Kathleen Hartnett White, Chairman 

H. B. "Halph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Poltution 

May 15, 2006 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross A venue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

Docket Nos. 2005-1442-RUL 

2005-1443-RUL 

2005-1444-RUL 

On April 26, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to 

the State Implementation Plan (SIP). 

The Commission adopted amendments to §§114.6, 114.312, 114.313, 114.315- 114.318 in 30 Texas 

Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter H, 

Low Emission Fuels, Division 2, Low Emission Diesel; and corresponding revisions to the SIP. This 

rulemaking amends the definition of additive; specifies that the executive director must consult with EPA 

before approving an alternative test method; revises the documentation requirements for the alternative 

diesel formulation approval procedures; revises the minimum requirements for candidate fuel formulations 

used for testing purposes; specifies requirements for the test engine used for alternative diesel fuel 

formulation testing; adds clarifying language to the alternative test sequences; revises the emission 

comparison requirements to be more consistent with similar California Air Resource Board regulations; 

clarifies demonstration methods for alternative diesel formulation approval; clarifies records requirements 

relating to sampling; revises reporting requirements for producers with alternative emission reduction 

plans; establishes procedures that require producers to submit alternative emission reduction plans that are 

either developed in accordance with the EPA's Unified Model or use diesel credits from early introduction 

of low-sulfur gasoline in affected counties; and corrects citations and cross-references. (Rule Project No. 

2005-063-114-EN) 

The Commission also adopted amendments to §114.512 and §114.517 in 30 TAC Chapter 114 and 

corresponding revisions to the SIP, This rulemaking implements House Bill1540, 79th Legislature, 2005, 

Regular Session, as well as adds language that the Austin Early Action Compact members have requested 

be added so as to more greatly protect public health and safety. (Rule Project No. 2005-064-114-EN) 

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

Page 2 

The Commission adopted the repeal of §§114.3 114.150, 114.151, and 114.153- 114.157 in 30 TACJ 

Chapter 114 and corresponding revisions to the SIP. This action repeals the state regulations implementing 

the Texas Clean Fleet Program in its entirety, in accordance with Senate Bill 1032, 79th Legislature, 

Regular Session, 2005. (Rule Project No. 2005-067-114-EN) 

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

public hearing, and the accompanying orders. I look forward to your expeditious approval of these SIP 

revisions. 

Sinc/ly, . · 

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

K1thleen Hartnett White 

Chairman 

KHW!lb 

cc: The Honorable Rick Perry, Governor 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 
Texas Commission on 

Environmental Quality 

Public Hearings 

January 1 0, 2006 

Concerning Revisions to 30 TAG Chapter 114, 

Control of Air Pollution from Motor Vehicles 

Senate Bill1032: Repeal of Low Emission Vehicle Fleet Requirements 

Rule Project No. 2005-067-114-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on January 10, 

2006, to receive testimony regarding revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor 

Vehicles; and corresponding revisions to the Texas state implementation plan. 

The adoption repeals the state regulations implementing the Texas Clean Fleet Program in its entirety, in 

accordance with Senate Bill1032, 79th Texas Legislature, Regular Session, 2005. 

The comment period closed on January 17, 2006. All testimony and comments have been reviewed and 

seriously considered. This hearing record contains a complete record 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 Morris Brown at (512) 239-1438 or Erik Gribbin 

at (512) 239-2590. 
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 dates listed: 

Austin American-Statesman: December 5, 2005 

Fort Worth Star-Telegram: December 8, 2005 

Houston Chronicle: December 5, 2005 

Beaumont Enterprise: December 5, 2005 

Corpus Christi Caller-Times: December 3, 2005 

El Paso Times: December 5, 2005 

San Antonio Express-News: December 5, 2005 

Tyler Morning Telegraph: December 5, 2005 

Victoria Advocate: December 6, 2005 

2. Publication of the proposed rules in the November 25, 2005, issue ofthe Texas Register 

(30 TexReg 7824). 

3. Publication of the Notice of Public Hearing in the December 16, 2005, issue of the Texas 

Register 

(30 TexReg 8473). 

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 Dallas Department of Environmental and Health Services 
City of Dallas Department of Aviation 

City of Fort Worth Environmental Management Department 

City of Houston Department of Health and Human Services 

City of Victoria Planning Department 

East Texas Council of Governments 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Harris County Pollution Control Department 

Houston-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department 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 

Aust!n Amer1can-Statesman I! statesman.com :~~~1day, December~.: 2005 

··--~---~--··-··---... I 

-;;;.ICE OF P;;LIC HE.4RINu R' •1 11-lf: TEXAS COMMISSION ON ENVIRONMENTAL OUf,LITY ON PROPOSED REVISIONS TO 30 lAC CHIIP"IEH 114 AND TO THE STATE 

IMPLHilENl A liON PLAN lhl:' 1 exrt~ Conuniss.ior1 on Envi- romneulill Ouiililv will conduct il 

public he;u1ng ,o receivt> teiti· ."'o!'v. cnnrefliinlJ revisrom ro 30 rA.C Cha~ller 11·1. Control of Air 

PoUuC\0\'1 frotn Mawr Vehiclt>:;, 

~:.~~~~h the ;~~~uire;~(~;~s of i~~:: 3~S2.0 17; 'Tew.as Govrrnment Codt', Ch.:.pler 2001. Subchilpter l~; ~nd -10 CodP. of Feder<tl rtegu· 

~non:. §~LI02, of the Unirccl ~late!> EnvhoumPntnl Prcurttion A!Jency IEPAI re9ulalion~ cnn-

(ernin'cr state irnpl~mentllliorr 

plan.\ (!;!PSI. A puhlc heiuino wi.ll bE' held ilr AU~Iin, Texa.s, on J.anuarv 10 . .:!006. nr W~OO .1.m. in l!uildina £. ltoom 2015 ill thp 

lex::.~~ Lnmn1ission Oil Em•iron- 111en1al Qu;,IU1• conlfllex locaaed 

al l2l00 Pnrl; 35 Circle. The henrin~l will be muclured 101 the receipt of onl CIT written com· rnPnl~ b)' lnlerened per~om. 

Reglstralion will l.tegin 30 min· 

~j~i~rs~i~~;~~:~,'~;~r~~ ~~:~ ten statl'menu wherr cal~d 

upon _in order or regismnion. A lime hmit may be ~s"r:tbli,hed a! the hearing 1(1 ilUure that 

enuugh lime is rlllm~ed for every 

lnreresred person to speak. There \VIII be llCl open discussion dur- In~ the hearing; howe\•er. a!=lency stafl membru. w\U be availllb\e Ia disc~rss the proposal 30 rnln· utes prror 10 t_he hearing olnd will 

~~s7h~ ~~~s~~~;5 ~~o~,;~~s=~ ruiPmaklng would repeal ;.he .mue n!'9Ularlcn!· lmplememlng ~hP TC?~as Oe:tm Fleet Program in 

~~n:~!u~\U· ;r~3~~,~~~~11 ~~a~~~ ture, JOO!:i. !Rule Projecl-. No. 20!1,-061-114-~N} 

II' addition, tht' oroposcd ruiE'maldn~ would 1rilplemen1 House Dill 1540, 79th legislalure ::!005, it~ \'tell a\ add limgu~~ 

t!tat lhP. Austin Eo""l,ly Aclion lurnpacl memlleh h<rvl:.' requt."!\t•d be added ttl more 9re<~!l.\' protect public health o'lnd silfel\'. tnule Projf.!ct No. 

:wo.;-06·1-11·'\-f.Nl 

Th!• propasecl ruiC"n-wlr.ing would 

ill'iO <~mend lhl' defillilion of 

o:uldhiv_e: :O\lCcii)• thut {he er.ecuttvc> dtreclor must consuh wHit the llnited Slo'llt'~ Environ· tnt'nt,d Prt"IIPcUon J\Qell(V !EPA) 

bt"fou• ~pproving ,,.; ilhfnhlllve 

re~t /HC'thod; • fe'vise the do(ttmt"m>~~lon rettuirelnents lor 

ttl~ allent.-.uvr.o d•esel fmnu..ll,lliOil ilflp~ov,,\ procedure~; revi~e thP. 

mimmum ''~f)llir~rnenl~ for can- didate luC"I fonnu\all(•ns to onl)• 

ill low dh~5el IIJC'\ whir less !hrm IS )>iiiiS \lei LHiliitm StriiUJ \(l b~ 

used. for teslin9 purpost>s; ~peoly thar I he t('sl ~nqine u~ed 

h)1 ~hf'.mall\'f' diewl ftl!!llarmu- lnrion tE!sring rnmr h.we 11 m1niruum o( I :!~i hour:, of use 0\f"\l~ f'):hlbil M·"lbh~ .Ofll:'lalion hefme h~oinntnq !he te!.lintt and must nor exH~f:!d 11 O~t. Or It~ 

i\pfJ!icahte !Kh.-.ust emissior·, ~TJm.lards When· tHirlCl lh!? reiP.rcrlC.e fuel; cldd cl~rifvurg 

t.lngu.tg'i' to lhe <~lt~rn.ttive "tes"t sequcr1ce~ to ~Peel!)• llh~ numl..ler of htH start test Lycle~ lhJL IIlllS! 

he _1-wrforrn<>cl lc11 e.1ch sequenc!;'; rf'vr~!: the rmls~ion ~ompari!;on 

r'!qwu~mf:'rW ra be mme comis· tent IYith ~imil;n L11ilorni.t Air I"!!!§C•tiiC(' Bot~rcJ rNlUiilliom lw 

ll!ntm-inn rhf' f'Oli55ions ol lotrll hychocarbom ITH() und non nt·~rhnne lwdrocarDr:m:. tt•IMHC) hom the comp.ltison cr~lc.l,\ation 

bul spccifl•in~ that lhr E'mis\iou~ 

r.f THL nnd NMHC nl thr. '=.1mJidl'lr~ h11?l tnu~l no! rxre<.'d lllf emrssion ccnif,c,,lron Sl1lnd.ul1s applic.-.bl'c' w the \'Nr 

mociP.I of rh~ re~r ('mJine. cl~rify 

: g J ~z ~-~~);n ~ ~!~ 1 ;l~;o ~c~sr ,7.r it:~:f: dedartr_19 - '""' anpror.nar~ <Lrom~tr;.· hvdiOcar!JOrt <"~~nteul 

sran~.J;url of tltP tuel; rc;ov1~f rr I !?~!~In~-.. ~~.q~i:.P!Ilf'rll~· f_OI 

produceu willi illtern.:uive emis· siun reducllon plans tc tncludt! iniormLlrjon. in their qumrerl\' report thiH i5 required ro be coll!cted in ilccord;rncf' wlrh rhe 

SiliT\~iny and teuing 

reqUirE'tnents; e~r.:sbllsh proc~· 

dures !hal cequrr-F: producer~ to 

~ubmi\ ahemntivt: emiuion ro!dUction plitnS lll.J: ate dE-vel· oped in accord.i:mcc wlrh tOe Eflll. '$. Unified model m 

denlCn!.;trate that the averaye- of 

all on-road die~el fuel praduceri 

~~~:~~~~ i~:e;!1:.' s~~~~r~~.1 ~~ oftered tor supply bTr the 

c~O::~~~~ ~~~~ea~~~~~~~ ~~!~~ 55% reduction In nitroQP.Il oxide 

~mlssions for the year ~001, arlrl ar least a 6.2110 reduclion from 

~~~~~1~f ~l~~o~;~~J~~~ie~~: use m tht' afteCle-d counties, and allow Jll crnative emission n~du~rton ph1ns to usE: die~t.!l 

c1edHs from emly gasoline sultur reduc.lion thJt Can only be qc!'Ht!.tatcd frcn1 !he gasollrr'! sup~;>lfed b~· the producer t(l the au<~rnrnenr counrles ~n 200j, 2004, am1 2005, and can O!llv be 

used to demonstrate compluince 

thro_ugtJ Deceml.ter 31, 201 o, in aua1nmem cmrntie!i within tin: 

lexas low emission diesel conlrnl ;ucct: ar1cl correct citations nnd cross-reoiereuce). (note Project No. 200S·063·1 H-EN) 

Person~ who have !opP.Ci.:rl com· munit:ali(m or other i!.CCormnodalion lleed5 who are planning tc .a11cnd the hearing .shuuld con1a.:r Hally Vierk, Office 

ol Legal Setvices, "' IS\2) 239·0177. lieques1s shrmlrt be made as filr in advolllC~t as possible. 

Wrirten comments may bt> ~ubmltred to Br<1ndon Srnith. MC :206, Chief Engineer's Oftice, 

Texas Commission on EnviJor'lmenroJI Quality P. 0. l:'UA 

HOU7. Ausllll,lexas 7B]' 1-308); 

l<t!!~d IP 15121 139 5687; or enr;11terl 10 

~ipr\tle:-l"'rceq.n .. lc-.rx.us. All 

r.onrmenb sho~ltl rel~nmc:c.· th~ 

ru/(" proj~ct _number!. rhnt lhey 

pellllin 10. Lnmmenh rnus1 be rect.'ived by ~:on IJ.m on J<rmi<H\' 17. 2006. Th!..' ptopojtXf rule:s may be vi~\yed on lhi:' 

t:ornmi!>!>iou':. Wt?b ~ill:' at h11p://w't"'W:Il:e~l-~ICLoiC.IX.ll~/llcW/ 

ntle!.tt.tropos>;>_il~opt. html. Fhr hJrtht!t rnform.iltnln. pl~ns£> con· liiCT Mtmi~ Brown. Atr (Ju.1lity Pl~nnlt\9 .mr! lmplement<J\IOf\ \.)IVi!"otUII, Lil {51 :t) J39·1•1JH or i:Jik. 

Gribbm. Air Quaht\• l'l,tnrtir,q and )mpl~tmPm,ltJOJI [})·,.i>JDf•, r:.t·l~ I 2) 

1.1'.1-2)90. 

t~:;UP.t! ill AltHill, '1eJoeaS, 011 I Novemh.:; 30, ;'.llG~ 
The Texas Commission on Environmental Quality (TCEQ or commission) staff is providing an opportunity for written public comment on

the listed Agreed Orders (AOs) in accordance with Texas Water Code

(TWC), §7.075. Section 7.075 requires that, before the commission

may approve the AOs, the commission shall allow the public an opportunity to submit written comments on the proposed AOs. Section

7.075 requires that notice of the opportunity to comment must be published in the Texas Register no later than the 30th day before the date on

which the public comment period closes, which in this case is January

16, 2006. Section 7.075 also requires that the commission promptly

consider any written comments received and that the commission may

withdraw or withhold approval of an AO if a comment discloses facts

or considerations that the consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules

within the commission’s orders and permits issued in accordance with

the commission’s regulatory authority. Additional notice of changes

to a proposed AO is not required to be published if those changes are

made in response to written comments.

A copy of each proposed AO is available for public inspection at both

the commission’s central ofce, located at 12100 Park 35 Circle, Building A, 3rd Floor, Austin, Texas 78753, (512) 239-3400 and at the applicable regional ofce listed as follows. Comments about an AO should

be sent to the attorney designated for the AO at the commission’s central ofce at P. O. Box 13087, MC 175, Austin, Texas 78711-3087 and

must be received by 5:00 p.m. on January 16, 2006. Comments may

also be sent by facsimile machine to the attorney at (512) 239-3434.

The designated attorney is available to discuss the AO and/or the comment procedure at the listed phone number; however, §7.075 provides

that comments on an AO should be submitted to the commission in

writing.

(1) COMPANY: Al Barkaat Enterprises, Inc. dba Amans Grocery

Store; DOCKET NUMBER: 2005-0184-PST-E; TCEQ ID NUMBERS: 36861 and RN102719895; LOCATION: 703 East Second

Street, El Campo, Wharton County, Texas; TYPE OF FACILITY:

convenience store with retail sales of gasoline; RULES VIOLATED:

30 TAC §37.815(a) and (b), by failing to demonstrate acceptable

nancial assurance for taking corrective action and for compensating

third parties for bodily injury and property damage caused by accidental release arising from the operation of petroleum underground

storage tanks (USTs); PENALTY: $1,120; STAFF ATTORNEY:

Amie Richardson, Litigation Division, MC 175, (512) 239-2999;

REGIONAL OFFICE: Houston Regional Ofce, 5425 Polk Avenue,

Suite H, Houston, Texas 77023-1486, (713) 767-3500.

(2) COMPANY: American Chrome & Chemicals L.P.; DOCKET

NUMBER: 2000-0711- MLM-E; TCEQ ID NUMBER:

RN100210814; LOCATION: 3800 Buddy Lawrence Drive on the

south bank of the Corpus Christi Inner Harbor, Corpus Christi,

Nueces County, Texas; TYPE OF FACILITY: manufacturing plant

for processing chromite ore and producing chromium compounds;

RULES VIOLATED: 30 TAC §335.4 and §327.5, and TWC, §26.121

and §26.266, by failing to prevent an unauthorized discharge of

groundwater contaminated with industrial waste that originated from

the facility into surface waters of the state because the coffer dam

groundwater recovery system was not in operation from January 17

- January 27, 2000; 30 TAC §305.125(1), Texas Pollutant Discharge

Elimination System Permit Number 00349, Efuent Limitations

and Monitoring Requirement 1, and TWC, §26.121, by failing to

comply with permitted limits at Outfall 101A; 30 TAC §116.115(c)

and Air Permit Number 7736, Special Condition Number 1, by

failing to comply with special permit conditions by allowing nitrous

oxide emissions in excess of the permit limit for a failed stack test

dated June 29, 2000; PENALTY: $20,625; STAFF ATTORNEY:

Amie Richardson, Litigation Division, MC 175, (512) 239-2999;

REGIONAL OFFICE: Corpus Christi Regional Ofce, 6300 Ocean

Drive, Suite 1200, Corpus Christi, Texas 78412-5503, (361) 825-3100.

(3) COMPANY: Exxon Mobil Corporation dba ExxonMobil Rening & Supply Company; DOCKET NUMBER: 2004-0818-AIR-E;

TCEQ ID NUMBERS: HG-0232-Q and RN102579307; LOCATION:

2800 Decker Drive, Baytown, Harris County, Texas; TYPE OF

FACILITY: petroleum rening plant; RULES VIOLATED: 30 TAC

§116.715(a), TCEQ Flexible Permit Number 18287/PSD-TX-730M2,

and Texas Health and Safety Code, §382.085(b), by failing to prevent

unauthorized emissions; PENALTY: $7,500; STAFF ATTORNEY:

Laurencia Fasoyiro, Litigation Division, MC R-12, (713) 422-8914;

REGIONAL OFFICE: Houston Regional Ofce, 5425 Polk Avenue,

Suite H, Houston, Texas 77023-1486, (713) 767-3500.

(4) COMPANY: MBE, Inc. dba Bryan’s 2 and dba Bryan’s 3;

DOCKET NUMBER: 2003- 1144-PST-E; TCEQ ID NUMBERS:

RN101432334 and RN102375557; LOCATION: 901 East Main,

San Augustine, and 462 State Highway 7 East, San Augustine

County, Texas; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: at Bryan’s 2, 30 TAC

§334.45(c)(3)(A), by failing to install a secure anchor at the base

of the dispenser in each pressurized delivery or product line and

a UL-listed emergency shutoff valve in piping systems in which

regulated substances are conveyed under pressure to an aboveground

dispensing unit; 30 TAC §37.815(a) and (b), by failing to demonstrate

acceptable nancial assurance for taking corrective action and for

compensating third parties for bodily injury and property damage

caused by accidental releases arising from the operation of petroleum

USTs; and 30 TAC §334.48(c), by failing to conduct inventory control

and reconciliation for all USTs involved in the retail sales of petroleum

substances used as motor fuel; at Bryan’s 3, 30 TAC §334.45(c)(3)(A),

by failing to install a secure anchor at the base of the dispenser in

each pressurized delivery or product line and a UL-listed emergency

shutoff valve in piping systems in which regulated substances are

conveyed under pressure to an aboveground dispensing unit; 30

TAC §334.50(b)(2)(A)(i)(III), by failing to test a line detector at

least once per year for performance and operational reliability; 30

TAC §334.48(c), by failing to reconcile inventory control records

on a monthly basis in a manner sufciently accurate to detect a

release which equals or exceeds the sum of 1% of the total substance

ow-through for the month plus 130 gallons; and 30 TAC §334.22(a)

and §334.128, by failing to pay UST and aboveground storage tank

fees; PENALTY: $18,000; STAFF ATTORNEY: Courtney St. Julian,

Litigation Division, MC 175, (512) 239-0617; REGIONAL OFFICE:

Beaumont Regional Ofce, 3870 Eastex Freeway, Beaumont, Texas

77703-1892, (409) 898-3838.

TRD-200505616

Stephanie Bergeron Perdue

Acting Deputy Director, Of¿ce of Legal Services

Texas Commission on Environmental Quality

Filed: December 6, 2005

Notice of Public Hearing on Proposed Revisions to 30 TAC

Chapter 114

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony concerning revisions to

30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles,

under the requirements of Texas Health and Safety Code, §382.017;

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code

of Federal Regulations §51.102, of the United States Environmental

Protection Agency (EPA) regulations concerning state implementation

plans (SIPs).

IN ADDITION December 16, 2005 30 TexReg 8473
A public hearing will be held in Austin, Texas, on January 10, 2006,

at 10:00 a.m. in Building E, Room 201S, at the Texas Commission

on Environmental Quality complex located at 12100 Park 35 Circle.

The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior

to the hearing. Individuals may present oral or written statements when

called upon in order of registration. A time limit may be established at

the hearing to assure that enough time is allowed for every interested

person to speak. There will be no open discussion during the hearing;

however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before

and after the hearing.

The proposed rulemaking would repeal the state regulations implementing the Texas Clean Fleet Program in its entirety, in accordance

with Senate Bill 1032, 79th Legislature, 2005. (Rule Project No. 2005-

067-114-EN)

In addition, the proposed rulemaking would implement House Bill

1540, 79th Legislature, 2005, as well as add language that the

Austin Early Action Compact members have requested be added

to more greatly protect public health and safety. (Rule Project No.

2005-064-114-EN)

The proposed rulemaking would also amend the denition of additive;

specify that the executive director must consult with the EPA before approving an alternative test method; revise the documentation requirements for the alternative diesel formulation approval procedures; revise

the minimum requirements for candidate fuel formulations to only allow diesel fuel with less than 15 parts per million sulfur to be used for

testing purposes; specify that the test engine used for alternative diesel

fuel formulation testing must have a minimum of 125 hours of use and

exhibit stable operation before beginning the testing and must not exceed 110% of its applicable exhaust emission standards when using the

reference fuel; add clarifying language to the alternative test sequences

to specify the number of hot start test cycles that must be performed

for each sequence; revise the emission comparison requirements to

be more consistent with similar California Air Resource Board regulations by removing the emissions of total hydrocarbons (THC) and

non-methane hydrocarbons (NMHC) from the comparison calculation

but specifying that the emissions of THC and NMHC of the candidate

fuel must not exceed the emission certication standards applicable to

the year model of the test engine; clarify that only those records relating to sampling require a statement declaring the appropriate aromatic

hydrocarbon content standard of the fuel; revise reporting requirements

for producers with alternative emission reduction plans to include information in their quarterly report that is required to be collected in

accordance with the sampling and testing requirements; establish procedures that require producers to submit alternative emission reduction

plans that are developed in accordance with the EPA’s Unied model to

demonstrate that the average of all on-road diesel fuel produced in any

given calendar year that is sold, offered for sale, supplied, or offered for

supply by the producer in the counties affected by these rules achieves

at least a 5.5% reduction in nitrogen oxide emissions for the year 2007,

and at least a 6.2% reduction from the average of all non-road diesel

produced by the producer for use in the affected counties, and allow

alternative emission reduction plans to use diesel credits from early

gasoline sulfur reduction that can only be generated from the gasoline

supplied by the producer to the attainment counties in 2003, 2004, and

2005, and can only be used to demonstrate compliance through December 31, 2010, in attainment counties within the Texas low emission

diesel control area; and correct citations and cross-references. (Rule

Project No. 2005-063-114-EN).

Persons who have special communication or other accommodation

needs who are planning to attend the hearing should contact Holly

Vierk, Ofce of Legal Services, at (512) 239-0177. Requests should

be made as far in advance as possible.

Written comments may be submitted to Brandon Smith, MC 206,

Chief Engineer’s Ofce, Texas Commission on Environmental Quality, P. O. Box 13087, Austin, Texas 78711-3087; faxed to (512)

239-5687; or e-mailed to siprules@tceq.state.tx.us. All comments

should reference the rule project numbers that they pertain to. Comments must be received by 5:00 p.m. on January 17, 2006. The

proposed rules may be viewed on the commission’s web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further

information, please contact Morris Brown, Air Quality Planning and

Implementation Division, at (512) 239-1438 or Erik Gribbin, Air

Quality Planning and Implementation Division, at (512) 239-2590.

TRD-200505569

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: December 1, 2005

Notice of Water Rights Application

Notice issued November 30, 2005:

APPLICATION NO. 5893; Blanch Double Diamond Development

Corp., 415 Highway 46 West, Boerne, Texas, 78006, applicant, has

applied to the Texas Commission on Environmental Quality (TCEQ)

for a Water Use Permit pursuant to 11.143, Texas Water Code, and

TCEQ Rules 30 Texas Administrative Code (TAC) 295.1, et seq.

Blanch Double Diamond Development Corp., applicant, seeks to

maintain an existing, exempt on-channel dam and reservoir with a

capacity of 25 acre-feet of water (normal maximum operating level)

on an unnamed tributary of Deep Hollow Creek, tributary of Frederick

Creek, tributary of Cibolo Creek, tributary of the San Antonio River,

San Antonio River Basin, with a surface area of 3.5 acres of land for

in-place recreation purposes in Kendall County. The dam is located

in the C&M. R.R. Co. Original Survey No. 283, Abstract No. 746.

Station 0 +00 on the centerline of the dam is S 72.858 W, 1,462 feet

from the northeast corner of the C&M. R.R. Co. Survey at Latitude

29.753 N, Longitude 98.792 W, approximately 5.0 miles southwest

direction from the City of Boerne, Kendall County, Texas. Ownership

of the innundated land is evidenced by a General Warranty Deed

led as Volume 866, Pages 472 though 482 in the ofcial records

of Kendall County. The Commission will review the application as

submitted by the applicant and may or may not grant the application

as requested. The application was received on March 24, 2005. Additional information was received on June 14, August 4, and November

3, 2005. The application was declared administratively complete and

led with the Ofce of the Chief Clerk on August 12, 2005. Written

public comments and requests for a public meeting should be received

in the Ofce of Chief Clerk, at the address provided in the information

section below, within 30 days of the date of newspaper publication of

the notice.

INFORMATION SECTION

A public meeting is intended for the taking of public comment, and is

not a contested case hearing.

The Executive Director can consider approval of an application unless

a written request for a contested case hearing is led. To request a contested case hearing, you must submit the following: (1) your name (or

for a group or association, an ofcial representative), mailing address,

daytime phone number, and fax number, if any: (2) applicant’s name

and permit number; (3) the statement "[I/we] request a contested case

30 TexReg 8474 December 16, 2005 Texas Register
§501.12(l)). No new sources of air contaminants will be authorized and the proposed revisions will maintain the same level of

emissions control as the existing rules. The CMP policy applicable to this rulemaking action is the policy that commission rules

comply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31

TAC §501.14(q)). This rulemaking action complies with 40 Code

of Federal Regulations Part 51, Requirements for Preparation,

Adoption, and Submittal of Implementation Plans. Therefore, in

accordance with 31 TAC §505.22(e), the commission afrms that

this rulemaking action is consistent with CMP goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Because §111.155 is an applicable requirement under 30 TAC

Chapter 122, Federal Operating Permits Program, owners or operators subject to the Federal Operating Permit Program must,

consistent with the revision process in Chapter 122, revise their

operating permit to delete requirements relating to §111.155.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on December 15, 2005, at 2:00 p.m. in Building E, Room

254S, at the commission’s central ofce located at 12100 Park

35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present

oral statements when called upon in order of registration. Open

discussion will not be permitted during the hearing; however,

commission staff members will be available to discuss the proposal 30 minutes before the hearing and will answer questions

before and after the hearing.

Persons with disabilities who have special communication or

other accommodation needs who are planning to attend the

hearing should contact Joyce Spencer, Ofce of Legal Services,

at (512) 239-5017. Requests should be made as far in advance

as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Joyce Spencer, MC 205, Texas

Register Team, Ofce of Legal Services, P.O. Box 13087, Austin,

Texas 78711-3087 or faxed to (512) 239-4808. Comments must

be received by 5:00 p.m., January 13, 2006, and should reference Rule Project Number 2005-013-111- EN. Copies of the

proposal can be obtained from the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For

further information, please contact Kathy Singleton, Air Quality

Planning and Implementation Division, at (512) 239-6098.

STATUTORY AUTHORITY

The repeal is proposed under Texas Water Code (TWC), §5.103,

concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary

to carry out its powers and duties under the TWC; and under

Texas Health and Safety Code (THSC), §382.017, concerning

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The

repeal is also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to

safeguard the state air resources, consistent with the protection

of public health, general welfare, and physical property; THSC,

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state air; and

THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state air.

The proposed repeal implements THSC, §§382.002, 382.011,

382.012, 382.016, and 382.017.

§111.155. Ground Level Concentrations.

This agency hereby certies that the proposal has been reviewed

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

Filed with the Ofce of the Secretary of State on November 10,

2005.

TRD-200505198

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 25, 2005

For further information, please call: (512) 239-5017

CHAPTER 114. CONTROL OF AIR

POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes the repeal of §§114.3, 114.150, 114.151,

and 114.153 - 114.157.

The commission also proposes to submit to the United States

Environmental Protection Agency (EPA) revisions to the state

implementation plan (SIP) addressing the repeal of these rules.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

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

§182(c)(4), required states to either adopt the Federal Clean

Fuel Fleet (FCFF) Program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions

in ozone-producing and toxic air emissions equal to those

achieved under the FCFF Program.

The FCFF Program requires federal, state, and local governments, and private eets to purchase low emission vehicles

(LEVs) in areas classied by the EPA as being in serious,

severe, or extreme nonattainment of the National Ambient Air

Quality Standards (NAAQS) for ozone and carbon monoxide

(CO). The federal program mandates increasing percentages of

LEV purchases by the affected eets in the covered nonattainment areas in vehicle model years 1999, 2000, and 2001.

The State of Texas, in a committal SIP revision submitted to the

EPA on November 15, 1992, opted out of the FCFF Program in

order to implement a eet emission control program designed by

the state.

In 1994, the commission submitted the state’s opt-out program

in a SIP revision to the EPA and adopted rules to implement

the Texas Alternative Fuel Fleet Program as a substitute to the

FCFF Program in the areas of Texas classied by EPA as being

in serious, severe, or extreme nonattainment of the NAAQS for

ozone or CO.

In 1995, the 74th Legislature modied the state’s alternative fuels program through the passage of Senate Bill (SB) 200. The

legislature facilitated fuel neutrality through the incorporation of

the federal LEV standards for certain affected eets regardless

30 TexReg 7824 November 25, 2005 Texas Register
of fuel type. The legislation required the commission to adopt

regulations to implement the program in all ozone nonattainment

areas.

In response, the commission adopted regulations to implement

the modied program and developed a revision to the SIP outlining the state’s substitute program to the FCFF Program. However, the 75th Legislature met in 1997 and removed the commission’s authority to require the program in moderate nonattainment areas through passage of SB 681. This new legislation limited the commission’s authority to the serious and above ozone

nonattainment areas. In addition, SB 681 modied the state’s

alternative fuels program. The legislature retained the basic requirement of LEV purchases, but modied the implementation

schedule, added an additional exception from the program, and

altered the grandfathering provisions of the statute. This new

legislation required the commission to adopt regulations to implement the program.

On December 16, 1997, the EPA nalized federal regulations

for the National Low Emission Vehicle (NLEV) Program. The

NLEV Program was developed to allow manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that

were more stringent than the EPA could mandate prior to 2004.

The EPA made a nal determination on implementation of NLEV

on March 2, 1998. With the NLEV Program successfully implemented nationally, the commission was able to use emission

reductions achieved through the NLEV Program to offset any

shortfall in emission reductions resulting from the state’s substitute for the FCFF Program.

On July 29, 1998, the commission adopted regulations and a

revision of the Texas Clean Fleet (TCF) SIP to set forth the

LEV requirements for mass transit eets in each of the serious

and above nonattainment areas, and for local government and

private eets operated primarily within the serious and above

nonattainment areas. These rules satised the state requirements to adopt rules to implement SB 681.

On February 10, 2000, the EPA nalized federal regulations for

the Tier II emission standards for all passenger vehicles, including sport utility vehicles (SUVs), minivans, vans, and light-duty

trucks that were 77% - 95% cleaner than the current emission

standards. The new emission standards set a corporate average standard for nitrogen oxides of 0.07 grams per mile for all

classes of passenger vehicles beginning in 2004. This includes

all light-duty trucks, as well as the largest SUVs. Vehicles weighing less than 6,000 pounds will be phased-in to this standard between 2004 and 2007. Later that same year on October 6, 2000,

the EPA nalized federal regulations for emission standards for

model year 2004 and newer heavy-duty diesel engines (HDDE)

and vehicles that were equivalent to the ultra low emission vehicle (ULEV) standards under the FCFF Program.

In June 2005, the state statutes requiring the commission to

establish and implement LEV requirements for mass transit

eets and for private and local government eets (i.e., the

TCF Program) as codied in Texas Health and Safety Code

(THSC), Chapter 382, Subchapter F, were repealed by SB 1032

by the 79th Legislature, 2005. Currently, the commission’s

rules in §§114.3 and 114.150, 114.151, and 114.153 - 114.157

implementing these statutes require mass transit authorities,

private companies, and local government eets in the Houston-Galveston-Brazoria (HGB), Dallas-Fort Worth (DFW), and

El Paso ozone nonattainment areas to ensure that a specied

percentage of their new eet vehicle purchases are vehicles that

have been certied by the EPA to the federal LEV standards.

The commission had recommended that the Texas Legislature

repeal these enabling statutes because the LEV standards have

been superseded by the cleaner federal Tier II emission standards that were promulgated in February 2000 and the federal

2004 heavy-duty engine emission standards that were promulgated in October 2000. As a result of these new emission standards, requiring eets to comply with a mandatory LEV percentof-purchase requirement is no longer an effective method to reduce emissions from eet vehicles. In addition, the continued

implementation of a mandatory vehicle purchase program is no

longer necessary since, under the Texas Emissions Reduction

Plan (TERP), the commission’s Emissions Reduction Incentive

Grants Program provides nancial incentives to private, local

government (including school districts), and mass transit eets

to voluntarily purchase the cleanest vehicles possible that meet

their operational needs.

The proposed repeal of these rules would have no impact on the

emissions from eets since all new eet vehicles are being certi-

ed by the EPA to either the federal Tier II emission standards or

the federal 2004 heavy-duty engine emission standards, both of

which are cleaner than the federal LEV standards currently being required under these rules. In addition, the proposed repeals

would remove an administrative burden since the affected eets

would no longer be required to submit biennial eet compliance

reports to the commission.

In conjunction with the proposed repeal of these rules, the commission proposes to revise the SIP to remove the TCF Program

as an ozone control strategy since the federal emission standards for model year 2004 and later light-duty and heavy-duty

motor vehicles are more stringent than those required by the

FCFF Program as outlined in the FCAA. The federal emission

standards for HDDE in model years 2004 - 2006 are equivalent

to the heavy-duty ULEV standards under the FCFF Program and

the federal standards for HDDE in model years 2007 and later

are approximately 90% cleaner than ULEV. The emission reductions achieved by the Tier II and HDDE standards far surpass

the emission reductions that would be expected from implementation of the TCF Program in any of the state’s ozone nonattainment areas. The commission requests that the EPA accept the

implementation of the Tier II and HDDE emission standards as a

substitute to the FCFF Program in the areas of Texas classied

by the EPA as being in serious, severe, or extreme nonattainment of the NAAQS for ozone or CO.

SECTION BY SECTION DISCUSSION

The proposed rulemaking would repeal §114.3 in Subchapter A

and §§114.150, 114.151, and 114.153 - 114.157, Subchapter E,

in its entirety, in accordance with the directive indicated by SB

1032 by the 79th Legislature.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Walter Perry, Analyst, Strategic Planning and Assessment Section, determined that for the rst ve-year period the proposed

repeals are in effect, no signicant scal implications are anticipated for the agency or other units of state or local government.

The proposed action implements SB 1032, and would repeal the

existing rules governing the TCF Program. The standards identied under this program have since been superseded by the

cleaner federal Tier II emission standards and the federal 2004

heavy-duty engine emission standards. The continued implementation of the TCF Program is no longer necessary. Under

TERP, the commission’s Emissions Reduction Incentive Grants

PROPOSED RULES November 25, 2005 30 TexReg 7825
Program provides nancial incentives to private, local government (including school districts), and mass transit authorities to

voluntarily purchase the cleanest vehicles possible that meet

their operational needs. The vehicles purchased through this

program meet or exceed the new Tier II and federal 2004 heavyduty engine emission standards.

The proposed repeals would affect all mass transit authorities in

the state and all state government, local government, and private

eets in the HGB, DFW, and El Paso ozone nonattainment areas. Under the existing rules, the affected entities were required

to report their percentage of the eet purchases that were certi-

ed to be compliant with the EPA’s federal LEV standards. Entities that were required to report this information to the agency

on a biennial basis would no longer be required to report the information or maintain compliance records. State and local governments may realize a cost savings as a result of the reduced

administrative costs required to ensure that a percentage of their

new eet vehicle purchases are certied by the EPA to meet the

LEV standards and the costs to prepare and submit compliance

reports on a biennial basis. These cost savings are not anticipated to be signicant.

PUBLIC BENEFITS AND COSTS

Mr. Perry also determined that for each year of the rst ve years

the proposed repeals are in effect, the public benet anticipated

from the changes seen in the proposed action would be a more

efcient use of state resources.

The proposed repeal of the TCF rules would eliminate the need

for mass transit authorities in the state, as well as state and local governments, and private eets that operate primarily in the

HGB, DWF, and El Paso ozone nonattainment areas to report

the percentage of their eet purchases that have been certied

to be compliant with the EPA’s federal LEV standards. The affected entities that were required to report this information to the

agency on a biennial basis would no longer be required to report

the information or maintain compliance records. The anticipated

cost savings associated with the proposed action would result

from the reduction in administrative costs required to ensure that

a percentage of their new eet vehicle purchases are certied by

the EPA to meet the LEV standards and the costs to prepare and

submit compliance reports on a biennial basis. These cost savings are not anticipated to be signicant.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse scal implications are anticipated for small or microbusinesses as a result of the proposed action. The repeal of

the rules would result in no additional costs for small and microbusinesses. Small and micro-businesses would experience the

same potential cost savings as local governments and industry.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed action and determined

that a local employment impact statement is not required because the proposed repeals do not adversely affect a local economy in a material way for the rst ve years that the proposed

repeals are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed repeals in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the repeals do not meet the

denition of a "major environmental rule." Under Texas Government Code, §2001.0225, "major environmental rule" means a

rule the specic intent of which is to protect the environment or

reduce risks to human health from environmental exposure, 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 repeals would eliminate commission

rules that currently require mass transit authorities, private companies, and local government eets in the HGB, DFW, and El

Paso ozone nonattainment areas to ensure that a specied percentage of their new eet vehicle purchases are vehicles certied

by the EPA as LEVs under the federal LEV standards. The proposed action is a rules repeal, and it is not specically intended

to protect the environment or reduce risks to human health from

environmental exposure. The TCF Program currently regulates

a sector of the economy. Repeal of the program is therefore unlikely to adversely affect in a material way the economy, a sector

of the economy, productivity, competition, or jobs. Under TERP,

the commission’s Emissions Reduction Incentive Grants Program provides nancial incentives to private, local government

(including school districts), and mass transit eets to voluntarily

purchase the cleanest vehicles possible that meet their operational needs. This means the repeals are also unlikely to adversely affect in a material way the environment or public health

and safety. Because the repeals would not adversely affect in 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 repeals do not t

the Texas Government Code, §2001.0225, denition of "major

environmental rule."

Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because

the proposed repeals do not constitute a major environmental

rule, a regulatory impact analysis is not required. The commission invites public comment regarding this draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

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

1) a governmental action that affects private real property, in

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

requires the governmental entity to compensate the private real

property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I,

Texas Constitution; or 2) a governmental action that affects an

owner’s private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently,

in a manner that restricts or limits the owner’s right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least

25% in the market value of the affected private real property, determined by comparing the market value of the property as if the

governmental action is not in effect and the market value of the

property determined as if the governmental action is in effect.

The commission completed a taking impact analysis for the proposed repeals. The repeal of the rules would not affect private

real property in a manner that would require compensation to private real property owners under the United States Constitution or

the Texas Constitution. The repeals also would not affect private

real property in a manner that restricts or limits an owner’s right

to the property that would otherwise exist in the absence of the

governmental action. Therefore, the proposed repeals would not

cause a taking under Texas Government Code, Chapter 2007.

30 TexReg 7826 November 25, 2005 Texas Register
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined the proposed repeals relate to an

action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of

1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3) and 31

TAC §505.11(b)(2), relating to actions and rules subject to the

CMP, commission rules governing air pollutant emissions must

be consistent with the applicable goals and policies of the CMP.

The commission reviewed this action for consistency with the

CMP goals and policies in accordance with the regulations of the

Coastal Coordination Council and determined that the proposed

repeals are consistent with the applicable CMP goal expressed

in 31 TAC §501.12(1) of protecting and preserving the quality

and values of coastal natural resource areas, and the policy in

31 TAC §501.14(q), which requires that the commission protect

air quality in coastal areas. The proposed action and SIP revision would ensure that the repeals comply with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary

Air Quality Standards, and 40 CFR Part 51, Requirements for

Preparation, Adoption, and Submittal of Implementation Plans.

This proposed action is consistent with CMP goals and policies,

in compliance with 31 TAC §505.22(e).

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

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 114 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program; therefore, owners or operators subject to the federal operating permit program

must, consistent with the revision process in Chapter 122, revise

their operating permit to include the revised Chapter 114 requirements at their sites affected by the revisions to Chapter 114.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E,

Room 201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. The hearing will

be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the

hearing. Individuals may present oral or written statements when

called upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed for

every interested person to speak. There will be no open discussion during the hearing; however, agency staff members will be

available to discuss the proposal 30 minutes prior to the hearing

and will answer questions before and after the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact

Holly Vierk, Ofce of Legal Services, at (512) 239-0177. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Brandon Smith,

MC 206, Chief Engineer’s Ofce, Texas Commission on

Environmental Quality, P.O. Box 13087, Austin, Texas

78711-3087; faxed to (512) 239-5687; or emailed to

siprules@tceq.state.tx.us. All comments should reference

Rule Project Number 2005-067-114-EN. Comments must

be received by 5:00 p.m. on January 17, 2006. The proposed rules may be viewed on the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For

further information, please contact Morris Brown, Air Quality

Planning and Implementation Division, at (512) 239-1438.

SUBCHAPTER A. DEFINITIONS

30 TAC §114.3

(Editor’s note: The text of the following section proposed for repeal

will not be published. The section may be examined in the ofces of the

Texas Commission on Environmental Quality or in the Texas Register

ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Water Code (TWC),

§5.102, concerning General Powers; §5.103, concerning Rules;

and §5.105, concerning General Policy, which provide the

commission with the general powers to carry out its duties and

authorize the commission to adopt rules necessary to carry

out its powers and duties under the TWC; and under THSC,

§382.017, concerning Rules, which authorizes the commission

to adopt rules consistent with the policy and purposes of THSC,

Chapter 382 (also known as the Texas Clean Air Act). The

repeal is also proposed under THSC, §382.002, concerning

Policy and Purpose, which establishes the commission purpose

to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property;

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air;

§382.012, concerning State Air Control Plan, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; and §382.019, which

authorizes the commission to adopt rules to control and reduce

emissions from engines used to propel land vehicles.

The proposed repeal implements THSC, §§382.002, 382.011,

382.012, and 382.019.

§114.3. Low Emission Vehicle Fleet Denitions.

This agency hereby certies that the proposal has been reviewed

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

Filed with the Ofce of the Secretary of State on November 10,

2005.

TRD-200505191

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 25, 2005

For further information, please call: (512) 239-0177

SUBCHAPTER E. LOW EMISSION VEHICLE

FLEET REQUIREMENTS

30 TAC §§114.150, 114.151, 114.153 - 114.157

(Editor’s note: The text of the following sections proposed for repeal

will not be published. The sections may be examined in the ofces of the

Texas Commission on Environmental Quality or in the Texas Register

PROPOSED RULES November 25, 2005 30 TexReg 7827
ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin.)

STATUTORY AUTHORITY

The repeals are proposed under TWC, §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105, concerning

General Policy, which provide the commission with the general

powers to carry out its duties and authorize the commission to

adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of THSC, Chapter 382 (also known as

the Texas Clean Air Act). The repeals are also proposed under

THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general

welfare, and physical property; §382.011, concerning General

Powers and Duties, which authorizes the commission to control

the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s

air; and §382.019, which authorizes the commission to adopt

rules to control and reduce emissions from engines used to propel land vehicles.

The proposed repeals implement THSC, §§382.002, 382.011,

382.012, and 382.019.

§114.150. Requirements for Mass Transit Authorities.

§114.151. Requirements for Local Governments and Private Entities.

§114.153. Exceptions.

§114.154. Exceptions for Certain Mass Transit Authorities.

§114.155. Reporting.

§114.156. Record Keeping.

§114.157. Low Emission Vehicle Fleet Program Compliance Credits.

This agency hereby certies that the proposal has been reviewed

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

Filed with the Ofce of the Secretary of State on November 10,

2005.

TRD-200505192

Stephanie Bergeron Perdue

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 25, 2005

For further information, please call: (512) 239-0177

SUBCHAPTER J. OPERATIONAL CONTROLS

FOR MOTOR VEHICLES

DIVISION 2. LOCALLY ENFORCED MOTOR

VEHICLE IDLING LIMITATIONS

30 TAC §114.512, §114.517

The Texas Commission on Environmental Quality (commission

or TCEQ) proposes amendments to §114.512 and §114.517;

and corresponding revisions to the state implementation plan

(SIP).

The amended rules will be submitted to the United States Environmental Protection Agency (EPA) as proposed revisions to the

SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

The concept of an early, voluntary eight-hour air quality plan, or

early action compact (EAC), was endorsed by EPA Region 6 in

June 2002, then slightly modied and made available nationally

in November 2002. The EACs are tailored to local needs and

driven by local decisions. A key point of an EAC is the exibility

afforded areas to select emission reduction measures. Based

on quality science, signatories may choose the combination of

measures that meet both local needs and emission reduction

targets. Each EAC recognizes that not every entity within the

EAC area will implement every measure.

Chapter 114, Subchapter J, Operational Controls for Motor Vehicles, Division 2, Locally Enforced Motor Vehicle Idling Limitations rule, was proposed at the request of the local air quality

planning organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for use as a control strategy in its EAC agreement to maintain attainment with the

federal eight-hour ozone national ambient air quality standards.

The rule package also provided local governments in other areas

of the state the option of applying these rules in their areas when

additional control measures were needed to achieve or maintain

attainment of the federal eight-hour ozone standard in the future.

The rules were adopted on November 17, 2004.

The December 18, 2002, EAC committed the commission to incorporate a Clean Air Action Plan for the Austin area into the

SIP and adopt a revised SIP by December 31, 2004. The idling

restriction rule was part of that attainment demonstration. While

the Austin Metropolitan Statistical Area (MSA) was monitoring

attainment with the eight-hour ozone standard, future monitoring could have shown nonattainment. Therefore, members of

the Austin MSA worked to ratify a memorandum of agreement

(MOA) with the TCEQ that would allow them to enforce the idling

restriction rule in their region. The Locally Enforced Idling Restriction MOA was signed by the commission and members of

the Austin EAC area on August 1, 2005.

In meetings with ofcials of the Austin EAC to develop the

idling rule MOA, concerns arose regarding language in the

locally enforced idling restrictions. Austin EAC members voiced

concern that parts of §114.517, Exemptions, were ambiguous

and needed revision. Members of the EAC felt that §114.517(7)

and (8) could be misinterpreted to mean that a transit vehicle

could idle for a total of one hour. There was also concern

that the commission’s rule conicted with Texas Department

of Transportation (TxDOT) guidelines for vehicle idling by employees. Austin EAC members brought to the commission’s

attention TxDOT’s policy regarding idling. The guidelines advise

employees to idle their vehicles to operate the air conditioner or

heating system for employee health and safety while they perform an essential job function related to roadway construction or

maintenance. In many instances on-road and off-road vehicles

at roadway construction sites must remain in idle mode during

normal operations. The commission agrees with the Austin EAC

members that the locally enforced idling restrictions should be

revised in light of these concerns. At the request of the Austin

30 TexReg 7828 November 25, 2005 Texas Register
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 T AC CHAPTER 114 AND 

TO THE STATE IMPLEMENTATION PLAN 

The Texas Conunission on Environmental Quality will conduct a public hearing to receive testimony 

concerning revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, under the 

requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, 

Subchapter B; and 40 Code of Federal Regulations §51.1 02, of the United States Environmental Protection 

Agency (EPA) regulations concerning state implementation plans (SIPs). 

A public hearing will be held in Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E, Room 

201S, at the Texas Conunission on Environmental Quality complex located at 12100 Park 35 Circle. The 

hearing will be structured for the receipt of oral or written conunents by interested persons. Registration 

will begin 30 minutes prior to the hearing. Individuals may present oral or written statements when called 

upon in order of registration. A time limit may be established at the hearing to assure that enough time 

is allowed for every interested person to speak. There will be no open discussion during the hearing; 

however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing 

and will answer questions before and after the hearing. 

The proposed rulemaking would repeal the state regulations implementing the Texas Clean Fleet Program 

in its entirety, in accordance with Senate Bill1032, 79th Legislature, 2005. (Rule Project No. 2005-067-

114-EN) 

In addition, the proposed rulemaking would implement House Bill 1540, 79th Legislature, 2005, as well 

as add language that the Austin Early Action Compact members have requested be added to more greatly 

protect public health and safety. (Rule Project No. 2005-064-114-EN) 

The proposed rulemaking would also amend the definition of additive; specify that the executive director 

must consult with the United States Environmental Protection Agency (EPA) before approving an 

alternative test method; revise the documentation requirements for the alternative diesel formulation 

approval procedures; revise the minimum requirements for candidate fuel formulations to only allow diesel 

fuel with less than 15 parts per million sulfur to be used for testing purposes; specify that the test engine 

used for alternative diesel fuel formulation testing must have a minimum of 125 hours of use and exhibit 

stable operation before beginning the testing and must not exceed 110% of its applicable exhaust emission 

standards when using the reference fuel; add clarifying language to the alternative test sequences to specify 

the number of hot start test cycles that must be performed for each sequence; revise the emission 

comparison requirements to be more consistent with similar California Air Resource Board regulations by 

removing the emissions of total hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from the 
comparison calculation but specifying that the emissions of THC and NMHC of the candidate fuel must 

not exceed the emission certification standards applicable to the year model of the test engine; clarify that 

only those records relating to sampling require a statement declaring the appropriate aromatic hydrocarbon 

content standard of the fuel; revise reporting requirements for producers with alternative emission 

reduction plans to include information in their quarterly report that is required to be collected in accordance 

with the sampling and testing requirements; establish procedures that require producers to submit 

alternative emission reduction plans that are developed in accordance with the EPA's Unified model to 

demonstrate that the average of all on-road diesel fuel produced in any given calendar year that is sold, 

offered for sale, supplied, or offered for supply by the producer in the counties affected by these rules 

achieves at least a 5.5% reduction in nitrogen oxide emissions for the year 2007, and at least a 6.2% 

reduction from the average of all non-road diesel produced by the producer for use in the affected counties, 

and allow alternative emission reduction plans to use diesel credits from early gasoline sulfur reduction that 

can only be generated from the gasoline supplied by the producer to the attainment counties in 2003, 2004, 

and 2005, and can only be used to demonstrate compliance through December 31, 2010, in attainment 

counties within the Texas low emission diesel control area; and correct citations and cross-references. 

(Rule Project No. 2005-063-114-EN) 

Persons who have special communication or other accommodation needs who are planning to attend the 

hearing should contact Holly Vierk, Office of Legal Services, at (512) 239-0177. Requests should be 

made as far in advance as possible. 

Written comments may be submitted to Brandon Smith, MC 206, Chief Engineer's Office, Texas 

Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-

5687; or emailed to siprules@tceq.state.tx.us. All cmmnents should reference the rule project numbers 

that they pertain to. Cmmnents must be received by 5:00p.m. on January 17, 2006: The proposed rules 

may be viewed on the cmmnission's Web site athttp://www.tceq.state.tx.us!nav!ruleslpropose _adopt.html. 

For further information, please contact Morris Brown, Air Quality Planning and Implementation Division, 

at (512) 239-1438 or Erik Gribbin, Air Quality Planning and Implementation Division, at (512) 239-2590. 

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

ORAL TESTIMONY 
Reference Number 

w~1 

W-2 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Brandt Mannchen, Sierra Club, Houston Regional Group 

Thomas Diggs, United States Environmental Protection Agency 
SIERRA 

CLUB 

FOUNDED 1892 

December 13, 2005 

Mr. Brandon Smith 

Chief Engineer's Office 

Texas Commission on Environmental Quality 

MC206 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Mr. Smith, 

Houston Regional Group 

P. 0. Box.3021 

Houston, Texas 77253-3021 

713-895-9309 

http:/ /texas.sierraclub.org/houston/ 

Enclosed are the comments of the Houston -Regional Group of the Sierra Club 

(HSC) regarding the Texas Commission on Environmental Quality's (TCEQ) 

proposed repeal of 114.3, 114.150, 114.151, and 114.153-114-157, Low 

Emission Vehicle Fleet Requirements; amendments to 114.512 and 114.517, 

Locally Enforced Motor Vehicle Idling Limitations; and amendments to 114.6, 

114.312, 114.313, and 114.315-114.318, Definitions and Low Emission Diesel. 

1) The HSC is concerned about the constant changes that TCEQ has made to 

the Low Emission Vehicle Fleet Requirements program. We understand that 

some of these changes may have been predicated by the Texas Legislature. 

However, as a general rule, for several years TCEQ required that fleet owners 

conduct business in a certain way. Then TCEQ changed the program. Now 

TCEQ proposes a repeal of all the requirements. 

The HSC is concerned that this leads to economic inefficiencies; operational 

inefficiencies; higher costs for businesses and consumers; disillusionment with 

the law; and temporary or non-existent reductions in air pollutants from motor 

vehicle fleets. The HSC is concerned that the Low Emission Vehicle Fleet 

Requirements were used to meet legal requirements but were not used as a 

long-term commitment by TCEQ to reduce emissions from fleet owners. TCEQ 

must look more carefully at its control strategies to determine whether they will 

be needed in the long-term and are not just short-term stop-gap efforts. 

2) Regarding the proposed changes to the Locally Enforced Motor Vehicle Idling 

Limitations, 114.512 and 114.517, the HSC supports these changes. 

3) Regarding the proposed changes to Definitions and Low Emission Diesel, 

114.6, 114.312, 114.313, and 114.315-114.318, the HSC is opposed to any 

proposal that allows alternative emission reduction plans to be labeled as 

"confidential business information" and kept from the public. It is one thing to 

"When we try to pick out anything by itself, we fmd it hitched to everything else in the universe." john Mftir 

Printed on 100% Ken a£ tree free paper 
have some informc;ition that is confidential and placed in a separate file. It is 

entirely a different situation to allow entire plans to be labeled as confidential and 

hidden from the public. The HSC opposes any such regulation, rule, program, or 

policy that supports this. The public has the right to know, review, and comment 

on what alternative emission reduction plans are proposed and approved by 

TCEQ .. 

On page 5 of the proposal, the TCEQ states, "Diesel engines emit very little VOC 

emissions". However, on page 6 TCEQ states, " ... these changes would also 

require that the average individual emissions of total hydrocarbons (THC) and 

non-methane hydrocarbons (1\IMHC), respectively, recorded during testing with 

the candidate fuel not exceed 110% of the test engine's applicable exhaust 

emission standards in order to prevent unacceptable increase in VOC 

emissions." 

These two statements appear, at best confusing, and at worst contradictory. If 

there are f~w VOC emissions in diesel then there should be little concern for any 

minimal increase. In addition, the soot particles that diesel engines generate act 

as adsorption surfaces for VOC, whether THC, NMHC, or toxic VOC fractions 

(for example, aromatic hydrocarbons or polycyclic aromatic hydrocarbons), which 

make the diesel particulates particularly dangerous to the deep lung areas like 

the alveoli. TCEQ should more clearly explain the importance of VOC in the . 

control of air pollution from the evaporation and combustion of diesel fuels. 

Overall, the rule is very c;:onfusing because of the multiple average percentage 

requirements listed in the rule proposal (5.5%, 5.7%, 5.78%, and 6.2%). TCEQ 

should develop a rule that is easy for the public and regulated entities to 

understand and comply with. The HSC requests that TCEQ simplify this rule. 

The HSC appreciates this opportunity to comment. Thank you .. 

Sincerely, 

.Brandt Mannchen 

Chair, Air Quality Committee 

Houston Regional Group of the Sierra Club 

Lone Star Chapter 

5431 Carew 

Houston, Texas 77096 

713-664-5962 

brandtshnfbt@juno.com 

2 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

R'EGJOIIJ 6 

Mr. Brandon ~mith 

1445 ROSS AVENUE, SUlTE 12DO 

DALLAS, TX 75202-2733 

Texas Commissitm on E11vironmental Quallty 8 

Chief Engineer's Office W-2 

MC 206 

P.O. Box 13087 

Austin, TX 78711-3087 

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

Dear Mr. Smith: 

Thank you for the oppo!tunlty to comment on proposed revisions to the Texas Low 

Emis.sion Diesel Rule, the Locally Enforced Motor Vehicle Idling T .imitations tllle, and the Texas 

Cleau P[eet Rule. The Region 6 detailed comments em lhese rules arc found in the enc.:losure. 

Additional comments from EPA wi11 be rorwarded when we receive them. 

Tn summary, we do not oppose the repeal of the Texas Clean Fleet. program as·it was 

designed before. but the federal clean ru~l neeL requirement must be fulfilled by measUTes other 

than federal requirements. We may not be able to approve the revisions lo Lhe Locally Enforced 

Motor Vehicle Idling Limitations because that would be a weakening of the 'federally approved 

STP. Our comments on the Texas Low Emlsslo11 Diesel mle revisions focus primarily on LesL 

methods and altcmative emission reduction plans. While we support many of the revisions that 

are proposed ror thi:-: rule, our concern is with con·ecting director discretion and with establishing 

a replicable procedure thu.t is approvablc. We also offer comments as requested on No Harm 

Testing and use of credits for Early Implementation ofLr.Jw Sulfur Gasoline. 

Region 6 continues to offer Texas our supp011 during the rule rcvisi on proces~. Please let 

us lmow huw we may be of further assistance. 

Sin,.ely y~mrs, 

/~~~£/~~ ~;Thomas Diggt-;, Chief r· - Air Planning Section 

Enclm;ure 

cc: CanLiiGe Garrett, Director 

Air Quality Planning and Implementation Division 

Rl!lc:vt:l:Jti!Re~Vt:lob\CJ o Printed wlrh Ve:Jelilble Oil &Jsfld Inks on 1CO% Aocycfod Papor(40% Poslcon&umer} 
EPA Reg:i.on 6 Comments 

Texas CJean Ploct Rul~ Repeal 

We do not oppose the repeal of the Texas Clean Fleer program, bLJL we do take issue with 

Lhe substi Lur.e measures that are proposed to usc in its place. 

Section 246(2)(A) of the 1990 Clean Air Act requires ~tates to implement rhe Clean Fuel 

Fleet (CFF) program in certain ozone nonattninment .areas. Sccrion l82(c)( ~-)(B) allows a state to 

opr om of the CFF program provided the state submits a SIP revision consisting of a substitute 

program lhat results in as much· OJ' gl'eater long term emissions reductions as the CFF program. 

The EPA may approve such a revision only if the substitute program is not required by the Act. 

See for e,>:.umple, 70 Fed. Reg. 13425, 13435 (March 21, 2005). Thus, the state of Texas may 

substitute irs Texas Clean Fleet (TCF) program with any other program that results in as much or 

grealer long-tem1 emil;sicms reductions as t.he CFF program. In no event, however, can the 

subsliluLe pmgram be either the Tier ll or heavy-duty diesel engines (HDDE) standards. Also, 

the tennlnation of!hc TCF program prior w EPA approval of any substitute measure would 

likely rcsulr in a weakening of the existing SJP and thus, appear to be in violation or Lhe Act. 

Kcnrucky ReBources Council, Inc_, v. EPA, 304 F:Supp. 2d 920 (W.D.Ky. 2004). 

Further, the EPA has dererrnined that only certain vehicles and engines certified to current 

Pan 86 c.rrrissions standards are either a.s stringent or more stringent than corresponding CFF 

cmissiot1 standards. Accordingly, the EPA has advised t1eet managers ~e~king Lo meet the CFF 

program requirements t11at only such vehicles and engines meet CFF emission standards. See 

EPA guidance Jetter CCD~05-12, (July 21, 2005), which is available on-line at: 

http://www.cpa.gov/orag/certldearmfr/ccd0512.pdf. Tl would, therefore, be-premature ro assen 

that either rhe Tier IT or J-IDDE standardo have superseded the CF.F standards. 

We recommend that a demonstration be provided in the final rule submittal to show what 

federal C.FF CTCd1t8 need lob~ :subslituL~::d by SLat~:. rule 'crec.Hts For each affected nonattainment 

area. We believe there are sufficient State rule credits that are beyond RACT to fulfill this 

requirement. 

Locally Enforced Motor Vehicle .ldling .Limitations Rul~ 

The addilion of exemption number (11) and the revision to exemption number (l) weaken 

the SIP nt1es that were approved by EPA in 2005. We can appreciate and understand why che 

Legislature would make this mandate. Technology to accommodate overnight comfort for 

drivers of rl1ese vehicles is not rcad1Jy available and spotty at most in the non attainment areas. 
Even though ynu must adopt these changes, we will not be able IO approve them into the SIP 

· unless you can provide substitute reduction~ or model to show Lhat attainment can be mer without 

those credits. We' gemly remind yoll that approved programs in the SlP still have to be enforcecl 

unless we approve a SIP. revision. 

'J'e;Kas Low Emission DJcscJ Rule Revision 

We recommend the following for some of the proposed provisions: 

Section 114.6. We do not see the v'tlue of adding the phrase "required to he" in this 

definition. Some may misinterpret this to mean that additives can be used 

in Texas before being approved and reg1stered by the EPA We know that 

is not the case, therefore we recommend thii' change not be t1nalized. 

Section 114.315(b). _Section 114.315(b) does not go far enough t(l resnlve concems regarding 

Executive Director discretion. Consul ration is not adequate in case of 

disagreements. We suggest Lhe section be changed co rcacl "with the 

consent of EPA" or "consultation and agreement by EPA.'' Another 

acceptable ex.ample is in Section 114.315(d) where something must be 

dernonstrated t.o tl1e satisfactiorl of lho Exct:ulive Director and the EPA. 

. Section 114.315(c) 4. Add lhe words "and in the Envlronmemal Tcchr10logy Verification 

Protocol ofthe EPA, v,;here applicab~e" at the end ofthe reference to 

40CFR86 Subpan N. Note: T1u~ TCEQ preamble on page 6 refers to the 

necessity of being c(msistent 1-\Jith the ETV P ror.ocol. 

There is an issue with cumulative effect additives being used in vehicles 

that arc not consistently fueled wiLh Lhe same additives. Our Office of 

Transportation and Air Quality wi 11 be addressing this further in comments 

whic.:h we will forward to you. 

,Section 114.31S(d). (d)(2) reads: "If the alternative diesel fuel formulation has been 

demonstrated to the satisfaction of the executive director Eo achieve 

comparable or better reductions in emissio11s of NOx [,THC, NMHC,] 

and PM under this subsection .. '' To be consistent with (d), ''and the EPA'' 

shollld be added just afler executive director here. ' 

No harm tests. The supplier should be in a posiLinn tn guaranty that "the approved fllels 

and fuel additives are not harmful to the mechanical operation of diesel 

engines." Such a clause could be included in the document under review. 

The key facwr in detennining "(he approved fuels and fuel additives arc not harmful ro Lhe 

mechanic.: a] nperation of diesel engines" is the effect it woll1c1 have on the elastomers used in 

Diesel Engines. The engine manufacturers should be able TO provide samples of all the 

elastomers exposed to the fuel, used in their engines. The sample could then be resred for 

resistance La the fuel being evaluated. There are several ASTM stanclards to Lest the properties of 
elastomers under different conditions and .there are several labs that coulcl cmiy om these tests. 

Such a test system should be fomllllated. 

The !>Llppliers' vvarranty or the results of such tests prior to appnwul of a formulation would he 

appropriate. · 

With regard to meclwnicctl weur and tear of the engine, Lhe protocol for a 'no harm' test co check 

whether ''the approved fuels and fuel addir1ves nre not hnrn1ful to the mechanical operation CJf 

diesel engines" would extend to a period equivalent to a million m1les on a diesel engine under 

diverse load conditions, ambient temperatures, stops and starts. Lubricant rn1mufacturers in 

collaboration with engine manufacturers ca1ry om simulared rests to check the wear and rear on 

piston rings, cylinders and crankshaft bearing::; elu. Such a Le~t ~sing a lubricant with.lcnown 

characteristics and the candidate fuel should provide useful results. · 

Section 114.318. We do not oppose the removal of EPA approval from §114.318(a) hec:aw;~ 

a replicable pr9cedure for the State to approve the ABRP plans is being proposed. Should Lhe 

State adopt a revision of this Section and lhm;e pruvisions be approved into rhc SIP hy EPA, EPA 

approval then is implicit for any plan a.pproved by the State. A critical parr_ of a replicable 

procedure such as lhi!\ in which credits from one source are substituted for another is public 

part:icipation in the p1·ocess at the State level. That public pa11icipation is belng cnnicd uul 

LhrClugh the notice and comment period in which the State is enacting the revised 114.318. 

Early Implementation of Low Sulfur Gasoline Credits. While iL it> indicated that credits for 

~arly implementation of low sulfur gasoline may only be generated in 2003, 2004 and 2005, you 

are taidng comments for allowing those credits to be used through 2010. The benefits for early 

implementation of low sulfur gasoline will have been replaced years prior by the mandated low 

.sulfur gasoline. By March l, 2006, low sulfur gasoline will be fully implemented in Texas by all 

the major ret1ners that provide rhe majorily of gasoline sold at retail in-the state. Using early 

credits unti12010 is prob1ematiG for the Beaumont-Port Arthur (BPA) nonanainment urea and the 

Early Acrion Compacl areas that wouJd benefit greatly from real-time NOx reduct(ons. Although 

iris possible for the MOBILE model to calculate a benefit to pre-Tier 2 vehicles, we do not 

believe the model can reflect real~worlcl benefits because of the m1certainty of fueling 11ab1ts of 

the general public. Therefore, we do TID[ support a.llowing credits for early lmplcmcnration of 

low sulfur gasoline for use in the areas me11tioned above past December 3 1, 2006. Real-time 

NOx benefits from a low-NOx fuel could potentially be used to partially satisfy the federal Clean 

Fuel Fleet requirement for BPA, for example. 
INDEX OF ORAL TESTIMONY 

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

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

Texas Commission on Environmental Quality 

Public Hearing Registration ~:· -

Location: Austin (10:00 a.m.) Date: January 10, 2006 

Concerning: 30 TAC Chapter 114 (Rule Project No.'s 2005-063-114-EN, 2005-064-114-EN, 2005-067-114) 

Name and Address Representing Presenting Oral Testimony? 

· (Circle One) 

(Please Print) 

j;/1 l]yt.,I(DOoU( 0 It y (It fit!/tr/l (J""( . 

tJA<j/t4.s #.vr') (jtYoJVr... Yes NQJ 

(; oo Co;vr,/l.J(et. ln/r.,_ ri:. J3c?" fton.,.,; 7\c ~ <;"' c.A-,v \;l-.:..._ Se:'~ ~~~ 

Le.c,rr ~ 

u .. ~~N 

·---rr' 7 

LrJ 

'fbc..rJ ·- Yes ~ 

c tWt s r~pcr. (L l"Relt( CocJ~ ~ h 'u "'-

.fjf(p Cot-~ />w.L. ®No 

Au.f)ll;.J IX 

f2-++.L. Tor dan ..-=... 

.. ~ ""- "". ~ .~~s_Q_. (" /-

-

- ·~ 

-- ~ ~ ~~ 'VL:::c .... -

·~''' 6,) I clj-Ptt!J6·- 1/-ustcV:. ~4-L ~ No 

fgJ ({ck?/}j__ ~lv Yes b 

" 

5Ft ( DsUtL:trt/ .. 

;Cc,ct.._ Yes(§) 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality __ INTEROFFICE MEMORANDUM 

To: Commissioners Date: April 7, 2006 

Thru: LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: David C. Schanbacher, P.E."'c) 

Chief Engineer V 

Docket No.: 2005-1444-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 114, Control of Air Pollution from Motor Vehicles 

SB 1032: Repeal of Low Emission Vehicle (LEV) Fleet Requirements 

Rule Project No. 2005-067-114-EN 

Reasons for the rule package: 

Under what authority are we adopting these changes? 

The repeal is adopted under Texas Water Code (TWC), §5.102, concerning General Powers; 

§5.103, concerning Rules; and §5.105, concerning General Policy, which provide the commission 

with the general powers to carry out its duties and authorize the commission to adopt rules 

necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, 

concerning Rules, which authorizes the commission to adopt rules consistent with the policy and 

purposes of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeal is also 

adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the 

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

public health, general welfare, and physical property; §382.011, concerning General Powers and 

Duties, which authorizes the commission to control the quality of the state's air; §382.012, 

concerning State Air Control Plan, which authorizes the commission to prepare and develop a 

general, comprehensive plan for the control of the state's air; and §382.019, which authorizes the 

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

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

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

Yes. SB 1032 repealed the state statutes in THSC, Chapter 382, Subchapter F, requiring the 

commission to establish and implement the Texas Clean Fleet (TCF) Program. 

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

No. 

What issue(s) or problem(s) are we trying to solve? 

Requiring fleets to meet a mandatory LEV percent-of-purchase requirement is no longer an 

effective method to reduce emissions from fleet vehicles since the LEV standards have been 

superseded by the cleaner federal Tier II emission standards and the federal 2004 heavy-duty 

engine emission standards. 
CotTUTJissioncrs 

Page 2 

April 7, 2006 

Rc: Docket 1'1o. 2005-1444-RUL 

Why is it important that we do this rule package? 

This rulemaking is at the directive of the legislature as indicated by SB 1032. 

Other important background or historical information. 

The legislature repealed the enabling statutes because requiring fleets to meet a mandatory LEV 

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

vehicles since the LEV standards have been superseded by the cleaner federal Tier II emission 

standards and the federal 2004 heavy-duty engine emission standards. In addition, the continued 

implementation of a mandatory vehicle purchase program is diminished due to programs such as 

the Texas Emission Reduction Plan (TERP), including the Emission Reduction Incentive Grants 

Program; Clean Cities; The Congestion Mitigation and Air Quality Improvement Program 

(CMAQ); and EPA funding programs. The programs provide financial incentives to private, local 

government (including school districts), and mass transit fleets to voluntarily purchase the cleanest 

vehicles possible that meet their operational needs. 

Scope of the rulemaking: 

This rulemaking will repeal the regulations implementing the Texas Clean Fleet Program in its 

entirety. 

Changes required by federal rule: 

None. 

Changes required by state statute: 

The repeal is necessary to implement SB 1032, that repealed THSC, Chapter 382, Subchapter F, 

§§382.131 - 382.143, in its entirety. 

Staff recommendations that are not expressly required by federal rule or state statute: 

None. 

Impact on the regulated community: 

Who will be affected? 

Mass transit authorities, private companies with vehicle fleets of more than 25 fleet vehicles, and 

local governments with vehicle fleets of more than 15 vehicles that operate primarily in the 

Houston-Galveston-Brazoria, Dallas-Fort Worth, and E1 Paso ozone nonattainment areas that are 

currently affected by the existing regulations. 

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

No. 

Will there be a fiscal impad:? If so, estimate. 

Yes. The repeal will result in a fiscal benefit for those fleets affected by the existing rules since 

they will no longer be required to ensure that a percentage of their new fleet vehicle purchases are 

vehicles that !lave been certified by the EPA to the fecleral LEV standards that have now been 

superseded by the cleaner federal Tier II emission standards and the federal 2004 heavy··cluty 

engine emission standards. In addition, the affected fleets will no longer be requirec1 to submit 

biennial fleet compliance reports to the commission. 
Commissioners 

Page 3 

April 7, 2006 

Re: Docket No. 2005-1444-RUL 

Impact on the public: 

Who will be affected? 

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

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

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

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

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

No. 

Will there be a fiscal impact? If so, estimate. 

The repeal will have no fiscal impact on the public. 

Impact on agency programs: 

The repeal will have minimal fiscal impact to agency programs. Staff resources currently assigned 

to implement the existing LEV fleet regulations have been reallocated to other agency programs 

that are in need of additional resources, such as the TERP Emissions Reduction Incentive Grants 

Program. 

Stakeholder meetings: 

Have any stakeholder meetings been held? 

No. The rulemaking to repeal the LEV fleet requirements is at the directive of the legislature as 

indicated by SB 1032. 

With whom? 

N/A 

What were the general sentiments? 

NIA 

Were any changes made in response to stakeholder concerns? 

N/A 

Policy issues: 

What policy issues are affected? 

None. SB 1032 repealed the statutes requiring the commission to implement the LEV fleet 

regulations. 

Are any policies that are not currently based on rule being made into a rule? 

No. 
C :onTnli ssioncn; 

Jl<tFC 4 '·' 

April 7, 2006 

He: Docket No. 2005-1444-RUL 

What are the consequences if this rulemaldng is not approved to go forward? 

The repeal of the regulations implementing the Texas Clean Fleet Program is at the directive of the 

legislature as indicated by SB 1032. 

Are there alternatives? 

No. SB 1032 repealed the statutes enabling the commission to implement the LEV fleet 

regulations. 

Potentiall~' controversial matters: 

None 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: November 25, 2005 

Anticipated effective date: May 18, 2006 

Six-month Texas Register filing deadline: May 25, 2006 

Public comment: 

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

proposed repeal. 

• Sierra Club-Houston cmmnented that the commission's constant changes to the Low Emission 

Vehicle Fleet requirements have resulted in higher costs for businesses and consumers and 

temporary or non-existent reductions in air pollutants from motor vehicle fleets, and that the 

commission should look at its control strategies to determine whether the strategies will be needed 

in the long term or are just short-term stop··gap efforts. 

"' EPA commented that although they do not oppose the repeal of the Texas Clean Fleet program, 

they do take issue with the substitute measures that are proposed to be used in its place. EPA 

further commented that Tier II or heavy-duty diesel engines (HDDE) standards programs could not 

be used as substitute programs. EPA recommended that a demonstration be provided to show what 

federal CFF credits need to be substituted by the state rule credits that are beyond RACT to fulfill 

this requirement. 

Significant changes from proposal: 

Staff has deterrninecl that the implementation of the NLEV program has macle the TCF requirements 

redundant. There are no new aclclitional benefits to be gained from the TCF program, but the current 

benefits from existing TCF vehicles shall remain. ln the State's 1998 SIP revision for Federal Clean Fuel 

Fleet (FCFF) substitute program, the commission iclentifiecl reductions achieved through contingency 

measures such as the State's Fugitive Emissions Controls tlmt resulted in more emission reductions than 

the FCFF program These requirements continue to be effective and provide reductions. Staff has 

determined that no additional substitute emission reduction strategies are necessary in order to fully satisfy 

the Section 182(c)( 4)(B) statutory requirements of tbe Clean Air Act. ,Staff will continue to work with 
Commissioners 

Page 5 

April 7, 2006 

Re: Docket No. 2005-1444-RUL 

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

An analysis comparing the TCF program and the National Low Emission Vehicle (NLEV) program is 

available on the TCEQ website at www.tceq.state.tx.us/implementation/air/sip/apr2006txled.htrnl and is 

attached to this executive summary. 

No changes were made to the rulemaking from proposal. 

Agency contacts: 

Santos Olivarez, Rule Project Manager, 239-4718, Air Quality Planning and Implementation 

Division 

Les Trobman, Staff Attorney, 239-6056 

Holly Vierk, Texas Register Coordinator, 239-0177 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. W adick 

Brent Wade 

Office of General Counsel 

Santos Olivarez 

Holly Vierk 

cc (without attachments): 

Les Trobman, Staff Attorney 

Kerry Howard, Program Office Liaison 

Candice Garrett, Division Liaison 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
Analysis of EPA Comments on Texas Clean Fleet Repeal 

EPA Comments 

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

federal requirements." 

" ... Texas may substitute its Texas Clean Fleet (TCF) program with any other program 

that results in as much greater long-term emissions reductions as the CFF program." 

"In no event, however, can the substitute program be either the Tier II or heavy-duty 

diesel engines (HDDE standards." 

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

"It would, therefore, be premature to assert that either the Tier II or HDDE standards 

have superseded the CFF standards." 

"We recommend that a demonstration be provided in the final rule submittal to show 

what federal CFF credits need to be substituted by State rule credits for each affected 

nonattainment area." 

Draft Response 

The August 1998 Clean Fuel Fleet Program Implementation Guidance (EPA420-R-98-

011) is available on EPA's Clean Fuel Fleets (CFF) webpage, which was last updated on 

May 23, 2001 and is located at http://www.epa.gov/oms/regs/fuels/cff/cffp-imp.pdf. 

Page 4 of this guidance states that "Clean-Fuel Fleet light duty standards are the same as 

for Low Emission Vehicles (LEVs) ... " The full useful life Clean Fuel Vehicle (CFV) 

LEV standards are summarized in the table below and were extracted from the following 

sources: 

- Clean Air Act, Section 242, Requirements Applicable to Clean Fuel Vehicles 

Phase II (beginning with 2001 model year) for the 100,000 Mile Standard; 

- Code of Federal Regulations, Part 88 - Clean-Fuel Vehicles, Subpart A- Emission 

Standards for Clean-Fuel Vehicles, Section 88.104-94- Clean-fuel vehicle tailpipe 

emission standards for light-duty vehicles and light-duty trucks, Tables AI 04-2, AI 04-4, 

AI 04-6; and 

-EPA Federal and California Exhaust and Evaporative Emission Standards for LightDuty Vehicles and Light-Duty Trucks, February 2000. EPA420-B-OO-OO 1, which is 

available at http://wwv.J.epa.Qov/otag/stds-ld.htm. 
I~DV Vehicle NOx NJ10G co 

Class (grams per mile) (grams per mile) (grams per mile) 

0.3 0.090 4.2 

LD'J'1 0.3 0.090 4.2 --

LDT2 0.5 0.130 5.5 

LDT3 (0-3,750 ALVWl 0.6 0.180 5.0 

LDT3 (3,751··5,750 ALVW) 1.0 0.230 6.4 

LDT4 1.5 0.280 7.3 

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

the 2001 model year, the majority of the light-duty vehicles purchased around the 

country met LEV or better requirements. Therefore, if subject fleets were going to 

purchase "LEV -or-better" vehicles anyway, the CFF requirements were redundant for 

most light-duty purchases beginning with the 2001 model year. Certainly, there were 

exceptions to this, but the phase-in of the Tier 2 standards from the 2004-2007 model 

years make the CFF requirements redundant for all subject vehicles. 

Therefore, staff believes there is no requirement for Texas to provide a substitute 

program that will yield equivalent benefits to the TCF program. The primary benefits of 

the TCF program are the result of subject fleets having purchased "LEV -or-better" 

vehicles in the 1999 and 2000 model years, prior to the introduction of the NLEV 

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

emitting Tier 1 vehicles. These 1999 and 2000 "LEV or better" vehicles are still 

operating on the road today and still yielding benefits, which would only be removed if 

the TCEQ now required those fleets to replace these older "LEV -m·-better" vehicles with 

equivalent 1999 and 2000 model year Tier 1 vehicles. 

The TCEQ is simply proposing to repeal the redundant "LEV -or-better" requirement for 

new vehicle purchases. In short, there are no new additional benefits to be gained from 

the TCF program, but the current benefits fi~om existing TCF vehicles shall remain. 

In their comments, EPA references a July 21, 2005 letter to manufacturers (CCD-05-12). 

Provided below are excerpts from this letter: 

"Subsequent to publishing its CFV regulations, EPA has promulgated new 

emission standards that are generally more stringent than or equivalent to the 

CFV emission standards for light-duty vehicles, light-duty trucks, and heavy-duty 

engines." 

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

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

LDV 

LDTl 

LDT2 

LDT3 

Bins 1-7 and Bin 9 

Bins 1-7 and Bin 9 

Bins 1-9 

Bins l-10 
'I 

LDT4 

MDPV 

Bins 1-10 

Bins 1-11" 

"The following determinations are made for 2005 and later model year Otto cycle 

heavy-duty vehicles: 

8,501-10,000 GVWR Otto-cycle heavy-duty vehicle chassis standards are 

more stringent than the CFV Otto cycle heavy-duty engine LEV emission 

standard. 

10,001-14,000 GVWR Otto-cycle heavy-duty vehicle chassis standards 

are more stringent than the CFV Otto cycle heavy-duty engine LEV 

emission standard. 

The following determinations are made for 2005 and later model year heavy-duty 

Otto cycle engines and diesel engines: 

Current emission standards for heavy-duty engine Otto cycle engines and 

diesel engines are more stringent than CFV LEV heavy-duty Otto cycle 

engines, or heavy-duty diesel engine emission standards." 

The excerpts from the July 21, 2005 letter provided above support the TCEQ position 

that any vehicle purchased beginning with the 2007 model year is going to meet the 

"LEV -or-better" benchmark. Provided below are the full useful life Tier 2 standards 

extracted from Table S04-1 in EPA's February 10,2000 Tier 21 Low Sulfur Final Rule. 

Also provided are excerpts from the qualifying notes whichaccompany the table. 

Bin NOx NMOG co 

Number (grams per mile) (grams per mile) (grams per mile) 

11 0.90 0.280 7.3 

10 0.60 0.15610.230 4.216.4 

9 0.30 0.090 I 0.180 4.2 

8 0.20 0.125 I 0.156 4.2 

7 0.15 0.090 4.2 

6 0.10 0.090 4.2 

5 0.07 0.090 4.2 

4 0.04 0.070 I 2.1 

3 0.03 0.055 2.1 

2 0.02 0.010 2.1 

I 0.00 0.000 0.0 

Notes: 

- Bins 9-11 are deleted at end of 2006 model year (end of 2008 model year for HLDTs 

and MDPVs). 

- Higher NMOG and CO values for Bins 8-10 are for HLDTs and MDPV s only. 

-Bin ll is for MDPVs only. 
- Higher NMOG standard of 0.156 grams~per~mile for Bin 8 deleted at end of 2008 

model year. 

Shown below is an extract from the file entitled "T2EXH.D", which is provided with the 

latest version of the MOBILE6.2 model, available at http://www.epa.gov/otag/m6.htm. 

This table summarizes the assumed distribution of Tier 2 vehicles by vehicle class and 

bin for the 2007 model year: 

Bin Vehicle Class 

Number LDV LDTJ LDT2 LDT3 LDT4 

I 0% 0% 0% 0% 0% 

2 10% 10% 0% 0% 0% 

3 30% 30% 0% 0% 0% 

4 20% 20% 0% 0% 0% 

5 40% 40% 40% 0% 0% 

6 0% 0% 30% 0% 0% 

7 0% 0% 30% 0% 0% 

8 0% 0% 0% 100% 100% 

9 0% 0% 0% 0% 0% 

10 0% 0% 0% 0% 0% 

11 0% 0% 0% 0% 0% 

Total 100% 100% 100% 100% 100% 

As shown, all of the 2007 LDVs and LDTls are assumed to be Bin 5 or better. For NOx, 

VOC, and CO, the Tier 2 Bin 5 useful life standards of0.07, 0.09, and 4.2 grams-permile, respectively, are all equal to or less than the LEV NOx, VOC, and CO standards for 

LDVs and LDT1 s of 0.3, 0.09, ancl4.2 grams-per-mile, respectively. 

The 2007 LDT2s are assumed to be Bin 7 or better. For NOx, VOC; and CO, the. Tier 2 

Bin 7 useful life standards of0.15, 0.09, and 4.2 grams-per-mile, respectively, are all 

equal to or less than the LEV NOx, VOC, and CO standards for LDT2s of 0.5, 0.13, and 

5.5 grru:ns-per-mile, respectively. 

The 2007 LDT3s and LDT4s are assumed to be in Bin 8. For NOx, VOC, and CO, the 

Tier 2 Bin 8 useful life standards of0.2, 0.125, and 4.2 grams-per-mile, respectively, are 

all equal to or less than the LEVNOx, VOC, and CO standards for 0-3,750 ALVW 

LDT3s of 0.6, 0.18, and 5.0 grams-per-mile, respectively. Even the higher 0.156 NMOG 

Bin 8 standard whicl:t expires with the 2008 model year is less than the LEV LDT3 0.18 

NMOG standmd. For this example, the 0-3,750 ALVW LDT3 LEV standards were used 

because they are more stringent tban the LEV standards for both 3,751-5,750 ALVW 

LDT3s and LDT4s. 

Provided below is a similar distribution of vehicle class by Tier 2 bin for the 2009 model 

year: 
Bin Vehicle Class 

Number LDV LDTJ LDT2 LDT3 LDT4 

1 0% 0% 0% 0% 0% 

2 25% 25% 0% 0% 0% 

3 55% 55% 0% 0% 0% 

4 10% 10% 20% 0% 0% 

5 10% 10% 20% 74% 0% 

6 0% 0% 30% 0% 0% 

7 0% 0% 30% 0% 0% 

8 0% 0% 0% 26% 100% 

9 0% 0% 0% 0% 0% 

10 0% 0% 0% 0% 0% 

11 0% 0% 0% 0% 0% 

Total 100% 100% 100% 100% 100% 

As shown, any Tier 2 vehicle purchased in 2007 or later will meet the "'LEV or better" 

benchmark required by the CFF guidance. Even though the July 21, 2005 EPA letter 

implied that LDV and LDT1 Tier 2 vehicles for Bin 8 would not meet "'LEV or better", 

the MOBILE6 model assumes that there are no Bin 8 LDVs and LDT1s. Similarly, the 

EPA letter implied that LDT2 vehicles for Bins 1 0 and 11 would not· meet "LEV or 

better", but the MOBILE6 model assumes that no Bins 10 and 11 LDT2s exist for 2007-

and-later. Finally, the EPA letter implied that LDT3 and LDT4 Bin 11 vehicles would 

not meet "LEV or better", but MOBILE6 assumes that no 2007-and-later Bin 11 vehicles 

exist. In fact, EPA's Tier 2 rule clearly states that Bin 11 is for lviDPV s only. 

Staff believes a similar demonstration is not necessary for heavy-duty emission standards 

because the July 21, 2005 EPA letter clearly indicated that a112005-and-later heavy-duty 

vehicle emission standards are more stringent than CFV LEV standards for heavy-duty 

vehicles. As shown, staff believes it is not premature, (i.e., reference EPA's comment 

that "it would, therefore, be premature to assert that either the Tier IT or HDDE standards 

have superseded the CFF standards"). 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the repeal of 

§§114.3, 114.150, 114.151, and 114.153- 114.157 without changes as published in the November 25, 

2005, issue of the Texas Register (30 TexReg 7824). 

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

the state implementation plan (SIP) addressing the repeal of these rules. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

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

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

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

under the FCFF Program. 

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

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

nonattainment of the national ambient air quality standards (NAAQS) for ozone and carbon monoxide 

(CO). The federal program mandates increasing percentages of LEV purchases by the affected fleets 

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

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

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

1 
In 1994, the commission submitted the state's opt-out program in a SIP revision to the EPA and 

adopted rules to implement the Texas Alternative Fuel Fleet Program as a substitute to the FCFF 

Program in the areas of Texas classified by EPA as being in serious, severe, or extreme nonattainment 

of the NAAQS for ozone or CO. 

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

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

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

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

In response, the commission adopted regulations to implement the modified program and developed a 

revision to the SIP outlining the state's substitute program to the FCFF Program. However, the 75th 

Legislature met in 1997 and removed the commission's authority to require the program in moderate 

nonattainment areas through passage of SB 681. This new legislation limited the commission's 

authority to the serious and above ozone nonattainment areas. In addition, SB 681 modified the state's 

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

modified the implementation schedule, added an additional exception from the program, and altered the 

grandfathering provisions of the statute. This new legislation required the commission to adopt 

regulations to implement the program. 

On December 16, 1997, the EPA finalized federal regulations for the National Low Emission Vehicle 

(NLEV) Program. The NLEV Program was developed to allow manufacturers to commit to meet 

tailpipe standards for cars and light-duty trucks that were more stringent than the EPA could mandate 

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

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

emission reductions achieved through the NLEV Program to offset any shortfall in emission reductions 

resulting from the state's substitute for the FCFF Program. 

On July 29, 1998, the commission adopted regulations and a revision of the Texas Clean Fleet (TCF) 

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

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

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

implement SB 681. 

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

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

trucks that were 77% - 95% cleaner than the current emission standards. The new emission standards 

set a corporate average standard for nitrogen oxides of 0.07 grams per mile for all classes of passenger 

vehicles beginning in 2004. This includes all light-duty trucks, as well as the largest SUVs. Vehicles 

weighing less than 6,000 pounds will be phased-in to this standard between 2004 and 2007. Later that 

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

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

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

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

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

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

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

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

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

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

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

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

LEV standards have been superseded by the cleaner federal Tier II emission standards that were 

promulgated in February 2000 and the federal 2004 heavy-duty engine emission standards that were 

promulgated in October 2000. As a result of these new emission standards, requiring fleets to comply 

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

emissions from fleet vehicles. In addition, the continued implementation of a mandatory vehicle 

purchase program is diminished due to programs such as the Texas Emissions Reduction Plan (TERP), 

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

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

incentives to private, local government (including school districts), and mass transit fleets to voluntarily 

purchase the cleanest vehicles possible that meet their operational needs. 

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

certified by the EPA to either the federal Tier II emission standards or the federal 2004 heavy-duty 

engine emission standards, both of which are cleaner than the federal LEV standards currently required 

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

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

In conjunction with the repeal of these rules, the commission has revised the SIP to remove the TCF 

Program as an ozone control strategy since the federal emission standards for model year 2004 and 

later light-duty and heavy-duty motor vehicles are more stringent than those required by the FCFF 

Program as outlined in the FCAA. The federal emission standards for HDDE in model years 2004-

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

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

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

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

nonattainment areas. 

SECTION BY SECTION DISCUSSION 

This rulemaking action repeals §114.3 in Subchapter A and §§114.150, 114.151, and 114.153-

114.157, Subchapter E, in its entirety, in accordance with the directive indicated by SB 1032 by the 

79th Legislature. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the repeals in light of the regulatory analysis requirements of Texas 

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

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

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

5 
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 repeal eliminates commission rules that require mass transit 

authorities, private companies, and local government fleets in the HGB, DFW, and El Paso ozone 

nonattainment areas to ensure that a specified percentage of their new fleet vehicle purchases are 

vehicles certified by the EPA as LEVs under the federal LEV standards. The adopted action is a rules 

repeal, and it is not specifically intended to protect the environment or reduce risks to human health 

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

program is unlikely to adversely affect in a material way the economy, a sector of the economy, 

productivity, competition, or jobs. Under TERP, the commission's Emissions Reduction Incentive 

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

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

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

or public health and safety. Because the repeal does not adversely affect in a material way the 

economy, a sector of the economy, productivity, competition, jobs, the environment, or the public 

health and safety of the state or a sector of the state, the repeal does not fit the Texas Government 

Code, §2001.0225, definition of "major environmental rule." 

Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory 

impact analysis. Because the adopted repeals do not constitute a major environmental rule, a 

regulatory impact analysis is not required. 

6 
TAKINGS IMPACT ASSESSMENT 

Under Texas Government Code, §2007.002(5), "taking" means: 1) a governmental action that affects 

private real property, in whole or in part or temporarily or permanently, in a manner that requires the 

governmental entity to compensate the private real property owner as provided by the Fifth and 

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

or 2) a governmental action that affects an owner's private real property that is the subject of the 

governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or 

limits the owner's right to the property that would otherwise exist in the absence of the governmental 

action; and is the producing cause of a reduction of at least 25% in the market value of the affected 

private real property, determined by comparing the market value of the property as if the governmental 

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

in effect. 

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

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

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

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

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

Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that the repeal relates to an action or actions subject to the Texas Coastal 

Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended 

7 
(Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, 

Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 

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

commission rules governing air pollutant emissions must be consistent with the applicable goals and 

policies of the CMP. The commission reviewed this action for consistency with the CMP goals and 

policies in accordance with the regulations of the Coastal Coordination Council and determined that the 

repeal is consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and 

preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC 

§501.14(q), which requires that the commission protect air quality in coastal areas. The rulemaking 

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

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

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

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

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Chapter 114 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits 

Program; therefore, owners or operators subject to the federal operating permit program must, 

consistent with the revision process in Chapter 122, revise their operating permit to include the revised 

Chapter 114 requirements at their sites affected by the revisions to Chapter 114. 

PUBLIC COMMENT 

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

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

8 
at 12100 Park 35 Circle, but no oral comments were received. The public comment period closed at 

5:00p.m. on January 17, 2006. Written comments were submitted by the Houston Regional Group of 

Sierra Clubs (Sierra Club-Houston) and EPA. Sierra Club-Houston and EPA did not indicate whether 

they were for or against the adoption of the rule but provided specific comments on the rule. 

RESPONSE TO COMMENTS 

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

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

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

from motor vehicle fleets. Sierra Club-Houston commented that although these proposed repeals are 

predicated by Texas Legislature, the commission should look at its control strategies to determine 

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

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

program with the development of cleaner vehicles. As emissions standards for vehicles and 

engines have improved and become as stringent or more stringent than the TCF program, the 

commission has recognized the need for consistency and clarity with the Clean Fuel Fleet (CFF) 

requirements. At its inception, the TCF program was the state's substitute for the federal Clean 

Fuel Fleet program, and was developed to provide greater long-term emissions reductions 

through participation by private and government entities. With the development of cleaner 

running vehicles through the Tier II and heavy-duty diesel engines (HDDE) standards 

requirements, these same participating entities are continuing to provide for long-term emissions 

9 
reductions by purchasing and replenishing their fleets with these cleaner vehicles. The 

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

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

do take issue with the substitute measures that are proposed to be used in its place. EPA commented 

that, as allowed by §182(c)(4)(B) of the 1990 Clean Air Act, the State of Texas could substitute its 

TCF program with any program that results in as much or greater long-term emissions reductions as 

the federal Clean Fuel Fleet program. However, EPA further commented that Tier II or heavy-duty 

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

that only certain vehicles and engines certified to current Part 86 emissions standards are either as 

stringent or more stringent than federal CFF emissions standards, and that it would be premature to 

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

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

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

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

to be used in place of the TCF program. As stated in the comments, §182(c)(4)(B) of the 1990 

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

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

under part C of subchapter II of this chapter, or the percentage thereof attributable to the 

portion of the clean-fuel vehicle program for which the revision is to substitute." (emphasis 

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

10 
more fully in the following paragraph, this revision will result in emission reductions in at least 

equal amounts to those achieved prior to the repeal of the TCF program. 

The August 1998 Clean Fuel Fleet Program Implementation Guidance (EPA420-R-98-011) states 

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

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

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

or better requirements. Therefore, if subject fleets were going to purchase "LEV -or-better" 

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

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

standards from the 2004 - 2007 model years make the CFF requirements redundant for all 

subject vehicles. 

The primary benefits of the TCF program are the result of subject fleets having purchased 

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

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

Tier 1 vehicles. 

The TCEQ is simply proposing to repeal the redundant "LEV-or-better" requirement for new 

vehicle purchases. In short, there are no new additional benefits to be gained from the TCF 

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

11 
Due to various factors, including existing vehicle emission requirements, the TCF program does 

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

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

reductions of 4.937 tons per day for Houston-Galveston-Brazoria, Dallas-Fort Worth, and El 

Paso County combined. The VOC benefits were not broken out by area in this SIP or any other 

subsequent SIP. No Attainment Demonstration SIP benefit was ever claimed because no NOx 

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

Demonstration SIP benefit is that the NLEV program was initiated at the same time, thus 

introducing LEV vehicles nationwide with the 2001 model year. Further, the TCEQ submitted 

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

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

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

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

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

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

to the State Implementation Plan (SIP) for the Substitution of the Federal Clean Fuel Fleets 

Program, July 29, 1998, Appendix B, Page 14). Consequently, the repeal of this program results 

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

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

requirements. 

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

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

12 
the TCF program have been claimed or credited in attainment demonstrations for these SIPs. 

Additionally, due to the timing of the development of the Beaumont-Port Arthur (BPA) EightHour Ozone Attainment Demonstration SIP adopted by the commission on September 28, 2005, 

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

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

program were surpassed by federal Tier 2 standards beginning with model year 2004 vehicles 

making the TCF requirements redundant. This occurred well before the development of the BP A 

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

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

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

the TCF program, thus making these programs more accurately identifiable as the most current 

reasonably available control measures (RACM). Repealing the TCF program, a program for 

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

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

An analysis of the TCF program and the NLEV program is available on the TCEQ website at 

www.tceq.state.tx.us/implementationlair/sip/apr2006txled.html. 

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

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

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

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

13 
Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas, in 

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

Transfer Operations, provide additional emission reductions in furtherance of buttressing the 

repeal of the Clean Fleet Program with substantive credits. These identified reductions totaled 

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

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

reductions resulting from state mandated reduction requirements placed on electric generating 

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

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

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

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

of the state's Clean Fleet Program. (See the February 7, 2001, issue of the Federal Register (66 

FR 9203)). Irrespective of the fact that the repeal will not result in a loss of reductions, the use of 

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

state's 1998 SIP revision for Federal Clean Fuel Fleet substitute program. Such reductions not 

previously claimed or credited in SIP attainment demonstrations, along with reductions incurred 

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

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

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

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

for replacing older equipment or vehicles with newer, cleaner vehicles or equipment. These 

voluntary programs will continue to encourage turnover at a more accelerated pace. The 

commission did not revise the rule as a result of this comment. 

14 
STAFF 

RECOMMENDATIONS 
CHAPTER 114: CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES 

SUBCHAPTER A: DEFINITIONS 

[§114.3] 

§114.3. Low Emission Vehicle Fleet Defmitions. 

1 
CHAPTER 114: CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES 

[SUBCHAPTER E: LOW EMISSION VEIDCLE FLEET REQUIREMENTS] 

[§§114.150, 114.151, 114.153 - 114.157] 

§114.150. Requirements for Mass Transit Authorities. 

§114.151. Requirements for Local Governments and Private Entities. 

§114.153. Exceptions. 

§114.154. Exceptions for Certain Mass Transit Authorities. 

§114.155. Reporting. 

§114.156. Record Keeping. 

§114.157. Low Emission Vehicle Fleet Program Compliance Credits. 

2 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

·k:\E- ~~ )oo!l: Tt=.Y'll~ 

COUNTV OF TRAVIS 

l hereby certify that tn1s is a true and correct copy of a 

Texas Commission on Environmental Quality document, 

which is filed in the permanent records of the COmmi&lion. 

Given un er my han and the seal of office on 

U1 onne Castanuale, Chief Clerk 

'Texas Commission on Environmental Quality 

ORDER ADOPTING REPEALED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2005-1444-RUL 

On April 26, 2006, the Texas Cmmnission on Environmental Quality (Commission), during a 

public meeting, considered adoption of the repeal of§§ 114.3, 114.150, 114.151, and 114.153- 114.157. 

The Commission adopts the repeals in Chapter 114, Control of Air Pollution from Motor Vehicles; and 

corresponding revisions to the state implementation plan (SIP). Under Tex. Health & Safety Code Ann. §§ 

382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the authority to control the quality of 

the. state's air and to issue orders consistent with the policies and purposes of the Texas Clean Air Act, 

Chapter 382 of the Tex. Health & Safety Code. The proposed repeals were published for comment in the 

November 25, 2005, issue of the Texas Register (30 TexReg 7824). 

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code Chapter 

2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations § 51.102 and after proper 

notice, the Commission conducted a public hearing to consider the repealed rules and revisions to the SIP. 

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date of the 

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

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The 

public was invited to submit data, views, and recommendations on the proposed repealed rules and SIP 

revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled 

hearing, copies of the proposed repealed rules and SIP revisions were available for public inspection at the 

Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed repealed rules and 

SIP revisions were submitted to the Commission during the comment period, and were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The 

Commission finds that the analysis of testimony includes the names of all interested groups or associations 

offering comment on the proposed repealed rules and the SIP revisions and their position concerning the 

same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the repealed rules and revisions to 

the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes 

staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 
requirements. The adopted repealed rules and the preamble to the adopted repealed rules and the revisions 

to the SIP are incorporated by reference in this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted repealed rules and revisions to the 

SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal 

Clean Air Act, § 110, codified at 42 U.S. Code Ann. §§ 7410- 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Tex. Gov't Code, § 2001.033 (Vernon 2000 & Vernon Supp. 2005). 

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: .MAY 0 3 2006 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
SUBCHAPTER D. RULES AND PROCEDURES

FOR COUNCIL OFFICERS, COUNCIL

EMPLOYEES, DONORS AND DONATIONS

25 TAC §§460.201 - 460.204

STATUTORY AUTHORITY

The repeals are authorized by Government Code, §531.0055;

and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation

and provision of health and human services by the department

and for the administration of Health and Safety Code Chapter

1001.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on May 1, 2006.

TRD-200602410

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 21, 2006

Proposal publication date: January 13, 2006

For further information, please call: (512) 458-7111, x6972

SUBCHAPTER E. HISTORICALLY

UNDERUTILIZED BUSINESS PROGRAM

25 TAC §460.211

STATUTORY AUTHORITY

The repeal is authorized by Government Code, §531.0055; and

Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and

provision of health and human services by the department and

for the administration of Health and Safety Code, Chapter 1001.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on May 1, 2006.

TRD-200602411

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 21, 2006

Proposal publication date: January 13, 2006

For further information, please call: (512) 458-7111, x6972

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 114. CONTROL OF AIR

POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (TCEQ or

commission) adopts the repeal of §§114.3, 114.150, 114.151,

and 114.153 - 114.157 without changes as published in the

November 25, 2005, issue of the Texas Register (30 TexReg

7824).

The commission will submit to the United States Environmental

Protection Agency (EPA) revisions to the state implementation

plan (SIP) addressing the repeal of these rules.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

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

§182(c)(4), required states to either adopt the Federal Clean

Fuel Fleet (FCFF) Program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions

in ozone-producing and toxic air emissions equal to those

achieved under the FCFF Program.

The FCFF Program requires federal, state, and local governments, and private eets to purchase low emission vehicles

(LEVs) in areas classied by the EPA as being in serious,

severe, or extreme nonattainment of the national ambient air

quality standards (NAAQS) for ozone and carbon monoxide

(CO). The federal program mandates increasing percentages of

LEV purchases by the affected eets in the covered nonattainment areas in vehicle model years 1999, 2000, and 2001.

The State of Texas, in a committal SIP revision submitted to the

EPA on November 15, 1992, opted out of the FCFF Program in

order to implement a eet emission control program designed by

the state.

In 1994, the commission submitted the state’s opt-out program

in a SIP revision to the EPA and adopted rules to implement

the Texas Alternative Fuel Fleet Program as a substitute to the

FCFF Program in the areas of Texas classied by EPA as being

in serious, severe, or extreme nonattainment of the NAAQS for

ozone or CO.

In 1995, the 74th Legislature modied the state’s alternative fuels program through the passage of Senate Bill (SB) 200. The

legislature facilitated fuel neutrality through the incorporation of

the federal LEV standards for certain affected eets regardless

of fuel type. The legislation required the commission to adopt

regulations to implement the program in all ozone nonattainment

areas.

In response, the commission adopted regulations to implement

the modied program and developed a revision to the SIP outlining the state’s substitute program to the FCFF Program. However, the 75th Legislature met in 1997 and removed the commission’s authority to require the program in moderate nonattainment areas through passage of SB 681. This new legislation limited the commission’s authority to the serious and above ozone

nonattainment areas. In addition, SB 681 modied the state’s

alternative fuels program. The legislature retained the basic requirement of LEV purchases, but modied the implementation

schedule, added an additional exception from the program, and

altered the grandfathering provisions of the statute. This new

legislation required the commission to adopt regulations to implement the program.

On December 16, 1997, the EPA nalized federal regulations

for the National Low Emission Vehicle (NLEV) Program. The

ADOPTED RULES May 12, 2006 31 TexReg 3877
NLEV Program was developed to allow manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that

were more stringent than the EPA could mandate prior to 2004.

The EPA made a nal determination on implementation of NLEV

on March 2, 1998. With the NLEV Program successfully implemented nationally, the commission was able to use emission

reductions achieved through the NLEV Program to offset any

shortfall in emission reductions resulting from the state’s substitute for the FCFF Program.

On July 29, 1998, the commission adopted regulations and a

revision of the Texas Clean Fleet (TCF) SIP to set forth the

LEV requirements for mass transit eets in each of the serious

and above nonattainment areas, and for local government and

private eets operated primarily within the serious and above

nonattainment areas. These rules satised the state requirements to adopt rules to implement SB 681.

On February 10, 2000, the EPA nalized federal regulations for

the Tier II emission standards for all passenger vehicles, including sport utility vehicles (SUVs), minivans, vans, and light-duty

trucks that were 77% - 95% cleaner than the current emission

standards. The new emission standards set a corporate average standard for nitrogen oxides of 0.07 grams per mile for all

classes of passenger vehicles beginning in 2004. This includes

all light-duty trucks, as well as the largest SUVs. Vehicles weighing less than 6,000 pounds will be phased-in to this standard between 2004 and 2007. Later that same year on October 6, 2000,

the EPA nalized federal regulations for emission standards for

model year 2004 and newer heavy-duty diesel engines (HDDE)

and vehicles that were equivalent to the ultra low emission vehicle (ULEV) standards under the FCFF Program.

In June 2005, the state statutes requiring the commission to

establish and implement LEV requirements for mass transit

eets and for private and local government eets (i.e., the TCF

Program) as codied in Texas Health and Safety Code (THSC),

Chapter 382, Subchapter F, were repealed by SB 1032 by the

79th Legislature, 2005. The commission’s rules in §§114.3,

114.150, 114.151, and 114.153 - 114.157 implementing these

statutes required mass transit authorities, private companies,

and local government eets in the Houston-Galveston-Brazoria

(HGB), Dallas-Fort Worth (DFW), and El Paso ozone nonattainment areas to ensure that a specied percentage of their new

eet vehicle purchases were vehicles that had been certied by

the EPA to the federal LEV standards.

The commission recommended that the Texas Legislature repeal these enabling statutes because the LEV standards have

been superseded by the cleaner federal Tier II emission standards that were promulgated in February 2000 and the federal

2004 heavy-duty engine emission standards that were promulgated in October 2000. As a result of these new emission standards, requiring eets to comply with a mandatory LEV percentof-purchase requirement is no longer an effective method to reduce emissions from eet vehicles. In addition, the continued

implementation of a mandatory vehicle purchase program is diminished due to programs such as the Texas Emissions Reduction Plan (TERP), the commission’s Emissions Reduction Incentive Grants Program, Clean Cities, Congestion Mitigation and Air

Quality (CMAQ) Improvement Program, and EPA fund programs

that provide nancial incentives to private, local government (including school districts), and mass transit eets to voluntarily

purchase the cleanest vehicles possible that meet their operational needs.

The adopted repeal of these rules has no impact on the emissions from eets since new eet vehicles are being certied by

the EPA to either the federal Tier II emission standards or the federal 2004 heavy-duty engine emission standards, both of which

are cleaner than the federal LEV standards currently required

under these rules. In addition, the repeal removes an administrative burden since the affected eets will no longer be required

to submit biennial eet compliance reports to the commission.

In conjunction with the adopted repeal of these rules, the commission has revised the SIP to remove the TCF Program as

an ozone control strategy since the federal emission standards

for model year 2004 and later light-duty and heavy-duty motor

vehicles are more stringent than those required by the FCFF

Program as outlined in the FCAA. The federal emission standards for HDDE in model years 2004 - 2006 are equivalent to

the heavy-duty ULEV standards under the FCFF Program and

the federal standards for HDDE in model years 2007 and later

are approximately 90% cleaner than ULEV. The emission reductions achieved by the Tier II and HDDE standards far surpass

the emission reductions that would be expected from implementation of the TCF Program in any of the state’s ozone nonattainment areas.

SECTION BY SECTION DISCUSSION

This rulemaking action repeals §114.3 in Subchapter A and

§§114.150, 114.151, and 114.153 - 114.157, Subchapter E, in

its entirety, in accordance with the directive indicated by SB

1032 by the 79th Legislature.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the repeals in light of the regulatory

analysis requirements of Texas Government Code, §2001.0225,

and determined that the repeals do not meet the denition of

a "major environmental rule." Under Texas Government Code,

§2001.0225, "major environmental rule" means a rule the specic intent of which is to protect the environment or reduce 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 repeal eliminates commission rules that require

mass transit authorities, private companies, and local government eets in the HGB, DFW, and El Paso ozone nonattainment

areas to ensure that a specied percentage of their new eet

vehicle purchases are vehicles certied by the EPA as LEVs under the federal LEV standards. The adopted action is a rules repeal, and it is not specically intended to protect the environment

or reduce risks to human health from environmental exposure.

The TCF Program regulated a sector of the economy. Repeal of

the program is unlikely to adversely affect in a material way the

economy, a sector of the economy, productivity, competition, or

jobs. Under TERP, the commission’s Emissions Reduction Incentive Grants Program provides nancial incentives to private,

local government (including school districts), and mass transit

eets to voluntarily purchase the cleanest vehicles possible that

meet their operational needs. This means that the repeal is also

unlikely to adversely affect in a material way the environment or

public health and safety. Because the repeal does not adversely

affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, or the public

health and safety of the state or a sector of the state, the adopted

repeal does not t the Texas Government Code, §2001.0225,

denition of "major environmental rule."

31 TexReg 3878 May 12, 2006 Texas Register
Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because

the adopted repeals do not constitute a major environmental rule,

a regulatory impact analysis is not required.

TAKINGS IMPACT ASSESSMENT

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

1) a governmental action that affects private real property, in

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

requires the governmental entity to compensate the private real

property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I,

Texas Constitution; or 2) a governmental action that affects an

owner’s private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently,

in a manner that restricts or limits the owner’s right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least

25% in the market value of the affected private real property, determined by comparing the market value of the property as if the

governmental action is not in effect and the market value of the

property determined as if the governmental action is in effect.

The commission completed a taking impact analysis for the repeal. The adopted repeal of the rules does not affect private

real property in a manner that requires compensation to private

real property owners under the United States Constitution or the

Texas Constitution. The repeals also do not affect private real

property in a manner that restricts or limits an owner’s right to the

property that would otherwise exist in the absence of the governmental action. Therefore, the adopted repeal does not cause a

taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that the adopted repeal relates to

an action or actions subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination Act

of 1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3) and 31

TAC §505.11(b)(2), relating to actions and rules subject to the

CMP, commission rules governing air pollutant emissions must

be consistent with the applicable goals and policies of the CMP.

The commission reviewed this action for consistency with the

CMP goals and policies in accordance with the regulations of

the Coastal Coordination Council and determined that the repeal is consistent with the applicable CMP goal expressed in 31

TAC §501.12(1) of protecting and preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC

§501.14(q), which requires that the commission protect air quality in coastal areas. The rulemaking action and SIP revision ensures that the repeal complies with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality

Standards, and 40 CFR Part 51, Requirements for Preparation,

Adoption, and Submittal of Implementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e).

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 114 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program; therefore, owners or operators subject to the federal operating permit program

must, consistent with the revision process in Chapter 122, revise

their operating permit to include the revised Chapter 114 requirements at their sites affected by the revisions to Chapter 114.

PUBLIC COMMENT

A public hearing on this rulemaking proposal was held in Austin,

Texas, on January 10, 2006, at 10:00 a.m. in Building E, Room

201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle, but no oral comments were

received. The public comment period closed at 5:00 p.m. on

January 17, 2006. Written comments were submitted by the

Houston Regional Group of Sierra Clubs (Sierra Club-Houston)

and EPA. Sierra Club-Houston and EPA did not indicate whether

they were for or against the adoption of the rule but provided specic comments on the rule.

RESPONSE TO COMMENTS

Sierra Club-Houston commented that the commission’s constant

changes to the Low Emission Vehicle Fleet requirements have

resulted in economic and operational inefciencies, higher costs

for businesses and consumers, disillusionment with the law, and

temporary or nonexistent reductions in air pollutants from motor

vehicle eets. Sierra Club-Houston commented that although

these proposed repeals are predicated by Texas Legislature,

the commission should look at its control strategies to determine

whether the strategies will be needed in the long term or are just

short-term stop-gap efforts.

The commission has made every effort to balance the effectiveness of the Texas Clean Fleet (TCF) program with the development of cleaner vehicles. As emissions standards for vehicles and engines have improved and become as stringent or

more stringent than the TCF program, the commission has recognized the need for consistency and clarity with the Clean Fuel

Fleet (CFF) requirements. At its inception, the TCF program was

the state’s substitute for the federal Clean Fuel Fleet program,

and was developed to provide greater long-term emissions reductions through participation by private and government entities. With the development of cleaner running vehicles through

the Tier II and heavy-duty diesel engines (HDDE) standards requirements, these same participating entities are continuing to

provide for long-term emissions reductions by purchasing and

replenishing their eets with these cleaner vehicles. The commission did not revise the rule in response to this comment.

EPA commented that although they do not oppose the repeal of

the Texas Clean Fleet program, they do take issue with the substitute measures that are proposed to be used in its place. EPA

commented that, as allowed by §182(c)(4)(B) of the 1990 Clean

Air Act, the State of Texas could substitute its TCF program with

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

engines (HDDE) standards programs could not be used as substitute programs. EPA commented that only certain vehicles and

engines certied to current Part 86 emissions standards are either as stringent or more stringent than federal CFF emissions

standards, and that it would be premature to assert that either

Tier II or HDDE standards have superseded the CFF standards.

EPA recommended that a demonstration be provided to show

what federal CFF credits need to be substituted by the state rule

credits that are beyond reasonably available control technology

(RACT) to fulll this requirement.

The commission appreciates the comment and EPA’s concern

related to the substitute measures to be used in place of the TCF

ADOPTED RULES May 12, 2006 31 TexReg 3879
program. As stated in the comments, §182(c)(4)(B) of the 1990

Clean Air Act permits a state to submit a revision to the state

implementation plan which "will achieve long-term reductions in

ozone-producing and toxic air emissions equal to those achieved

under part C of subchapter II of this chapter, or the percentage

thereof attributable to the portion of the clean-fuel vehicle program for which the revision is to substitute." (emphasis added)

Through this rulemaking, the TCEQ is repealing its Clean Fleet

Program. As described more fully in the following paragraph,

this revision will result in emission reductions in at least equal

amounts to those achieved prior to the repeal of the TCF program.

The August 1998 Clean Fuel Fleet Program Implementation

Guidance (EPA420-R-98-011) states that "Clean-Fuel Fleet

light duty standards are the same as for Low Emission Vehicles

(LEVs). . . ." With the advent of the National Low Emission

Vehicle (NLEV) program beginning in the 2001 model year,

the majority of the light-duty vehicles purchased around the

country met LEV or better requirements. Therefore, if subject

eets were going to purchase "LEV-or-better" vehicles anyway,

the CFF requirements were redundant for most light-duty purchases beginning with the 2001 model year. Certainly, there

were exceptions to this, but the phase-in of the Tier 2 standards

from the 2004 - 2007 model years make the CFF requirements

redundant for all subject vehicles.

The primary benets of the TCF program are the result of subject

eets having purchased "LEV-or-better" vehicles in the 1999 and

2000 model years, prior to introduction of the NLEV program.

Without the TCF program, these subject eets would have purchased higher emitting Tier 1 vehicles.

The TCEQ is simply proposing to repeal the redundant "LEV-orbetter" requirement for new vehicle purchases. In short, there

are no new additional benets to be gained from the TCF program, but the current benets from existing TCF vehicles shall

remain.

Due to various factors, including existing vehicle emission requirements, the TCF program does not currently provide for, or

result in reductions in ozone-producing and/or toxic air emissions. The Texas Clean Fleet SIP dated July 29, 1998, listed total

volatile organic compounds (VOC) reductions of 4.937 tons per

day for Houston-Galveston-Brazoria, Dallas-Fort Worth, and El

Paso County combined. The VOC benets were not broken out

by area in this SIP or any other subsequent SIP. No Attainment

Demonstration SIP benet was ever claimed because no NOx

benets were provided in the TCF SIP. One reason for not claiming an Attainment Demonstration SIP benet is that the NLEV

program was initiated at the same time, thus introducing LEV vehicles nationwide with the 2001 model year. Further, the TCEQ

submitted the following interpretation of results in the TCF SIP:

"The eet analysis presented in the Results section clearly indicates that the state’s substitute program, when combined with

the reductions attributed to the NLEV program as shown in Table

F, or with the reductions attributed to the state controls on fugitive

emissions and VOC transfer operations as shown in Table G, will

result in signicant more emission reductions than the FCFF program in all affected nonattainment areas in Texas when examined over the long term (10 years)." (Revisions to the State Implementation Plan (SIP) for the Substitution of the Federal Clean

Fuel Fleets Program, July 29, 1998, Appendix B, Page 14). Consequently, the repeal of this program results in reductions which

are equal to those achieved prior to the repeal. No additional

substitute emission reduction strategies are necessary in order

to fully satisfy the §182(c)(4)(B) statutory requirements.

Staff has determined that the Houston-Galveston-Brazoria

(HGB), Dallas-Fort Worth (DFW), and El Paso SIPs will not be

affected by the repeal because no reduction credits attributable

to the TCF program have been claimed or credited in attainment demonstrations for these SIPs. Additionally, due to the

timing of the development of the Beaumont-Port Arthur (BPA)

Eight-Hour Ozone Attainment Demonstration SIP adopted by

the commission on September 28, 2005, the region did not

benet from the TCF program and is also not affected by this

repeal. As stated in the BPA SIP, LEV emissions standards

outlined in the FCAA and referenced in the TCF program were

surpassed by federal Tier 2 standards beginning with model

year 2004 vehicles making the TCF requirements redundant.

This occurred well before the development of the BPA SIP.

Reduction credits claimed in the BPA attainment demonstration

SIP were limited to those achieved through the NLEV program

to avoid the possibility of "double counting" credits.

The availability and purchase of NLEV and Tier 2 vehicles have

provided more reductions than the TCF program, thus making

these programs more accurately identiable as the most current reasonably available control measures (RACM). Repealing

the TCF program, a program for which "zero" credits have been

accounted in SIP attainment demonstrations, does not interfere

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

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

Additionally, the TCEQ points to emission-reducing control

strategies, not required under the Clean Air Act, which result in

emission reductions beyond those achieved through the TCF

program. Specically, reductions achieved through the state’s

rules in 30 TAC §§115.352 - 115.359 in Subchapter D, Division

3, Fugitive Emission Control in Petroleum Rening, Natural

Gas/Gasoline Processing, and Petrochemical Processes in

Ozone Nonattainment Areas, in conjunction with requirements

in §115.211(a)(1) in Subchapter C, Volatile Organic Compound

Transfer Operations, provide additional emission reductions

in furtherance of buttressing the repeal of the Clean Fleet

Program with substantive credits. These identied reductions

totaled more than 535.3 tons per day of VOC statewide. These

requirements, identied in the TCF SIP, continue to be effective

and provide reductions. Additionally, identied excess NOx

emission reductions resulting from state mandated reduction

requirements placed on electric generating facilities (EGFs) by

the 76th Texas Legislature in Senate Bill 7 for the HGB and DFW

areas and identied as reductions used to make up any shortfall

between the TCF and the federal CFF programs continue to be

effective. The abundance of credits, beyond those necessary to

conform with the implementation of a substitute program, was

acknowledged by the EPA in its approval of the state’s Clean

Fleet Program. (See the February 7, 2001, issue of the Federal

Register (66 FR 9203)). Irrespective of the fact that the repeal

will not result in a loss of reductions, the use of these emissions

to cover any shortfall in the Texas Clean Fleet Program was

articulated in the state’s 1998 SIP revision for Federal Clean

Fuel Fleet substitute program. Such reductions not previously

claimed or credited in SIP attainment demonstrations, along

with reductions incurred as a result of the currently existing

NLEV and Tier 2 programs, should amply satisfy the concerns

31 TexReg 3880 May 12, 2006 Texas Register
raised by the EPA in connection with the Clean Fleet Program

repeal. The commission does not consider the currently existing NLEV and Tier 2 programs as substitute measures for

the TCF program. Additionally, the Clean Cities, CMAQ, and

TERP programs provide funding for replacing older equipment

or vehicles with newer, cleaner vehicles or equipment. These

voluntary programs will continue to encourage turnover at a

more accelerated pace. The commission did not revise the rule

as a result of this comment.

SUBCHAPTER A. DEFINITIONS

30 TAC §114.3

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code (TWC), §5.102,

concerning General Powers; §5.103, concerning Rules; and

§5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorize

the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017,

concerning Rules, which authorizes the commission to adopt

rules consistent with the policy and purposes of THSC, Chapter

382 (also known as the Texas Clean Air Act). The repeal is

also adopted under THSC, §382.002, concerning Policy and

Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of

public health, general welfare, and physical property; §382.011,

concerning General Powers and Duties, which authorizes the

commission to control the quality of the state’s air; §382.012,

concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan

for the control of the state’s air; and §382.019, which authorizes

the commission to adopt rules to control and reduce emissions

from engines used to propel land vehicles. Specically, the

repeal is adopted to implement the legislative mandate under

SB 1032, 79th Legislature, 2005.

The adopted repeal implements THSC, §§382.002, 382.011,

382.012, and 382.019, and SB 1032, 79th Legislature, 2005.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on April 27, 2006.

TRD-200602357

Stephanie Bergeron Perdue

Acting Deputy Director, Ofce of Legal Services

Texas Commission on Environmental Quality

Effective date: May 17, 2006

Proposal publication date: November 25, 2005

For further information, please call: (512) 239-0177

SUBCHAPTER E. LOW EMISSION VEHICLE

FLEET REQUIREMENTS

30 TAC §§114.150, 114.151, 114.153 - 114.157

STATUTORY AUTHORITY

The repeals are adopted under TWC, §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105, concerning General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission

to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of THSC, Chapter 382 (also known as

the Texas Clean Air Act). The repeals are also adopted under

THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general

welfare, and physical property; §382.011, concerning General

Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air

Control Plan, which authorizes the commission to prepare and

develop a general, comprehensive plan for the control of the

state’s air; and §382.019, which authorizes the commission to

adopt rules to control and reduce emissions from engines used

to propel land vehicles. Specically, the repeals are adopted to

implement the legislative mandate under SB 1032, 79th Legislature, 2005.

The adopted repeals implement THSC, §§382.002, 382.011,

382.012, and 382.019, and SB 1032, 79th Legislature, 2005.

This agency hereby certies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency’s

legal authority.

Filed with the Ofce of the Secretary of State on April 27, 2006.

TRD-200602358

Stephanie Bergeron Perdue

Acting Deputy Director, Ofce of Legal Services

Texas Commission on Environmental Quality

Effective date: May 17, 2006

Proposal publication date: November 25, 2005

For further information, please call: (512) 239-0177

CHAPTER 114. CONTROL OF AIR

POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (TCEQ

or commission) adopts amendments to §§114.6, 114.312,

114.313, and 114.315 - 114.318. Sections 114.6, 114.313,

114.315, 114.316, and 114.318 are adopted with changes to the

proposed text as published in the December 16, 2005, issue

of the Texas Register (30 TexReg 8407). Sections 114.312

and 114.317 are adopted without changes and will not be

republished.

The amended sections as adopted will be submitted to the

United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

On March 9, 2005, the commission adopted revisions to the low

emission diesel fuel (LED) rules (§§114.312 - 114.319) and submitted them as a SIP revision to the EPA on March 23, 2005.

Subsequently, EPA raised concerns with certain provisions of

§114.315 that give the state unilateral authority to accept alternative methods of compliance. Specically, EPA stated that subsections (b) and (c)(4)(C)(ii)(V) of §114.315 were problematic in

regard to EPA’s approval of the rule and SIP revision.

ADOPTED RULES May 12, 2006 31 TexReg 3881