §114.3 in Subchapter A and §§114.150, 114.151, and 114.153 - 114.157, Subchapter E, in its entirety, in accordance with the directive indicated by SB 1032 by the 79th Legislature. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the repeals in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the repeals do not meet the denition of a "major environmental rule." Under Texas Government Code,§2001.0225, "major environmental rule" means a rule the specic intent of which is to protect the environment or reduce risksto human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted repeal eliminates commission rules that requiremass transit authorities, private companies, and local government eets in the HGB, DFW, and El Paso ozone nonattainment areas to ensure that a specied percentage of their new eet vehicle purchases are vehicles certied by the EPA as LEVs under the federal LEV standards. The adopted action is a rules repeal, and it is not specically intended to protect the environment or reduce risks to human health from environmental exposure. The TCF Program regulated a sector of the economy. Repeal of the program is unlikely to adversely affect in a material way the economy, a sector of the economy, productivity, competition, orjobs. Under TERP, the commission’s Emissions Reduction Incentive Grants Program provides nancial incentives to private, local government (including school districts), and mass transit eets to voluntarily purchase the cleanest vehicles possible that meet their operational needs. This means that the repeal is also unlikely to adversely affect in a material way the environment or public health and safety. Because the repeal does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state, the adopted repeal does not t the Texas Government Code, §2001.0225, denition of "major environmental rule."



### 31 T exReg 3878 May 12, 2006 Texas RegisterUnder Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the adopted repeals do not constitute a major environmental rule, a regulatory impact analysis is not required. TAKINGS IMPACT ASSESSMENT Under Texas Government Code, §2007.002(5), "taking" means: 1) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private realproperty owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or 2) a governmental action that affects anowner’s private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently,in a manner that restricts or limits the owner’s right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.The commission completed a taking impact analysis for the repeal. The adopted repeal of the rules does not affect private real property in a manner that requires compensation to private real property owners under the United States Constitution or the Texas Constitution. The repeals also do not affect private real property in a manner that restricts or limits an owner’s right to theproperty that would otherwise exist in the absence of the governmental action. Therefore, the adopted repeal does not cause a taking under Texas Government Code, Chapter 2007.CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined that the adopted repeal 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 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations ofthe Coastal Coordination Council and determined that the repeal is consistent with the applicable CMP goal expressed in 31TAC §501.12(1) of protecting and preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC§501.14(q), which requires that the commission protect air quality in coastal areas. The rulemaking action and SIP revision ensures that the repeal complies with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality Standards, and 40 CFR Part 51, Requirements for Preparation,Adoption, and Submittal of Implementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e). EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAMChapter 114 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program; therefore, owners or operators subject to the federal operating permit program must, consistent with the revision process in Chapter 122, revisetheir operating permit to include the revised Chapter 114 requirements at their sites affected by the revisions to Chapter 114. PUBLIC COMMENT A public hearing on this rulemaking proposal was held in Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E, Room201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle, but no oral comments were received. The public comment period closed at 5:00 p.m. on January 17, 2006. Written comments were submitted by the Houston Regional Group of Sierra Clubs (Sierra Club-Houston) and EPA. Sierra Club-Houston and EPA did not indicate whetherthey were for or against the adoption of the rule but provided specic comments on the rule. RESPONSE TO COMMENTS Sierra Club-Houston commented that the commission’s constant changes to the Low Emission Vehicle Fleet requirements have resulted in economic and operational inefciencies, higher costs for businesses and consumers, disillusionment with the law, and temporary or nonexistent reductions in air pollutants from motor vehicle eets. Sierra Club-Houston commented that although these proposed repeals are predicated by Texas Legislature, the commission should look at its control strategies to determine whether the strategies will be needed in the long term or are just short-term stop-gap efforts.The commission has made every effort to balance the effectiveness of the Texas Clean Fleet (TCF) program with the development of cleaner vehicles. As emissions standards for vehicles and engines have improved and become as stringent ormore stringent than the TCF program, the commission has recognized the need for consistency and clarity with the Clean Fuel Fleet (CFF) requirements. At its inception, the TCF program was the state’s substitute for the federal Clean Fuel Fleet program,and was developed to provide greater long-term emissions reductions through participation by private and government entities. With the development of cleaner running vehicles throughthe Tier II and heavy-duty diesel engines (HDDE) standards requirements, these same participating entities are continuing to provide for long-term emissions reductions by purchasing and replenishing their eets with these cleaner vehicles. The commission did not revise the rule in response to this comment. EPA commented that although they do not oppose the repeal ofthe Texas Clean Fleet program, they do take issue with the substitute measures that are proposed to be used in its place. EPA commented that, as allowed by §182(c)(4)(B) of the 1990 Clean Air Act, the State of Texas could substitute its TCF program with any program that results in as much or greater long-term emissions reductions as the federal Clean Fuel Fleet program. However, EPA further commented that Tier II or heavy-duty dieselengines (HDDE) standards programs could not be used as substitute programs. EPA commented that only certain vehicles and engines certied to current Part 86 emissions standards are either as stringent or more stringent than federal CFF emissions standards, and that it would be premature to assert that either Tier II or HDDE standards have superseded the CFF standards. EPA recommended that a demonstration be provided to show what federal CFF credits need to be substituted by the state rule credits that are beyond reasonably available control technology (RACT) to fulll this requirement. The commission appreciates the comment and EPA’s concern related to the substitute measures to be used in place of the TCF



### ADOPTED RULES May 12, 2006 31 TexReg 3879program. As stated in the comments, §182(c)(4)(B) of the 1990 Clean Air Act permits a state to submit a revision to the state implementation plan which "will achieve long-term reductions in ozone-producing and toxic air emissions equal tothose achieved under part C of subchapter II of this chapter, or the percentagethereof attributable to the portion of the clean-fuel vehicle program for which the revision is to substitute." (emphasis added ) Through this rulemaking, the TCEQ is repealing its Clean Fleet Program. As described more fully in the following paragraph, this revision will result in emission reductions in at least equalamounts to those achieved prior to the repeal of the TCF program. The August 1998 Clean Fuel Fleet Program Implementation Guidance (EPA420-R-98-011) states that "Clean-Fuel Fleet light duty standards are the same as for Low Emission Vehicles (LEVs). . . ." With the advent of the National Low Emission Vehicle (NLEV) program beginning in the 2001 model year, the majority of the light-duty vehicles purchased around the country met LEV or better requirements. Therefore, if subject eets were going to purchase "LEV-or-better" vehicles anyway,the CFF requirements were redundant for most light-duty purchases beginning with the 2001 model year. Certainly, there were exceptions to this, but the phase-in of the Tier 2 standards from the 2004 - 2007 model years make the CFF requirements redundant for all subject vehicles. The primary benets of the TCF program are the result of subject eets having purchased "LEV-or-better" vehicles in the 1999 and 2000 model years, prior to introduction of the NLEV program. Without the TCF program, these subject eets would have purchased higher emitting Tier 1 vehicles.The TCEQ is simply proposing to repeal the redundant "LEV-orbetter" requirement for new vehicle purchases. In short, there are no new additional benets to be gained from the TCF program, but the current benets from existing TCF vehicles shall remain.Due to various factors, including existing vehicle emission requirements, the TCF program does not currently provide for, orresult in reductions in ozone-producing and/or toxic air emissions. The Texas Clean Fleet SIP dated July 29, 1998, listed total volatile organic compounds (VOC) reductions of 4.937 tons per day for Houston-Galveston-Brazoria, Dallas-Fort Worth, and El Paso County combined. The VOC benets were not broken out by area in this SIP or any other subsequent SIP. No Attainment Demonstration SIP benet was ever claimed because no NO

x benets were provided in the TCF SIP. One reason for not claiming an Attainment Demonstration SIP benet is that the NLEVprogram was initiated at the same time, thus introducing LEV vehicles nationwide with the 2001 model year. Further, the TCEQ submitted the following interpretation of results in the TCF SIP: "The eet analysis presented in the Results section clearly indicates that the state’s substitute program, when combined with the reductions attributed to the NLEV program as shown in Table F, or with the reductions attributed to the state controls on fugitive emissions and VOC transfer operations as shown in Table G, will result in signicant more emission reductions than the FCFF program in all affected nonattainment areas in Texas when examined over the long term (10 years)." (Revisions to the State Implementation Plan (SIP) for the Substitution of the Federal Clean Fuel Fleets Program, July 29, 1998, Appendix B, Page 14). Consequently, the repeal of this program results in reductions which are equal to those achieved prior to the repeal. No additional substitute emission reduction strategies are necessary in order to fully satisfy the §182(c)(4)(B) statutory requirements. Staff has determined that the Houston-Galveston-Brazoria (HGB), Dallas-Fort Worth (DFW), and El Paso SIPs will not be affected by the repeal because no reduction credits attributableto the TCF program have been claimed or credited in attainment demonstrations for these SIPs. Additionally, due to the timing of the development of the Beaumont-Port Arthur (BPA) Eight-Hour Ozone Attainment Demonstration SIP adopted by the commission on September 28, 2005, the region did not benet from the TCF program and is also not affected by this repeal. As stated in the BPA SIP, LEV emissions standards outlined in the FCAA and referenced in the TCF program were surpassed by federal Tier 2 standards beginning with model year 2004 vehicles making the TCF requirements redundant. This occurred well before the development of the BPA SIP. Reduction credits claimed in the BPA attainment demonstration SIP were limited to those achieved through the NLEV program to avoid the possibility of "double counting" credits. The availability and purchase of NLEV and Tier 2 vehicles have provided more reductions than the TCF program, thus making these programs more accurately identiable as the most current reasonably available control measures (RACM). Repealing the TCF program, a program for which "zero" credits have been accounted in SIP attainment demonstrations, does not interferewith attainment and maintenance measures and does not constitute a "backsliding" activity.An analysis of the TCF program and the NLEV program is available on the TCEQ website at www.tceq.state.tx.us/implementation/air/sip/apr2006txled.html

. Additionally, the TCEQ points to emission-reducing control strategies, not required under the Clean Air Act, which result in emission reductions beyond those achieved through the TCF program. Specically, reductions achieved through the state’s rules in 30 TAC §§115.352 - 115.359 in Subchapter D, Division 3, Fugitive Emission Control in Petroleum Rening, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas, in conjunction with requirements in §115.211(a)(1) in Subchapter C, Volatile Organic Compound Transfer Operations, provide additional emission reductions in furtherance of buttressing the repeal of the Clean Fleet Program with substantive credits. These identied reductions totaled more than 535.3 tons per day of VOC statewide. These requirements, identied in the TCF SIP, continue to be effective and provide reductions. Additionally, identied excess NO

x emission reductions resulting from state mandated reduction requirements placed on electric generating facilities (EGFs) by the 76th Texas Legislature in Senate Bill 7 for the HGB and DFW areas and identied as reductions used to make up any shortfall between the TCF and the federal CFF programs continue to be effective. The abundance of credits, beyond those necessary to conform with the implementation of a substitute program, was acknowledged by the EPA in its approval of the state’s Clean Fleet Program. (See the February 7, 2001, issue of the Federal Register (66 FR 9203)). Irrespective of the fact that the repeal will not result in a loss of reductions, the use of these emissions to cover any shortfall in the Texas Clean Fleet Program was articulated in the state’s 1998 SIP revision for Federal Clean Fuel Fleet substitute program. Such reductions not previously claimed or credited in SIP attainment demonstrations, along with reductions incurred as a result of the currently existing NLEV and Tier 2 programs, should amply satisfy the concerns



### 31 T exReg 3880 May 12, 2006 Texas Registerraised by the EPA in connection with the Clean Fleet Programrepeal. The commission does not consider the currently existing NLEV and Tier 2 programs as substitute measures for the TCF program. Additionally, the Clean Cities, CMAQ, and TERP programs provide funding for replacing older equipment or vehicles with newer, cleaner vehicles or equipment. These voluntary programs will continue to encourage turnover at a more accelerated pace. The commission did not revise the rule as a result of this comment. 

### SUBCHAPTER A. DEFINITIONS 30 TAC §114.3 STATUTORY AUTHORITY The repeal is adopted under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, concerning Rules; and§5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorizethe commission to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeal is also adopted under THSC, §382.002, concerning Policy andPurpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012,concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; and §382.019, which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles. Specically, the repeal is adopted to implement the legislative mandate under SB 1032, 79th Legislature, 2005. The adopted repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019, and SB 1032, 79th Legislature, 2005. This agency hereby certies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Ofce of the Secretary of State on April 27, 2006. TRD-200602357 Stephanie Bergeron Perdue Acting Deputy Director, Of ce of Legal Services Texas Commission on Environmental Quality Effective date: May 17, 2006 Proposal publication date: November 25, 2005 For further information, please call: (512) 239-0177



### SUBCHAPTER E. LOW EMISSION VEHICLE FLEET REQUIREMENTS 30 TAC §§114.150, 114.151, 114.153 - 114.157 STATUTORY AUTHORITYThe repeals are adopted under TWC, §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorize the commissionto adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeals are also adopted underTHSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning GeneralPowers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; and §382.019, which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles. Specically, the repeals are adopted toimplement the legislative mandate under SB 1032, 79th Legislature, 2005. The adopted repeals implement THSC, §§382.002, 382.011, 382.012, and 382.019, and SB 1032, 79th Legislature, 2005. This agency hereby certies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Ofce of the Secretary of State on April 27, 2006. TRD-200602358 Stephanie Bergeron Perdue Acting Deputy Director, Of ce of Legal Services Texas Commission on Environmental Quality Effective date: May 17, 2006 Proposal publication date: November 25, 2005 For further information, please call: (512) 239-0177



### CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES The Texas Commission on Environmental Quality (TCEQ or commission) adopts amendments to §§114.6, 114.312, 114.313, and 114.315 - 114.318. Sections 114.6, 114.313, 114.315, 114.316, and 114.318 are adopted with changes to the proposed text as published in the December 16, 2005, issue of the Texas Register (30 TexReg 8407). Sections 114.312 and 114.317 are adopted without changes and will not be republished. The amended sections as adopted will be submitted to theUnited States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES On March 9, 2005, the commission adopted revisions to the lowemission diesel fuel (LED) rules (§§114.312 - 114.319) and submitted them as a SIP revision to the EPA on March 23, 2005. Subsequently, EPA raised concerns with certain provisions of§114.315 that give the state unilateral authority to accept alternative methods of compliance. Specically, EPA stated that subsections (b) and (c)(4)(C)(ii)(V) of §114.315 were problematic in regard to EPA’s approval of the rule and SIP revision.



### ADOPTED RULES May 12, 2006 31 TexReg 3881