Bryan W. Shaw, Ph.D., 

### Clwinnarz 

### Carlos Rubinstein, Commissioner Toby Baker, 

### Commissioner 

### Zak Covar; 

### Ewcutive Director 

# RECEIVED- 6PDL AIR PLANNING 

# SEC. 12 SEP 24 PM 5: 

# o-,
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas 

### by Reducing andPreventing Pollution 

## September 19,2012



## Samuel Coleman Acting Regional Administrator U.S. Environmental Protection Agency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 Dear Mr. Coleman: Docket No. 2009-2039-RUL Rule Project No. 2009-001-114-EN



## On August 22, 2012, the Texas Commission onEnvironmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP). The Commission adopted amendments to §§114.6, 114.312, and 114.314- 114.319, the repeal of §114.313 and new §114.313 in 30 TAC Chapter 114, Control ofAir Pollution from Motor Vehicles; and corresponding revisions to the SIP. The adoption revises definitions; establishes new designated alternative limits; removes expired registration requirements and establishes newregistration requirements; revises approval procedures for alternative diesel fuel formulations; specifies conditions for revocation ofadditive-based alternative diesel fuel formulations approvals; allows all alternative diesel formulations approvedbythe Commission prior to April1, 2012, to remain in effect; revises reporting requirements; requires quarterly compliance determinations for alternative emission reduction plans using the Unified Model; and removes expired earlygasoline sulfur reduction credits provisions. Enclosed are the proposedrevisions to the SIP, a public hearing certification, a complete record ofthe public hearing, andthe accompanying order. I look forward to your expeditious approval ofthese SIP revisions. Sincerely,

# !~::~!-' Chairman BWSjjmm 

## Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Jonathan Stinson, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is our customer service? tceq.texas.govjcustomersurvey

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

. THE STATE OF TEXAS

COUNTY OF TRAVIS Docket 

## No. 2009-2039-RUL Rule Project 

## No. 2009-001-114-EN



## This is to certifythat the attached electronic file is included andthatthe electronic file is a
true and correct copy ofdocuments for a revision tothe Texas State Implementation Plan, adopted onAugust 22, 2012, 

## pursuantto 40 

## Code ofFederal Regulations § 51.104. 

## I am the
records administratorfor theAir Quality Planning Division ofthe Texas Commission on Environmental Quality (Commission).

# ~~ Air Quality Division Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality Public Hearing April 26, 2012 Concerning Revisions to 30 TAC Chapter 114 Control of Air Pollution from Motor Vehicles and Corresponding Revision to the State Implementation Plan
Rule Project No. 2009-001-114-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (TCEQ or commission) held a public hearing in
Austin on April26, 2012, to receive testimony regarding proposed revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, and corresponding revisions to the state implementation plan.

The rulemaking revises definitions; specifies established newdesignated alternative limits forTexas
low emission diesel fuel properties; removes expired registration requirements and establishes new registration requirements for identifying production and importfacilities; revises approval procedures
for alternative diesel fuel formulations; specifies that the approvals ofall additive-based alternative
diesel fuel formulations would be subject to revocation ifthe composition ofthe additive is found to
be altered; allows all alternative diesel formulations approved by the TCEQ priorto April1, 2012, to
remain in effect; revises reporting requirements to include production and import facility data; requires alternative emission reduction plans using the Unified Model to determine compliance each
calendar quarter; removes expired early gasoline sulfur reduction credits provisions; and makes
other clarifying changes as needed for accuracy and consistency.

The comment period closed on April27, 2012. All testimony and comments have been reviewed
and seriously considered. This hearing record contains a complete record of the public hearings
and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations/Order

### Additional copies of this hearing record are maintained in the TCEQ Morris Brown at (512) 239-
1438.

# NOTICE 

# & PROPOSAL

### PUBLIC NOTIFICATION

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

1. Publication of notice of public hearing in the following newspapers on the date listed:
Austin American-Statesman: March 9, 2012 Fort Worth Star-Telegram: March 9, 2012 Houston Chronicle: March 9, 2012 San Antonio Express-News: March 9, 2012
2. Publication ofthe proposed rules in the March 23, 2012, issue ofthe Texas Register(37 TexReg 2009).

3. Publication of the Notice of Public Hearing in the March 23, 2012, issue of the Texas Register (37 TexReg 2099).

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 ofAustin, Mayor's Office City of Dallas, Department of Environmental Quality City of Dallas, Department of Aviation City of El Paso, Environmental Services City of Fort Worth, Environmental Management Department City of Houston, Department of Health and Human Services
East Texas Council of Governments

### El Paso Metropolitan Planning Organization
Federal Highway Administration
Galveston County Health District
Harris County Public Health and Environmental Services
Houston-Galveston Area Council
North Central Texas Council of Governments
South East Texas Regional Planning Commission
Texas Department of Transportation
Travis County Judge
Victoria Metropolitan Planning Organization Arkansas Department of Pollution Control and Ecology
Louisiana Department of Environmental Quality
New Mexico Environmental Department
Oklahoma Department of Environmental Quality
United States Environmental Protection Agency

### Example of Newspaper Classified Ad
San Antonio Express-News, 

### March 9, 2012

PUBLIC HEARING ON PROPOSED REVISIONS TO 30TAC CHAPTER 114 AND THE STATE IMPLEMENTATION PLANTheTexas Commission onEnvironmental Quality (commission) will conduct a public hearing to receive testimony concerning proposed amendments to 30 TAC Chapter 114, Control ofAir Pollution from Motor Vehicles; and cmTesponding revisions to the state implementationplan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental Protection Agency (EPA) regulations concerning SIPs. The proposed rulemaking would revise definitions; specify establish new designated alternative limits for Texas low emission diesel fuel properties; remove expired registration requirements and establish newregistration requirements for identifying production and import facilities; revise approval procedures for alternative diesel fuel formulations; specify that the approvals ofall additive-based alternative diesel fuel formulations would be subject to revocation ifthe composition ofthe additive is found to be altered; allow all alternative diesel formulations approved by the TCEQ prior to April!, 2012, to remain in effect; revise reporting requirements to include production and import facility data; require alternative emission reduction plans using the Unified Model to determine compliance each calendarquarter; remove expired early gasoline sulfur reduction credits provisions; and make other clarifying changes as needed for accuracy and consistency. The commission will hold a public hearing on this proposal in Austin onApril26, 2012, at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt oforal or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not bepermitted during the hearing; however, commission staff members will be available to discuss the proposa130 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact SandyWong, Office ofLegal Services at (512) 239-1802. Requests should be made as far in advance as possible. Written comments may be submitted to Charlotte Horn, MC 205, Office ofLegal Services, Texas Commission onEnvironmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments maybe submitted at: http://www5.tceq.texas.gov/rules/ecomments/. File size restrictions may apply to comments being submitted via the eCornments system. All comments should reference Rule Project Number 2009-001- 114-EN. The commentperiod closes April27, 2012. Copies ofthe proposed mlemaking can be obtained from the commission's Web site at http:/!www.tceq.texas.gov!nav/mles/propose_adopt.htrnl. For further information, please contact Morris Brown, Air Quality Division, at (512) 239-1438.

3/9!2012An agreed order was entere regarding Meriliol USA LLC, DocketNo. 2011-1608-AIR·E on Marc 7, 2012 assessing $21,625 in administra· tive penalties with .$4,325 d ferred. Information concerning any aspect ofthis order may be obtained by contacting Trina Grieco, En rcement Coordinator at(210) 403-4006, Texas Commission on Envir nmental Quality, P.O. Box. 13087, Austin, Texas 78711-3087. An agreed order was enter d regarding Cily ofMexia, Docket No. 2011-1644-MWD·E on Mach 7, 2012 assessing $15,900 in admin· istrative penalties with $3,1 0 deferred. Information concerning any aspect of this order may be obtained by contacting Jill Russell, Enfi rcement Coordinator at (512) 239-4564, Texas Commission on Envir nmental Quality, P.O. Box 13087, Austin, Texas 78711·3087. TRD-201201412 Bridget C. BOhllC Chief Clerk Texas Commission on Envir mental Quality Filed: March 14, 2012 

# + + 

# + Notice ofaPublic Hearin on Proposed Revisions to 30 TAC Chapter 30 The Texas Commission on nvironmental Quality (commission) will conduct a public hearing to eceive testimony regarding proposed re· visions to 30 TAC Chaplet' 0, Occupational Licenses and Registrations, §§30.24, 30.26, and 3 33, under the requirements ofTexas Wa· ter Code, §§5.102, 5.103, an 37.008; Texas Family Code, §232.0134 and §232.0135; Texas Occu ions Code, §55.004; and Texas Govern· ment Code, Chapter 2001, S bchapter B. The proposedrulemaking wo ld implementHouse Bill (HB) 965, 82nd Legislature, 2011,.relating t Class A and B Public Water System Op· erators and Class A and B astewater Treatment Facility Operators being able to certify their c tinuing education, when renewing their license. The proposed rules lso implement HB 1674, 82nd Legisla· ture, 2011, relating to the issu ceorrenewal ofalicense orregistration for applicants who have full to pay child suppo11 for six months or more. Additionally, the proposed les implement Senate Bill (SB) 1733, 82nd Legislature, 2011, rei ing to issuance ofa license to an appli· cant who is the spouse ofa p rson serving on active duty as amember ofthe armed forces ofthe U 'ted States and holds a current license issued by another state. TI1e commission will hold a ublic hearing on this proposal in Austin onAprill2, 2012, at 10:00 a.
. in BuildingE, Room 201S, at the commission's central office locat d at 12100 Park 35 Circle. The hearing is structured for the receipt oral or written comments by interested persons. Individuals may pr ent oral S1atements when called upon in order ofregistJ·ation. Open d cussion will not be permitted dming the hearing; however,. commissi n staffmembers will be available to dis· cuss the proposal 30 minutes prior to 1he headng. Persons who have special mmunication or other accommodation needs who are planning to ttend the hearing should contact Sandy Wong, Office ofLegal Servi es, at (512) 239-1802. Requests should be made as far 

### in advance as possible. Written comments may be ubmitted to Charlotte Hom, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711·3087, or faxed to (512) 239-4808. Elec nic conunents may be submitted at: 

### http://www5.tceq.texas. v/rules/ecommentsl. File size restric· tions may apply to co ents being submitted via the 

### eComments system. All commen s shotlld reference Rule Project Number 2011-044-030-WS. The ommentperiod closes April13, 2012. Copies ofthe proposed rulemal ing can be obtained from the commission's Web site at 

### http://www. ceq.texas.govlnavlru/es/propose_adopt.html. For furthel' information, lease contactTerry Thompson, Occupational Licensing Section, (512 239-6095. TRD-201201323 Robert Martinez Director, Environmental aw Division Texas Commission on E vlronmental Quality Filed: March 9, 2012 

# + + 

# + Notice ofaPublic Hearing on Proposed Revisions to 30 TAC Chapter 114 and State Implementation Plan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony concerning proposed amendments to 30 TAC Chapter ll4, Control ofAir Pollution from Motor Vehicles; and corresponding revisions to the state implemen· tation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental Protection Agency (EPA) regulations concerning SIPs. The proposed rulemaking would revise definitions; specify establish new designated alternative limits for Texas low emission diesel fuel properties; remove expired registration req\Jirements and establish new registration requirements for identifying production and import facili· ties; revise approvalprocedures for alternative diesel fuel formulations; specifY that the approvals ofall additive-based alternative diesel fuel tbrmulations would be subject to revocation ifthe composition ofthe additive is found to be altered; allow all alterttative diesel formulations approved bythe TCEQ priorto Aprill, 2012, to remainineffect; revise reporting requirements to include production and import facility data; require alternative emission reduction plans using the Unified Model 

### to determine compliance each calendar quarter; remove expired early gasoline sulfur reduction credits provisions; and make other clarifying changes as needed for accuracy and consistency. The commission will hold a public hearing on this proposal 

### in AuS1in onApril26, 2012, at 10:00 a.m. inBuildingE, Room 2018, atthe com· mission's central office located at 12100 Park 35 Circle, The hearing is structured for the receipt oforal or written comments by interested persons. Individuals may present oral statements when called upon in order ofregistration, Open discussion will notbe permitted during the hearing; however, commission staffmembers will be available to dis· cuss the proposal30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing shmJld contact Sandy Wong, Office ofLegal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Written comments may be submitted to Charlotte Horn, MC 205, Office of Legal**Service.~,** Texas Commission on Environmental Quality, P.O. Box. 13087, Austin, Texas 78711-3087, or faxed to (512) 239·4808. Electronic comments may be submitted at: 

### http://www5.tceq.texas.govlru/eslecomments!. File size restrictions may apply to comments being submitted via the 

### eComments system. All comments should reference Rule Project Number 2009-001-114-EN. The comment period closes April27, 2012. Copies of the proposed rulemaldng can be obtained fi"Om the commission's Web site at 

### http:llwww.tceq.texas.gov/navlrulel!lpr.opose_adopt.html.



## IN ADDITION March 23, 2012 37 TexReg 2099For further information, please contact Morris Brown, Air Quality Division, (512) 239-1438. nm-2o12o1325 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: March 9, 2012

# • • • Notice ofa Public Hearing on Proposed Revisions to 30 TAC Chapters 293 and 294 The Texas Commission on Envir mnental Quality (commission) will conduct a public hearing to recei e testimony regarding proposed l'e· visions to 30 TAC Chapter 293, Water Districts, §§293.19, 293.20, 293.22 and 293.23; and Chapter 94, Priority Groundwater Management At'eas, §§294.30 and 294.4

- 294.44, w1der the requirements of Texas Government Code, Chapte ·2001, Subchapter B. The proposed rulemaklng would mplement Senate Bills 313 and 660 from the 82nd Legislature, 2011 relating to the creation of ground· water conservation districts. in pri rity groundwatermanagement areas that were designated before Sept mber 1, 1997; the study and "desig· nation" ofnew priority groundwa crmanageme11t areas; the cmation of groundwater-conservation distri 

### ill new priority groundwater management areas; the definition of n affected person; and the reasons that an affected person may petiti nthe commission for an inquiry ofa groundwater conservation distric in a groundwater management area. The commission will hold a pub c hearing on this proposal in Austin onApri117, 2012, at 2:00p.m. i Building E, Rooni 201S, at the commission's central office located a 12100 Park 35 Circle. The. hearing is structured for the receipt ofor or written comments by interested persons. Individuals may presen oral statements when called upon in order ofregistration. Open disctl sion will not be permitted during the hearing; however, commission s ffmembers will be available to dis· cuss the proposal 

### 30 minutes pri r to the hearing. Persons who have special co needs who are planning to atte Wong, Office ofLegal Services be made as far in advance as po unication or other accommodation the hearing should contact Sandy t (512) 239·1802. Requests should ib1e. Written comments may be sub itted to Michael Pal'l'ish, MC 205, Office of Legal Services, Te s Commission on Environmental Quality, P.O. Box 13087, Au tin, Texas 78711-3087, or faxed to (512) 239-4808. Electroni comments may be submitted at: 

### http://www5.tceq.texas.gov/rules. ecommentsl. File size restrictions may apply to comme11ts eing submitted via the eComments system. All comments shou reference Rule Project Number 2011-054-294-0W. The co1nmen periodcloses April23, 2012. Copies ofthe proposed rulemaking ca be obtained (rom the commission's Web site at 

### http://www.tceq.tex s.govlnav/rule:I/propose_adopt.html. For further iltformation, please ontact Michael Chadwick, Ground· water Planning and Assessment earn, (512) 239-4517. TRD-201201319 Robert Martinez Director, Environmental Law Divi ion Texas Commission 

### on Envlronm tal Quality Filed: March 9, 2012

# • 

# • •

37 TexReg 2100 March 23, 2012 Texas Register Notice ofApplication and Oppottu tty 

### to Request 

### a Public Meeting for aNew Municipal Solid aste 

### Facility Registration Application No. 40261 Application. Stericycle, Inc., 28161

. Keith Drive, Lake Forest, Illinois 60045, has applied. to the Te as Commission on Environ· mental Quality (TCEQ) for proposed Registmtion No. 40261, to operate a Type V municipal solid w e Transfer Station. The proposed facility, Stericycle • El Paso, w 1be located at 5307 El Paso Drive, El Paso, Texas 79905, in El aso County. The Applicant is requesting authorization to lransti r and store municipal solid waste which includes medical waste non-hazardous pharmaceuti· cals, confidential documents, municip solid waste, and may accept Animal and Plant Health Inspection vices regulated waste. The registration application is available fi viewing and copying at the Clardy Fox Branch Library, 5515 Ro rt Alva Ave., El Paso, Texas**7990~** and may be viewed online a www.texaspennits.net. The following link to an electronic map · the site or facility's general location is provided .as a public courte 

### y and is not pa11 ofthe appli· cation or notice: http://www.tceq.te as.gov/assets/public/hb610/index.html7lat=31.770555&1ng=-106.42 222&zoom=13&type=r. For exact location, refer to application. Public Comment/Public Meeting. Wr en public comments or wdtten requests for a public meeting mus be submitted to the Office of ChiefClerk at the add!·ess included in he information section below, Ifapublic meetit1g 

### is held, comments ay be made orally 

### at the meeting

### or submitted in writil1g by the olose fthe public meeting. Apublic meeting will beheld by the executive d' ector ifrequested by amember ofthe legislature who represents the g neral ru·ea where the develop1nent is to be located, or ifthere is a 

### s bstantial public interest in the proposed development. Th!;: put'Pose f the public meeting is for the public to provide input for considera:f n by the commission, and for the applicant and the commission sta to provide information to the public. A public meeting is not a co ested case hearing. The exec· utive director will review and consid public comments and written requests for a public meeting.submitt d during the comment period. The comment period shall begin on t e date this notice is published and end 60 calendar days after this no ce is published. The comment pel'iod shall be extended to the close o any public meeting. The executive director is not 1-equired to file a r sponse to comments. Executive Director Action. The exec 've director shall, after review ofan application for registration, dete mine ifthe application will be approved orde11ied inwhole or in part. Ifthe executive director acts on an application, the chiefclerk shall m 'I or otherwise transmit notice ofthe action and an explanation ofth opportunity to file 

### a motion to overturn the executive director's deci ·on. The chiefclerk shall mail this notice to the owner and operator the public interest counsel, to adjacent landowners as shown on the r. quired land owne1·ship map and landowners list, and to other persons ho timely filed pt1blic comment in response to·public notice. Not all p ns on the mailing list for this notice will receive the notice letter fro the Office ofthe ChiefClerk. Information. Written public comme ts or requests to be placed on the permanent mailing list for this a plication should be submitted to the Office of the CJ1ief Clerk m 'I code MC 105, TCEQ, P.O. Box 13087, Austin, Texas 78711-308 Ol' electronically submitted to http://www10,tceq.state.tx.us/epic/ec nts/. Ifyou choose to communicate with the TCEQ electronically, lease be aware that your e-mail address, like your physical mailing a dress, will become part ofthe agency's public record. For informat n about this application or the registration process, individual mem ers ofthe general public may call the TCEQ Public Education Prog at 1-800-687-4040. General inforn1ation regarding the TCEQ ca be tbund at our web site at www.tceq.state.tx.us. Further inform ion may also be obtained fromBryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. Vickery, P.G., 

### Executive Director



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas 

### byReducing andPreventing Pollution 

## Public Hearing on Proposed Revisions to 30 

## TAC Chapter 114 

## and the State ImplementationPlan
The Texas Commission on Environmental Quality (commission) will conduct a public hearingto receive testimony concerning proposed amendmentsto 30TAC Chapter 114, Control ofAir Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan (SIP), underthe requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and40 Code ofFederal Regulations §51.102 ofthe United States Environmental ProtectionAgency (EPA) regulations concerning SIPs.
The proposed rulemaking would revise definitions; specify establish new designated alternative limits for Texas low emission diesel fuel properties; remove expired registration requirements and establish newregistration requirements for identifying production andimportfacilities; revise approval procedures for alternative diesel fuel formulations; specify thatthe approvals of all additive-based alternative diesel fuel formulations would be subject to revocation ifthe composition ofthe additive is found tobe altered; allow all alternative diesel formulations approvedbytheTCEQ priortoApril1, 2012, to remain in effect; revise reporting requirements to include production andimportfacility data; require alternative emission reduction plans using the Unified Model to determine compliance each calendar quarter; remove expired early gasoline sulfur reduction credits provisions; and make other clarifying changes as needed for accuracy and consistency.
The commission will hold a public hearing onthis proposal inAustin on April 26, 2012, at 10:00 a.m. in Building E, Room 201S, atthe commission's central office located at 12100 Park 35 Circle, Austin. The hearing is structuredfor the receipt oforal orwritten commentsby interestedpersons. Individuals maypresent oral statementswhen called upon in order of registration. Open discussion will notbepermitted during the hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes priorto the hearing. Persons who have special communication or other accommodation needs who are planning to attendthe hearing should contact SandyWong, Office ofLegal Services at (512) 239-1802. Requests shouldbe made as far in advance as possible.
Written comments maybe submittedto Charlotte Horn, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

## http://wwws.tceq.texas.govjrulesjecommentsj. File size restrictions may applyto comments being submittedvia the 

## eComments system. All comments should reference Rule Project Number 2009-001-114-EN. The commentperiodcloses April27, 2012. Copies ofthe proposed rulemaking can be obtained from the commission's Web site at 

## http:/ jwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further information, please contact Morris Brown, Air Quality Division, at (512) 239-1438.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov Howis ourcustomer service? tceq.texas.gov

## Icustomersurvey printed on recycled paper

### ill £ej] After notice and earing alicense or registration may be suspended for a period ofup t one year, depending upon the seriousness ofthe violations. A lie e or registration shall be revoked after notice and hearing upon a s ond suspension. 

## ill [EJ(j] TI1e commission ay revoke alicense or registration after notice and hearing for a de ignated tem1 or permanently. If a license or registration is revoked a second time, the revocation shall be permanent. !gU 

## W11 l11e following rocedures for renewal apply to per· sons that have had their license o registration suspended. (1) Ifa license m· reg tration expiration date falls within the S\lSpension period, a person ay renew the license or registration during the suspension period ace ding to §30.24 ofthis title (relating to License and Registration Appl cations for Renewal) and the appli· cable subchapters.



### ill**[(~]After**the sus nsionperiodhas ended, the license or registration shallbe automatic Iy reinstated unless the person failed to renew the license or registratio during the suspension period. ill} [fmj) Persons that h ve had their license or registration revoked shall not have their licen e or registration reinstated after the revocation pedod. Aftet' the 

### revo tion period has ended, 

### aperson may apply for a nCJw license or registr ion according to this chapter. This agency hereby certifies th tthe proposal has been reviewed by legal counsel and found to 

### b within the agency's legal authority to adopt. Filed with the Office of the Se TRD-201201324 Robert Martinez Director, Environmental Law Divis on Texas Commission on Envlronme tal Quality Earliest possible dale of adoption: April 22, 2012 For further information, please cal : (512) 239-0779 

# • • • CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes amendments to §§114.6, 114.312, and 114.314

- 114.319; the repeal of §114.313; and new §114.313

.. Ifadopted, the revisions would be submitted to the United States Environmental Protection Agency (EPA} as revisions to the state Implementation plan (SIP). Background and Summary ofthe Factual Basis for the Proposed Rules The current state regulations for Texas low emission diesel (TxLED) under Chapter 114 require that 

### all diesel as defined under §114.6 that is sold or supplied for use In a compression-Ignition engine operating in any of the 110 central and eastern Texas counties listed in §114.319 must comply with the specifications for aromatic hydrocarbons and cetane number as listed in §114.312 or one of the other compliance options listed under this section. This regulation includes all diesel used as fuel for on-road motor vehicles and non-road equipment. The TxLED regulations also apply to marine distillate fuels, I.e., Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), and Marine Gas Oil (MGO), when these marine distillate fuels are used in the 1997 Houston-Galveston-Brazoria (HGB) ozone nonattainment area counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller; Diesel producers are also allowed to produce TxLED in accordance with an alternative emission reduction plan (AERP) as specified under §114.318. TxLED producers and Importers are required to register with the TCEQ as specified under §114.314 and to submit quarterly reports to the TCEQ as specified under §114.316. There are 114 producers and importers currently registered under the TxLED program. The total nitrogen oxides (NO.) emission reduction benefit from TxLED in 2018 from all 110 counties currently regulated is estimated to be approximately 5.62 tons per day (tpd) from on-road vehicle use and 7.54 tpd from non-road equipment use. The estimated NO. emission reduction benefit in 2018 from TxLED marine diesel in the 1997 eight-county HGB ozone nonattainment area Is approximately 0.89 tpd. The purpose for the proposed rulemaking is to address the following issues. 

### Alternative Diesel Formulations The TCEQ has currently approved 20 alternative diesel formulations In accordance with the testing requirements specified under §114.315 that producers and importers may use to produce TxLED, with 18 ofthese formulations requiring the use ofadiesel additive. All but one of the additive-based alternative diesel formulations for TxLED were approved under the testing procedures specified under §114.315(c). In 2010, approximately 36% of all TxLED was reported to have been produced using the additive-based alternative diesel formulations approved by the TCEQ. Approximately 24% of all TxLED in 2010 was reported to have been produced using an additive-based alternative diesel formulation for California diesel approved by the California Air Resources Board (GARB) that producers are allowed to use under §114.312(e) to produce TxLED. The TCEQ process to approve an alternative diesel formulation for TxLED under §114.315(c) includes review and approval of test protocols prior to emissions testing, observation ofthe emissions testing atthe testing facilities, review ofthe final test reports from the testing facilities describing the results of the emissions testing, and determining whether the emissions test results satisfy the criteria specified in §114.315(c) that allows the TCEQ to approve the formulation. The TCEQ is also required to request the EPA's consultation when proposing to approve an alternative diesel formulation for TxLED. The TCEQ approval and review process specified in §114.316(c) has resulted in fiscal and staff resource challenges for the agency. The professional services needed to validate the



## PROPOSED RULES March 23, 2012 37 TexReg 2009emissions testing data and to physically observe the emissions testing being performed for approval purposes Is costing the TCEQ approximately $20,000 per application. The proposed rulemaking would remove the alternative diesel fuel formulation test procedures in §114.315(o) and the option under §114.315(d) for allowing the testing of these formulations through the EPA's Environmental Technology Verification (ETV) Program, which the EPA has discontinued. The other approval option currently specified under §114.315(d), which specifies criteria for using the Unified Model that was developed by the EPA specifically for the TxLED program, would remain as the only TCEQ method for approving alternative diesel formulations. Acceptance of alternative diesel formulations approved by CARB as allowed under §114.312(e) would also continue. The proposed rulemaking would greatly lessen the TCEQ's fiscal and staff resource needs in the physical testing aspects of the alternative diesel formulation approval process. DesignatedAlternative Umits The current TxLED regulations specified In §114.312(e) allow diesel fuel produced to comply with specific California regulations for diesel fuel to be used for compliance with the TxLED requirements, including diesel fuel produced under the designated equivalent limits specified underTitle 13 California Code of Regulations (13 CCR) §2282(h)(1). Although this subsection was adopted in March 2005, Itdoes not appear that many producers in Texas are taking advantage ofthe flexibility provided by these parameters. The proposed rulemaking would repeal the current rules in §114.313 and simultaneously propose a new §114.313 that would establish new designated alternative limits with the same fuel property limits specified In 13 CCR §2282(h)(1) that producers may use to produce TxLED. This proposed action would provide further clarification of an underutiilzed flexibility In the TxLED program while ensuring equivalent emission reductions. Alternative Emission Reduction Plans The currentTxLED regulations allow producers to use diesel 

### offset credits from early gasoline sulfur reductions as a compliance option under the AERP provisions specified under §114.318. However, the ability to use diesel offset credits in the ozone nonattalnment counties specified under §114.319(b)(1)**~** (3) expired December 31, 2008, and expired In the other 90 TxLED counties on December 31, 2010. The proposed rulemaking would remove the expired provisions specified under §114.318 pertaining to the use of early gasoline sulfur reduction credits as a methodology option for AERP compliance. Administrative The current TxLED regulations contain several administrative compliance deadlines that have expired and other administrative requirements relating to registration and reporting that are outdated or need further clarification. The proposed ruiemaking would revise definitions in §114.6to clarify that onlythe person or company that owns or operates the production facility that is producing the final blend of diesel fuel is considered a producer and is therefore required 

### to register and comply with the otherTxLED requirements. In addition, the proposed rulemaking would revise the registration requirements in §114.314 to remove expired provisions and to add new requirements for the registration of production and import facilities. The proposed rulemaking would also make other clarifying changes to the administrative provisions ofthe rules as needed for accuracy and consistency.



### 37 TexReg 2010 March 23, 2012 Texas Register Section by Section Discussion To conform to TCEQ and Texas Register formatting requirements, non-substantive revisions would be made throughout the proposed amendments to correct citations, acronym usage, and other minor issues, §114.6, Low Emission Fuel Definitions The proposal would amend §114.6 to remove the definition of designated alternative limit as needed for consistency with proposed new §114.313; remove the definition of motor vehicle fuel; renumber and revise the definitions of bulk plant, bulk purchaser/consumer, further process, import, Import facility, importer, produce, producer, and production facility to replace the term, "motor vehicle fuel," with the terms, "gasoline" or "diesel fuel," as needed for consistency and to make other changes to these terms as needed.

## to clarify that only the person or company that owns or operates the production facility that is producing the final blend of diesel fuel 

### is considered a producer and Is therefore required to register and comply with all TxLED requirements. The proposal would also make changes to clarify the definitions of additive, diesel fuel, final blend, gasoline, low emission diesel, motor vehicle, non-road equipment, and retail dispensing outlet. §114.312, LowEmission DieselStandards The proposal would amend §114.312 to make changes needed for accuracy and consistency with the proposed new §114.313 and the proposed revisions to §114.315. The proposal would amend §114.312 to remove language limiting the acceptance of CARB' approved alternative diesel fuel formulations to only those approved on or before January 18, 2005, to allow the use of new alternative diesel fuel formulations approv.ed by CARB in the future. The proposal would also amend §114.312 to cite the current effective date ofthe California diesel regulations relevant to this section. §114.313, DesignatedAlternative 

### Limits The proposal would repeal existing §114.313 and propose a new §114.313 that would establish new designated alternative limits that have the same fuel property limits as currently specified In California regulations (13 CCR §2282(h)(1 )) to provide further clarification of an underutilized flexibility in the TxLED program while ensuring equivalent emission reductions. §114.314, Registration ofDiesel Producers and Importers The proposal would amend §114.314 to remove expired registration requirements and to require all newproducers and Importers to register by no laterthan 45 days afterthe first date thatthey begin to provide TxLED to the affected counties listed in §114.319. In addition, the proposal would amend §114.314 to require producers and importers to provide information on each production facility and import facility from which TxLED is produced or imported. The proposed registration requirements would provide further clarification that only owners and operators of production facilities are considered producers subject to the TxLED regulations. The proposal would make other clarifying changes to §114.314 as needed to enhance and simplify the registration process. §114.315, Approved Test Methods The proposal would amend §114.315 to remove the**altema~ve** diesel formulation test procedures In subsection (c) to clarify that alternative diesel fuel formulations would only be approved through the provisions currently specified under subsection (d).The proposal would also amend §114.315 to remove the option for allowing testing of an alternative diesel fuel formulation through the EPA's ETV Program, which the EPA has discontinued. The proposal would also amend §114.315 to remove the supplementary test methods for viscosity and flash point in subsection (a) for consistency with the changes to subsection (c). The proposal would also amend §114.315 to specify that the approvals of all additive-based alternative diesel fuel formulations approved prior to April 

### 1, 2012, and thereafter, would be subject to revocation if the composition of the additive is found to be altered. Producers using an additive-based alternative diesel formulation would be required to discontinue use of the formulation within 45 days of the date of revocation. In addition, the proposal would amend §114.315 to add a new subsection (e) to specify that all alternative diesel fuel formulations approved by the executive director prior to April1, 2012, may continue to be used for compliance. §114.316, Monitoring, Reoordkeeping, and Reporting Requirements The proposal would amend §114.316 to make clarifying changes to the reporting requirements as needed for accuracy and consistency with the proposed changes 

### to §§114.313- 114.315, and 114.318. The proposal would also amend §114.316 to specify the sampling and analysis requirements for the specific fuel properties for TxLED produced under §§114.312, 114.313, and 114.318. §114.317, Exemptions to LowEmission Diesf>l Rf>quirements The proposal would amend§114.317 to make clarifying changes as needed for accuracy and consistency with the proposed changes to §-114.316 and §114.319. §114.318, Alternative Emission Reduction Plan The proposal would amend §114.318 to remove the provisions pertaining to the calculation and use of early gasoline sulfur reduction credits as a methodology option for AERP compliance. in addition, the proposal would amend §114.318(b) to require AERPs that use the Unified Model to calculate compliance based on the average fuel properties determined each calendar quarter, instead of yearly as currently required. The proposal would also amend §114.318(b) to allow producers to calculate the average fuel properties used in the Unified Model based on the fuel properties of diesel sold or supplied for use in all affected counties, instead of specific groups ofcounties as currently required. §114.319, Affected Counties and Compliance Oates The proposal would amend §114.319 to remove expired compliance schedules in subsection (c) and to modify subsection (d) to clarify that if the final compliance date of any provision in the section is before the adoption of the current revl.sion to the section and the compliance dates are not specified in the current revision, then the compliance date is past and all affected persons must be and remain in compliance with the provision as of the original compliance date. The proposal would also amend §114.319 to make other clarifying changes as needed for accuracy and consistency within the section. Fiscal Note: Costs to State and Local Government Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that for the first five-year period the proposed rules are in effect, no significant fiscal implications are antici" pated forthe agency as a result ofadministration or enforcement of the proposed rules. The proposed rules are expected to resuit in some cost savings for the agency for activities associated with the emissions testing and approval of alternative diesel formulations. However, any cost savings associated with this task will be reallocated to other air compliance activities and are not expected to be significant. Other state agencies and local governments are not expected to be affected by the proposed rules. The proposed rules amend sections of Chapter 

### 114 that concern Low Emission Diesel. The proposed rulemaking would make several changes including the following: revise definitions; establish new designated alternative limits for TxLED fuel properties; remove expired registration requirements and establish new registration requirements for identifying production and import facilities; revise approval procedures for alternative diesel fuel formulations; specify that the approvals of an additive-based alternative diesel formulations are subject to revocation ifthe composition ofthe additive Is altered; allow all alternative diesel formulations approved by the TCEQ priorto Apri 

### 11, 2012, to remain in effect; revise reporting requirements to include production and Import facility data; require alternative emission reduction plans using the EPA's Unified Model to determine compliance each calendar quarter; remove expired early gasoline sulfur reduction credits provisions; and make other clarifying changes as needed for accuracy and consistency. · Impacts to the Agency- Alternative Diesel Formulations The proposed rules will revise approval procedures for alternative diesel fuel formulations by removing agency test and certification procedures and by removing the option for seeking approval through the EPA's ETV program, which the EPA has discontinued, thereby limiting agency approval of alternative diesel fuel formulations to the certification option currently available in the rules that specifies criteria for approval through the use of EPA's Unified Model. Acceptance of alternative diesel formulations approved by the CARB will also remain an option for the agency. Because the agency will no longer validate emissions testing data, the proposed rules could save the agency as much as $20,000 per application in professional services costs. However, the exact amount of savings is difficult to quantify, because of the variance In the number of applications the agency has received. Applications have ranged from alow oftwo in Fiscal Year 2009to a high ofeight in Fiscal Year 2008 ($40,000to $160,000). Any costs savings experienced by the agencywill be reallocated to other air compliance activities. Impact to OtherState Agencies and Local Government The proposed rules will not have fiscal impacts for other state agencies or local governments since these governmental entj.. ties do not typically produce low emission diesel fuels. Public Benefits and Costs Nina Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be a statewide improvement in air quality. The proposed rules are not expected to have asignificant fiscal impact on individuals in the 11

## ocentral and eastern Texas counties in which TxLED Is required to be used. The proposed rules are not expected to have asignificant fiscal impact on large businesses. All alternative diesel formulations approved prior to April 1, 2012, will remain in effect under the proposed rules. The proposed rules do remove two certification options available under current rules, but two other existing op

## PROPOSED RULES March 23, 2012 37 TexReg 2011lions for certification will still be available, and th.ere will be no change in certification costs underthe proposed rules. Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or micro"businesses as a result of the proposed rules. All alternative diesel formulations approved prior to April1, 2012, will remain in affect under the proposed rules. The proposed rules do remove two certification options available under current rules, but two other existing options for certification will still be available, and there will be no change in certification costs underthe proposed rules. Small Business Regulatory Flexibility Analysis The agency has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required, because the proposed rules are necessary to protect human health and the environmentand the proposed rules are not expected to adversely impact small businesses. Local Employment Impact Statement The commission has reviewed this proposed rulemaking and determined that a local employment Impact statement is not required, because the proposed rules do not adversely affect a local economy In a material way for the first five years that the proposed rules are in effect Draft Regulatory Impact Analysis Determination The commission reviewed the proposed rulemaking**consider~** ing the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule." A major environmental rule means a rule, the specific intent of which Is to protect the environment or reduce risks to human health from environmental exp.osure, and that may adversely affect in amaterial way the economy, asector ofthe economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed revisions to Chapter 114, Subchapter H, would remove the alternative diesel fuel formulation test procedures in §114.315(c) and the option for testing for approval through the EPA's ETV program, which the EPA has discontinued, thereby only allowing approval of alternative diesel formulations through the othertwo approval options currently allowed that eitherspecify criteria for using the Unified Model that was developed by the EPA specifically for the TxLED program or accept alternative diesel formulations approved by GARB. The proposal would lessen the TCEQ's fiscal and staff resource needs in the physicaltesting aspects ofthe alternative diesel formulation approval process. This rulemaking action would repeal existing §114.313 and propose a new §114.313 thatwould establish new designated alternative limits with the same fuel property limits specified in California regulations (13 CCR §2282(h)(1 )) that producers may use to produce TxLED. This proposed action would provide added flexibility to the TxLED progtam while ensuring equivalent emission reductions. The proposed rulemaking would remove the expired provisions specified under §114.318 pertaining to the use of early gasoline sulfur reduction credits as a methodology op.. tion for AERP compliance. Finally, the current TxLED regulations contain several administrative compliance deadlines that have expire'd and other administrative requirements relating to registration and reporting that



## 37 TexReg 2012 March 23, 2012 Texas Register are outdated or need further clarification. The proposed rulemaking would make clarifying changes to the administrative provisions ofthe rules as needed for accuracy and consistency. Due to the limited nature and scope of these amendments, this action would not adversely affect, In a materlal way, the economy or a sector of the economy, productivity, competition, or jobs. The proposed rule changes continue to provide alternatives and flexibility to producers of TxLED and additives in order to meet the fuel requirements. The amendments to the rules do not affect the NO, reductions expected from the sale and use of TxLED In Texas. Therefore, adverse impacts to the environment or public health and safety In the state will not occur. The TxLED rules are part of the strategy to reduce NO. emissions necessary for designated areas in the state to be able to demonstrate attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) for ozone. This .strategy is intended to protect the environment or reduce risks to human health from environmental exposure to ozone by reducing NO, emissions that help form ozone. Assuming the proposed revisions constituted a major environmental rule, the action Is not subject to the regulatory analysis provisions ofTexas Government Code, §2001.0225(b), because the proposed rulemaking does not meet any of the four applicability requirements. Texas GovarnmentCode, §2001.0225 only applies to a major environmental rule, the result ofwhich is to: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law, unless the rule is specifically required 

### by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to Implement a state and federal program: or 4) adopt a rule solely under the general powers of the agency Instead of under a specific; state law. Specifically, this rulemaking action will make improvements to the alternative formulation and additive approval process. The TxLED program was developed as part 

### ofthe control strategy to meet the NAAQS for ozone set by the EPA under Federal CleanAirA9t (FCAA),42 United States Code (USC), §7409, and therefore meet a federal requirement. The proposed rulemaking implements requirements of 42 USC, §7410. which requires states to adopt aSIP that provides for "implementation, maintenance, and enforcement" of the NAAQS in each air quality control region ofthe state. While 42 USC, §741 0 does not require specific programs, methods, or reductions to meet and maintain the standard, SIPs must Include "enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the'appllcable requirements ofthls chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention and Control). It Is true that the FCAA does require some specific measures for SIP purposes, such as the Inspection and maintenance program, but those programs are the exception, not the rule, in the SIP structure of 42 USC, §7410. The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate In order to meet and maintain the NMQS. This flexibility allows states, affected Industry, and the publicto collaborate on the best methods to attain the NAAQS forthe specific regions In the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. Thus,while specific measures are not generally required, the emission reductions are required. States are notfree to ignore the requirements of 42 USC, §7410, and must develop programs to assure that the nonattainment areas of the state would be brought Into attainment on schedule and to maintain the NAAQS after redesignation. The proposed revisions will help areas in the state attain and maintain the 1997 eight-hour ozone NAAQS as expeditiously as practicable. The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These rules are identified in the statutory language as major environmental rules that would have a material adverse impact and would exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill would have significant fiscal implications for the agency due to 

### its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. As discussed previously in this preamble,.42 USC, §7410 does not require specific programs, methods, or reductions in order to meet and maintain the NAAQS; thus, states must develop programs for each nonattainment area to ensure that area would meet the attainment deadlines. Because of the ongoing need to address nonattainment Issues, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. Ifeach rule proposed for inclusion In the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is Inconsistent with the conclusions reached by the commission In its cost estimate and by the Legislative Budget Board in its fiscal notes. Because the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the Legislative Budget Board, the commission contends that the Intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules would have a broad impact, that impacf is no greater than is necessary or appropriate to meet the requirements of 42 

### usc, §7410. For these reasons, rules adopted for inclusion In the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are specifically required by federal law. In addition, 42 USC, §7502(a}(2) requires attainment as expeditiously as practicable, and 42 USC, §7511(a) requires states to submit ozone attainment demonstration SIPs for ozone nonattainment areas, such as the HGB and the Dallas-Fort Worth eight-hour ozone nonattainment areas. The commission has consistently applied this construction to its rules sincethis statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially un-amended. The commission presumes that "when an agency interpretation Is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tax. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990), no writ; Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245 (Tex. 1991); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000), pel denied; and Coastallndust WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). As discussed previously in this preamble, this rulemaking action implements requirements of42 USC, §7410. Furthermore, there is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the proposed rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely underthe general powers ofthe agency, but is authorized by specific sections ofTexas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas water Code, which are cited in the StatutoryAuthority section of this preamble, including Texas Health and Safety Code, §§382.012, 382.017, 382.019, and 382.202. Therefore, the proposed rulemaking does notexceed astandard set by federal law, exceed an express requirement of state law, exceed a requirement of adelegation agreement, nor is adopted solely under the general powers of the agency, Based on the foregoing, 

### if this rulemaking action Is assumed to be a major environmental rule, it is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the proposed rulemaking does not meet any ofthe four applicability requirements. The commission invites public comment on the draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed underthe. Submittal of Comments section ofthis preamble. Takings Impact Assessment The commission evaluated this proposed rulemaking and performed an analysis of whether these proposed revisions to rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these proposed rules is to achieve reductions in 

### NO. emissions to reduce ozone formation in order to help bring nonattainment areas in the state into attainment with the federal NAAQS for ozone and to maintain it. The proposed rules would substantially advance this stated purpose by clarifying and simplifying testing procedures for additives and alternative fuel formulation approvals, clarifying designated alternative limits for TxLED, and updating and adding definitions. Promulgation and enforcement ofthese proposed rules wo'-lld be neither a statutory nor a constitutional taking of private real property, Specifically, the subject rulemaking does not affect a landowner's rights in private real property, because this rulemaklng does not burden (constitutionally); nor resbict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These revisions will not place a burden on private real property, because this action does not require an investment in the permanent installation of new refinery processing equipment Additive-based alternative fuel formulations can be developed to meet TxLED that do not require changes to refinery processes. Additionally, the



## PROPOSED RULES March 23, 2012 37 TexReg 2013alternative formulation approvals made by the executive director are not property rights, and the proposed changes to the rules do not foreclose otherapproval options to meet TxLED for these alternative formulations, Alternative formulations were initially developed as a way to provide flexibility for diesel producers and suppliers to meet TxLED requirements. Furthermore, the commission's analysis indicates tha.t Texas Government Code, Chapter 2007 does not apply to these proposed rules, because this Is an action that is reasonably taken to fulfill an obligation mandated by federal law, whicl:1 is exempt under Texas Government Code, §2007.003(b)(4). Specifically, the TxLED requirements were developed in order to meet the NAAQS for ozone set by the EPA under 42 USC, §7409. States are primarily responsible for ensuring attainment and maintenance of NAAQS once the EPA has established them. Pursuant to 42 USC, §7410, and related provisions, states must submit, for approval by the EPA, SIPs that provide for the attainment and malnte.nance of NAAQS through control programs directed to sources ofthe pollutants involved. Therefore, one purpose of this rulemaking action is to provide additional clarification and flexibility in implementing the TxLED program necessary for the state's nonattalnment areas to meet the air quality standards established under federal law as NMQS. Attainment and maintenance ofthe new ozone standard require substantial reductions In NO, emlss.ions as well as volatile organic compounds emissions.. This rulemaking is only one step among many necessary for attaining and maintaining the new ozone standard. In addition, Texas Government Code, §2007,003(b)(13), states that Chapter 2007 does not apply to an action that 1) is taken in response to a real and substantial threat to public health and safety; 2) is designed to significantly advance the health and safety purpose; and 3} does not impose agreater burden than Is necessary to achieve the health and safety purpose. Although the rules do not directly prevent a nuisance or prevent an lmmedi.atethreatto life or property, they do preventa realand substantial threat to public health and safety and significantly advance the health and safety purpose. This action is taken In response to areas of the state exceeding the federal NMQS for ozone, which adversely affects public health, primarily through irritation of the lungs. The action significantly advances the health and safety purpose by improving the TxLED program that reduces ozone levels In the nonattainment areas and other areas of the state that contribute to high ozone levels in these areas. Consequently, these proposed rules meet the exemption in Texas Government Code, §2007.003(b)(13). This rulemaking action therefore meets the requirements of Texas Government Code, §2007.003(b)(4} and (13). Forthese reasons, the proposed rulemaking does not constitute a taking under Texas Government Code, Chapter 2007. · Consistency with the Coastal Management Program The commission determined the proposed rulemaking relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal C.oordinatlon Act of 1991, as amended (Texas Natural Resources Coda, §§33.201 etseq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 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 CM P. The commission reviewed this acUon for consistency with the



## 37 TexReg 2014 March 23, 2012 Texas Register CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the proposed amendments are consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving the quality and values ofcoastal natural resource areas, and the policy In 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas. The proposed rulemaking will ensure that the amendments comply with 40 Coda 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}. Written comments on the consistency ofthis rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section ofthis preamble. Announcement of Hearing The commission will hold a public hearing on this proposal In Austin on April 26, 2012, at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing Is structured forthe receipt of oral orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services, at (612) 239-1802. Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Charlotte Horn, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may 

### be submitted at: http:llwww5.tceq.texas.govlrules/eoomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-001-114-EN. The comment period closes April 27, 2012. Copies. of the proposed rulemaking can be obtained from the commissi.on's Web site at ·http://www. tceq. texas. govlnavlru/es/proposa

_adopt.html. 

### For further Information, please contact Morris Brown, Air Quality Division, at (512) 239-1438. 

## SUBCHAPTER A. 

## DEFINITIONS 30 TAC §114.6 Statutory Authority The amendment is proposed under Texas Water Code (TWC), §5.1 03, 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. The amendment is also proposed under Texas Health and Safety Code (THSC}, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistentwith 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's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the com-mission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emission diesel (LED) as described in the state implementation plan is not required prior to February 1, 2005, and authorizes the commission to conslqer alternative emission reduction plans to comply with LED requirements. The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202. 

### §114.6. Low Emission Fuel Definitions. Unless specifically defined in Texas Health and Safety Code, Chapter 382, also known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution conti'Ol. 

### In addition to the terms that are defined by TCAA, §3.2, and§ 101.1 ofthis title (relating to Definitions), the [.fuRewing] words and terms specified in this section, when used in Subchapter H ofthis chapter (relating to Low Emission Fuels), have the [fullawiag] meanings as defined in this section, unless the context clearly indicates otherwise. (1) Additive··Any substance that 

### is intentionally added to gasoline ordiesel fuel for the purpose ofproducing agasoline or diesel fuel in compliance with the requirements ofSubchapter H ofthis chapter[;ineludit1g aftyaEkied team&tePwhleJefool 

### system; afK-i that i&net ifoonti&llali]' 

### r-emeved Jlfiar, te sale ef IJSe aftd] that is: (A) l! registered additive with the United States Environmental Protection Agency (EPA) in accordance with 

### 40 Code of Federal Regulations (CFR) Part 79 (relating to Registration ofFuels and Fuel Additives); or (B) added to gasoline m· diesel for the purpose ofreduc· ing exhaust emissions from motor vehicles ornon-road equipment and isexempted from the EPAregistration requirements in accordance with 40 CFR [G&de e-f

### Fedefal RegulatioHs] Part 79. (2) Barrel--Aunit of measure equal to 42United States gal· Ions. (3) Bulk plant--An intennediate gasoline or diesel [1neter**~]fuel** distribution facility where gasoline or diesel fuel is stored and then transported for delivery to abulk plJrchaser/consmner orretail fuel dispensing facility [ 

### deiJvery &fm&teP**~** 

### f:ue! te and fff>m the faeiHty- 

### is oolely by lmek & pipe-line]. (4) Bulk purchaser/consumer--A person who purchases or otherwise obtains gasoline or diesel [meltlP**veh-i~]** fuel in bulk and then dispenses itinto the fuel tanks ofmotor vehicles ownedor operated by the person. (5) Common carrier--A person engaged in the transporta

### tion ofgoods or products ofanother person for compensation and is available to the public for hire. f(-6) Ilesigflated 

### a!temat+ve limit**tfl~--An** alteraative speeifieatiea futffi faf a speeifie fuel st-aodafd-; wlmllt i& assigned by a pr-adneeP or- itnf)orter- ta a flMl blood efffiw emission diesel fuel**~** ffi 

### aeeafdanee**with~:l** afthill

### title (-reltlting te DesigHated Alremative bimitsj.3 

## .® [t7J] Diesel fuel--Any middle distillate fuel used in compression-ignition internal combustion engines that is commonly or commercially known, sold, m· represented as: (A) Grade No. 1-D or Grade No. 2-D diesel fuel, in accordance with the active version ofAmerican Society for Testing and Materials (ASTM) D975 (Standard Specification for Diesel Fuel Oils)[; 

### eJreeflt faf**~];** 2! [and] (B) Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), orMal'ine Gas Oil (MGO) diesel fuel inaccordance with the active version ofthe International Organization for Standardization (ISO) 8217 Specifications ofMarine Fuels. 

### ill [f&-)] Final blend--Adistinctquantity of[le-weJ:ll-.ffisiea] diesel fuel [(biiD1] that is introduced into commerce as low emission diesel fuel (LED), without further process [rutemtioo-;- whish -weuhl tend te**~a**reglli&te€1speeifiootion efbBG]. 

### ill [(91] Furthet' process··To perform any alteration to diesel [aetivity ea metef :y&fl.H*e] fuel, including distillation, treating with hydrogen, blending, or addition ofan**[~]** additive, for the purpose ofproducing a diesel fuel in [lmngiag the m.&te!'¥eh-iele fool iflte] compliance with the requirements ofSubchapter H, Division 2 ofthis chapter prior to the diesel fuel being introduced into commerce as LED. 

### ill [fl{l1] Gasoline--Any fuel that is commonly or com· mercially known, sold, or represented as gasoline, in accordance with the active version of American Society for Testing and Materials (ASlM) 04814**[~48-14·99-]** (Standard Specification for Automotive Spark-Ignition Engine Fuel)[, 

### dated -1-999]. _Q_Q} [€l-11] Import·-The process by which gasoline or diesel [me-w whiele] fuel is transported into the State ofTexas by any means or method whatsoever, including transp01t via pipeline, railway, truck, motor vehicle, barge, boat, or railway tank car. Ql)_**[~]** Import facility--The stationary gasoline or diesel [m&teP**~]** fuel transfer point wherein the importer takes delivery ofimported gasoline or diesel [metof 

### vehk;leJ fuel and from which imported gasoline or diesel [fOOte!'**~]** fuel is transferred into the cargo tanktruck, pipeline, or other delivery vessel from which the fuel will be delivered to a bulk plant, bulk purchaser/consumer, or retail fuel dispensing facility. @ [tl-3:t] Importer--Any person, except a person acting as a common carrier, who imports gasoline or diesel [metm• :yeflicle] fuel. @ [f!41) Low emission diesel fuel (LED)--Any diesel fuel that conforms to the requirements specified in §§114.312, 114.313, or 114.318 ofthis title (relating to Low Emission Diesel Standardsi Designated Alternative Limits; or Alternative Emission Reduction Plan, respectively).[+] 

### £tA-1 said-; intended faf wiD, et' made avilllable fet' sale that may ultimately be tJSed t& flewel' a dieool fueled eem-pressiea-ig· nitien engi-fle i:n tfle**~$tOO** iafl--l-4.S-l-9 e-fthis OOe (rel-atffi-g to :A4TeeteEI Goonties aH4**~mpliilaee** 

### :911-tesM @j that the 13ffidueeF**lata~** eJ.' «Jasel:ltl-bly shtndcl knew, fll:!I.Y ultimately lle tiSOO to**pe-we~** a dW:iel- 

### fueled eempre-ssiea-igtlitian engine in eeumies listed ifltl--J4*1-9 oftlri.:s title;- tlfltij f(G-) eomplies witH tlte**~specified** in 

### §H4-J-!2 afthis tide Et'elati-ng te !-6w

### Emissiea Piesel StancltlfdsH (!1)_ [8--$--)] Moto1· vehicle-Any self-propelled device pow· ered by 

### agasoline fueled spark-ignition i11ternal combustion engine or

### a diesel fueled compression-ignition internal combllstion engine in or by which aperson or property is or may be transp(l!ted, and is l'equil'ed to be registered under Texas Transportation Code 

### [E-'FfGt], §502.002, ex

## PROPOSED RULES March 23, 2012 37 TexReg 2015eludingvehicles registered undeJ' Texas Tnmsportation Code, §502.006 [l+G,-**~06(0}], ~·**  .MG!ef**~fuel--Any** gaseline 61' diesel**f~el** uaed m pewe1 gaoo!-ine fueled sp!ll'k-ignitien 61' diesel fueled oompressienignitien engine&} @ [EJ-+1] Non-road equipment--Any device powct-ed by a gasoline fueled spark-ignition internal combustion engine or a diesel fueled compression-ignition internal combustion engine that is not required to be registered underTexas Transportation Code, §502.002. @ 

### [fM11 Produce--Perform the process to convert liquid compounds [that ftl'e net mete!' veh:iel.e fuel] into gasoline or diesel [metal' vehiele] fuel or to further pt·occss diesel fuel to create a final blend ofLED[, exceptwhere a per-sen supplies metal'vehlele ·fuel to a tlfOOueel whoagroosinWl'itiRg tof.at'thtWproeessthemete1**~** Rwl at the preduotien faei:lliy and to be treated 

### as ft produGel' afthe f!\OtOI' ¥ehlel& fuel, enly the 

### tinal predueet• shall .be**~** fer- tl.U pufj!eses Wldet•**Sub~**H efthis**~to** t'lethe produGel' afthemetal' -vehiG!e fuel}. {!11 [fl91] Producer--Any person who owns, leases, operates, controls, or supervises aproductionfacility that [tl.OO/er] produces gasoline or diesel [mete!' whiele] fuel. (18) [(-aGj] Production facility-A!Il' [A] facility where gasoline or diesel [ffi whleh m<:>tet' vehiele] fuel is produced or that manufactures liquid fuels by distilling petroleum. (!2l**[t2~1-)]** Retail fuel· dispensing outlet··Any establishmentwhere [at whlffi] gasoline and/or diesel fuel 

### is sold or offered for sale for use in motor vehicles and/or non-road equipment, and the fuel is directly dispensed into the fuel tanks ofthe motor vehicles and/or non-road equipment using the fuel.

. ruD_**[~]** Supply--To pl'ovide or transfer gasoline or diesel fuel to a physically separate facility, vehicle, or transpol'tation system. This agency hereby certlfles that the proposal has been reviewed by legal counsel and found to be within the agency's legal**author~** ity to adopt Filed with the Office of the Secretary of State on March 9, 2012. TRD-201201326 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: April 22, 2012 For further Information, please call: (512) 239-0779 

# + + + SUBCHAPTER H. LOW EMISSION FUELS DIVISION 2. LOW EMISSION DIESEL 30 TAC §§114.312

- 114.319 Statutory Authority The amendments and new section are proposed under Texas Water Code (1WC), §5.1 03, concerning Rules, and TWC, §5.105, concerning General Policy, which authorlza the commission to adopt rules necessary to carry out its powers and duties under the TWC. The amendments and new section are also proposed under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources,



## 37 TexR.eg 2016 March 23, 2012 Texas Register 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 ofthe state's air; 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's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, .2004, as long as distribution of low emission diesel (LED) as described in the state implementation plan is not required prior to February 1, 2005, and authorizes the commission to consider alternative emission reduction plans to comply with LED requirements. The amendments .and new section implement THSC, §§382.002, 382.011,**382.D1~,** 382.017, and 382.202. §114.312. Low Emission DieselStandal'ds.**(~)** No person shall sell, offerfor sale, supply, oroffer fot• supply; dispe118e, tl'ansfer, allowthe transfer, place, store, orhold any diesel fuel in any stationary tank, reservoit; or other container in the counti.es listod in §114.319 ofthis title (relating to Affected Cow1tles and Compliance Dates)[;] that may ultimately be used to power a diesel fueled compressjon-ignition internal combustion engine in the affected coun· ties[;] that docs not meet [eithtw] the low emission diesel fuel (LED) standards specified in paragraphs (1) and (2) ofthis subsection. [af flUbsootioos 

## 00 ana (e-) ofthis 

### swtioo; eF the telfltirements ofsubsootffin t!) ef

### thls seetian:] 

### ill [(bj] The maximtJm at·omatic hydrocarbon content of LED 

### is 10% by vohune per gallon,Ji 61' the lJIDhas been reyefled 

### 1n ae.eardanee 

### with aU of**tl~e** requiremsats e.f**fl-14.-3-l.~** eftttis title**~­** tag. te 9esignated Alttlffiati-1e 

### himits1; where+] fB1 the aramatie hydraearbon eontent 

### dees neteJWeedthe desigaated alternative limit E9Ab-)1 and} 

### W1 the 9Ab**~** -W% byV&lwne;:theeJOOe68**~e** hyereeafben GeRtootis fully &ffset**in~ with~**  afthis ti&.} 

### ill [(G-)] The minimum cetane number fot' LED is 48. @ [(€!-)]Subsection (a) ofthis section does not apply to asale, offer for sale, or supply ofdiesel ftJel to a producet· where the producer further processes the diesel fuel at the producer's production facility prior to any subsequent sale, offer for sale, or supply ofthe final blend ofLED [diesel fuel]. .(22 [(ej) Diesel fuel that has been produced to comply with 

### all specifications for a Certified Diesel Fuel Formulation 

### as approved by au executive order by the California Air Resources Board [oa er befere .JmRiafy +8;**~]** for compliance with California diesel fuel regulations that were in effect as ofAugust 4, 2005, [Getehef-1,**.J.~]** except for those appreved for small refinery compliance, or diesel fuel that has been produced to meet all specifications for diesel fuel under regulations adopted by the California Air Resources**Board[;~**fer these awwvedfersmall refit.let:y eemplianee,] thatwere in effect as of August 4, 2005, except for those approved for small refinery compliance, [Jaooat!y 

### +S;**~]** may be used to satisfy the requirements of subsection (a) ofthis section. @ 

## [001 Alternative diesel fuel formulations that have been approved by [thai the produooJ! hasdemanstt·ateEI te the satis.faetioo

### af.l the executive**director~[;** tlwoogh emissieas and perfarmll!lee testiBg metheds] prescribed in §114.315(c) [ami tdj] ofthis title (relating toApproved Test Methods)[, as aehieviRg 

### e&mJlft!'ftllkl et' better redue·**~ns** 

### 1n emifl&if>fllj &f**tl*ie~** ef**nttl'a~a** aad**paffiwl&t~** mattef] may be used to satisfY the requirements ofsubsection (a) [subseeti&tl!l**~** mid (ej] ofthis section. [Ffli' alternati'<'e 

### diesel fuel fermulatlens 

### thllt**i.-llOOl'pE»'at~ ft~**  systems,the estimatedemisskt:as mmefi.t-s &ftfiealtel'oot-ive die;;el fuel fer-m·utatktn f:l'lllY be Eletefffiffied &y OO!l'ij)afing the emi-ssiens and perfermanee OOal'a&tefistiesmthealterrlttti¥ediesel fuel withthe addttive systemvei'SUS the emissiens andperfot·menee ehafae· teristies efa Eltesel fu\H 

### withe'llt the addi#ve eystem, as Elete.l'flli.ned by the test-ing metheds l'!l'ell&fi.bed 

### 1n**fU-4-*~~)** and (dj &ftlti6 t#le.] 

### §114.313. DesignatedAlternative Limits. (a} Diesel fuel that has been produced to meet all ofthe desig· nated alternative limits specifiedin subsection (b) of this sectionmay be used to satisfy the low emission diesel fuel (LED) requirements speci· fied In §114.312(a) ofthis title (relating to Low Emission Diesel Standards).(b) The designated alternative limits per gallon ofLED are set forth it1 paragraphs (1) • (6) ofthis subsection: (1) An aromatic hydrocarbon content of no greater than 21.0% by weight; (2) A polycyclic aromatic hydrocarbon content of no greater than 3.5% by weight; (3) An American Petroleum Institute gravity index of no less than 36.9; (4) A cetane number ofno less than 53; (5) A nitrogen content ofno greaterthan 500 parts permil· lion by weight (ppmw); and (6) A sulfur content ofno greater than 15 ppmw. (c) Compliance with the designnted alternative limits specified in subsection (b) ofthis section mustbe determined by the test methods specified in §ll4.315(a) ofthis title (relating to Approved Test Meth· ads). ( §

### 114.314. Registration of DieselProducers andImporters. (a) Each producer and importer that sells, offers for sale, sup· plies, offers to supply, dispenses, transfers, allows the transfer, places, stores, orholds any diesel fuel in any stationary tank, reservoir, or other container in the affected counties listed in §114.319 ofthis title (relat· ing to Affected Counties and Compliance Dates) that may ultimately be used to power 

### adiesel fueled compression-ignition internal combustiotl engine in the affected counties listed in §114.319 ofthis title shall register with the executive director by no later than 45 days after the first date the diesel fuel from**it~** production facility or import facility 

### is made available for use in the affected counties listed in §114.319 ofthis title. [said, e!Tored fer-**sale;~&!'** &ffered ffil' supJ*y- die5el fuel 

### trem its**predu~** fe.effity et'impert fooi1ity that may have beeB: 

### used inOOllflti.eslisted

## m f-l!4Jl-9 efthistitle (relatiftg

## w-Af.footeEl Goont4es Wld**Ge~lianee** I)ates} on et•**bef~re ~**  +; 100.5;- 

### shall register w-ith the exeeuti¥e di.rootor· by**M-ay+;~]** 

### W"J Baehpredueer et'imperterthat dkl11et begin to sell, affer. fef sale, supply, er effuf te**~** d1esel fuel frem its pre®etien fa.. OOky et' lmjJOO faeility tll.at may ultimately· he used ffi ooutttie.s l-isted in**fl-1~-1-9** efthia title until aftel! April+; 200S, 

### shall register- with the executive Elireei.& at least W day& pr-ier- to the fir-st date the 

### diesel fuel is 

## whe made l!Vfli.lable -fer- uS& in the l-isted effi\l'lties.1 lli} [B>f] Registration must be submitted on tbrms prescribed by the executive director and must include, at a minimum, the infor· mation specified in paragraphs 

### (11· (5) ofthis subsection: (I) the legal business name ofthe producer or importer, mailing address, agency assigned customerreference number, and con· tact information for the producer or importer, or their authorized rep· resentative; [a signed statementi.adieatiagwhether- the**p~** et'

### J.m. pefter- deesor- dees !lOt 1ntendte pr-eduee eEitllperile-w emissieR diesel fef \150ffi the eeuntieslistee i-n §-H-4.3-1-9 efthistitle en&!' 11-frefGvt&be1**+;~)** (2) 

### a statement ofthe estimated total number ofbarrels of row emission diesel fuel that the producer or importer is planning to produce or import in the 12 months following the date ofregistration that the producer or importer intends to sell, offer fbr sale, supply, or offerto supply from its production facility orimportfacility [tet-!11nttm· bel'**&f~**&fdiesel .fee!f!I'etlueecl ar- i:m:pefledin

### the -llmoothsj)fief tathe date efregistr-atioothatthefJffldHeer eEimpeftefseld, &ft'eredfef S≤**~** eE eft'ered

## w oowly

### trem its pretluet4en faeUif)' eJ im· J*lrt.f-aeHitythatwesffitellded) for use in the counties listed in §114.319 ofthis title; (3) the physical address, agency assigned regulated entity reference number, and contact information for each production facility or importfacility that is used to produce or import diesel fuel that may be sold, offered for sale, supplied, or offered for S1.1pply [if ilfill'8pPiat&; a st-atement

# mthe estim-ated tetalllUlllber

# m bmels efle-w emissien dieselthat th11**j*'edt~OOI'**er- imper-teFisj')l-aooiflg te**~**

### m impflftffi 

### the H ffiOflths fellewing the oompliaMC date !isted

## m**§-~l-9(ejfl1** &f

### this title -that 

### the produeer er ·ilnpel'tel ffi•ends to 1lei:l; &tfefffil'wle; Wpp}y; 0i'effeFto SUJ'lfllyfr-em its )3Feduetien.faeilliy ei'

### lmflei'lfaetl:iiy) for use in the affected counties listed in §114.319 ofthis title; {(4) ifapprapriate, -a statement afthe estimated

### tetal ffilftl·**~er-** &f.OO!'I'els efdiesel fuel thatthe p!edueerarimpOI'ter-is p1mmffigte preEiuee 91' -itnpal't tinder an alteraati'le emissi:en reduetien plan 1:mcle¥**~****eftltitl*le~w** AJteraative EmissiooReduetien**P.~** 

## m

theH lll&llth.s fellewing theoomplfa.needatelistedi-11 § ll4.319(G)flj &fihls title that the predueef 0i'**~-intends** {e**eel~** effer- fer -sale;**~** 

### m effer- te5llpply ft•em 1t-s p1'0de00:ell .faeHlty et'impel't.faeHlty fat• 

### use -ill. the 001;Illties -listed

## m**~** &f.fui.s titw,1 

### ill [(-§1] any other information determined by the exec· utive director to be necessary to identify the persons responsible for [detel'lll:ine] the adequacy ofdiesel Sl.lpply in the affected counties; and 

### ill [(-6-)] a signed statement of consent by the registrant that the executive director is permitted 

### to collect samples and access documentation and records at any production facility or import facility used to pmduce or impo11 diesel fuel that may ultimately be used to powera diesel fueled compression-ignition internal combustion engine in the counties listed in §114.319 ofthis title. 

## .W [(EI1] The executive director shall maintain a listing ofall registered producers and in1porters. §

### 114.315. Approved Test Methods. (a) Compliance with the diesel fuel content requirements of this division m\tstbe determined by applying the approprinte testmcth· ads and procedures specified in the active version ofAmerican Society for Testing and Matel'ials (AS1M) D975 (Standard Specification for Diesel Fuel Oils), or by applying the [the ·f&llewing] supplementary test methods and procedures specified in paragraphs (1) • 

### ill ofthis subsection, as appropriate. (I) The aromatic hydrocarbon content may be determined by ti1e active vcrsioo ofASTM Test Method D5186 (Standard Test Method for Determinatiotl ofAromatic Content and Polynuclear Aro· matic Content ofDiesel Fuels and Aviation Turbine Fuels by Supercrit· leal Fluid Chromatography). The following correlation equation must be used to convertthe supercritical fluid chromatography (SFC) results



## PROPOSED RULES March 23, 2012 37 TexReg 2017in mass percent to volume percent: aromatic hydrocarbons expressed in percent by volum.e = 0.916 x (aromatic hydrocarbons expressed in percent by weight)+ 1.33. (2) The polycyclic aromatic hydrocarbon (also referred to as polynuclear aromatic hydrocarbons or PAH) content may be determined by the active version ofASTM Test Method D5186 (Standard Test Method for Determination ofAromatic Content and Polynuclear Aromatic Content ofDiesel Fuels and Aviation Turbine Fuels by Supercritical Fluid Chromatography). TI1e correlation equation specified in paragraph (1) ofthis subsection must be used to convett the SFC results in mass percent to volume**perce~t.** (3) The nitrogen content may be determilted by the active versionofASTM TestMethod D4629 (Standard TestMethod for Trace Nitrogen in Liquid Petroleum Hydrocarbons by Syringe/Inlet Oxidative Combustion and Chemiluminescence Detection). (4) The Amel'lcan Petroleum Institute (API) gravity index may be determined by the active version ofASTM Test Method D287 (Standard TestMethod for API Gravity ofCrude Petroleum and Petroleum Products (Hydrometer Method)).**((~** Theviseooi-tymay be determiaed by the aetive**~** af**ASN~**MethedD4#(Standat·d :restMethooful'**~ic:Vis** eooi-tyofTronSfJareflt

### and Qpaque**·~(the** Gahmlatien af];)ynami.e ¥ifreesity1H f«jj 

### The l'lasflpoint may he detet'tnined by the aetiw .yersien af

### A8'J'M :rest M&thad D9J- (Staadar<l 

### :rest Methads IDI' FlashPeiat hy Pesky Martens 

### Glesed**Gt.~p** :resterj.J 

### ill [tf)] The distillation tempet·atures may be detemtined by the active versio11 of ASTM Test Method 086 (Standard Test Method for Distillation ofPetroleum Products at Atmospheric Pressure), · (b) Modifications to the testing methods and procedures in this section may be approved by the executive director after consultation with and agreement by the United States. Environmental Protection Agency (EPA). ·(c) The executive director, upon application, may approve alternative diesel fuel formulations as prescribed undet' §114.312@. [ffj] ofthis title (relating to Low Emission Diesel Standards) that may be used to satisfy the low emission diesel fuel (LED) requirements specifred in §114.312(a) ofthis title ifthe applicant has demonstrated to the satisfaction ofthe executive directot· and the EPA in accordance with the procedures specified in paragraph (1) ofthis subsection that the alternative diesel fuel formulation will achieve equivalent 

### orbetter reductions in emissions ofnitrogen oxides (NOJ [in**~ee** with the &Hawing preeeE!ures]. (1) The applicant shall submit documentation demonstmt· ing that the applicable fuel properties ofthe altemative diesel fuel formulation demonstrate at least a5.5% reduction inNO, emissions from on-road diesel fuel for the year 2007, and at least a 6.2% reduction in NO, emissions from non-road diesel ft>el, using the Unified Model as described in the EPA staffdiscussion document, Slrategles andIssues in CorrelatingDieselFuelProperties with Emissions, Publication Numbet· EPA420-P-01-001, published July 2001. (2) For alternative diesel fuel formulations that achieve emission reductions as demonstrated in accordance with the criteria specified in paragraph (1) of this subsection, the applicant shall provide documentation to the executive director upon application that includes the cetane number, aromatic hydrocarbon content, specific gravity, and the temperature corresponding to the 50% point on the distillation curve in degrees Fahrenheit (TSO) of the alternative



## 37 TexReg 2018 March 23, 2012 Texas Register diesel fuel formulation for which the applicant is requesting approval as dete1·m!tted 

### In accordance with the test methods and procedures specified in subsection (a) ofthis section. (3) If the alternative diesel fuel formulation has been demonstrated to the satisfaction ofthe executive director and the EPA to achieve- comparable or better reductions 

### itt emissions of NO,. in accordance with paragraph (1) ofthis. subsection, then the executive director may issuo a notice 

### ot' approval indicating that the alternative diesel fuel formulation may be used to satisfY the LED requirements of §114.312(a) ofthis title. (A) The approval notification must identify the specifications ofthc alternative diesel fuel formulation as appi'Oved under this subsectionby listing the cetanc number, aromatic hydrocarbon contcnj. specific gravity, and the temperature corresponding to the SO% point on the distillation curve in degrees Fahrenheit (TSO) ofthe alternative diesel fuel formulation as documented in paragraph (2) ofthis subsection. (B) The approval notification must assign attldentificationnumberto the specific approved alternative diesel fuel formulation.**{~** :rheawJ-iwa.tshall initially

### subtntta prepesootestprotocol tethe eMeeutive d!relltofful' appra'lal, thai tnl:lst inehu.lei-} I(A-) the i.dtmtity afthe entity that willoondue! the**test~~** deseribed inpat'ftgriiph (4j afthls subseetie.a;] E(Bt a testing pla.a with test**~res** that tlfe ootlt!istemwiththerequirements ef parogi'Elphs**(~)and** (4jeft!HB**~!¥,-} .~**  .fuel analysis test data shewifl:g that the Gaadffiate .fuel meets the speeifieatioru; .fot the appropr-iate**~** Me. W 8-1-S e!' Grode Me. 2.-D st-5 diesel fuel as**~** tn the aeti¥e -vet'sien ef A.S:f..M**~ ~.fot** **ktbt~eity; endid~the** ehafaeter.istios af the**~e** .fuel iileatlHOO in paragraph (21 efthlssubseetian;] {(DJ .fuel analysis test data shewing that the fuel to be uwd asthere-ferenoo**fuel~** the clutraeter-il>ties ideflt;ifiedin parogt'aflh tJj afthis lffi\)seGMont.J {fE) a eetailed deseft!*ieti afthe**~** quality asml1'll!We**end~** eeH:trel preoodures thatwillbeimplententwhythe eflt:ityideRtl-:fiedin subparagraph

## W afth·is parog1'aflhto eRllW'ethe '1'11- :lkHty- afthe te.sting being performed; and} {tFj**~en** afan;y Ollilief ideBtffieatiea.aftd**elf&l~·** sien**~e** thftt 

### wtl! he l;ISed, and a demonstratiaa tliat any sueh preGe!iwe 

### meets genemlly OOGeJolted statistieal prineiples.]**~** :f..lieapplieaffi**shall~** the eandiaatefuelto**~e**uwd in the oomparotivetesting inaeeei'Eltmeewithparagraph t4) afthis**&~±9-** 

### seetien.3 £fAj +he**~** oo.atent, tetal arematie hydroeal'ben eentent, p&lyc-ye-lie**me~** hyEireearben, ftitregea oent&ll.t,**~** nl:lffibel'; API gravityindelt;¥i5ee&ity at44**degrees.~** flftsh tJehtt; and distillat:iaa**~** degrees Fahrenheitj efthe eandidate fuel !miStbe determiHed asthe twel'flgef}f·tiuoee**tests~**-in aeeer4mee ·with 

### the t•efet·eneedtest method speeffied in&ubseetien (a) 

### e-ftl.tis**~lo:]** 

### ftB1**~ ~er-native** **~fuel** formulatians thattitle an aElElitive in the candidatefuel te aelWve fedl:teHell$;**the~** shall**~to** the**~t.fve ~upoo~**  the**·identity,~­** $-1**~es#i0B;**end GOBGeBtratia.aef

### eaeftad4itive ·used ffi the .farmu. .tatia.B end the test meth.ed by whiOO. the pt'eBetleeil!ld eeneootratlen af the aElElitive mf'l;)' be detem1iaed.] {(G) :J:he applioont may alsa speei4iy «flY otherparameters ful' the ooaaidate 

### fuel, itleng with the test

### method ful' determiflingthe par-ametMs; +he llflPlioont shall previde the ehem-ietl-1 eelil:pe&itiea efeaeh additwe ffi tile eaadidate fuel; eJEeept whtll'l the el'lemieal oompesit4ea afan addtti-ve :is net knewB 

### ta eitheF tile applioont e!' 

### ta the ITJ.ftiUt-faoturet:ef the llilditi¥e

### tifetherJ, the applieantmay Jli'(Wide a full El:isele<r-e efthe ehemiool fll'Gee&S afmaaufaetll!'e afthe ad4i#ve ffi lieti efits ehemkffil 

### eeftlJle&:itieft.:J**f~** Th.e**·~fuel** used tft the**eel:~** testing

## eeseflbed i:n**~** (4j afthla aubseetioo must be predtieeEI ifem stmighH!m diooel ·fuel 

## ey a hy6redeftl'6ma!'izfttiea f!l'6eel!S aftd must ha-ve the fullewing ehar-aettll'·isties**El~e6** tfl 

### aeooreaaoo wi-141 tile l'e-fefefleed**t~ m~ed**  speOOieEI ffi 5llbseet4aa. (-a) afthis**~ {~}**  S1:llfur. eeateffi • H jlaftSpeFtnUl:ien**m~** 

### «B7 tetal aromati:e hytlro(l!ll'bea eentent

- -1-Q.% tl'la*i·**fiiUA~** -Yaffime j)eFeetltj-) 

### fEG-)**fl~ &re~Mtie**  hyclreearllea 0011teat

- -h4%; mftldmum weight peFeent;}
tnUtflt}

and} @-) B.itrogen eeateffi

- ten j')flftS**j'l~W** m-iJ1-ien, ffill*i· 

### ft.IB eetane llUflibep

- 48; m-inim1:1mt} 

## fEB API gra-vitytneeJE

-**~** te**~ tl~** **~** ¥io'!eesity at 4(} degrees Gelsius

-**~** te +.I- eentio'!·

f(-B tl:istill&tierej ffi) -init:ial b&i-Hng p-effit-**~0** te**~G degr-eet~** Fahren- {fff) .J4.% peffit •400 

### ta 490 degrees Fah-l'eflhe-itjj {-(iii) W% peifl.t

- 

### 4'tG 

### ta %0 degrees Fahrenheit;} f(-W) !}(}% p&iffi

- 

## m ta 6M degrees**Fahr~nheitt** 

### EM ern! peffit •**~** te 660 degrees**Fi!hr~nheit}** £(4--) E-X'ha-ust em-issi:alltests Uo'!iBgthe eaB.EI-i.dttte**ft~el** and the**t•ef~reaw** fuelo'!fleeitiedin-par-avaf!h**~**efthls subseetlenl!ll!Stbe oon.· dooted in aooerdanee 

### -wtth the federal 

### test preeedures M speeUl.ea in 4Q**~** iliFedeml R:egulatiens P&J"t 36 

### fGootrel ef Emissi&rto'! from New aad 

### la-Yse Highway .Vehieles and**Engin~ ~**  N $mffisi:eaRegulat-Ions .furNew Otte Cyele and mesel Heavy-!)my Bagines

- Gaseoos aa6 -Pai4ieulate -l*haust -Test -PreeeEiuresj, as -amencleEh-] {(A-) :fhe tests ffllffltbepe!'fuflnedusing a-)';)etroitDiesel Gtlrperati-ea Series-6() engine & an**~** speeifie6 

## ey the applioont and appreved by**~he ~eeutive**  dit-eete¥ te be e{jOOI:ly representatwe e.f the pe&t-1-990 meElel yellf fieavy tbzy diesel eagifle fleet. -the 

### test engiooillllSt

### have a·m-ininHIHI efill

### hoofs efllStland**~hie**it &table operlltioobeferebegitmtng -the**testing~** -in thls pllfllgffl;ph 

## IIIiamust netel'eeea-1--W% efitsapplieaele ex:haustem:issiefl staadardswhen

### m· ffig the referetwe ·fuel speeffied -in paragraph

### t31 efthis·&ubseutien.j 

### {fB1 -tile**~** testing**tll:tt~** be eendueted -by a tflffil party 

### -that-is mutually agreed Uf)ea by tile eJEee-u-tive tiireetm ·and the**appli~t. ~e**  awlieaat -shallee -l'e!lp&BSible**~** al-1 005ts e-f4\e eemJlarlltl'te -te111:mg.] ·((G-) -the applretmt 

### OOa!l eBSUre t-hat ene f)-[the 

### test**J~e·** queaoos -in**~e**

### fi-1 or{-iJ) ef-th-is subparagraph isused te eenduet**~he** ex;haust emissions -tests,-] f(i) 1-fbetll %l.d

### -sttwt-and fl&t st!lflel!haust em-i-ss:ien tests 

### are eondueted, 

### a minimum**t~f**&te**~** emissiet1 

### -tests, eaeh 

### test**~isth1g** .ef-at4\l!ISt ooe ool4 st!lfland twa hot-st-arteyeles; mast -beper-for-medentheeagi-newith.eooh**f1:1e~**t1singeifuer&fthe fullewing -sequenees; -where .!!.R'J isa testootherefereuee .fu&l ood.!!G!!**-it~** a 

### -testea -the eandidatefuel.; RGRGR:G(-and**~-in**thesamee!'del'jmRG -GRRGGR**RG~**ooatitmffigmthe

### -same<tJ>deJ•)o -theengiaemappffig**~reeedures** 

### and -a eenditiening trflllS-ient**~** fflllSt be ooAduetetl -with -the 

## rererenee fl:Jel befere**~eh**oold startJII'Oeedur-e tilling ·the ·referenee fuel. therefereaee eyele t!Secl fer**the~** fllelllll!St be the 5flftle eyele M that 

### -used .furthe fuel preeeEiil!g :fu) f(ii) l.f

### eruy**~:Jet** 5taFt**~** emissloo tests 

### are e&fi• dueted; ene afthe fellewing test 5equeaees mtlSt be 

### \!sed tmeugheut the testing; -where !!R:ll is a

### testoa the refere:aee fuel and .!!G! is-a test en the eandidatefuel;**~eh**t$teeas-isting ili at**~st**threehetst!lfleyeles!:) fflt Alternative -li RG GRRG GR-. (-eerttimting-in the Sllffie &!'del' -fe1 a gt¥tlll ooJend.ar**~** a**n~inim-~1m** af**~** i:adi-viclool hat**start~** mustbe OOJ.'Etpletecl-with eaeh 

### flleW f(il) Altemaaw**~** R:R GG R:R GG (eentinuing in-the

### wrne ewe!'fef agi¥en**~~a** minimum**ef~** -ifldi'fidool het5taFt**~** tnllSt be oomplete6 -with**~eh** fuelf,] {flll} AJtemative**~** RRR GGG RRR**~** {-ee-n· tinuing in the same eJder fer a gi¥en ealendar**~** a minimum efU ffidi¥idual hat**start~** 1tlllSt be eemJlleted with eaeh fuel-); efj ffl¥} Altefltative 

### 4t. AAGGGRR

### fa mini:mttm ef s*hat 

### start eyeies 

### mUst be pe!'f-ertned enthe referenee fuel f&lfflwed with a**~g** pel'ied wtto**~**

## n hOOfS efengine epet'lffien en the ea£ldidate**fu~** before the 

### rust iftdWitlwl bet sttlft et'llissien 

### -test eathe eand-idate**.:fi~:~el** ill**flerf~** the eenditlening eyelemust repre· sent net'fl"lal engine eperatien; amffii±wm efnine hatslaPt**~** 1tlllSt 

# oo peFfetmed &n the ea£lditiate fuel afuw the eenditiening**pefi:e~** enlythe emis&'ieas from the tests en the refereftee .fuel eenduetecl befer-e the eandidate fuel test-s must be used in tile ealeulatiens eendueted ffi oo· oorcdanee with paragraph

## fA efthl11 llubseetieu)aminimum efs-H. hot start&yelesmust

# oop$rf-ermed enthe re&reaee fuel**~the** eandidate fuel tests te**Elet~** any etlffY-O'Iei' efi"eet fuat may aeGuf .frem the use eftlle eanEiidate .fueiH {(Hi) Far altematives 

### ,1,**~and** -3,- an eEjtlill fl\lffibep efte&s l!lllSt be eandueted 'USing the r-eferenee .fu&l and the eandidate fuel enileyg-i¥eB. oolendaP day, A-t-the begifming ef

### eaeh ea!entltlf dey, fue SeiJ:tienee eftesting must begiH with the f1;1el that was tested at the end effue**~** 4ay;) f(iv) Fe!' all altematives, the engffiamapping pr<>ee· tiures and a otmdit-iellffigtmnsieflteyele l!lllSthe oonduoted aJte1 ever-y .fuel ehange andler- at the beginn.ing ef

### eaeh day. +hefefefenee eye!e generated .frem the refe!'ellve f1:1el ·forthe tl-l'st

### test must be 

### -used fer all Bubseqoont-tests.:} 

### EM Eaefl paired e!' -triplieate sePies e-f indiv-idual tests must be aver-aged 

### ta ebta-in a single ¥!llue that 

### wetikl be used ill: -the ealeulatiefls \lelidueted ·in aeem'tlaflve with paragraph 

## fA efth-Is aubseetiea-] -ft9j +he**~rt**shaH sub1'llitatestJJehedHie te theWE· eeutive d1rootefatleast ooe week pri:e!' 

### ta oemmeneemeflt-efthe 

### tests' thetest**sehed~1le** must-iEieati.fythe4ays

### tha! thetesta-wi-l-lbe eanduGted; and 

### mu-st previde fer eefldueting**~he** test oonsee-u!Wel-y witheut

# m· stantiul intet'ru13ti:eas ethel' than these resuHing .fretn the nomtlli hOOfS efepet'atien,g ut {he testf-aeility. The eJEeeUtive diFeeter Olhis designee shall 

### be permitted 

### t-a absel've any testfu the

### i*1f1Y eendueting the test· ing shall maintain a 

### test lag thai -identifies al-l tests eandueted, all efl· gffie mapping praeeaures; al-l physiool med#ieatieliS to .of o(:let•atianal



### PROPOSEDRULES March 23, 2012 37 TexReg 2019tests eftlwGngine,allre-ealibt•ations Oi' othet' ehangesto th;; tsst io£tFu· ments, aad

### all inter-ruptions between

### tests arul the l'e\\600fu!' e:aeli sooh ·intem1ptien.- AU tests eene;luat\!tl •n aooePdanoo with the**~** sahedule, etflefthan

### any

### tests rejeete4

### in aee01•danee with illl eat-lie!' ldeatifieatian and e:X:elusion preoomw**~** ffi**the~** 

### test protoool; must be**~** ffi 

### the eemj'lal'ison efemissions in aacorcdanoo 

### with fllli'a· gt'ap-h**€S~** efthis su!J.seetion.} 

### ftE1 In eaeh test efa fuel, eJth&nst emissions efexidea efnitrogen (Nt:lx); total hyaraGJll'bons**~nan methane~­** **bans~** andpartieulate matief(PM1 must be measm•oo,.] [{l'j !fche ll*haust emissions testf! desGfibed inthis pamgr-aphmust natbe eendRGteduntilthe**test~** as deseribedinpara•

·gfflj3h

## EB ef**~'his** fftlbsoot:ien is approvedbythe 

### eKeeutWe**~** f(Gf llflen sempletion of the tests**~ed** in this JWagl'aJllr, the appl:i(.l!lll:t may submit fl.\1 appliea:tien fur. ee(tifieatian**t~** the emJe1!ti·1e 

### direeter. +he appl:ieatien must inelude th.e**~** test**pr~toool,** all efthe

### fuel analysis 

### and emissions 

### test data, a oopy of the oomplete test leg prepared in ileoordanee with subparagraph (I)1 ofthis pal'agl'aph, a demenstl'atien that the earulidate fuel meets t11e**r~emeflts** ful' Gertifieatioa speeified in this subseetmn, arui ethel' iaferma!ioo as the e:X:eoutive di!eete!l**~** reasonably require. ·l:lflen l'Wi&W ef the eel'tiB.eatiea applieaiien;- the**eX:eettt-iv~>** d-it'l!GteF shall grant 

### or- Eleny the: ap!»ieath·>ll• Any.**d~** must be aesompa.nied by a 

### wffitefl statement ofthe reasons fe!' 

### deniabl**~** :fhe aver-age**emil!Si~** EIW'ing testing 

### with the &&1\EI-idate fmH lmlf!t be. aempal'ed to the avel'age emissions d\lfiog testing with the r-eftll'tmee**fu~** speeified in pa!'agl'aph**~** ef

### this subsestian; applying 

### e11e-sided**~** t statistiw as set rorth: in Snedeoorc 

### Ill*!**~** StollstieaJMethods**~ ~** **~** 9-1, lewa .state, l:Inj- ¥ei'S}tyl4'e55; 

### Wl«h +heexeeutlye di!e:etefmay tllsue a ool't!B.eatlen m aeeardanee withthis ptll'agraph 9nly if the executive dirootel'**~all** efthe fullewing determinations:] 

### IW the avewge inah.:iaua-l emisl!iens efN9; aad PM, respeetivel1; 1llOOfdsd !luringtesting with the eandiilate fuel are oomparahle erbette!'

### thaa tlleaverageind!vidualemissions**ef~** and PM;**rasp~** feeerdeEl dur-ing·testing with tl)oe referenee 

### fueJtl 

## WB 115e ef any additive ide1<tmed ffi aeeordanee with f3!1t'llgt'!lph**(~(Bj** efthis Sllbseetien in diesel: flowered engines wi.U not inerease e:missioru; efne*io11s 

### or- lolHo substanees that wootd net be emitted by saeh engines eperatiog

### with6Ut tlte additive;] 

# ·«Gt inel'tie!'fer-the determinatiens ins11eparagraph

### W efthis pru·ag.rapn to be made; fOi' ooeh t'e'm-&a.eed pellutaa! the Gandi

### aate fuel mu1tt se.ti!!fy !:he fe!lewing relationship; and]**~** W :fAG. §114 .315(e)f-51(:G)] f(I}) the average tadWidtm! emi&iiens ef mG and NMMG; reS!*lGii'.'el:y, i'tle6l'ded dlffiag testing with 

### the &&1\diElate :fuel do nsteJ!Geed the 

### test engine's applieable Gl!:haust emi&Sie.n staadards,} ffi) the tetal ft1'0illlltie hydroearben eootem; eetane wmbetj oF oth61' 9Ha!'ae.tel'i£tias as**appFe~t~at<l** nnd as detGr·mined in aeeerdanee with -the 

### test methods identitied in subseetien (a) efthis**~-Of}** ffli) fa!' an al!ernati•1e diesei 

### fuel fetmulatien \!Sing nn adcl:itive to aehieve reduetlons; theidentity and mJniffltlffieeneentl'afienru tJ:eatment !'ateeftheadiDtive,the minimum speeifieations eftha belle diesel fuel Ul!eB inthe approved fermulat:ian, arui the 

### testmethod er methods that must be used to satisfY the menlter±ng requirement-s**ef.~** ef**~ title·~**  to Monitoring, Reoordl.Eeeping, a00**R.Gpartmg~** {fBj The apprevalnotl&atien must as&ig.n an ffientifi. eatientl\lffii'Jer tothe speeffie**appr~ved alt~**  diesel

### fuel**f~rmula** tien,:j

. (d) Approval ofany additive-based altemative diesel fuel formulation as prescribed under this section prior to April 1, 2012, and**thereafter~** i:J suhject to !'eVOcation ifthe executive dircctol' determines thatthe composition ofthe additive componentofthe approved alternative diesel fuel formulation has been altered so thatit no longermatches the composition ofthe additive as originally approved. Ifthe executive director revokes the approval of an additive-based alternative diesel formulation, producers using the alteritativc·diesel formulation to satisfythe LED requirements of§114.312(a) ofthis title must discontinue all use ofthe alternative diesel fom1ulation with.l.n 45 days ofthe date ofrevocation. [Natwithstitndiug llubseotlon (o-) efthis seetkHI; the e.xeGUtive difooter; -llflOO· applleaden, may approve alternative diesel fuel fermulat-ions as presG-r1hed**unde~ fl~**  Gfth-is title**~bat** 

### may be ousedto£atisfythereEJ:Uirementsef§114 .312(b) aad

### Wefthistitle if 

### the appliGanthits 4emenstfated te tho oot.i&fal>fien efthoG*e<mtwe 

### dil'OOt&!' tl!l.dthe EPA -tltat 

### the formulation 

### will aehleve eemparaele er

### bett'el•t•e· dHOOeRS tn emissions efNG_aud PM.] 

### fEB Fer- al<ernati'lediesel fuel formt!latieru; thatuse rutadditWetoaehievered\-IC-tions;theapp!ieantshallprevidete the ell<eem.ive direGtl'lf UJ*)Il applieatien,the identity, 

### GIJ.emieal oompesitien; tl!l.d GOO· eentratlen.efeaeh additive

### usee-in the for-mulatien, and thetest methed by- whlcll the J:lreseneennEI eoneett1Mtiea efthe aeai-twe tMybe deter· mffie4}**f(~** If the 

### alternative diesel fusl formulatien has.

# ueen dtmlensirated to the &a.tisfaetion of the elreGUtive direetor and the EPA 

### ro oohieve eem:j*}r-&&le OP 

### eGtte!' redlK?tienll in emi!!siens**ef~.** 

### Ill*! PM

### llflde:r this subseetien, then the e!l:ee\lthe 

### dire&ter may issue an appreval netiiWatioo eertil)'ing that 

### the altemative diesel fuel formulation may- be 

### used to**~the** FeEJ:Uirements ef**f-J.l4,3..J.~-a-)** ef this title,} f(-A-) :r:l1e apfl.ravai netifi.Gatien m!lst4d6lltio/the fullawffig**sp~GBB** ef-tlte a!ternatiYe diesslfuelfermulat-i&n as approved lffitler this subsection:] ffi} the tetal aromatie 

### hydreeareoo oontent, 

### eetene mlfflbet;eP eth.eFparametercs as ajljlropriate endas deW!'mi-ned in00001

.. danoo

### with thtl testmethods 4dentflied ffi &Ubseetien

### Wefthis seetienj orj {{e) If the exeetllive direGter fiMs -tltat <teanElid&te fuel lias ileeo preperly

### testeB

# m awerdanee with this sabseetieiJ.; ood makestlte determinations speelfti!d ffi**paragraph~** efthis s•Jbseetian, theJl the**~** d-ifeet&F me:y; 

### &fte!. eens:Jitatlaa with tlte EPA, issue an ap· tJrevaJ aotifieatien aertifyiog that -the a11ematP.•e diesel fuel ffimmla· f(il) fur. an alternati'le diesel 

### fuel using an additi'le tien l'tlJif&S&atoo by -the eandidate fuel may be 'Used -te**~-the** fe- tooohle:vefedi:leti&AS;theidentity-tl!l.dminimumoonoontFatione!'treatquirements ef**~** efthlf! fit!&; :r:he approval netifieatien must moot .rate efthe additive; the**~nimum** speeifieatlens

# a:the base fusl identif)' aU efthe relevant eha¥aeteristies efthe enndid&te fuel deter· tlf!ed ffithe

### ap~ fermYiatt?n,

### ~ the

### ~ metho.d Ell' metheds

### ~

___.._

### ____!!line~~**~i~.~~l!!tP.~tJ~J~h>f~ su~~G!jan.]** ______·--=be

### ~~-~-the**me~~~~tng re!~~~~nts** **~§** 114.316

### ef~- _________ 

### 1W -The appreval

### netifullltien mw.Hidentifythe 

### ful!ew· ing speei&atk>AS efthea!ternati·1edieselfuel 

### fo!'mulatien as appreved tmd&l this sullseGtion:]



## 37 TexReg 2020 March 23, 2012 Texas Register f(B1 !fche appl'evalaetifieatien tm1-st assiga an l.EleatifiGatien a\ltllber tothe speeiful appreveG**~** dieselfuelfurmuJatielh:}Wj +he**d~** fe(jUired \lftder this 11\!bseetiett ttffiY be 

### Bffiisfl:ed**~lSing** the**~Medel:** 115 desmaed ffi the EPA 5taff <iisoossffitt 4eetJmeffi, S/Mte.giee 61nd**let~Ufffl** 

### in Ge/Wiflt-ing.f)ie&l;lFuel P-Fepe.l'tles w#h**Em~s-9/{;}1'111; llll~liootiett**  Nmnber**~..P..W..GQI,** pa&l-islletl Jaiy;!00-l, te aemen!ftflfte 

### tlutt tile applieahle f-uel pr-epei'Hoo efthe alter-nati-ve diesel fuel femRI!atieB will aehleve at least a**~ ~eft**  ffi NG-- emissiens :ftem ett-l.'ea4 diesel fuel: 

## mf the ye&l';!001, and fit least 

### a**~** r-eduetiea ffi 

### NG;; emissions frem OOIH-ead

### diesehl £('8**~-he der-n~**  fe(jUiredettderthis Sllhseetioo may ee 

### satlsfie4 

### ey the verifieatien efan <ei•Ilatwe diesel fu&l: fer-mllla· #ett 

### ey the Ai·P P&Yatioo Gootrol Teehnelegies**G~r,** a eenttll' llll·**de~•** the BPNs Etwit'eftmental :reelmelegy VerifieatieB :Progffim; and the EPAAI GEtiee**ef~ertatien** lllld Air- QaaJity!s**llelt~ntary** )}iesel RetroiH Frogpam.-; defllflnstreting at least**a~** retluetien in 

### NG;; emissi.ettS when OORlf)&f'ed agaillst a base diesel fu&l: wit-h fl.-tel preperties withift the r-anges 115**dese~•ibed** fer ootien-wide a¥eJ'Ilgtl fuel 4n 

### ElWs T41r{fieatlen**~fm** .f>etel'mlna#enefl!imiesi81'11JRedueliei'IIJ 

### fJbtftined by Yse 

### ef Altemative {;}I' 

### Refo.-rnulated bi£juid

### Fttel5r Fuel**Addlti·~es,** Fuel Emtilsiel'lff;**&~d ~nlil**  fm' JlighwGy £mdNenraed the Diesel Engines- 

### and bight .f>ufJI Gs.selfne J!,ngine!J 

### and ·Vehidee (Revi11-ien 

### Ntr. @;Septembef**~** (e) All alternative diesel fuel formulations app1·oved by the ex· ecutive director as prescribed Wlder this section prior to April!, 2012, may continue to be used to comply with the provisions specified in this division. §

### 1/4,316. Monitoring, Recordkeeping. andReportingRequirements. (a) Every producer or importer that has elected to sell, offer for sale, supply, or offer for supply low emission diesel fuel (LED) produced at its production facility or imported fi'Om its import facility in compliance with the requirements specified in §§114.312,.114.313, or 114.318 of this title {relating to Low Emission Diesel Standards; Designated Alternative Limits; Alternative Emission Reduction Plan, respectively) that may ultimately be**use~** in counties**lis~ed** in§ 114.31,9 ofthis title (relating to Affected Cmmt1es and Compliance Dates) IS subject to the applicable requirements ofthis section. (b) Each producer or importer ofLED [All

### reeofds relating te law**~JT**diesel (I..,IID1lltll'!lf)liag] must keep records that declare or demonstratethat eachfinal blend ofLED [ eentainastateme11tdeelar-ing**~the** aretlH\tie**h~·ree&fban** 

### eantent a·fth<l sample] conforms to the basic LED standards [stEIIld&OO] as specified in §114.312.00 [W] of this title**[~ttting** tebewEmission :Diesel Standru•ds-)], to the [a] designated alternative limits as specified in [limit Q;}:A.±r} in 

### aeear-danee with] §114.313 ofthis title [Erelftting 

### te 9esignated Alternfltive :btmitsj]; to the specifications ofa Certified Diesel Fuel FormtJlati?n or a diesel fuel [al..tma] as accepted under §114.312{2} [(e)] ofthls title, [orwhether the 4iescl fuel eonforms] to an alternative diesel fuel fol'mulation as approved under §114.312@ [fi)] ofthis title, orto an altemative emisSion reduction plan as approved under§ 114.318 ofthis tide. (c) Each prodtJcer or importer ofLED [a diesel fitel that eenf&mlste §ll4.312(a)- Eej efthlsilile] shall collect and analyze [sample and test 

## fer. the

### ~ hytlffie&fbett 

### eentent and minimum ootatw l'll:lfllbet' ffi eaeh final &lend ef.t,.BJ;> that the pr-edueeP**a~** impertet' tlftll**p~** &!' tffifJ&I'ted, 

### ey eolleeting 

### -and !lllalyzing] a representative sample of each final blend ofLED produced at its**prod~1ction f~cil·**  ity or imported from its import facility .for**th~** fuel properties sp.ec!lied in paragraphs (l)

- (5) ofthis subsection [diesel fuel taken w.>tag the ll'lethedaJegies Sfleeified ffi**~** efthis

### title**~ing** te /\jJjJf!lYCS test Metheds-)], (1) The aromatie hydrocarbon content and cetane nwnber must be analyzed for LED produced or imported in accordance with §114.312(a) ofthis title using the test methods specified in §114.315{a) ofthis title (relating to Approved Test Methods), (2) The aromatic hydrocarbon content, cetane number, and/or any other appropriate components specified in the applicable California diesel fuel regulations or the exectttive orde1· issued by the California Air Resources Board (CARB) must be analyzed for LED produced or imported in accordance with §114.312(c) of this title using the test methods specified in §114.315(a) ofthis title and ifappropriate, the test methods as listed in the executive order issued by CARB. (3) The appropriate components of the alternative diesel fuel formulation as listed in the approval notification issued by the executive director under§ 114.315 ofthis title must be analyzed for LED produced orimported in accordance with §114.312(d) ofthis title using the methodologies specified in§I14.315(a.) ofthis title and ifappropri· ate, the test methods as listed in the approval notification. (4) The aromatichydrocarboncontent, polycyclic aromatic hydrocarbon content, American Petroleum Institute (API) gravity in· dex, cetane number, nitrogen content, and sulfur content mttst be ana· !yzed for LED produced or imported in accordance with §114.313 of this title using the test methods specified in §114.315(a) ofthis title. (5) The aromatichydrocarbon content, cetane number, spe· cific gravity, and the temperature corresponding to the 50% point on the distillation curve in degrees Fahrenheit (T50) must be analyzed for LED produced in accordance with§ 114.318(b)(l) ofthis titleusing the test methods specified in §114.315(a) ofthis title. (6) Ifthe final blend ofLED required to be analyzed in paragraphs (2) and (3) ofthis subsection is produced at a production facility with the use ofan additive as it is being loaded directly to tanks, pipelines, tank ships, railway tank cars, tank trailers, or fuel delivery trucks, the prodttcer or importermay satisfy the srunpling requirements ofthis subsection by recording the volume ofadditive and the volume ofdiesel additi:red in each final blend ofLED as it is prodltced at the production facility, The analysis ofthe volumetric record must demonstrate that sufficient additive was added to the final blend ofLED to maintain the appropriate additive concentration per gallon as listed in the approval notification issued by the executive director or in the executive order issued by the CARB. 

### .0 The produceror importer shall maintain[; fer twa ;'llftfS fromthedate of ea&ll**.sam~lffig;]** records showing the sample date, iden· tity ofthe final blend sampled, identity of

### the container or other vessel sampled, volume ofthe final blend sampled [:Yolume], and the fuel properties ofeach sample as analyzed in accordance with paragraphs (1)- (6) ofthis subsection as appropriate, for two years from the date each sample was collected [aromatic hydroearoon content and minimum 

### eetooe llllffibel']. 

## ill All LED [diesel fuel] produced by the producer at its production facilities orimportedby the importer from its importfacilities and not tested [ftllIrED] by the producer or lmp01ter as required by this subsection [seetioo] will be deemed to exceed the standards spec• ifiedln §114.312 ofthis title, unless the producer or importer demonstrates that the LED [diesel .fuel] meets those standards and limits. (d) A producer or importer subject to the reqttirements ofthis division shall provide 

### to the executive director any records required to be maintained by the produceror importer in accordance with this section within 15 days ofa written request from the executive director, ifthe request is received before expiration ofthe period during which the records are required to be maintained. Whenever a producer or importer fails to provide records regarding a final blend ofLED in ac· cm·dance with the requlre111e:9ts ofthis section, the final blend ofLED



## PROPOSED RULES March 23, 2012 37 TexReg 2021will be presumed to have been sold by the producer or impotter 

### in violation ofthe standards specified In §114.312 ofthis title, to which the producer or importer has electe(i_to be subject.**~ ~**  ru**~** ef'a 4iese!fuel that**~nfOfmll** ta §114.3 12(f) &!**this~~** sampleana

### wmfeEthe awl'&fll'*l*e wm-pooetlts ef the altet'natwe**dtoo~** fue-l furml'!ladan as listed itl the appraval net-ifieatioo 

### issued by the 6*• eeutlve direetenmdeJ' §l14.315(c) ru

## Wef 

### this title ffi eaeh final blend of

hEllthat**the~**ru-impaftefhas**~dueed** er- impor-red;by ool· l.eeting aad**~ng** 

### areprooentative 5llll1Ple 

### ef 4iese! fue-l**taken~** the final blend; using the metlledelagies 

### speeitied ift**~-1-14,-3-1-$** eftlus title, If**a~** 61'**~blends** the diesel fuel oompeooats e-fthe. approved alternative dies0!fool furmulation.

### to**~ee**a final blend e-f biiD direetly to pipelines, tank ships, railway- tank Gal'S; 0!'trueks**~** 

### trailers, the loading(!;) ID\ISl be

### 5lllllPled and tested fut! the appropt'Hite components efthe alternative diesel fuel fuFmulatie:n as**~** by the eKeeuti.w direetaF by the**~** ru im.-pol'l.el' or- auth01'W.:OO eontraetor- at a

## me e-fene sample andtootper.**2.~{},000** gnUeAS e-ftJIDpro· duced, :rhe pmd\1001' of impoftef OOall maintain reoords 5howing -the**~date;** klentit]< efblend sampled; eentain.eJ' ru**~~-sam** pled- final blend Wllume and the oontent efthe apprepr-tate -fuel oom· f>Otl;nt-s fur twa y-eat'5 .from the date efeaeh

### lllli11plin~ All diesel fuel**~Ekleed** by the tlmducer**o~** impor-ted -by the**~** flfl4 oot tested as -blm by**the~** iW**~as**reEfllired -b)l tflis see.t-ie-n will be OOemOO. to 6*GtlOO -t\le standards 6peeilied ffi**~** e:fthis title; unless the**~duee~** 01 -importer tlemoo&tl'atCll 

### -tllat the iliesel file! meets those standards and limit&.-] [(e) Iftlte**alternatiY~ ~** **~e-1 fer~ulatian.**  .being**~** atlil tested undeP <lttbseetien**{;~** &fthis**~ ~**  an addttwe fiY!Iretn; the fulal blerui fiHISl be -sampled and tooted fer- the**~~eat** efthe apprepriare 4\Je-1 oompanents ofthe base ffiel and add-itive as -listedillthe app1'0¥111 netlfieatianisSHed-by-t\le S*eeuHve direetarOOE!tW §ll4.31S(s) ruW ef-!hls title; a11cl tha pr-od-uGeJ'**~r ~**  ru authe· tilled oontr-aGter- 6hal! rnaintai!l**~** 1lhewlng thatooffieientadditive was added to 

### maintain the apprepriate additive oonGentmtie-n as ap· jli'O¥OO by the**~** direetal': i-fthe additive is appr-oved -by**~** e-xe-Giltive direetef fef use with 

### 4iewl fue-l pr-edtleed -to GelnMz with the fuel oontent standards 5J:le&iFlea -in 40 Q>ae e-fFederal 

### Regulatie;as**~the** tast-ing f-er the

## oomeru efthe Riel oomp61l:eft1s afthe ba!le fuel is oot reEfuired.] {00 A**~dtleer-** ru impeftef.-subjeet

### wthe requirements &fthis diw-ien-shall pr-ovide tothe exeGutive direelffi' any feeer-til;**~·r-ed** to be maffitained by-the**~lfueet'**ru importerinaeeer-danoo withthis see· ti&fl within .g 

### aaya efa Wl'itten reqEeSt ffem the S*eeati-ve Gir-ee-ter; -ifthe l'eEjiMlstisfeOOi.ved befur-e**~piMtien** af**~**t!Wd dul'ing whi4 the reGar-ds are**~** te be ataintaifled. Wftelle¥61' a tlFOOuooF 0!' -intpoftel' fails te**~e**reoords regafding afinal bleOO ef IJID**~** ae· eei•Eianee withlhe re£tUirements efthlsWGt1en;- the final blenEI efdtesel fue-l will be p1-esumed to have been se-lcl by- the pr0dooef e1imf)Oftel' il1 ¥ie-iatioo efthe standards 

## Jlfleemoo il-l**~** ef**~tie** title; te wh-iOO the produeet= ru**~** has elee1etl tebe**subj~t.) ~** **[{~]** All patties in the distribution chain (i.e., producers, importers, bulk plants, common carriers, [f>reduool'; -importer, terml- 'Rals,**~~elioes;** {ruekers; fail**~]** and t•etail. fuel**dispensi~g o~t**  lets) that supply diesel fuel subject to the reqmrements specified 111 [!:>revisions 

### efJ §114.312 ofthis title that may ultimately be used ln counties listed in §114.319 ofthis title shall maintain copies or records ofproduct transfer documents for a minimum oftwo years and shall upon request, make such copies or records available to representatives ofthe commission, United States Environmental Protection Agency, or local air pollution agency havingjurisdiction in the area. The product transfer documents must contain, at a minimum, the [ful!ovring] intbr· mation specified in paragraphs (1) • (7) ofthis subsection:



## 37TexReg 2022 March 23, 2012 Texas Register (I) the date oftransfer; (2) the name and address ofthe transfet'ol'; (3) the name and address ofthe transferee; (4) in the case oftransferors ortransferees who are pr?ducers or importers, the registration number ofthose persons as ass1gncd by the commission under §114.314 ofthis title (relating to Registration ofDiesel Producers and Importers); (5) the volume ofdiesel fuel being transferred; (6) the locationofthe diesel fuel atthe time oftransfer; and (7) one ofthe [.following] certification statements sBecified 

### in subparagraphs (A), Q3}, or (C) ofthis paragraph, as appropriate: (A) "Thispi'Oductis Texas lowemission diesel and may be used as fuel for diesel engines in any Texas cotmty requiring the use oflow emission diesel fuel."; or (B) "Titis productmay not be use.d as fuel for diesel en· gines in any Texas .county t-equiring the use oflowemission diesel fuel without further processing.''; or (C) "This producthas been produced under aTCEQ approved alternative emissionreduction**pl~.**and may be**~sed** as**~el** for diesel engines in atty Texas county requmng tl1e use of low emtsston diesel fuel." 

## fW 1"ereaeh lioolblend-that-i-s**~eld** 

### m· suppliedhy a '(lfetffioor w -impor-ter .ftom -the pruty!s fli'Odootien .faeility m- im-port faellity; and that 

### oontains -vekanes efdiesel fuel that -the party has**~** and ll'n!'Oftedand-volumes{batthe party-ne-itll.twpre-dueedflarimperted, -tll.e**~** iW importer 

### -shal-l establish, maintain, i.I.Bd r-etain adeij:uately ot•ganizedrecot•ds**~ont-ainlng** -the fo !lowing infurmatien.] 

### ftl1 l'he¥alum(! of**dies~!** f-t1el ffi the &a!blend that WM net**~redtieed** er-impor-ted hy the :t>r-o4ooel' er im.-p!lrtef; the Menili)l ef the-per-son(s)framwham 

### sueRiliesel.fuelWM**~the**aate(-5) -that -it WM**~** and the**-inveioo(s~**-r-epresetltlng the aequisition(s).] {-(21 -The 

### ammatiG byaree-at'OOn oontent -onE! tlte eet-one -numberefilie -volumeefdiese! il-l-tll.efffial bleOO-thatWMoottlredtieed erimf)O!'ted -by

### -the pt=o4ueererimf)OI'ter,**~etefl'fliHed ~itll&J** **-~]** 

### fW -&amflling and testing by the t*edtieel' 0r**-~mpeoo=** efthe**~**iliesel.fue-1 

### tepr-eseffietl ffi the imal-bleRdj**~1']** @) Wl'itten results ef-sampltng and test &fthe diesel fuel**~ed**-by-thepeFSooW .from-wOOm

### the<lies&!fu&l 

### was aeqtlifed.] 

### -ft31 A preEffieerru-impol'l.el'-s1:ibjeettoth-is oo-!3seetioo sh-all est-ablish**~uoh**rooeFds -by -the.timethefulal blend triggering-tll.erequire· meats is se-ld ru 

### oowJ:ied .ffe!n the -pr-odll&tioo iW-imf!el't .faeilliy; and Gball -F&tain -sooll feOOJ'ds fa!' twa 1'6afll.fromwebilate, .};)u1'ing the Jlefied efl'eljtlir-ed reteatioo; the pvool:leer iW-imp&r-tel'-BhaU make 1111)1 ef the reoor-ds available to the eMeemwe direete-F -llfl&a**~** 

## ill [Bj] Each producer or Importer ofLED subject to subsection (a) ofthis section [eleeting te**~** effer fur -sale; 

### OOj}I*YJ**'<~)'** 

### effev to -supply hEf) ill**~ce with~**  0fthistitle) shall provide a quarterly summation report to the executive director 110 later than the 45th day following the end ofeach ftb.e] calendar quarter and must maintain arecord ofthe information submitted in the quarterly report for two years from the date of each fl.lport. The quarterly report**must~** submitted on forms prescribed by the executive director and must in· elude [-j)N¥ide], at aminimum, 

### the information specified in**pru·~raphs** (1)

- (3) ofthis subsection for each ofthe producet's product1011 fa· cilities or fot· each ofthe importer's import facilities: [the .ffifert:natien**~to** -be oolleetecl-by subseeliens -(s) "**~ana** til) ef-this -seetien

### ftflti a t'ee&aeil-iatioo efthe**~ ~ns** **fcl.~m**te the reE!Utreffieflts eflffibseet:iens (e) • (ej, ftfltl 

## Wefthls .seetjen, 

### YpE!!Ites ef re· ¥isions te 

### estimatOO tJ!aHBa&tien veffimes required .by suhseatlenB 

### t&-)- (e) efthls seetioo m\.ISt be 

### inelutJed inthls rep&rt.] (l) the total volume ofLED produced or imported during the calendar qtJarter that Is subject to the requirements ofthis section, and ifthe volume ofLBD required to be reported in this paragraph was produced with the use of

### an additive, the total volume ofadditive used to produce the LED must also be included In the quarterly report; (2) a reconciliation ofthe records required in subsection (c)(7) ofthis section for each sample collected and analyzed dtJring the calendar quarter; and (3) any other information determined by the executive di· rector to be necessary to demonstrate that the producer

### or importer has produced or importedLED thathas satisfiedtherequirements specified in §§114.312, 114.313, or 114.318 ofthis title. {g) 

### [€11] Each producer or importer electing to sell, offer for sale, supply, or offer to supply LED in accordance with [under] §ll4,312{1l}**[~]** ofthis title shall provide to the executive director, as applicable, a copy of the executive order Issued by the CARB [Galffilmia Aif Rese\ll'ees Beftl'EI.**~]** for the Ce11ified Diesel Fuel Fonnulation used to produce the LED or documentation demon· strating that the LED has been produced to meet all specifications for diesel fuel under regulations adopted by the CARB, except for those approved for small refinery compliance, that wete in effect as of August 4 [January!&], 2005[, and shall oompl.')' wJ.th the**r~quireJHents** afS\lbseetians 

### Ee-) and (h) eftfl-is wetiert using the W spooffieatians f{)J'**~** hydreaar'eon ftfltl eetllne set ·\)y tail! exeeutive affi.et 6f**r~@*la~iens].****EEl~)** &&h**pre~ ~**  te $ll, etl'<lF ror sale; sapp-IY; 6f**·~** te**~diesel**fuel.ffi aooerdanee**with~~** ef41is title

## tre· Wing te Alternative EmissieB**~B P.lan~**  sha:H ooJI'lj}ly with the samt*ffigandtesting**~eqt~irements** ef sl:lbseeti&Hs (d) ftfltl

## W ef

4lissee· tien fe1• the llf'!Jl!'eJll'iate fuel 00ffif1anentll eftaG dies&! upen wh-ioo fue 

### fll'6.ieeteEI emislliooreduetieas Wet'ebased, -Eaehprodu\lef**shall~** a ttuarterly repm't te the eJ<esutive 

### Elireet6f oo l.a!ef than the Mi·tl1 tlay fellewiflg the**~** efthe**oole~~.dar** quarter, Cf-he EJ:lltll'terly repefl must

·provide, at a minimum, the f-eUowiflg information:] fE·l-) thevolume efdiesel·fuelpreau-i

### eytk.GpreduOO¥that**is~** te the pnwisiens efthe alternative**e1~sioo** reduetie11 plan
as approved by the e-xeeutive e:ifeetol't) fE2:) the 

### 'o'MllOO ef 

### diuse-1 fiiel thai was ootj}ffldueeeJ. hythe predueellnltwassetdef**~hythe** predueerin the ceunt:ieslisted**in~**efthlsfltle and is**oobje~>t**to theprovisieasefthe altemath•e emi&sl6fl**~l** plan as a-ppJ•aved by the 

### eJteel:ltive**~** ftfltl the identity of theper-sens(-s-) 

### frem: wilem

### su4diesel fuel was 

### aGElUiroo .and the date(-51 thatit**was~** +hef*'6du001'**f!hal~**rotainreoords ofthe .ffiveieeW**r~resent.fng** the acquisiHen(s-) .f{)ffwe yel!fSfrom 

### su4- and]**{~** the infonnation required t-e be oolleeted in aeeordanoe with the Stll'llplffig and tesffilg requirements efthis 1rubseetian -arul a fef;leneiliatian eftlw EJtlQfter.!s tr-ansaatlons relative tethe re<J:uirements efthls5\ihsootianWl'theupp1•opr-iatefuel eempanents efthediesel

### fwl that ·the -prejeeted ernissien fedaetiefls demenstrated .ffi the :flFe<iuoor.!s altet•nati-ve emissian redwtffia

### f.llaa were based 

## '\lllea.:J §114.317, Exemptions to Low Emission DieselRequirements. (a) Any diesel fuel subject to the low emission diesel {LED) requirements specified in §114,312 ofthis title (relating to Low Emission Diesel Standards) that is either in a reseru·ch, development, or test status; or is sold to petroleum, automobile, engine, or component man· ufacturers for research, development, or test purposes; or any diesel fuel to be used by, orunderthe control of, petroleum, additive, automo· bile, engine, or component manufacturers for research, development, or test purposes, is exempted from the provisions ofthis division (re· lating to Low Emission Diesel), provided that: (I) the diesel fuel is kept segregated ft·om non-exempt product, and the person posseSiiing the product maintains documen· tation identifYing the product 

### as research, development, or testing fuel, as applicable, and stating that it is to be used only for research, development, or testing purposes; and (2) the diesel fuel is not sold, dispensed, or transferred, or offered for sale, dispensing, or transfer from a retail fuel dispensing facility. It shall also not be sold, dispensed, or transferred, or offered for sale, dispensing, or transfer from a wholesale purchaser-consumer facility, tmless such facility is associated with fuel, automotive, or engine research, development, or testing. (b) Any diesel fuel subject to the LED requirements specified in §114.312 ofthis title that is refined, sold, dispensed, transferred, or offered for sale, dispensing, or trru1sfer as competition racing fuel is exempted from the provisions ofthis division, provided that: (1) the fuel is kept seg1•egated fi·om non-exempt fuel, and the party possessing the fuel for the purposes ofrefining, selling, dis· pensing, transferring, or offering for sale, dispensing, or transfer as competition racing fuel maintains documentation identifYing the prod· uct as racing fuel, restticted for non-highway use in competition racing motor vehicles or engines; (2) each pump stand at aregulated facility, from which the fuel is dispensed, is labeled with the applicable fuel identification and use restrictions described in paragraph (1) ofthis subsection; and (3) the fuel is not sold, dispensed, transferred, or offered for sale, dispensing, ortransfer for highway use in amotor vehicle. (c) The owner or operator of a retail fuel dispensing outlet is exempt from all requirements of §114.316 ofthis title (relating to Monitoring, Recordkeeping, and Reporting Requirements) except §l14.316{e) [§-l-l4.3Mtg)] ofthis title. (d) Diesel fuel that does not meet the LED requirements of §114.312 ofthis title [(telating te 

### t.ew Bmissioo DitlSel**Standard~)]** is not prohibited from being transferred, placed, stoJ'ed, and/or held within the affected counties so long as it is not ultimately used[;] [t!1] topower adiesel fueled compression•ignition internal combustion engine operating in a motor vehicle or in non-road equipmentin the counties listed in §114.319 ofthis title (relating to Affected Counties and Compliance Dates), except for that used in conjunction with purposes stated in Stlbsections (a) and (b) ofthis sectionJt er] 

## fE21 te :fl&WCl' a tliesel.fuelecl**~ien** engine ·in aen-1'600 eEtUitJmeatffitheOOilBties listed4n.§-l-l4.-3-1-9f&)ef.fuis title, eJreeptferthat 

### 1:tSCd .ffioon}unatlmtwithpurposes stated

### in sabseetiens**~** ftfltl**~** efthis tiel.7tion,.] §114. 318. Alternative Emission Reduction Plan. (a) Diesel fuel thatis sold, offered for sale, supplied, or offered for supply by aproducerwho submits an alternative emissionreduction plan in accordance with subsection (b) ofthis section that is approved by tbe executive dh·ector will be considered in compliance with the low emission diesel (LED) requirements of§ 114.312(a) ofthis title (relating to Low Emission Diesel Standards). (b) The [An] alternative emission reduction plan must demon· strate, using the Unified Model 

### as described in the United States Environmental Protection Agency illPA) stati discuSiiion document,



## PROPOSED RULES March 23, 2012 37 TexReg 2023Strategies andIssues in CorrelatingDieselFuelProperties withEmissions, Publication Number EPA420-P-Ol-OOI, published July 2001, that the average fuel properties of all on-road [emission r-effi!Gtffins asseeiate<:i with eeruplianee ofthia dwisien (relmffig to bawilruiss-len Diesel) that are**athib~table** ta the -v&lume oi] diesel**f~1el** produced in any given calendar quarter that ls sold, offered for sale, supplied, or offered fot' supply by the producer for use in [to] the affected counties listed in §114.319 [tll'Kier §114.319(9)] of thistitle (relatingto Affected Counties and Compliance Dates) achieve .at least 

### a 5.5% reduction in nitrogen oxides (NO.)**emission:~** for the year 2007: and the average fuel properties ofall non-road diesel produced in any given calendar quarter that is sold, offered for sale, supplied, or offered for supply by the prodtJcer fbr use in tfte affected counties listed in §114.319 of this title achieve at least a 6,2% reduction in NO, emissions. [ooGh )'Gllf will be aehieved tluough an equivalent**~itute** fuel stmtegy -ln aeoordanee with eithet= aoo ru a eetnbinatioll of til& fallowing f3f6eedures<] {01:-) A**~** 

### shal-l demongtrate fru ooGh speeiful greup efaifooted 6ffilftties timed in unaet: ooGh**~h** of §-1-l<f#l-9(9) ef this title; using the tJ.nifi.OO Madel as eeser-ibed ill the**~** States Bav:irerun6lltal l'!'Bteetioo Ageney {BPA1 statf diseussion Eleew.nent;**~Wiegie9.**andhsuM in G9FYeia/lng Diesel

### FuelP-F9pel'#e5**with~** ffflm9; llu/J/ieelkm 

### Number EPA4JO-P-()./...()(}J, published luly 200-1, aed using oely. the diesel fuel that 

### is seld, &ffer.OO fm sakl, 

### suw!ied;- et'effered rot• suwJy

## ey the predueeP ·in tlte speaue voonties listed ill tHIGfl**~** ta eeteFmine the average fuel propel'ties Wbe used fat' the demenstFRtioo applieable te eaeh gt'ERlfl efaifooted eawtties; the fel. tawing8 {fAj the everege fuel pl'aflel'ties efa-ll ea-t'ead**.dies&~** f.uel predueed -ln 

### tmy given**~** yeat'#mt 1s sete, 

### affefe6 fat' 

### sate, 5\!Vplied; Of effere<:l fut' suwJy bythe pr-eQueer

### :ffi the**ilpp!leablt~** gt'ffil!il of

### aft'ooted eeunties aehle-ve at kast a**.S~o** tedootioo inelfides G!'tti· tregen (NG;1 enlissiens fat' the year- 200-'Jt an&j {E.Bj the average fuel preJ*rtles efall fl6fl-!'eftd diesel pt•odooed in aey- gi¥eft ooleudw yea!' that isseW, effered feE sale; Sllfl• p.Hed, or effet!(l{j fef**St~pply ~**  the prodU(l6f-ln the applieable greup 

### ef a!feeted eeutl-ties aehleve at least a li4% reduetiea in 

### NG; eBHooiens.:}**~** A predUOOI' sl!all demelllltt-ate**f~r,** the OOUilties li$00

# m**~i-14.U9(a)~** ofthls title,.the tetitlBillllhet' ef**~** oflleaeomp!i· ant 6iesel fuel that may be 9ft'set**~** eredits ffem**~** gasaline l!l.lliuf t·eduatioa usl:ag tlte fullawing 

### metllooe!egy er- the IJietlwdelegy- speeifiecl -ln paragt·aph 

### f31 efthis sl:tlolsootfen.} {fAj +he eretiits fEem eal'ly gaseline Slill\w reduetffin as Eietermitled ia subpar-tlgl'aj'lh tGj ofthis pamgmph aed paragraph 

### (-31fA1 of

### thls subseetien wit! be 

### bailee oo the aOO:Ial t&vel efslllfwo ill a pr-edtieet"a gase±ille that Wftfl belew the &1lifup 

### levels identifled in the EPA!& MGBILE6 model as tile default refinery EW&r-age 

### find eaJ') fat' ooll\rentianal gawlia.e in**ea~h llf)~** **~** ae<:i as repet=tea by the f3f6c:ffieeto te EPA in aOGefdaooe with 41}**~e** afFederal**Rl)g<~latiens** (GIZR-)**~fat'** :WOO, aed4lt GFR**iS~** fef**~** aed**~** @1**~** ere4its from em:Jy. gase&e sulRil' fe(;llietiee eoo oely. be generated frem the gasellne suppllecl by the fM'&dueerin ealendaf ye&I'S**WQ~** W()4, and 200$, te the eeuntie.o; li$00 

### ffi §114 .319(b)(4) afthls fltle.ll!la these Gredits; as Eleteml:iaed in aeeerEiaaee with the llf)plieable gaseline Ia diesel etfset l'lrties ealeulated liOOe!' SllhJlaragraph**~** a{ th-iw**pa~** ()M eeJy be used 

# m the eooeties listed ffi**§+l-4.U9~(-41** ofthls title to demenstrate eemt>lianee**thre~h** I:->eoombeP 31-,**~** {€Gf :J::he Gl!'edit& fu:lm &arty gaseliae SH.J:fl:lf**~** will be detemHned basedc oothe level ofoolfal' roduatiaa in eaeh year usl:ag**~** fellowing methe<:ielegies and su9je&t ta the applieable

## iaae37 TexReg 2024 March 23, 2012 Texas Register line-to-diesel offset mtiwdetenniiied using the methadology speelfied liooe!' aubpa!agraph tD) oHhis paragraph.] [fi} Meth<l<:ielegy -1· • va!kl oely. fur 

## woa. gasaline sulfut• values between

### 2£9 parts pot' tnii-Uoo Ewffi) ae<:i W pfltn-:1 {Figure+ W :f-AG §-llOl8(h)(2)(C)(i)J f(ii) Metlladolagy**~** • valid eeJy fe1: ;?.004- gasoline**~values** between :J.-2-t ppm and W PJffilo} {F-igure} 30 Me**§ll4.318(b)~)(G)(ii)}** [(iii) Methadelegy 3 • va!kl enly fot• 200$ gaselioo sulfur values 

### betwoon

# n wm alld 3() P!lm.f**~** 

## ·w:rAG**fl-14.-3-t-s(e)(-1,-)(.q~ ~**  'ffldetennine the numbet= efbmelseffleflOOffij)liant dJese-1 fHel that may be 9ft'set**~** eredits fl'elll early gaso-1-lne sulRil'**r~duction,** the aetua±l11t111het: efbtmele af !ewer sulfu¥ gasetiae &UPp.Hed by the predtleerc to the. eeunties listed -ln fl-l4.M9(b)(4) O·fthis title annually- in :WOO, W()4, and**~** must be di¥ieed by the gase· line-te-diesel offset ratie detel'lllfnedin aeeordanee witlithe fallowing ruethodolegy.j [Figure1 W Me**§ll4.318(b)~)f.9)} E~** **A~** shalldemonstrate farthe oounties &ted

# m §114.319(b)(4) efthist#le**~tata!** fl\ltl'lber**ef~** ofnanoompl-iant diesel fu&! that

### may :00 offset by; &t'OOits 

### H-em &arty gasetine sHJfHr- re-**~** WJillg the pereentage afNG!<emissiooreduetiens attributed te olJ.-1'006

### diesel- fur200'1 eal&Ltlate.d with**the~**Medel asdeseribed ia !*lfllgl'aflh (-1-) of

### tl1is subseetieR, ll!ld the average fuel pmpet·ties E)f' the diesel fuel 

### that is ool<:l, efl'erod fat'**~ ~**  or efl'el'ed far supply bythe prodUGei' ffi 

### ttl0Se**~** eeunties,ta detet'ffilllG the apflliGabJe offset mtie te 

### :00 applied te the aetaal fl\ltl'lber efbarrels ef lewet: 

### !J\Ilftw gasoline suppliecl by**the~**

### wthe eounties Hsted -ln**§-l-H4t~~·**af

### this titJe.**aenuall~** in :WW; WQ4, 

## ana**;w~** {(A) :r-e detel'mine the ffilffi!Jer ofbarrels ofnaneompli**an~** diesel mel that ffiay be &ffset by- &rod-its from eat'ly gasoline sulfUI' reduetien, the aetual ffllnWet' efbarrels {;)!' l&Wer sul·fur gasalffie supplied by tOO**~** ta the oounties listed in**~(4-j** efth-is title a!lffilally -ln**~** :6004; llfld :WO$; must be 

### divided**~** the gaselffie..te-dies&l offllet mtie detel'mffied -ln aeeereanee with the felJewtag methodetegy.j {Figure+ W ::J.+\C §114.318(b)(3)W}**~** 'file Gt'edfts fietn**~** gasffiine 

### S\l:lfur l'eduetioo ()M oely. be geeerated from the gasoline**~& ~**  the predaeer in oolendru• years**~** 2004; ll!ld 

### ;;wg.s, ta the**~** listed in §+l4dll)Ea)E4j &fthis title and th&s& ereffits; as**dete!'l:~tined** -ln aGOOl'• Elaaee with the applieable gaselille-te-diesel offset l'llties

### as eahmlated in aeeerdal'lee with sub(*lt'-Eigl.'af)h (A1 of thffl**~h;** ean oa.jy- be ased

## m the eetlllties listed in**~1-9€&)(4-j** afthist-itle fer eeti!plianae thim1gh DeGembet= 31-,**~** (f4} A f!roduool' shalt**demm~** fmthe oounties llated -ln**t~(a)OO** fll'**~** efthistitle, respeetively, the tetal!Hilnber efbar· rels ofnaneomf!lia!it diesel f«el that maybe eifset**~** eredit11 fFem the 1•esidualef.l'wt!fofeal'ly gaselille mtlfufreduetffin entheNGJ. emissioo reduetien effieiensles afootaly-tiG eeevel'tei'Sinstalled in gasoline-pewered metef¥ehfeles byIISiag**~** fulffiwing methedalegy,j 

### fW**~The** eretiits fu:lm the 

### !'e6idual effeet of**oor~~** gaae1-in.e l!l.lliuf reduetion may oflly- be gen81'1lted by- the -v&lume of !'efer· mutated gaseline**~** by the predllee!' 

### ffi 2004 and WO$ .t& the 00\llltles li5ted :i-e §114

.31900(B fll'·**~** ofthis title, that had an &¥erage sttlfultlevel repfll'ted bythe**fll'Odu~**teEPA in aeee«<aeee with4G Q1R**~** that :was below the .su14'uf level of

# n wm In**~(}04,** and +!-**ppn~o** ffi**~**{{B-) +heftUfllbef efbiiHels efftOOeefll-pliftm dieselfool that mey be eft'set by e!'ed-iffi frem the t>e&i4l:lfi:l effe&tll efeat'ly gawlffie mdf'UP**red~:~etien** wi-ll**a~** d&temrined by divi4ing the lKffilal.llURlbeF ef bafrels efffiwer su-lful' gaoolitl.e detefmined te be el-ig-ible te gene!'flte erecl-it i·a aeeerdaaee with subparagraph 

### tA1 efthi& paragraph by the fallowing gasolifle-t{)-cl-iesel ef:f-set !'fltie oo**a~pliooale.j** {{if The galloJ.iBe--to-liiesel effset r-atio**f&~** eligible leweF S:u:l-fut'**g~~seUae** 

## suwJied te the eeunties listeE! ffi fl14 .319(b)Elj efthi& t#le 

### will be**~Q** fer ee:leadiw**~-s ~QQ6**  thi'&ugh**~QQ&}** 

### ffiif +he gasetine-te-Eliesel ef4'set !'&He fa!' eligible lewer**~** gassl.ffie 

### sawJied te the eoomies 

### J.is.led ffi**~-9fb)(~** efthis t#le will be 66,Q f{)f ee:leadar**~-s ~QQ6**  through**~Q&}** {(G) +he &!edits fi!em the**fellicl-u~l** effe&tll e-fCffil'iy gaseline**~** redlletioa as deterrniaed ia ftee61'daftee with suejllll'flgraph 

### EBW) Ol' 

### EH7 efthis par.agtoaph ean

### eR·Iy be used iathe eetmties listed i.n §ll4.319(b)El-)e-r (21 efthistitle; respeetively, for eempliafloo threugh t>eoombeF 3-l,**~G&} ~**  All alternatiYe emissioo red\letien**plena~** 

### ey the e>cetRiti'le 

### direetefpl'iol' to Mfl,y ·1!7;**~QQ6;**wi-liO*pife eat>eeentber 3-l,**~()1,}**(lU [(61] An alternative emission reduction plan must be approved by the executive directorprior to the use ofthat plan for compliance with the requirements ofthis section. @ [W] The executive director shall approve or disapprove altemative emission reduction plans that have been submitted by producers in accordance with subsection (b) ofthis section within 45 days ofsubmittal. @ [ti)] Alternative emission reduction plans submitted to the executive director in accordance with subsection (b) of this section must contain sufficient documentation to validate the average diesel fuel properties used to satisfy therequirements specified in [aeeet'Eiemee with] subsection (b) ofthis section [ 

### f:l-7 e-r(21 efthis seetiotumd; $ app!'Opflilte;thesul.f\tFpr&pertiesand 'VOlumeS:eftheg$&linethaHsl:leing ooed**to~** eredfl ffi 

### aeeerdaflee with 

### euaseetien**~** e-r 

### f4f ef this 11eetien]. §114.319. Affected Counties and Compliance Dates. (a) All affected [Affeeted] persons in the counties listedin subsection (b) ofthis section shall continue to comply with [be inoomplianee Ill aeoordanee with the whedule listed ·in**ll~Jbse&ti.en** (ej efthis 

### seetien wi-th] §§114,312- 114.317 ofthis title (relating to Low Emission Diesel Standards; Designated Alternate Limits; Registration of Diesel Producers and Importers; Approved Test Methods; Monitoring, Recordkeeping, and Reporting Requirements; and Exemptions to Low Emission Diesel Requirements) as reguired by subsection (d) ofthis section, as applicable, for !!QX. diesel fuell!J! defined ffi_§ll4.6(6m [tmdeF**·§-H4.6~)(.A)]** ofthis title (relating to Low Emission Fuel Definitions) that may ultimately be used to power a diesel-fueled compression-ignition internal combustion engine in a motor vehicle or in non-road equipment in any ofthe counties listed in subsection (b) of this section, (b) The [fellewhtg] counties specified in paragraphs (1)- (4) ofthis subsection are subject to subsection (a) ofthis section: (1) Collin, Dallas, Denton, Ellis,. Johnson, Kaufman, Parker, Rockwall, and Tarrant; (2) Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller; (3) Hardin, Jefferson, and Orange; and (4) Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell,. Calhoun, Camp, Cass, Cherokee, Colorado, Coma!, Cooke, Coryell, 

### De Witt, Delta, Falls, Fannin, Fayette, Fl'!lnklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Karnes, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Mal'ion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, Refugio, Robertson, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, and Wood. (c) All**affected[~]** persons inthe counties listed in sub· section (b) ofthis section shall continue to comply with §§114.312- 114.317 of

### this title as required by subsection (d) ofthis section, as applicable, for any diesel fuel as defitted in §114.6(6)(B) ofthis title that may ultimately be used to power a diesel-fueled compression-ignition internal combustion engine located on a marine vessel in anY ofthe counties listed in subsection (b)(2) ofthis section.**[wej~** te sullseetiefl 

### 00 efthis seetieB shall be Ill eemplianee withthis division eooer-cliog tethe fullewffig**~]** 

### fE-11 beghming GetebM -I,**~~** fu' fl!'eEibtaer-s il!lEl Im

### pertefstl ft21 beginningNe\'embM**#;~~.fe-r iffiR~** plantdtstfil'n:t

### titm faci.f.i.tiest and] 

### ft33 beginnif\g .ffifluar-y 

### +;**~()()6;** ft}f retail .fue-l dispeasing eutlets; 

### wllelesale bullE purellaser/eensumer faeilliies, ood aU ether- affeeted pers&H&.-] (d) For all counties affected by this section, the final compliance dates for control requirements 

### are given within the subsections relating to counties and compliance schedules for provisions specified in this division ifthe final compliance date ofany provision is afterthe date ofadoption ofthe current revision to this division. Tfthe compliance dates are not specified for any )2tovision, the compliance date is past and all affected persons must be and remain in compliance with the p1·ovision as ofthe original compliance date. [Aifeeted**~** 

## m the eeoot4es &tedffi saaseetien**~** efthis seetioo $all**~e** ffi oompliatwtlffi aeeardaMe with**the~~** ffi paragraph {!1,**~** eE**~** efthis wbseetioowith***H~l'h-** H-4-.ll:fofthis tide, liS applieable, fe-r aey diesel as defined oodef §H+.(j(f)tBJ ef

### this title, that may altimatelybe used te pewet' a diesel-fueled eampressioa igflitlen eagine leeated en a marine ¥esllel In any eftl1e**e~nmties** listed Ia eubseetien th)(27 efthis seetioot] 

### ffl7 beginning**~** -1,**~** fe-r proaueers nnd Impert8l'Sjj f(-2.) beginning**~er**#;20()1, feF btilk plant**di~!r·ibu** tiefl 4'tleil:ffiest tllltij 

### ft33 beg:i:tmiag J-antl!ll';' 

### +; ;Ml()S, fa!' retail fuel dispensing outlets, whelesale bullE fJ\II'ehaser/eonsumer faeilitieS:, and all ethet• affeeted pet'l!el'ls.-] This agency hereby certifies thatthe proposal has been reviewed by legal counsel and found to 

### be within the agency's legal authority to adopt Filed 

### with the Office of the Secretary of State on March 9, 2012. TRD-201201328



## PROPOSED 

## RULES March 23, 2012 37TexReg 2025Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: Aprfl22, 2012 For further information, please call: (512) 239·0779 

# • • 30 TAC §114.313 (Editor's note: The text of thefoil wing sectionproposed for repeal willnotbepublished. The section !Ybe examinedin the offices of the Texas Commission on Environmen IQualit;Y 01' in the Texas Register office, Room 245, James Earl Ru er Building, 1019 Brazos Street, Austin, Texas.) Statutory Autnorlty The repeal Is proposed underTe as WaterCode (TWC), §5.1 03, concerning Rules, and TWC, 

### § .105,**con~rning** General Policy; which authorize the commi sion to adopt rules necessary to carry out its powers and duti s under the TWC. The repeal is also proposed under Texas H alth and Safety Code (THSC), §382.002, concerning Policy a d Purpose, which establishes the commission's purpose to saf guard the state's air resources, consistent with the protection o public health, general welfare, and physical property; THSC, 382.011, concerning General Powers and Duties, which auth izes the commission to control the quality of the state's air; TH C, §382.012, concerning State Air Control Plan, which authori es the commission to prepare and develop a general, camp hensive plan for the control of the state's air; THSC, §382 17, concerning Rules, which authorizes the commission to dopt rules consistent with the policy and purposes of the Te s Clean Air Act; and THSC, §382.202, concerning Vehicle isslons Inspection and Maintenance Program, which authori es the commission to establish vehicle fuel content standards fter January 1, 2004, as long as distribution of low emission desel (LED) as described in the state implementation plan is n required prior to February 1, 2005, and authorizes the com ission to consider alternative emission reduction plans to com ly with LED requirements. The proposed repeal implemen s THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202. §114.313, DesignatedAlternative imits. This agency hereby certifies that he proposal has been reviewed by legal counsel and found to be ithin the agency's legal authority to adopt. Filed with the Office of the Seer ary of State on March 9, 2012. TRD-201201327 Robert Martinez Director, Environmental Law Dlvisio Texas Commission on Environment Quality Earliest possible date of adoption: ril22, 2012 For further Information, please call: 12) 239·0779 

# • • CHAPTER 293. WATE DISTRICTS SUBCHAPTER C. SPE IAL REQUIREMENTS FOR GROUNDWATER ONSERVATION 

### DISTRICTS 30 TAC §§293.19, 293.20, 293. 2, 293.23

.



## 37 TexReg 2026 March 23, 2012 Texas Register The Texas Commission on Enviro mental Quality (TCEQ or commission) proposes to amend §293.19, 293.20, 293.22, and293.23. Background and Summary ofthe Fa tual Basis forthe Proposed Rules In 2011 the 82nd Legislature passed enate Bill (SB) 313 related to. priority groundwater manageme areas (PGMA). The legislature also passed SB 660 related o the review and functions of the Texas Water Development B ard (TWDB), Including the functions ofthe board and related e titles in connection with the process for establishing and appeal g.desired future conditions in a groundwater management are

. SB 313 amended Texas Water Cod (TWC), Chapter 35, which relates to the creation of ground ater conservation districts (GCDs) in PGMAs. Specifically SB 313 amended TWC, §35.008, to validate and authorize he commission adoption of rules re.garding the creation of a G over all or part of a PGMA that was designated as a critical a under TWC, Chapter 35, as that chapter existed prior to S ptember 1, 1997, or other prior .law. Further amendments to C, §35.008, validate and authorize the adoption of rules r arding the addition of all or part of the land in such a PGMA a an existing GCD. SB 660 amended TWC, Chapter .6, which relates to GCDs. Specifically, SB 660 added TWC, 36.1082, which adds a definition for affected person in a gro ndwater management area and amends the reasons that an ffected person may petition the .commission for an inquiry of a CD in a groundwater management area. The commission proposes to am nd 30 TAC Chapter 293 to implement new TWC, §36.1082, and amendments to TWC, §35.008. In a corresponding rulemaking p blished in this issue of the Texas Register, the commission a o proposes amendments to 30 TAC Chapter 294, Prl.ority Gro dwater Management Areas, to implement SB 313 and SB 660, §17 and §18. Section by Section Discussion The commission proposes to arne d §293.19, Commission-Initiated Creation of a Groundwater C nservation District in a Priority Groundwater ManagementAre ,to clarify the responsibilities of the executive director when h petitions the commission for a GCD creation order for a PGM designated before September 1, 2001, or when he petition the commission for a recommendation order to add a PGMA eslgnated before September 1, 2001 to an existing GCD. In § 3.19(b) the commission proposes to delete the word "report and replace it with the term "mailing Jist" to clarify that the e ecutive director's petition report to the commission and the ecutive director's mailing list of identified water stakeholders re separate items. The commission proposes to re-number§ 93.19(b)(3)- (8) to accommodate the changes proposed to t is subsection. The proposed amendment to**re~numbered** §29 .19(b)(6) clarifies that the executive director, if so directed, sh II refer the petition to the State Office of Administrative Hearing on behalf of the commission. The commission proposes this a endment to Implement TWC, §35.008, as amended by SB 31 , §2. The commission proposes to am nd §293.20, Records and Reporting, bydeleting existing §293 O(c)(3), that requires GCDs to submit new, existing, or amende management plans to the executive director. UnderTWC, §§ 6.1071, 36.1072, and 36.1073, and 31 TAC Chapter 356, Subch pter A, Groundwater Manage-

# TESTIMONY

### Reference Number

W-1
W-2


### W-3

W-4
W-5 

### INDEX OF WRITTEN TESTIMONY

Submitted by Jeffrey Trucksess, Biodiesel Coalition ofTexas
Christine Herbert, Good Company Associates
Michael J. 

### Nasi, Jackson Walker 

### LLP, on behalfof Love's Travel Stops and Country Stores, Inc. and the Musket Corporation ShelbyNeal, National Biodiesel Board GuyDonaldson, United States Environmental Protection AgencyBoard ofDirectors

JeffTrucksess Green Earth Fuels, LLC President Larry Zolezzi Pacific Biodiesel Texas Treasurer

Mike Nasi Jackson Walker, LLP General Counsel 

## April27, 2012
Ms. Charlotte Hom Office ofLegal Services, MC 205 TCEQ P.O. Box 13087 Austin, Texas 78711-3087 

# W-1

Re: Comments on Proposed Revisions to the Texas Low Emission Diesel (TxLED) Program Rules; Rule Project No. 2009-001-114- EN
Dear Ms. Hom: The Biodiesel Coalition of Texas (BCOT) submits these comments concerning the Texas Commission on Environmental Quality's ("TCEQ") proposed rulemaking regarding revisions to the TxLED rules. BCOT appreciates the time and effort TCEQ has spent to develop and implement a practical solution for biodiesel blends within the TxLED Program. BCOT offers the following comments. I. Removal ofPerformance Testing for Downstream Blends 

## The current version of the proposed rules has removed the language subjecting all alternative diesel fuel formulations to the actual emissions performance testing. The proposed rules clarify that the Executive Director (ED) may revoke the approval of an additive-based alternative diesel fuel formulation if the ED determines that the additive has been altered from that which had been approved. BCOT supports the removal ofthe performance testing requirements for downstream blends. II. TxLED Compliance Standards for Biodiesel 

## The Draft Regulatory Guidance explains that biodiesel blenders are not considered producers, but will only be considered as part of the diesel distribution chain. Therefore, the blenders are only required to comply with the record keeping requirements. According to TCEQ's new rules and guidance, biodiesel blends will be considered compliant with TxLED standards if: 1) the diesel fuel used to make the blend is compliant with TxLED requirements; 2) the biodiesel used meets the current active version ofASTM D6751; and 3) the biodiesel used contains no more than 15 ppm sulfur. BCOT supports this standard.

### III. Revision to the Definition of" Additive." 

### The proposed rule revises the definition of "additive" by revising the language in 30 TAC 

## §114.6(1). We understand from discussions during the stakeholder process that, in revising the definition of"additive," it is TCEQ's intent to no longer regulate biodiesel as an additive. BCOT fully supports this interpretation as it comports with both law and common sense. BCOT trusts that the Draft Regulatory Guidance, which was released prior to the finalization of this rule package, will be revised to conform to the newly clarified definition of "additive." This will be necessary because the current guidance indicateS that biodiesel will be regulated as an "additive" when it is blended with diesel fuel. Therefore, BCOT recommends and requests that Draft Regulatory Guidance be updated as soon as possible upon adoption ofthe pending rule to accurately reflect TCEQ's position that biodiesel will no longer be regulated as an additive under the TxLED rules. Thankyou for consideration ofthese comments. Ifyou have any questions, or need additional information, please feel free to call me at (512) 636-7339. Respectfully,

# ~#'d!~d~ Jeffrey Trucksess BCOT, President

## Good company email comments (2).txt From: Chris Herbert [cherbert@goodcompanyassociates.com] sent: Thursday, April 26, 2012 3:01 PM To: Morris Brown subject: here you go Attachments: NBB lttr of support TxLED rulechanges 4-26-12.pdf Morris, Here is your letter, as promised. 

# VV-2

Two questions I 

## should have asked

- on page 84, 114.318 (b) AERP

- it seems to imply that the unified Model applies to "average fuel properties of all on-road diesel fuel"

- but later requires achieved savings of NOx for both on and off-road fuels. Am I 

## confused or what? Doesn't apply to us, but just may need grammatical fix. Also on page 34, 114.6 (14)[(15)] the TTC codes numbers that are referenced don't seem to be right

- have your staff double check the numbers. Thanks for helping to clarify the california stuff. chris
christine Herbert Good company Associates 515 Congress Avenue

- suite 1510 Austin, TX 78701 512-279-0752

Page 1

# * )W

Mike Nasi 

## JACKSON WALKER L.L.P. (512) 236-2216 (Direct Dial) (512) 391-2194 (Direct Fax)



## Ms. Charlotte Horn MC205 Office ofLegal Services TCEQ P.O. Box 13087 Austin, Texas 78711-3087 ATTORNEYS & COUNSELORS


## April27,2012 

# W-3

Re: Comments on Proposed Revisions to the Texas Low Emission Diesel (TxLED) Program Rules; Rule Project Number 2009-00 1-114-EN
Dear Ms. Horn,
On behalf of Love's Travel Stops and Country Stores, Inc. and the Musket Corporation (collectively referred to herein as "Love's/Musket"), we are writing to provide comment on the proposed revisions to the TxLED rules. We appreciate TCEQ's efforts throughout the TxLED Stakeholder Group process and your work on evaluating changes to the TxLED rules. Love's/Musket strongly supports TCEQ's efforts to work through the issues for a practical solution for biodiesel blends within TxLED and offers the following comments. 

## I. Love's/Musket supports TCEQ's removal of performance testing for downstream blends.Section 114.315(d) ofthe September 2011 version ofthe draft rules stated: All alternative diesel fuel formulations

... are subject to the actual emissions performance of the approved alternatives diesel fuel formulation. Evidence that the use of an approved alternative diesel fuel formulation does not result in emissions that are equivalent to or less than the emissions from the use ofdiesel fuel

... may result in the revocation ofthis approval. The current version of the proposed rules has removed the language subjecting all alternative diesel fuel formulations to the actual emissions performance testing. The proposed rules clarify that the Executive Director (ED) may revoke the approval of an additive-based alternative diesel fuel formulation if the ED determines that the additive has been altered from that which had been approved. Love's/Musket supports the removal ofthe performance testing requirements for downstream blends.

100 Congress Avenue, Suite 1100 • Austin, Texas 78701 • (512) 236-2000 • fax (512) 236-2002 www.jw.com Austin Dallas Fort Worth Houston • San Angelo San Antonio • Member of GLOBALAW'M

8120014v.2

### April27, 2012 Page2



### II. Love's/Musket supports the change to the TxLED compliance standards for biodiesel. The Draft Regulatory Guidance explains that biodiesel blenders are not considered producers, but will only be considered as part ofthe diesel distribution chain. Therefore, the blenders are only required to comply with the record keeping requirements. TCEQ's decision to no longer regulate blenders as producers, in conjunction with removal ofthe performance testing requirement, provides that biodiesel blends will be considered compliant with TxLED standards if: 1) the diesel fuel used to make the blend is compliant with TxLED requirements; 2) the biodiesel used meets the current active version ofASTM D6751; and 3) the biodiesel used contains no more than 15 ppm sulfur Love's/Musket supports this change. 

## III. Love's/Musket supports the revision to the definition of"additive." While Love's/Musket does not concede that TCEQ previously had authority to regulate biodiesel as an additive under previous versions ofthe TxLED rules, Love's/Musket supports the removal ofthe language from the definition of"additive" that TCEQ had relied upon as the legal basis for regulating biodiesel as an additive. The proposed rule revises the definition of"additive" as follows: Any substance that is intentionally added to gasoline or diesel fuel for the purpose of producing a gasoline or diesel fuel in compliance with the requirements of Subchapter H ofthis chapter, including any added to a motor '<'ehicle fuel system, and that is not intentionally removed prior to sale or use and that is: (A)**~** 

### registered additive with the United States Environmental Protection Agency (EPA) in accordance with 40 Code of Federal Regulations (CFR) Part 70 (relating to Registration ofFuels and Fuel Additives); or (B) added to gasoline or diesel for the purpose ofreducing exhaust emissions from motor vehicles or non-road equipment and is exempted from the EPA registration requirements in accordance with 40 CFR Code of Federal Regulations Part 79. It is our understanding that by removing this language from the definition of "additive," TCEQ will no longer regulate biodiesel as an additive. Love's/Musket fully supports these revisions. We assume, but want to confirm that TCEQ will be updating the Draft Regulatory Guidance, last released in January of 2012 (before the proposed rules were published) to conform with the revisions being implemented in this rulemaking. We have identified at least one instance where the language ofthe guidance will need to be updated. On pages 5-6 ofthe guidance, it currently states that "biodiesel does meet the definition for "additive" as specified in 30 TAC §114.6 when it is blended with diesel fuel, which results in biodiesel blends being

8120014v.2

## April27, 2012 Page 3
subject to the TxLED requirements for alternative diesel fuel formulations." Love's/Musket trusts that the Draft Regulatory Guidance will be updated to accurately reflect TCEQ's position that biodiesel will no longer be regulated as an additive under the TxLED rules upon finalization ofthis rule package. Thank you for consideration of these comments and for the long hours spent over the past 6 years to work out a practical solution that enables biodiesel to be blended without undue restrictions within TxLED. If you have any questions, or need additional information, please feel free to call me at (512) 236-2216. Respectfully,

# ffi~**,(./4~**

# i5l2. Michael J. Nasi Counsel for Love's/Musket

8120014v.2

## America 

# 's Advanced Biofuel
April 26, 2012

Morris R. 

### Brown Texas Commission on Environmental Quality (TCEQ) Air Quality Planning Section ChiefEngineer's Office Mail Code: 206 P.O. Box 13087, Austin TX 78711-3087
Re: Proposed TxLED Rule Change Project No. 2009-001-114-EN
Dear Mr. Brown: National Biodiesel Board 605 Clark Ave. PO Box 104898 Jefferson City, MO 65110-4898 (800) 841-5849 phone

(573) 635-7913 fax National Biodiesel Board 1331 Pennsylvania Ave., NW Suite 512 Washington, DC 20004 (202) 737-8801 phone www.biodiesel.org


# W-4

The National Biodiesel Board (NBB) is the national trade association representing the biodiesel industry in the United States. As a comprehensive industry association, we coordinate and interact with a broadrange ofcooperators including industry, government, and academia. NBB's membership is comprised ofstate, national, and international feedstock and feedstock processor organizations, biodiesel suppliers, fuel marketers and distributors, and technology providers.
NBB appreciates the changes to the Guidelines regarding the blending ofbiodiesel with diesel fuel in the TxLED market. NBB supports the proposed changes to TxLED rules §§114.6, 114.312, and 114.314- 114.319; the repeal of§ 114.313; and new§ 114.313. While many ofthe changes are specific to the diesel market, we understand that the definitions have been clarified to remove biodiesel from regulationunder the rule.
We have participated in the Stakeholder group and appreciate the opportunity to have open discussions with the various interests and industries affected by these rules. We also appreciate the staffs efforts to find workable solutions that support boththe diesel and biodiesel markets, while protecting the air quality for our citizens.
Ifyou should have any questions about this matter, please feel free to contact me at any time at (800) 841-5849. Sincerely,

Shelby Neal Director ofState Governmental Affairs



# w w w. b 0 

# d esel.org

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION6



## April25, 2012

Ms. Charlotte Hom Office ofLegal Services, MC 205 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733



## Texas Commission on Environmental Quality P.O. Box 13087 Austin, TX 78711-3087
Re: Rule Project Nwnber 2009-001-114-EN
Dear Ms. Hom: 

# W-5

Thank you for the opportunity to comment on proposed changes to 30 TAC 114 regarding Control ofAir Pollution from Motor Vehicles, specifically the Texas Low-Emission Diesel (TXLED) program rule. Overall, we support the proposed revisions to the TXLED rule. We support the removal ofthe alternative fuel formulation testing program. Not only will this save state resources, it will also save the EPA resources. A technical review ofthe documents dated March 7, 2012, pertaining to the TXLED Program Proposed Revision appears below. We had one question, but no objections. Page 65. 114.315(d). Removal ofan additive previously approved.
The only provision to remove an additive from the approved list is ifthe manufacturer changes the formulation. Please explain how this change would be determined. Region 6 continues to offer Texas our support during the rulemaking process. We appreciate the continued cooperative spirit exhibited by the TCEQ staffin development and implementation of the TXLED rule. Please let us know how we may be offurther assistance. Sincerely yours,



# ;1) 

# f\, -./ Guy Donaldson Chief Air Planning Section

Internet Address (URL)- http://wvm.epa.gov/earth1r6/ Recycled/Recyclable • Prtnted with Vegetable Otl Based Inks on Recycfed Paper (Minimum 30% Postconsumer)

### INDEX OF ORAL TESTIMONY



## NO ORALTESTIMONYWAS RECEIVED PERTAININGTO THIS RULE REVISION.

## - 1 - 

# Texas Commission onEnvironmental Quality Public Hearing Registration April26,2012 1o:ooa.m.


### Rule ProjectNo.: 2oog-oo1-114-EN ShortTitle: Revision ofTxLED Rules Location: TCEQ complex, 12100 Park35 Circle, Building E, Room 2018,Austin Concerning: Proposedamendmentsto 30TAC Chapter 114, Control ofAir 

### Pollutionfrom MotorVehicles

Name Representing Presenting Oral

### Testimony? (Please Print) 

### (CircleOne) 

# Q[l\;rts**~(+--** ,Wf78**Yes~**

# ~k**Nf\-~r** 

# Lo'>k**~""~**

# s bp_s Yes(0

r 

### Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

## HEARING OFFICER REPORT



## I am the hearing officer assigned to conduct the public hearing regarding Revision ofTxLED Rules, Rule ProjectNo. 2009-001-114-EN. 

## A public hearing was scheduled in Austin, Texas onApril26, 2012, at 1o:oo a.m. in Building E, Room 201S, at 12100 Park 35 Circle. TCEQ staff and a court reporter were presentfor the publichearing.
At 9:30a.m. the room was opened andTCEQ staffwas available to the public for an informal question and answer period. At 10:10 a.m. it was determined that those that were present did not want to make comments on the record. Therefore, the public hearing .was not formally opened for comment and a transcript was notprepared.

Hearing Officer

Dat signed

# EVALUATION

# Texas Commission on Environmental Quality Interoffice Memorandum

To: Thru:

From: DocketNo.: Subject: Commissioners Bridget C. Bohac, ChiefClerk Zak Covar, Executive Director
Steve Hagle, P.E., Deputy Director
2009-2039-RUL 

## Date: August 3, 2012

CommissionApproval for Rulemaking Adoption Chapter 114, Control ofAir Pollution from MotorVehicles Revision ofTexas Low Emission Diesel (TxLED) Rules Rule Project No. 2009-001-114-EN 

## Background andreason(s) for the rulemaking: The current state regulations for Texas low emission diesel (TxLED) under 30 Texas Administrative Code (TAC) Chapter 114 require that all diesel as defined under §114.6 (concerning Low Emission Fuel Definitions) that is sold or suppliedfor use in a compression-ignition engine operating in any ofthe 110 central and easternTexas counties listed in §114.319 (concerningAffected Counties and Compliance Dates) must complywith the specifications for aromatic hydrocarbons and cetane number as listedin §114.312 (concerning Low Emission Diesel Standards) or one ofthe other compliance options listed under this section. This regulation includes all diesel used as fuel for on-road motor vehicles and non-road equipment. The TxLED regulations also applyto marine distillate fuels when these marine distillate fuels are sold or suppliedfor use in the 1997 HoustonGalveston-Brazoria (HGB) ozone nonattainment area counties ofBrazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, andWaller. Diesel producers are also allowed to produce TxLED in accordance with an alternative emission reduction plan as specified under §114.318 (concerning Alternative Emission Reduction Plan). TxLED producers and importers are required to register with the Texas Commission on Environmental Quality (TCEQ) as specified under §114.314 (concerning Registration of Diesel Producers and Importers) andto submit quarterly reports to the TCEQ as specified under §114.316 (concerning Monitoring, Recordkeeping, and Reporting Requirements). There are 112 producers and importers currentlyregistered under the TxLED program. The total projected nitrogen oxides (NOx) emission reductionbenefitfrom TxLED in 2018 from all110 counties currentlyregulated is estimatedto be approximately 5.62 tons per day (tpd) from on-road vehicle use and 7·54 tpdfrom non-road equipmentuse. The estimated NOx emission reduction benefit in 2018 from TxLED marine diesel use in the eight-county HGB ozone nonattainment area is approximately 0.89 tpd.
The adopted rulemaking will address the following four issues:
1. 

## AlternativeDieselFormulationApprovalProcess The TCEQ has currentlyapproved 20 alternative diesel formulations in accordance with the testing requirements specified under §114.315 (concerning Approved Test Methods) that producers andimporters mayuse to produce TxLED with 18 ofthese formulations

## Commissioners Page 2 August 3, 2012
Re: Docket No. 2009-2039-RUL
requiring the use ofa diesel additive. All but one ofthe additive-based alternative diesel formulations for TxLED were approved under the testing procedures specified under §114.315(c). In 2011, approximately 52% ofall TxLED was reported to have been produced using the additive-based alternative diesel formulations approved bythe TCEQ. Approximately 30% ofall TxLED in 2011 was reported to have been produced using an additive-based alternative diesel formulation for California diesel approvedby the California Air Resources Board (CARB) that producers are allowed to use under §114.312(e) to comply with TxLED standards.
The currentTCEQ process to evaluate an alternative diesel formulation for TxLED under §114.315(c) includes review and approval oftest protocols priorto emissions testing, observation ofthe emissions testing at thetesting facilities, review ofthe final test reports from thetesting facilities describing the results ofthe emissions testing, and determining whether the emissions test results satisfythe criteria specified in §114.315(c) that allows the TCEQ to approve the formulation. The TCEQ is also required to request the United States Environmental ProtectionAgency's (EPA) consultation when proposing to approve an alternative diesel formulation for TxLED.
The TCEQ approval process specified in §114.315(c) has resulted infiscal and staffresource challenges for the agency. The professional services needed to validate the emissions testing data andto physically observe the emissions testing being performedfor approval purposes is costing the TCEQ approximately $20,000 per application. The adopted revisions to §114.315 will remove the test procedures in §114.315(c) in order to more efficiently utilize agency resources associated with the review, physical testing, and approval process. In addition, the adopted rule revisions will remove the TCEQ approval option currently specified in §114.315(d) allowing the testing ofalternative diesel fuel formulations through the EPA's Environmental TechnologyVerification (ETV) Program, which the EPA has discontinued. The otherTCEQ approval option currently specified under §114.315(d), which specifies criteria for using the Unified Model that was developed bythe EPA specifically for theTxLED program, will remain as the only TCEQ methodfor approving alternative diesel fuel formulations. Companies will also have the option of seeking CARB approval. Also, revising the rules to grandfather all alternative diesel formulations approved priorto April1, 2012, will maintain market stability and address concerns from vendors with previously approved products.
2. 

## DesignatedAlternativeLimits Section 114.312(e) allows diesel fuel produced to complywith specific California regulations for diesel fuel tobe used for compliance with the TxLED requirements, including diesel fuel produced underthe designated equivalent limits specified underTitle 13 California Code ofRegulations (CCR) §2282(h)(1). Although this subsection was adopted in March 2005, it does not appear that many producers in Texas are taking advantage ofthe flexibility providedbythese parameters. The adoptedrule revisions amend §114.313 (relating to DesignatedAlternative Limits) to include the same fuel propertylimits specified in 13 CCR §2282(h)(1) as designated alternative limits that producers mayuse to produce TxLED andwill provide further clarification ofan

## Commissioners Page3 August 3, 2012
Re: Docket No. 2009-2039-RUL

underutilized flexibility inthe TxLED program while ensuring equivalent emission reductions. 

## 3. AlternativeEmission Reduction Plans The TxLED regulations allow producers to use diesel offset credits from early gasoline sulfur reductions as a compliance option underthe alternative emission reduction plan (AERP) provisions specified under §114.318. However, the ability to use diesel offset credits in the ozone nonattainment counties specified under §114.319(b)(1)- (3) expired December 31, 2008, and expired inthe other 90 TxLED counties on December 31, 2010. The adoptedrule revisions to §114.318 will remove the expired provisions pertaining to the use ofearly gasoline sulfur reduction credits as a methodology optionfor AERP compliance and will simplify this section ofthe rules. 

## 4· Administrative The TxLED regulations contain several administrative compliance deadlines thathave expired and other administrative requirements relating to registration andreporting that are outdated or need further clarification. The adoptedrule revisions to §114.6 will amend the definitions offinal blend, further process, produce, producer, andproductionfacility to clarify that onlythe person or companythat owns or operates the productionfacility producing the final blend ofdiesel fuel is considered a producer and is therefore required to register and comply with the otherTxLED requirements. The adoptedrevisions to §114.314 and §114.316 will include registration and quarterlyreporting requirements for production facilities and will enhance TCEQ's compliance monitoring abilities andwill provide further clarification that onlythe owners and operators ofproduction facilities are considered producers under theTxLED program. 

## Scope ofthe rulemaking: The adopted rule revision will amend Chapter 114 as follows: • amends §114.6 to repeal the definition of

## designated alternative limit as needed for consistency with the adopted new §114.313; repeals the definition of

## motor vehicle fuel; renumbers and revises the definitions of

## bulkplant, furtherprocess, import, import facility, importer,produce,producer, and

## production facility to replace the term "motorvehicle fuel" with the terms "gasoline" or "diesel fuel" as needed for consistency and clarity; and makes other clarifying changes to the definitions of

## additive, diesel fuel,final blend,furtherprocess, gasoline, low emission diesel, motor vehicle, nonroad equipment,produce,producer,production facility, and 

## retail dispensing outlet as needed for consistency with other changes to this subchapter; • amends §114.312 to make changes needed for accuracy and consistencywith the adopted changes to §114.313 and §114.315; removes language limiting the acceptance of CARE-approved alternative diesel fuel formulations to onlythose approved on or before January 18, 2005, in orderto allow the use ofnew alternative diesel fuel formulations approvedby CARE in the future; and cites the current effective date ofthe California diesel fuel regulations relevant to this section; • repeals the existing §114.313 and adopts a new §114.313 that will establish new designated alternative limits that have the same fuel propertylimits as currently

## Commissioners Page4 August 3, 2012
Re: Docket No. 2009-2039-RUL
specified in 13 CCR §2282(h)(1) to provide additional flexibility to the TxLED program while ensuring equivalent emission reductions; • amends §114.314 to remove expired registration requirements; requires all new producers andimporters to registerby no laterthan 45 days after thefirst date that theybegin to provide TxLED to the affected counties; requires producers and importers to provide information on ea,ch productionfacility andimportfacility from which TxLED is produced or imported; and makes other clarifying changes as neededto enhance and simplify the registration process; • amends §114.315 to remove the supplementarytest methods for viscosity andflash point in subsection (a); removes the alternative diesel formulation test procedures in subsection (c) and the optionfor testing alternative diesel fuel formulations through the EPA's ETV program in subsection (d) to clarify that alternative diesel fuel formulations will onlybe approved through the provision currently specified under subsection (d) for using the EPA's Unified Model; specifies that the approvals ofall additive-based alternative diesel fuel formulations approved prior toApri11, 2012, and thereafter, will be subject to revocation ifthe composition ofthe additive is found to be altered; and adds a subsection (e) to allow all alternative diesel formulations approvedbythe TCEQ prior toApri11, 2012, to remain in effect; • amends §114.316 to make clarifying changes to the reporting requirements as needed for accuracy and consistency with the proposed changes to §§114.313

- 114.315 and 114.318; and specifies the sampling and analysis requirements for specific fuel properties for TxLED produced under §§114.312(a), (e), and (f), 

## 114.313, and 114.318; • amends §114.317 to make clarifying changes as needed for accuracy and consistency with the adopted changes to §114.316 and §114.319; • amends §114.318 to remove the provisions pertaining to the calculation and use ofearly gasoline sulfur reduction credits as a methodology option for AERP compliance; requires AERPs thatuse the Unified Model to calculate compliance based on the average fuel properties determined each calendar quarterinstead ofyearly as currently required; and allows producers to calculate the average fuel properties used in the Unified Model based onthe fuel properties ofdiesel sold or supplied for use in all affected counties instead ofspecific groups ofcounties as currently required; and • amends §114.319 to remove expired compliance schedules in subsection (c) andto add a new subsection (d) to clarifythat ifthe final compliance date ofany provision in the section is before the adoption ofthe current revision to the section andthe compliance dates are not specified in the current revision, thenthe compliance date is past and all affected persons mustbe and remainin compliance with the provision as ofthe original compliance date; and makes other clarifying changes as needed for accuracy and consistency within the section. A.) 

## Summaryofwhat the rulemakingwill do: The adopted rulemaking will revise definitions; establish new designated alternative limits for TxLED fuel properties; remove expired registration requirements and establish new registration requirements for identifying production and import facilities; revise approval procedures for alternative diesel fuel formulations; specify that the approvals ofall

## Commissioners Pages August 3, 2012
Re: Docket No. 2009-2039-RUL

additive-based alternative diesel fuel formulations will be subject to revocation ifthe composition ofthe additive is found to be altered; allow all alternative diesel formulations approvedbythe TCEQ priorto April1, 2012, to remain in effect; revise reporting requirements to include production and importfacility data; require alternative emission reduction plans using the Unified Model to determine compliance each calendar quarter; remove expired early gasoline sulfur reduction credits provisions; and make other clarifying changes as neededfor accuracy and consistency. 

## B.) Scope required

## byfederal regulations or state statutes: None. C.) 

## Additional staffrecommendations that are not required

## byfederal rule or state statute: Not applicable. 

## Statutoryauthority: The revisions are adopted underTexas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adoptrules necessaryto carryout its powers and duties under the TWC. The revisions are also adopted underTexas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection ofpublichealth, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; THSC, §382.012, concerning StateAir Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistentwith the policy andpurposes ofthe Texas Clean Air Act; andTHSC, §382.202, concerningVehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution ofTxLED as described in the state implementation plan (SIP) is not required priorto February 1, 2005, and authorizes the commission to consider alternative emission reduction plans to comply with TxLED requirements. 

## Effect onthe: A.) 

## Regulated community: The adopted rulemaking will require diesel producers andimporters to register each of their production facilities and/or import facilities that supply diesel fuel for use in the TxLED affected counties andto submit quarterly reports regarding the production and/or importation ofTxLED from each registered facility. In addition, the adopted rulemaking will require additive manufacturers to seek CARB approval for any new additive-based alternative diesel formulations. B.) 

## Public: The public will benefit from improved air quality; however, the adopted regulation has the potential for any cost impact onthe regulated communityto be passed onto consumers.

## Commissioners Page6 August 3, 2012
Re: Docket No. 2009-2039-RUL


## C.) Agencyprograms: Minimal impact is anticipated on agency resources since compliance is monitored through reporting and record reviews. Any cost savings associated with revisions tothe alternative diesel formulation approval procedures will be reallocated to other air compliance activities. 

## Stakeholdermeetings: Stakeholder meetings were held on September 1, 2011, and November 1, 2011, to discuss the potential revisions to the TxLED regulations; andinformal comments were accepted for a two-week period following each ofthe meetings. The stakeholder meetings were open participation.
The stakeholders' informal comments were considered during the development ofthis adoption; however, written responses to those comments are not included inthis rule preamble. 

## Public comment: The commission scheduled a publichearing for April 26, 2012, at 10:00 a.m. in Building E, Room 201S, atthe commission's central office located at 12100 Park 35 Circle. However, the public hearing was notformally opened for comment and a transcript was not prepared because none ofthe persons present atthe hearing location wanted to make comments on the record.
The public commentperiod closed onApril 27, 2012. The commission received comments from the Biodiesel Coalition ofTexas (BCOT), Good CompanyAssociates, Love's Travel Stops and Country Stores, Inc. andthe Musket Corporation (Love's/Musket), the National Biodiesel Board (NBB), and the EPA. All five commenters were in support ofthe rule changes, andfour ofthe commenters suggested minor non-substantive changes and/or requested additional clarification onthe rule changes. 

## Significant changes from proposal: In response to commentsby BCOT, Love's/Musket, and NBB relating to biodiesel, additional changes were made to the definition ofadditive in §114.6(1)(B) to further clarify that only those substances that have been addedto diesel fuel for the purpose ofproducing TxLED would be considered additives underthe TxLED program. In response to commentsby Good CompanyAssociates, additional changes were made to the definitions ofmotorvehicle in §114.6(14) and non-road equipmentin §114.6(15) to revise the relevant Texas Transportation Code (TIC) citations from TIC, §502.002 to TIC, §502.040 andfrom TIC, §502.006 to TIC, §502.140. These citation changes were needed in order to reflect the renumbering ofthe statute as directedby House Bill 2357, 82nd Texas Legislature, 2011.

## Commissioners Page7 August 3, 2012
Re: Docket No. 2009-2039-RUL



## Potential controversial concerns and legislative interest: Diesel additive companies may oppose the changes to the approval procedures for alternative diesel fuel formulations since any new additive-based alternative diesel formulations for TxLED would have tobe approvedbythe CARE in orderto be acceptedby the TCEQ for use in the TxLED program. 

## Does this rulemaking affect anycurrentpolicies orrequire development of newpolicies? The adopted rulemaking affects one current TCEQ policy, i.e., requiring TCEQ observers to be present during the emissions testing being performed for the approval ofan alternative diesel fuel formulation for TxLED. This policy is no longer required underthe adopted rulemaking. 

## What arethe consequences ifthis rulemaking does notgoforward? Are there alternativesto rulemaking? The consequence ofnot adopting the proposed rulemaking will be thatthe TCEQ will continue to implementthe current TxLED regulations that will require a continued cost of approximately $20,000 perTxLED alternative diesel formulation approval application for the professional services needed to validate the emissions testing data andto physically observe the emissions testing being performed for approval purposes. The TCEQ has reviewed 32 TxLED alternative diesel formulation approval applications since the program began in 2005 at a cost to the state ofapproximately $618,954. The TCEQ approved 18 of the 32 reviewed applications and provided conditional approvals for two other applications that were later rescinded after additional testing was conducted.
The alternatives to adopting the proposedrulemaking would be: • repeal the TxLED rules entirely and rely onfederal diesel regulations to achieve emission reductions. However, as the federal rule focuses on sulfurlimits and particulate emissions, the TCEQ would needto address potential Federal Clean Air Act backsliding provisions (Section no(l) 

## demonstration) for the NOx emission reductions currently modeled in the SIP for theTxLED rules; and • maintain the status quo and continue to implement the current TxLED rules. 

## Keypoints inthe adoption rulemaking schedule: Texas Registerproposalpublication date: March 23, 2012 

## Anticipated 

## TexasRegisterpublication date: September 7, 2012 

## Anticipatedeffective date: September 13, 2012 

## Six-monthTexas Registerfiling deadline: September 24, 2012 

## Agencycontacts: Morris Brown, Rule Project Manager, 239-1438, Air Quality Division John Minter, StaffAttorney, 239-0663 Charlotte Horn, Texas Register Coordinator, 239-0779 

## Attachments

## Commissioners PageS August 3, 2012
Re: Docket No. 2009-2039-RUL

cc: ChiefClerk, 2 copies Executive Director's Office Susana M. Hildebrand, P.E. Anne Idsal Curtis Seaton Tucker Royall Office ofGeneral Counsel Morris Brown Charlotte Horn

## EVALUATION OF TESTIMONY



## The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§114.6, 114.312, 

## and 114.314- 114.319; 

## the repeal of §114.313; 

## and new §114.313.



## Amended §114.6 

## is adopted 

## with change to the proposedtext as published in the March 23, 2012, 

## issue ofthe 

## Texas Register (37 

## TexReg 2012). 

## Sections 114.312, 

## and 114.314- 114.319; 

## the repeal of §114.313; 

## and new §114.313 

## are adopted 

## without changes to the proposedtext andwill notbe republished.

The adopted revisions will be submittedto the United States Environmental Protection Agency (EPA) as a revision tothe state implementation plan (SIP).



## Background and Summaryofthe Factual Basisfor theAdopted Rules
The current state regulations for Texas low emission diesel (TxLED) under Chapter 114 

## require that all diesel as defined under §114.6 

## that is sold or supplied for use in a compression-ignition engine operating in any ofthe 110 

## central and eastern Texas
counties listedin §114.319 

## must comply with the specifications for aromatic hydrocarbons and cetane number as listedin §114.312 

## or one ofthe other compliance options listedunderthis section. This regulation includes all diesel used as fuel for onroad motorvehicles and non-road equipment. The TxLED regulations also applyto marine distillate fuels, i.e., Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), and Marine Gas Oil (MGO), when these marine distillate fuels are used inthe

1

## 1997 Houston-Galveston-Brazoria (HGB) ozone nonattainment area counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, andWaller.
Diesel producers are also allowed to produce TxLED in accordance with an alternative
emission reduction plan (AERP) as specified under §114.318. TxLED producers and importers are requiredto register with the TCEQ as specified under §114.314 andto submit quarterlyreports tothe TCEQ as specified under §114.316. There are 112 producers andimporters currentlyregistered underthe TxLED program. The total nitrogen oxides (NOx) emission reductionbenefitfrom TxLED in 2018 from all11o
counties currently regulated is estimatedtobe approximately 5.62 tons per day (tpd)
from on-roadvehicle use and 7·54 tpdfrom non-roadequipmentuse. The estimated
NOx emission reductionbenefitin 2018 from TxLED marine diesel in the 1997 eightcounty HGB ozone nonattainment area is approximately 0.89 tpd.

The adoptedrulemaking will address the following issues.



## AlternativeDieselFormulations
The TCEQ has currently approved 20 alternative diesel formulations in accordance with
the testing requirements specified under §114.315 that producers and importers may use
to produce TxLED, with 18 ofthese formulations requiring the use ofa diesel additive.
All but one ofthe additive-based alternative diesel formulations for TxLED were approved underthe testing procedures specified under §114.315(c). In 2011, approximately 52% ofall TxLED was reported to have beenproducedusing the additivebased alternative diesel formulations approvedbythe TCEQ. Approximately 30% ofall
TxLED in 2011 was reportedto have beenproducedusing an additive-based alternative

2

## diesel formulation for California diesel approvedbythe CaliforniaAir Resources Board (CARB) that producers are allowedto use under §114.312(e) to produce TxLED.

The TCEQ process to approve an alternative diesel formulation for TxLED under §114.315(c) includes review and approval oftest protocols priorto emissions testing,
observation ofthe emissions testing atthe testing facilities, review ofthe final test reports from thetesting facilities describing the results ofthe emissions testing, and determining whetherthe emissions test results satisfythe criteria specified in §114.315(c) that allows the TCEQ to approve the formulation. The TCEQ is also required

to requestthe EPA's consultation when proposingto approve an alternative diesel
formulation for TxLED.

The TCEQ approval and review process specified in §114.315(c) has resulted in fiscal and
staffresource challenges for the agency. The professional services neededtovalidate the
emissions testing data andto physically observe the emissions testingbeing performed
for approval purposes is costing the TCEQ approximately $2o,ooo per application.

The adopted rulemaking will remove the alternative diesel fuel formulation test procedures in §114.315(c) andthe option under §114.315(d) for allowing the testing of
these formulations throughthe EPA's Environmental TechnologyVerification (ETV) Program, which the EPA has discontinued. The other approval option currently specified
under §114.315(d), which specifies criteriafor using the Unified Model thatwas developedbythe EPA specificallyfor the TxLED program, will remain as the only TCEQ
methodfor approving alternative diesel formulations. Acceptance ofalternative diesel

3

## formulations approvedbyCARB as allowed under §114.312(e) will also continue. The adopted rulemaking will greatlylessen the TCEQ's fiscal and staffresource needs in the physical testing aspects ofthe alternative diesel formulation approval process without significantlylimitingTxLED compliance options.



## DesignatedAlternativeLimits
The currentTxLED regulations specified in §114.312(e) allow diesel fuel producedto complywith specific California regulations for diesel fuel to beused for compliance with
the TxLED requirements including diesel fuel producedunderthe designated equivalent
limits specified underTitle 13 California Code ofRegulations (13 CCR) §2282(h)(1). Although this subsection was adoptedin March 2005, it does not appearthat many producers in Texas are taking advantage ofthe flexibility providedbythese parameters. The adopted rulemaking will repeal the currentrules in §114.313 and simultaneously adopt a new §114.313 thatwill establish new designated alternative limits with the same fuel propertylimits specified in 13 CCR §2282(h)(1) that producers mayuse to produce
TxLED. This adopted action will provide further clarification ofan underutilized flexibility in the TxLED program while ensuring equivalent emission reductions.



## AlternativeEmissionReduction Plans
The currentTxLED regulations allow producersto use diesel offset credits from early gasoline sulfur reductions as a compliance option undertheAERP provisions specified
under §114.318. However, the ability to use diesel offset credits inthe ozone nonattainment counties specified under §114.319(b)(1)- (3) expired December 31, 2008,
andexpired inthe other 90 TxLED counties on December 31, 2010. The adopted

4

## rulemaking will remove the expired provisions specifiedunder §114.318 

## pertaining to the use ofearly gasoline sulfur reduction credits as a methodology option for AERP compliance.

Administrative 

## The currentTxLED regulations contain several administrative compliance deadlines thathave expired and other administrative requirements relating to registration and reporting that are outdated orneedfurther clarification. The adopted rulemaking will revise definitions in §114.6 

## to clarify that onlythe person orcompanythat owns or operates the production facility thatis producing the final blend ofdiesel fuel is considered a producer andis therefore required to register and comply with the other
TxLED requirements. In addition, the adopted rulemaking will revise the registration requirements in §114.314 

## to remove expired provisions andto add new requirements for
the registration ofproduction andimportfacilities. The adopted rulemaking will also
make other clarifying changes to the administrative provisions ofthe rules as needed for
accuracy and consistency.

Section

# bySection Discussion
To conform to TCEQ and Texas Register

## formatting requirements, non-substantive revisions will be made throughoutthe adopted amendments to correct citations,
acronym usage, and other minor issues.

§114.6, LowEmission Fuel Definitions


## The adoption will amend §114.6 

## to remove the definition ofdesignated alternative limit

5

## as needed for consistencywith adopted new §114.313; remove the definition ofmotor vehicle fuel; renumber and revise the definitions ofbulkplant, bulk purchaser/consumer, further process, import, importfacility, importer, produce, producer, andproduction facility to replace the term, "motorvehicle fuel," with the
terms, "gasoline" or "diesel fuel," as neededfor consistency andto make other changes

to these terms as neededto clarify that onlythe person or companythat owns or operates the production facility that is producing the final blend ofdiesel fuel is
considered a producer andis therefore required to register and comply with all TxLED requirements. The adoption will also make changes to clarifythe definitions ofadditive,
diesel fuel, final blend, gasoline, low emission diesel, motorvehicle, non-road equipment, andretail dispensing outlet.

In response to public comment, the adoption will make additional changes to the
definition ofadditive in §114.6(1)(B) to further clarify that onlythose substances that
have been added to diesel fuel for the purpose ofproducing TxLED wouldbe considered
additives underthe TxLED program. Also in response to public comment, the adoption
will further amendthe definitions ofmotorvehicle in §114.6(14) and non-road equipment in §114.6(15) to revise the relevant Texas Transportation Code (TIC)
citations from TIC, §502.002 to TIC, §502.040 andfrom TIC, §502.006 to TIC, §502.140. These citation changes are neededin orderto reflect the renumbering ofthe

statute as directedby House Bill 2357, 82ndTexas Legislature, 2011.

§114.312, 

## LowEmission Diesel Standards
The adoption will amend §114.312 to make changes needed for accuracy and consistency

6

## with the adopted new §114.313 andthe adopted revisions to §114.315. The adoption will
amend §114.312 to remove language limitingthe acceptance ofCARE-approved
alternative diesel fuel formulations to onlythose approved on orbefore January 18, 2005, to allowthe use ofnew alternative diesel fuel formulations approved by CARE in
the future. The adoption will also amend §114.312 to cite the current effective date ofthe California diesel regulations relevant to this section.

§114.313, DesignatedAlternativeLimits
The adoption will repeal existing §114.313 and adopt a new §114.313 thatwill establish

new designated alternative limits that have the same fuel propertylimits as currently specified in California regulations (13 CCR §2282(h)(1)) to provide further clarification
ofanunderutilized flexibility in the TxLED program while ensuring equivalent emission
reductions.

§114.314, Registration of Diesel Producers andImporters
The adoption will amend §114.314 to remove expired registration requirements andto require all newproducers and importers to register by no laterthan 45 days after the
first date thattheybegin to provide TxLED to the affected counties listed in §114.319. In addition, the adoption will amend §114.314 to require producers and importers to provide information on each production facility andimportfacility from which TxLED is produced or imported. The adopted registration requirements will provide further
clarification that only owners and operators ofproduction facilities are considered producers subjecttothe TxLED regulations. The adoption will make other clarifying changes to §114.314 as needed to enhance and simplifythe registration process.

7

## §114.315,

## Approved TestMethods
The adoption will amend §114.315 to remove the alternative diesel formulation test procedures in subsection (c) to clarify that alternative diesel fuel formulations will only
be approved throughthe provisions currently specified under subsection (d). The adoption will also amend §114.315 to remove the option for allowing testing ofan alternative diesel fuel formulation throughthe EPA's ETV Program, which the EPA has
discontinued. The adoption will also amend §114.315 to remove the supplementarytest methods for viscosity andflash point in subsection (a) for consistencywith the changes

to subsection (c).

The adoption will also amend §114.315 to specify thatthe approvals ofall additive-based
alternative diesel fuel formulations approved priortoApril1, 2012, andthereafter will
be subject to revocation ifthe composition ofthe additive is found to be altered.
Producers using an additive-based alternative diesel formulation will be requiredto discontinue use ofthe formulation within 45 days ofthe date ofrevocation. In addition,
the adoption will amend §114.315 to add a new subsection (e) to specify that all
alternative diesel fuel formulations approvedbythe executive director priorto April1, 2012, may continue tobeusedfor compliance.

§114.316, 

## Monitoring, Recordkeeping, andReportingRequirements
The adoption will amend §114.316 to make clarifying changes to the reporting requirements as neededfor accuracy and consistencywith the adopted changes to §§114.313

- 114.315, and 114.318. The adoption will also amend §114.316 to specify the

8

## sampling and analysis requirements for the specific fuel properties for TxLED produced
under §§114.312, 114.313, 

## and 114.318.



## §114.317, Exemptions to LowEmissionDieselRequirements 

## The adoption will amend §114.317 

## to make clarifying changes as needed for accuracy and consistencywith the adopted changes to §114.316 

## and §114.319.



## §114.318, AlternativeEmission ReductionPlan


## The adoption will amend §114.318 

## to remove the provisions pertaining to the calculation
anduse ofearly gasoline sulfur reduction credits as a methodology option for AERP compliance. In addition, the adoption will amend §114.318(b) 

## to require AERPs thatuse the Unified Model to calculate compliance based onthe average fuel properties
determined each calendar quarter, instead ofyearly as currently required. The adoption
will also amend §114.318(b) 

## to allow producers to calculate the average fuel properties
used in the Unified Model based onthe fuel properties ofdiesel sold or suppliedfor use in all affected counties, instead ofspecific groups ofcounties as currentlyrequired.

§114.319, Affected Counties and Compliance Dates


## The adoption will amend §114.319 

## to remove expired compliance schedules in
subsection (c) andto modify subsection (d) to clarify that ifthe final compliance date of
anyprovision in the section is before the adoption ofthe current revision to the section
andthe compliance dates are not specified inthe current revision, then the compliance
date is past and all affected persons mustbe andremain in compliance with the provision as ofthe original compliance date. The adoption will also amend §114.319 

## to

9

## make other clarifying changes as neededfor accuracy and consistencywithin the section.



## Final Regulatory ImpactAnalysis Determination
The commission reviewed the adopted rulemaking considering the regulatory analysis requirements ofTexas Government Code, §2001.0225, and determined thatthe rulemaking does not meet the definition ofa "major environmental ru,le." A major
environmental rule means a rule, the specific intent ofwhich is to protectthe
environment or reduce risks to human health from environmental exposure, andthat
may adversely affect in a material way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe publichealth and safety ofthe

state or a sector ofthe state.

The adopted revisions to Chapter 114, Subchapter H, will remove the alternative diesel
fuel formulation test procedures in §114.315(c) andthe option for testing for approval through the EPA's ETV program, which the EPA has discontinued, thereby only allowing approval ofalternative diesel formulations through the othertwo approval options currently allowed that either specify criteriafor using the Unified Model thatwas developedbythe EPA specifically for the TxLED program or accept alternative diesel
formulations approvedbyCARB. The adoption will lessen the TCEQ's fiscal and staff

resource needs in the physical testing aspects ofthe alternative diesel formulation approval process.

This rulemaking action will repeal existing §114.313 and adopt a new §114.313 thatwill
establish newdesignated alternative limits with the same fuel propertylimits specified

10

## in California regulations (13 CCR §2282(h)(1)) that producers mayuse to produce
TxLED. This adopted action will provide addedflexibility to the TxLED program while ensuring equivalent emission reductions. The rulemaking will remove the expired provisions specified under §114.318 pertaining tothe use ofearly gasoline sulfur
reduction credits as a methodology option for AERP compliance.

Finally, the currentTxLED regulations contain several administrative compliance
deadlines thathave expired and other administrative requirements relating to registration and reporting that are outdated or need further clarification. The adopted rulemaking will clarifythe administrative provisions ofthe rules necessaryfor accuracy andconsistency.

Due to the limited nature and scope ofthese amendments, this action will not adversely affect, in a material way, the economy or a sector ofthe economy, productivity, competition, orjobs. The adopted rule changes continue to provide alternatives and flexibility to producers ofTxLED and additives in orderto meetthe fuel requirements.
The amendments to the rule do not affect the NOx reductions expected from the sale
anduse ofTxLED in Texas. Therefore, adverse impacts to the environment orpublic
health and safety inthe state will not occur.

The TxLED rules are part ofthe strategyto reduce NOx emissions necessaryfor designated areas in the state to be able to demonstrate attainment and maintenance of
the National AmbientAir Quality Standards (NAAQS) for ozone. This strategyis
intendedto protectthe environment or reduce risks to human health from

11

## environmental exposure to ozone by reducing NOx emissions thathelp form ozone.

Assuming the adopted revisions constitute a major environmental rule, the action is not subjectto the regulatory analysis provisions ofTexas Government Code, §2001.0225(b), 

## because the rulemaking does not meet any ofthe four applicability requirements. Texas
Government Code, §2001.0225 

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

## exceed a standard setbyfederal law; 2) 

## exceed an express requirement of

statelaw, unless the rule is specifically requiredby federal law; 3) exceed a requirement
ofa delegation agreement or contractbetween the state and an agency orrepresentative
ofthe federal government to implement a state andfederal program; or4) adopt a rule solely underthe general powers ofthe agency instead ofunder a specific state law.

Specifically, this rulemaking action will make improvements to the alternative
formulation and additive approval process. The TxLED program was developed as part ofthe control strategyto meetthe NAAQS for ozone setbythe EPA under Federal Clean
AirAct (FCAA), 42 

## United States Code (USC), §7409, 

## andtherefore meet a federal requirement. The adopted rulemaking implements requirements of42 

## USC, §7410, 

## which requires states to adopt a SIP that provides for "implementation, maintenance,
and enforcement" ofthe NAAQS in each air quality control region ofthe state. While 42 

## USC, §7410 

## does not require specific programs, methods, orreductions to meet and
maintain the standard, SIPs mustinclude "enforceable emission limitations and other
control measures, means ortechniques (including economic incentives such as fees,
marketable permits, and auctions ofemissions rights), as well as schedules and
timetables for compliance as maybe necessary or appropriate to meet the applicable

12

## requirements ofthis chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention
and Control). It

## is true thatthe FCAA does require some specific measures for SIP
purposes, such as the inspection and maintenance program, butthose programs are the exception, notthe rule, inthe SIP structure of42 USC, §7410. The provisions ofthe
FCAA recognize that states are inthe bestposition to determine what programs and
controls are necessary or appropriate in orderto meet and maintainthe NAAQS. This flexibility allows states, affected industry, andthe publicto collaborate onthebest
methods to attainthe NAAQS for the specific regions inthe state. Even though the FCAA
allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of42 USC, §7410. Thus, while specific measures are not generally required, the emission reductions are required.
States are notfree to ignore the requirements of42 USC, §7410, and must develop
programs to assure thatthe nonattainment areas ofthe statewould bebroughtinto
attainment on schedule andto maintain the NAAQS after redesignation. The adopted
revisions will help areas inthe state attain and maintainthe 1997 eight-hour ozone NAAQS as expeditiously as practicable.

The requirement to provide a fiscal analysis ofproposed regulations in the Texas
Government Code was amendedby Senate Bill (SB) 633 during the 75th Legislature,
1997. The intent ofSB 633 was to require agencies to conduct a regulatory impact analysis ofextraordinaryrules. These rules are identified in the statutorylanguage as major environmental rules thatwould have a material adverse impact andwould exceed

a requirement ofstate law, federal law, or a delegatedfederal program, or are adopted solelyunderthe general powers ofthe agency. With the understandingthatthis

13

## requirement would seldom apply, the commission provided a cost estimate for SB 633
that concluded "based on an assessment ofrules adoptedbythe agency in the past, itis

not anticipatedthatthe bill would have significant fiscal implications for the agency due

to its limited application." The commission also notedthatthe number ofrules that
would require assessment underthe provisions ofthebill was notlarge. This conclusion

was based, in part, onthe criteria setforth inthe bill that exempted proposed rules from
the full analysis unless the rule was a major environmental rule that exceeds a federal
law. As 

## discussed previously in this preamble, 42 

## USC, §7410 

## does not require specific
programs, methods, or reductions in orderto meet and maintain the NAAQS; thus,

states must develop programs for each nonattainment areato ensurethat area would

meetthe attainment deadlines. Because ofthe ongoing needto address nonattainment issues, the commission routinely proposes and adopts SIP rules. The legislature is presumedto understandthis federal scheme. 

## Ifeach rule proposedfor inclusion inthe
SIP was consideredtobe a major environmental rule that exceeds federal law, then
every SIP rule would require the full regulatory impact analysis contemplatedby SB 633.
This conclusion is inconsistent with the conclusions reachedbythe commission in its

cost estimate andbythe Legislative Budget Board in its fiscal notes. Because the legislature is presumedto understandthe fiscal impacts ofthe bills itpasses, andthat presumption is based on information providedby state agencies andthe Legislative Budget Board, the commission contends thatthe intent ofSB 633 was onlyto require
the full regulatory impact analysis for rules that are extraordinaryin nature. While the
SIP rules would have a broadimpact, that impact is no greater than is necessary or appropriate to meetthe requirements of42 

## USC, §7410. 

## For these reasons, rules adoptedfor inclusion inthe SIP fall underthe exception in Texas Government Code,

14

## §2001.0225(a), becausethey are specifically requiredbyfederal law.

In addition, 42 USC, §7502(a)(2) requires attainment as expeditiously as practicable,
and 42 USC, §7511(a) requires states to submit ozone attainment demonstration SIPs for

ozone nonattainment areas, such as the HGB andthe Dallas-FortWorth 1997 eight-hour

ozone nonattainment areas. The commission has consistently applied this construction

to its rules since this statute was enactedin 1997. Since thattime, the legislature has
revised the Texas Government Code butleft this provision substantiallyun-amended.
The commission presumes that "when an agency interpretation is in effect atthe time
the legislature amends the laws without making substantial change inthe statute, the legislature is deemedto have acceptedthe agency's interpretation." 

## CentralPower & 

## Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

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

## Humble Oil & 

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

## Sharp v. House of Lloyd, Inc.,
815 S.W.2d 245 (Tex. 1991); 

## Southwestern LifeIns. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000), pet. denied; and 

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

As 

## discussed previously inthis preamble, this rulemaking action implements requirements of42 USC, §7410. Furthermore, there is no contract or delegation agreement that covers the topic that is the subject ofthis action. Therefore, the adopted rulemaking does not exceed a standard setby federal law, exceed an express requirement ofstate law, or exceed a requirement ofa delegation agreement. Finally,

15

## this rulemaking action was not developed solely underthe general powers ofthe agency, butis authorizedby specific sections ofTexas Health and Safety Code, Chapter 382 

## (also
known as the Texas Clean Air Act), andthe Texas Water Code, which are citedin the StatutoryAuthority section ofthis preamble, including Texas Health and Safety Code, §§382.012, 382.017, 382.019, 

## and 382.202. 

## Therefore, the adopted rulemaking does not exceed a standard setby federal law, exceed an express requirement ofstate law, exceed

a requirement ofa delegation agreement, nor is adopted solely underthe general powers ofthe agency.

Based onthe foregoing, ifthis rulemaking action is assumedtobe a major
environmental rule, itis not subjectto the regulatory analysis provisions ofTexas
Government Code, §2001.0225(b), 

## becausethe rulemaking does not meet any ofthe
four applicability requirements.

The commission invited public commentregarding the draft regulatory impact analysis
determination during the public commentperiod, butreceived no comments relating to this subject.

Takings ImpactAssessment


## The commission evaluated this adopted rulemaking andperformed an analysis of
whetherthese adopted revisions to rules constitute a taking underTexas Government Code, Chapter 2007. 

## The specific purpose ofthese adopted rules is to achieve reductions
in NOx emissions to reduce ozone formation in orderto help bring nonattainment areas in the state into attainment with the federal NAAQS for ozone andto maintain it. The

16

## adopted rules will advance this statedpurposeby clarifying and simplifying testing procedures for additives and alternative fuel formulation approvals, clarifying designated alternative limits for TxLED, andupdating and adding definitions. Promulgation and enforcement ofthese adopted rules will be neither a statutorynor a constitutional taking ofprivate real property. Specifically, the subject rulemaking does

not affect a landowner's rights in private real property, because this rulemaking does not burden (constitutionally); nor restrict orlimitthe owner's right to property and reduce
its value by 25% 

## or more beyondthatwhich will otherwise exist inthe absence ofthe regulations. These revisions will not place a burden onprivate real property, because
this action does notrequire an investment in the permanentinstallation ofnew refinery processing equipment. Additive-based alternative fuel formulations canbe developed to
meetTxLED that do notrequire changes to refinery processes. Additionally, the
alternative formulation approvals made bythe executive director are not property rights, andthe adopted changes to the rules do not foreclose other approval options to
meetTxLED for these alternative formulations. Alternative formulations were initially developed as a wayto provide flexibility for diesel producers and suppliers to meet
TxLED requirements.

Furthermore, the commission's analysis indicates thatTexas Government Code, Chapter
2007 

## does not applyto these adoptedrules, because this is an action that is reasonably
taken to fulfill an obligation mandatedbyfederal law, which is exempt underTexas
Government Code, §2007.003(b)(4). 

## Specifically, the TxLED requirements were developed in orderto meetthe NAAQS for ozone setbythe EPA under 42 

## USC, §7409. 

## States are primarilyresponsible for ensuring attainment and maintenance ofNAAQS

17

## once the EPA has establishedthem. Pursuantto 42 

## USC, §7410, 

## and related provisions,

states must submit, for approval bythe EPA, SIPs that provide for the attainment and
maintenance ofNAAQS through control programs directedto sources ofthe pollutants
involved. Therefore, one purpose ofthis rulemaking action is to provide additional
clarification andflexibility inimplementingthe TxLED program necessaryfor the state's
nonattainment areas to meetthe air quality standards established under federal law as NAAQS. Attainment and maintenance ofthe 1997

## ozone standardrequired substantial
reductions in NOx emissions as well as volatile organic compounds emissions. This rulemaking is only one step among many necessary for attaining and maintaining the
1997

## ozone standard.

In addition, Texas Government Code, §2007.003(b)(13), 

## states that Chapter 2007 

## does

not applyto an action that: 1) 

## is taken in response to a real and substantial threatto public health and safety; 2) 

## is designed to significantly advance the health and safety
purpose; and 3) does not impose a greaterburdenthan is necessary to achieve the health
and safetypurpose. Although the rules do not directlyprevent a nuisance or prevent an immediate threatto life orproperty, they do prevent a real and substantial threatto publichealth and safety and significantly advance the health and safety purpose. This
action is taken in response to areas ofthe state exceeding the federal NAAQS for ozone, which adversely affects public health, primarilythrough irritation ofthe lungs. The
action significantly advances the health and safety purposeby improving the TxLED
program thatreduces ozone levels in the nonattainment areas and other areas ofthe

state that contribute to high ozone levels inthese areas. Consequently, these adopted
rules meetthe exemption in Texas Government Code, §2007.003(b)(13). 

## This

18

## rulemaking action therefore meets the requirements ofTexas Government Code, §2007.003(b)(4) and (13). Forthese reasons, the adopted rulemaking does not constitute a taking under Texas Government Code, Chapter 2007.

Consistencywith the Coastal Management Program


## The commission determinedthe adopted rulemaking relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the
Coastal CoordinationAct of 1991, as amended (Texas Natural Resources Code, §§33.201



## etseq.), andthe commission rules in 30TAC Chapter 281, Subchapter B, concerning Consistencywith the Texas Coastal Management Program. As 

## requiredby 30TAC §281.45(a)(3) and 31 TAC §sos.u(b)(2), relating to actions andrules subject tothe CMP, commission rules governing air pollutant emissions mustbe consistent with the applicable goals and policies ofthe CMP. The commission reviewed this action for consistencywith the CMP goals andpolicies in accordance with the regulations ofthe
Coastal Coordination Council and determined thatthe adopted amendments are consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) ofprotecting
andpreserving the quality andvalues ofcoastal natural resource areas, andthe policy in
31 TAC §501.14(q), which requires thatthe commission protect air quality in coastal

areas. The adopted rulemaking will ensure thatthe amendments comply with 40 Code
ofFederal Regulations (CFR) Part 50, National Primary and SecondaryAir Quality Standards, and40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal
ofImplementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e).

19

## The commission invitedpublic commentregarding the consistencywith the CMP during
the public comment period, but received no comments relating tothis subject.

Public Comment


## The commission scheduled a public hearing for April 26, 2012, 

## inAustin. However, since no one registeredto provide comments, the public hearing was notformally opened. The public comment period closed onApril 27, 2012.



## The commission received written comments from the Biodiesel Coalition ofTexas (BCOT), Good CompanyAssociates, Love's Travel Stops and Country Stores, Inc. and
the Musket Corporation (Love's/Musket), the National Biodiesel Board (NBB), andthe
EPA. All five commenters were in support ofthe rule changes andfour ofthe

commenters suggested minor non-substantive changes and/or requested additional
clarification onthe rule changes.

Response to Comments


## Good CompanyAssociates commentedthatthe references to the TIC, §502.002 

## and
§502.006 

## as cited in §114.6 

## appearedto be incorrect.

20

## The commission agrees andmade changes to the definitions ofmotor vehiclein §114.6(14) andnon-road equipmentin §114.6(15) to revisethe relevantTTC citationsfrom TTC, §502.002to TTC, §502.040 andfrom TTC, §502.006toTTC, §502.140. These citation changeswere neededin orderto reflectthe renumbering ofthe statute as directedbyHouse Bill 2357, 82nd
Texas Legislature, 2011.

The EPA commentedthatthe only provision to remove an additive from the approved
list ofalternative diesel fuel formulations is ifthe manufacturer changes the formulation
and requested an explanation on howthe TCEQ would determine thatthe composition ofthe additive hasbeen changed.



## TheTCEQ canperiodicallyrequestthe EPAprovide copies ofthe most
currentEPAfuel additive registrationletters for all ofthe additives usedin theTCEQ-approved alternative dieselformations to determine ifany changeshavebeen made totheir additive compositions. The approval notifications ofall TCEQ-approved alternative dieselfuel formulations specifythe EPAfuel additive registration number and additive name as registeredwiththe EPAin accordancewith 40 CFRPart 79 for the additive usedinthe emissionstesting ofthe approvedformulation. Any changeto the chemical composition ofa registeredfuel additive requiresthe additive manufacturertonotifythe EPAwiththe changes. Ifthe EPA determines the changes are significant, the alteredfuel additive willberequiredtohave a

newregistrationwiththe EPA, which willresultin a newregistration

21

## numberbeingissuedfor the altered additive. Consequently, sincethe original additive specificationinthe TCEQ-issued approvalnotification wouldnolongerbevalid, theTCEQwouldthenhavejustificationto revoke the approval ofthe alternative dieselfuel formulation. The commission madeno changesto the rules inresponse tothis comment.

Good CompanyAssociates commentedthat §114.318(b) 

## seems to implythat the Unified
Model applies to "average fuel properties ofall on-road diesel fuel" butlater requires
achieved savings ofNOx for both on and off-road fuels.



## TheAERP demonstration requirements specifiedin §114.318(b) applyto boththe averagefuel properties ofon-road dieselfuel andthe average fuel properties ofnon-roaddieselfuel. The commission made no changesto the rules inresponse tothis comment.

BCOT, Love's/Musket, and NBB commentedthatthey supportthe changes to the
definition ofadditive in §114.6(1), 

## which they understandwill result in the TCEQ no longer regulating biodiesel as an additive subject to the requirements ofthe TxLED
program.



## The commission appreciatesthe support andhas made additional changes

to the definition ofadditive in §114.6(1)(B) to further clarifythat onlythose substancesthathavebeen addedto dieselfuel for thepurpose ofproducing
TxLED wouldbe consideredadditives undertheTxLED program. Biodiesel

22

## wouldnotbe considered an additiveunderthe revised definition since biodieselis generallyonly addedto dieselfuel bydieselfuel producersto complywith

## requirements ofthefederal renewablefuels standards specifiedin 40 

## CFRPart So, SubpartM.

BCOT and Love's/Musket requestedthatthe TCEQ update the regulatory guidance
documentfor the TxLED program as soon as possible to accurately reflect the TCEQ's positionthatbiodiesel will no longerbe regulated as an additive underthe TxLED rules.



## Changes to regulatoryguidance documents arebeyondthe scope ofthis rulemaking. However, theTCEQ does intendto revise itsregulatory guidance documentfor theTxLEDprogramin a timelymannerto reflect all ofthe rule changesincludingthe changes relatingto alternative dieselfuel formulations, AERPs, andthatbiodieselis no longer considered an additive undertheTxLEDprogram. The commissionmade no changesto the rules
inresponse to these comments.

23

# RECOMMENDATION

## StatutoryAuthority SUBCHAPTERA: DEFINITIONS §114.6



## The amendmentis adoptedunderTexas Water Code (TWC), §5.103, 

## concerning Rules,
andTWC, §5.105, 

## concerning General Policy, which authorize the commission to adopt
rules necessaryto carry outits powers and duties underthe TWC. The amendment is
also adoptedunderTexas Health and Safety Code (THSC), §382.002, 

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

resources, consistent with the protection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

## concerning General Powers and Duties, which authorizes the
commission to control the quality ofthe state's air; THSC, §382.012, 

## concerning State
Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC, §382.017, 

## concerning Rules,
which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas CleanAir Act; andTHSC, §382.202, 

## concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish
vehicle fuel content standards after January 1, 2004, 

## as long as distribution oflow
emission diesel (LED) as described inthe state implementation plan is not required priorto February 1, 2005, 

## and authorizes the commission to consider alternative
emission reduction plans to complywith LED requirements.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 

## and
382.202.

1

## §114.6. LowEmission Fuel Definitions.

Unless specifically defined in Texas Health and Safety Code, Chapter 382, 

## also
known as the Texas Clean Air Act (TCAA), orinthe rules ofthe commission, theterms usedinthis subchapter have the meanings commonly ascribedto them inthe field ofair pollution control. In addition tothetermsthat are defined by TCAA, §3.2, 

## and §101.1 

## of
this title (relating to Definitions), thewords andterms specified inthis section, when
usedin Subchapter H ofthis chapter (relating to Low Emission Fuels), have the meanings as defined in this section, unless the context clearly indicates otherwise.

(1) 

## Additive--Any substance that is intentionally addedto gasoline or diesel fuel for the purpose ofproducing a gasoline or diesel fuel in compliance with the requirements ofSubchapter H ofthis chapterthat is:

(A) a registered additive with the United States Environmental
Protection Agency (EPA) in.accordance with 

## 40 Code ofFederal Regulations (CFR) Part
79 (relating to Registration ofFuels and Fuel Additives); or

(B) exemptedfrom the EPA registration requirements in
accordance with 

## 40 CFR Part 79.

(2) 

## Barrel--Aunit ofmeasure equal to 42 

## United States gallons.

2

## (3) Bulk plant--An intermediate gasoline or diesel fuel distribution facility
where gasoline or diesel fuel is stored andthen transportedfor delivery to a bulk purchaser/consumer orretail fuel dispensing facility.

(4) Bulk purchaser/consumer--Apersonwho purchases or otherwise
obtains gasoline or diesel fuel inbulk andthen dispenses itinto the fuel tanks ofmotor vehicles owned or operatedbythe person.

(5) Common carrier--Aperson engaged in the transportation ofgoods or products ofanother person for compensation andis available to the public for hire.

(6) Diesel fuel--Any middle distillate fuel usedin compression-ignition
internal combustion engines that is commonly or commerciallyknown, sold, or represented as:

(A) Grade No. 1-D or Grade No. 2-D diesel fuel, in accordance with
the active version ofAmerican Society for Testing and Materials (ASTM) D975 (Standard Specification for Diesel Fuel Oils); or

(B) Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA),

or Marine Gas Oil (MGO) diesel fuel in accordance with the active version ofthe

3

## International Organization for Standardization (ISO) 8217 Specifications ofMarine
Fuels.

(7) Final blend--A distinct quantity ofdiesel fuel that is introducedinto

commerce as low emission diesel fuel (LED), withoutfurther process.

(8) Furtherprocess--To perform any alteration to diesel fuel, including distillation, treating with hydrogen; blending, or addition ofan additive, for the purpose ofproducing a diesel fuel in compliance with the requirements ofSubchapter H,
Division 2 ofthis chapter priorto the diesel fuel being introduced into commerce as LED.

(9) Gasoline--Any fuel that is commonly or commerciallyknown, sold, or represented as gasoline, in accordance with the active version ofAmerican Society for Testing and Materials (ASTM) D4814 (Standard Specification for Automotive SparkIgnition Engine Fuel).

(10) Import--The process bywhich gasoline or diesel fuel is transported
into the State ofTexas by any means or methodwhatsoever, including transportvia pipeline, railway, truck, motorvehicle, barge, boat, or railway tank car.

(11) 

## Importfacility--The stationarygasoline or diesel fuel transfer point
wherein the importertakes delivery ofimportedgasoline or diesel fuel andfrom which

4

## imported gasoline or diesel fuel is transferred into the cargo tanktruck, pipeline, or other delivery vessel from which the fuel will be delivered to a bulkplant, bulk purchaser/consumer, orretail fuel dispensing facility.

(12) 

## Importer--Any person, except a person acting as a common carrier,
who imports gasoline or diesel fuel.

(13) 

## Low emission diesel fuel (LED)--Any diesel fuel that conforms to the requirements specified in §§114.312, 114.313, 

## or 114.318 

## ofthis title (relating to Low Emission Diesel Standards; DesignatedAlternative Limits; orAlternative Emission
Reduction Plan, respectively).

(14) 

## Motor vehicle--Any self-propelled device poweredby a gasoline fueled spark-ignition internal combustion engine or a diesel fueled compression-ignition
internal combustion engine in orbywhich a person or propertyis or maybe transported, andis requiredtobe registered under Texas Transportation Code, §502.040 , 

## excluding vehicles registered under Texas Transportation Code, §502.140

.

(15) 

## Non-road equipment--Any device poweredby a gasoline fueled sparkignition internal combustion engine or a diesel fueled compression-ignition internal
combustion engine that is not requiredto be registered under Texas Transportation Code, §502.040

.

5

## (16) 

## Produce--Perform the process to convert liquid compounds into gasoline or diesel fuel orto further process diesel fuel to create a final blend ofLED.

(17) 

## Producer--Any person who owns, leases, operates, controls, or supervises a production facility that produces gasoline or diesel fuel.

(18) 

## Production facility--Any facility where gasoline or diesel fuel is produced orthat manufactures liquidfuels by distilling petroleum.

(19) 

## Retail fuel dispensing outlet--Any establishmentwhere gasoline
and/or diesel fuel is sold or offered for sale for use in motorvehicles and/or non-road equipment, andthe fuel is directly dispensed intothe fuel tanks ofthe motorvehicles
and/or non-road equipmentusing the fuel.

(20) 

## Supply--To provide ortransfer gasoline or diesel fuel to a physically separate facility, vehicle, ortransportation system.

6

## SUBCHAYfERH: LOWEMISSION FUELS DIVISION 2: 

## LOWEMISSION DIESEL [§114-313]


## StatutoryAuthority


## The repeal is adoptedunderTexas Water Code (TWC), §5.103, 

## concerning Rules, and TWC, §5.105, 

## concerning General Policy, which authorize the commissionto adopt rules
necessary to carry outits powers and duties underthe TWC. The repeal is also adopted
underTexas Health and Safety Code (THSC), §382.002, 

## concerning Policy and Purpose,
which establishes the commission's purpose to safeguardthe state's air resources, consistent with the protection ofpublichealth, general welfare, and physical property; THSC, §382.011, 

## concerning General Powers and Duties, which authorizes the
commission to control the quality ofthe state's air; THSC, §382.012, 

## concerning State
Air Control Plan, which authorizes the commissionto prepare and develop a general, comprehensive planfor the control ofthe state's air; THSC, §382.017, 

## concerning Rules,
which authorizes the commission to adoptrules consistent with the policy andpurposes ofthe Texas Clean Air Act; andTHSC, §382.202, 

## concerningVehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish
vehicle fuel content standards afterJanuary 1, 2004, 

## as long as distribution oflow
emission diesel (LED) as described in the state implementation plan is not required priorto February 1, 2005, 

## and authorizes the commission to consider alternative
emission reduction plans to comply with LED requirements.

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, 382.017, 

## and
382.202.

7

## §114.313. DesignatedAlternative Limits.

8

## SUBCHAPTER H: LOWEMISSION FUELS DIVISION 2: 

## LOW EMISSION DIESEL §§114.312, 114.313, 114.314- 114.319
StatutoryAuthority


## The amendments and new section are adoptedunder Texas Water Code (TWC); §5.103, 

## concerning Rules, andTWC, §5.105, 

## concerning General Policy, which authorize the
commission to adopt rules necessaryto carry outits powers and duties underthe TWC.
The amendments and new section are also adoptedunder Texas Health and Safety Code (THSC), §382.002, 

## concerning Policy and Purpose, which establishes the commission's
purposeto safeguardthe state's air resources, consistent with the protection ofpublic health, general welfare, and physical property; THSC, §382.011, 

## concerning General
Powers and Duties, which authorizes the commission to control the quality ofthe state's air; THSC, §382.012, 

## concerning StateAir Control Plan, which authorizes the
commission to prepare and develop a general, comprehensive plan for the control ofthe
state's air; THSC, §382.017, 

## concerning Rules, which authorizes the commission to adopt rules consistentwith the policy andpurposes ofthe Texas Clean AirAct; and THSC, §382.202, 

## concerning Vehicle Emissions Inspection and Maintenance Program,
which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, 

## as long as distribution oflow emission diesel (LED) as described in the

state implementation plan is notrequired priorto February 1, 2005, 

## and authorizes the
commissionto consider alternative emission reduction plans to complywith LED requirements.

The adopted amendments and new section implementTHSC, §§382.002, 382.011,

9

## 382.012, 382.017, 

## and 382.202.

§114.312. 

## Low Emission Diesel Standards.

· (a) No person shall sell, offer for sale, supply, or offer for supply, dispense, transfer, allowthe transfer, place, store, orhold any diesel fuel in any stationarytank, reservoir, or other container inthe counties listed in §114.319 

## ofthis title (relating to Affected Counties and Compliance Dates) that may ultimatelybeusedto power a diesel
fueled compression-ignition internal combustion engine in the affected counties that
does not meet the low emission diesel fuel (LED) standards specified inparagraphs (1) 

## and (2) 

## ofthis subsection.

(1) 

## The maximum aromatic hydrocarbon content ofLED is 10% 

## byvolume
per gallon.

(2) 

## The minimum cetane number for LED is 48.

(b) 

## Subsection (a) ofthis section does not applyto a sale, offer for sale, or supply
ofdiesel fuel to a producer where the producerfurther processes the diesel fuel atthe producer's production facility priorto any subsequent sale, offer for sale, or supply of
the final blend ofLED.

10

## (c) Diesel fuel thathas been producedto comply with all specifications for a Certified Diesel Fuel Formulation as approvedby an executive orderbythe California
Air Resources Board for compliance with California diesel fuel regulations that were in
effect as ofAugust 4, 2005, except for those approved for small refinery compliance, or diesel fuel thathasbeenproducedto meet all specifications for diesel fuel under regulations adoptedbythe CaliforniaAir Resources Boardthat were in effect as of August 4, 2005, except for those approved for small refinery compliance, maybe usedto satisfythe requirements ofsubsection (a) ofthis section.

(d) Alternative diesel fuel formulations that have been approvedbythe executive
director as prescribed in §114.315(c) ofthis title (relating toApproved Test Methods)
maybe usedto satisfythe requirements ofsubsection (a) ofthis section.

§114.313. DesignatedAlternative Limits.

(a) Diesel fuel that hasbeen producedto meet all ofthe designated alternative
limits specified in subsection (b) 

## ofthis section maybe usedto satisfy the low emission
diesel fuel (LED) requirements specified in §114.312(a) ofthistitle (relating to Low
Emission Diesel Standards).

(b) 

## The designated alternative limits pergallon ofLED are setforth in paragraphs (1)- (6) ofthis subsection:

11

## (1) An 

## aromatic hydrocarbon content ofno greaterthan 21.0% byweight;

(2) Apolycyclic aromatic hydrocarbon content ofno greaterthan 3.5% by weight;

(3) An

## American Petroleum Institute gravity index ofno less than 36.9;

(4) Acetane number ofno less than 53;

(5) A nitrogen content ofno greaterthan soo 

## parts per million by weight (ppmw); and

(6) A sulfur content ofno greaterthan 15 ppmw.

(c) Compliance with the designated alternative limits specified in subsection (b)


## ofthis section mustbe determinedbythe test methods specified in §114.315(a) ofthis
title (relating toApproved Test Methods).

§114.314. Registration ofDiesel Producers and Importers.



## (a) Each producer andimporter that sells, offers for sale, supplies, offers to supply, dispenses, transfers, allows the transfer, places, stores, orholds any diesel fuel in
any stationarytank, reservoir, or other containerinthe affected counties listed in

12

## §114.319 

## ofthis title (relating toAffected Counties and Compliance Dates) that may ultimatelybe usedto power a diesel fueled compression-ignition internal combustion engine in the affected counties listedin §114.319 

## ofthis title shall register with the executive directorby no laterthan 45 days afterthe first date the diesel fuel from its production facility orimportfacility is made available for use in the affected counties
listedin §114.319 

## ofthis title.

(b) 

## Registration mustbe submitted on forms prescribedbythe executive director
and must include, at a minimum, the information specified in paragraphs (1)

- 

## (5) ofthis
subsection:

(1) 

## thelegal business name ofthe producer or importer, mailing address,
agency assigned customer reference number, and contact information for the producer

orimporter, ortheir authorized representative;

(2) 

## a statement ofthe estimatedtotal number ofbarrels oflowemission
diesel fuel thatthe producer orimporter is planningto produce or importin the 12 

## months following the date ofregistration thatthe producer orimporter intends to sell,
offer for sale, supply, or offerto supply from its production facility orimportfacility for

use in the counties listed in §114.319 

## ofthis title;

(3) the physical address, agency assigned regulated entity reference number, and contact information for each production facility orimport facility that is

13

## used to produce orimport diesel fuel that maybe sold, offered for sale, supplied, or offered for supplyfor use in the affected counties listed in §114.319 ofthis title;

(4) any otherinformation determinedbythe executive director tobe
necessaryto identifythe persons responsible for the adequacy ofdiesel supplyinthe
affected counties; and

(5) a signed statement ofconsentbythe registrant thatthe executive
director is permittedto collect samples and access documentation and records at any production facility orimport facility usedto produce orimport diesel fuel that may ultimatelybeusedto power a diesel fueled compression-ignition internal combustion engine in the counties listedin §114.319 ofthis title.

(c) The executive director shall maintain a listing ofall registered producers and importers.

§114.315. ApprovedTestMethods.



## (a) Compliance with the diesel fuel contentrequirements ofthis division mustbe
determinedby applying the appropriate test methods andprocedures specified inthe
active version ofAmerican Society for Testing and Materials (ASTM) D975 (Standard Specification for Diesel Fuel Oils), orby applying the supplementarytest methods and procedures specified in paragraphs (1)

- (5) ofthis subsection, as appropriate.

14

## (1) The aromatichydrocarbon content maybe determinedbythe active
version ofASTM Test Method D5186 (StandardTest Method for Determination of
Aromatic Content and PolynuclearAromatic Content ofDiesel Fuels andAviation
Turbine Fuels by Supercritical Fluid Chromatography). The following correlation equation mustbe usedto convert the supercritical fluid chromatography (SFC) results
in mass percentto volume percent: aromatichydrocarbons expressed in percentby
volume 

# =0.916 x (aromatichydrocarbons expressed in percentbyweight) + 1.33.

(2) The polycyclic aromatic hydrocarbon (also referredto as polynuclear
aromatic hydrocarbons or P AH) content maybe determinedbythe active version of
ASTM Test Method D5186 (StandardTest Methodfor Determination ofAromatic
Content and PolynuclearAromatic Content ofDiesel Fuels andAviation Turbine Fuels by Supercritical Fluid Chromatography). The correlation equation specified in paragraph (1) ofthis subsection mustbe usedto convert the SFC results in mass percent
tovolume percent.

(3) The nitrogen content maybe determinedbythe active version ofASTM
Test Method D4629 (StandardTest Methodfor Trace Nitrogen in Liquid Petroleum Hydrocarbons by Syringe/Inlet Oxidative Combustion and Chemiluminescence Detection).

15

## (4) The American Petroleum Institute (API) gravity index maybe
determinedbythe active version ofASTM Test Method D287 (StandardTest Methodfor
API Gravity ofCrude Petroleum and Petroleum Products (Hydrometer Method)).

(5) The distillation temperatures maybe determinedbythe active version
ofASTM Test Method D86 (StandardTest Methodfor Distillation ofPetroleum
Products atAtmospheric Pressure).

(b) 

## Modifications to thetesting methods andprocedures inthis section maybe approvedbythe executive director after consultation with and agreementbythe United
States Environmental ProtectionAgency (EPA).

(c) The executive director, upon application, may approve alternative diesel fuel
formulations as prescribedunder §114.312(d) ofthis title (relating to Low Emission
Diesel Standards) that maybe usedto satisfythe low emission diesel fuel (LED) requirements specified in §114.312(a) ofthis title ifthe applicanthas demonstratedto the satisfaction ofthe executive director andthe EPA in accordance with the procedures specified in paragraph (1) ofthis subsection thatthe alternative diesel fuel formulation
will achieve equivalent orbetter reductions in emissions ofnitrogen oxides (NOx).

(1) The applicant shall submit documentation demonstrating thatthe applicable fuel properties ofthe alternative diesel fuel formulation demonstrate at least

a 

# s.s% reduction in NOx emissions from on-road diesel fuel for the year 2007, and at

16

## least a 6.2% reduction in NOx emissions from non-road diesel fuel, using the Unified
Model as described inthe EPA staffdiscussion document, 

## Strategies andIssues in Correlating Diesel Fuel Properties with Emissions, Publication Number EPA420-P-01- 001, publishedJuly 2001.

(2) For alternative diesel fuel formulations that achieve emission
reductions as demonstratedin accordance with the criteria specified inparagraph (1) of
this subsection, the applicant shall provide documentation to the executive director
upon application that includes the cetane number, aromatic hydrocarbon content, specific gravity, andthetemperature corresponding tothe so% point onthe distillation

curve in degrees Fahrenheit (Tso) ofthe alternative diesel fuel formulation for which
the applicant is requesting approval as determinedin accordance with the test methods
andprocedures specified in subsection (a) ofthis section.

(3) If

## the alternative diesel fuel formulation has been demonstratedto the
satisfaction ofthe executive director andthe EPA to achieve comparable orbetter
reductions in emissions ofNOxin accordance with paragraph (1) ofthis subsection, then
the executive director may issue a notice ofapproval indicating that the alternative
diesel fuel formulation maybeusedto satisfythe LED requirements of§114.312(a) of
this title.

(A) The approval notification must identifythe specifications ofthe
alternative diesel fuel formulation as approved underthis subsectionbylisting the

17

## cetane number, aromatic hydrocarbon content, specific gravity, andthe temperature corresponding to the so% point onthe distillation curve in degrees Fahrenheit (Tso) of
the alternative diesel fuel formulation as documented inparagraph (2) ofthis
subsection.

(B) The approval notification must assign an identification number

to the specific approved alternative diesel fuel formulation.

(d) Approval ofany additive-based alternative diesel fuel formulation as prescribedunderthis section priortoApril1, 2012, andthereafter, is subject to revocation ifthe executive director determines that the composition ofthe additive component ofthe approved alternative diesel fuel formulation has been altered so that it

no longer matches the composition ofthe additive as originally approved. If

## the
executive director revokes the approval ofan additive-based alternative diesel formulation, producers using the alternative diesel formulation to satisfythe LED requirements of§114.312(a) ofthis title must discontinue all use ofthe alternative diesel
formulation within 45 days ofthe date ofrevocation.

(e) All alternative diesel fuel formulations approved bythe executive director as prescribedunderthis section priortoApril1, 2012, may continue to beused to comply
with the provisions specified in this division.



## §114.316. Monitoring, Recordkeeping, and Reporting Requirements.

18

## (a) Every producer orimporterthathas elected to sell, offer for sale, supply, or offer for supplylow emission diesel fuel (LED) produced at its production facility or importedfrom its importfacility in compliance with the requirements specified in §§114.312, 114.313, or 114,318 ofthis title (relating to Low Emission Diesel Standards; DesignatedAlternative Limits; Alternative Emission Reduction Plan, respectively) that
may ultimatelybe usedin counties listed in §114.319 ofthis title (relating toAffected
Counties and Compliance Dates) is subjectto the applicable requirements ofthis
section.

(b) 

## Each producer orimporter ofLED mustkeep records that declare or demonstrate that each final blend ofLED conforms to thebasic LED standards as specified in §114.312(a) ofthis title, to the designated alternative limits as specified in §114.313 ofthis title, to the specifications ofa Certified Diesel Fuel Formulation or a diesel fuel as accepted under §114.312(c) ofthis title, to an alternative diesel fuel
formulation as approved under §114.312(d) ofthis title, orto an alternative emission
reduction plan as approved under §114.318 ofthis title.

(c) Each producer orimporter ofLED shall collect and analyze a representative sample ofeach final blend ofLED produced at its production facility orimportedfrom
its import facility for the fuel properties specified in paragraphs (1)

- (5) ofthis
subsection.

19

## (1) The aromatic hydrocarbon content and cetane number mustbe analyzedfor LED produced orimported in accordance with §114.312(a) ofthis title using
the test methods specified in §114.315(a) ofthis title (relating toApproved Test Methods).

(2) The aromatic hydrocarbon content, cetane number, and/or any other appropriate components specified inthe applicable California diesel fuel regulations or the executive orderissuedby the CaliforniaAir Resources Board (CARB) mustbe analyzedfor LED produced orimported in accordance with §114.312(c) ofthistitle using
the test methods specified in §114.315(a) ofthistitle and ifappropriate, the test methods

as listed in the executive order issuedby CARB.

(3) The appropriate components ofthe alternative diesel fuel formulation

as listed inthe approval notification issuedbythe executive director under §114.315 of
this title mustbe analyzed for LED produced orimportedin accordance with §114.312(d)
ofthis title using the methodologies specified in §114.315(a) ofthis title and if appropriate, the test methods as listed in the approval notification.

(4) The aromatic hydrocarbon content, polycyclic aromatic hydrocarbon
content, American Petroleum Institute (API) gravity index, cetane number, nitrogen
content, and sulfur content mustbe analyzed for LED produced or imported in
accordance with §114.313 ofthis title using the test methods specified in §114.315(a) of
this title.

20

## (5) The aromatic hydrocarbon content, cetane number, specific gravity,
andthe temperature correspondingto the so% point onthe distillation curve in degrees
Fahrenheit (Tso) mustbe analyzed for LED produced in accordance with §114.318(b)(1)
ofthis title using thetest methods specified in §114.315(a) ofthis title.

(6) If

## the final blend ofLED requiredto be analyzed inparagraphs (2) 

## and (3) ofthis subsection is produced at a production facility with the use ofan additive as it
is being loaded directlyto tanks, pipelines, tank ships, railway tank cars, tanktrailers, or fuel delivery trucks, the producer orimporter may satisfythe sampling requirements of
this subsectionby recording thevolume ofadditive andthe volume ofdiesel additized in
each final blend ofLED as itis produced atthe production facility. The analysis ofthe
volumetric record must demonstrate that sufficient additive was added to the final blend
ofLED to maintainthe appropriate additive concentration pergallon as listed in the approval notification issuedbythe executive director or inthe executive order issuedby
the CARB.

(7) The producer or importer shall maintain records showing the sample date, identity ofthe final blend sampled, identity ofthe container or othervessel sampled, volume ofthefinal blend sampled, andthe fuel properties ofeach sample as analyzed in accordance with paragraphs (1)- (6) ofthis subsection as appropriate, for

two years from the date each sample was collected.

21

## (8) All LED producedbythe producer at its production facilities or importedbythe importer from its importfacilities and nottestedbythe producer or importer as requiredbythis subsection will be deemedto exceedthe standards specified
in §114.312 

## ofthis title, unless the producer orimporter demonstrates thatthe LED

meets those standards andlimits.

(d) Aproducer orimporter subject to the requirements ofthis division shall provide to the executive director any records requiredto be maintainedbythe producer

or importer in accordance with this section within 15 

## days ofa written request from the
executive director, ifthe request is received before expiration ofthe periodduring which
the records are requiredtobe maintained. Whenever a producer or importerfails to provide records regarding a final blend ofLED in accordance with the requirements of
this section, the final blend ofLED will bepresumedto have been soldbythe producer

or importer inviolation ofthe standards specified in §114.312 

## ofthis title, to which the producer orimporterhas elected to be subject.

(e) All parties inthe distribution chain (i.e., producers, importers, bulkplants,

common carriers, andretail fuel dispensing outlets) that supply diesel fuel subject to the requirements specified in §114.312 

## ofthis title that mayultimatelybe usedin counties
listed in §114.319 

## ofthis title shall maintain copies orrecords ofproducttransfer
documents for a minimum oftwo years and shall upon request, make such copies or records available to representatives ofthe commission, United States Environmental
ProtectionAgency, orlocal air pollution agency havingjurisdictioninthe area. The

22

## producttransfer documents must contain, at a minimum, the information specified in paragraphs (1)- 

## (7) ofthis subsection:

(1) 

## the date oftransfer;

(2) 

## the name and address ofthe transferor;

(3) the name and address ofthe transferee;

(4) 

## in the case oftransferors ortransferees who are producers or importers, the registration number ofthose persons as assignedby the commission
under §114.314 

## ofthis title (relating to Registration ofDiesel Producers and Importers);

(5) the volume ofdiesel fuel being transferred;

(6) the location ofthe diesel fuel atthe time oftransfer; and

(7) one ofthe certification statements specified in subparagraphs (A), (B),

or (C) ofthis paragraph, as appropriate:

(A) "This product is Texas low emission diesel and may be used as fuel for diesel engines in any Texas county requiring the use oflow emission diesel fuel."; or

23

## (B) "This product may notbeused as fuel for diesel engines in any Texas countyrequiring the use oflow emission diesel fuel without further processing.";

or

(C) "This producthas been producedunder a TCEQ approved
alternative emission reduction plan and maybeused as fuel for diesel engines in any Texas countyrequiring the use oflow emission diesel fuel."

(f) 

## Each producer orimporter ofLED subjectto subsection (a) ofthis section
shall provide a quarterly summation report to the executive director no laterthan the
45th dayfollowing the end ofeach calendar quarter and must maintain a record ofthe
information submittedinthe quarterlyreportfor two years from the date ofeach report. The quarterlyreport mustbe submitted on forms prescribedbythe executive director
andmust include, at a minimum, the information specified inparagraphs (1)

- 

## (3) ofthis
subsection for each ofthe producer's production facilities orfor each ofthe importer's importfacilities:

(1) 

## the total volume ofLED produced orimported during the calendar quarterthat is subject to the requirements ofthis section, and ifthevolume ofLED requiredto be reported in this paragraph was produced with the use ofan additive, the
total volume ofadditive usedto produce the LED must also be included in the quarterly report;

24

## (2) a reconciliation ofthe records required in subsection (c)(7) ofthis
section for each sample collected and analyzed during the calendar quarter; and

(3) any otherinformation determinedbythe executive directorto be
necessaryto demonstrate thatthe producer orimporterhas produced orimported LED
that has satisfiedthe requirements specified in §§114.312, 114.313, or 114.318 ofthis title.

(g) Each producer orimporter electing to sell, offer for sale, supply, or offerto supply LED in accordance with §114.312(c) ofthis title shall provide to the executive director, as applicable, a copy ofthe executive order issued bythe CARB for the Certified
Diesel Fuel Formulationusedto produce the LED or documentation demonstrating that
the LED hasbeen producedto meet all specifications for diesel fuel under regulations adoptedbythe CARB, except for those approved for small refinery compliance, that

were in effect as ofAugust 4, 2005.



## §114.317. Exemptions to LowEmission Diesel Requirements.

(a) Any diesel fuel subject to the low emission diesel (LED) requirements specified in §114.312 ofthis title (relating to Low Emission Diesel Standards) that is
either in a research, development, ortest status; oris soldto petroleum, automobile, engine, or component manufacturers for research, development, ortestpurposes; or any diesel fuel to be usedby, orunderthe control of, petroleum, additive, automobile,

25

## engine, or component manufacturers for research, development, ortest purposes, is exempted from the provisions ofthis division (relating to Low Emission Diesel), provided that:

(1) 

## the diesel fuel is kept segregated from non-exempt product, andthe
person possessing the product maintains documentation identifying the product as research, development, ortesting fuel, as applicable, and stating that itis to be used only
for research, development, ortesting purposes; and

(2) 

## the diesel fuel is not sold, dispensed, ortransferred, or offered for sale, dispensing, ortransferfrom a retail fuel dispensing facility. It 

## shall also notbe sold, dispensed, ortransferred, or offered for sale, dispensing, ortransfer from a wholesale purchaser-consumer facility, unless such facility is associated with fuel, automotive, or engine research, development, ortesting.

(b) 

## Any diesel fuel subject to the LED requirements specified in §114.312 

## ofthis
title that is refined, sold, dispensed, transferred, or offered for sale, dispensing, or transfer as competition racing fuel is exemptedfrom the provisions ofthis division, provided that:

(1) 

## the fuel is kept segregated from non-exempt fuel, andthe party possessing the fuel for the purposes ofrefining, selling, dispensing, transferring, or offering for sale, dispensing, ortransfer as competition racing fuel maintains

26

## documentation identifying the product as racing fuel, restricted for non-highway use in competition racing motorvehicles or engines;

(2) each pump stand at a regulated facility, from which the fuel is dispensed, is labeledwith the applicable fuel identification anduse restrictions
described inparagraph (1) ofthis subsection; and

(3) the fuel is not sold, dispensed, transferred, or offered for sale, dispensing, ortransfer for highway use in a motorvehicle.

(c) The owner or operator ofa retail fuel dispensing outlet is exemptfrom all requirements of§114.316 ofthis title (relating to Monitoring, Recordkeeping, and Reporting Requirements) except §114.316(e) ofthistitle.

(d) Diesel fuel that does not meetthe LED requirements of§114.312 ofthis title is

notprohibitedfrom being transferred, placed, stored, and/orheldwithin the affected
counties so long as it is not ultimatelyusedto power a diesel fueled compressionignition internal combustion engine operating in a motorvehicle or in non-road equipment in the counties listedin §114.319 ofthis title (relating toAffected Counties
and Compliance Dates), except for that usedin conjunction with purposes statedin
subsections (a) and (b) 

## ofthis section.

§114.318. 

## Alternative Emission Reduction Plan.

27

## (a) Diesel fuel that is sold, offered for sale, supplied, or offered for supplyby a producer who submits an alternative emission reduction plan in accordance with
subsection (b) 

## ofthis section thatis approvedbythe executive director will be
consideredin compliance with thelow emission diesel (LED) requirements of §114.312(a) ofthis title (relating to Low Emission Diesel Standards).

(b) 

## The alternative emission reduction plan must demonstrate, using the Unified
Model as described in the United States Environmental ProtectionAgency (EPA) staff
discussion document, 

## Strategies andIssues in Correlating DieselFuel Properties with Emissions, PublicationNumberEPA420-P-ol-001, publishedJuly 2001, thatthe
average fuel properties ofall on-road diesel fuel producedin any given calendar quarter thatis sold, offered for sale, supplied, or offered for supplybythe producer for use inthe
affected counties listedin §114.319 ofthis title (relating toAffected Counties and Compliance Dates) achieve atleast a s.s% reduction in nitrogen oxides (NOx) emissions
for theyear 2007; andthe average fuel properties ofall non-road diesel produced in any given calendar quarterthat is sold, offered for sale, supplied, or offered for supplybythe producer for use in the affected counties listedin §114.319 ofthis title achieve atleast a 6.2% reduction in NOx emissions.

(c) An 

## alternative emission reduction plan mustbe approvedbythe executive
director priorto the use ofthat planfor compliance with the requirements ofthis
section.

28

## (d) The executive director shall approve or disapprove alternative emission
reduction plans that have been submittedbyproducers in accordance with subsection (b) 

## ofthis section within 45 days ofsubmittal.

(e) Alternative emission reduction plans submittedto the executive director in
accordance with subsection (b) 

## ofthis section must contain sufficient documentation to validate the average diesel fuel properties usedto satisfythe requirements specified in
subsection (b) 

## ofthis section.



## §114.319. Affected Counties and Compliance Dates.

(a) All affected persons inthe counties listedin subsection (b) 

## ofthis section shall
continue to comply with §§114.312

- 114.317 ofthis title (relating to Low Emission Diesel Standards; DesignatedAlternate Limits; Registration ofDiesel Producers and Importers; Approved Test Methods; Monitoring, Recordkeeping, and Reporting Requirements; and Exemptions to Low Emission Diesel Requirements) as requiredby
subsection (d) ofthis section, as applicable, for any diesel fuel as defined in §114.6(6)(A)
ofthis title (relating to Low Emission Fuel Definitions) that mayultimatelybeusedto
power a diesel-fueled compression-ignition internal combustion engine in a motor vehicle orin non-road equipment in any ofthe counties listed in subsection (b) 

## ofthis
section.

29

## (b) 

## The counties specified in paragraphs (1)- 

## (4) ofthis subsection are subjectto subsection (a) ofthis section:

(1) 

## Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant;

(2) 

## Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, andWaller;

(3) Hardin, Jefferson, and Orange; and

(4) Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Karnes, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, Refugio, Robertson, Rusk, Sabine, SanJacinto, San Patricio, SanAugustine, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, VanZandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, andWood.

30

## (c) All affected persons in the counties listedin subsection (b) 

## ofthis section shall
continueto complywith §§114.312- 114.317 

## ofthis title as requiredby subsection (d) of
this section, as applicable, for any diesel fuel as defined in §114.6(6)(B) 

## ofthis title that
mayultimatelybeusedto power a diesel-fueled compression-ignition internal
combustion engine located on a marine vessel in any ofthe counties listedin subsection (b)(2) 

## ofthis section.

(d) For all counties affectedbythis section, the final compliance dates for control requirements are given within the subsections relating to counties and compliance
schedules for provisions specified inthis division ifthe final compliance date ofany provision is after the date ofadoption ofthe currentrevision to this division. If

## the compliance dates are not specified for anyprovision, the compliance date is past and all
affected persons mustbe andremain in compliance with the provision as ofthe original compliance date.

31THE STATE OE TEXAS 

## TEXAS COMMISSION ON

# ENVIRO!lOO~~t**~ALITY** C';E 0 

### I hereby certify that this is a true and correct copy of a**o;.~ ~'**  ?· Texas CommiSSion on**Env~ronmental** Quality document, ( :;;**~** Which IS filed 1n the permanent records ofthe Commission. :;: 2; Given under my hand and the seal of office on

# Bn~:Clh'a~~rkAUG 2 9 2012
Texas Commission on Environmental Quality 

## ORDERADOPTINGNEW, AMENDED, AND REPEALED RULES AND REVISIONS TO THE STATE IMPLEMENTATION PLAN

Docket No. 2009-2039-RUL

On August 22, 2012, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamendments to§§ 114.6, 114.312, and 114.314- 114.319, the repeal of§ 114.313 and new§ 114.313. The Commission adopts these new, amended and repealed rules in 30 TAC Chapter 114, Control ofAir Pollution from Motor Vehicles; and corresponding revisions to the state implementationplan (SIP). The adoption revises definitions; establishes new designated-alternative limits; removes expired registration requirements and establishes newregistration requirements; revises approval proceduresfor alternative diesel fuel formulations; specifies that approvals ofall additivebased alternative diesel fuel formulations will be subject to revocation ifthe composition of the additive is foundtobe altered; allows all alternative diesel formulations approvedby the Commission priortoApril1, 2012, to remain in effect; revises reporting requirements; requires quarterlycompliance determinations for alternative emission reduction plans using the Unified Model; and removes expired early gasoline sulfur reduction credits provisions. Under Tex. Health & 

## Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2011), the Commission has the authorityto control the quality ofthe state's air andto issue orders consistent with the policies andpurposes ofthe Texas Clean Air Act, Chapter 382 ofthe Tex. Health & 

## Safety Code. The proposed rules were published for commentin the March 23, 2012 issue ofthe 

## Texas Register (37 TexReg 2009).
Pursuant to Tex. Health &.Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 (Vernon 2008), and40 Code ofFederal Regulations § 51.102, and after proper notice, the Commission conducted a publichearing to consider the new, amended and repealed rules and revisions to the SIP. Proper notice includedprominent advertisement in the areas affected at least 30 days prior to the date ofthe hearing. A public hearing was held inAustin, Texas on April 26, 2012.
The Commission circulated hearing notices ofits intended action to the public, including interestedpersons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed new, amended and repealed rules and SIP revisions, either orally or inwriting, at the hearing or during the comment period. Prior to the scheduled hearing, copies ofthe proposed new, amended and repealed rules and SIP

## revisions were available for public inspection atthe Commission's central office and onthe Commission's Web site. Data, views, and recommendations ofinterested persons regarding the proposed new, amended andrepealed rules and SIP revisions were submittedto the Commission during the commentperiod, andwere consideredbythe Commission as reflected in the analysis of testimonyincorporatedby reference to this Order. The Commission finds thatthe analysis of testimonyincludes the names ofall interested groups or associations offering comment on the proposed new, amended and repealedrules andthe SIP revisions andtheir position concerning the same. IT IS THEREFORE ORDERED BY THE COMMISSION thatthe new, amended and repealed rule and revisions to the SIP incorporatedby reference to this Order are hereby adopted. The Commission further authorizes staffto make any non-substantive revisions to the rules necessary to complywith 

## Texas Register requirements. The adopted rules andthe preamble to the adopted rules andthe revisions to the SIP are incorporatedby reference in this Order as ifsetforth atlength verbatim inthis Order.
IT IS FURTHER ORDERED BY THE COMMISSION that onbehalfofthe Commission, the Chairman shouldtransmit a copy ofthis Order, together withthe adopted rules and revisions to the SIP, to the Regional Administrator ofEPA as a proposed revision to the Texas SIP pursuantto the Federal Clean Air Act, codified at42 U.S. Code Ann. §§ 7401- 7671q, as amended. This Order constitutes the Order ofthe Commission requiredbytheAdministrative Procedure Act, Tex. Gov't Code,§ 2001.033 (Vernon 2008). If

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

Issued date: 

# AUG 2 8 2012

TEXAS COMMISSION ON 

## ENVIRONMENTAL QUALITY

. Shaw, Ph.D., Chairmanoftwo years under Texas Occ ations Code §1102.205 when such accreditation program is develop d by the commission; (18) a fee of$50 pi s $10 per classroom hour approved by the commission for each ICE c urse for a period oftwo years; (19) a fee of$50 fo the filing ofan application for approval as an instructor for a two-year eriod for core or ICE courses, or both; (20) a fee of$30 fo processing a check or other equivalent instrument returned by a bank r depository as dishonored for insufficient funds; (21) a fee of$100 or deposit in the real estate inspection recovery fund upon an applic t's successful completion ofan examination; and (22) fee of$20 for ling any application, renewal, change request, or other record on pap r that a person may otherwise file with the commission electronically y accessing the commission's website, entering the required informat on online, and paying the appropriate fee. (b) Fees established b this section which are paid when an application is filed are not refu dable once an application has been accepted for filing. This agency hereby certifies hatthe adoption has been reviewed by legal counsel and found t be a valid exercise ofthe agency's legal authority. Filed with the Office ofthe S retary ofState on August 20, 2012. TRD-201204413 Loretta R. DeHay General Counsel Texas Real Estate Commission Effective date: January 1, 201 Proposal publication date: Jun 1, 2012 For further information, please all: (512) 936-3092 

# • 

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''"''**w~<,v,,** 'v'**v~,'~ ,/~,,,,,.','**  ,,.. ,,,, ' ' The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§114.6, 114.312, and 114.314- 114.319; the repeal of §114.313; and new §114.313. Amended §114.6 is adopted with change to the proposed text as published in the March 23, 2012, issue ofthe Texas Register (37 TexReg 2009). Sections 114.312, and 114.314- 114.319; the repeal of §114.313; and new §114.313 are adopted without changes to the proposed text and will not be republished. The adopted revisions will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). Background and Summary ofthe Factual Basis for the Adopted Rules The current state regulations for Texas low emission diesel (TxLED) under Chapter 114 require that all diesel as defined under §114.6 that is sold or supplied for use in a compression-ignition engine operating in any of the 110 central and eastern Texas counties listed in §114.319 must comply with the specifications for aromatic hydrocarbons and cetane number as listed in §114.312 or one of the other compliance options listed under this section. This regulation includes all diesel used as fuel for on-road motor vehicles and non-road equipment. The TxLED regulations also apply to marine distillate fuels, i.e., Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), and Marine Gas Oil (MGO), when these marine distillate fuels are used in the 1997 Houston-Galveston-Brazoria (HGB) ozone nonattainment area counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller. Diesel producers are also allowed to produce TxLED in accordance with an alternative emission reduction plan (AERP) as specified under §114.318. TxLED producers and importers are required to register with the TCEQ as specified under §114.314 and to submit quarterly reports to the TCEQ as specified under §114.316. There are 112 producers and importers currently registered under the TxLED program. The total nitrogen oxides (NOx) emission reduction benefit from TxLED in 2018 from all 110 counties currently regulated is estimated to be approximately 5.62 tons per day (tpd) from on-road vehicle use and 7.54 tpd from non-road equipment use. The estimated NOx emission reduction benefit in 2018 from TxLED marine diesel in the 1997 eight-county HGB ozone nonattainment area is approximately 0.89 tpd. The adopted rulemaking will address the following issues. Alternative Diesel Formulations The TCEQ has currently approved 20 alternative diesel formulations in accordance with the testing requirements specified under §114.315 that producers and importers may use to produce TxLED, with 18 ofthese formulations requiring the use ofa diesel additive. All but one of the additive-based alternative diesel formulations for TxLED were approved under the testing procedures specified under §114.315(c). In 2011, approximately 52% of all TxLED was reported to have been produced using the additive-based alternative diesel formulations approved by the TCEQ. Approximately 30% ofall TxLED in 2011 was reported to have been produced using an additive-based alternative diesel formulation for California diesel approved by the California Air Resources Board (GARB) that producers are allowed to use under §114.312(e) to produce TxLED

. The TCEQ process to approve an alternative diesel formulation for TxLED under §114.315(c) includes review and approval of test protocols prior to emissions testing, observation ofthe emissions testing at the testing facilities, review ofthe final test reports from the testing facilities describing the results of the emissions testing, and determining whether the emissions test results satisfy the criteria specified in §114.315(c) that allows the TCEQ to approve the formulation. The TCEQ is also required to request the EPA's consultation when proposing to approve an alternative diesel formulation for TxLED. The TCEQ approval and review process specified in §114.315(c) has resulted in fiscal and staff resource challenges for the agency. The professional services needed to validate the emissions testing data and to physically observe the emissions testing being performed for approval purposes is costing the TCEQ approximately $20,000 per application.



## ADOPTED RULES September 7, 

## 2012 37 TexReg 7181The adopted rulemaking will remove the alternative diesel fuel formulation test procedures in §114.315(c) and the option under §114.315(d) for allowing the testing of these formulations through the EPA's Environmental Technology Verification (ETV) Program, which the EPA has discontinued. The other approval option currently specified under §114.315(d), which specifies criteria for using the Unified Model that was developed by the EPA specifically for the TxLED program, will remain as the only TCEQ method for approving alternative diesel formulations. Acceptance of alternative diesel formulations approved by CARB as allowed under §114.312(e) will also continue. The adopted rulemaking will greatly lessen the TCEQ's fiscal and staff resource needs in the physical testing aspects ofthe alternative diesel formulation approval process without significantly limiting TxLED compliance options. DesignatedAlternative Limits The current TxLED regulations specified in §114.312(e) allow diesel fuel produced to comply with specific California regulations for diesel fuel to be used for compliance with the TxLED requirements including diesel fuel produced under the designated equivalent limits specified underTitle 13 California Code of Regulations (13 CCR) §2282(h)(1). Although this subsection was adopted in March 2005, it does not appear that many producers in Texas are taking advantage of the flexibility provided by these parameters. The adopted rulemaking will repeal the current rules in §114.313 and simultaneously adopt a new §114.313 thatwill establish new designated alternative limits with the same fuel property limits specified in 13 CCR §2282(h)(1) that producers may use to produce TxLED. This adopted action will provide further clarification ofan underutilized flexibility in the TxLED program while ensuring equivalent emission reductions. Alternative Emission Reduction Plans The current TxLED regulations allow producers to use diesel offset credits from early gasoline sulfur reductions as a compliance option under the AERP provisions specified under §114.318. However, the ability to use diesel offset credits in the ozone nonattainment counties specified under §114.319(b)(1)

- (3) expired December 31, 2008, and expired in the other 90 TxLED counties on December 31, 2010. The adopted rulemaking will remove the expired provisions specified under §114.318 pertaining to the use ofearly gasoline sulfur reduction credits as a methodology option for AERP compliance. Administrative The current TxLED regulations contain several administrative compliance deadlines that have expired and other administrative requirements relating to registration and reporting that are outdated or need further clarification. The adopted rulemaking will revise definitions in §114.6 to clarify that only the person or company that owns oroperates the production facility that is producing the final blend ofdiesel fuel is considered a producer and is therefore required to register and comply with the otherTxLED requirements. In addition, the adopted rulemaking will revise the registration requirements in §114.314 to remove expired provisions and to add new requirements for the registration ofproduction and import facilities. The adopted rulemaking will also make other clarifying changes to the administrative provisions of the rules as needed for accuracy and consistency. Section by Section Discussion To conform to TCEQ and Texas Register formatting requirements, non-substantive revisions will be made throughout the



## 37 TexReg 7182 September 7, 

## 2012 Texas Register adopted amendments to correct citations, acronym usage, and other minor issues. §114.6, Low Emission Fuel Definitions The adoption will amend §114.6 to remove the definition of designated alternative limit as needed for consistency with adopted new §114.313; remove the definition of motor vehicle fuel; renumber and revise the definitions of bulk plant, bulk purchaser/consumer, further process, import, import facility, importer, produce, producer, and production facility to replace the term, "motor vehicle fuel," with the terms, "gasoline" or "diesel fuel," as needed for consistency and to make other changes to these terms as needed to clarify that only the person or company that owns or operates the production facility that is producing the final blend of diesel fuel is considered a producer and is therefore required to register and comply with all TxLED requirements. The adoption will also make changes to clarify the definitions of additive, diesel fuel, final blend, gasoline, low emission diesel, motor vehicle, non-road equipment, and retail dispensing outlet. In response to public comment, the adoption will make additional changes to the definition of additive in §114.6(1)(B) to further clarify that only those substances that have been added to diesel fuel for the purpose of producing TxLED would be considered additives under the TxLED program. Also in response to public comment, the adoption will further amend the definitions ofmotor vehicle in §114.6(14) and non-road equipment in §114.6(15) to revise the relevant Texas Transportation Code (TTC) citations from TTC, §502.002 to TTC, §502.040 and from TTC, §502.006 to TTC, §502.140. These citation changes are needed in order to reflect the renumbering of the statute as directed by House Bill 2357, 82nd Texas Legislature, 2011. §114.312, Low Emission Diesel Standards The adoption will amend §114.312 to make changes needed for accuracy and consistency with the adopted new §114.313 and the adopted revisions to §114.315. The adoption will amend §114.312 to remove language limiting the acceptance of GARBapproved alternative diesel fuel formulations to only those approved on or before January 18, 2005, to allow the use of new alternative diesel fuel formulations approved by CARB in the future. The adoption will also amend §114.312 to cite the current effective date ofthe California diesel regulations relevant to this section. §114.313, DesignatedAlternative Limits The adoption will repeal existing §114.313 and adopt a new §114.313 that will establish new designated alternative limits that have the same fuel property limits as currently specified in California regulations (13 CCR §2282(h)(1)) to provide further clarification of an underutilized flexibility in the TxLED program while ensuring equivalent emission reductions. §114.314, Registration ofDiesel Producers and Importers The adoption will amend §114.314 to remove expired registration requirements and to require all new producers and importers to register by no later than 45 days after the first date that they begin to provide TxLED to the affected counties listed in §114.319. In addition, the adoption will amend §114.314 to require producers and importers to provide information on each production facility and import facility from which TxLED is produced or imported. The adopted registration requirements will provide further clarification that only owners and operators of production facilities are considered producers subject to the TxLED reg-ulations. The adoption will make other clarifying changes to §114.314 as needed to enhance and simplify the registration process. §114.315, Approved Test Methods The adoption will amend §114.315 to remove the alternative diesel formulation test procedures in subsection (c) to clarify that alternative diesel fuel formulations will only be approved through the provisions currently specified under subsection (d). The adoption will also amend §114.315 to remove the option for allowing testing of an alternative diesel fuel formulation through the EPA's ETV Program, which the EPA has discontinued. The adoption will also amend §114.315 to remove the supplementary test methods for viscosity and flash point in subsection (a) for consistency with the changes to subsection (c). The adoption will also amend §114.315 to specify that the approvals of all additive-based alternative diesel fuel formulations approved prior to April 1, 2012, and thereafter will be subject to revocation if the composition of the additive is found to be altered. Producers using an additive-based alternative diesel formulation will be required to discontinue use of the formulation within 45 days of the date of revocation. In addition, the adoption will amend §114.315 to add a new subsection (e) to specify that all alternative diesel fuel formulations approved by the executive director prior to April 1, 2012, may continue to be used for compliance. §114.316, Monitoring, Recordkeeping, and Reporting Requirements The adoption will amend §114.316 to make clarifying changes to the reporting requirements as needed for accuracy and consistency with the adopted changes to §§114.313- 114.315, and 114.318. The adoption will also amend §114.316 to specify the sampling and analysis requirements for the specific fuel properties for TxLED produced under §§114.312, 114.313, and 114.318. §114.317, Exemptions to Low Emission Diesel Requirements The adoption will amend §114.317 to make clarifying changes as needed for accuracy and consistency with the adopted changes to §114.316 and §114.319. §114.318, Alternative Emission Reduction Plan The adoption will amend §114.318 to remove the provisions pertaining to the calculation and use of early gasoline sulfur reduction credits as a methodology option for AERP compliance. In addition, the adoption will amend §114.318(b) to require AERPs that use the Unified Model to calculate compliance based on the average fuel properties determined each calendar quarter, instead of yearly as currently required. The adoption will also amend §114.318(b) to allow producers to calculate the average fuel properties used in the Unified Model based on the fuel properties of diesel sold or supplied for use in all affected counties, instead of specific groups of counties as currently required. §114.319, Affected Counties and Compliance Dates The adoption will amend §114.319 to remove expired compliance schedules in subsection (c) and to modify subsection (d) to clarify that if the final compliance date of any provision in the section is before the adoption of the current revision to the section and the compliance dates are not specified in the current revision, then the compliance date is past and all affected persons must be and remain in compliance with the provision as of the original compliance date. The adoption will also amend §114.319 to make other clarifying changes as needed for accuracy and consistency within the section. Final Regulatory Impact Analysis Determination The commission reviewed the adopted rulemaking considering the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule." A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted revisions to Chapter 114, Subchapter H, will remove the alternative diesel fuel formulation test procedures in §114.315(c) and the option for testing for approval through the EPA's ETV program, which the EPA has discontinued, thereby only allowing approval of alternative diesel formulations through the othertwo approval options currently allowed that either specify criteria for using the Unified Model that was developed by the EPA specifically for the TxLED program or accept alternative diesel formulations approved by GARB. The adoption will lessen the TCEQ's fiscal and staff resource needs in the physical testing aspects of the alternative diesel formulation approval process. This rulemaking action will repeal existing §114.313 and adopt a new §114.313 that will establish new designated alternative limits with the same fuel property limits specified in California regulations (13 CCR §2282(h)(1)) that producers may use to produce TxLED. This adopted action will provide added flexibility to the TxLED program while ensuring equivalent emission reductions. The rulemaking will remove the expired provisions specified under §114.318 pertaining to the use ofearly gasoline sulfur reduction credits as a methodology option for AERP compliance. Finally, the current TxLED regulations contain several administrative compliance deadlines that have expired and other administrative requirements relating to registration and reporting that are outdated or need further clarification. The adopted rulemaking will clarify the administrative provisions ofthe rules necessary for accuracy and consistency. Due to the limited nature and scope of these amendments, this action will not adversely affect, in a material way, the economy or a sector of the economy, productivity, competition, or jobs. The adopted rule changes continue to provide alternatives and flexibility to producers of TxLED and additives in order to meet the fuel requirements. The amendments to the rule do not affect the NOx reductions expected from the sale and use ofTxLED in Texas. Therefore, adverse impacts to the environment or public health and safety in the state will not occur. The TxLED rules are part of the strategy to reduce NOx emissions necessary for designated areas in the state to be able to demonstrate attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) for ozone. This strategy is intended to protect the environment or reduce risks to human health from environmental exposure to ozone by reducing NOx emissions that help form ozone. Assuming the adopted revisions constitute a major environmental rule, the action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the rulemaking does not meet any of the four applicability requirements. Texas Government Code, §2001.0225 only applies to a



## ADOPTED RULES September 7, 2012 37 TexReg 7183major environmental rule, the result of which is to: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers ofthe agency instead of under a specific state law. Specifically, this rulemaking action will make improvements to the alternative formulation and additive approval process. The TxLED program was developed as part ofthe control strategy to meet the NAAQS for ozone set by the EPA under Federal Clean Air Act (FCAA), 42 United States Code (USC), §7409, and therefore meet a federal requirement. The adopted rulemaking implements requirements of42 USC, §7410, which requires states to adopt a SIP that provides for "implementation, maintenance, and enforcement" of the NAAQS in each air quality control region of the state. While 42 USC, §7410 does not require specific programs, methods, or reductions to meet and maintain the standard, SIPs must include "enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements ofthis chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention and Control). It is true that the FCAA does require some specific measures for SIP purposes, such as the inspection and maintenance program, but those programs are the exception, not the rule, in the SIP structure of 42 USC, §7410. The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet and maintain the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best methods to attain the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of42 USC, §7410. Thus, while specific measures are not generally required, the emission reductions are required. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs to assure that the nonattainment areas of the state would be brought into attainment on schedule and to maintain the NAAQS after redesignation. The adopted revisions will help areas in the state attain and maintain the 1997 eight-hour ozone NAAQS as expeditiously as practicable. The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These rules are identified in the statutory language as major environmental rules that would have a material adverse impact and would exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill would have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless



## 37 TexReg 7184 September 7, 

## 2012 Texas Register the rule was a major environmental rule that exceeds a federal law. As discussed previously in this preamble, 42 USC, §7410 does not require specific programs, methods, or reductions in order to meet and maintain the NAAQS; thus, states must develop programs for each nonattainment area to ensure that area would meet the attainment deadlines. Because of the ongoing need to address nonattainment issues, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board in its fiscal notes. Because the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the Legislative Budget Board, the commission contends that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules would have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of 42 USC, §7410. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are specifically required by federal law. In addition, 42 USC, §7502(a)(2) requires attainment as expeditiously as practicable, and 42 USC, §7511(a) requires states to submit ozone attainment demonstration SIPs for ozone nonattainment areas, such as the HGB and the Dallas-Fort Worth 1997 eight-hour ozone nonattainment areas. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially un-amended. The commission presumes that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990), no writ; Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245 (Tex. 1991); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000), pet. denied; and Coastallndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). As discussed previously in this preamble, this rulemaking action implements requirements of42 USC, §7410. Furthermore, there is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely under the general powers of the agency, but is authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean AirAct), and the Texas Water Code, which are cited in the Statutory Authority section of this preamble, including Texas Health and Safety Code, §§382.012, 382.017, 382.019, and 382.202. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, exceeda requirement of a delegation agreement, nor is adopted solely under the general powers of the agency. Based on the foregoing, if this rulemaking action is assumed to be a major environmental rule, it is not subject to the regulatory analysis provisions ofTexas Government Code, §2001.0225(b), because the rulemaking does not meet any of the four applicability requirements. The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period, but received no comments relating to this subject. Takings Impact Assessment The commission evaluated this adopted rulemaking and performed an analysis of whether these adopted revisions to rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose ofthese adopted rules is to achieve reductions in NOx emissions to reduce ozone formation in order to help bring nonattainment areas in the state into attainment with the federal NAAQS for ozone and to maintain it. The adopted rules will advance this stated purpose by clarifying and simplifying testing procedures for additives and alternative fuel formulation approvals, clarifying designated alternative limits for TxLED, and updating and adding definitions. Promulgation and enforcement of these adopted rules will be neither a statutory nor a constitutional taking of private real property. Specifically, the subject rulemaking does not affect a landowner's rights in private real property, because this rulemaking does not burden (constitutionally); nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which will otherwise exist in the absence of the regulations. These revisions will not place a burden on private real property, because this action does not require an investment in the permanent installation of new refinery processing equipment. Additive-based alternative fuel formulations can be developed to meet TxLED that do not require changes to refinery processes. Additionally, the alternative formulation approvals made by the executive director are not property rights. and the adopted changes to the rules do not foreclose other approval options to meet TxLED for these alternative formulations. Alternative formulations were initially developed as a way to provide flexibility for diesel producers and suppliers to meet TxLED requirements. Furthermore. the commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to these adopted rules, because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4). Specifically, the TxLED requirements were developed in order to meet the NAAQS for ozone set by the EPA under 42 USC, §7409. States are primarily responsible for ensuring attainment and maintenance of NAAQS once the EPA has established them. Pursuant to 42 USC, §7410, and related provisions, states must submit, for approval by the EPA, SIPs that provide for the attainment and maintenance of NAAQS through control programs directed to sources ofthe pollutants involved. Therefore. one purpose of this rulemaking action is to provide additional clarification and flexibility in implementing the TxLED program necessary for the state's nonattainment areas to meet the air quality standards established under federal law as NAAQS. Attainment and maintenance of the 1997 ozone standard required substantial reductions in NOx emissions as well as volatile organic compounds emissions. This rulemaking is only one step among many necessary for attaining and maintaining the 1997 ozone standard. In addition, Texas Government Code, §2007.003(b)(13), states that Chapter 2007 does not apply to an action that: 1) is taken in response to a real and substantial threat to public health and safety; 2) is designed to significantly advance the health and safety purpose; and 3) does not impose a greater burden than is necessary to achieve the health and safety purpose. Although the rules do not directly prevent a nuisance or prevent an immediate threat to life or property, they do prevent a real and substantial threat to public health and safety and significantly advance the health and safety purpose. This action is taken in response to areas ofthe state exceeding the federal NAAQS for ozone. which adversely affects public health, primarily through irritation ofthe lungs. The action significantly advances the health and safety purpose by improving the TxLED program that reduces ozone levels in the nonattainment areas and other areas of the state that contribute to high ozone levels in these areas. Consequently, these adopted rules meet the exemption in Texas Government Code, §2007.003(b)(13). This rulemaking action therefore meets the requirements of Texas Government Code, §2007.003(b)(4) and (13). For these reasons, the adopted rulemaking does not constitute a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management Program The commission determined the adopted rulemaking relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 etseq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 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 ofthe CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations ofthe Coastal Coordination Council and determined that the adopted amendments 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 adopted rulemaking will ensure that the amendments 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 rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e). The commission invited public comment regarding the consistency with the CMP during the public comment period, but received no comments relating to this subject. Public Comment The commission scheduled a public hearing forApril26, 2012, in Austin. However, since no one registered to provide comments, the public hearing was not formally opened. The public comment period closed on April 27, 2012. The commission received written comments from the Biodiesel Coalition of Texas (BCOT), Good Company Associates, Love's Travel Stops and Country Stores. Inc. and the Musket Corporation (Love's/Musket), the National Biodiesel Board (NBB). and the EPA. All five commenters were in support of the rule changes and four ofthe commenters suggested minor non-sub

### ADOPTEDRULES 

## September 7, 

## 2012 37 TexReg 7185stantive changes and/or requested additional clarification on the rule changes. Response to Comments Good Company Associates commented that the references to the TTC, §502.002 and §502.006 as cited in §114.6 appeared to be incorrect. The commission agrees and made changes to the definitions of motor vehicle in §114.6(14) and non-road equipment in §114.6(15) to revise the relevant TTC citations from TTC, §502.002 to TTC, §502.040 and from TTC, §502.006 to TTC, §502.140. These citation changes were needed in order to reflect the renumbering of the statute as directed by House Bill 2357, 82nd Texas Legislature, 2011. The EPA commented that the only provision to remove an additive from the approved list of alternative diesel fuel formulations is ifthe manufacturer changes the formulation and requested an explanation on how the TCEQ would determine that the composition of the additive has been changed. The TCEQ can periodically requestthe EPA provide copies ofthe most current EPA fuel additive registration letters for all ofthe additives used in the TCEQ-approved alternative diesel formations to determine if any changes have been made to their additive compositions. The approval notifications of all TCEQ-approved alternative diesel fuel formulations specify the EPA fuel additive registration number and additive name as registered with the EPA in accordance with 40 CFR Part 79 for the additive used in the emissions testing of the approved formulation. Any change to the chemical composition ofa registered fuel additive requires the additive manufacturer to notify the EPA with the changes. If the EPA determines the changes are significant, the altered fuel additive will be required to have a new registration with the EPA, which will result in a new registration number being issued for the altered additive. Consequently, since the original additive specification in the TCEQ-issued approval notification would no longer be valid, the TCEQ would then have justification to revoke the approval of the alternative diesel fuel formulation. The commission made no changes to the rules in response to this comment. Good Company Associates commented that§114.318(b) seems to imply thatthe Unified Model applies to "average fuel properties of all on-road diesel fuel" but later requires achieved savings of NOx for both on and off-road fuels. The AERP demonstration requirements specified in §114.318(b) apply to both the average fuel properties of on-road diesel fuel and the average fuel properties ofnon-road diesel fuel. The commission made no changes to the rules in response to this comment. BCOT, Love's/Musket, and NBB commented that they support the changes to the definition of additive in §114.6(1 ), which they understand will result in the TCEQ no longer regulating biodiesel as an additive subjectto the requirements ofthe TxLED program. The commission appreciates the support and has made additional changes to the definition of additive in §114.6(1)(8) to further clarify that only those substances that have been added to diesel fuel for the purpose of producing TxLED would be considered additives under the TxLED program. Biodiesel would not be considered an additive under the revised definition since biodiesel is generally only added to diesel fuel by diesel fuel producers to comply with requirements ofthe federal renewable fuels standards specified in 40 CFR Part 80, Subpart M.



## 37 TexReg 7186 September 7, 

## 2012 Texas Register BCOT and Love's/Musket requested that the TCEQ update the regulatory guidance document for the TxLED program as soon as possible to accurately reflect the TCEQ's position that biodiesel will no longer be regulated as an additive under the TxLED rules. Changes to regulatory guidance documents are beyond the scope of this rulemaking. However, the TCEQ does intend to revise its regulatory guidance document for the TxLED program in a timely manner to reflect all ofthe rule changes including the changes relating to alternative diesel fuel formulations, AERPs, and that biodiesel is no longer considered an additive under the TxLED program. The commission made no changes to the rules in response to these comments. 

### SUBCHAPTER A. DEFINITIONS 30 TAC §114.6 Statutory Authority The amendment is adopted under Texas Water Code (TWC), §5.1 03, concerning Rules, and TWC, §5.1 05, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The amendment is also adopted under Texas Health and Safety Code (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; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; 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's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emission diesel (LED) as described in the state implementation plan is not required prior to February 1, 2005, and authorizes the commission to consider alternative emission reduction plans to comply with LED requirements. The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202. §114.6. Low Emission FuelDefinitions. Unless specifically defined in Texas Health and Safety Code, Chapter 382, also known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by TCAA, §3.2, and §101.1 of this title (relating to Definitions), the words and terms specified in this section, when used in Subchapter H ofthis chapter (relating to Low Emission Fuels), have the meanings as defined in this section, unless the context clearly indicates otherwise. (1) Additive--Any substance that is intentionally added to gasoline or diesel fuel for the purpose ofproducing a gasoline or diesel fuel in compliance with the requirements ofSubchapter H ofthis chapter that is: (A) a registered additive with the United States Environmental Protection Agency (EPA) in accordance with 40 Code of Federal Regulations (CFR) Part 79 (relating to Registration ofFuels and Fuel Additives); or(B) exempted from the EPA registration requirements in accordance with 40 CFR Part 79. (2) Barrel--A unit ofmeasure equal to 42 United States galIons. (3) Bulkplant--An intermediate gasoline or diesel fuel distribution facility where gasoline or diesel fuel is stored and then transported for delivery to a bulk purchaser/consumer orretail fuel dispensing facility. (4) Bulk purchaser/consumer--A person who purchases or otherwise obtains gasoline or diesel fuel in bulk and then dispenses it into the fuel tanks ofmotor vehicles owned or operated by the person. (5) Common carrier--A person engaged in the transportation ofgoods or products of another person for compensation and is available to the public for hire. (6) Diesel fuel--Any middle distillate fuel used in compression-ignition internal combustion engines that is commonly or commercially known, sold, or represented as: (A) Grade No. 1-D or Grade No. 2-D diesel fuel, in accordance with the active version of American Society for Testing and Materials (ASTM) D975 (Standard Specification for Diesel Fuel Oils); or (B) Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), orMarine Gas Oil (MGO) diesel fuel in accordance with the active version ofthe International Organization for Standardization (ISO) 8217 Specifications ofMarine Fuels. (7) Final blend--A distinct quantity ofdiesel fuel that is introduced into commerce as low emission diesel fuel (LED), without further process. (8) Further process--To perform any alteration to diesel fuel, including distillation, treating with hydrogen, blending, or addition of an additive, for the purpose ofproducing a diesel fuel in compliance with the requirements ofSubchapter H, Division 2 ofthis chapter prior to the diesel fuel being introduced into commerce as LED. (9) Gasoline--Any fuel that is commonly or commercially known, sold, or represented as gasoline, in accordance with the active version ofAmerican Society for Testing and Materials (ASTM) D4814 (Standard Specification for Automotive Spark-Ignition Engine Fuel). (10) Import--The process by which gasoline or diesel fuel is transported into the State ofTexas by any means or method whatsoever, including transport via pipeline, railway, truck, motor vehicle, barge, boat, or railway tank car. (11) Import facility--The stationary gasoline or diesel fuel transfer point whereinthe importertakes delivery ofimported gasoline or diesel fuel and from which imported gasoline or diesel fuel is transferred into the cargo tank truck, pipeline, or other delivery vessel from which the fuel will be delivered to a bulk plant, bulk purchaser/consumer, or retail fuel dispensing facility. (12) Importer--Any person, except a person acting as a common carrier, who imports gasoline or diesel fuel. (13) Low emission diesel fuel (LED)--Any diesel fuel that conforms to the requirements specified in §§114.312, 114.313, or 114.318 ofthis title (relating to Low Emission Diesel Standards; Designated Alternative Limits; or Alternative Emission Reduction Plan, respectively). (14) Motorvehicle--Any self-propelled device powered by a gasoline fueled spark-ignition internal combustion engine or a diesel fueled compression-ignition internal combustion engine in or by which a person orproperty is or may be transported, and is required to be registeredunder Texas Transportation Code, §502.040, excluding vehicles registered under Texas Transportation Code, §502.140. (15) Non-road equipment--Any device powered by a gasoline fueled spark-ignition internal combustion engine or a diesel fueled compression-ignition internal combustion engine that is not required to be registered under Texas Transportation Code, §502.040. (16) Produce--Perform the process to convert liquid compounds into gasoline or diesel fuel or to further process diesel fuel to create a final blend ofLED. (17) Producer--Any person who owns, leases, operates, controls, or supervises a production facility that produces gasoline or diesel fuel. (18) Production facility--Any facility where gasoline or diesel fuel is produced or that manufactures liquid fuels by distilling petroleum. (19) Retail fuel dispensing outlet--Any establishment where gasoline and/or diesel fuel is sold or offered for sale for use in motor vehicles and/or non-road equipment, and the fuel is directly dispensed into the fuel tanks ofthe motor vehicles and/or non-road equipment using the fuel. (20) Supply--To provide or transfer gasoline or diesel fuel to a physically separate facility, vehicle, or transportation system. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority.
Filed with the Office ofthe Secretary ofState on August 24, 2012. TRD-201204502 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: September 13, 2012 Proposal publication date: March 23, 2012 For further information, please call: (512) 239-0779 

# • 

# • • SUBCHAPTER H. LOW EMISSION FUELS DIVISION 2. LOW EMISSION DIESEL 30 TAC §§114.312- 114.319 Statutory Authority The amendments and new section are adopted underTexas Water Code (TWC), §5.1 03, concerning Rules, and TWC, §5.1 05, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The amendments and new section are also adopted under Texas Health and Safety Code (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; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; 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's air; THSC, §382.017, concerning Rules, which authorizes the com

## ADOPTEDRULES September 7, 

## 2012 37 TexReg 7187mission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.202, concerning**Vehicl~** Emissions Inspection and Maintenance Program, which authonzes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emis-**~ion** diese!**(LED~** as described in the state implementation plan IS not requ1red pnorto February 1, 2005, and authorizes the commission to consider alternative emission reduction plans to comply with LED requirements. The adopted amendments and new section implement THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority.
Filed with the Office ofthe Secretary ofState on August24, 2012. TRD-201204504 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: September 13, 2012 Proposal publication date: March 23, 2012 For further information, please call: (512) 239-0779



### 30 TAC §114.313 Statutory Authority

# • • •

The repeal is adopted under Texas Water Code (TWC), §5.1 03, concerning Rules, and TWC, §5.1 05, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The repeal is also adopted under Texas Health and Safety Code (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; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; 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's air; THSC, §382.017, concerning Rules, which authonzes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emission diesel (LED) as described in the state implementation plan is not required prior to February 1, 2005, and authorizes the commission to consider alternative emission reduction plans to comply with LED requirements. The adopted repeal implements THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority.
Filed with the Office ofthe Secretary ofState on August 24, 2012.



## 37 TexReg 7188 September 7, 

## 2012 Texas Register TRD-201204503 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: September 13, 2012 Proposal publication date: March 23, 2012 For further information, please call: (512) 239-0779 

# • TITLE 37. PU TIONS 

# • • LIC SAFETY AND CORREC
## PART 1. TE S DEPARTMENT OF PUBLIC SAF TY CHAPTER 1. RGANIZATION AND ADMINISTRATI N SUBCHAPTER INSCRIPTION ON VEHICLES 37 TAC §1.151 The Texas Departme of Public Safety (the department) adopts**a~endm~nt~** to §1.1 1, concerning Exemption of Inscription

. Th1s sect1on IS adopte without changes to the proposed text as published in the July 3, 2012, issue of the Texas Register (37 TexReg 5226) and wil not be republished. Texas Transportation ode, Chapter 721 requires state agency vehicles to have insc ptions printed on each side of the vehicle identifying the age cy that has custody of the vehicle. Section 721.003 provides hat the governing bodies of certain state agencies,_ including th Department of Public Safety, may exempt vehicles from th inscription requirement by rule. Transportation Code, §721. 3(c) provides that a rule exempting vehicles must specify the p rpose served by not printing the required inscription and the pri ary use of the motor vehicle. Adoption of amendments to §1. 51 are necessary to clarify the existing grounds for exemption and also add an additional basis for exemption for situations here department vehicles may need to be operated in areas here identification as a department vehicle may create risks o the safety of department personnel as determined by the dire tor. No comments were r eived regarding the adoption of these amendments. These amendments ar adopted pursuant to Texas Government**~ode,** §411.004(3), whi h authorizes the Public Safety CommisSion to adopt rules co sidered necessary for carrying out the**de~artment's** work; an Texas Transportation Code, §721.003, wh1ch allows the gover ing body by rule to exempt the department from the require ents of §721.002. This agency hereby ce fies thatthe adoption has been reviewed by legal counsel and fo nd to be a valid exercise ofthe agency's legal authority.
Filed with the Office oft Secretary ofState on August21, 2012. TRD-201204424