Kathleen Hartnett White. Chairman 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

RECEIVED- 6POL 

AIR PLANNING SEC. 

07 JUL 30 P~1 4: ~S 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

July 25, 2007 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

Docket No. 2006-1864-RUL 

On June 27, 2007, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 30 

Texas Administrative Code (TAC) Chapter 114 and corresponding revisions to the Transportation Conformity 

State Implementation Plan (SIP). 

The Commission approved these changes to incorporate federal transportation conformity revisions from the 

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The 

rulemaking also incorporated previous federal transportation conformity revisions and guidance that include: 

requesting states to incorporate into SIPs when a regionally significant, non-federal project is considered 

adopted or approved by a non-federal entity; adding transportation-related PM2.s precursors to the 

transportation conformity regulations; and deleting a previous quantitative PMw and PM2.s hot-spot analysis. 

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

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

Sincerely, · 

d~o/1~~ ~l~~~an 

KHW/ts 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet addre~s: w\vw.tceq.state.tx.us 
TExAs CoMMISSION oN ENVIRONMENTAL QuALITY 

THE STATE OF TEXAS 

COUNTY OF TRAVIS 

This is to certify that the attached are true and correct copies of documents for a revision to the Texas 

State Implementation Plan, adopted on June 27, 2007, pursuant to 40 Code of Federal Regulations (C.P.R.) § 

51.104. I am the records administrator for the Air Quality Division of the Texas Commission on 

Environmental Quality (Commission). 

Susana M. Hildebrand, P. E. , Director 

Air Quality Division 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

March 6, 2007 

Concerning Revisions to 30 TAC Chapter 114 

Control of Air Pollution from Motor Vehicles 

Transportation Conformity Rule 

And State Implementation Plan Revision 

Rule Project No. 2006-046-114-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on 

March 6, 2007, to receive testimony regarding revisions to 30 TAC Chapter 114, Control of Air 

Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan. 

The comment period closed on March 12, 2007. All testimony and comments have been reviewed 

and seriously considered. This hearing record contains a complete record of the 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. For further information, please contact Marivel Rodriguez, Air Quality 

Division, at (512) 239-2474. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

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

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

Austin American-Statesman: February 1, 2007 

Fort Worth Star-Telegram: February 1, 2007 

Houston Chronicle: February 1, 2007 

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

(32 TexReg 499). 

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

Register (32 TexReg 578). 

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

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Victoria Planning Department 

Dallas Department of Environmental and Health Services 

Dallas Department of Aviation 

East Texas Council of Governments 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 
Fort Worth Environmental Management Department 

Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

U.S. Environmental Protection Agency 
Example of Newspaper Classified Ad 

Fort Worth Star-Telegram, February 1, 2007 

NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND TO THE STATE IMPLEMENTATION PLAN The- Texas Commis- sion on Environmental Quality (commission) will 9onduct a put;>lic heapng to rece_1ve i . 

testimony rl?!gard1ng proposed reVISions to 30 . Texas Adminis- trative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Sub- . chapter G, Transpor- tation · Planning, §114.260, Transpor- tation Conformity, and to the state Imple- mentation plan (SIP). under-: the·· require- ments of Texas Health and Safety. ·Code, 

1:>382.017;··•,, -r. .. Texas Government'· ·Code, 

Chapter 2001, Suo-

~~~d~r 0~; aredde~ Regulations &51.1 02 of the Unitecf State• Environmental Pro· taction _Agency (EPA) 

1 regulations., concern· ing SIPs. . . . The proposed .. rule· making would incor- , 

fr~~i~o~a'tfon~ ~~~1~-­

~~{./;'vg:1i~n~~~~~~~e I 

including ·those from -

{~:ns~6J~r6n su~~~: . thorization": _ act o1 j 

2005, the Safe, Ac- 1 countable, Flexible, Eff1cient · Trans porta- j· lion Equity Act: A Leaag_y_ for: _ Users : (SAFETEA-LU):. In J addition to addressing 1 

the Sll.FETEA·LU Te- - visions, the rulemak· 1 ing would also incor-, 

~~~rte r~:~~~6~~ttf~~ i 

conformity revisions . and guii:lance that include: requesting~ 

states to incorporate·. into SIPs when a, regionally significant, f non-~ederal project is 1 cons1dered :.,adopted or approved by a:non- federal entity; adding trans~ortation-relatea 

~~~ · r::~~;~rt~tici~ c;ori!ormity . · r~gulatJons; and delet1nQ a grevfous auantitafJve PM 10 and PM2.5 ho!- soot analysis. 

A tr~gg~:,s~.tlr%~n~~~i~ I 

1n Austin, Texas, on March 6, 2007, at 10:00 a.m .. 1n Building B, Room 201A, at the Texas Commission on Environmental Quality 

1~'1'cf~ ~ark §~ ~9rcl~~ The; hearing will be structured for the r&- eeipt of oral or written comments by inter- ested persons. Re.Q- IStration will begin ..;o minutes prior fo the hearing. Individuals 

~~femfr~tessent w~~~ .called upon in order of registration. There will tie no opeh dis- cuss.lon dunng the heanng; . however, commiSSIOn . staff members will be available to discuss the proposal 30 min- utes prior to the hearing.·_. .. · · . ·! 

Persons _ /{Ianning to: 

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

r~fl2J1 2~~-'0~~e8~' R;~ quests·· should be; made as far in ad- vance· as possible. Comments may be submitted toe . Lola Brown.- MC · 205 Texas Register Team' "Office of Legal Ser: 

vices, Texas Com- missior.~ on Environ-

[3'~~taj 3i?~f'lityAu~if;; Texas 78711'3087 01 

faxedto (512) 239· 4808,· .. --. · .Electronic comr11ents may bE submitted"" · · . • a http:llwww5.tceq 

state. tx. us/rules, ecomments. The comment perioc closes lvlarch 12. 2007. All comments should reference Rule 

b~~-~ctj'!E~.ber 21f~~ proposed rule may be VI~Wed on the com· mission's Web site at http: I I w w w .. Ice q. state.tx. us/.na v/ru lest 

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

~f:rfJeF~eoad~fa.3~i A~:. . Oualiiy DiviSion,' at (512) 239-2474. issued in .1\ustin, Tex- as. on January 24 i 2007. ', 
1\athkcn Hartnett White, Chairman 

Larry H. Soward, Commissioner 

Martin A Hubert, Commissioner 

Glenn Shankle, Executive Director 

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

- .... r-; jt;~tTEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

AIR ,·-11 1,-,,, NOTICE OF PUBLIC HEARING BY THE 

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

.. <:..;;1 ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND 

TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive 

testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control of 

Air Pollution from Motor Vehicles, Subchapter G, Transportation Pla1ming, §114.260, Transportation 

Conformity, and to the state implementation plan (SIP), under the requirements of Texas Health and Safety 

Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal 

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

SIPs. 

The proposed rulemaking would incorporate recent federal transportation conformity rev1s10ns into the 

state's SIP and rule, including those from the six-year surface transportation reauthorization act of 2005, the 

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In 

addition to addressing the SAFETEA-LU revisions, the rulemaking would also incorporate previous federal 

transportation conformity revisions and guidance that include: requesting states to incorporate into SIPs 

when a regionally significant, non-federal project is considered adopted or approved by a non-federal entity; 

adding transportation-related PM2.s precursors to the transportation conformity regulations; and deleting a 

previous quantitative PM10 and PM2.s hot-spot analysis. 

A public hearing on this proposal will be held in Austin, Texas, on March 6, 2007, at 10:00 a.m., in 

Building B, Room 201A, at the Texas Commission on Environmental Quality complex located at 12100 

Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested 

persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements 

when called upon in order of registration. There will be no open discussion during the hearing; however, 

commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons planning to attend the hearing, who have special communication or other accmmnodation needs, 

should contact Lola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in 

advance as possible. 

Comments may be submitted to Lola Brown, MC 205, Texas Register Team, Office of Legal Services, 

Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 

239-4808. Electro11ic comments may be submitted at http://www5.tceq.state.rx.us!rulesleconzments. The 

cmrunent period closes March 12, 2007. All cmrunents should reference Rule Project Number 2006-046-

114-EN. The proposed rule may be viewed on the commission's Web site at 

http :I lwww. tceq. srate. tx. us lnav /rules !propose_ adopt. html. For further information or questions concerning 

this proposal, please contact Marivel Rodriguez, Air Quality Division, at (512) 239-2474. 

Issued in Austin, Texas, on Janua/)' 24, 2007. 

P.O. l3ox L\Ut\7 • Austin, Texas 78711-3087 • 512/2:)9-1000 • lnl<::rnet acldres.,: wwvl'.lccq.state.tx.us 
STAFF ATTORNEY: Laurencia asoyiro, Litigation Division, MC 

R-12, (713) 422-8914; REGION L OFFICE: Beaumont Regional 

Office, 3870 Eastex Freeway, Be umont, Texas 77703-1892, (409) 

898-3838. 

(9) COMPANY: Transit Mix oncrete & Materials Company; 

DOCKET NUMBER: 2005-060 MLM-E; TCEQ ID NUMBER: 

RN104352869; LOCATION: 3902 East Stan Schlueter Loop, Killeen, 

Bell County, Texas; TYPE OF FA ILITY: concrete ready mix plant; 

RULES VIOLATED: 30 TAC §3 0.5(a), by failing to prevent the 

unauthorized disposal of munici a! waste; and TWC, §26.12l(a) 

and Texas Pollutant Discharge Eli ination System (TPDES) General 

Permit No. TXR05P896 Part V, S ction E(4), page 56, by failing to 

prevent the unauthorized discharge [municipal waste into or adjacent 

to waters in the state; PENALT : $27,500; STAFF ATTORNEY: 

Kathleen Decker, Litigation Div sion, MC 175, (512) 239-6500; 

REGIONAL OFFICE: Waco Reg· nal Office, 6801 Sanger Avenue, 

Suite 2500, Waco, Texas 76710-78 6, (254) 751-0335. 

TRD-200700259 

Mary Risner 

Director, Litigation Division 

Texas Commission on Environment I Quality 

Filed: January 30, 2007 

• • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 114 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control 

of Air Pollution from Motor Vehicles, Subchapter G, Transportation 

Planning, § 114.260, Transportation Conformity, and to the state implementation plan (SIP), under the requirements of Texas Health and 

Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §5!.102 of the United 

States Environmental Protection Agency (EPA) regulations concerning 

SIPs. 

The proposed rulemaking would incorporate recent federal transportation conformity revisions into the state's SIP and rule, including those 

from the six-year surface transportation reauthorization act of 2005, 

the Safe, Accountable, Flexible, Efficient Transportation Equity Act: 

A Legacy for Users (SAFETEA-LU). In addition to addressing the 

SAFETEA-LU revisions, the rulemaking would also incorporate previous federal transportation conformity revisions and guidance that include: requesting states to incorporate into SIPs when a regionally significant, non-federal project is considered adopted or approved by a 

non-federal entity; adding transportation-related PM,, precursors to the 

transportation conformity regulations; and deleting a previous quantitative PM10 and PM,, hot-spot analysis. 

A public hearing on this proposal will be held in Austin, Texas, on 

March 6, 2007, at 10:00 a.m., in Building B, Room 201A, at the Texas 

Commission on Environmental Quality complex located at 12100 Park 

35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when 

called upon in order of registration. There will be no open discussion 

during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons planning to attend the hearing, who have special communication or other accommodation needs, should contact Lola Brown, Office 

of Legal Services, at (512) 239-0348. Requests should be made as far 

in advance as possible. 

32 TexReg 578 February 9, 2007 Texas Register 

Comments may be submitted to Lola Brown, MC 205, Texas Register 

Team, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or 

faxed to (512) 239-4808. Electronic comments may be submitted at 

http:II1Aww5.tceq.state.tx.uslrules/ecomrnents. The comment period 

closes March 12, 2007. All comments should reference Rule Project 

Number 2006-046-114-EN. The proposed rule may be viewed on the 

commission's Web site at http://www.tceq.state.tx.us/nav!rules/propose_adopt.htrnl. For further information or questions concerning this 

proposal, please contact Marivel Rodriguez, Air Quality Division, at 

(512) 239-2474. 

TRD-200700213 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: January 26, 2007 

• 

Notice of Request for Public C 

Meeting for One Total Maximu 

• 

ent and Notice of a Public 

Daily Load 

The Texas Commission on Environ ental Quality (TCEQ or commission) has made available for public omment one draft Total Maximum 

Daily Load (TMDL) for bacteria in Gilleland Creek (Segment 1428C) 

of the Colorado River Basin, loca d in northeastern Travis County. 

The TCEQ will conduct a public eting to receive comments on the 

draft TMDL. This announcement al o constitutes notice that the TMDL 

will become part of the State Water uality Management Plan upon approval by the United States Enviro ental Protection Agency (EPA). 

or impaired water bodies included 

in the State ofTexas Clean Water ct, §303(d) list of impaired water 

bodies. A TMDL is a detailed wat r quality assessment that provides 

the scientific foundation to allocate ollutant loads in a certain body of 

water in order to restore and maint in designated uses. 

The TCEQ will conduct a public eting on the draft TMDL for bacteria in Gilleland Creek (Segment 428C). The purpose of the public 

meeting is to provide the public an portunity to comment on the draft 

TMDL. The commission requests omment on each of the six major 

components of the TMDL: proble definition, endpoint identification, 

source analysis, linkage between s ces and receiving waters, margin 

of safety, and pollutant loading all cation. After the public comment 

period, TCEQ staff may revise th TMDL, if appropriate. The final 

TMDL will then be considered by e commission for adoption. Upon 

adoption of the TMDL by the co ission, the final TMDL and aresponse to all comments will be rna e available on the TCEQ Web site 

referenced below. The TMDL will hen be submitted to EPA Region 6 

for approval. Upon approval, the DL will be certified as an update 

to the State of Texas Water Qualit Management Plan. 

The public comment meeting will be held on February 22, 2007, at 

7:00p.m., at the Pflugerville Justi Center, 1611 East Pfennig Lane, 

Pflugerville, Texas 78691. At this eeting, individuals have the opportunity to present oral statements w en called upon in order of registration. There will be no agenda or p esentations given, open discussion 

will not occur during the meeting. However, an agency staff member 

will be available to discuss the rna er 30 minutes prior to the meeting 

and will answer questions before nd after all public comments have 

been received. 

Written comments should be sub 'tted to Edward Ling, Texas Commission on Environmental Quality, ater Programs Division, MC 203, 

P.O. Box 13087, Austin, Texas 7 711-3087 or faxed to (512) 239-

1414. All comments must be rece· ed by 5:00p.m., March 12, 2007, 

and should reference, One Total ·imurn Daily Load for Bacteria in 
This agency hereby certifies th the proposal has been reviewed 

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

Filed with the Office of the S retary of State on January 26, 

2007. 

TRD-200700221 

J. Randel (Jerry) Hill 

General Counsel 

Texas State Board of Public Accou tancy 

Earliest possible date of adoption: arch 11, 2007 

For further information, please call: (512) 305-7848 

• • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 114. CONTROL OF AIR 

POLLUTION FROM MOTOR VEHICLES 

SUBCHAPTER G. TRANSPORTATION 

PLANNING 

30 TAC §114.260 

The Texas Commission on Environmental Quality (commission) 

proposes an amendment to §114.260 and corresponding revisions to the Transportation Conformity State Implementation 

Plan (SIP) for Texas Nonattainment and Maintenance Areas. 

If adopted, the revisions would be submitted to the United States 

Environmental Protection Agency (EPA) as a revision to the SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

The Federal Clean Air Act (FCAA) Amendments of 1990 as 

codified in 42 United States Code (USC), §§7401 et seq. required each state to submit a revision to its SIP by November 

25, 1994, establishing enforceable criteria and procedures for 

making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects 

funded by the Federal Highway Administration (FHWA) or the 

Federal Transit Administration (FTA). Final rules regarding 

conformity requirements were published by EPA on November 

24, 1993. The Texas SIP revision that incorporated conformity 

requirements was adopted October 19, 1994, and approved 

by EPA November 8, 1995. EPA has amended the federal 

transportation conformity rule eight times: August 7, 1995; 

November 14, 1995; August 15, 1997; April 1 0, 2000; August 

6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The 

commission previously incorporated the federal changes up to, 

and including, the 2004 amendments. The commission is now 

updating its SIP and rule to incorporate the May 6, 2005, and 

March 10, 2006, federal amendments. In addition to the 2005 

and 2006 federal amendments, changes to the transportation 

conformity federal rule were enacted with passage of the Safe, 

Accountable, Flexible, Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA-LU), which was signed into law 

August 10, 2005. Furthermore, EPA issued guidance in May 

1999, that a state should spell out in its SIP when a regionally 

significant, non-federal project is considered adopted or approved by a non-federal entity. The addition of these changes to 

the existing state rules would align the state rule with the current 

federal requirements and would address when a non-federal, 

regionally significant project is considered adopted or approved 

by a non-federal entity. Lastly, this proposed rulemaking would 

make administrative and grammatical changes and corrections 

to the existing rule language. 

Transportation conformity is required under FCAA, §176(c) to 

ensure that federally supported highway and transit project activities are consistent with the purpose of the state's Sl P. Conformity applies to areas designated nonattainment and those redesignated to attainment after 1990 with a maintenance plan 

developed under the FCAA. Conformity to the purpose of the 

SIP means that transportation activities would not cause new air 

quality violations, worsen existing violations, or delay timely attainment of the relevant National Ambient Air Quality Standards 

(NAAQS). EPA's transportation conformity rule establishes the 

criteria and procedures for determining whether transportation 

activities conform to the SIP. 

EPA amended the transportation conformity rule on May 6, 

2005. The Transportation Conformity Rule Amendments for the 

New PM,, NAAQS: PM,, Precursors (70 FR 24280) specifies 

the transportation-related PM,, precursors and when they apply 

in transportation conformity determinations in PM,, (particulate 

matter) nonattainment and maintenance areas. The proposal 

would incorporate PM,, precursors in the state rule and make 

a technical correction to a United States Department of Transportation (U.S. DOT) planning regulation cross-reference. EPA's 

2005 revisions were codified in 40 Code of Federal Regulations 

(CFR) Part 93. Sections revised were §§93.102, 93.105, and 

93.119. 

EPA also amended the transportation conformity rule on March 

10, 2006: the PM,, and PM, Hot-Spot Analysis in Project Level 

Transportation Conformity Determinations for the New PM,., 

and Existing PM10 National Ambient Air Quality Standards Final 

Rule (71 FR 12468). The proposal would delete the current 

quantitative PM, and PM,, hot-spot analysis requirement from 

the state's conformity consultation requirements. The federal 

amendments were codified in 40 CFR Part 93. Sections revised were §§93.101, 93.105, 93.109, 93.116, 93.123, 93.125, 

93.126, and 93.127. 

The transportation conformity provisions in the SAFETEA-LU 

streamlined the requirements for state conformity SIPs. Prior 

to enactment of SAFETEA-LU, states were required to address 

all of the federal conformity rule's provisions in their conformity 

SIPs. Most of the sections of the federal rule were required 

to be copied verbatim from the federal rule into a state's SIP, 

as previously required under 40 CFR §51.390(d). Now, under 

SAFETEA-LU, states are required to address and tailor only the 

following three sections of the conformity rule in their conformity SIPs: 1.) 40 CFR §93.1 05, which addresses consultation 

procedures; 2.) 40 CFR §93.122(a)(4)(ii), which requires that 

written commitments to control measures that are not included 

in a Metropolitan Planning Organization's transportation plans 

must be obtained prior to a conformity determination and that 

such commitments must be fulfilled; and 3.) 40 CFR §93.125(c), 

which requires that written commitments to mitigation measures 

must be obtained prior to a project-level conformity determination and that project sponsors must comply with such commitments. 

In May 1999, EPA issued guidance titled Conformity Guidance 

on Implementation of March 2, 1999, Conformity Court Decision 

PROPOSED RULES February 9, 2007 32 TexReg 499 
addressing which projects could move forward during a conformity lapse. EPA recommended that states decide through 

the interagency consultation process when a regionally significant, non-federal project is considered adopted or approved by a 

non-federal entity that routinely receives funds from the FHWA or 

FTA. The interagency consultation group for Texas, the Technical Work Group (TWG), has agreed on language that is included 

in this proposed rulemaking. The commission is also proposing administrative and grammatical changes and corrections to 

the existing rule language in order to be consistent with current 

agency style and format. The commission is also proposing to 

renumber certain parts of §114.260 to make adjustments for the 

proposed deletions and additions throughout the rule. 

SECTION DISCUSSION 

§114.260. Transportation Conformity. 

The proposed revisions to§ 114.260(a) would change the phrase 

in the requirements and replace it with certain requirements. 

The last sentence in this subsection would be changed from, 

It includes policy, criteria, and procedures to demonstrate and 

assure conformity of transportation planning activities with the 

state implementation plan (SIP) and replaced with, This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used to help demonstrate and assure conformity 

of transportation planning activities to the state implementation 

plan (SIP) to more clearly describe the transportation conformity 

streamlining provisions in SAFETEA-LU. 

The proposed revisions to§ 114.260(b) would add the term criteria in the first sentence to change the phrase transportation-related pollutants to transportation-related criteria pollutants. The 

purpose of this change is to clarify that the applicable pollutants are criteria pollutants. The second sentence would add 

transportation-related criteria to form the phrase transportationrelated criteria pollutants. The word include is replaced with are 

and the precursor pollutants are listed in a separate sentence, 

which is then amended by adding PM,, as a precursor and referring to 40 CFR §93.102. The addition of PM,, to the sentence 

reflects the substantive change in EPA's May 6, 2005, final rule, 

the Transportation Conformity Rule Amendments for the New 

PM,, National Ambient Air Quality Standard: PM, Precurso~s 

(70 FR 24280). The purpose of referring to 40 CFR §93.102 IS 

to indicate the applicable precursors to be analyzed depending 

on the characteristics of the nonattainment area. Finally, the last 

sentence is deleted because its reference to nonattainment area 

boundaries is not needed in the rule language. 

The proposed revisions to §114.260(c) would delete the reference to 40 CFR Part 93, Subpart A, (62 FR 43780), and add 

the replacement reference 40 CFR §93.122(a)(4 )(ii) and 40 

CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, 

§7506(c)(4)(E) direct that only these two sections plus CFR 

§93.105 need to be in the state conformity rule. The addition 

of these three sections would streamline the requirements for 

state conformity SIPs. 

The proposal would revise §114.260(d)(2)(A)(i) to delete the 

rule language Air Quality Planning and Implementation Division 

and replace it with executive director. The proposal would 

revise §114.260(d)(2)(A)(ii) to delete the word involvement and 

replace it with participation and would change the 23 CFR reference §450.316(b)(1) to Part 450. The proposal would revise 

§114.260(d)(2)(A)(iii) to delete by the Metropolitan Planning 

Rule and change the 23 CFR reference §450.316(b)(1) to 

32 TexReg 500 February 9, 2007 Texas Register 

Part 450. The proposal would revise §114.260(d)(2)(A)(v) to 

delete the word involvement and replace it with participation, 

and would delete §114.260(d)(2)(A)(vii). The proposal would 

revise §114.260(d)(2)(B)(v) to correct the reference to 40 CFR 

§93.1 09(g)(2)(iii) with a reference to 40 CFR §93.1 09(1)(2)(iii). 

The proposal would revise §114.260(d)(3)(A) to delete the word 

involvement and replace it with participation. The proposal 

would revise §114.260(d)(3)(C) to delete the words identified as 

the Technical Working Group for Mobile Emissions and would 

delete the last sentence, The function of this working group may 

be delegated to an existing group with similar composition and 

purpose. The proposal would revise §114.260(d)(5) to delete the 

word involvement and replace it with participation and renumber 

the CFR reference for the fee schedule for public inspection and 

copying. These proposed revisions would align the state rule 

with the federal rule; allow the executive director to delegate 

authority to staff without explicitly naming the designee; provide 

flexibility to the Technical Work Group; and bring existing rule 

language into agreement with Texas Register requirements, 

agency format guidelines, and guidance provided in the Texas 

Legislative Council Drafting Manual, August 2006. 

The proposed new §114.260(e) would address when a regionally significant, non-federal project is considered adopted or approved by a non-federal agency. This section was added to 

clarify the approval and adoption process of a non-federal, regionally significant project. In the event of a transportation conformity lapse, the provision may allow certain project phases to 

continue. 

The proposed amendment to §114.260(f) would delete the words 

begins on and replace them with for transportation conformity determinations that begin the interagency consultation process after. The purpose of this change is to make clear that compliance 

with this rule revision applies at the beginning of the interagency 

consultation process. 

The proposed revision would make administrative and grammatical changes and corrections to the existing rule language 

in order to be consistent with current agency style and format 

guidelines. The proposal would also renumber certain parts of 

§114.260 to make adjustments for the proposed deletions and 

additions throughout the rule. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jeff Horvath, Analyst, Strategic Planning and Assessment Section, has determined that for the first five-year period the proposed rule is in effect, no fiscal implications are anticipated for 

the agency or other units of state or local government as a result 

of the administration or enforcement of the proposed rule. 

The proposed rulemaking would incorporate recent federal 

transportation conformity revisions into the state's SIP, including 

those from the surface transportation reauthorization act of 

2005, SAFETEA-LU. Transportation conformity is an FCM 

requirement ensuring that federally supported highway and 

transit projects conform to each state's SIP. 

In addition to the SAFETEA-LU revisions, the rulemaking would 

also incorporate previous federal transportation conformity revisions and guidance that includes: 1.) May 1999 EPA guidance 

that asked states to incorporate into their SIPs the process used 

to determine when a regionally significant, non-federal project is 

considered adopted or approved by a non-federal entity. This 

clarifies when certain projects, like toll roads, can move forward 

during a conformity lapse; 2.) EPA rules that added transporta-
tion-related PM, precursors to the transportation conformity regulations and made a technical correction to a cross-reference 

of the U.S. DOT planning regulations; and 3.) EPA rules that 

deleted a previous consultation requirement for quantitative PM,, 

and PM, hot-spot analysis. 

The transportation conformity rule is only being revised to reflect existing language in the federal transportation conformity 

rule and other federal transportation conformity-related rules and 

guidance. Therefore, no fiscal implications are anticipated for 

the agency or other units of state or local governments as a result of the enforcement and administration of the proposed rule. 

PUBLIC BENEFITS AND COSTS 

Mr. Horvath has also determined that for each year of the first 

five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be compliance with state and federal law, continued conformity with the 

SIP, and continued protection of public health and the environment through improved air quality. 

The transportation conformity rule is only being revised to reflect existing language in the federal transportation conformity 

rule and other federal transportation conformity-related rules and 

guidance. Therefore, no fiscal implications are anticipated for 

businesses or individuals as a result of the enforcement and administration of the proposed rule. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

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

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a 

local economy in a material way for the first five years that the 

proposed rule is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of 

the regulatory impact analysis requirements of the Texas Government Code, §200 1.0225, and determined that the proposed 

rulemaking meets the definition of a major environmental rule 

as defined in that statute. A major environmental rule means 

a rule, the specific intent of which is to protect the environment 

or reduce risks to human health from environmental exposure, 

and that may adversely affect in a material way the economy, a 

sector 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 amendments meet the definition of 

a major environmental rule because the transportation conformity requirements are specifically intended to protect the environment and/or reduce risks to human health, and may have material affects on the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and 

safety of the state or a sector of the state. Federal transportation 

conformity requirements subject all nonattainment and maintenance areas to demonstrate conformity with specific emissions 

budgets, or be subject to loss of highway or other transportation 

funding. The proposed amendments to §114.260 will incorporate recent federal transportation conformity revisions into the 

state's SIP, including those from the surface transportation reauthorization act of 2005, SAFETEA-LU. Transportation conformity 

is an FCAA requirement ensuring that federally supported highway and transit projects conform to each state's SIP. Additionally, the proposed amendments to § 114.260 will reflect existing 

language in the federal transportation conformity rule and other 

federal transportation conformity-related rules and guidance. 

The proposed rulemaking does not, however, meet any of the 

four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas 

Government Code, §2001.0225(a). Texas Government Code, 

§2001.0225 applies only to a major environmental rule, theresult of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an 

express requirement of state law, unless the rule is specifically 

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or 

representative of the federal government to implement a state 

and federal program; or 4) adopt a rule solely under the general 

powers of the agency instead of under a specific state law. 

The proposed rulemaking would implement requirements of the 

FCAAand SAFETEA-LU. Under42 USC, §7506, each SIP must 

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

procedures for consultation, enforcement, and enforceability. 

The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate 

Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 

633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory 

language as major environmental rules that will have a material 

adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely 

under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission 

provided a cost estimate for SB 633 that concluded based on an 

assessment of rules adopted by the agency in the past, it is not 

anticipated that the bill wi/1 have significant fiscal implications for 

the agency due to its limited application. The commission also 

noted that the number of rules that would require assessment 

under the provisions of the bill was not large. This conclusion 

was based, in part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless the rule was 

a major environmental rule that exceeds a federal law. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the goals of the FCAA; thus, states 

must develop programs and strategies to help ensure that those 

goals are met. However, in this instance, the FCAA is clear in requiring that states comply with EPA's criteria and procedures for 

consultation, enforcement, and enforceability. EPA's transportation conformity rule and SAFETEA-LU provide specific requirements and limited flexibility that must be met by states. Because 

of the ongoing need to address the requirements of 42 USC, 

§§7401, et seq., the commission routinely proposes and adopts 

SIP rules. As discussed elsewhere in this preamble, states are 

required to incorporate requirements for transportation conformity in compliance with EPA's transportation conformity rule and 

SAFETEA-LU. The legislature is presumed to understand this 

federal scheme. If each rule proposed for inclusion in the SIP 

was considered to be a major environmental rule that exceeds 

federal law, then every SIP rule would require the full regulatory 

impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in 

its cost estimate and by the Legislative Budget Board (LBB) in 

its fiscal notes. Since the legislature is presumed to understand 

PROPOSED RULES February 9, 2007 32 TexReg 501 
the fiscal impacts of the bills it passes, and that presumption is 

based on information provided by state agencies and the LBB, 

the commission believes that the intent of SB 633 was only to 

require the full regulatory impact analysis for rules that are extraordinary in nature. While the proposed rule may have a broad 

impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, 

rules adopted for inclusion in the SIP fall under the exception in 

Texas Government Code, §2001.0225(a), because they are required by federal law. 

The commission has consistently applied this construction to its 

rules since this statute was enacted in 1997. Since that time, 

the legislature has revised the Texas Government Code, but 

left this provision substantially unamended. It is presumed that 

when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the 

statute, the legislature is deemed to have accepted the agency's 

interpretation. Central Power & Light Co. v. Sharp, 919 S.W.2d 

485, 489 (Tex. App. Austin 1995), writ denied with per curiam 

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

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

Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert, 

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto 

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. 

Austin 2000, pet. denied); and Coastallndust. Water Auth. v. 

Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). 

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

Texas Administrative Procedure Act (APA) by the legislature in 

1999. In an attempt to limit the number of rule challenges based 

upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the 

standard of substantial compliance. The legislature specifically 

identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied 

with the requirements of Texas Government Code, §2001.0225. 

The specific intent of the proposed rulemaking is to incorporate 

recent federal transportation conformity revisions into the state's 

SIP, including those from SAFETEA-LU, in addition to reflecting 

already existing changes in the federal transportation conformity 

rule and other federal transportation conformity-related rules and 

guidance. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the 

proposed rulemaking does not exceed a standard set by federal 

law, exceed an express requirement of state· law, or exceed a 

requirement of a delegation agreement. Finally, this rulemaking action was not developed solely under the general powers of 

the agency, but is authorized by specific sections of Texas Health 

and Safety Code (THSC), Chapter 382 (also known as the Texas 

Clean Air Act (TCAA)), and the Texas Water Code (TWC), which 

are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.012, 382.017, and 382.208. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because although the proposed rulemaking meets the definition of 

a major environmental rule, it does not meet any of the four applicability requirements. 

The commission invites public comment on the draft regulatory 

impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

32 TexReg 502 February 9, 2007 Texas Register 

The commission evaluated the proposed rulemaking and performed an assessment of whether Texas Government Code, 

Chapter 2007 is applicable. The specific purpose of the proposed rulemaking is to incorporate recent federal transportation 

conformity revisions into the state's SIP, including those from 

SAFETEA-LU, in addition to reflecting already existing changes 

in the federal transportation conformity rule and other federal 

transportation conformity-related rules and guidance, as discussed elsewhere in this preamble. Under FCAA, 42 USC, 

§7506, each SIP must contain criteria and procedures for consultation, and enforcement and enforceability in accordance with 

the EPA's criteria and procedures for consultation, enforcement 

and enforceability. 

The commission's assessment indicates that Texas Government 

Code, Chapter 2007 does not apply to this proposed rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4 ). For this reason, 

Texas Government Code, Chapter 2007 does not apply to this 

proposed rulemaking. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, 

§§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter 8, concerning Consistency with the Texas 

Coastal Management Program. As required by §281.45(a)(3) 

and 31 TAC §505.11 (b)(2), concerning Actions and Rules Subject to the Coastal Management Program, 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 rules of the Coastal Coordination Council, 

and determined that the action is consistent with the applicable 

CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the 

diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1 )). This rulemaking action complies with 40 CFR Part 51, concerning Requirements for 

Preparation, Adoption, and Submittal of Implementation Plans, 

and Title 40 generally. Therefore, in accordance with 31 TAC 

§505.22(e), the commission affirms that this rulemaking action 

is consistent with CMP goals and policies. 

The commission solicits comment on the consistency of the proposed rulemaking with the CMP during the public comment period. 

ANNOUNCEMENT OF HEARING 

A public hearing on this proposal will be held in Austin on March 

6, 2007, at 10:00 a.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building 

B, Room 201A. The hearing will be structured for the receipt of 

oral or written comments by interested persons. Individuals may 

present oral statements when called upon in order of registration. 

There will be no open discussion during the hearing; however, 

an agency staff member will be available to discuss the proposal 

30 minutes prior to the hearing. 

Persons who have special communication or other accommodation needs who are planning to attend the hearin~ should contact 
Lola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in advance as possible. 

SUBMITTAL OF COMMENTS 

Written comments may be submitted to Lola Brown, MC 205, 

Office of Legal Services, Texas Commission on Environmental 

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed 

to (512) 239-4808. Electronic comments may be submitted at 

http://www5.tceq.state.tx.us/rules/ecomments! All comments 

should reference Rule Project Number 2006-046-114-EN. The 

comment period closes March 12, 2007. Copies of the proposed rule can be obtained from the commission's Web site 

at http://www.tceq.state.tx.uslnav/ru/es/propose_adopt.htm/. 

For further information, please contact Marivel Rodriguez, Air 

Quality Division, (512) 239-2474. 

STATUTORY AUTHORITY 

The rule will be proposed under TWC, §5.1 03, which authorizes 

the commission to adopt rules necessary to carry out its powers 

and duties under the TWC; and §5.1 05, concerning General Policy; and under THSC, TCAA, §382.017, concerning Rules, which 

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan 

for the proper control of the state's air; §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of NAAQS. The rule will also be 

proposed under the statutory requirement for transportation conformity found in §176(c) of the 1990 FCAA Amendments. In addition, 40 CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whether transportation plans, programs, and projects in nonattainment and 

maintenance areas conform with the SIP. 

The proposed revisions implement Texas Water Code, §5.1 03 

and §5.1 03, and Texas Health and Safety Code, §§382.0 11, 

382.012, and 382.208. 

§114.260. Transportation Conformity. 

(a) Purpose. The purpose of this section is to implement certain [tile] requirements set forth in 40 Code of Federal Regulations 

(CFR) Part 93, Subpart A (relating to Conformity to State or Federal 

Implementation Plans of Transportation Plans, Programs, and Projects 

Developed, Funded, or Approved Under Title 23 United States Code 

(USC) or the Federal Transit Laws), which are the regulations developed by the United States Environmental Protection Agency (EPA) under the Federal Clean Air Act Amendments of 1990, §176(c). This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used 

[H ifle.llides peHey, efi.teHa, aftfl procedures] to ~ demonstrate and 

assure conformity of transportation planning activities with the state 

implementation plan (SIP). 

(b) Applicability. This section applies to transportation-related criteria pollutants for which an area is designated nonattainment 

or is subject to a maintenance plan. The transportation-related criteria 

pollutants are [ifleltlde] ozone, carbon monoxide, nitrogen dioxide, 

particles with an aerodynamic diameter of ten micrometers (PM,,) and 

smaller, and particles with an aerodynamic diameter less than or equal 

to a nominal2.5 micrometers (PM.J [;]This section also applies to 

[antl] the precursors of ozone, nitrogen dioxide, [aftfl] PM,, and PM,, 

as required in 40 CFR §93 .I 02. [ (Fef tile effletal list aftfl boundaries 

ef nonattainment areas, see ~ m Part 8+ aOO peHffieHt Fetieffll 

Regi9leF notiees-:1] 

(c) CFR incorporation. The written commitment requirements [transportation conformity rules,] as specified in 40 CFR 

§93.122(a)(4)(ii) and §93.125(c) [Part 9-3, &tbpart A;~ FR ~ 

tlated Augtist #; -l-99-1 tlfffi amended throt!gft ffily i-;- ~] are adopted 

by reference [ witb tile exception · ef ~ ~ requirements ef 

~are addressed HI subsection fd.) eftfti.s seetien]. 

(d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures must be undertaken in nonattainment 

and maintenance areas before making conformity determinations and 

before adopting applicable SIP revisions. 

(l) (No change.) 

(2) Roles and responsibilities of affected agencies. 

(A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (!)(A) of this subsection in the development of Metropolitan 

Transportation Plans (MTPs), Transportation Improvement Programs 

(TIPs), projects, technical analyses, travel demand or other modeling, 

and data collection. Specifically, the MPOs shall: 

(i) allow the commission's executive director [Air 

Quality Planffiflg aftfl Implementation~ direeter,] or a designated representative, to be a voting member of technical committees on 

surface transportation and air quality in each nonattainment and maintenance area in order to consult directly with the particular committee during the development of the transportation plans, programs, and 

projects; 

(ii) send information on time and location, an 

agenda, and supporting materials (including preliminary versions 

of MTPs and TIPs) for all regularly scheduled meetings on surface 

transportation or air quality to each of the contacts specified in paragraph (I )(B) of this subsection. This information must be provided in 

accordance with the locally adopted public participation [involvement] 

process as required[!! [by]23 CFR Part 450 [§450.316(b)(l)]; 

(iii) after preparation of final draft versions ofMTPs 

and TIPs, and before adoption and approval by the affected governing 

body, ensure that the contacts specified in paragraph (I )(B) of this subsection receive a copy, and that they are included in the local area's 

public participation process as required [!! [by tile Metropolitan PianftffigltlHe-;]23 CFR Part450[§450.316(b)(l)]. Upon approval ofMTPs 

and TIPs, MPOs shall distribute final approved copies of the documents 

to the contacts specified in paragraph (I )(B) of this subsection; 

(iv) (No change.) 

(v) include in the TIP a list of projects exempted 

from the requirements of a conformity determination under 40 CFR 

§93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (I )(A) of this subsection in determining if 

a project on the list has potentially adverse emissions for any reason, 

including whether or not the exempt project "will interfere with implementation of an adopted transportation control measure (TCM). The 

MPO shall respond in writing to all comments within 30 days on final 

MTP and TIP documents. In addition, if no comments are received 

as part of the subsequent public participation [involvement] process 

for the TIP, the MPO may proceed with implementation of the exempt 

project; 

(vi) (No change.) 

aftfl HI cooperation 

[fffi;! 

witb 

as 

~ 

rettllired 

make 

by ~ 

a preliminary 

m ~ 

identification 

iffifl ~ 

ef 

PROPOSED RULES February 9, 2007 32 TexReg 503 
these prejeets !ooatee at sites iR PM,. oooottaffimell.t and maiHtenanee 

!lrellS tfiat feEJttire tjl:Hlfltitati:ve PM,. ftet spet analyses. After these 

prejeets have been identified, the MPG sOOll 5tlbmit a list ef these 

projeets and suffiei ent data re the agencies specified iR paragraph 

fl1W ef this subsection fef review and comment;] 

6!JJl [Evtti1] before adoption of any new or substantially different methods or assumptions used in the hot spot or regional 

emissions analysis, provide an opportunity for the agencies specified 

in paragraph (I )(A) of this subsection to review and comment; 

6:iJil [Ei*.)] in coordination with TxDOT and the local transit agencies, disclose all known, regionally significant, non-federal projects, even if the sponsor has not made a final decision on its 

implementation; include all disclosed, or otherwise known, regionally 

significant, non-federal projects in the regional emissions analysis for 

the nonattainment area; respond in writing to any comments that known 

plans for a regionally significant, non-federal project have not been 

properly reflected in the regional emissions analysis; and have recipients of federal funds determine annually that their regionally significant, non-federal projects are included in a conforming MTP or TIP, 

or are included in a regional emissions analysis of the MTP and TIP. 

The MPO shall consult with project sponsors to determine the non-federal projects' location and design concept and scope to be used in the 

regional emissions analysis, particularly for projects that the sponsor 

does not report a single intent because the sponsor's alternatives selection process is not yet complete. If the MPO assumes a design concept 

and scope that is different from the sponsor's ultimate choice, the next 

regional emissions analysis for a conformity determination must reflect 

the most recent information regarding the project's design concept and 

scope; 

fM [f*:)] ensure timely TCM implementation and 

report on the implementation and emissions reductions status of 

adopted TCMs annually to the commission; 

g)_ [MJ cooperatively share the responsibility for 

conducting conformity determinations on transportation activities that 

cross the borders of MPOs or nonattainment and maintenance areas. 

The affected MPOs will enter into a Memorandum of Agreement 

(MOA) that will define the effective boundary and the respective 

responsibilities of each MPO for regional emissions· analysis. The 

MPOs will be responsible within their respective metropolitan area 

boundaries and, at their option, beyond to the boundaries of the 

nonattainment/maintenance areas, for regional emissions analysis. 

Adjacent MPOs or nonattainment/maintenance areas or basins will 

share information concerning air quality modeling assumptions and 

emission rates that affect both areas; and 

fuJ. [0ffij] for the purpose of determining the 

conformity of all projects outside the metropolitan planning area, but 

within the nonattainment or maintenance area, enter into an MOA 

involving the MPO and TxDOT for cooperative planning and analysis 

of projects. 

(B) The commission, as the lead air quality planning 

agency, shall work in consultation with the agencies specified in paragraph ( 1 )(A) of this subsection in developing applicable transportationrelated SIP revisions, air quality modeling, general emissions analysis, 

emissions inventory, and all related activities. Specifically, the commission shall: 

(i) - (iv) (No change.) 

(v) consult with the applicable agencies specified in 

paragraph (I )(A) of this subsection, in order to cooperatively choose 

conformity tests and methodologies for isolated rural nonattainment 

32 TexReg 504 February 9, 2007 Texas Register 

and maintenance areas, as required by 40 CFR §93.1 02f.!.2Glfiill 

[ § 93.1 09(g)(2)(iiiJ]. 

(C) (No change.) 

(3) General procedures. 

(A) The MPO, TxDOT, or the commission, as applicable, shall respond to comments of affected agencies on MTPs, TIPs, 

projects, or SIP revisions in accordance with the public participation 

[involvemeat] procedures that govern the involved action. The MPO, 

TxDOT, or the commission, as applicable, shall include all comments 

and the replies to those comments with final documents when they are 

submitted for adoption by the agency's governing board. In the event 

that comments are not adequately resolved, the procedures outlined in 

paragraph (4) of this subsection regarding conflict resolution apply. 

(B) (No change.) 

(C) For the purposes of evaluating and choosing a 

model (or models) and associated methods and assumptions to be 

used in hot spot and regional emissions analyses, agencies specified 

in paragraph (I )(A) of this subsection shall participate in a working 

group [identified tiS the Teelmieal Wefking Gretip fef MebHe Swree 

Emissions]. The frequency of meetings and agendas for them will 

be cooperatively determined by the agencies specified in paragraph 

(I)( A) of this subsection. [:rfte funetien ef this wtH'Iftng group may be 

delegated re an ClHs#ng group with similar composition and~] 

(D)- (E) (No change.) 

(4) (No change.) 

(5) Public comment on conformity determinations. Consistent with the requirements of 23 CFR Part 450, concerning public 

participation [involvement], the agencies making conformity determinations on transportation plans, programs, and projects must establish 

a proactive public participation [involvement] process that provides 

opportunity for public review and comment. [~ preeess mttSt; at 

a minimum, provide reasoaable pOOlie aeeess re technical and peHey 

iafermation coasidered by the agency at the beginning ef the pubJ.ie 

comment pefletl. and befefe taking fefmal aetien OR conformity determinations fer all M:rFs and +IPs, tiS required by 2J GFR §450.316(b) 

aad this seetiefr.] Any charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR 

§7.43 [~]. In addition, these agencies shall address in writing any 

public comment claiming that a non-FHWA!FTA funded, regionally 

significant project has not been properly represented in the conformity 

determination for an MTP or TIP. Finally, these agencies shall provide 

opportunity for public involvement in conformity determinations for 

projects where otherwise required by law. 

(6) (No change.) 

{e.l Regionally significant, non-federal projects. For the pur-

~s of 40 CFR §93 .121, adoption or approval of a regiona~ 

nificant, non-federal project (a regionally significant project that does 

not require FHWA or FTA approval or funding) occurs when affected 

agencies that are recipients of federal funds designated under 23 USC 

or the federal transit laws take one of the following actions: 

ill board approval, action, orresolution (such~val, a'C 

!iQ11 or resolution does not include MPO ~QIOval for the ~~SJlf 

approvi~project in a currently conforming MTP or TIP); 

GU issuance of administrative permits for the regionally 

~ignificant project; 

ill action of official authorizing the regionally significant 

project to proceed; 
ill providing grants or loans for the construction of a regionally significant project; or 

ill contract execution for the regionally significant project. 

ill [fe1] Compliance date. Compliance with this section is required for transportation conformity determinations that begin the interagency consultation process after [begffis 6ft] the date of EPA approval of the transportation conformity SIP associated with this rule. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on January 26, 

2007. 

TRD-200700212 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: March 11, 2007 

For further information, please call: (512) 239-0348 

• 

TITLE 37. PUBLIC S 

TIONS 

• 

FETY AND CORRECPART 1. TEXAS D PARTMENT OF 

PUBLIC SAFETY 

CHAPTER 35. 

SUBCHAPTER C. 

37 TAC §35.36 

SECURITY 

DARDS 

The Texas Department of Pu lie Safety proposes to amend 

§35.36, concerning Consumer I formation and Vehicle Signage. 

Amendment of the section is ne essary in order to clarify the rule 

by limiting the scope of the lice e number sign age requirement 

to those vehicles on which the ompany name is displayed. 

Oscar Ybarra, Chief of Finane , has determined that for each 

year of the first five-year period the rule is in effect there will be 

no fiscal implications for state local governments. 

Mr. Ybarra also has determin d that for each year of the first 

five-year period the rule is in e ect the anticipated public benefit resulting from adoption of he section will be the clarification of this rule and the resultin display of license numbers on 

company vehicles will benefit t public by providing greater assurance of licensure and by fa ilitating the filing of complaints. 

There is no adverse economic i pact anticipated for individuals, 

small businesses, or micro-bus nesses. 

The department has determine that Chapter 2007 of the Government Code does not apply o this rule. Accordingly, the department is not required to co plete a takings impact assessment regarding this rule. 

Written comments on the prop sal are requested and may be 

sent to Steve Moninger, RLS egal Staff, Department of Public Safety-Private Security Bur au, P.O. Box 4087, MSC-0246, 

Austin, Texas 78773-0246, (5 2) 424-5842, (fax: (512) 424-

7725). 

The amendment is proposed pur uant to Texas Government 

Code, §411.004(3), which authori es the Public Safety Commission to adopt rules conside ed necessary for carrying 

out the department's work; and Texas Occupations Code, 

§1702.061(b), which authorizes t department to adopt rules 

to administer this chapter. 

Texas Government Code, §411.0 (3) and Texas Occupations 

Code, § 1702.061 (b) are affected this proposal. 

§35.36. Consumer Information and ehicle Signage. 

(a) A licensee shall, either or lly or in writing, notify all consumers or recipients of services of th license number and the name, 

mailing address, and telephone numb of the Private Security Bureau 

for the purpose of directing complain . 

(b) If a licensee chooses to pr vide the notice required by subsection (a) of this section in written fo , the notification shall contain 

their license number, the name, maili address and telephone number 

of the Bureau, in a type-face of the sa e size as that which appears in 

the document as a whole, but in no ca e less than 10 point size. 

(c) A licensed company mu t display conspicuously in the 

principal place of business and any ranch office, a sign containing 

the name, mailing address, and tel phone number of the bureau, 

and a statement informing consume s or recipients of services that 

complaints against licensees can be d ected to the bureau. 

[ fe1 ¥effieles eperetetl by 

teeti6ft effieefs are ~ and 

purposes are~] 

This agency hereby certifies that t 

by legal counsel and found to be w 

ity to adopt. 

proposal has been reviewed 

hin the agency's legal authorFiled with the Office of the Seer tary of State on January 26, 

2007. 

TRD-200700225 

Thomas A. Davis, Jr. 

Director 

Texas Department of Public Safety 

Earliest possible date of adoption: M rch 11, 2007 

For further information, please call: ( 12) 424-2135 

• • 

SUBCHAPTER M. CO PANY RECORDS 

37 TAC §35.204 

The Texas Department of Publi Safety proposes to amend 

§35.204, concerning Pre-Empl yment Check. Amendment 

reformats the section in order to add new subsections (b) and 

(c). The new subsections are n cessary in order to clarify the 

scope of the rule's requiremen that an employer perform a 

pre-employment check on all ap licants for non-commissioned 

security guard positions, and t require that employers keep 

records of this check. 

PROPOSED RULES February 9, 2007 32 TexReg 505 
WRITTEN AND 

ORAL TESTIMONY
Reference Number 

W-1 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Thomas H. Diggs, United States Environmental Protection 

Agency 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

Ms. Lola Brown 

Texas Register Team 

Office of Legal Services, MC 205 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

March 12, 2007 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

Re: Rule Project Number 2006-046-114-EN 

Dear Ms. Brown: 

We received from your office on February 7, 2007, a package containing proposed 

revisions to the State Implementation Plan (SIP) for transportation confonnity requirements. 

These revisions serve to incorporate changes to the state's rule and plan in response to 

implementation of federal legislation, notably the 2005 Safe, Accountable, Flexible, Efficient, 

Transportation Equity Act- a Legacy for Users (SAFETEA-LU), which significantly streamlined 

the requirements for state conformity SIPs. 

We appreciate the opportunity to review this proposal, and are supportive of these 

revisions to the Texas conformity SIP and rule. We do, however, respectfully submit the 

following comments for your consideration. 

1) The appropriate statutory reference for the implementation of conformity in 

Section 114.260(a) is 176(c)(4)(e) of the Clean Air Act, as amended (42 USC 

7401 et seq). Also, the new language to "help demonstrate conformity" is not 

appropriate; please delete the word "help." 

2) Section 114.260(b) is not necessary and should be deleted. 

3) While the approach taken in Section 114.260(c) to incorporate the federal 

provisions found at 40 CFR 93.102(a)(4)(ii) and 40 CFR 93.125(c) by reference 

into the state conformity rule is adequate, we believe added clarity can be 

provided by customizing these provisions, as encouraged in EPA's Interim 

Racycled!Recyclable • Printed with Vegetable 011 Based Inks on 100% Recycled Paper (40"/o PoSiccnsumer) 
2 

Guidance for Implementing the Transportation Confonnity Provisions in 

SAFETEA-LU (EPA420-B-06-901, February 2006) and EPA's Conformity SIP 

Guidance (EPA420-B-04-017, November 2004). Such custornization could 

include identification of the entity responsible for obtaining written commitments 

for control measure implementation (e.g., the local Metropolitan Planning 

Organization or the Federal Highway Administration). 

If you have any questions regarding this matter, please feel free to contact me or 

Peggy Wade of my staff at (214) 665-7247. 

2 

Sincerely yours, 

Thomas H. Diggs 

Chief 

Air Planning Section 
INDEX OF ORAL TESTIMONY 

No oral testimony was received pertaining to this proposal. 
EVALUATION OF

TESTIMONY
Texas Commission on Environmental Quality 

INTEROFFICE MEMORANDUM 

To: Commissioners Date: June 8, 2007 

Thru: LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: David C. Schanbacher, P.E., Chief Engineer~') Chief Engineer's Office 

Docket No.: 2006-1864-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 114, Control of Air Pollution from Motor Vehicles 

Transportation Conformity Rule and State Implementation Plan (SIP) Revision 

Rule Project No. 2006-046-114-EN 

Reasons for the rule package: 

The adopted rule revision would incorporate recent federal transportation conformity revisions to federal 

law, rules, and guidance into the existing SIP and rule. The recent federal changes include the conformity 

revisions from the six-year surface transportation reauthorization act of 2005, known as the Safe, 

Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In 

particular, SAFETEA-LU provisions substantially reduce the requirement for states to revise their rules 

and/ or SIPs each time there is a federal revision of transportation conformity rules. 

SAFETEA-LU revisions. Prior to enactment of SAFETEA-LU, states were required to address 

almost all of the federal transportation conformity rule's provisions in their conformity SIPs, and to 

update state SIPs within one year each time there was a federal rule revision. Under SAFETEALU, states are only required to address the following three sections of the federal transportation 

conformity rule in their state conformity SIPs: 

40 Code of Federal Regulations (CFR) §93.105, consultation procedures 

40 CFR §93 .122( a)( 4 )(ii), written commitments to control measures not included in 

transportation plans; and 

40 CFR §93.125(c), written commitments to mitigation measures 

Additional federal revisions. In addition to addressing the adopted SAFETEA-LU revisions, the 

rulernaking also incorporates previous federal transportation conformity revisions and guidance that 

include: 

Toll roads. May 1999 EPA guidance recommended that states incorporate into their SIPs, 

through the interagency consultation process, when a regionally significant non-federal project 

is considered "adopted or approved" by a non-federal entity. The adopted revision clarifies 

when certain projects, like toll roads, can move forward during a conformity lapse. 

Particulate matter (PM) PM2.s precursors. EPA published the Transportation Conformity 

Rule Amendments for the New PM2.s National Ambient Air Quality Standard: PM2.5 

Precursors; Final Rule (70 FR 24280) on May 6, 2005. This rule added transportation-related 

PM2.s precursors to the transportation conformity regulations and made a technical correction 

to a cross-reference of the U.S. Department of Transportation (U.S. DOT) planning 

regulations. 
Commissioners 

Page 2 

June 8, 2007 

Re: Docket No. 2006-1864-RUL 

Hot-spot analysis. EPA published the PM2.5 and PM1o Hot-Spot Analysis in Project Level 

Transportation Conformity Determinations for the New PM2.s and Existing PM10 National 

Ambient Air Quality Standards; Final Rule (71 FR 12468) on March 10, 2006. This rule 

deletes a previous consultation requirement for quantitative PM10 and PM2.

5 hot-spot analysis. 

Under what authority are we adopting these changes? 

The Texas Water Code (TWC), §5.1 03, which authorizes the commission to adopt rules necessary to 

carry out its powers and duties under the TWC; and Texas Health and Safety Code, Texas Clean Air 

Act (TCAA), §382.0 17, concerning Rules, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers 

and duties' under the TCAA; §382.0 12, which authorizes the commission to develop a general, 

comprehensive plan for the proper control of the state's air; and §382.208, which authorizes the 

commission to work with federal, state, and local transportation planning agencies to develop and 

implement transportation programs and other measures necessary to demonstrate and maintain 

attainment of National Ambient Air Quality Standards (NAAQS). The rules will also be adopted 

under the statutory requirement for transportation conformity found in § 176(c) of the 1990 Federal 

Clean Air Act (FCAA) Amendments, 40 CFR Part 51, Subpart T and Part 93, Subpart A established 

criteria and procedures for determining whether transportation plans, programs, and projects in 

nonattainment and maintenance areas conform with the SIP. 

Is this rulemaking required by federal rule or state statute? Which ones? Although the federal 

conformity rule at 40 CFR Part 51 requires states to incorporate federal revisions into its conformity 

SIP and rule, these particular revisions are not required to be incorporated if a state already has a 

federally approved conformity SIP. However, states with a federally approved conformity SIP, like 

Texas, must revise its SIP to include the revisions in order to take advantage of the flexibility and 

streamlining the revisions provide. The federal statute, SAFETEA-LU, amended the FCAA to add a 

requirement that states are only required to address the following three sections of the federal 

transportation conformity rule in their state conformity SIPs: 

40 CFR §93 .1 05, consultation procedures 

40 CFR §93 .122(a)( 4 )(ii), written commitments to control measures not included m 

transportation plans 

40 CFR §93.125(c), written commitments to mitigation measures 

Are there any legal deadlines by which these rules must be adopted or effective? Although the 

federal conformity rule requires states to incorporate federal revisions within one year of publication, 

these particular revisions are not required to be incorporated if a state already has a federally 

approved confonnity SIP. However, states with a federally approved conformity SIP, like Texas, 

must revise its SIP to include the revisions in order to take advantage of the flexibility and 

streamlining the revisions provide. 

What issue(s) or problem(s) are we trying to solve? The adopted revision will substantially 

reduce the requirement for state regulatory revisions each time there is a federal revision. 

Why is it important that we do this rule package? In addition to adopting the SAFETEA-LU 

revisions, this rulemaking also reflects changes in the federal transportation conformity rule and 

other federal transportation conformity-related rules and guidance that include: 

•ToiJ roads. May 1999 Environmental Protection Agency (EPA) guidance asks states to incorporate 

into SIPs, through the interagency consultation process, when a regionally significant non-federal 
Commissioners 

Page 3 

June 8, 2007 

Re Docket No. 2006-1864-RUL 

•Toll roads. May 1999 Environmental Protection Agency (EPA) guidance asks states to incorporate 

into SIPs, through the interagency consultation process, when a regionally significant non-federal 

project is considered "adopted or approved" by a non-federal entity. This adoption clarifies when 

certain projects, like toll roads, can move forward during a conformity lapse. 

•PM2.

5 (particulate matter) precursors. EPA published the Transportation Conformity Rule 

Amendments for the New PM2.s National Ambient Air Quality Standard: PMz.s Precursors; Final 

Rule (70 FR 24280) on May 6, 2005. This rule added transportation-related PM2.5 precursors to the 

transportation conformity regulations and made a technical correction to a cross-reference of the U.S. 

DOT planning regulations. 

•Hot-spot analysis. EPA published the PM2 s and PMw Hot-Spot Analysis in Project Level 

Transportation Conformity Determinations for the New PMz.s and Existing PMw National Ambient 

Air Quality Standards; Final Rule (71 FR 12468) on March 10, 2006. This rule deletes a previous 

consultation requirement for quantitative PMw and PMz.s hot-spot analysis. 

Other important background or historical information. None. 

Scope of the rulemaking: 

The adopted rulemaking will make the following revlSlons to the state transportation conformity rule, 

§114.260, and SIP narrative. 

Adopt by reference 40 CFR §93.122(a)(4)(ii) and 40 CFR §93.125(c) and continue to include the 

state's consultation requirements in the state conformity rule. (The state's consultation provisions 

were adapted from 40 CFR §93.105, Interagency Consultation Procedures.) 

Add a new subsection that will address when a regionally significant non-federal project is 

considered "adopted or approved" by a non-federal entity. 

Ensure that PM2.5 precursors are addressed in the transportation conformity process. 

Make a correction to a cross-reference to U.S. DOT regulations contained in the state's consultation 

requirements. 

Delete the quantitative PMw and PMz.s hot-spot analysis requirement contained in the state's 

consultation requirements. 

Make administrative changes, edits, and corrections to the existing rule, if necessary. 

Changes required by federal rule: None ofthe changes in the rulemaking are required by federal 

rule or statute. However, a state with a federally approved conformity SIP must revise its SIP to include the 

revisions in order to take advantage of the flexibility and streamlining the revisions provide. 

Changes required by state statute: None. 

Staff recommendations that are not expressly required by federal rule or state statute: None. 

Impact on the regulated community: 

Who will be affected? A revision that specifies when non-federally funded projects (for example, a 

toll road) may advance during a conformity lapse would provide regional transportation planners 

increased certainty. 
Commissioners 

Page4 

June 8, 2007 

Re: Docket No. 2006-1864-RUL 

Does it create a group of affected persons who were not affected previously? How? No. 

Will there be a fiscal impact? If so, estimate. No. 

Impact on the public: 

Who will be affected? None. 

Does it create a group of affected persons who were not affected previously? How? No. 

Will there be a fiscal impact? If so, estimate. No. 

Impact on agency programs: Fewer state rule and SJP revisions would be needed. 

Stakeholder meetings: 

Have any stakeholder meetings been held? A teleconference was held to seek feedback from the 

interagency consultation partners that are identified in the state's conformity rule and the state's 

Technical Work Group. 

With whom? Agency staff, the Technical Work Group, and interagency consultation partners. 

V\'hat were the general sentiments? Agreement with proposed rule changes. 

Were any changes made in response to stakeholder concerns? No. 

Policy issues: 

What policy issues are affected? None. 

Are any policies that are not currently based on rule being made into a rule? No. 

What are the consequences if this rulemaking is not approved to go forward? Not revising the 

rule now would mean the state rule incorporates by reference more sections of the federal 

transportation conformity rule. than is required. If and when EPA revises those sections, the state 

would have to incorporate those revisions by way of a SIP and rule revision within one year of 

publication of the federal rule. 

Are there alternatives? The commission could choose to not adopt the revisions. However, a 

state with a federally approved conformity SIP must revise its SIP to include· the revisions in order 

to take advantage of the flexibility and streamlining the revisions provide. 

Potentially controversial matters: None. 
Commissioners 

Page 5 

June 8, 2007 

Re: Docket No. 2006-1864-RUL 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: February 9, 2007 

Anticipated effective date: July 19, 2007 

Six-month Texas Register filing date: August 9, 2007 

Public comment: 

The public hearing for the rulemaking was held on March 5, 2007, 10:00 a.m., Texas Commission on 

Environmental Quality, Building B, Room 201A, 12100 Park 35 Circle, Austin. 

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

as explained in the next section. 

Significant changes from proposal: 

Changes have been made to §114.260(a) in response to comments made by the EPA. Statutory reference 

for the implementation of conformity has been changed from §176(c) to §176(c)(4)(e) to offer a more 

specific reference to the FCAA. Additionally, the EPA noted that the word "help" in §114.260(a) is not 

necessary; therefore, it has been removed. 

Agency contacts: 

Marivel Rodriguez, Rule Project Manager, 239-2474, Air Quality Division 

Terry Salem, Staff Attorney, 239-0469 

Lisa Martin, Texas Register Coordinator, 239-1966 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

Jason Skaggs 

Ashley K. Wadick 

David C. Schanbacher, P.E. 

Office of General Counsel 

Susana M. Hildebrand, P.E. 

Marivel Rodriguez 

Lisa Martin 

cc: (without attachments): 

Terry Salem, Staff Attorney 

Kerry Howard, Program Office Liaison 

Joyce Spencer, Division Liaison 

Theresa Pella, AQP Section Manager 

Margie McAllister, Team Leader 

Brian Roe, AQP Section 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMOI\IY 

The Texas Commission on Environmental Quality (commission) adopts an amendment 

to §114.260 and corresponding revisions to the Transportation Conformity State 

Implementation Plan (SIP). Section 114.260 is adopted with changes to the proposed 

text as published in the February 9, 2007, issue of the Texas Register (32 TexReg 

499). 

The adopted revisions will be submitted to the United States Environmental Protection 

Agency (EPA) as a revision to the SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED 

RULES 

The Federal Clean Air Act (FCAA) Amendments of 1990 as codified in 42 United 

States Code (USC), §§7401 et seq. required each state to submit a revision to its SIP 

by November 25, 1994, establishing enforceable criteria and procedures for making 

conformity determinations for metropolitan transportation plans, transportation 

improvement programs, and projects funded by the Federal Highway Administration 

(FHWA) or the Federal Transit Administration (FTA). Final rules regarding conformity 

requirements were published by EPA on November 24, 1993. The Texas SIP revision 

that incorporated conformity requirements was adopted October 19, 1994, and 

approved by EPA November 8, 1995. EPA has amended the federal transportation 

conformity rule eight times: August 7, 1995; November 14, 1995; August 15, 1997; 

April 10, 2000; August 6, 2002; July 1, 2004; May 6, 2005; and March 1 0, 2006. The 

commission previously incorporated the federal changes up to, and including, the 2004 

amendments. The commission is now updating its SIP and rule to incorporate the May 
6, 2005, and March 10, 2006, federal amendments. In addition to the 2005 and 2006 

federal amendments, changes to the transportation conformity federal rule were 

enacted with passage of the Safe, Accountable, Flexible, Efficient Transportation 

Equity Act: A Legacy for Users (SAFETEA-LU), which was signed into law August 1 0, 

2005. Furthermore, EPA issued guidance in May 1999·, that a state should include in 

its SIP when a regionally significant, non-federal project is considered adopted or 

approved by a non-federal entity. The addition of these changes to the existing state 

rules would align the state rule with the current federal requirements and would 

address when a non-federal, regionally significant project is considered adopted or 

approved by a non-federal entity. Lastly, this adopted rulemaking makes 

administrative and grammatical changes and corrections to the existing rule language. 

Transportation conformity is required under FCAA, §176(c) to ensure that federally 

supported highway and transit project activities are consistent with the purpose of the 

state's SIP. Conformity applies to areas designated nonattainment and those 

redesignated to attainment after 1990 with a maintenance plan developed under the 

FCAA. Conformity to the purpose of the SIP means that transportation activities would 

not cause new air quality violations, worsen existing violations, or delay timely 

attainment of the relevant National Ambient Air Quality Standards (NAAQS). EPA's 

transportation conformity rule establishes the criteria and procedures for determining 

whether transportation activities conform to the SIP. 

EPA amended the transportation conformity rule on May 6, 2005. The Transportation 

Conformity Rule Amendments for the New PM25 NAAQS: PMz.s Precursors (70 FR 

24280) specifies the transportation-related PM25 precursors and when they apply in 

transportation conformity determinations in PM2.s (particulate matter) nonattainment 

2 
and maintenance areas. The adoption would incorporate PM2 5 precursors in the state 

rule and make a technical correction to a United States Department of Transportation 

(U.S. DOT) planning regulation cross-reference. EPA's 2005 revisions were codified in 

40 Code of Federal Regulations (CFR) Part 93. Sections revised were §§93.1 02, 

93.105, and 93.119. 

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

and PM10 Hot-Spot Analysis in Project Level Transportation Conformity Determinations 

for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards Final Rule 

(71 FR 12468). The adoption would delete the current quantitative PM10 and PM2.5 hotspot analysis requirement from the state's conformity consultation requirements. The 

federal amendments were codified in 40 CFR Part 93. Sections revised were 

§§93.1 01, 93.105, 93.109, 93.116, 93.123, 93.125, 93.126, and 93.127. 

The transportation conformity provisions in the SAFETEA-LU streamlined the 

requirements for state conformity SIPs. Prior to enactment of SAFETEA-LU, states 

were required to address all of the federal conformity rule's provisions in their 

conformity SIPs. Most of the sections of the federal rule were required to be copied 

verbatim from the federal rule into a state's SIP, as previously required under 40 CFR 

§51.390(d). Now, under SAFETEA-LU, states are required to address and tailor only 

the following three sections of the conformity rule in their conformity SIPs: 1.) 40 CFR 

§93.1 05, which addresses consultation procedures; 2.) 40 CFR §93.122(a)(4)(ii), which 

requires that written commitments to control measures that are not included in a 

Metropolitan Planning Organization's transportation plans must be obtained prior to a 

conformity determination and that such commitments must be fulfilled; and 3.) 40 CFR 

§93.125(c), which requires that written commitments to mitigation measures must be 

3 
obtained prior to a project-level conformity determination and that project sponsors 

must comply with such commitments. 

In May 1999, EPA issued guidance titled Conformity Guidance on Implementation of 

March 2, 1999, Conformity Court Decision addressing which projects could move 

forward during a conformity lapse. EPA recommended that states decide through the 

interagency consultation process when a regionally significant, non-federal project is 

considered adopted or approved by a non-federal entity that routinely receives funds 

from the FHWA or FTA. The interagency consultation group for Texas, the Technical 

Work Group (TWG), has agreed on language that is included in this adopted 

rulemaking. The commission adopts administrative and grammatical changes and 

corrections to the existing rule language in order to be consistent with current agency 

style and format. The commission also adopts the renumbering of certain parts of 

§114.260 to make adjustments for the adopted deletions and additions throughout the 

rule. 

SECTION BY SECTION DISCUSSION 

§114.260. Transportation Conformity. 

The adopted change to §114.260(a) modifies the phrase in the requirements and 

replaces it with certain requirements. The last sentence in this subsection, It includes 

policy, criteria, and procedures to demonstrate and assure conformity of transportation 

planning activities with the state implementation plan (SIP) is replaced with, This 

section addresses the consultation process and the written commitment requirements 

for control measures and mitigation measures that are used to demonstrate and assure 

conformity of transportation planning activities to the state implementation plan (SIP) to 

more clearly describe the transportation conformity streamlining provisions in 

SAFETEA-LU. 

4 
Additionally, §114.260(a) is adopted with changes to the proposed text. The statutory 

reference for the implementation of conformity in section §114.260(a) has been 

changed from §176(c) to §176(c)(4)(e) to more specifically reflect the location in the 

FCAA. 

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

change the phrase transportation-related pollutants to transportation-related criteria 

pollutants. This change clarifies that the applicable pollutants are criteria pollutants. 

The second sentence adds transportation-related criteria to form the phrase 

transportation-related criteria pollutants. The word include is replaced with are and the 

precursor pollutants are listed in a separate sentence, which is then amended by 

adding PM2.5 as a precursor and referring to 40 CFR §93.1 02. The addition of PM2.5 to 

the sentence reflects the substantive change in EPA's May 6, 2005, final rule, the 

Transportation Conformity Rule Amendments for the New PM2.5 National Ambient Air 

Quality Standard: PM2.5 Precursors (70 FR 24280). The purpose of referring to 40 

CFR §93.1 02 is to indicate the applicable precursors to be analyzed depending on the 

characteristics of the nonattainment area. Finally, the last sentence is deleted because 

its reference to nonattainment area boundaries is not needed in the rule language. 

The adopted change to §114.260(c) deletes the reference to 40 CFR Part 93, Subpart 

A, (62 FR 43780), and adds the replacement reference 40 CFR §93.122(a)(4)(ii) and 

40 CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, §7506(c)(4)(E) 

directs that only these two sections plus CFR §93.1 05 need to be in the state 

conformity rule. The addition of these three sections streamlines the requirements for 

state conformity SIPs. 

5 
The adopted change revises §114.260(d)(2)(A)(i) by deleting the rule language Air 

Quality Planning and Implementation Division and replacing it with executive director. 

The adoption revises §114.260(d)(2)(A)(ii) by deleting the word involvement and 

replacing it with patticipation and changes the 23 CFR reference §450.316(b)(1) to Patt 

450. The adoption revises §114.260(d)(2)(A)(iii) by deleting by the Metropolitan 

Planning Rule and changing the 23 CFR reference §450.316(b)(1) to Part 450. The 

adoption revises §114.260(d)(2)(A)(v) by deleting the word involvement and replacing it 

with participation, and deleting §114.260(d)(2)(A)(vii). The adoption revises 

§114.260(d)(2)(B)(v) by correcting the reference to 40 CFR §93.1 09(g)(2)(iii) with a 

reference to 40 CFR §93.1 09(1)(2)(iii). The adoption revises §114.260(d)(3)(A) by 

deleting the word involvement and replacing it with participation. The adoption revises 

§114.260(d)(3)(C) by deleting the words identified as the Technical Working Group for 

Mobile Emissions and deleting the last sentence, The function of this working group 

may be delegated to an existing group with similar composition and purpose. The 

adoption revises §114.260(d)(5) by deleting the word involvement and replacing it with 

participation and renumbering the CFR reference for the fee schedule for public 

inspection and copying. These adopted revisions align the state rule with the federal 

rule; allow the executive director to delegate authority to staff without explicitly naming 

the design_ee; provide flexibility to the Technical Work Group; and bring existing rule 

language into agreement with Texas Register requirements, agency format guidelines, 

and guidance provided in the Texas Legislative Council Drafting Manual, August 2006. 

The adopted change to §114.260(e) addresses when a regionally significant, nonfederal project is considered adopted or approved by a non-federal agency. This 

section was added to clarify the approval and adoption process of a non-federal, 

6 
regionally significant project. In the event of a transportation conformity lapse, the 

provision may allow certain project phases to continue. 

The adopted change to §114.260(f) deletes the words begins on and replaces them 

with for transportation conformity determinations that begin the interagency 

consultation process after. The purpose of this change is to make clear that 

compliance with this rule revision applies at the beginning of the interagency 

consultation process. 

The adopted revision makes administrative and grammatical changes and corrections 

to the existing rule language in order to be consistent with current agency style and 

format guidelines. The adoption also renumbers certain parts of §114.260 to make 

adjustments for the adopted deletions and additions throughout the rule. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking considering the regulatory impact 

analysis requirements of the Texas Government Code, §2001.0225, and determined 

that the adopted rulemaking meets the definition of a major environmental rule as 

defined in that statute. A major environmental rule means a rule, the specific intent of 

which is to protect the environment or reduce risks to human health from environmental 

exposure, and that may adversely affect in a material way the economy, a sector 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 rulemaking meets the 

definition of a major environmental rule because the transportation conformity 

requirements are specifically intended to protect the environment and/or reduce risks to 

human health, and may have material affects on the economy, a sector of the 

7 
economy, productivity, competition, jobs, the environment, or the public health and 

safety of the state or a sector of the state. Federal transportation conformity 

requirements subject all nonattainment and maintenance areas to demonstrate 

conformity with specific emissions budgets, or be subject to loss of highway or other 

transportation funding. The adopted change to §114.260 will incorporate recent federal 

transportation conformity revisions into the state's SIP, including those from the surface 

transportation reauthorization act of 2005, SAFETEA-LU. Transportation conformity is 

an FCAA requirement ensuring that federally supported highway and transit projects 

conform to each state's SIP. Additionally, the adopted change to §114.260 will reflect 

existing language in the federal transportation conformity rule and other federal 

transportation conformity-related rules and guidance. 

The adopted rulemaking does not, however, meet any of the four applicability criteria 

for requiring a regulatory impact analysis for a major environmental rule, which are 

listed in Texas Government Code, §2001.0225(a). Texas Government Code, 

§2001.0225 applies only to a major environmental rule, the result of which is to: 1) 

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

law; 2) exceed an express requirement of state law, unless the rule is specifically 

required by federal law; 3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to 

implement a state and federal program; or 4) adopt a rule solely under the general 

powers of the agency instead of under a specific state law. 

The adopted rulemaking implements requirements of the FCAA and SAFETEA-LU. 

Under 42 USC, §7506, each SIP must contain criteria and procedures for consultation, 

8 
and enforcement and enforceability in accordance with the EPA's criteria and 

procedures for consultation, enforcement, and enforceability. 

The requirement to provide a fiscal analysis of adopted regulations in the Texas 

Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 

1997. The intent of SB 633 was to require agencies to conduct a regulatory impact 

analysis of extraordinary rules. These are identified in the statutory language as major 

environmental rules that will have a material adverse impact and will exceed a 

requirement of state law, federal law, or a delegated federal program, or are adopted 

solely under the general powers of the agency. With the understanding that this 

requirement would seldom apply, the commission provided a cost estimate for SB 633 

that concluded based on an assessment of rules adopted by the agency in the past, it 

is not anticipated that the bill wm have significant fiscal implications for the agency due 

to its limited application. The commission also noted that the number of rules that 

would require assessment under the provisions of the bill was not large. This 

conclusion was based, in part, on the criteria set forth in the bill that exempted adopted 

rules from the full analysis unless the rule was a major environmental rule that exceeds 

a federal law. 

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

to meet the goals of the FCAA; thus, states must develop programs and strategies to 

help ensure that those goals are met. However, in this instance, the FCAA is clear in 

requiring that states comply with EPA's criteria and procedures for consultation, 

enforcement, and enforceability. EPA's transportation conformity rule and SAFETEALU provide specific requirements and limited flexibility that must be met by states. 

Because of the ongoing need to address the requirements of 42 USC, §§7401, et seq., 

9 
the commission routinely proposes and adopts SIP rules. As discussed elsewhere in 

this preamble, states are required to incorporate requirements for transportation 

conformity in compliance with EPA's transportation conformity rule and SAFETEA-LU. 

The legislature is presumed to understand this federal scheme. If each rule proposed 

for inclusion in the SIP was considered to be a major environmental rule that exceeds 

federal law, then every SIP rule would require the full regulatory impact analysis 

contemplated by SB 633. This conclusion is inconsistent with the conclusions reached 

by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its 

fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the 

bills it passes, and that presumption is based on information provided by state 

agencies and the LBB, the commission believes that the intent of SB 633 was only to 

require the full regulatory impact analysis for rules that are extraordinary in nature. 

While the adopted rule may have a broad impact, that impact is no greater than is 

necessary or appropriate to meet the requirements of the FCAA. For these reasons, 

rules adopted for inclusion in the SIP fall under the exception in Texas Government 

Code, §2001.0225(a), because they are required by federal law. 

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

was enacted in 1997. Since that time, the legislature has revised the Texas 

Government Code, but left this provision substantially unamended. It is presumed that 

when an agency interpretation is in effect at the time the legislature amends the laws 

without making substantial change in the statute, the legislature is deemed to have 

accepted the agency's interpretation. Central Power & Light Co. v. Sharp, 919 S.W.2d 

485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting 

another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 

353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert, 

10 
414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 

893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 

581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. Water Auth. v. Trinity 

Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). 

The commission's interpretation of the regulatory impact analysis requirements is also 

supported by a change made to the Texas Administrative Procedure Act (APA) by the 

legislature in 1999. In an attempt to limit the number of rule challenges based upon 

APA requirements, the legislature clarified that state agencies are required to meet 

these sections of the APA against the standard of substantial compliance. The 

legislature specifically identified Texas Government Code, §2001.0225, as falling under 

this standard. The commission has substantially complied with the requirements of 

Texas Government Code, §2001.0225. 

The specific intent of the adopted rulemaking is to incorporate recent federal 

transportation conformity revisions into the state's SIP, including those from SAFETEALU, in addition to reflecting already existing changes in the federal transportation 

conformity rule and other federal transportation conformity-related rules and guidance. 

There is no contract or delegation agreement that covers the topic that is the subject of 

this action. Therefore, the adopted rulemaking does not exceed a standard set by 

federal law, exceed an express requirement of state law, or exceed a requirement of a 

delegation agreement. Finally, this rulemaking action was not developed solely under 

the general powers of the agency, but is authorized by specific sections of Texas 

Health and Safety Code (THSC), Chapter 382 (also known as the Texas Clean Air Act 

(TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY 

AUTHORITY section of this preamble, including THSC, §§382.012, 382.017, and 

11 
382.208. Therefore, this rulemaking action is not subject to the regulatory analysis 

provisions of Texas Government Code, §2001.0225(b), because although the adopted 

rulemaking meets the definition of a major environmental rule, it does not meet any of 

the four applicability requirements. 

The commission solicited comments on the Regulatory Impact Analysis Determination 

during the public comment period, but did not receive any comments during the public 

comment period. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rulemaking and performed an assessment of 

whether Texas Government Code, Chapter 2007 is applicable. The specific purpose of 

the adopted rulemaking is to incorporate recent federal transportation conformity 

revisions into the state's SIP, including those from SAFETEA-LU, in addition to 

reflecting already existing changes in the federal transportation conformity rule and 

other federal transportation conformity-related rules and guidance, as discussed 

elsewhere in this preamble. Under FCAA, 42 USC, §7506, each SIP must contain 

criteria and procedures for consultation, and enforcement and enforceability in 

accordance with the EPA's criteria and procedures for consultation, enforcement and 

enforceability. 

The commission's assessment indicates that Texas Government Code, Chapter 2007 

does not apply to this adopted rulemaking because this is an action that is reasonably 

taken to fulfill an obligation mandated by federal law, as explained elsewhere in this 

preamble, which is exempt under Texas Government Code, §2007.003(b)(4). For this 

12 
reason, Texas Government Code, Chapter 2007 does not apply to this adopted 

rulemaking. 

CONSISTENCY WITH THE COASTAL MANAGEI'v1EI\JT PROGRAM 

The commission determined that this rulemaking action relates to an action or actions 

subject to the Texas Coastal Management Program (CMP) in accordance with the 

Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, 

§§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, 

concerning Consistency with the Texas Coastal Management Program. As required by 

§281.45(a)(3) and 31 TAC §505.11 (b)(2), concerning Actions and Rules Subject to the 

Coastal Management Program, 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 rules of the Coastal Coordination Council, and determined that the action is 

consistent with the applicable CMP goals and policies. The CMP goal applicable to 

this rulemaking action is the goal to protect, preserve, and enhance the diversity, 

quality, quantity, functions, and values of coastal natural resource areas (31 TAC 

§501.12(1)). This rulemaking action complies with 40 CFR Part 51, concerning 

Requirements for Preparation, Adoption, and Submittal of Implementation Plans, and 

Title 40 generally. Therefore, in accordance with 31 TAC §505.22(e), the commission 

affirms that this rulemaking action is consistent with CMP goals and policies. 

The commission solicited comment on the consistency of the adopted rulemaking with 

the CMP during the public comment period, but received no comments on this issue. 

13 
PUBLIC COMI\IIENT 

The public hearing for this rulemaking was held on March 5, 2007, 10:00 a.m., Texas 

Commission on Environmental Quality, Building B, Room 201A, 12100 Park 35 Circle, 

Austin. 

The EPA submitted written comment in general support of the rule with suggested 

changes to the proposal. 

RESPONSE TO COMMENTS 

Statutory Reference 

The EPA commented that the appropriate statutory reference for the implementation of 

conformity in §114.260(a) is §176(c)(4)(e) of the FCAA. The EPA also commented that 

the new language to "help demonstrate conformity" is not appropriate and 

recommended removing the word "help." 

The commission appreciates the comment and has included the more specific 

reference to §176(c)(4)(e), instead of the more broad reference to §176(c) of the 

FCAA. The commission also agrees that the word "help" is not necessary and 

has removed it. 

Applicability Section 

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

The commission agrees that the section is not necessary, but has decided to 

leave the section in the rule as additional information to help the public 

understand the conformity process. 

14 
CFR Incorporation 

The EPA commented that the approach taken in §114.260(c) to incorporate the federal 

provisions found at 40 CFR §93.1 02(a)(4)(ii) and §93.125(c) is adequate, but 

commented that added clarity can be provided by customizing these provisions. 

The commission agrees and will work with interagency consultation partners to 

develop customized language to include during a future SIP and rule revision. 

15 
STAFF

RECOMMENDATIONS
SUBCHAPTER G: TRANSPORTATION PLANNING 

§114.260 

STATUTORY AUTHORITY 

The rule is adopted under TWC, §5.1 03, which authorizes the commission to adopt rules 

necessary to carry out its powers and duties under the TWC; and §5.1 05, concerning General 

Policy; and under THSC, TCAA, §382.017, concerning Rules, which authorizes the commission 

to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides 

for general powers and duties under the TCAA; §382.012, which authorizes the commission to 

develop a general, comprehensive plan for the proper control of the state's air; and §382.208, 

which authorizes the commission to work with federal, state, and local transportation planning 

agencies to develop and implement transportation programs and other measures necessary to 

demonstrate and maintain attainment of NAAQS. The rule is also adopted under the statutory 

requirement for transportation conformity found in § 176( c) of the 1990 FCAA Amendments, 40 

CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for 

determining whether transportation plans, programs, and projects in nonattainment and 

maintenance areas conform with the SIP. 

The adopted revisions implement Texas Water Code, §5.1 03 and §5.1 03, and Texas Health 

and Safety Code, §§382.011, 382.012, and 382.208. 

§114.260. Transportation Conformity. 

(a) Purpose. The purpose of this section is to implement certain requirements set forth in 

40 Code of Federal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State or 

1 
Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, 

Funded, or Approved Under Title 23 United States Code (USC) or the Federal Transit Laws), 

which are the regulations developed by the United States Environmental Protection Agency 

(EPA) under the Federal Clean Air Act Amendments of 1990, §176(c)(4)(e). This section 

addresses the consultation process and the written commitment requirements for control 

measures and mitigation measures that are used to demonstrate and assure conformity of 

transportation planning activities with the state implementation plan (SIP). 

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

an area is designated nonattainment or is subject to a maintenance plan. The transportationrelated criteria pollutants are ozone, carbon monoxide, nitrogen dioxide, particles with an 

aerodynamic diameter of ten micrometers (PM10 ) and smaller, and particles with an 

aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2s). This section 

also applies to the precursors of ozone, nitrogen dioxide, PM10, and PM2.5 as required in 40 CFR 

§93.102. 

(c) CFR incorporation. The written commitment requirements as specified in 40 CFR 

§93.122(a)(4)(ii) and §93.125(c) are adopted by reference. 

(d) Consultation. Under 40 CFR §93.1 05, regarding consultation, the following 

procedures must be undertaken in nonattainment and maintenance areas before making 

conformity determinations and before adopting applicable SIP revisions. 

(1) General factors. 

2 
(A) For the purposes of this subsection, concerning consultation, the 

affected agencies include: 

(i) EPA; 

(ii) Federal Highway Administration (FHWA); 

(iii) Federal Transit Administration (FTA); 

(iv) Texas Department of Transportation (TxDOT); 

(v) metropolitan planning organizations (MPOs) in nonattainment 

or maintenance areas; 

(vi) local publicly owned transit services in nonattainment or 

maintenance areas (the designated recipient of FTA §5307 funds); 

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

(viii) local air quality agencies in nonattainment or maintenance 

areas (recipients of 42 USC, §7405 funds). 

(B) All correspondence with the affected agencies in subparagraph (A) of 

this paragraph must be addressed to the following designated points of contact: 

3 
(i) I\IIPO: executive director or designee; 

(ii) commission: executive director or designee; 

(iii) TxDOT: director of Transportation Planning and Programming 

or designee; 

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

(v) FHWA: administrator of Texas Division or designee; 

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

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

(viii) TxDOT District: district engineer or designee; 

(ix) local publicly owned transit services (the designated recipient 

of FTA §5307 funds): general manager or designee; 

(x) local air quality agencies (recipients of 42 USC, §7405 funds): 

director or designee; and 

4 
(xi) commission regions in nonattainment or maintenance areas: 

regional director or designee. 

(2) Roles and responsibilities of affected agencies. 

(A) The MPO, in cooperation with TxDOT and publicly owned transit 

services, shall consult with the agencies in paragraph (1 )(A) of this subsection in the 

development of Metropolitan Transportation Plans (MTPs), Transportation Improvement 

Programs (TIPs), projects, technical analyses, travel demand or other modeling, and data 

collection. Specifically, the MPOs shall: 

(i) allow the commission's executive director or a designated 

representative, to be a voting member of technical committees on surface transportation and air 

quality in each nonattainment and maintenance area in order to consult directly with the 

particular committee during the development of the transportation plans, programs, and 

projects; 

(ii) send information on time and location, an agenda, and 

supporting materials (including preliminary versions of MTPs and TIPs) for all regularly 

scheduled meetings on surface transportation or air quality to each of the contacts specified in 

paragraph (1 )(B) of this subsection. This information must be provided in accordance with the 

locally adopted public participation process as required in 23 CFR Part 450; 

5 
(iii) after preparation of final draft versions of MTPs and TIPs, and 

before adoption and approval by the affected governing body, ensure that the contacts specified 

in paragraph (1 )(B) of this subsection receive a copy, and that they are included in the local 

area's public participation process as required in 23 CFR Part 450. Upon approval of MTPs and 

TIPs, MPOs shall distribute final approved copies of the documents to the contacts specified in 

paragraph (1 )(B) of this subsection; 

(iv) for the purposes of regional emissions analysis, initiate a 

consultation process with the affected agencies specified in paragraph (1 )(A) of this subsection 

during the development stage of new or revised MTPs and TIPs to determine which 

transportation projects should be considered regionally significant and which projects should be 

considered to have a significant change in design concept and scope from the effective MTP 

and TIP. Regionally significant projects will include, at a minimum, all facilities classified as 

principal arterial or higher, or fixed guideway systems or extensions that offer an alternative to 

regional highway travel. Also, these include minor arterials included in the travel demand 

modeling process that serve sjgnificant interregional .and intraregional travel, and connect rural 

population centers not already served by a principal arterial, or connect with intermodal 

transportation terminals not already served by a principal arterial. A significant change in design 

concept and scope is defined as a revision of a project in the MTP or TIP that would significantly 

affect model speeds, vehicle miles traveled, or network connections. In addition to new facilities, 

examples include changes in the number of through lanes or length of project (more than one 

mile), access control, addition of major intermodal terminal facilities (such as new international 

bridges, park-and-ride lots, and transfer terminals), addition/deletion of interchanges, or 

changing between free and toll facilities. When a significant change in the design and scope of a 

6 
project is proposed, the MPO shall document the rationale for the change and give the affected 

agencies specified in paragraph (1 )(A) of this subsection a 30-day opportunity to comment on 

the rationale. The MPO shall consider the views of each agency that comments, and respond in 

writing before any final action on these issues. If the MPO receives no comments within 30 

days, the MPO may assume concurrence by the agencies specified in paragraph (1 )(A) of this 

subsection; 

(v) include in the Tl P a list of projects exempted from the 

requirements of a conformity determination under 40 CFR §93.126 and §93.127. The MPO shall 

consult with the affected agencies specified in paragraph (1 )(A) of this subsection in determining 

if a project on the list has potentially adverse emissions for any reason, including whether or not 

the exempt project will interfere with implementation of an adopted transportation control 

measure (TCM). The MPO shall respond in writing to all comments within 30 days on final MTP 

and Tl P documents. In addition, if no comments are received as part of the subsequent public 

participation process for the TIP, the MPO may proceed with implementation of the exempt 

project; 

(vi) notify the affected agencies specified in paragraph ( 1 )(A) of 

this subsection in writing of any MTP or TIP revisions or amendments that add or delete the 

exempt projects identified in 40 CFR §93.126; 

7 
(vii) before adoption of any new or substantially different methods 

or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for 

the agencies specified in paragraph (1 )(A) of this subsection to review and comment; 

(viii) in coordination with TxDOT and the local transit agencies, 

disclose all known, regionally significant, non-federal projects, even if the sponsor has not made 

a final decision on its implementation; include all disclosed, or otherwise known, regionally 

significant, non-federal projects in the regional emissions analysis for the non attainment area; 

respond in writing to any comments that known plans for a regionally significant, non-federal 

project have not been properly reflected in the regional emissions analysis; and have recipients 

of federal funds determine annually that their regionally significant, non-federal projects are 

included in a conforming MTP or TIP, or are included in a regional emissions analysis of the 

MTP and TIP. The MPO shall consult with project sponsors to determine the non-federal 

projects' location and design concept and scope to be used in the regional emissions analysis, 

particularly for projects that the sponsor does not report a single intent because the sponsor's 

alternatives selection process is not yet complete. If the MPO assumes a design concept and 

scope that is different from the sponsor's ultimate choice, the next regional emissions analysis 

for a conformity determination must reflect the most recent information regarding the project's 

design concept and scope; 

(ix) ensure timely TCM implementation and report on the 

implementation and emissions reductions status of adopted TCMs annually to the commission; 

8 
(x) cooperatively share the responsibility for conducting conformity 

determinations on transportation activities that cross the borders of MPOs or nonattainment and 

maintenance areas. The affected MPOs will enter into a Memorandum of Agreement (MOA) that 

will define the effective boundary and the respective responsibilities of each MPO for regional 

emissions analysis. The MPOs will be responsible within their respective metropolitan area 

boundaries and, at their option, beyond to the boundaries of the nonattainment/maintenance 

areas, for regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas or 

basins will share information concerning air quality modeling assumptions and emission rates 

that affect both areas; and 

(xi) for the purpose of determining the conformity of all projects 

outside the metropolitan planning area, but within the nonattainment or maintenance area, enter 

into an MOA involving the MPO and TxDOT for cooperative planning and analysis of projects. 

(B) The commission, as the lead air quality planning agency, shall work in 

consultation with the agencies specified in paragraph (1 )(A) of this subsection in developing 

applicable transportation-related SIP revisions, air quality modeling, general emissions analysis, 

emissions inventory, and all related activities. Specifically, the commission shall: 

(i) set agendas and schedule meetings to seek advice and 

comments from all agencies specified in paragraph (1 )(A) of this subsection during preparation 

of applicable transportation-related SIP revisions; 

9 
(ii) schedule public hearings in order to gather public input on the 

applicable transportation-related SIP revisions in accordance with 40 CFR §51.1 02 and notify 

the agencies specified in paragraph (1 )(B) of this subsection of the hearings; 

(iii) provide copies of final documents, including applicable 

' adopted or approved transportation-related SIP revisions and supporting information, to all 

agencies specified in paragraph (1 )(B) of this subsection; 

(iv) after consultation with the MPO regarding TCMs, distribute to 

all agencies specified in paragraph ( 1 )(B) of this subsection and other interested persons the list 

of TCMs proposed for inclusion in the SIP. In consultation with the agencies specified in 

paragraph {1 )(A) of this subsection, the commission shall determine whether past obstacles to 

implementation of TCMs have been identified and are being overcome, and determine whether 

the MPOs and the implementing agencies are giving maximum priority to approval or funding for 

TCMs. Also, the commission shall consider, in consultation with the affected agencies, whether 

delays in TCM implementation necessitate a SIP revision to remove TCMs or to substitute 

TCMs or other emission reduction measures; and 

(v) consult with the applicable agencies specified in paragraph 

(1 )(A) of this subsection, in order to cooperatively choose conformity tests and methodologies 

for isolated rural. nonattainment and maintenance areas, as required by 40 CFR 

§93.1 09(1)(2)(iii). 

10 
(C) Any group, entity, or individual planning to construct a regionally 

significant transportation project that is not an FHWA-FTA project (including projects for which 

alternative locations, design concept and scope, or the no-build option are still being 

considered) shall disclose project plans to the MPO on a regular basis and disclose any 

changes to those plans immediately. This requirement also applies to recipients of funds 

designated under 23 USC or the federal transit laws. 

(3) General procedures. 

(A) The MPO, TxDOT, or the commission, as applicable, shall respond to 

comments of affected agencies on MTPs, TIPs, projects, or SIP revisions in accordance with 

the public participation procedures that govern the involved action. The MPO, TxDOT, or the 

commission, as applicable, shall include all comments and the replies to those comments with 

final documents when they are submitted for adoption by the agency's governing board. In the 

event that comments are not adequately resolved, the procedures outlined in paragraph (4) of 

this subsection regarding conflict resolution apply. 

(B) Because the validity of the regional emissions analysis depends on 

transportation modeling assumptions that need periodic updates, the MPO, with the assistance 

of TxDOT and local publicly owned transit agencies, will conduct meetings with the agencies 

specified in paragraph (1 )(A) of this subsection to cooperatively establish research and data 

collection efforts and regional model development (e.g., household/transportation surveys). 

11 
(C) For the purposes of evaluating and choosing a model (or models) and 

associated methods and assumptions to be used in hot spot and regional emissions analyses, 

agencies specified in paragraph (1 )(A) of this subsection shall participate in a working group. 

The frequency of meetings and agendas for them will be cooperatively determined by the 

agencies specified in paragraph (1 )(A) of this subsection. 

(D) The commission, affected MPOs, affected local air quality agencies, 

and TxDOT shall cooperatively evaluate events that will trigger the need for new conformity 

determinations. New conformity determinations may be triggered by events established in 40 

CFR §93.1 04 as well as other events, including emergency relief projects that require 

substantial functional, locational, and capacity changes, or in the event of any other 

unforeseeable circumstances. 

(E) The MPO and its governing body, or TxDOT if applicable, shall make 

conformity determinations for all MTPs, TIPs, regionally significant projects, and all other events 

as required by 40 CFR Part 93, Subpart A and this section. Upon completion of the 

transportation conformity determination review process (including consultation, public 

participation, and all other requirements of this section), FHWA and FTA will issue a joint 

conformity finding, indicating the transportation conformity status of the document(s) under 

review. The effective date of the conformity determination for an area is the date of the joint 

conformity finding made by FHWA-FTA. 

(4) Conflict resolution. 

12 
(A) The commission and the MPO (or TxDOT where appropriate) shall 

make a good-faith effort to address the major concerns of the other party in the event they are 

unable to reach agreement on the conformity determination of a proposed MTP or TIP. The 

efforts must include meetings of the agency executive directors, if necessary. 

(B) In the event that the MPO or TxDOT determines that every effort has 

been made to address the commission's concerns, and that no further progress is possible, the 

MPO or TxDOT shall notify the commission's executive director in writing to this effect. This 

subparagraph must be cited by the MPO or TxDOT in any notification of a conflict that may 

require action by the governor, or his or her delegate under subparagraph (C) of this paragraph. 

(C) The commission has 14 calendar days from date of receipt of 

notification, as required in subparagraph (B) of this paragraph, to appeal to the governor. If the 

commission appeals to the governor, the final conformity determination must then have the 

concurrence of the governor. The governor may delegate his or her role in this process, but not 

to the commission or commission staff, a local air quality agency, the Texas Transportation 

Commission or TxDOT staff, or an MPO. This subparagraph must be cited by the commission in 

any notification of a conflict that may require action by the governor or his or her delegate. If the 

commission does not appeal to the governor within 14 calendar days from receipt of written 

notification, the MPO or TxDOT may proceed with the final conformity determination. 

{5) Public comment on conformity determinations. Consistent with the 

requirements of 23 CFR Part 450, concerning public participation, the agencies making 

conformity determinations on transportation plans, programs, and projects must establish a 

13 
proactive public participation process that provides opportunity for public review and comment. 

Any charges imposed for public inspection and copying should be consistent with the fee 

schedule contained in 49 CFR §7.43. In addition, these agencies shall address in writing any 

public comment claiming that a non-FHWAIFTA funded, regionally significant project has not 

been properly represented in the conformity determination for an MTP or TIP. Finally, these 

agencies shall provide opportunity for public involvement in conformity determinations for 

projects where otherwise required by law. 

(6) Good-faith effort made by the consulting agencies. In formulating an 

enforcement policy regarding a violation of this subsection (relating to the consultation process) 

the commission may consider any good-faith effort made by the consulting agencies to comply. 

(e) Regionally significant, non-federal projects. For the purposes of 40 CFR §93.121, 

adoption or approval of a regionally significant, non-federal project (a regionally significant 

project that does not require FHWA or FTA approval or funding) occurs when affected agencies 

that are recipients of federal funds designated under 23 USC or the federal transit laws take one 

of the following actions: 

(1) board approval, action, or resolution (such approval, action, or resolution 

does not include MPO approval for the purposes of approving a project in a currently 

conforming MTP or TIP); 

(2) issuance of administrative permits for the regionally significant project; 

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

14 
(4) providing grants or loans for the construction of a regionally significant 

project; or 

(5) contract execution for the regionally significant project. 

(f) Compliance date. Compliance with this section is required for transportation 

conformity determinations that begin the interagency consultation process after the date of EPA 

approval of the transportation conformity SIP associated with this rule. 

15 
TEXAS CoMMISSION ON.,.~;vrRONMENTA~-~~s 

'-c)"·-~ ): I hereby certify that this is a true and correct copy of a 

' _:~·~ ). Texas CommiSSion on EnVIronmental Quality document, 

·• & ·:::::! which is filed 1n the permanent records of the Commission. 

Given un er my hand and the seal of office on 

'"' 1'1. 2001 

La nna Castanuela, Chief Clerk 

· Texas Commission on Environmental Quality 

ORDER ADOPTING AMENDED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN (SIP) 

Docket No. 2006-1864-RUL 

On June 27, 2007, the Texas Cmmnission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amendments to 30 Texas Administrative Code (TAC) § 114.260, 

Transportation Conformity, and corresponding revisions to the Transportation Conformity State 

Implementation Plan (SIP). The Commission adopts this amendment to 30 TAC Chapter 114, Subchapter G, § 

114.260, Transportation Conformity, and corresponding revisions to the Transportation Conformity SIP. 

These amendments incorporate recent federal transportation conformity revisions from the Safe, Accountable, 

Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The rulemaking also 

incorporates previous federal transportation conformity revisions and guidance that include: requesting states to 

incorporate into SIPs when a regionally significant, non-federal project is considered adopted or approved by a 

non-federal entity; adding transportation-related PM2.5 precursors to the transportation conformity regulations; 

and deleting a previous quantitative PM10 and PM2.5 hot-spot analysis. 

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. Notice of 

the proposed amendments and revisions to the SIP was published for cmm11ent in the February 9, 2007 issue 

of the Texas Register (32 TexReg 499). 

Pursuant to Tex. Health & Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 

(Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations § 51.102 and after proper notice, 

the Commission conducted a public hearing to consider the amended rules and revisions to the SIP. Proper 

notice included prominent advertisement in the areas affected at least 30 days prior to the date of the hearing. 

The public hearing for these revisions was held on March 5, 2007 at 10:00 a.m. in Austin, Texas. 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The 

public was invited to submit data, views, and recmmnendations on the proposed SIP revisions, either orally or 

in writing, at the hearings or during the comment period. Prior to the scheduled hearing, copies of the 

proposed amendments and SIP revision were available for public inspection at the Commission's central office 

and on the Cmmnission's Web site. 

Data, views, and recmmnendations of interested persons regarding the proposed amendments and SIP 

revision were submitted to the Commission during the comment period, and were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The 

Commission finds that the analysis of testimony includes the names of all interested groups or associations 

offering comment on the proposed amendments and SIP revision and their position concerning the same. 
IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions to the 

Transportation Conformity SIP are incorporated by reference to this Order and are hereby adopted. The 

Commission further authorizes staff to make any non-substantive revisions to the rules necessary to comply with 

Texas Register requirements. The adopted rules and the preamble to the adopted rules and the revisions to the 

~n> ar,~,i,ncorporated by reference in this Order as if set forth at length verbatim in this Order . 

. ~ ~; ( .1':£~· 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the 

Transportation Conformity SIP, to the Regional Administrator of EPA as a proposed revision to the Texas 

SIP pursuant to the Federal Clean Air Act, § 110, codified at 42 U.S. Code Ann. §§ 7401 - 7671q, as 

amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, Tex. 

Gov't Code,§ 2001.033 (Vernon 2000 & Vernon Supp. 2005). 

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, 

the invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: JUL 1 3 20011 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
I 

(D) any modification to the TCM since the last annual 

report and/or projected modification for the next reporting period to 

compensate for a shortfall in the imp ementation of the TCM or in the 

associated emissions reductions; an 

(3) make such records a ailable to representatives of the 

commission, the EPA, the Federal 'ghway Administration, the Federal Transit Administration, the Tex s Department of Transportation, 

local air pollution agencies havingju isdiction in the area, and the public, upon request; 

(e) Implementing agency re ponsibilities. The implementing 

agency shall have the responsibility o: 

(I) ensure that all respo sibilities required by subsection 

(c) of this section are fulfilled; and 

(2) provide to the MPO pon request: 

(A) a complete desc tion of the TCMs and their associated estimated emission reduction enefits; 

(B) evidence that the CMs were properly adopted by a 

jurisdiction with legal authority to c mmit to and execute the program; 

(C) evidence that fun ing has been, or will be, obligated 

to implement the TCMs; and 

(D) a description of he monitoring program to assess 

the TCM effectiveness. 

This agency hereby certifies that he adoption has been reviewed 

by legal counsel and found to be valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer ary of State on June 29, 2007. 

TRD-200702753 

Robert Martinez 

Director, Environmental Law Divisio 

Texas Commission on Environment I Quality 

Effective date: July 19, 2007 

Proposal publication date: March 9, 007 

For further information, please call: 512) 239-2461 

• • 

SUBCHAPTER K. MO ILE SOURCE 

INCENTIVE PROGRAM 

DIVISION 2. LIGHT-D 

PURCHASE OR LEASE 

30 TAC §114.618 

STATUTORY AUTHORITY 

TY MOTOR VEHICLE 

CENTIVE PROGRAM 

The repeal is adopted under Te s Water Code (TWC), §5.102, 

concerning General Powers; §5. 03, which authorizes the commission to adopt rules necessar to carry out its powers and duties under the .rwc; and under exas Health and Safety Code, 

Texas Clean A1r Act (TCAA), §3 .017, concerning Rules, which 

~uthorizes the commission to ad pt rules consistent with the polICY and purposes of t~e TCAA; § 82.011, which provides for general powers and duties under t TCAA. The repeal is adopted 

under.THSC, §382.002, concer ing Policy and Purpose, which 

e~tablishes the co~mission's p rpose to safeguard the state's 

a1r resources, consistent with th protection of public health, general welfare, and physical prop y; §382.012, which authorizes 

the commission to develop a g neral, comprehensive plan for 

32 TexReg 4404 July 13, 2007 Texas Register 

the proper control of the state's air; and §382.019 which authorizes the commission to adopt r les to control and reduce emissions from engines used to pro el land vehicles. 

The adopted repeal implemen :s THSC, §§382.002, 382.011, 

382.012, and 382.019. 

This agency hereby certifies tha the adoption has been reviewed 

by legal counsel and found to b la valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer ~tary of State on June 29, 2007. 

TRD-200702754 

Robert Martinez I 

Director, Environmental Law Divisi h 

Texas Commission on Environmen ,al Quality 

Effective date: July 19, 2007 

Proposal publication date: March 9 2007 

For further information, please call: (512) 239-2461 

• • 

SUBCHAPTER G. TRANSPORTATION 

PLANNING 

30 TAC §114.260 

The Texas Commission on Environmental Quality (commission) 

adopts an amendment to §114.260 and corresponding revisions 

to the Transportation Conformity State Implementation Plan 

(SIP). Section 114.260 is adopted with changes to the proposed 

text as published in the February 9, 2007, issue of the Texas 

Register (32 TexReg 499). 

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

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULES 

The Federal Clean Air Act (FCAA) Amendments of 1990 as 

codified in 42 United States Code (USC), §§7401 et seq. required each state to submit a revision to its SIP by November 

25, 1994, establishing enforceable criteria and procedures for 

making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects 

funded by the Federal Highway Administration (FHWA) or the 

Federal Transit Administration (FTA). Final rules regarding 

conformity requirements were published by EPA on November 

24, ~ 993. The Texas SIP revision that incorporated conformity 

requirements was adopted October 19, 1994, and approved 

by EPA November 8, 1995. EPA has amended the federal 

transportation conformity rule eight times: August 7, 1995; 

November 14, 1995; August 15, 1997; April 10, 2000; August 

6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The 

com~issio_n previously incorporated the federal changes up to, 

and Including, the 2004 amendments. The commission is now 

updating its SIP and rule to incorporate the May 6, 2005, and 

March 10, 2006, federal amendments. In addition to the 2005 

and 2006 federal amendments, changes to the transportation 

conformity federal rule were enacted with passage of the Safe, 

Accountable, Flexible, Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA-LU), which was signed into law 

August 10, 2005. Furthermore, EPA issued guidance in May 

1 ~-99, that a state should include in its SIP when a regionally significant, non-federal project is considered adopted or approved 

by a non-federal entity. The addition of these changes to the 
existing state rules would align the state rule with the current 

federal requirements and would address when a non-federal, 

regionally significant project is considered adopted or approved 

by a non-federal entity. Lastly, this adopted rulemaking makes 

administrative and grammatical changes and corrections to the 

existing rule language. 

Transportation conformity is required under FCM, §176(c) to 

ensure that federally supported highway and transit project activities are consistent with the purpose of the state's SIP. Conformity applies to areas designated nonattainment and those redesignated to attainment after 1990 with a maintenance plan 

developed under the FCAA. Conformity to the purpose of the 

SIP means that transportation activities would not cause new air 

quality violations, worsen existing violations, or delay timely attainment of the relevant National Ambient Air Quality Standards 

(NMQS). EPA's transportation conformity rule establishes the 

criteria and procedures for determining whether transportation 

activities conform to the SIP. 

EPA amended the transportation conformity rule on May 6, 

2005. The Transportation Conformity Rule Amendments for the 

New PM25 NAAQS: PM25 Precursors (70 FR 24280) specifies 

the transportation-related PM, .• precursors and when they apply 

in transportation conformity determinations in PM,. (particulate 

matter) nonattainment and maintenance areas. The adoption 

would incorporate PM,. precursors in the state rule and make 

a technical correction to a United States Department of Transportation (U.S. DOT) planning regulation cross-reference. EPA's 

2005 revisions were codified in 40 Code of Federal Regulations 

(CFR) Part 93. Sections revised were §§93.102, 93.105, and 

93.119. 

EPA also amended the transportation conformity rule on March 

10, 2006: the PM., and PM,. Hot-Spot Analysis in Project Level 

Transportation Conformity Determinations for the New PM,. 

and Existing PM,. National Ambient Air Quality Standards Final 

Rule (71 FR 12468). The adoption would delete the current 

quantitative PM,. and PM,. hot-spot analysis requirement from 

the state's conformity consultation requirements. The federal 

amendments were codified in 40 CFR Part 93. Sections revised were §§93.101, 93.105, 93.109, 93.116, 93.123, 93.125, 

93.126, and 93.127. 

The transportation conformity provisions in the SAFETEA-LU 

streamlined the requirements for state conformity SIPs. Prior 

to enactment of SAFETEA-LU, states were required to address 

all of the federal conformity rule's provisions in their conformity 

SIPs. Most of the sections of the federal rule were required 

to be copied verbatim from the federal rule into a state's SIP, 

as previously required under 40 CFR §51.390(d). Now, under 

SAFETEA-LU, states are required to address and tailor only the 

following three sections of the conformity rule in their conformity SIPs: 1.) 40 CFR §93.105, which addresses consultation 

procedures; 2.) 40 CFR §93.122(a)(4)(ii), which requires that 

written commitments to control measures that are not included 

in a Metropolitan Planning Organization's transportation plans 

must be obtained prior to a conformity determination and that 

such commitments must be fulfilled; and 3.) 40 CFR §93.125(c), 

which requires that written commitments to mitigation measures 

must be obtained prior to a project-level conformity determination and that project sponsors must comply with such commitments. 

In May 1999, EPA issued guidance titled Conformity Guidance 

on Implementation of March 2, 1999, Conformity Court Decision 

addressing which projects could move forward during a conformity lapse. EPA recommended that states decide through 

the interagency consultation process when a regionally significant, non-federal project is considered adopted or approved by a 

non-federal entity that routinely receives funds from the FHWA or 

FTA. The interagency consultation group for Texas, the Technical Work Group (TWG), has agreed on language that is included 

in this adopted rulemaking. The commission adopts administrative and grammatical changes and corrections to the existing rule 

language in order to be consistent with current agency style and 

format. The commission also adopts the renumbering of certain 

parts of§ 114.260 to make adjustments for the adopted deletions 

and additions throughout the rule. 

SECTION BY SECTION DISCUSSION 

§114.260. Transportation Conformity. 

The adopted change to §114.260(a) modifies the phrase in the 

requirements and replaces it with certain requirements. The last 

sentence in this subsection, It includes policy, criteria, and procedures to demonstrate and assure conformity of transportation 

planning activities with the state implementation plan (SIP) is 

replaced with, This section addresses the consultation process 

and the written commitment requirements for control measures 

and mitigation measures that are used to demonstrate and assure conformity of transportation planning activities to the state 

implementation plan (SIP) to more clearly describe the transportation conformity streamlining provisions in SAFETEA-LU. 

Additionally, § 114.260(a) is adopted with changes to the proposed text. The statutory reference for the implementation 

of conformity in section §114.260(a) has been changed from 

§176(c) to §176(c)(4)(e) to more specifically reflect the location 

in the FCM. 

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

first sentence to change the phrase transportation-related pollutants to transportation-related criteria pollutants. This change 

clarifies that the applicable pollutants are criteria pollutants. The 

second sentence adds transportation-related criteria to form 

the phrase transportation-related criteria pollutants. The word 

include is replaced with are and the precursor pollutants are 

listed in a separate sentence, which is then amended by adding 

PM,, as a precursor and referring to 40 CFR §93.1 02. The 

addition of PM,. to the sentence reflects the substantive change 

in EPA's May 6, 2005, final rule, the Transportation Conformity 

Rule Amendments for the New PM,, National Ambient Air 

Quality Standard: PM,, Precursors (70 FR 24280). The purpose 

of referring to 40 CFR §93 .1 02 is to indicate the applicable 

precursors to be analyzed depending on the characteristics of 

the nonattainment area. Finally, the last sentence is deleted 

because its reference to nonattainment area boundaries is not 

needed in the rule language. 

The adopted change to §114.260(c) deletes the reference 

to 40 CFR Part 93, Subpart A, (62 FR 43780), and adds 

the replacement reference 40 CFR §93.122(a)(4)(ii) and 40 

CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, 

§7506(c)(4)(E) directs that only these two sections plus CFR 

§93.1 05 need to be in the state conformity rule. The addition 

of these three sections streamlines the requirements for state 

conformity SIPs. 

The adopted change revises §114.260(d)(2)(A)(i) by deleting 

the rule language Air Quality Planning and Implementation 

Division and replacing it with executive director. The adoption 

revises §114.260(d)(2)(A)(ii) by deleting the word involvement 

and replacing it with participation and changes the 23 CFR 

ADOPTED RULES July 13, 2007 32 TexReg 4405 
reference §450.316(b)(1) to Part 450. The adoption revises 

§114.260(d)(2)(A)(iii) by deleting by the Metropolitan Planning 

Rule and changing the 23 CFR reference §450.316(b)(1) to 

Part 450. The adoption revises §114.260(d)(2)(A)(v) by deleting the word involvement and replacing it with participation, 

and deleting §114.260(d)(2)(A)(vii). The adoption revises 

§114.260(d)(2)(B)(v) by correcting the reference to 40 CFR 

§93.109(g)(2)(iii) with a reference to 40 CFR §93.1 09(1)(2)(iii). 

The adoption revises §114.260(d)(3)(A) by deleting the word 

involvement and replacing it with participation. The adoption 

revises §114.260(d)(3)(C) by deleting the words identified as 

the Technical Working Group for Mobile Emissions and deleting 

the last sentence, The function of this working group may be 

delegated to an existing group with similar composition and purpose. The adoption revises §114.260(d)(5) by deleting the word 

involvement and replacing it with participation and renumbering 

the CFR reference for the fee schedule for public inspection and 

copying. These adopted revisions align the state rule with the 

federal rule; allow the executive director to delegate authority to 

staff without explicitly naming the designee; provide flexibility to 

the Technical Work Group; and bring existing rule language into 

agreement with Texas Register requirements, agency format 

guidelines, and guidance provided in the Texas Legislative 

Council Drafting Manual, August 2006. 

The adopted change to §114.260(e) addresses when a regionally significant, non-federal project is considered adopted or approved by a non-federal agency. This section was added to 

clarify the approval and adoption process of a non-federal, regionally significant project. In the event of a transportation conformity lapse, the provision may allow certain project phases to 

continue. 

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

and replaces them with for transportation conformity determinati9ns that begin the interagency consultation process after. The 

purpose of this change is to make clear that compliance with this 

rule revision applies at the beginning of the interagency consultation process. 

The adopted revision makes administrative and grammatical 

changes and corrections to the existing rule language in order 

to be consistent with current agency style and format guidelines. 

The adoption also renumbers certain parts of§ 114.260 to make 

adjustments for the adopted deletions and additions throughout 

the rule. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking considering 

the regulatory impact analysis requirements of the Texas Government Code, §2001.0225, and determined that the adopted 

rulemaking meets the definition of a major environmental rule 

as defined in that statute. A major environmental rule means a 

rule, the specific intent of which is to protect the environment or 

reduce risks to human health from environmental exposure, and 

that may adversely affect in a material way the economy, a sector 

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 rulemaking meets the definition of a major environmental rule because the transportation conformity requirements 

are specifically intended to protect the environment and/or reduce risks to human health, and may have material affects on 

the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the 

state or a sector of the state. Federal transportation conformity 

requirements subject all nonattainment and maintenance areas 

32 TexReg 4406 July 13, 2007 Texas Register 

to demonstrate conformity with specific emissions budgets, or 

be subject to loss of highway or other transportation funding. 

The adopted change to § 114.260 will incorporate recent federal 

transportation conformity revisions into the state's SIP, including those from the surface transportation reauthorization act of 

2005, SAFETEA-LU. Transportation conformity is an FCAA requirement ensuring that federally supported highway and transit 

projects conform to each state's SIP. Additionally, the adopted 

change to §114.260 will reflect existing language in the federal 

transportation conformity rule and other federal transportation 

conformity-related rules and guidance. 

The adopted rulemaking does not, however, meet any of the 

four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas 

Government Code, §2001.0225(a). Texas Government Code, 

§2001.0225 applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an 

express requirement of state law, unless the rule is specifically 

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or 

representative of the federal government to implement a state 

and federal program; or 4) adopt a rule solely under the general 

powers of the agency instead of under a specific state law. 

The adopted rulemaking implements requirements of the FCAA 

and SAFETEA-LU. Under 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcement 

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

The requirement to provide a fiscal analysis of adopted regulations in the Texas Government Code was amended by Senate 

Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 

633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory 

language as major environmental rules that will have a material 

adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely 

under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission 

provided a cost estimate for SB 633 that concluded based on an 

assessment of rules adopted by the agency in the past, it is not 

anticipated that the bill will have significant fiscal implications for 

the agency due to its limited application. The commission also 

noted that the number of rules that would require assessment 

under the provisions of the bill was not large. This conclusion 

was based, in part, on the criteria set forth in the bill that exempted adopted rules from the full analysis unless the rule was 

a major environmental rule that exceeds a federal law. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the goals of the FCAA; thus, states 

must develop programs and strategies to help ensure that those 

goals are met. However, in this instance, the FCAA is clear in requiring that states comply with EPA's criteria and procedures for 

consultation, enforcement, and enforceability. EPA's transportation conformity rule and SAFETEA-LU provide specific requirements and limited flexibility that must be met by states. Because 

of the ongoing need to address the requirements of 42 USC, 

§§7401, et seq., the commission routinely proposes and adopts 

SIP rules. As discussed elsewhere in this preamble, states are 

required to incorporate requirements for transportation conformity in compliance with EPA's transportation conformity rule and 

SAFETEA-LU. The legislature is presumed to understand this 
federal scheme. If each rule proposed for inclusion in the SIP 

was considered to be a major environmental rule that exceeds 

federal law, then every SIP rule would require the full regulatory 

impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in 

its cost estimate and by the Legislative Budget Board (LBB) in 

its fiscal notes. Since the legislature is presumed to understand 

the fiscal impacts of the bills it passes, and that presumption is 

based on information provided by state agencies and the LBB, 

the commission believes that the intent of SB 633 was only to 

require the full regulatory impact analysis for rules that are extraordinary in nature. While the adopted rule may have a broad 

impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, 

rules adopted for inclusion in the SIP fall under the exception in 

Texas Government Code, §2001.0225(a), because they are required by federal law. 

The commission has consistently applied this construction to its 

rules since this statute was enacted in 1997. Since that time, 

the legislature has revised the Texas Government Code, but 

left this provision substantially unamended. It is presumed that 

when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the 

statute, the legislature is deemed to have accepted the agency's 

interpretation. Central Power & Light Co. v. Sharp, 919 S.W.2d 

485, 489 (Tex. App. Austin 1995), writ denied with per curiam 

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

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

Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert, 

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto 

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. 

Austin 2000, pet. denied); and Coastallndust. Water Auth. v. 

Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). 

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

Texas Administrative Procedure Act (APA) by the legislature in 

1999. In an attempt to limit the number of rule challenges based 

upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the 

standard of substantial compliance. The legislature specifically 

identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied 

with the requirements of Texas Government Code, §2001.0225. 

The specific intent of the adopted rulemaking is to incorporate 

recent federal transportation conformity revisions into the state's 

SIP, including those from SAFETEA-LU, in addition to reflecting 

already existing changes in the federal transportation conformity 

rule and other federal transportation conformity-related rules and 

guidance. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the 

adopted rulemaking does not exceed a standard set by federal 

law, exceed an express requirement of state law, or exceed a 

requirement of a delegation agreement. Finally, this rulemaking action was not developed solely under the general powers of 

the agency, but is authorized by specific sections ofTexas Health 

and Safety Code (THSC), Chapter 382 (also known as the Texas 

Clean Air Act (TCAA)), and the Texas Water Code (TWC), which 

are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.012, 382.017, and 382.208. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code; §2001.0225(b), because although the adopted rulemaking meets the definition of 

a major environmental rule, it does not meet any of the four applicability requirements. 

The commission solicited comments on the Regulatory Impact 

Analysis Determination during the public comment period, but 

did not receive any comments during the public comment period. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, 

Chapter 2007 is applicable. The specific purpose of the 

adopted rulemaking is to incorporate recent federal transportation conformity revisions into the state's SIP, including those 

from SAFETEA-LU, in addition to reflecting already existing 

changes in the federal transportation conformity rule and other 

federal transportation conformity-related rules and guidance, 

as discussed elsewhere in this preamble. Under FCAA, 42 

USC, §7506, each SIP must contain criteria and procedures 

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

enforcement and enforceability. 

The commission's assessment indicates that Texas Government 

Code, Chapter 2007 does not apply to this adopted rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, as explained elsewhere in this preamble, which is exempt under Texas Government Code, §2007.003(b)(4). For this reason, Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, 

§§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas 

Coastal Management Program. As required by §281.45(a)(3) 

and 31 TAC §505.11 (b)(2), concerning Actions and Rules Subject to the Coastal Management Program, 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 rules of the Coastal Coordination Council, 

and determined that the action is consistent with the applicable 

CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the 

diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1 )). This rulemaking action complies with 40 CFR Part 51, concerning Requirements for 

Preparation, Adoption, and Submittal of Implementation Plans, 

and Title 40 generally. Therefore, in accordance with 31 TAC 

§505.22(e), the commission affirms that this rulemaking action 

is consistent with CMP goals and policies. 

The commission solicited comment on the consistency of the 

adopted rulemaking with the CMP during the public comment 

period, but received no comments on this issue. 

PUBLIC COMMENT 

The public hearing for this rulemaking was held on March 5, 

2007, 10:00 a.m., Texas Commission on Environmental Quality, Building B, Room 201A, 12100 Park 35 Circle, Austin. 

ADOPTED RULES July 13, 2007 32 TexReg 4407 
The EPA submitted written comment in general support of the 

rule with suggested changes to the proposal. 

RESPONSE TO COMMENTS 

Statutory Reference 

The EPA commented that the appropriate statutory reference for 

the implementation of conformity in §114.260(a) is §176(c)(4)(e) 

of the FCAA. The EPA also commented that the new language 

to "help demonstrate conformity" is not appropriate and recommended removing the word "help." 

The commission appreciates the comment and has included the 

more specific reference to §176(c)(4)(e), instead of the more 

broad reference to §176(c) of the FCAA. The commission also 

agrees that the word "help" is not necessary and has removed it. 

Applicability Section 

The EPA commented that §114.260(b) is not necessary and 

should be deleted. 

The commission agrees that the section is not necessary, but 

has decided to leave the section in the rule as additional information to help the public understand the conformity process. 

CFR Incorporation 

The EPA commented that the approach taken in §114.260(c) 

to incorporate the federal provisions found at 40 CFR 

§93.102(a)(4)(ii) and §93.125(c) is adequate, but commented 

that added clarity can be provided by customizing these provisions. 

The commission agrees and will work with interagency consultation partners to develop customized language to include during 

a future SIP and rule revision. 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §5.1 03, which authorizes the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; and §5.1 05, concerning 

General Policy; and under THSC, TCAA, §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, 

which provides for general powers and duties under the TCAA; 

§382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's 

air; and §382.208, which authorizes the commission to work 

with federal, state, and local transportation planning agencies 

to develop and implement transportation programs and other 

measures necessary to demonstrate and maintain attainment 

of NMQS. The rule is also adopted under the statutory requirement for transportation conformity found in §176(c) of the 1990 

FCAA Amendments, 40 CFR Part 51, Subpart T and Part 93, 

Subpart A established criteria and procedures for determining 

whether transportation plans, programs, and projects in nonattainment and maintenance areas conform with the SIP. 

The adopted revisions implement Texas Water Code, §5.1 03 

and §5.103, and Texas Health and Safety Code, §§382.011, 

382.012, and 382.208. 

§114.260. Transportation Conjom1ity. 

(a) Purpose. The purpose of this section is to implement certain requirements set forth in 40 Code of Federal Regulations (CFR) 

Part 93, Subpart A (relating to Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects 

Developed, Funded, or Approved Under Title 23 United States Code 

32 TexReg 4408 July 13, 2007 Texas Register 

(USC) or the Federal Transit Laws), which are the regulations developed by the United States Environmental Protection Agency (EPA) under the Federal Clean Air Act Amendments of 1990, §!76(c)(4)(e). 

This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures 

that are used to demonstrate and assure conformity of transportation 

planning activities with the state implementation plan (SIP). 

(b) Applicability. This section applies to transportation-related criteria pollutants for which an area is designated nonattainment 

or is subject to a maintenance plan. The transportation-related criteria 

pollutants are ozone, carbon monoxide, nitrogen dioxide, particles 

with an aerodynamic diameter often micrometers (PM10 ) and smaller, 

and particles with an aerodynamic diameter less than or equal to a 

nominal 2.5 micrometers (PM,). This section also applies to the 

precursors of ozone, nitrogen dioxide, PM10, and PM, as required in 

40 CFR §93.102. 

(c) CFR incorporation. The written commitment requirements 

as specified in 40 CFR §93.122(a)(4)(ii) and §93.125(c) are adopted by 

reference. 

(d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures must be undertaken in nonattainment 

and maintena_nce areas before making conformity determinations and 

before adopting applicable SIP revisions. 

(1) General factors. 

(A) For the purposes of this subsection, conceming 

consultation, the affected agencies include: 

(i) EPA; 

(ii) Federal Highway Administration (FHWA); 

(iii) Federal Transit Administration (FTA); 

(iv) Texas Department of Transportation (TxDOT); 

(v) metropolitan planning organizations (MPOs) in 

nonattainment or maintenance areas; 

(vi) local publicly owned transit services in nonattainment or maintenance areas (the designated recipient ofFTA §5307 

funds); 

(vii) Texas Commission on Environmental Quality 

(commission); 

(viii) local air quality agencies in nonattainment or 

maintenance areas (recipients of 42 USC, §7405 funds). 

(B) All correspondence with the affected agencies in 

subparagraph (A) of this paragraph must be addressed to the following designated points of contact: 

(i) MPO: executive director or designee; 

(ii) commission: executive director or designee; 

(iii) TxDOT: director of Transportation Planning 

and Programming or designee; 

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

(v) FHWA: administrator of Texas Division or designee; 

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

(vii) EPA: regional administrator or designee - EPA 

Region 6; 
(viii) TxDOT District: district engineer or designee; 

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

(x) local air quality agencies (recipients of 42 USC, 

§7405 funds): director or designee; and 

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

(2) Roles and responsibilities of affected agencies. 

(A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (I )(A) of this subsection in the development of Metropolitan 

Transportation Plans (MTPs), Transportation Improvement Programs 

(TIPs), projects, technical analyses, travel demand or other modeling, 

and data collection. Specifically, the MPOs shall: 

(i) allow the commission's executive director or a 

designated representative, to be a voting member of technical committees on surface transportation and air quality in each nonattainment and 

maintenance area in order to consult directly with the particular committee during the development of the transportation plans, programs, 

and projects; 

(ii) send information on time and location, an 

agenda, and supporting materials (including preliminary versions 

of MTPs and TIPs) for all regularly scheduled meetings on surface 

transportation or air quality to each of the contacts specified in paragraph (l)(B) of this subsection. This information must be provided 

in accordance with the locally adopted public participation process as 

required in 23 CFR Part 450; 

(iii) after preparation of final draft versions ofMTPs 

and TIPs, and before adoption and approval by the affected governing 

body, ensure that the contacts specified in paragraph ( l )(B) of this subsection receive a copy, and that they are included in the local area's 

public participation process as required in 23 CFR Part 450. Upon approval ofMTPs and TIPs, MPOs shall distribute final approved copies 

of the documents to the contacts specified in paragraph (I )(B) of this 

subsection; 

(iv) for the purposes of regional emissions analysis, initiate a consultation process with the affected agencies specified 

in paragraph (l )(A) of this subsection during the development stage 

of new or revised MTPs and TIPs to determine which transportation 

projects should be considered regionally significant and which projects 

should be considered to have a significant change in design concept and 

scope from the effective MTP and TIP. Regionally significant projects 

will include, at a minimum, all facilities classified as principal arterial or higher, or fixed guideway systems or extensions that offer an 

alternative to regional highway travel. Also, these include minor arterials included in the travel demand modeling process that serve significant interregional and intraregional travel, and connect rural population centers not already served by a principal arterial, or connect with 

intermodal transportation terminals not already served by a principal 

arterial. A significant change in design concept and scope is defined 

as a revision of a project in the MTP or TIP that would significantly 

affect model speeds, vehicle miles traveled, or network connections. 

In addition to new facilities, examples include changes in the number of through lanes or length of project (more than one mile), access 

control, addition of major intermodal terminal facilities (such as new 

international bridges, park-and-ride lots, and transfer terminals), addition/deletion of interchanges, or changing between free and toll facilities. When a significant change in the design and scope of a project 

is proposed, the MPO shall document the rationale for the change and 

give the affected agencies specified in paragraph (1 )(A) of this subsection a 30-day opportunity to comment on the rationale. The MPO 

shall consider the views of each agency that comments, and respond in 

writing before any final action on these issues. If the MPO receives no 

comments within 30 days, the MPO may assume concurrence by the 

agencies specified in paragraph (1 )(A) of this subsection; 

(v) include in the TIP a list of projects exempted 

from the requirements of a conformity determination under 40 CFR 

§93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (I )(A) of this. subsection in determining if 

a project on the list has potentially adverse emissions for any reason, 

including whether or not the exempt project will interfere with implementation of an adopted transportation control measure (TCM). The 

MPO shall respond in writing to all comments within 30 days on final 

MTP and TIP documents. In addition, if no comments are received 

as part of the subsequent public participation process for the TIP, the 

MPO may proceed with implementation of the exempt project; 

(vi) notify the affected agencies specified in paragraph (I )(A) of this subsection in writing of any MTP or TIP revisions 

or amendments that add or delete the exempt projects identified in 40 

CFR §93.126; 

(vii) before adoption of any new or substantially different methods or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified in 

paragraph (l)(A) of this subsection to review and comment; 

(viii) in coordination with TxDOT and the local 

transit agencies, disclose all known, regionally significant, non-federal 

projects, even if the sponsor has not made a final decision on its 

implementation; include all disclosed, or otherwise known, regionally 

significant, non-federal projects in the regional emissions analysis 

for the nonattainment area; respond in writing to any comments that 

known plans for a regionally significant, non-federal project have not 

been properly reflected in the regional emissions analysis; and have 

recipients of federal funds determine annually that their regionally 

significant, non-federal projects are included in a conforming MTP 

or TIP, or are included in a regional emissions analysis of the MTP 

and TIP. The MPO shall consult with project sponsors to determine 

the non-federal projects' location and design concept and scope to 

be used in the regional emissions analysis, particularly for projects 

that the sponsor does not report a single intent because the sponsor's 

alternatives selection process is not yet complete. If the MPO assumes 

a design concept and scope that is different from the sponsor's ultimate choice, the next regional emissions analysis for a conformity 

determination must reflect the most recent information regarding the 

project's design concept and scope; 

(ix) ensure timely TCM implementation and report 

on the implementation and emissions reductions status of adopted 

TCMs annually to the commission; 

(x) cooperatively share the responsibility for conducting conformity determinations on transportation activities that 

cross the borders of MPOs or nonattainment and maintenance areas. 

The affected MPOs will enter into a Memorandum of Agreement 

(MOA) that will define the effective boundary and the respective 

responsibilities of each MPO for regional emissions analysis. The 

MPOs will be responsible within their respective metropolitan area 

boundaries and, at their option, beyond to the boundaries of the 

nonattainment/maintenance areas, for regional emissions analysis. 

Adjacent MPOs or nonattainment/maintenance areas or basins will 

share information concerning air quality modeling assumptions and 

emission rates that affect both areas; and 

(xi) for the purpose of determining the conformity 

of all projects outside the metropolitan planning area, but within the 

ADOPTED RULES July 13, 2007 32 TexReg 4409 
nonattainment or maintenance area, enter into an MOA involving the 

MPO and TxDOT for cooperative planning and analysis of projects. 

(B) The commission, as the lead air quality planning 

agency, shall work in consultation with the agencies specified in paragraph (1 )(A) of this subsection in developing applicable transportationrelated SIP revisions, air quality modeling, general emissions analysis, 

emissions inventory, and all related activities. Specifically, the commission shall: 

(i) set agendas and schedule meetings to seek advice 

and comments from all agencies specified in paragraph (1 )(A) of this 

subsection during preparation of applicable transportation-related SIP 

revisions; 

(ii) schedule public hearings in order to gather public input on the applicable transportation-related SIP revisions in accordance with 40 CFR §51.1 02 and notify the agencies specified in 

paragraph (l)(B) of this subsection ofthe hearings; 

(iii) provide copies of final documents, including 

applicable adopted or approved transportation-related SIP revisions 

and supporting information, to all agencies specified in paragraph 

(l)(B) of this subsection; 

(iv) after consultation with the MPO regarding 

TCMs, distribute to all agencies specified in paragraph (1 )(B) of this 

subsection and other interested persons the list of TCMs proposed 

for inclusion in the SIP. In consultation with the agencies specified 

in paragraph ( 1 )(A) of this subsection, the commission shall determine whether past obstacles to implementation of TCMs have 

been identified and are being overcome, and determine whether the 

MPOs and the implementing agencies are giving maximum priority to 

approval or funding for TCMs. Also, the commission shall consider, 

in consultation with the affected agencies, whether delays in TCM 

implementation necessitate a SIP revision to remove TCMs or to 

substitute TCMs or other emission reduction measures; and 

(v) consult with the applicable agencies specified in 

paragraph ( 1 )(A) of this subsection, in order to cooperatively choose 

conformity tests and methodologies for isolated rural nonattainment 

and maintenance areas, as required by 40 CFR §93.1 09(1)(2)(iii). 

(C) Any group, entity, or individual planning to construct a regionally significant transportation project that is not an 

FHWA-FTA project (including projects for which alternative locations, design concept and scope, or the no-build option are still being 

considered) shall disclose project plans to the MPO on a regular basis 

and disclose any changes to those plans immediately. This requirement 

also applies to recipients of funds designated under 23 USC or the 

federal transit laws. 

(3) General procedures. 

(A) The MPO, TxDOT, or the commission, as applicable, shall respond to comments of affected agencies on MTPs, TIPs, 

projects, or SIP revisions in accordance with the public participation 

procedures that govern the involved action. The MPO, TxDOT, or the 

commission, as applicable, shall include all comments and the replies 

to those comments with final documents when they are submitted for 

adoption by the agency's governing board. In the event that comments 

are not adequately resolved, the procedures outlined in paragraph (4) 

of this subsection regarding conflict resolution apply. 

(B) Because the validity of the regional emissions analysis depends on transportation modeling assumptions that need periodic updates, the MPO, with the assistance of TxDOT and local publicly owned transit agencies, will conduct meetings with the agencies 

specified in paragraph (l)(A) of this subsection to cooperatively estab32 TexReg 4410 July 13, 2007 Texas Register 

!ish research and data collection efforts and regional model development (e.g., household/transportation surveys). 

(C) For the purposes of evaluating and choosing a 

model (or models) and associated methods and assumptions to be 

used in hot spot and regional emissions analyses, agencies specified 

in paragraph (I )(A) of this subsection shall participate in a working 

group. The frequency of meetings and agendas for them will be cooperatively determined by the agencies specified in paragraph (I )(A) 

of this subsection. 

(D) The commission, affected MPOs, affected local air 

quality agencies, and TxDOT shall cooperatively evaluate events that 

will trigger the need for new conformity determinations. New conformity determinations may be triggered by events established in 40 CFR 

§93.1 04 as well as other events, including emergency relief projects 

that require substantial functional, locational, and capacity changes, or 

in the event of any other unforeseeable circumstances. 

(E) The MPO and its governing body, or TxDOT if applicable, shall make conformity determinations for all MTPs, TIPs, regionally significant projects, and all other events as required by 40 CFR 

Part 93, Subpart A and this section. Upon completion of the transportation conformity determination review process (including consultation, 

public participation, and all other requirements of this section), FHWA 

and FTA will issue a joint conformity finding, indicating the transportation conformity status of the document(s) under review. The effective 

date of the conformity determination for an area is the date of the joint 

conformity finding made by FHWA-FTA. 

(4) Conflict resolution. 

(A) The commission and the MPO (or TxDOT where 

appropriate) shall make a good-faith effort to address the major concerns of the other party in the event they are unable to reach agreement 

on the conformity determination of a proposed MTP or TIP. The efforts 

must include meetings of the agency executive directors, if necessary. 

(B) In the event that the MPO or TxDOT determines 

that every effort has been made to address the commission's concerns, 

and that no further progress is possible, the MPO or TxDOT shall notify the commission's executive director in writing to this effect. This 

subparagraph must be cited by the MPO or TxDOT in any notification 

of a conflict that may require action by the governor, or his or her delegate under subparagraph (C) of this paragraph. 

(C) The commission has 14 calendar days from date of 

receipt of notification, as required in subparagraph (B) of this paragraph, to appeal to the governor. If the commission appeals to the governor, the final conformity determination must then have the concurrence of the governor. The governor may delegate his or her role in 

this process, but not to the commission or commission staff, a local air 

quality agency, the Texas Transportation Commission or TxDOT staff, 

or an MPO. This subparagraph must be cited by the commission in any 

notification of a conflict that may require action by the governor or his 

or her delegate. If the commission does not appeal to the governor 

within 14 calendar days from receipt of written notification, the MPO 

or TxDOT may proceed with the final conformity determination. 

(5) Public comment on conformity determinations. Consistent with the requirements of 23 CFR Part 450, concerning public 

participation, the agencies making conformity determinations on transportation plans, programs, and projects must establish a proactive public participation process that provides opportunity for public review 

and comment. Any charges imposed for public inspection and copying 

should be consistent with the fee schedule contained in 49 CFR §7.43. 

In addition, these agencies shall address in writing any public comment 

claiming that a non-FHWNFTA funded, regionally significant project 
has not been properly represented in the conformity determination for 

an MTP or TIP. Finally, these agencies shall provide opportunity for 

public involvement in conformity determinations for projects where 

otherwise required by law. 

(6) Good-faith effort made by the consulting agencies. In 

formulating an enforcement policy regarding a violation of this subsection (relating to the consultation process) the commission may consider 

any good-faith effort made by the consulting agencies to comply. 

(e) Regionally significant, non-federal projects. For the purposes of 40 CFR §93.121, adoption or approval of a regionally significant, non-federal project (a regionally significant project that does 

not require FHWA or FTA approval or funding) occurs when affected 

agencies that are recipients offederal funds designated under 23 USC 

or the federal transit laws take one of the following actions: 

(I) board approval, action, or resolution (such approval, 

action, or resolution does not include MPO approval for the purposes 

of approving a project in a currently conforming MTP or TIP); 

(2) issuance of administrative permits for the regionally 

significant project; 

(3) action of official authorizing the regionally significant 

project to proceed; 

( 4) providing grants or loans for the construction of a regionally significant project; or 

(5) contract execution for the regionally significant project. 

(f) Compliance date. Compliance with this section is required 

for transportation conformity determinations that begin the interagency 

consultation process after the date ofEPA approval of the transportation 

conformity SIP associated with this rule. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on June 29, 2007. 

TRD-200702756 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: July 19, 2007 

Proposal publication date: February 9, 2007 

For further information, please call: (512) 239-0177 

• 

CHAPTER 115. 

• 

POLLUTION FROM V ATILE ORGANIC 

COMPOUNDS 

SUBCHAPTER C. ATILE ORGANIC 

COMPOUJ'l"D TRANSFE OPERATIONS 

DIVISION 4. L OF VEHICLE 

REFUELING EMISSIO S (STAGE II) AT 

MOTOR VEHICLE FU DISPENSING 

FACILITIES 

30 TAC §115.247 

The Texas Commission on Envi onmental Quality (commission) 

adopts the amendment to §115. 47. Section 115.247 is adopted 

with changes to the proposed t xt as published in the January 

26, 2007, issue of the Texas Re ister (32 TexReg 282). 

The adopted amendment will b submitted to the United States 

Environmental Protection Age y (EPA) as a revision to the 

State Implementation Plan. 

BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS 

FOR THE ADOPTED RULE 

For facilities where 95% or mor of the motor vehicle fleet being 

fueled onsite is equipped with nboard refueling vapor recovery (ORVR) equipment, Stage I vapor recovery equipment is 

an unnecessary expense beca e refueling emissions are captured via the vehicle's ORVR quipment instead of the Stage 

II dispenser. The EPA estimat s it costs about $40,000 to install a Stage II vacuum-assist ystem and $4,100 per year to 

maintain it. ORVR systems cap ure vapors otherwise vented to 

the atmosphere. ORVR system are passive systems that force 

gasoline vapors displaced fror,n a vehicle's fuel tank during refueling to be directed to a carb n-canister holding system and 

ultimately to the engine where t ey are consumed. EPA phased 

in ORVR systems for automobil s starting with model year 1998. 

All automobiles manufactured a er 2000 must be equipped with 

ORVR. Phase-in of ORVR for I hi-duty trucks began in model 

year 2001, and by model year 2003, all new light-duty trucks 

were required to have ORVR s stems. 

SECTION DISCUSSION 

The adopted amendment to §1 5.247, Exemptions, would add 

paragraph (3) any motor vehicl dispensing facility where 95% 

or more of the motor vehicle flee being fueled on site is equipped 

with onboard refueling vapor ,., overy equipment. To maintain 

a facility's exempt status under is paragraph, the owner or operator must submit documental on showing the fleet meets the 

requirements under this paragr. ph on an annual basis no later 

than January 31 of each year t the executive director or designated representative. 

ANTI-BACKSLIDING DEMONS rRATION 

The Stage II program is a Fed al Clean Air Act (FCM) specified volatile organic compound ( OC) control strategy for certain 

ozone nonattainment areas. St ge II vapor recovery equipment 

must be certified by EPA to achi ve a minimum 95% control efficiency for VOC emissions, as d tailed in their Stage II Vapor Recovery Systems-Options Paper ated February 7, 2006. ORVR 

systems capture VOC emission inside the vehicle thus making 

Stage II vapor recovery equipm nt unnecessary. Therefore, exempting facilities that refuel onl ORVR-equipped vehicles from 

the Stage II program will not re It in increased VOC emissions 

because the fugitive emissions ill be captured via the vehicle's 

ORVR system. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined t e rulemaking is not subject to 

§2001.0225 because it does n meet the definition of a "major 

environmental rule" as defined · the act. A "major environmental rule" is a rule which is sp ifically intended to protect the 

environment or reduce risks to uman health from environmental exposure, and that may ad ersely affect in a material way 

the economy, a sector of the ec nomy, productivity, competition, 

jobs, the environment, or the ublic health and safety of the 

ADOPTED RULES July 13, 2007 32 TexReg 4411