### Bryan W. Shaw, Ph.D., Chairman 

### Buddy Garcia, Commissioner 

### Carlos Rubinstein, Commissioner 

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

# 100EC28**P~1** 

# 3:3"1
TEXAS CoMMISSION ON ENVIRONMENTAL QuALITY
Protecting Texas byReducingandPreventingPollution 

### December 22, 2010



## Dr. Alfredo."Al" Armendariz,Regional Administrator U.S. Environmental ProtectionAgency- Region 6 1445 RossAvenue Dallas, Texas 75202-2733
DearDr. Armendariz: · DocketNo. 2009-1613-S ProjectNo. 2009-035-SIP2009-1610-RUL 2009-0S0-114-EN

On November 18, 2010, the Texas Commission on Environmental Quality (Commission) adopted revisions 

### to the Texas Inspection and Maintenance (liM) 

### state implementation plan (SIP) concerning the requirements for low-volume vehicle emissions inspection stations and the vehicle emissions inspection analyzer specifications.
The Commission adopted amendments to 30 Texas Administrative Code TAC Cha ter 114, ntro o Arr Pollution from Motor Vehicles, Sections 114.2 114.51 and 114.64. These rule changes and SIP revtstons WI 

### implement House 

## Btll 715 from the 81st Texas Legislature, 2009, Regular Session, relating to requiring lowvolume vehicle emissions inspection stations to meet the criteria for a low-volume wajver established by the Texas Department of Public Safety. The adopted liM SIP revision wil1 also streamline the process for implementing minor non-programmatic modifications to the vehicle emissions inspection analyzer specifications and include various non-substantive changes to apply appropriate and consistent use ofacronyms, sectionreferences, structure, formatting, and certainterminology.
Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying orders. 

### I look forward to your expeditious approval ofthese SIP revisions. Sincerely,

BWS/jmm
Enclosures

cc: TheHonorable Rick Perry, Governor ofTexas 

## Mr. TobyBaker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 Austin, Texas 787ll-3087 512-239-1000 Internetaddress: www.tceq.state.tx.us

### Bryan W. 

### Shaw, Ph.D., Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner '• 

### ' 

### ':._;**~** .,,**-~** t''**-~** . 1:·_**'.,~--** '· 

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

# 7\l\G

# o·:c 28 PH 

# z, 5\
TEXAS COMMISSION ON ENVIRONMENTAL

# QVAtrW**s:~tt** I " I '
D,. 

# ·l·l

# i'):~ ""·

# t: 11**~1!1".** -1: 

## c .)

Protecting Texas by Reducing andPrevenNngPollution 

### December 22, 20I0

Dr. Alfredo "AI" Armendariz, Regional Administrator U.S. Environmental Protection Agency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733
Dear Dr. Armendariz: Docket No. 2009-1613-SIP, 2009-1610-RUL Project No. 2009-035-SIP-NR, 2009-050-114-EN

On November 18, 2010, the Texas Commission on Environmental Quality (Commission) adopted revisions to the Texas Inspection and Maintenance (liM) state implementation plan (SIP) concerning the requirements for low-volume vehicle emissions inspection stations and the vehicle emissions inspection analyzer specifications. The Commission adopted amendments to 30 Texas Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Sections 114.2, 114.51, and 114.64. These rule changes and SIP revisions will implement House Bill 715 from the 81st Texas Legislature, 2009, Regular Session, relating to requiring lowvolume vehicle emissions inspection stations to meet the criteria for a low-volume waiver established by the Texas Department of Public Safety. The adopted 11M SIP revision will also streamline the process for implementing minor non-programmatic modifications to the vehicle emissions inspection analyzer specifications and include various non-substantive changes to apply appropriate and consistent use ofacronyms, section references, structure, formatting, and certain terminology. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying orders. 1look forward to your expeditious approval ofthese SIP revisions. Sincerely,

BWS/jmm Enclosures

cc: The Honorable RickPerry, Governor ofTexas Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. MarkR. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 Austin, Texas 7871!-3087 512-239-1000 

### Internet address: www.tceq.state.tx.us

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

THE STATE OF TEXAS COUNTY OF TRAVIS DocketNo. 2009-1613-SIP, 2009-1610-RUL



### This is to certify that the attached are ttue and correct copies ofdocwnents for revisions to the Texas
State Implementation Plan, adopted on November 18, 2010, pursuant to 40 Code ofFederal Regulations 

## §
51.104. I am the records administrator for the

## Air Quality Division ofthe Texas Commission on Environmental Quality (Commission).

### Texas Commission onEnvironmental Quality Public Hearings July20, 21, 22, 2010 ConcerningRevisionsto 30TAC Chapter 114 Controlof

### AirPollutionfromMotorVehicles
HB 715: Vehicle EmissionsTestingLimitand

EnrissionsTestingAnalyzerSpecifications Rule ProjectNo. 2009-027-114-EN

## INTRODUCTION

TheTexasCommissiononEnvironmentalQuality(commission)heldpublichearingsinFortWorth

onJuly 20, 2010;

## inAustin onJuly 21, 2010; 

## andin HoustononJuly 22, 2010,

## toreceivetestimony regarding 30 

## TAC Chapter 114, 

## Control ofAir Pollution from Motor Vehicles and corresponding revisionstothe stateimplementationplan.

TherulemakingimplementsHouseBill (HB) 715

## andHB 1796

## fromthe 81St

## TexasLegislature, 2009, 

## RegularSession,relatingtorequiringlow-volumevehicleemissionsinspectionstationstomeetthe criteriaforalow-volumewaiverestablishedbytheTexasDepartmentofPublicSafetyandincreasing the maximum time allowed from five to 10 

## days that counties have to reimburse dealerships participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Assistance Program, respectively. The rulemaking also streamlines the process for implementingminornon-programmaticmodificationstothevehicleemissionsinspectionanalyzer specifications andrepealstheEarly Participation IncentiveProgram.

ThecommentperiodclosedonJuly26, 2010. 

## Alltestimonyandcommentshavebeenreviewedand seriouslyconsidered. Thishearingrecordcontainsa completerecordofthepublichearings andis dividedintothefollowing four sections:

o PublicNotification andProposal

o Written and Oral Testimony

o Evaluation ofTestimony

o StaffRecommendations/Order

Additionalcopies ofthishearingrecord aremaintainedintheTCEQcentraloffice at 12100

## Park35 

## Circle, Austin, Texas 78753. 

## Forfurtherinformation, please contactEdgar Gilmore at (512) 239-
2069.

# PUBLIC NOTIFICATION AND PROPOSAL

### PUBLIC NOTIFICATION

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

1. Publication of notice of public hearings in the following newspapers on the date listed: Austin American-Statesman: June 18, 2010 Fort Worth Star-Telegram: June 18,2010 Houston Chronicle: June 18, 2010

2. Publication ofthe proposed rules in the July 2, 2010, issue ofthe Texas Register(35 TexReg 5718).

3. Publication ofthe Notice of Public Hearings in the July 2, 2010, issue ofthe Texas Register(35 TexReg 5967).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker ofthe House Lieutenant Governor AlamoArea Council ofGovernments Capital Area Planning Council City ofAustin, Mayor's Office City of Dallas, Department of Environmental and Health Services City of Dallas, Department ofAviation City of Dallas, Mayor's Office City of El Paso, Environmental Services City of Fort Worth, Environmental Management Department City of Fort Worth, Mayor's Office

### City of Houston, Department of Health and Human Services City of Houston, Mayor's Office
Dallas County Judge East Texas Council ofGovernments
El Paso Metropolitan Planning Organization Federal Highway Administration , Galveston County Health District Harris County Judge Harris County Public Health and Environmental Services
North Central Texas Council ofGovernments Houston-Galveston Area Council South East Texas Regional Planning Commission Tarrant County Judge Texas Department ofTransportation 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 Austin American-Statesman, June 18, 2010



# l i PIJBUC HEARINo$ ON PROPOSED REVISIONS TO3DTAC CHAPTER 114ANC REVISIONS TO THE STATE IMPLEMENTATION PLAN The TtDall CommiSIIon on Envtronmensal Quality {TCEC or commiSSion) wRI conduct public hearingS 10 I'8C8iV8 IHtlmony regartling propelledamencrnantsto 30 Texu Admlnls&raiWI Cc:de (TAC) Chlptlr 11ll, Control ofAirPalb.rUon tram MatarVel'lldas. 114.2, 114.51, and 114.8A: the

### f8Piill of 114.&2; and ravilianiiO tho- lmplomon- pion**(SI~~** umlotr 1110 roquirornonll ofT-sHllllh and Sllely**~.** 382.017; Taxaa Government Code, ChapW2001, SUbchapter8; and**~** Code ofFederal Regulations 51.102 rJ the Unlrecl

. S&ales Environmental Prclletion Agancy (EPA) regulations concerning SIPs. The propoald rulemaklng would

lmp*nent HauH BID (HB)715 and HS 1706 from the 811t leGS LlgillaturW, :ZOOU, Regulai'S8UIOn, IW!Ungto NQUtrtnD tow-wwme vetUda arnialione lnapeclion 1tatiDJW to mHI.the crlleriafora low.wlume wai'Nalllbltlhad by 1ntTIPCBS Depertment ofPubic safetyand i\craallng lhe mmc1mum limeallowec:l from rtve to len Cllyllhat counties wfl haYB to ntlmburle dealerlnips participating ln lhe LOw lnccmeVehicle RaplirAatunce,RWoftt, and --•Vehicle RallnlmentAssls1ance**~ragnom,** mpocttvoly. The propaMd ruler.-.gWOUld aloa .....,.,e

, lha proceu forlmplemanUng ninornon-programmatic mDdl&cetion& 10 lhe V&hfcle emlulonllnspldlananalyDr' ] speclncationaancl**~I** tne Eady ParUclpalion lncentve Progr11m. (RIM ProJect Number200N2'M14-EN)The

propaoed SIP 

## ...-nwautdlmptementHB 715 from lhe81atT- Legilleture, 20119, Reg!Ar -·rotatod 10 ,· nsquitng low-YOiume vahlcle**amisslonll~** atatknto

### maar. llecriteria fora kM'-YDiurne waMr ISlabOih8d

I bylhoTUB& DeparlmMtofPubic Safety.The propaoed '""""""wwlclaJsa

.... mtlne lho """",..far implementing n*\orngn..prograrrmatic modifications

### to 1heYBhicla emtssions lnapeclion anaJyarspedlcalons and II Include

### vartaus 1101HUbstantlve cllangos to applyappraprtats and**cans~t** use of11C1<J011111, 

### secttan retarancas,

, SUUduro,

- and

- tsnntnalagy. (SIP Projact Number2000.U0-81P-NR)Theaammlutan will hald : publcheloingson lheoe prcpoeal& In For1 Wanh onJuly20,2010, et2:00 p.m. etlheTCEQ, Region 4 Ofllce.

Dalla&-!''"'Wal1h Public

- Roam.2309 Gravel -•· FortWal1h,TX 78118; in Aue1ln on July21, 2010, 111 ! 10;00 a.m.lllhaTCEQ, BulldilgE, Room201S, 12100 Park 35Clrcle,AUslln, TX78753; and kl HouslDn onJWy 1 J 22. 2010, at 3:00 p.m. at the Hol.eton- Gatvealon Ar8a Coundl, Conference Room A. 3555Tlmmona

### u.ne. HouRJn, · I.

# I

TX T7DZT. The hiBingsera atruclUreCI forlhB raceipl ofenIorwritten commenll bylnt8rested fJIIBDI1&. lnclvlduals i

# may- oral 

### sta....,nts whan caled upcr1 In ardarofregts1ratlan. Open dtsaJssiOnwill notbo l""mttted dul!ng 

# l l the heartngs;hoMMir. ccmrnission staff rnerntJm wRI be avatlabB to discusStheproposal 3D minutes prior&o lhe 1hearings. PerBmawhD havespaCial commuricallon or otheraccommodallon needswho.are pJaming IDattend the 

### I[ haallllgslhauldcontactOiartolleHom, a-ofl.J!glllSorvlalsat**(812)~** Req..-lhauldbomadoao

1 fartn acNanca aa poasltlt8. Wl1ltan c:ormentsmaybe eubmttlad tD Mlcl'lael Parrish, MC205.

### ontca rlLegal" 

### ! Sarvtcas, Taxas

### cornriiukmon envtrcnrnardll Quality. P.O. Box 13087,Austin,iaxas78711-SOB7, orlaxad ID

•

1 . (512)230-411011. E»Wonicaammonts moybo IIIJbnljUecf 111 hltp:llwww5.tcaq.stata.tx. ushulol/acammenll/. Fie

### stzs

ro1111ctlanB

### moyapplyto aammonts being eullmltlBd""' 1hooCamiiiBIIIBsystem. All comments 

### ,-nng tolhe ""-'dng&hautd

.........Rule PrDjeCl Number2DOIMI27-114-EN. All aamments rolallngto the**Sl~­** llhaUidl8leranco**~raject**

### -r21J00.1135- SIP-NR. The

### cammont poriad ctaeaaJuly26, 2010. Cqiesoflhe prapORd rulamlklng tlll"' btObtllned from U'ta comrntsalan'l Web lilaat http://WWW.tc8q.IUIIe.tx.LS' 118WrulollpropoooJidapl.htmt. COplol ollho

### PfOPDOOd**Sl~-** .,.

# at!_.._aen bl-lrom1ho OCEC'e webattslll**hUp:/twww.tcoq.atate.tx.~ta~hlml-Farfur1hlrtnlormltlan,­** ;I contact EdgarJ. -· Jr,Ai'Quolty Planning SOctian, (512)23a406ll.

### Bryan W. Shaw, Ph.D., 

### Chairman Buddy

### Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner 

### Mark R. 

### Vickery, P.G., 

### Executtve Director 

## TEXAS

1

## COfvfMJSSION ONENVIRONMENTAL QUALITY Protecting Texas by

### ReducingandPreventingPollution

PUBLICHEARINGS ONPROPOSED REVISIONS TO 30 TAC CHAPTER 

### 114 AND REVISIONS TO THE STATEIMPLEMENTATION PLAN

TheTexas Commission on Environmental Quality (TCEQ orcommission) will conductpublichearingsto 

### receive testimonyregardingproposed amendments 

### to 30 Texas Adminis1rative Code (T 

### AC) Chapter 114, Control of

## AirPollution 

## from MotorVehicles, §§114.2, 114.51, and 114.64; therepeal of§114.52; and revisions tothe state 

### implementationplan (SIP), underthe requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter2001, Subchapter B; and40 Code ofFedemlRegulations §51.102 ofthe United States Environmental Protection Agency (EPA)regulations concerning SIPs.

The proposed rulemakingwould implement House Bill 

### (HB) 715 andHB 1796 from the 8lstTexas Legislature,2009,Regular Session. relating to

### requiringlow-volume vehicle emissions inspection stations to meetthe criteria for a low-volume waiver established by 

### the Texas DepartmentofPublic Safety and increasingthe maximumtime allowed from five to

### ten days 

## that countieswill have to 

### reimburse dealerships participating in theLowIncomeVehicle RepairAssistance,Retrofit, and Accelerated VehicJe RetirementAssistance

## Program, respectively. Theproposedrulemaking would also streamline theprocess for implementingminornon-programmatic modificationstothe vehicle emissions inspection analyzer specifications and repealtheEaJ:ly Participation Incentive Program. (RuleProject Number2009-027-114-EN)

The proposed SIP revision would implement HB 715 

## from the 8lstTexas Legislature, 2009, Regular Session, related 

### torequiring low-volume vehicle emissions inspection stations to meetthe criteriafor a low-volumewaiver established by the Texas Department ofPublic Safety. The proposedrevision wo_uld also streamline the process for implementing minor non-programmaticmodifications

### tothevehicle emissions inspection analyzer specifications and include variousnon-substantive changes 

### to apply appropriate and consistentuse ofacronyms, section references, structure, formatting, and certain terminology. (SIPProjectNumber 2009-035-SIP-NR)

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • www.tceq.state.tx.us Howis our customer service? www.tceq.state.tx.us/goto/customersurvey prialod""**~ed-**

## The commission will hold public hearings on these proposals in FortWorth on July 20,2010, at 2:00p.m. atthe TCEQ, Region 4 Office, Dallas-FortWorth Public Meeting Room, 2309 Gravel Road, FortWorth, TX 76118; in Austin on July 21, 2010, at 10:00 a.m. atthe TCEQ, BuildingE, Room 20IS, 12100 Park 35 Circle, Austin, TX 78753; and in Houston on July 22,2010, at 3:00p.m. atthe Houston-Galveston Area Council, Conference Room A, 

## 3555 Timmons Lane, Houston, TX 77027. The hearings are structured forthereceipt oforal orwritten comments by interested persons. Individuals may present oral Statements when called upon in 

## order ofregistration. Open discussion will not be 

## permitted during the hearings; however, commission 

## staffmembers will be 

## availableto discuss the proposal30 minutes prior to

## the hearings.

Persons whohave special communication or other accommodation needs who are planning to 

## attend the hearings should contactCharlotte Hom, Office ofLegal Services at (512) 239-0779. Requests should be made as far in advance as possible.

Written comments may be submittedto Michael Parrish, 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 may be submitted a1 

### http:/!www5.tceq.state.tx.us/ruleslecommentsl. 

## File sizerestrictions may 

## apply to 

## comments being submitted via the eComments system. 

## All comments pertaining to

## therulemaking should reference Rule ProjectNumber2009-027-114-EN. All comments relating to the SIP revision should referenceProjectNumber 2009-035-SIP-NR. The comment period closes July 26, 2010. Copies ofthe 

## proposed rulemaking can be obtained from the commission's Web site at http:l!www.tceq.state.tx.uslnavlruleslpropose_adopt.html. 

## Copies ofthe proposed SIP revision and all appendices can be obtained from the TCEQ's Web site at http:!lwww.tceq.state.tx.uslimplementationlairlsiplsipplans.html. 

## For further information, please contact EdgarJ. Gilmore, Jr., Air Quality Planning Section, (512) 239-2069.The TCEQmaygranta contestedc hearing onthe petition ifawritten hearing request is filed within 30 days after the newspaper publication ofthe notice. To request contested case hearing, you must submitthe following: (1) your (or for a group or**associatio~** an official representative). mailing ss, daytime phone number, and fax number, ifany; (2) the name o e Petitionerand the TCEQ Internal Control Number; (3) the state ent 

### "J/we request a contested case hearing"; (4) a briefdescription o ow you would be affected by the petition in a way not common to e general public; and (5) the location ofyour property relative to e proposed District's boundaries. You may also submit your propo d adjustments to the petition. Requests for a contested case hearing ust be submitted in writing to the Officeof theChiefClerkatthe ad ssprovided in the informationsection below. The Executive Directo may approve the petition unless a writtenrequest for a contestedcase caringisfiled within 30days after the newspaper publication ofthis otice. Ifa hearing request is filed, the Executive Director will not ap rove the petition and will forward the petition and bearing request to e TCEQ Commissioners for their consideration at a scheduled Co ission meeting. Ifa contested case hearing is held, it will be a legal ceeding similar to a civil trial in state district court. Written bearing quests shouldbe submittedto the OfficeoftheChiefCleric, MC 105, CEQ,P.O. Box 13087,Austin, TX 78711-3087. For information con ming the hearing process, please contactthe Public InterestCounse MC 1 03, at the same address. For additional information, individual embers ofthe general public may contactthe Districts Review Team at (512) 239-4691. Si desea informacion en Espailol puede Hamar al (512) 239-0200. General information regarding TC Q can be found at our web site at www.tceq.state.tx..us. TRD-201003601 LaDonna Castafmela Chief Cler1< Texas Commission on Environmen IQuality Flied: June 23, 2010

# • • Notice ofPublic Hearings on Proposed Revisions to 30 TAC Chapter 114 and Revisions to the State Implementation Plan The Texas CommissiononEnvironmental Quality (TCEQorcommission) will conduct public hearings to receive testimony regarding**p~** posed amendments to 30 Texas Administrative Code (TAC) Chapter !14, Control ofAir Pollution from Motor Vehicles, §§!14.2, !14.51, and 114.64;therepeal of§1 14.52; andrevisions to the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States EnviroomentalProtection Agency (EPA) regulations concerning SIPs. Tbe proposed rulemaking would implement House Bill (HB) 715 and HB 17% from the 8lst Texas Legislature, 2009, Regular Session, relatingto requiring low-volumevehicle emissions inspection stationsto meetthe criteriafor a low-volume waiver establishedby the Texas Department ofPublic Safety and increasing the maximum time aJlowed from five to ten days that counties will have to reimburse deaJerships participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle RetirementAssistanceProgram, respectively. 1beproposedrulemaking would also streamline the processfor implementing minor non-programmatic modifications to the vehicle emis-- sions inspection analyzer specifications andrepeaJ the Early Participation Incentive Program. (Rule ProjectNumber2009-027-114-EN) The proposed SIP revision would implement HB 715 from the 8lst TexasLegislature, 2009, Regular Session, relatedto requiring low-vo1- ume vehicleemissionsinspection stationsto meetthe criteriafor alowvolume waiverestablished by the Texas Department ofPublic Safety. The proposed revision would also streamline the process for**imple~** menting minor non-programmatic modifications to the vehicle emissions inspection analyzer specifications and include various non-substantive changes to apply appropriate and consistentuse ofacronyms, section references, structure, formatting, and certainterminology. (SIP ProjectNumber2009-035-SIP-NR) The commission wil1 hold public hearings on these proposals in Fort Worth on July 20, 2010, at 2:00 p.m. at the TCEQ, Region 4 Office, Dallas-FortWorth PublicMeeting Room, 2309GravelRoad, Fort Worth, TX 76118; in Austin on July 21, 2010, at 10:00 a.m. at the TCEQ, Building E, Room 201S, 12!00 Park 35 Circle, Austin, TX 78753; and in Houston on July 22, 2010, at 3:00p.m. at the HoustonGaJveston Area Council, Conference Room A, 3555 Timmons Lane, Houston, TX 77027. The hearings are 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 not be pennitted during the hearings; however, commission staffmembers will beavailable to discuss the proposal30minutes prior to 

### the hearings. Persons who have special communication or other accommodation needs who are planningto attendthe bearings shouldcontactCharlotte Hom, Office ofLegal Services at (512) 239-0779. Requests shouldbe made as far in**adv~ce** as possible. Written comments may be submitted to Michael Parrish, MC 205, O:ffiee of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 787!1-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at 

### http:l!www5.tceq.state.tc.us!ruleslecomments!. File size restrictions may apply to comments being submitted via the eComments system. All comments pertaining to the rulemaking should reference Rule Project Number 2009-027-114-EN. All comments relating to the SIP revision should reference Project Number 2009-035-SJP-NR The comment period closes July 26, 20I0. Copies of the pmposed rulemak.ing can be obtained from the commission's Web site at 

### http://www.tceq.stol£.t:x.uslnav!ruleslpropose _adopt.html. Copies of the proposed SIP revision and all appendices can be obtained from the TCEQ's Web site at 

### http:/!www.tceq.state.tx.uslimplementationlairlsiplsipplons.htm/. For further information, please contact EdgarJ. Gilmore, Jr., Air Quality Planning Section, (512) 239-2069. TRD-201003438 Robert Martinez Diredor, Environmental Law Division Texas Commission on Environmental Quality Filed: June 18, 2010

# • • Notice ofPublic Hearing on Chapter 116 and Revisions to posed Revisions To 30 TAC e State Implementation Plan The Texas Commission on Envi ental Quality (commission) will conduct a public hearing to re ve testimony regarding proposed revisions to 30 Texas Admini 've Chapter (TAC) Chapter !16, Control of Air Pollution by Penn

### ts for New Construction or Modification, §§!16.13, !16.710, !16 II, !16.715

- !16.718, !16.720, !16.721, 116.730, 116.740, 116. 0, and !16.765; and to 

### the state implementation plan (SIP), under the requirements of Texas Health and Safety Code, §382.017; Tex Government Code, Chapter 2001, Subchapter B; and 40 Code ofF era! Regulations §51.102 ofthe United States Environmental P ction Agency (EPA) regulations concerning SIPs.



## INADDITION July 2, 2010 35 TexReg 5967ill). [fm] contains such other information or criteria thatthe department may specify include in the request forpropoS· als. (k)

- (I) (No change.) This agency hereby certifiestha the proposal hasbeen reviewed 

### by legal counsel and found to be ithintheagency's legal authority to adopt. Filed with the Officeofthe Seer ry of State on June 16, 2010. TRD·201003407 Usa Hernandez General Counsel Department of State Health Servl Earliest possible date of adoption: ugust 1 , 2010 For further information, please call: (512) 458·7111 x6972 

# • • TITLE 30. ENVIRONMENTAL QUALITY 

# PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTORVEHICLES The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §§114.2, 114.51, and 114.64; and the repeal of §114.52. Ifadopted, the amendments to §114.2 and §114.51 and therepeal of §114.52 would be submitted to the United States Environmental Protaction Agency (EPA) as a revision to the state implementation plan (SIP). Section 114.64 is not included in the SIP and the amendments to §114.64will not be submitted tothe EPA. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES A rulemaking adopted by the commission on October 6, 2000, revised an air pollution control strategy involving emissions inspection of vehicles to reduce nitrogen oxides (NO ) and volatile organic compounds (VOC) necessary for the cOunties induded in the Dallas-Fort Worth (DFW), Houston-Galveston-Brazoria (HGB), and El Paso (ELP} ozone nonattainment areas in order to assist in the ability to demonstrate attainment with the one-hour ozone National Ambient Air Quality Standard (NAAQS). The commission adopted vehicle emissions testing analyzer specifications (TAS) and inspection requirements for acceleration simulation mode (ASM) and on-board diagnostics (OBD) inspections. The revised vehicle emissions inspection program, also known as the Inspection and Maintenance (liM) program, began on May 1, 2002, in Collin, Dallas, Denton, and Tarrant Counties in the DFWarea and Harris County in the HGB area. On May 1, 2003, 

### the liM program expanded to include Ellis, Johnson, Kaufman, Parker, and Rockwall Counties for the DFW area and Brazoria, Fort Bend, Galveston, and Montgomery Counties in the HGB area. Unlike the two-speed idle {TSI) vehicle emissions inspection that had been in place, the ASM inspection has the ability to detect NOA emissions, while the OBD inspection has the ability to ensure vehicle emissions control systems are functioning as designed 

### by verification through the vehicle's computer system. Because**NO~** is a pre

## 35 TexReg 5718 July 2, 2010 Texas Register cursor 

### to ground-level ozone formation, reduced NO. and VOC emissions result in ground-level ozone reductions. In addition, the inclusion of OBD in the 1/M program ensured compliance with a federal mandate requiring all1996 and newer model-year vehicles to receive an OBD inspection. On October 24, 2001, the commission adopted rules that im· plemented portions of House Bill (HB} 2134, 77th Texas Legislature, 2001. The adopted rules defined the term "low-volume emissions inspection station" and required all vehicle emissions inspection stations in the DFWand HGB areastooffer both ASM and OBD inspections to the publicwith the exception of low-volume emissions inspection stations. The adopted rules also revised the TAS and established the Eany Participation Incentive Program (EPIP). The low-volume emissions inspection station designation was established becausethe cost ofASM vehicle emissions inspection analyzers, which have the capability 

### to inspect all vehicles required to undergo liM inspections, is much higherthan thecost of OBD-only vehicle inspection analyzers, which only have the capability 

### to inspect 1996 and newer model-year vehicles. To ensure that an adequate number ofvehicle emissions inspection stations were available to provide both ASM and OBD inspections atthe startof

### the revised liM program in 

### the DFWand HGB areas, stations that voluntarily opted to be designated as a low-volume emissions inspection station 

### by the Texas Department of Public Safety (DPS}, the agencythat implementsthe

### JIM program along with the TCEQ, were restricted to a maximum of 1,200 OBD inspections per calendar year. The EPIP was established as an additional method to ensure that an adequate number of vehicle emissions inspection stations were available to provide both ASM and OBD inspections at the start ofthe revised liM program in the DFW and HGB areas. The EPIP encouraged ear1y purchases of ASM analyzers by providing vehicle emissions inspection stationswith financial assuranee offered bythestate ifthe liM programwasterminated early. The EPIP was available to 

### the first 1,000 eligible vehicle emissions inspection stations that were certified by the DPS to offer ASM and OBD inspections to the public. Vehicle emissions inspection station ownersthatwere accepted

### into the EPIP and maintained their eligibility could have received a payment of up to $675 per month to cover the cost of the ASM analyzers if the liM program was terminated within five years ofthe program start date. Asthe EPIP expired in all liM program areas on May 1, 2008, vehicle emissions inspection stations owners are no longer partiCipating in the program. On October 26, 2005, the commission adopted revisions to §114.51, which required manufacturers of vehicle emissions inspection analyzers used in 

### the 1/M program to meet the revised requirements contained in 

### the TCEQ's "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program," dated May 1, 2005, or in theTCEQ's "Specifications for On-Board Diagnostics llAnalyzer for Use in the Texas Vehicle Emissions Testing Program," dated May 1, 2005. Since October 2005, theTAS have been modified fourtimes

### to improveoversight and enhance effectiveness ofthe liM program. The minor modifications did not affectthe vehicle emissions inspection procedure or the design and performance criteria forthe vehicle emissions inspection analyzer. However, the minor modifications did include updates to accommodate new technology vehicles, enhancements 

## to the method of collecting inspection data that is used to identify the occurrence of possible improper or fraudulent inspections, and updatesto internal reference tables used to determine the applicable vehicle emissions inspection criteria. No modification would be considered a minor non-programmatic modification if

# nresults in additional costs to vehicle inspection station owners. Each time the TAS were modified, staff incorporated the necessary software enhancements into a draft version of the TAS, and these enhancements were implemented on all analyzers by the analyzer manufacturers participating in the liM program. The modified TAS have not been incorporated by rule. Rules adopted by the commission on March 27, 2002, implemented the Low IncomeVehicle RepairAssistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), which was designed to assist low income individuals with repairs, retrofrts, or retirement 

### ofvehicles that failed emissions inspections as 

### required by HB 2134, 77th Texas Legislature, 2001. Under the LIRAP, monetary assistance is provided for emissions-related repairs directly related to bringing the vehicle into compliance or for replacement assistance for a vehicle that has failed the required emissions inspection. Due to the requirements of Senate Bill (SB) 12, BOth Texas Legislature, 2007, the commission adopted rules on December 5, 2007, that modWied the LIRAP, now commonly referred to as the Drive a Clean Machine program, by requiring funds be transferred to a participating dealer not laterthan five business days after the sale ofa replacement vehicle is completed. The primary reason forthis proposed rulemaking isto implement portions of HB 715 and HB 1796 from the 81st Texas Legislature, 2009, relating to requiring the vehicle emissions inspection limit for low-volume emissions inspection stations to be set at no fewer than 150 OBD inspections per month and increasing the maximum time that counties would have to reimburse**dea~** erships participating in the LIRAP from five to 10 business days, respectively. This proposed rulemaking would also define the TAS as**'~he** most recent version" resulting in a more streamlined process for minor non-programmatic modifications to the TAS and allow staffto implement minor non-programmatic modifications including updates to accommodate new technology vehicles, enhancementsto the method ofcollecting inspection data, and updatesto internal referencetables. However, modifications to the 1/M program design, performance criteria for the vehicle 

### emissions inspection analyzer, or the vehicle emissions inspection procedure would not be implemented unless commission approval is received through the rule and SIP revision process. In addition, the proposed rulemaking would remove the "Specificationsfor On-Board Diagnostics II Analyzerfor Use in the Texas Vehicle EmissionsTesting Program" and its corresponding referencesto remove redundant requirements and would also repeal the EPIP. The EPIP was established as an incentive program and is not a control strategy measure of the liM program. In addition, the EPIP expired on May 1, 2008. Therefore, removal of the EPIP would not change the stringency or effectiveness ofthe liM program. SECTION BY SECTION DISCUSSION In addition to tha proposed amendments associated with tha rulemaking for Chapter 114, various stylistic, non-substantive changes are included to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use ofacronyms, section references, rule structure, and certain terminology. These changes are nonsubstantive and generally are not specifically discussed in this preamble. Comments received regarding existing rule language that are not related to incorporating the proposed amendments and the proposed repeal to Chapter 114 or to the specific pre>- posed non-substantive changes discussed in this preamble will not be considered, and no changes will be made based on such comments. The proposed amendmentto §114.2 would modify the definttion of a low-volume emissions inspection station. The current definition states that "a low-volume emissions inspection station is a vehicle emissions inspection station that performs only the OBD test and does not exceed 1,200 OBD tests per calendar year." Tha modified definttion would state that "a low-volume inspection station is a vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiverfrom the Texas Department of Public Safety." HB 715 prevents the DPS from restricting a vehicle emissions inspection station tofewerthan 150 OBD inspections per month. This proposed amendment would ensurethat the definnion for a low-volume emissions inspection station contained in §114.2 would not conflict with the low-volumewaiver criteria for inspection stations listed in tha DPS rules (37 TAG §23.95) and meetthe requirements 

### of HB 715. The proposed amendment to §114.51 would remove the dates associated wtth the TAS and add language requiring analyzer manufacturers to meet the requirements contained in the "most recent version" of 

### the TAS resulting in a more 

### streamlined process for implementing minor non·programmatic modifications to the TAS. The most recent version of the TAs· would be the version available at the TCEO's central office or at http:llwww.tcaq.state.tx.uslassetslpublic/imp/ementationlairlms/IM/txvehanlspecs.pdf. In addition, the proposed amendment would remove the "Specifications for On-Board Diagnostics II Analyzer for Use in 

### the Texas Vehicle Emissions Testing Program" and 

### rts corresponding references as 

### the specifications for OBD-<>nly vehicle inspection analyzers are also contained in the "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program." The proposed repeal of§114.52 would remove all requirements relating tothe EPIP, which has expired, and delete the EPIP requirements that were incorporated into the liM SIP in the preamble of previous rulemakings adopted on October 24, 2001, October 8, 2003, and September 14, 2004. The proposed amendment to §114.64 would increase the maximum time that counties would have to reimburse dealerships participating in the LIRAP from five to 10 business daysas mandated by HB 1796. FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT Jeff Horvath, Analyst, Strategic Planning and Assessment Section, has determined that for the first five-year period the proposed rule revisions are in effect, no significant fiscal implications are anticipated for the TCEO or other units of state or local government as a**resu~** of administration or enfoncement of the proposed rule revisions. The proposed rulemaking would implement two bills: HB 715, which changes requirements for low-volume emissions inspection stations; and HB 1796, which changes a requirement ofthe LIRAP. In addition, staff is proposing a revision to the rule regarding the TAS and a rule repeal regarding the EPIP. Low-Volume Emissions Inspection Stations



## PROPOSEDRULES July 2, 2010 35 TexReg 5719Currently, low-volume emissions inspection stations may perform up to 

### 1,200 OBD inspections per year. HB 

### 715 increased this limft 

### to a maximum established by the DPS 

### of at least 

### 150 OBD inspections per month effective December 

### 31, 2010. The vehicle emissions inspection limit for stations that only offer emissions inspections on 

### 1996 and newer model-year vehicles has been a component ofthe 1/M program in the DFW and HGB areas since 

### 2002. The rule was adopted in 

### 2001 because the cost of ASM analyzers, which have the capability to inspect all vehicles required to undergo 1/M inspections, is much higher than the cost of OBD-only vehicle inspection analyzers, which only have the capabilfty to inspect 

### 1996 and newer model-year vehicles. The rule did not limit the number of inspections conducted using ASM analyzers in orderto provide an incentive for automotive shops to purchase the more expensive ASM analyzers so that more inspection stations could accommodate older cars. The rule has been in place tor eight years. 

### With the passage 

### of HB 

### 715, the limittorvehicle emissions inspections at low-volume emissions inspection stations has been increased. In order to comply with HB 

### 715, the proposed rule revision to 

### §114.2 is needed 

### to replace the vehicle emissions inspection limft in the current definition wfth language indicating that the station must meetthe cmeria tor obtaining a low-volume waiver from the DPS. This change would ensure thatthe definition ofa low-volume emissions inspection station would not conflict with the low-volumewaiver criteria tor inspection stations listed in the DPS rules. The proposed rule revisionswould be implemented by theTCEQ through updating the Texas Information Management System database, which is used to enforce this aspect of the 1/M program in the DFW and HGB areas. In order to implement the proposed rule revisions, the TCEQ and the DPS would need to make minor administrative and procedural changes. No significant fiscal implications are anticipated torthe TCEQ orthe DPS as a result ofthe proposed rule revisions. 

### LIRAP Section 

### 12 ofHB 

### 1796 revised a requirement of

### the LIRAP, which increased the maximum time that counties would have to reimburse dealerships participating in the LIRAP from five to 

### 10 business days. The LIRAP is managed by theTCEQ but administered and implemented in the local areas by county program administrators. TheTCEQ does not conduct any reimbursement activities

### to dealerships. Local govemmentsand their contracted local administrators are expected to experience additional processing and review time tor payments to dealerships. The proposed rulemaking extending the time period that counties would have to reimburse participating dealerships is not expected to have significantfiscal impacts ontheTCEQ oraffected local govemments. 

### TAS On October 

### 26, 2005, the commission adopted revisions to 

### §114.51, which required manufacturers of vehicle emissions inspection analyzers used in the 1/M program 

### to meet the requirements contained in the "Specifications tor Vehicle Exhaust Gas Analyzer Systems tor Use in the Texas Vehicle Emissions Testing Program," dated May 

### 1, 2005, or in the "Specifications for On-Board Diagnostics II Analyzer tor Use in the Texas Vehicle Emissions Testing Program," dated May 

### 1, 2005,**w~ich** are also refenred to as the TAS. Since October 

### 2005, the TAS has been modified tour times wfth minor non-programmatic changes



## 35 TexReg 5720 July 2, 2010 Texas Register to improve 

### the oversight and effectiveness 

### of the 1/M program. The modified TAS has not been incorporated into the rule. The proposed rule revision would define the TAS as "the most recent version'' resulting in a more streamlined process for implementing minor non-programmatic modificationstothe TAS.In addftion, 

### the rule revision would remove the "Specifications tor On-Board Diagnostics II Analyzer tor Use in the Texas Vehicle EmissionsTesting Program" and fts corresponding references to 

### remove redundant requirements. 

### EPIP On October

### 24, 2001, the commission adopted rules torthe EPIP in 

### §114.52. The EPIP was established to ensure that an adequate number of vehicle emissions inspection stations were availableto provide ASM and OBD inspections at the start of

### the liM program tor the DFWand HGB areas. Vehicle emissions inspection station owners that were accepted into the EPIP and maintainedtheir eligibility could receive a payment 

### of up

### to $675 per month to cover the cost 

### of the ASM analyzer ifthe 1/M program was terminated within five years of the start date. However, now that the EPIP program has expired in all liM program areas, the proposed rule revisions would repeal this provision. Because the proposed rule revisions would eliminate an expired program, the TCEQ would not experience any fiscal impactsdue to this proposed rule repeal. PUBLIC BENEFITS AND COSTS Mr. Horvath has also determined that tor each year of the first five years the proposed rule revisions are in effect, the public benefit anticipated from the changes seen in the proposed rule revisions would be compliance wfth state law and more efficient operation of the state's 1/M program. No significant fiscal implications are anticipated tor businesses or tor individuals as a**resu~** of the implementation or enforc&- ment of the proposed rule revisions. The proposed changes to the definition of a low-volume emissions inspection station in 

### §114.2 would not impact individuals but may fiscally impact vehicle emissions inspection stations. Low-volume emissions inspection stations may experience an increase in revenue duetothe increase in the amount ofinspections they are allowed to perform each month, while non low-volume emissions inspection stations, also known as full-service vehicle emissions inspection stations, may experience a corr&- sponding decrease in revenue. Predicting the magnftude ofthe increase or decrease expenenced 

### by eachtype ofstation is not possible· as the increase or decrease would be determined by the marketplace. 

### The proposed rule revisions relating to extending the time period that counties would have 

### to reimburse participating dealerships from five 

### to 10 business days is not expected to**resu~** in significant fiscal impacts. Participation by dealerships in the LIRAP is voluntary and based on agreements with local program administrators that detail specific program requirements including payment schedules. The proposed rule revisions would provide addftional processing and review time that may improvethe efficiency of payments to dealerships. Businesses and motorists would not experience any fiscal impacts duetothe proposed rule revisions relating to theTAS. The proposed changes would only affecttheway theTCEQ approves minor non-programmatic modifications totheTAS and eliminate redundant requirements.The proposed changes that would repeal the EPIP would eliminate a requirement for an expired program. Therefore, businesses and motorists would not experience any fiscal impacts as a result ofthe proposed rule repeal. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT In general, the proposed rule revisions are not expected to adversely affect small or micro-businesses as a**resu~** of the implementation oradministration ofthe proposed rule revisions. The proposed rule revisions would affect approximately 531 low-volume emissions inspection stations and approximately 1,011 full-service vehicle emissions inspection stations in the HGB area, and approximately 677 low-volume emissions inspection stations and approximately 1,134 full-service vehicle emissions inspection stations in the DFW area. Low-volume 

### emissions inspection stations may experience an increase in revenue due to the increase in the amount of inspections they are allowed to perfonm each month. Full-service vehicle emissions inspection stations may experience a comesponding decrease in revenue. Predicting the magnitude of the increase or decrease experienced by each type of station is not possible as the increase or decrease would be detenmined by the marl<etplace. SMALL BUSINESS REGULATORY FLEXIBILITYANALYSIS The commission has reviewed this proposed rulemaking and detenminedthata small business regulatory flexibilityanalysis is not required because the proposed rule revisions relating to low-volume emissions inspection stations and the LIRAP are necessary to comply with state law. The rest ofthe proposed rulemaking is procedural, and all ofthe proposed rule revisions are consistent with the public health, safety, environmental, and economicwelfare of the state. LOCAL EMPLOYMENT IMPACT STATEMENT The commission has reviewed this proposed rulemaking and

### detenmined that a local employment impact statement is not 

### required because the proposed rule revisions do not adversely affect a local economy in a materialway for the first five years that the proposed rule revisions are in effect. DRAFT REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewedthe proposed rulemaking in lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225 and detenmined that the proposed rule revisions do not meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental rule" is, "a rule the specific intent of which is to protect the environment or reduce risks to human heatth from environmental exposure andthat may adversely affect in a materialway the economy, a sector ofthe economy, productivity, competition, jobs, the environment orthe public health and safety ofthestate or a sector of the state." Furthenmore, while the proposed rulemaking does not constitute a majorenvironmental rule, even if it did, a regulatory impactanalysiswould not be required because the proposed rulemaking does not meet any ofthe four applicability criteria for requiring a regulatory impactanalysis for a major environmental rule. Texas Government Code, §2001 .0225 applies only to a major environmental rule, which: "(1) exceeds a standard set by federal law, unless the rule is specifically 

### required by state law; (2) exceeds an express requirement ofstate law, unless the rule is specifically required by federal law; (3) exceeds 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) adopts a rule solely underthe general powers ofthe agency instead of under a specific state law." The proposed rulemaking implements requirements ofthe Federal Clean Air Act (FCAA). Under42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or 

### reductions in orderto meet the standard, state SIPs must include "enforceable emission limitations and other control measures, 

### means or techniques (induding economic incentives such as fees, marl<etable penmits, and auctions ofemissions rights), as well as schedules andtimetables for compliance as may be necessary orappropriateto meetthe applicable requirements ofthis chapter." (meaning 42 USC, Chapter85, Air Pollution Prevention and Control, otherwise known as the FCAA). The provisions of the FCAA recognize that states are in the best position to detenmine what programs and controls are necessary or appropriate in order to meet the NAAOS. This flexibility allows states, affected industry, and the publicto collaborate on the best methodsfor attaining the NAAOS for the specific regions in the state. Even though the FCAA allows states to develop their 

### own**pr~** grams, this flexibility does not relieve a state from developing a program that meets the requirements of42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410 and must develop programs and control measures to assure that their SIPs providefor implementation, attainment, maintenance, and enforcement of the NAAQS within the state. Furthenmore, while states generally are afforded some flexibility in adopting and implementing a SIP, vehicle 1/M programs are required elements ofthe SIP pursuant to 42 USC, §7511 (a). The specific intent of the proposed rulemaking is to clarify, improve upon, and increase consistency within the 1/M program and the LIRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating certain expired provisions. To furtherthisspecificintent, this rulemaking incorporatesthefollowing proposed amendments to the 1/M program. The current definition ofa low-volume emissions inspection station in §114.2 states that "a low-volume emissions inspection station is a vehicle emissions inspection station that perfonms onlythe OBDtest and does not exceed 1,200 OBD tests per calendar year." The proposed amendment to §114.2 would modify the current definition to state that "a low-volume emissions inspection station is a vehicle emissions inspection station that meets all criteria for obtaining a low-volumewaiverfrom the Texas Department of Public Safety." HB 715 prevents the DPS from restricting a vehicle emissions inspection station to fewer than 150 OBD inspections per month. The proposed amendment would ensure that 

### the definition for a low-volume emissions inspection station contained in §114.2 would not conflict with the low-volume waiver criteria for inspection stations listed in the DPS rules (37 TAC §23.95) and meet the requirements of HB 715. The proposed amendment to §114.64 would increase the maximum time that counties would have to reimburse dealerships participating in the LIRAP from five to 10 business days as mandated by HB 1796. The proposed amendment to §114.51 would remove the dates associated with the TAS and add language requiring analyzer manufacturers to meet the requirements contained in the "most recent version" oftheTAS and removethe "Specifications for On-Board Diagnostics II Analyzer for Use in the Texas 

### Vehicle Emissions Testing Program" and its corresponding references. The proposed amendment would improve the efficiency



## PROPOSEDRULES July 2, 2010 35 TexReg 

## 5721ofthe process used by the commission for implementing minor non1)rogrammatic modifications to the TAS and remove redundant requirements. The proposed repeal of §114.52 would repeal all requirements relating to 

### the EPIP, which has expired. The proposed rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because: 1)the specific intent ofthe proposed rule revision is not to protecttheenvironment or reduce risks to human**hea~h** from environmental exposure, but rather to clarify, improve upon, and increase consistency wtthin the liM program and the LlRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating certain expired provisions; and 2) as discussed in the FISCAL NOTE, PUBLIC BENEFITSAND COSTS, SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS, and the LOCAL EMPLOYMENT IMPACT STATEMENT sections of this preamble, the proposed rulemaking would not adversely affect in a material way the economy, a sectorofthe economy, productivity, competition, orjobs, norwould the proposed rule revisions adversely affect in a material waytheenvironment, orthe public**hea~** and safety of

### the state or a sector of the state because the proposed rulemaking actually clarifies, improves upon, and increases consistency within the liM program and the LIRAP. Because the proposed rulemaking is not a major environmental rule, tt is not subject 

### to a regulatory impact analysis under Texas Government Code, §2001.0225. Whilethe proposed rulemaking does not constitute a majorenvironmental law, even ifttdid, tt would not be subjecttoa regulatory impact analysis under Texas Government Code, §2001.0225. The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by SB 633 during the 75th Texas Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program; orare adopted solely underthe general powers ofthe TCEQ.

### With the understanding thatthis 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 thatthe bill will have significantfiscal implications forthe agency due to 

### tts limited application." The commission also noted that the number of rules that would require assessment under the provisions ofthe bill was not large. This conclusion was based, in part, onthe criteria setforth in the billthat exempted rules from the full analysis unless 

### the rule was a major environmental rule that exceeds a federal law. The FCAAdoes notalways require specific programs, methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet

### the attainment deadlines. Because of the ongoing need to address nonattainment issues and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts revisions to 

### the SIP and rules. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP and rules was considered to be a major environmental rule that exceeds federal law, then every revision to the SIP and rules would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent wtth the conclusions reached 

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

### tts fiscal notes. Sincethe legislature is presumed to understand the fiscal impacts ofthe bills it passes and that presumption is



## 35 TexReg 5722 July 2, 2010 Texas Register based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP and rules have a broad impad, that impact is no greaterthan is necessary or appropriate to meetthe requirements of

### the FCAA. Forthese reasons, rules adopted for inclusion in the SIP fall undertheexception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistenUy applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially unamended. It is presumed that, "when an agency interpretation is in effect at the time the legislature amends the laws wtthout making substantial change in the statute, the legislature is deemed 

### to have accepted the agency's interpretation." Central Power 

### & Ught 

### 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., 796 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); 

### Cf. Humble Oil 

### & Refining 

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

### Life Ins. Co. 

### v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). The commission's interpretation of the regulatory impact analysis requirements is also supportad by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attemptto limttthe numberof rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections ofthe APA against the standard of "substantial compliance," Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. The commission has substantially complied wtth the requirements of Texas Government Code, §2001.0225. Even**~** the proposed rulemaking constRutes a major environmental rule under Texas Government Code, §2001.0225(g)(3), a regulatory impactanalysis is not required because this exemption is part ofthe commission's SIP for making progress toward the attainment and maintenance ofthe NAAQS. Therefore, the proposed rule revisions do notexceed a standard set by federal law or exceed an express requirement of state law since they are part of an overall regulatory scheme designed to meet, not exceed 

### the relevant standard set 

### by federal law

- the NAAQS. In addition, the adoption and maintenance ofthe liM program is directly required by federal law pursuant to 42 USC, §7511(a). The commission is charged wtth protecting air qualijy wtthin the state and to design and submtt a plan to achieve attainment and maintenance ofthe federally mandated NAAQS. The Third District Court of Appeals upheld this interpretation in Brazoria County v. Texas Comm'n on Envtt. Quality, 128 S.W. 3d 728 (Tex. App.

- Austin 2004, no writ). In addition, portions of this rulemaking are directiy required by HB 715 and HB 1796. Furthermore, no contract or delegation agreement covers the topic that is the subject ofthis rulemaking. Finally, this rulemaking was not developed solely underthe general powers ofthe TCEQ but is authorized by specific sections of Texas**Hea~** and Safety Code (THSC), Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code (TWC), which are ctted in theSTATUTORY AUTHORITY section of this preamble, including THSC, §§382.011, 382.012, and 382.017. This rulemaking is not subject to the regulatory analysis provisions 

### of Texas Government Code, §2001.0225(b), for the following reasons. The proposed rulemaking is not a major environmental law because: 1) the specific intent of the proposed rulemaking is not to protect the environment or reduce risks to human health from environmental exposure, but ratherto clarify, improve upon, and increase consistency**wit~in** the liM program and the LIRAP by implementing HB 715 and HB 1796, streamlining theprograms, and eliminating certainexpired provisions; and 2)the proposed rulemaking would notadversely affect in a materialwaythe economy, a sectoroftheeconomy, productivity, competition, or jobs, nor would it adversely affect in a material way the environment, or the public health and safety of the state or a sectorofthe state, because the proposed rulemaking actually clarifies, improves upon, and increases consistency within the JIM program and the LIRAP. Furthennore, even ifthe proposed rulemaking wasa majorenvironmental rule, itdoes not meetany 

### ofthefour applicability criteria listed in Texas GovernmentCode, §2001.0225 because: 1) the proposed rulemaking is part ofthe SIP, and as such is designed to meet, not exceed the relevant standard set by federal law; 2) parts 

### ofthe proposed rulemaking are directly required by state law; 3) no contract or delegation agreement covers the topic that is the subject of this rulemaking; and 4) the proposed rulemaking is authorized by specific sections ofTHSC, Chapter382 (also known as the Texas Clean Air Act), and the TWC, which are cited in the STATUTORY AUTHORITY section ofthis preamble. The commission invites public comment regarding the draft regulatory impactanalysis detennination duringthe publiccomment period. Written comments on the draft regulatory impact analysis detennination may be submitted to the contact person at the address listed under the SUBMJTIAL OF COMMENTS section of this preamble. TAKINGS IMPACT ASSESSMENT The commission evaluated the proposed rule revisions and perfonned an analysis ofwhether the proposed rule revisions constitute a taking under Texas Government Code, Chapter 2007. The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply. Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in part or temporarily or pennanently, in a manner that requires the governmental entityto compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Consmution; or (8) a governmental action that: (i) affects an owner's private real property that is the subject ofthe governmental action, in whole or in part ortemporarily or pennanenUy, in a mannerthat restricts or limits the owner's r1ght to the propertythatwould otherwise exist in the absence ofthegovernmental action; and (ii) is the producing cause ofa reduction ofat least 25% in the marl<et value ofthe affected private real property, detennined by comparing the marl<et value of

### the property as ifthegovernmental action 

### is not in effectand the mar!<etvalue ofthe property detennined as ifthegovernmental action is in ef

### fect" The specific purpose of the proposed rulemakirig is to clarify, improve upon, and increase consistency within the liM program and the LIRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating certain expired provisions. Therefore, the proposed rulemaking would substantially advance this stated purpose by: modifying the current definition of a low-volume emissions inspection station to state that "a low-volume emissions inspection station is a vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiver from the Texas Department of Public Safety"; ensuring that the definition for a low-volume emissions inspection station contained in §114.2 would not conflictwith the low-volume waiver criteria for inspection stations listed in the DPS rules (37 TAC §23.95) and meat the requirements 

### of HB 715; increasing the maximum time that counties would have to reimburse dealerships participating in the LIRAP from five to 10 business days as mandated by HB 1796; removing the dates associated with theTAS and adding language requiring analyzer manufacturers to meet the requirements contained in 

### the "most recent version" oftheTAS and removing the "Specifications for On-Board Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program" and 

### its corresponding references; streamliningthe process used by the commission for implementing minor non-programmatic modificationsto theTAS; removing redundant requirements; and deleting all requirements relating to the EPJP, which has expired. Promulgation and enforcement of the proposed rule revisions would be neithera statutory nora constitutional taking ofprivate real property. These proposed rule revisions are not burdensome, restrictive, or limiting 

### of rights to private real property 

### because the proposed rule revisions simply clarify, improve upon, and increase consistency within the existing liM program and the LIRAP. Furthennore, the proposed rule revisions would benefitthe public by improving uponthe JIM program and

### the LIRAP, makingthem moreaccessibletothe publicand subs.,qcenUy improving their effectiveness. The proposed rule rev1sions do not affect a landowner's rights in private real property because this rulemaking does not burden, restr1ct, or limitthe owner's right to property, nor does it reduce the value of any private real property by 25% or more beyond that which would otherwise exist in the absence ofthe regulations. Therefore, these proposed rule revisionswould notconstitute a taking underTexas Government Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission reviewed the proposed rulemaking and found that the proposal is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 

### et seq., and therefore must be consistentwith all applicable CMP goals and policies. The commission conducted a consisreocy detennination for the proposed rule revisions in accordance with Coastal Coordination Act Implementation Rules, 31 TAC**~505.22** and found the proposed rulemaking is consistent will·· tr1e applicable CMP goals and policies. The CMP goals applicable to the proposed rulemaking are to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. No new sources of air contaminants would be authorized and ozone levels would be reduced as a result of 

### the proposed rulemaking. The CMP policy applicable to this rulemaking action is the policy that commission rules complywith regulations in the Codeof Federal Regulations to protect and enhance air quality in the coastal area (31 TAC §501.32). This rulemaking proposal would not have a detrimental effecton SIP emissions reduction obligations relating to maintenance of

### the ozone NAAQS by continuing to



## PROPOSEDRULES July 2, 2010 35 TexReg 5723implement 

### the existing OBD, ASM, and TSI vehicle inspections as a part ofthe liM program. This rulemaking action complies witl1the Code of Federal Regulations. Therefore, in compliance**w~h** 31 TAC §505.22(e), this rulemaking action is consistent with CMP goals and policies. Promulgation and enforcement of these proposed rule revisions would not violate or exceed any standards identifoed in the applicable CMP goals and policies because the proposed rule revisions are consistent with these CMP goals and policies and because these propose rule revisions do not create or have a direct or significant adverse effect on any coastal natural resource areas. written comments on the consistency ofthis rulemaking may be submitted to the contact person at 

### the address listed under the SUBMITIAL OF COMMENTS section ofthis preamble. ANNOUNCEMENT OF HEARINGS The commission will hold public hearings on this proposal in Fort Worth on July 20, 2010, at 2:00 p.m. atthe TCEQ, Region 4 Office, DFW Public Meeting Room, 2309 Gravel Road, FortWorth, TX76118; in Austin on July21, 2010, at 10:00a.m. attheTCEQ, Building E. Room 201S, 12100 Park 35 Circle, Austin, TX 78753; and in Houston on July 22, 2010, at 3:00 p.m. at the Houston-Galveston Area Council, Conference Room A, 3555 Timmons Lane, Houston, TX77027. The hearings are structured for the receipt oforal 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 hearings; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearings. Persons who have special communication orother accommodation needs who are planning to attend the hearings should contact Charlotte Hom, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible. SUBMITIAL OF COMMENTS Written comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or taxed to (512) 239-4808. Electronic comments may be submitted at http://Www5.tceq.state.tx.us/ruleslecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-027-114-EN. The comment period closes July 26, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site at htfp://Www.tceq.state.tx.uslnav/ruleslpropose_adopt.html. For further information, please contact Edgar J. Gilmore, Jr .• Air Quality Planning Section, (512) 239-2069. 

## SUBCHAPTERA. 

## DEFINITIONS 30 TAC §114.2 STATUTORY AUTHORITY The amendment is proposed under Texas water Code (TWC). §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to propose rules necessary to carry out its powers and duties under the TWC; and TWC, §5.013, General Jurisdiction

. of Commission, which states the commission's authority over

various statutory programs. The amendment is also proposed underTexas Health and Safety Code (THSC}, §382.017, Rules, which authorizes the commission to propose rules consis

## 35 TexReg 5724 July 2, 2010 Texas Register tent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to propose rules that differentiate among particular conditions, particular sources, and particular areas of the state. 

### The amendment is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public heatth, general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes 

### the commission to control 

### the quality ofthe state's air, THSC, §382.012, 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, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to propose rules to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections of motor vehicles to be performed at inspection**facil~ies** consistent witl1 the requirements of Federal Clean Air 

### Act (FCAA}, 42 United States Code (USC), §§7401 etseq.; and THSC, Chapter 382, Subchapter H. Vehicle Emissions Programs in Certain Counties, which authorize the commission to propose an Inspection and Maintenance program for participating Early Action Compact counties. The amendment is proposed pursuanttoTexas Transportation Code, §548.3075, which was amended by House Bill 715 from the 81st Texas Legislature, 2009. The proposed amendment implements Texas Transportation Code, §548.3075. §114.2. Inspection andMaintenance 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 

### ofthe commission, the terms used by the commission have the**meBn~** 

### ings commonly ascribed to 

### them in 

### the field of

### air pollution control. In addition to the terms 

### that are defined 

### by the TCAA. 

### the following words Bnd tenns, whenused in 

### SubchapterCofthis chapter(relatingto Vehicle Inspection and Maintenance; Low Income Vehicle Repair 

### As· sistance, Retrofit, and Accelerated Vehicle Retirement Program; and Early Action CompactCounties), have the following meanings, unless the context clearly indicates othei"\.V:ise. (1) Acceleration simulation mode (ASM-2) test--An emis· sionstestusingadynamometer(asetofrollersonwhichatestvehicle's tires rest) that applies an increasing load or resistance to the drive 

### train ofa vehicle, thereby simulating actua1 

### tailpipe emissions ofavehicle as it 

### is moving and accelerating. The ASM·2 vehicle emissions test is comprised oftwo phases: (A) the 50115 mode-in which the vehicle is tested on 

### the dynamometer simulating the use of500/o ofthe vehicle available horsepowerto accelerate at a rate 

### of3.3 miles per hour (mph) per sec· ond at a coostant speed of 15 mph; aod (B) 

### the 25125 mode--in which the vehicle is tested on 

### the dynamometer simulating the use of25% ofthe vehicle available horsepower to 

### accelerate at a rate 3.3 mph per 

### second at 

### a constant speed of25 mph. 

### (2) Consumer price index-·The 

### conswner price index for any calendar year is the average ofthe consumer price index for all· urban conswnerspublished by

### the DepartmentofLabor, as ofthe 

### close ofthe 12-month period ending on August 31 ofthe caleodaryear. 

### (3) Control1er area network (CAN}--A vehicle manufacturer's communicationsprotocolthatconnectsto

### the variouselectronicmodules in a vehicle. CAN provides one protocol that collects information from the vehicle's electronic systems including the on-board diagnostics (OBD) emissionstesting system. The United States Environmental ProtectionAgencyrequiresthe CANprotocolto beinstalled in OBD-compliantvehiclesbeginningwith some model year 

### 2003 vehicles andphasinginto all OBD-compliantvehiclesby the 2008 model year. (4) Low:volume emissions inspection station-A vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiver from the Texas Department of Public Safety. fi'eFfeRBS ea l1eafEI diagaesties (Gimt tesliftg**~** Slltl dees tiel 

# .-**~**

# QIW-""' eoleBtlafyetlfoj (5) Motorist--A person or other entity responsible for the inspection, repair, and maintenance ofa motorvehicle, which may include, but is not limited to, owners and lessees. (6) 

### Oo-board diagnostic (OBD) system-The computer system installed in a vehicle by the manufacturer that monitors the performance ofthe vehicle emissionscontrol equipment, fuel metering system, and ignition system for the purpose ofdetecting malfunction or deterioration in performance that would be expected to cause the vehicle not to meet emissions standards. All references to OBD should be interpretedto meanthe second generationofthisequipment, sometimes referred to as OBD IT. (7) On-roadtest--Utilization ofremote sensingtechnology to identify vehicles operating within the inspection and maintenance program areas that have a high probability ofbeinghigh-emitters. (8) Out-of-cycle test--Required emissions test not associated with vehicle safety inspection testing cycle. (9) Primarily operated--Use ofamotorvehicle greaterthan 60calendardayspertestingcycle inanaffectedcounty. MotoristsshaH comply withemissionsrequirements for such counties. Itis presumed that a vehicle is primarily operated in the county in which it is registered. (10) Program area--County orcounties in which the Texas DepartmentofPublic Safety, in coordinationwith

### the commission, administers the vehicle emissions inspection 

### and maintenance program contained inthe Texas Inspection and Maintenance State Implementation Plan. These program areas include: (A) the Dallas-Fort Worth program area, consisting of the following counties: Collin, Dallas, Denton, [GelliB;] and Tarrant; (B) the El Paso program area, consisting ofEl Paso County; (C) the Houston-Galveston-Brazoria program area, consisting ofBrazoria,FortBend, Galveston. Harris, andMontgomery Counties; and (D) the extendedDallas-FortWorth program area, consisting ofEllis, Johnson, Kaufman, Parker, and Rockwall Counties. These counties became part ofthe program area as ofMay 1, 

### 2003. (11) Retests--Successive vehicleemissionsinspectionsfollowing the failing ofan initial test by a vehicle during a single testing cycle. (12) Testing cycle--Annual cycle commencing with the first safety inspection certificate expiration date for which a motor vehicle is subject to a vehicle emissions inspection. (13) Two-speed idle (TSI) inspection and maintenance test--A measurement of the tailpipe exhaust emissions of a vehicle whilethe vehicle idles,first at a lower speed and then again at a higher speed. (14) Uncommon part-Apartthat takes morethan 30 days for expecteddelivery and installation, \\'here a motoristcanprove thata reasonable attempt made to locate necessary emission control parts by retail orwholesaJe part suppliers will exceed the remaining time prior to expiration ofthe vehicle safety inspection certificate or the 

### 30-day period following an out-of-cycle inspection. This agency hereby certifiesthatthe proposal has been reviewed by legal counsel andfoundto bewithm the agency's legal authority to adopt

. Filed 

### with the Office ofthe Secretary of State on June 18, 2010. TRD-201003431 Robert Martinez Diredor, Environmental Law Division Texas Commission on Environmental Quality Ear1iest possible date of adoption: August 1. 2010 For further information, please call: (512) 239-2548 

# • • • SUBCHAPTER C. VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT COUNTIES DIVISION 

## 1. VEHICLE INSPECTION AND MAINTENANCE 30 TAC §114.51 STATUTORY AUTHORITY The amendment is proposed under Texas Water Code (TWC), §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provide 

### the commission with the general powers 

### to carry out its duties and authorize the commission to propose rules necessary to carry out 

### its powers and duties under the TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various staMory programs. The amendment is also proposed under Texas Health and Safely Code (THSC), §382.017, Rules, which authorizes 

### the commission to propose rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to propose rules that differentiate among particular condijions, particular sources, and particular areas of the state. The amendment is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent wijh the protection of public health, general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state's**ai~** THSC, §382.012, 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, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to propose rules to control and reduce emissions from engines used to propel land vehicles; THSC,



## PROPOSEDRULES July 2, 2010 35 TexReg 5725Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections of motor vehicles to 

### be perfonmed at inspection facilities consistent with the requirements of Federal Clean Air Act, 42 Unijed States Code, §§7401 et seq.; and THSC, Chapter .382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission to propose an Inspection and Mainlenance program for participating Early Action Compact counties. The amendment to §114.51 is proposed pursuant to THSC, §382.205. The proposed amendment implements THSC, Subchapter G, §§382.201

- 382.220, Vehicle Emissions. §114.51. EquipmentEvaluation Procedures for Vehicle Exhaust Gas Analyzers. (a) Any manufacturer or distributor ofvehicle testing equipment may apply tothe executive directorofthe commission or his ap**poin~e,** for approval ofan exhaust gas analyzer or analyzer system for use in the Texas Inspection and Maintenance (1/M) program administered by the Texas Department ofPublic Safety. Each manufacturer shall submit a formal certificate to the commission stating that any analyzer model sold or leased by the manufacturer or its authorized representative and any model currently in use inthe 11M program 

### wiB satisfy all design and perfonnance criteria setforth in the most recent version ofthe "Specifications for Vehicle Exhaust Gas Analyzer 

### Systems forUse in 

### the Texas Vehicle Emissions Testing Program.=..:[;!! datedMay**-I,~** Milt 

### ''S)'eeifieatiens 

### -fer. Oft 

### Be&I'EI D:iagBesties 

### H 

### ftwYsemthe:re....¥eltieleEJBissieas'fesliflg p..,gt'lllft;"<leleeMey-1,**~]** Copies ofthis doewnent [these deeHmeftts) are available atthe commission's Central Office, located at 12100 Park 3S Circle, Austin, Texas 78753 or at http:/lwww.tceq.state.tx.us!assets!oublidimplementationlair!msflMitxvehanlspecs.pdf 

### The manufacturer shall also provide sufficient documentation to demonstrate confonnance with these criteria including a complete description ofall hardware components, the results ofappropriate perfonnancetesting. and apoint-by-pointresponse to each specific requirement. (b) All equipmentmust 

### [ollall] be tested by an independenttest laboratory. The costoftbe certification must 

### [ollall] be absomed by the manufacturer. The conformance demonstration must 

### [-shall] include, but is not limited 

### to: (1) certification that equipment design and construction conform with the specifications referenced in subsection (a) ofthis section; (2) documentation of successful results from appropriate performance testing; (3) evidence of necessary changes to internal computer programming, display fonnat, and datarecording sequence; (4) a commitment to fulfill all maintenance, .repair, 

### training, and other service requirements described in the specifications referenced in subsection (a) ofthis section. Acopy ofthe minimum warranty agreement to be offered to the purchaser ofan approved vehicle exhaust gas analyzer must [-shell] be included in the demonstration of confonnance; and (5) documentation ofcommunication ability using protocol provided by the commission orthe eommission Texas Infonnation Management System (TIMS) contractor. (c) Ifa review of

### the demonstration ofconfonnance and all related support material indicates compliance with the criteria listed in subsections (a) and (b) ofthis section, the executive director orhis appointee may issue a notice ofapproval to the analyzer manufacturer



## 35 TexReg 5726 July 2, 2010 Texas Register thatendorsesthe use ofthe specified analyzeroranalyzer system in the Texas 1/M program. (d) The applicant shall comply with all special provisions and conditions specified by the executive director or his appointee in the notice ofapproval. (e) Any manufacturer or distributor that receives a notice of approval from the executive director or the executive director's ap• pointee for vehicle emissions test equipment for use in the Texas 11M program may be subject to appropriate enforcement action and penalties prescribed in the Texas Clean Air Act orthe rules and regulations promulgated thereunder if: (I) any infonnation included in the confonnance demonstration 

### as required in subsection (b) ofthis section is misrepresented resulting in the purchase or operation ofequipment in the Texas 

### 11M programthat does not meetthe specifications referenced in subsection (a) ofthis section; [eo] (2) the applicant fails to comply with any requirement or commitment specified inthe notice ofapproval issued by the executive director or implied by the representations submitted by the applicant in the confonnance demonstration required by subsection (b) ofthis section; [

.. ] (3) the manufacturer or distributor fails to provide on-site service response by a qualified repair technician within two business days ofa request from an inspection station, excluding Sundays, national holidays (New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving Day, and Christmas Day), and other days when a purchaser's business might be closed; (4) the manufacturer ordistributor fails to fulfill, on acontinuing basis, the requirements described in this section or in the specifications referenced in subsection (a) ofthis section; or (5) the manufacturer fails toprovide analyzer software updates within six months ofrequest and fails to install analyzerupdates within 90 days ofcommission written notice ofacceptance. This agency herebycertifiesthatthe proposal has been reviewed by legal counsel and foundto

### bewithinthe agency's legalauthor

### ijy to adopt. Filed with the Office 

### of the Secretary of 

### Stele on June 18, 2010. TRD-20t003432 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Ear1iest possibk! date of adoption: August 1, 2010 For further information, please call: (512) 239-2548 

# • • • 30 TAC §114.52 (EditorS note: The text of thefollowing sectionproposed for repeal willnot

### bepublished. 

### Th£section may

### be examinedin the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.) STATUTORY AUTHORITY The repeal is proposed underTexas Water Code (IWC), §5.1 02, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provide 

### the commission wijh the general powers to carry out its duties and authorize the commissionto propose rules necessary to carry out its powers and duties underthe TWC; and TWC, §5.013, General Jurisdiction ofCommission, which states the commission's authority over various statutory programs. The repeal is also proposed under Texas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to propose rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to propose rules that differentiate among particular conditions, particular sources, and particular areas of the state. The repeal is also proposed underTHSC, §382.002, Policy and Purpose, which establishesthe 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, General Powers and Duties, which authorizes 

### the commission to control the quality ofthe state's air, THSC, §382.012, 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, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to propose rules 

### to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections of motor vehicles to be performed at inspection facilijies consistent with the requirements of Federal Clean Air Act, 42 United States Code, §§7401 

## etseq.; and THSC, Chapter 382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission to propose an Inspection and Maintenance program for participating**Ea~y** Action Compact counties. The repeal of§114.52 is proposed pursuant

### to THSC, §382.216. The proposed repeal implements THSC, Subchapter G, §§382.201

- 382.220, Vehicle Emissions. §114.52. EarlyParticipationIncentive Program. This agency hereby certifiesthatthe proposal has been reviewed by legal counsel and found to be wrthin the agency's legal authority to adopt. Filed with the Office ofthe Secretary of State on June 18, 2010. TRD-201003433 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Qualtt:y Ear1iest possibte date of adoption: August 1, 2010 For further Information, please call: (512) 239-2548 

# • • • DIVISION 2. LOWINCOMEVEHICLEREPAIR ASSISTANCE,RETROFIT, ANDACCELERATED VEHICLE RETIREMENT PROGRAM 30 TAC §ll4.64 STATUTORY AUTHORITY The amendment is proposed under Texas water Code {TWC), §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5. 105, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to propose rules necessary to carry out 

### rts powers and duties under 

### the TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various statutory programs. The amendment is also proposed under Texas Heaith and Safety Code (THSC), §382.017, Rules, which authorizes the commission to propose rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to propose rules that differentiate among particular condijions, particular sources, and particular areas of the state. The amendment is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purposeto safeguard the state's air resources, consistent withthe protection ofpublic health, generalwelfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizesthe commission to control 

### the quality of

### thestate's air; THSC, §382.012, State Air Control Plan, which authorizes the commission 

### to prepare and develop a general, comprehensive plan for the control ofthe state's air, THSC §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission 

### the authority to propose rules to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections ofmotorvehicles to be performed at inspection facilities consistent with 

### the requirements of Federal Clean Air Act, 42 United States Code, §§7401 

## et seq.; and THSC, Chaptar 382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission to propose an Inspection and Maintenance program for participating**Ea~y** Action Compact counties. The amendment is proposed pursuant to THSC, §382.210 which was amended by House Bill1796 from the 81st Texas Legislature, 2009. The proposed amendment implements THSC, §382.210. 

### §114.64. URAP 

### Requirements. (a) Implementation. Upon receiving a written request to 

### implementa

### LowIncome Vehicle RepairAssistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) by acounty commissioners court. the executive director 

### shallauthorize 

### the implementation of aLIRAP 

### in the requesting county. The executive director and county shaH enter into agrant 

### contractfor the 

### implementation ofthe LIRAP. (I) 

### The grant contract must provide conditions, requirements, and projected funding allowances forthe implementation ofthe 

### LIRAP. (2) A participating county may contract 

### with an entity ap

### proved by the executive director for services necessary to implement the LIRAP. Aparticipating county or its designatedentity shall demonstrate to 

### the executive director that, 

### at a minimum, the county or its designated entity 

### bas provided for appropriate measures for determining applicant eligibility and repair effectiveness and ensuring against fraud. 

### (3) The participating county shallremainthe contractedentity even ifthe county contracts with another county or another entity approved by the executive director to administer the LIRAP. (b) Repair and retrofit assistance. A LIRAP must provide for 

### monetary or other compensatory assistance to 

### eligible vehicle owners for repairsdirectly relatedto bringingcertainvehiclesthathave failed a requiredemissionstestintocompliance withemissionsrequirementsor for installing retrofit equipment on vehiclesthat 

### have failed arequired emissions test, ifpractically and economically feasible, in 

### lieu ofor in 

### combination with repairs performed to bring avehicle into compliance with emissions requirements. Vehicles under the LIRAP must be 

### repaired or retrofitted at a recognized emissions repair facility. To de

## PROPOSEDRULES July 2, 2010 35 TexReg 5727termlne eligibility, the participatingcounty oritsdesignatedentity shall make applications available for LIRAP participants. The application, at a minimum, mustrequire the vehicle ownerto demonstrate that: (1) the vehicle hasfailed avehicle emissionstest within 30 days ofapplication submittal; (2) the vehicle can be driven under its own power to the emissions inspection stationor vehicle retirement facility; (3) the vehicle is currently registered in and hasbeenregistered in the program county for the 12 months immediately preceding the application for assistance; (4) the vehicle has passed the safety portion ofthe Texas DepartmentofPublic Safety (DPS)motorvehicle safety andemissions inspection as recorded in the Vehicle InspectionReport (VIR), orprovide assurance that actions will be takento bringthe vehicle into compliance with safety requirements; (5) the vehicle owner's net family income is at or below 300% [300JIOI""'Bl] ofthe federal poverty level; and (6) any other requirements of

### the participating county or the executive director are met. (c) Accelerated vehicle retirement. A LIRAP must provide monetary orothercompensatory assistance to eligible vehicle owners to be used toward the purchase ofa replacement vehicle. (1) To detennine eligibility, the participating county or its designated entity shall make applications available for LIRAP participants. The application, at a minimum, must require the vehicle owner to demonstrate that: (A) the vehicle meets the requirements under subsection (b)(l)- (3) and (5) ofthis section; (B) the vehicle has passed a DPS motor vehicle safety or safety and emissions inspection within 15 months·prior to application submittal; and (C) any other requirements ofthe participating county orthe executive director are met. (2) Eligible vehicle ownen; of pre-1996 model year vehicles that pass the required United States EnvironmentaJ Protection Agency (EPA) Start-Up Aceeleration Simulation Mode (ASM) standards emissions test, but would have failed the EPA Fina1 ASM standards emissions test, or some other criteria determined by the commission, may be eligible for accelerated vehicle retirement and replacement compensation under this section. (3) Notwithstanding the vehicle requirement provided under subsection (b)(l) ofthis section, an eligiblevehicle ownerofavehicle that is gasolinepowered and is atleast I 0years old as detennined fium the current calendaryear(i.e., 20I0 [i!OO+] minus I0 yearsequals 2000 

### [-199+]) and meets the requirements under subsection (b)(2), (3), and (5) ofthis section, may be eligible for accelerated vehicle retirement and compensation. (4) Replacement vehicles must: (A) be in·a class or category ofvehicles that has been certifiedtomeet federal Tier2, Bin 

### 5orcleanerBincertificationunder 40 Codeoffederal Regulations §86.1811-04, as published in the February 10, 2000, Fe.kralRegister (65 FR**~]6698);** (B) have a gross vehicle weight rating of less than I0,000 pounds; (C) be avehicleJ.the total costofwhich does not exceed $25,000; and



## 35 TexR.eg 5728 July 2, 2010 Texas Register (D) have passed a DPS motor vehicle safety inspection or safety and emissions inspection within the 15-month 

### period before the application is submitted. (d) Compensation. The participating county shall determine eligibility and approve or deny the application promptly. 

### Ifthe**re~** quirements ofsubsection (b) or (c) ofthis section are metandbased on available funding, the county shaH authorize monetary or other**com~** pensations to the eligible vehicle owner. (1) Compensations must be: (A) no morethan $600 and no less than $30 per vehicle to be used for emission-related repairs orretrofits perfonned at recognized emissions repair facilities, including diagnostics tests performed on the vehicle; or (B) based on vehicle type and model yearofa replacementvehiclefor the acceleratedretirement ofa vehicle meeting therequirements under this subsection. Only one retirement compensation can be used toward one replacement vehicle annuaUy per applicant The maximumamounttoward areplacement vehicle, mustnot exceed: (i) $3,000for areplacement carofthe current model year or previous three model years, except as provided by clause (iii) ofthis subparagraph; (ii) S3,000 for a replacement truck ofthe current model year or the previous two model years, except as provided by clause (iii) ofthis subparilgraph; (iii) $3,500 for a replacement hybrid vehicle ofthe current model year or the previous model year. (2) Vehicle owners shall be responsible for paying the first $30 ofemission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle. (3) For accelerated vehicle retirement, provided that the compensationlevels in paragraph (l)(B)ofthis subsection are met and minimum eligibility requirements under subsection (c) ofthis section are met, a participatingcounty may seta specificlevel ofcompensation or implement a level ofcompensation schedule that allows flexibility. The following criteria may be used for detennining the amount offinancial assistance: (A) model year ofthe vehicle; (B) miles registered on the vehicle's odometer; (C) fair market value ofthe vehicle; (D) estimated cost of emission-related repairs necessary to bring the vehicle into compliancewithemission standards; (E) amount of money the vehicle owner has already spent to bring the vehicle into compliance, excluding the cost ofthe vehicle emissions inspection; and (F) vehicle owner's income. (e) Reimbursement for repairs and retrofits. A participating county shall reimburse the appropriate recognized emissions repair facility for approved repairs and retrofits within 30 calendar days ofreceiving an invoice thatmeetsthe requirements ofthe county or designated entity. Repaired or retrofitted vehicles must pass a DPS safety and emissions inspection before the recognized emissions repair facility is reimbursed. In the event that the vehicle does not pass the emissions retest after diagnosed repairs are perfonned. the participat· ing countyhasthe discretion,ona case-by-casebasis, tomakepayment for diagnosed emissions repair work performed.(f) Reimbursements for replacements. A participating county shall ensure that funds are transferred to a participating automobile dealership no laterthan 10 [H-Ye] business days afterthe county receives proofofthe sale, proofoftransfer to adismant1er, and any administrative documents that meet the requirements ofthe county or designated entity. A list ofall administrative documents must be included in the agreements that are entered into by the county or designated entity and the participating automobile dealerships. (I) A participating county shall provide an electronic means for distributing replacement funds to aparticipating automobile dealership once all program criteria have been met. The replacement funds may be used as a down payment toward the purchase of a replacement vehicle. Participating automobile dealers shaH be located 

### in the State ofTexas. Participation in the LIRAP by an automobile dealer is voluntary. (2) Participating counties shall develop a document for confinning aperson's eligibility for purchasing areplacement vehic1e and for tracking such purchase. (A) 

### The document must include at aminimum, the full name ofapplicant, the vehicle identificationnumberoftheretired vehicle, expiration date ofthe document, the program administrator's contactinfonnation, andthe amountofmoneyavailable totheparticipating vehicle owner. (B) The document must be presented to aparticipating dealer by the person seeking to purchase areplacement vehicle before entering into negotiations for areplacement vehicle. (C) A participating dealer who relies on 

### the document issued by the participating county has no duty to confinn the eligibility ofthe person purchasing areplacement vehic1e in the manner provided by this section. This agency herebycertiftesthatthe proposal has been reviewed by legal counsel andfound to bewithin the agency's legal authority to adopt. Filed**w~h** the Office ofthe Secretary ofState on June 18, 2010. TRD-201 003434 Robert Martinez Diredor, Environmental Law Division Texas Commjssion on Environmental Quality Eartiest possible date ofadoption: August 1, 2010 For further information, please call: (512) 239-2548 

# • • CHAPTER 116. CON OL OF AIR POLLUTION BY PERM TS FOR NEW CONSTRUCTION OR M DIFICATION The Texas Commission on E ·ronmental**Qual~** (TCEQ or commission} proposes amend ents to §§116.13, 116.710, 116.711, 116.715

- 116.718, 116.720, 116.721, 116.730, 116.740, and 116.750; and new 116.765. The amended sections would be submitted to the**Un~d** States Environmental Protecti Agency (EPA} as revisions 

### to the State Implementation an (SIP) with the exception 

### of §§116.711(a}(2)(C)(iii}, 11 .715(f}(2}(A), 116.730, and 116.740(b}. BACKGROUND AND SUMMA OF THE FACTUAL BASIS FOR THE PROPOSED RULES On September23, 2009, the EP published notice in the 

### Federal Register (74 

### FR 48480} (herea r "Notice''**of~** intent to disapprove the TCEQ flexible perm program rules that were submitted to the EPA as a proposed IP revision in 1994. Although the Federal Clean Air Act (FC } requires that proposed revisions 

### to the SIP be reviewed wi hin 18 months after submittel (See 42 United States Code (U. C.} §7410(k}(1}(B} and (k}(2}), EPA took 15 years 

### to take any rmal action and did so only in response 

### to litigation brought by holders of flexible permits 

### (see BCCA Appeal Group, etal 

### United Stetes 

### EPA etal, No. 3-08CV1491-G (N.D. Texas}}. I the Notice, the EPA cited the following assertions as the basi for disapproval of the flexible permit program as a minor New ource Review (NSR} revision: 1} 

### The program is not**clea~y** li ed 

### to use in minor NSR and does not**clea~y** prevent circum ntion of major NSR requirements; 2} The program does not uire tnat an**applicabil~y** 

### determination for major NSR be rna first 

### tor construction or modification that could potentially be ubject to major NSR; 3} The program fails to meet the statuto and regulatory requirements for a SIP revision and is not co istent**w~** guidance on SIP revisions; 4} The program lacks r plicable, specific, established implementation procedures fore blishing the emission cap in a minor NSR flexible**perm~;** 5} T e program is not an enforceable minor NSR permitting prog ; 6} The program allows the issuance offlexible permitsthatd not incorporateemission limitations and other requirements of e Texas SIP; and 7} The program lacks the necessary more s cialized monitoring, recordkeeping, and reporting (MRR} req rements required forthis type of minor NSR program, to ensur accountability and provide a means todetermine compliance. e EPAalso identified anumber ofrelated**concerns~** the 

### 1i as flexible permit program in correspondence 

### to the commissio dated March 12, 2008. The Texas flexible permit program les (Chapter 116, Subchapter G, Flexible**Perm~}** became e ctive on December 8, 1994. 

### The flexible permit program was eveloped in response to direction from the commission at t e January 21, 1994, policy agenda meeting. The flexible pe tt rules were developed 

### after considering the positional pap presented by industry, environmental groups, and local prog ms underthe supervision 

### of Task Force 21. The rules created new 

### type of permtt called a flexible**perm~.** which functions as n optional aHemative to the traditional preconstructlon**perm~** that are authorized in Subchapter B, New Source Review P**~-** Flexible**perm~** were designed to exchange**flexibil~** for mission reductions**w~h** the final goal being a well-controlled**il~.** Atthe time the flexible permtt program was developed, th commission lacked the authorityto require an air**qual~** pe for grandfathered facilities. The flexible permtt program was i tended 

### to provide grandfathered facilities with a voluntary a thorization mechanism that would reduce emissions. Only one exible permtt can be issued for a particular plant site or active ccount. However, multiple emission caps, multiple individual e ission**lim~.** or any combination thereofcan be included in a xible permit. The applicant for a flexible**perm~** can combine e isting facilities and new fa**cil~ies** into the flexible**perm~.** Th flexible permit would then become the controlling authorizatio for all faciltties included in the**perm~.** succeeding any existing inor NSR**perm~** that may have been applicable to all or part f the facilities. The flexible**perm~** is not a substitute for or in li u of major NSR permitting**~federal** NSR review is triggered. he flexible permitting program is intended to eliminate then for owners or operators of participating faciltties to submtt an a endment application each time certain operational or physica changes are made at the permitted facility. The environments benefits ofthe flexible per

## PROPOSEDRULES July 2, 2010 35 TexReg 5729

# WRITTEN AND ORAL TESTIMONY

## Reference Number W-1 

## INDEX OFWRITTEN TESTIMONY

Submitted

## by Guy Donaldson, United StatesEnvironmental ProtectionAgency

## UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGIONS



## Mr. MichaelParrish MC 205, Office ofLegal Services 1445 ROSS AVENUE, SUITE 1200 

### DALLAS, TX 75202-2733



## JUN 2 3 2010

Texas 

## Commission onEnvironmental Quality 

## P. 0. Box 

## 13087 Austin, 

## Texas 78711-3087

Dear

## Mr. Parrish: 

# W-1

Thank

## you forthe opportunityto comment on proposedrevisions to 

## 30Texas Administrative Code Chapter 114, Control of

## AirPollutionfromMotorVehicles, andthe 

## state implementationplan.
We supportthe proposedrevisions to§§ 114.2, 114.51, 114.52, and 114.64. None ofthese revisions impactthe program design, programperformance criteria, oremission inspectionprocedures. These revisions will update the

## rule to

## match current program conditions as well as implement legislative changes. Changing specific document dates to referencethe most recent version improves SIP efficiency for both agencies. We continue to supportthe

## LowIncome Repair 

## AssistanceProgram even as reimbursementrules are revised.
If

## we canbe ofany assistance to

## you in 

## future rule developmentregarding mobile sourceprograms, please feel freeto contactme or SandRennie ofmy staff

## at 

## (214) 665- 7367. Sincerelyyours,

GuyDonaldson, Chief 

## AirPlanning Section

Internet Address (URL)- h!tp;/(www.p.gov/earth1r6f RecycJed/Recyclable- Prlnted wi1h Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)

## INDEX OF ORAL TESTIMONY

NO ORAL TESTIMONYWAS RECEIVED PERTAININGTOTHIS RULEMAKING.

# - 1 - 

# Texas Commission on Environmental Quality Public Hearing Registration
Date: July20, 2010 Time: 2:00 PM
Rule Project Nos.: 2009-027-114-EN and 2009-035-SIP-NR Short Title: HB 715: Vehicle Emissions Testing Limit and Emissions Testing Analyzer Specifications (TAS) Rule Revision; and Inspection and Maintenance (1/M) SIP Revision Location: TCEQ, Region 4 Office, Dallas-Fort Worth Public Meeting Room, 2309 Gravel Road, Fort Worth, Texas Concerning: Proposed revisions to 30 TAC Chapter 114 and to the SIP

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony? (Pieaee Print) (Circle One)

# ~>,_, 

# tJ /'Ofw'"VI 

# · Ne:rcr? G · Yea@

Vee No

Yes No

Yes No

Vas No

Yes No

Yes No

Yes No

## TEXAS COMMISSION

## ON ENVIRONMENTAL QUALITY

HEARINGOFFICERREPORT

I am 

## the hearing officer assigned to conduct the public hearing regarding 

## Rule Project No. 2009-027-114-EN and Project No. 2009-035-SIP-NR 

## concerniDg HB715: Vehicle Emissions Testing Limit and Emissions Testing Analyzer 

## Specifications Rule Revision; andInspection andMaintenance 

## SIP Revision.
A public hearing was scheduled for July 20, 2010, at 2:00p.m. 

## in Fort Worthat the TCEQ, Region 4 Office, 

## Dallas-Fort Worth Public Meeting 

## Room, located at 2309 Gravel Road
At**2:0~** 

## p.m. the room was 

## open, TCEQ 

## staffand a 

## court reporter were present and ready to open the hearing 

## for public comment. After 

## waiting for 

## 20 minutes, 

## no one had 

## arrived to 

## make comments on the record. Therefore, the public hearing was not fonnally opened for comment

## and no transcript was

## prepared.

Date signed

# Texas Commission on Environme Public Hearing Registration

Rule Project Nos.: 2009-027-114-EN and 2009-035-SIP-NR Date: July21, 2010 Time: 10:00AM 

# Quality

Short Title: HB 715: Vehicle Emissions Testing Limit and EmissionsTesting Analyzer Specifications (TAS) Rule Revision; and Inspection and Maintenance {1/M) SIP Revision Location: TCEQ, Building E, Room 201S, 12100 Park 35 Circle, Austin, TX Concerning: Proposed revisions to 30 TAC Chapter 114and tothe SIP 

# - 1-

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony? (Please Print) (Circle One)
Yea No

YBB No

Yea No

Yes No

Yes No

Yes No

Yes No

Yes No

## HEARING OFFICERREPORT



## I am the 

## hearing officer assigned to conduct 

## the public 

## hearing regarding Rule Project No. 2009-027-114-EN and Project No. 2009-035-SIP-NR concerning 

## HB 715: Vehicle 

## Emissions Testing Limit and Emissions Testing 

## Analyzer Specifications Rule Revision; and Inspection andMaintenance SIP

## Revision.
A 

## public heating 

## was scheduled for July 21, 2010, at 

## 10:00 a.m. 

## in Austin 

## at 

## TCEQ, BuildlngE, Room 201S, located at 

## 12100 

## Park35 Circle. 

## At 9: 15 a.m. the

## room "WaS 

## open, TCEQ staffand a courtreporter were 

## present and 

## ready to open the 

## hearing for public coimnent After 

## waiting until 10:10 a.m., no one 

## had arrived to 

## make comments ontherecord. Therefore, the public hearing

## was not formally opened for comment and a transcript

## was notprepared.

earing 

## Officer 

# 01 

# I B.I/Jp Date 

## signed

## - 1 - 

# Texas Commission on Environmental Quality Public Hearing Registration
Date: July22, 2010 Time: 3:00 PM
Rule Project Nos.: 2009-027-114-EN and 2009-035-SIP-NR Short Title: HB 715: Vehicle Emissions Testing Limit and EmissionsTesting Analyzer Specifications (TAS) Rule Revision; and Inspection and Maintenance (1/M) SIP Revision Location: Houston-Galveston Area Council, Conference Room A, 3555 Timmons Lane, Houston, Texas 

## ' Concerning: Proposed revisions to 30TAC Chapter 114 and to the SIP



# .
Name and Phone No. or E-mail Address Representing Presenting Oral Testimony? (Please Print) (Circle One)

# (U~ Yes ,No

# -~ Yes No



# -**~\".** Yes No

# ~**~~**

# ~~~ Yes No 

# -y...,**~,** Yes No



# ....**·~** 

# v Yes No

·.

# ~ Yes No

Yes No

# TEXAS CO:MMISSION ON ENVIRONMENTAL QUALTIY

HEARING OFFICERREPORT

I am 

## the hearing officer assigned to conduct the public 

## hearing. regarding Rule Project No.2009-027-114-EN and 

## Project No. 2009-035-SIP-NR concerning HB715: Vehicle Emissions Testing Limit and Emissions Testing 

## Analyzer Specifications Rule Revision; andInspection andMaintenance SIP Revision.
A public hearing was scheduled for July 22, 2010, at 3:00 p.m. 

## in Houston at the Houston-Galveston Area Council, 

## Conference RoomA, 

## located at 

## 3555 Timmons Lane.
At 3:00 p.m. the room was**op~** 

## TCEQ 

## staff and a comt reporter were present and. ready to open the hearing for public comment. 

## .After waiting for 20 minutes, no one had 

## arrived to make comments on 

## the record. Therefore, the public hearing was 

## not formally openedfor comment and no transcriptwas 

## prepare4.



## ,. Date signed

# EVALUATION OF TESTIMONY

# Texas Commission on EnvironmentalQualitv iNTER.Omct•;:m!\ioRA.'ibOM



## To: Commissioners Date: October 29.2010 Thru: LaDonnaCastailuela, ChiefClerk MarkR. Vickery, P.G., ExecutiveDirector
From:

# ~usana M. Hildebrand, P.E., ChiefEngineer

DocketNo.: 2009-1610-RUL Subject: Commission Approval forRulemakingAdoption Chapter 

### 114,Control ofAirPolJution from MotorVehicles Inspection and Maimenance 

## (JIM) RuleRevisions Rule ProjectNo. 2009-027-114-EN Background and reason(s) for 

### tberulemaking: Backrmnmdlnformation 

## On December 6, 

### 2000, the commission adopted an enhanced 

### IfM program for the counties included in the DalJas-Fon Wonh (DF\\-') and Houston-Galveston-Brazoria (HGB) ozone nonattainment 

## areas to assistwith demonstrating attainment with the one-hour ozone National Ambient Air Quality Standard. Part of this package was the vehicle emissions testing analyzor specifications (T AS) and inspection requirements for acceleration simulation mode (ASM) and on-board diagnostic (OBD) inspections. 

## On October 24, 2001,the commission adopted rules 

## that defmed the term low-volume emissions inspection station and required all vehicle emissions inspection stations 

## in theDFW and HGB areas to offer both ASM and OBD inspections to 

## the public 

## with the exception oflow-volume emissions inspection stations. The adopted rules also revised theTAS and established the EarlyParticipationIncentive Program (EPIP). 

### Low-VolumeEmissionsInspection Stations The low-volume emissions inspec:tion station designation was established in 2001 because of the cost differential of ASM vehicle emissions inspection analyzers and the cost 

### of OBD·only vehicle inspection analyzers. To ensure that an adequar.e number ofvehicle emissions inspection stations were available to provide both ASM and OBD inspections atthe start 

### oftherevised 

## 11M program in the DFW and HGB areas, stations that voluntarily opted to be designated as a low-volume emissions inspection station by the Texas Department ofPublic Safety (DPS) were restricted to a msximurn of 1,200 OBD inspections per calendar year. 

### Section 

### 1 ofHouse Bill (HB) 715, 8lst Texas Legislature, 2009, Regular Session, establishes a minimum vehicle emissions inspection limitfor low-volume emissions inspection stations

### that willbecome effective on December 31, 

### 2010. Currently, these low-volume emissions inspection stations may perform up 

### to 1,200 OBD vehicle emissions inspections per year. Section 

## I of

## HB 715 prevents the DPS from restricting lowvolume emissions inspection stations to fewer 

## than 1 50 OBD inspections per month. The adopted rule revision 

### to 30 Texas Administrative Code (TAC) §!14.2 is needed in order to comply withtherequirements 

## ofHB 715. 

# HiE. The EPIP was established as an additional method to ensure that an adequate number ofvehicle emissions inspection stations were available to provide both ASM 

### and OBD inspections 

### atthe 

### stan ofthe revised 

## L'M program in theDFW and HGB areas. TheEPIP encouraged early purchases ofASM analyzers by

### providing vehicle emissions inspection stations with financial assurance offered by 

### the state 

### ifthe 11M program was terminated early. Vehicle emissions inspection station owners 

### that were accepted into 

### the EPIP and

### Commissioners Page2 October29. 20I0
Re: DocketNo. 2009-1610-RUL

maintained their eligibilitycould have received a payment ofup to $675 per month to cover the cost ofthe ASM analyzers ifthe I/M program was terminated within five years ofthe program start date. Because the EPIPhas expired, 

### § 114.52 

### is no longerapplicable and should berepealed. IJlJAf'_ 

### The commission adopted rules on Mm·ch 27,2002,

### toimplement theLowIncome VehicleRepairAssistance, Retrofit, and Accelerated Vehicle**R~irement** 

### Program (LIRAP), which was designed to assist low income individuals with repairs, retrofits, or retirement of vehicles that failed emissions inspections. Under the LIRAP, monetary assistance is provided for emissions-related repairs that were directly related to bringing the vehicle hito compliance or for replacement ofa vehicle that has failed the emissions inspection. The commission adopted rules on December 5, 2007, thatmodified the LIRAP byrequiring 

## funds be transferred 

### to a participating dealer not later

### than five business days afterthe sale ofa replacement vehicle is completed. The LIRAP operates in Travis and Williamson Counties inthe Anstin 

## area, in Collin, Dallas, 

### Denton; Ellis, Johnson, Kaufinan, Parker,**Rockwal~** 

### and Tarrant Counties in the DFW 

## area, and in Brazoria, Fort Bend, Galveston, Harris, 

### and Montgomery Counties intheHGB area. Section 12 of HB 1796, 8lst Texas Legislature, 2009, 

## Regular Session, which becmne effective on September 1, 2009, increased the maximnm time for counties 

### to reimburse dealmhips participating in the LIRAP from five to 10 business days. Theroles regardingthe LIRAP in 30TAC §114.64 currently require countiesto

### reimbutsedealershipsparticipatinginthe 

## lJRAP in five business days. Theadoptedrulerevision 

### to 30TAC §114.64 

## is needed in order

### to comply 

### withtherequirements ofHB 1796. WhiletheLIRAP, also known as the Drive a Clean Machine program, provides nionetaiy assistance associated with the 

## liM program, theLIRAP is not included 

## in 1he

## liM state implementationplan (SIP)revision.


### TAS On 

### October 26,2005, the commission adopted revisions to 30 TAC §.114.51, which 

## required manufacturers ofvehicle emissions inspection 

## analyzers used 

## inthe 

## liMprogram to meet

### the requirements contained 

## in the TeXIIli Commission on Envirorunental Quality's 

### (fCEQ) documents referenced in the rule, the vehicle emissionstesting analyzer specifications. These documents, also 

## referred to as the TAS, are 

## dated 

## May 1, 2005, in thet'Uie. Since October2005, theTAS have been modified four times to improve oversightand enhanceeffectiveness 

## of the 

## 11M program. The minor non-programmatic modifications 

## did not 

## affect the vehicle emissions inspection procedures or the design and performance criteria for the vehicle emissions inspection aDalyzer. However, the minor non-programmatic modifications did include updates to acconimodate new technology vehicles, enhancements 

### to the method 

## ofcollecting inspection data that is used to identifY occurrences of possible improper or fraudulent inspections, and updates to internal reference tables 

## used to determine the applicable vehicle emissions inspection criteria. No modification will be considered a minor nonprogrmnmaticmodification if

### itresults 

## in additional costs tovehicle inspection station owners. Each

### time the TAS 

### were modified, staffincorporatedthenecessary software enhancementS 

### intoA 

### draft version oftheTAS, and 

## these enhancements were implemented on 

## all analyzers by the analyzer manufacturers participating 

## in the

## 11M program. Themodified TAS have not been incorporated into the rule. The adopted rule revision will result 

## in a more streamlined process for implementing minor non-programmatic modifications 

## to the TAS.

### Commissioners Page3 October29, 2010
Re: DocketNo.2009-1610-RLL.

Scope o(

### therulemaking: The adopted rule revisions will revise 30 TAC Chapter 114, Subchapter A, §114.2; Subchapter C, §114.51, and §114.64to implement changes required by

### HB 715 and HB 1796 (8lstTexas Legislature, 2009, Regular Session). TI1e adoptedrulemakingwill also repeal 30 TAC Chapter 114, Subchapter C, 

### §114.52. Additional details regarding the changes 

### are included in the Summary of

### what the rulemaldng will do 

### portion ofthis 

### executive sununary. In addition to the adopted rule revisions 

### to 30 TAC Chapter 114, various non-substantive changes 

### are included that will update rule language to the current Texas Register 

### style and format requirements. 

### Such changes include appropriate and consistent use ofacronyms, section references, rule structure, and certain terminology. 

### A) Summaryofwhattherulemaking will do: 

## Low-V 

## o1umeEmissions Jnspection Stati011S The adopted rule revision 

### to 30 TAC 

### §114.2 will modifY the current definition of a low-volume emissions inspection station. The modllied definition will state that 

### "a low-volume emissions inspection station is a vehicle emissions inspection stationthat meets 

### all criteria for obtaining a low-volume waiver

## from the Texas Department ofPublic Safety." This adopted rule revision will ensure that 1he definition for a low-volume emission$ inspection station does not conflict with the low-volume waiver criteria for inspection stations listed intheDPS rules (37 TAC §23.95) and meet 1herequirements ofHB 715. 

## EPIP The adopted repeal of30 TAC §114.52 ,,.ill remove 

### all requirements related

### totheEPIP and delete the EPIP requirements that were incorporated into the 

## 11M SIP in the preamble ofprevious rulemakings adopted on October24, 2001, October 

### 8, 2003, and September 14, 2004. LJ1J,& 

### The LIRAP requirement in 30 TAC §114.64 requires counties to 

### reimburse dealerships participating in the LIRAP in five business days. 

### The adopted rule revision will modifY the language 

### to increase 1he maximum time period from five 

### to 10 business days as required by

### HB 1796 and will include a minor non-substantive grammatical changemade sincetherulemakingwasproposed. 

## IdS. The adopted rule revision 

### to 30 TAC §114.51 will remove 1he dates associated 

## with theTAS and will 

### add languagerequiring analyzer manufacturers 

### to meet the requirements contained in the "mostrecentversion of the TAS" resulting in a more streamlined process for implementing minor non-programmatic modifications to 

### the TAS. The adopted rule revision will also 

### add language indicating that 

### the TAS 

## are available at 

### the TCEQ's

### central office orat htrp:llwww.tceq.state.tx.us/assetslpublic/implementationlairfms!IM/trvehanlspecs.pclf. 

### In addition, the adopted rule ;revision

### will remove the TCEQ's "Specificationsfor On-BoardDiagnostics IIAnalyzer for Use in the Texas Vehicle Emissions Testing Program" and its corresponding references as these TAS are no longerneeded because the specifications for OBD-only vehicle inspection analyzers are 

### also containedinthe TCEQ's "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in 

### the Texas Vehicle Emissions TestingProgram."

### Commissioners Page4 October29, 2010
Re: DocketNo. 2009-161 0-RUL

B) 

### Scope required byfederal 

### regulations orstatestatutes: 

# Low- Volume Emissi011§ J!l§]lection Stations 

### The adopted rule revision will modify the vehicle emissions inspection limit for a low-volume emissions inspection station from 

### a maximum of 

### I,200 OBD inspections 

## per year 

### to a maximum established 

### by the DPS ofatleast 150 OBD inspections permonth as required by

## HB 715. 

## URAP The adopted rule revision will increase the 

## maximum time that counties have to 

### reimburse dealerships participating in the

## LIRAP from five to 

## I0 business days asrequired by

## HB 1796. 

### C)

### Additioualstaffrecommeadations that are notreqaired by

### federal rule orstate statute: 

# EE1E. The adopted rule 

## repeal related 

### to the EPIP is 

### not required by federal rule or state statue; however, it 

## has expired, and §114.52 is no longerapplicable. 

## IM The adopted rule revision to change .the way the comllllSSton approves minor non-programmatic modifications 

### to theTAS and remove the TCEQ's "Specificationsfor On-Board Diagnostics II Analyzer for Use 

## in the Texas Vehicle Emissions TestingPrognun" is not required by 

### federal rule or state statlle but wiU streamline the opemtion oftlte 11M prognun. 

### Statutory authority:
The rule revisions are adopted under Texas Water 

### Code 

## (TWC), §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provides the commissionwith the general powers 

### to carry 

### out its duties 

## and authorizes the commission

### to adoptrules necessaryto carry out 

### itspowers and dutiesunder the TWC; and TWC, §5.013, Geneml Jurisdiction ofCommission, which states the commission's 

### authority over various statutory 

### programs. The revisions are also 

### adopted under Texas Health and Safety Code 

### (THSC), §382.017, Roles, which authorizes the commission 

### to adopt rules consistent with 

### the policy and purposes of 1HSC, 

## Chapter 382 (the Texas Clean 

## Air Act), and 

### to adopt rules that differentiate among particular conditions, 

## particular sources, and particular areas ofthe state. 

## The revisions are also adopted under

# rnsc, §382.002, l'oiicy and Purpose, which establishes the commission's 

## purpose to safeguard 

### the state's air resources, consistent

## with the protection ofpublic health, general 

### welfBre, and physical property; THSC, §382.011, General Powers andDuties, which authorizes 

### the commission to control

### the quality of

### the state's air; lHSC. §382.012, StateAirControl Plan, whichauthorizesthe commissiot)

### toprepareand develop a general, comprehensive plan for the control**ofth~** 

### state's air; 

### THSC, §382.019, Methods Used

### to Control and Reduce Emissions From Land Vehicles, which provides the commission the 

### authority 

### to adopt rules 

### to control and reduceemissionsfromengines usedtoprope1land vehicles; 

### and TIISC, Chapter382,Subchapter G, Vehicle Emissions, which provides the commission the authority by rule

### to establish, implement, and administer a programrequiring emissions-related inspections ofmotorvehicleS to 

### bepetformed 

## at inspection facilities consistent with the requirements ofFederal Clean AirAct, 42 United States Code, §§7401 

## etseq.; and THSC, Chapter 382, Subchapter 

## H, Vehicle Emissions 

## Programs in 

## Certain COunties, which authorizes 

### the commission to adopt an 11M program for participating

.Early Actipn 

## Compact counties. The rule revisions are adopted pursuant to 

### Texas Transportation Code, §548.3075, which

## was amended by Section 1 of HB 715 from the 81st Texas Legislature, 2009, Regular Session, and THSC, ·§382.210, which 

### was amended by Section 12 ofHB 1796 fromthe 81stTexasLegisla1ure, 2009, Regular Session.

### Commissioners PageS October 29, 2010 Rc: DocketNo. 2009-1610-RlJL

Effect onthe: A) Regulated community: 

## Low-Volume Emissions Inspection Stations The adopted rule revision regarding low-volume em1ss1ons inspection stations may 

### affect all vehicle emissions inspection stations in the DFW 

### and HGB areas regardless ofthe volume. As 

### the low-volume limit for stations that offer OBD-only inspections is increased, the L'M program may experience a decrease in the number ofvehicle emissions inspection stations that offer both ASM and OBD inspections due to potential loss in revenue and the operational cost associated with maintaining the ASM equipment. In addition, the adopted rule revision may fiscally impact vehicle emissions inspection stations. Low-volume emissions inspection sw:ions may experience an increase in revenue due to the increase in the amount ofinspections they are allowedto perform each month. Non low-volume emissions inspection stations, also known as fullservice vehicle emissions inspection stations, may experience a corresponding decrease in revenue. Predictingthe magnitude ofthe increase ordecrease experiencedbyeach type 

### ofstationis notpossible as the increase ordecrease will be determined 

### bythe marketplace. 

## £flE The adopted rule repeal related to 

### the EPIP will not have an effect or a fiscal impact on the regulated community. 

## lJE&. The adopted rule revision related to 

## the LIRAP will not have an effect or a fiscal impact on 

## the regulated community. The adopted rule revision v.ill increase 

## the maximum time that counties have to 

### reimburse dealerships participating in the LIRAP from five 

### to I0 business days 

## afterthe countyreceives proof

## that the sale ofa replacement vehicle is completed. Counties cannot disburse funds 

### to any entity, including dealerships, before such expenditures have been reviewed and approved by the county's auditor, commissioner's court, and treasurer as 

### required by Texas law. The review and approval process extends past the five business days requirement 

## in most cases. Williamson County 

### requested an Attorney General's opinion on November 

### 8, 2007, on whether disbursements under the LIR.AP could be 

## made before the review and approval was completed. The Attorney General's opinion (GA-0624, May 7, 2008) determined 

## that the LIRAP requirements did not alter the countyauditor's, commissioner's court, ortreasurer's duties 

### with respectto dealerpayments. 

# 1M The adopted rule revision related to 

### the TAS will not have an effect or a fiscal impact on the regulated community as minornon-programmaticmodifications to the**TA~** 

## will notresult 

## in additional 

### costs to vehicle inspection station ov.ners. 

### B) Public: The adoptedrule revisions

# mil nothave a fiscal impact on 

## the public. 

## Low-Volume Emissions Ins.pection Stafiom The adoptedrulerevisionregarding tow-volume emissions inspection stations may cause motorists ofmodelyear 1995 and older vehicles (those that 

### will need an ASM inspection) to 

### experience difficnlty locating a convenient full-service vehicle emissions inspection station as the LIM program in the DFW and HGB areas may see a decrease 

### in the 

### nwnberoffull-service inspection stations offeringASM inspections.

### Commissioners Page 

### 6 October29, 20l0
Re: DocketNo. 2009-1610-RUL



## EPIP The adopted rule repeal regarding the EPIP 

## will not have an 

### effect on the public. 

## lJ&1E. The adoptedrule revision regan:ling the LIRAP**v.~ll** 

### nothave an effuct onthepublic. 

# IM TI1e adopted rule revision reganfingthe 

## TAS will nothave an effect on thepublic. 

### C) Agencyprogralils: 

## Low-Vohmte Emissions ln:mecti071 Stations The adopted rule revision regar!iing the definition ofthe low-volume enllllsions inspection station will have no significantimpacton the agency. · 

## EE1E. The adoptedrule repeal regarding the EPIP will have no significant impact on the agency because the EPIP basexpired. 

## URAP The adoptedrule revision regan:ling theLIRAP 

## will have no significant impact on the agency. TheLIRAP is managed by the agency but administered and implemented in the local 

### areas 

### by the county prognun administrators. The agency does not conduct any reimbursement activities to dealerships and will not 

## be 

## affected by this action. 

## In addition, local governments and their contracted local administrators will not experience an 

### adverse impact 

### by this action. The adopted rule revision 

## will provide additional processing 

### and reviewtime

## that will improve the efficiency ofpayments to dealerships. 

## I'M The adopted rule revision regan:ling the 

## T AS will impact the agency. By defining the 

## T AS as "the most recent 

### version," the adopted rule revision will streamline the process for implementing minor nonprogrammatic

## modificationsto

## the

## TAS in 

## atimely

## manner. Publiccommeat: TCEQ 

## staff offered public hearings in Fort Worth on July 20, 2010; in Austin on July 21, 2010; and in Houston onJuly 22, 2010. No member ofthepublic wished to present comments, so 

## staffdid not openthe public hearings. Thecomment

### period opened onJune 18,2010,and closed onJuly 26,2010.
The commission received one written comment 

## from the United States Environmental Protection Agency (EPA)

.. 

### The EPA expressed support for the proposed revisions to the rule and the 

## liM SIP and expressed cOQ.tinued support

### forthe 

## 11Mprogram and theLIRAP. SiguifJCantchangesfrom pniposal:
None
Stakeholdermeetings: Stakeholder meetings werenotheld.

### Commissioners Page 7 October29, 2010 Re: DocketNo. 2009-1610-RUL

Potential controversialconcerns and legWa1ive 

### interestremaining afterproposal andpublic

### comment: None
Does this rulemaking affect

### anycurrentpolicies or 

### require development ornewpolicies? 

### Low-VolumeEmissions l11QJectian Srations The adopted rule revision will

### modify criteria

### within the 

### cwrent IIM

### program butwill 

### not affect the current agency policies regarding implementation, enforcement, and oversight 

### ofthe IIM

### program 

## as required by the 

### cwrentrules. 

## EPIP The adopted rule repeal 

### regarding the EPIP will not affect any current policies or require development of newpolicies. 

## I.ll1AE. The 

### adoptedrule revisionregarding the 

## LIRAP will not 

### affectany currentpolicies orrequire development of newpolicies. 

# w. Underthe current policies, implementing minornon-programmatic moclifications 

### to the 

## TAS may take 

## up to 3

0months. The process includes approximately 12 

### to 18 months 

### to revise the rule and an additional nine to 12months for 

## software development. The adopted rule revision will result 

## ina

## more streamlinedprocess for minor non-programmatic modifications 

### to the 

## TAS and allow 

## staffto implement minor non-programmatic modifications 

## in a timely manner. However, modifications 

### to the 

## I1Mprogram design, performance criteria for the vehicle emissions inspection analyzer, and 1he vehicle emissions inspection procedure will not be 

### implementedunless commission approval 

## is received through the

### rule and SIPrevision process. What are the 

### coasequences If this. 

### rulemaking does 

### not go forward? Are 

### there alteruatives tn 

### ndemakiug? 

## Low-Volume EmissionsInspection Srations The current rule, which defmes a low-volmne emtsStons inspection smtion, will 

### conflict with 

### the 

### requirements ofHB 715. There are no 'liable alternatives 

### tothisrevision 

### to the 

### rule 

## since HB 715 

### directs the DPS 

### to set

### the inspection limit for low-volume emissions inspection smtions. 

## Ifthe

## rule revision does notgo forward, the TCEQ rules willbeinconflictwithHB 715. 

## E£1£. Since the EPIP has expired, there are no consequences if

### the 

### adopted rule repeal 

### regarding the 

### EPIP is not approved 

### to go forward. An 

### altemative is not

### to IIIIlelld

## this section. 

## Hthis section is notamended, the rules will continue

### toreference out-of-daterequirements, possiblyleading

### to confusion :from external 

### stakeholders. 

## I.ll1AE. The cummtrules related 

### to LIRAP requirements will continue 

### to conflict

## with Section 12 ofHB 1796. The 

## LIRAPrequirements of

### HB 1796 

## didnot

### authorize any alternatives.

## Commissioners Page 8 

## October 29, 2010 Re: Docket

## No. 2009-1610-RUL

TAS 

### Minor

## non-programmatic modifications to theTAS will 

## continue to 

## require approval tbrough the rulemaking process. An 

## alternative is 

## notto 

### proceed 

## withthe adopted rule

## revision. However, minornon-programmatic modifications to theTAS may 

### require

## up to 

## 30months to

## implement. Key

### pointsinthe

## adoption rulemaklngschedule: 

### Proposal

### date: 

## Tt!X8SRegiSterproposalpublication

## date: Anticipated 

## Tt!X8SRegister

### publication 

### date: Anticipated effective 

### date: Six-month 

## Tam- Registerfiling 

## deadline: Agency contacts: 

## June 16,2010 July 2, 

## 2010 December 10,2010 December 16, 2010 January 2, 

## 2011

EdgarJ. 

## Gilmore, Jr., Rule ProjectManager, 239-2069, Air Quality

## Division Ross

## Hendersoli, StaffAttorney, 239-6257, Environmental

## Law Division Michael Parrish,Texa& Register

## Coordinatoc, 239-2548 Attachments: HB715 HB 1796

cc: 

## ChiefClezt, 2copies ExecutiveDirector's Office SusanaM.Hildebrand,P

### .E. 

## KevinPatteson Curtis Sealoo 

## AshleyMorgan 

## OfEioe ofGeneral Counsel EdgarJ. 

## Gilmore Jr. Michael Parrish

## EVALUATION OFTESTIMONY

TheTexas Commission on Environmental Quality (TCEQ orcommission) adoptsthe amendments to §§ 114.2, 114.51, and 114.64; and the repeal of§114.52.

Section 114.64 is adopted 

### with change tothe proposed text as published in the July 2, 2010, issue ofthe


### Texas Register (35 TexReg 5718) and will berepublished. Sections 114.2 and 114.51 and the repeal of §114.52 are adopted 

### without change and the text will not be republished.

The adopted amendments to§114.2 and§114.51 and the repeal of§114.52 willbe submitted tothe
United States Environmental Protection Agency (EPA) asrevisions tothe state implementation plan (SIP). Section 114.64 is not included in the SIP andthe amendmentto §114.64 will notbe submitted to
the EPA.

BACKGROUNDAND SUMMARYOF THE FACTUALBASIS FORTHEADOPTEDRULES
A rulemaking adopted bythe commission on October 6, 2000, revised an air pollution control strategy involving emissions inspection ofvehicles toreduce nitrogen oxides (NOx) and volatile organic compounds (VOC) necessary for the counties included in the Dallas-FortWorth (DFW), HoustonGalveston-Brazoria (HGB), and El Paso (ELP) ozonenonattainment areas in orderto assist in the ability

to demonstrate attainmentwiththe one-hour ozoneNational AmbientAir Quality Standard (NAAQS).
Thecommission adopted vehicle emissions testing analyzer specifications (T AS) and inspection requirements for acceleration simulation mode (ASM) and on-board diagnostics (OBD) inspections. The
revised vehicle emissions inspection program, alsoknown as the Inspection andMaintenance (liM)


### program, began on May 1, 2002, in Collin, Dallas, Denton, and Tarrant Counties in the DFWarea and
Harris County in the HGB area. OnMay I, 2003, the 

## 11Mprogram expandedto include Ellis, Johnson, Kaufman, Parker, and Rockwall Counties for the DFWarea and Brazoria, FortBend, Galveston, and

1

### Montgomery Counties in the HGB area. Unlike the two-speed idle (TSI) vehicle emissions inspection
that had been in place, the ASM inspection has the ability to detectNOx emissions, while the OBD inspection has the abilityto ensure vehicle emissions control systems are functioning as designed by
verificationthrough the vehicle's computer system. BecauseNOx is a precursortoground-level ozone formation, reducedNOx and VOC emissions result in ground-level ozone reductions. In addition, the
inclusion ofOBD in the 

## liMprogram ensured compliance with a fedeml mandate requiring all 1996 and

newer model-yearvehiclestoreceive an OBD inspection.

On October 24,2001,the commission adopted rules that implementedportions ofHouse Bill (HB) 2134,
77th Texas Legislature, 2001. The adopted rules defmed the term "low-volume emissions inspection
station" andrequired all vehicle emissions inspection stations in the DFW and HGB areastoofferboth
ASM and OBD inspections to the public with the exception oflow-volume emissions inspection stations.
The adopted rules also revised the TAS and established the Early Participation Incentive Program (EPIP).

The low-volume emissions inspection station designation was established because the cost ofASM
vehicle emissions inspection analyzers, which have the capabilityto inspect all vehicles requiredto undergo 

## liM inspections, is much higherthan the cost ofOBD-only vehicle inspection analyzers, which ·onlyhave the capabilityto inspect 1996 and newermodel-year vehicles. To ensure thatan adequate
number ofvehicle emissions inspection stations were available 

### to provide both ASM and OBD inspections atthe startofthe revised 

## liMprogram in the DFWand HGB areas, stationsthat voluntarily optedtobedesignated as a low-vulume emissions inspection station by the Texas Department ofPublic Safety (DPS), the agency that implements the 

## liMprogram along with the TCEQ, were restricted to a maximum of 1,200 OBD inspections percalendaryear.

The EPIP was established as an additional method to ensure that an adequate number ofvehicle emissions inspection stations were available toprovide both ASM and OBD inspections atthe 

### start oftherevised
2

### 11M program in the DFW and HGB areas. The EPIP encouraged earlypurchases ofASM analyzers by providing vehicle emissions inspection stations with fmancial assurance offered by

### the state ifthe 11M
programwas terminated early. The EPIP was available tothe first I,000 eligible vehicle emissions inspection stations thatwere certified by 

### the DPS to offerASM and OBD inspections to the public.
Vehicle emissions inspection station owners thatwere accepted intothe EPIP and maintained their eligibility could have received a payment ofup to $675 permonthto coverthe cost oftheASManalyzers
ifthe 11M programwasterminated within five years ofthe program start date. As

### the EPIP expired in all
11M program areas on May I, 2008, vehicle emissions inspection stations owners are no longer participating in 

## the program.

On October 26, 2005, the commission adopted revisions to §114.51, which required manufacturers of
vehicle emissions inspection analyzers used inthe 11M programto meettherevised requirements
contained inthe TCEQ's "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas
Vehicle Emissions Testing Program," dated May I, 2005, or in theTCEQ's "Specifications for On-Board Diagnostics II Analyzerfor Use in theTexas Vehicle Emissions Testing Program," dated May I, 2005.
Since October 2005, theTAS have been modified fourtimes to improve oversight and enhance
effectiveness ofthe 11M program. The minor modifications did not affectthe vehicle emissions inspection procedure orthe design and performance criteriaforthe vehicle emissions inspection analyzer. However, the minor modifications did include updates to accommodate newtechnologyvehicles,
enhancements to

### the method ofcollectinginspection datathat is used to 

### identifythe occurrence of possible improper orfraudulent inspections, andupdates to internal referencetables used to determine the applicable vehicle emissions inspection criteria. No modification will be considered a minornonprogrammatic modification ifitresults in additional costs to vehicle inspection station owners. Each time
the TAS were modified, staffincorporated the necessary software enhancements into a draft version of theTAS, and these enhancements were implemented on all analyzers bythe analyzer manufacturers participating in the 11M program. The modified TAS have notbeen incorporated byrule. 

## 3

### Rules adopted bythe commission onMarch 27, 2002, implemented the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), which was designedto assist
low income individuals with repairs, retrofits, orretirement ofvehicles that failed emissions inspections

as required by HB 2134, 77th TexasLegislature, 2001. UndertheLIRAP, monetary assistance is provided for emissions-relatedrepairs directly related to bringing the vehicle into compliance orfor replacement assistance for a vehiclethathas failed the required emissions inspection. Dueto the requirements ofSenateBill (SB) 12, 80th Texas Legislature, 2007, the commission adopted rules on December 5, 2007, that modified theLIRAP, now commonly referred to as the Drive a Clean Machine
program, 

### by requiring funds be transferred to a participating dealer not laterthan five business days after
the sale ofa replacement vehicle is completed.

The primary reason for this adopted rulemaking is to implement portions ofHB 715 and HB 1796 from
the 81stTexasLegislature, 2009, relating to requiringthe vehicle emissions inspection limit for lowvolume emissions inspection stations to be 

### set at nofewer than 150 OBD inspections per monthand increasing the maximum time that counties have to reimburse dealerships participating in the LIRAP from
five to 10 business days, respectively. This adoptedrulemaking also defines theTAS as "the most recent version" resulting in a more streamlined process for minor non-programmatic modifications to theTAS
and allow staffto implement minor non-programmatic modifications including updates to accommodate

newtechnology vehicles, enhancementsto the method ofcollectinginspection data, and updatesto
internal reference tables. However, modifications

## to the 11M program design, performance criteriafor the
vehicle emissions inspection analyzer, orthe vehicle emissions inspection procedure will not be 

### implemented unless commission approval is received through therule and SIP revision process. In addition, the adoptedrulemaking removes the "Specificationsfor On-Board DiagnosticsIIAnalyzerfor
Use in theTexasVehicleEmissions Testing Program" and its corresponding referencesto remove redundant requirements and also repeals theEPIP. 

## 4

### TheEPIP was established as an incentive program and is not a control strategy measure ofthe 11M
program. 

## In addition, the EPIP expired onMay 

## I, 2008. Therefore, removal ofthe EPIP will not change
the stringency or effectiveness ofthe 11M program.

SECTION BY SECTIONDISCUSSION 

## In addition to the adopted amendments associated withtherulemakingfor Chapter 114, various stylistic,
non-substantive changes are included to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use ofacronyms, section references,rule
structure, and certain terminology. These changes are non-substantive and generally are not specifically
discussed in thispreamble.

The adopted amendment to §I 14.2 modifies the definition ofa low-yolume emissions inspection station.
The current definition states that "a low-volume emissions inspection station is a vehicle emissions inspection station thatperforms only the OBD test and does not exceed 

## I,200 OBD tests per calendar year." The modified defmition states that "alow-volume inspection station is a vehicle emissions inspection stationthat meets all criteriafor obtaining a low-volume waiver from the Texas Department of
Public Safety." HB 715 prevents the DPS from restricting a vehicle emissions inspection station to fewer
than I50 OBD inspections per month. This adopted amendment ensures thatthe defmition for a lowvolume emissions inspection station contained in §I 14.2 does not conflict with the low-volume waiver
criteriafor inspection stations listed inthe DPSrules (37 TAC §23.95)and meetstherequirements ofHB
715.

The adopted amendmentto §114.51 removes the dates associated with theTAS and adds language requiring analyzer manufacturers to meet the requirements contained in the "mostrecentversion" ofthe
TAS resulting in a more streamlinedprocess for implementing minor non-programmatic modifications to 

## 5

### theTAS. The mostrecent version oftheTAS will be the version available at the TCEQ's central office or
at http:!/www.tceq.state.tx.uslassets!public/implementation/air/ms!JM!txvehanlspecs.p4f. 

## In addition, the adopted amendment removes the "Specifications for On-Board Diagnostics II Analyzerfor Use in the
Texas Vehicle EmissionsTestingProgram" and its correspondingreferences as the specifications for OBD-only vehicle inspection analyzers are also contained in the "Specifications for Vehicle Exhaust Gas Analyzer Systems forUse in the Texas Vehicle Emissions TestingProgram."

The adopted repeal of§114.52 removes all requirements relatingto the EPIP, which has expired, and
deletes the EPIP requirements that were incorporated into the 11M SIP in the preamble ofprevious rulemakings adopted on October24,2001, October 8, 2003, and September 14,2004.

The adopted amendmentto §114.64 increases the maximum time thatcounties have toreimburse dealerships participating in the LIRAP from five to l0 business days as mandated by HB 1796. This
section is being adoptedwith a minor non-substantive punctuation change to subsection (dX1XB) made
since the rulemakingwas proposed.

FINAL REGULATORY IMP ACTANALYSIS DETERMINATION
The commissionreviewed the adopted rulemaking in light ofthe regulatory analysis requirements of
Texas Government Code, §2001.0225 and determinedthatthe adopted rule revisions do not meetthe
defmition ofa "majorenvironmental rule." Texas Government Code, §2001.0225 states that a "major
environmental rule" is, "arule the specific intent ofwhich is toprotectthe environment orreducerisks 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 public health and safety
ofthe state or a sector ofthe state." Furthermore, while the adopted rulemaking does not constitute a major environmental rule, even ifit did, a regulatory impact analysis is not required because the adopted ru1emaking does not meet any ofthe four applicability criteria for requiring a regulatory impact analysis 

## 6

### for a major environmental rule. Texas Government Code, §2001.0225 applies only to a major
environmental rule, which: 

### "(I) exceeds a standard set by federal law, unless tbe rule is specifically required by state law; (2) exceeds an express requirement ofstate law, unlessthe rule is specifically required by federal law; (3) exceeds a requirement ofa delegation agreement or contract betweenthe state and an agency orrepresentative oftbe federal governmentto implement a state and federal program; or (4) adopts a rule solely under tbe general powers oftbe agency instead ofunder a specific state law."

The adopted rulemaking implements requirements oftbe Federal Clean Air Act (FCAA). Under 42
United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce tbe NAAQS witbin tbe state. While 42 USC, §7410 generally does notrequire specific programs, metbods, orreductions in ordertomeettbe standard, state SIPs must include "enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketablepermits, and auctions ofemissions rights), as well as schedules and timetables for compliance asmay be necessary or appropriate to meettbe applicable requirements oftbis chapter," (meaning 42 USC, Chapter 85, 

## AirPoilution Prevention and Control, otherwise known as the FCAA). The provisions oftbe FCAArecognizethat states are in tbe
bestposition to determine what programs and controls are necessary orappropriate in order to 

### meettbe NAAQS. This flexibility allows states, affected industry, and tbe publictocollaborate ontbe best
metbods for attainingtbeNAAQS for tbe specific regions in tbe state. Eventboughtbe FCAA allows

states to developtbeir own programs, this flexibility does notrelieve a statefrom developing a program tbat meets tberequirements of42 USC, §7410. States are not free 

### to ignore tbe requirements of42 USC, §7410 and must develop programs and control measures to assure tbattbeir SIPs provide for implementation, attainment, maintenance, and enforcement oftbe NAAQS witbin tbe state. Furthermore,
while states generally are afforded some flexibility in adopting and implementing a SIP, vehicle 11M
programs arerequired elements oftbe SIPpursuantto42 USC, §7511(a).



## 7

### The specific intent ofthe adopted rulemaking is to clarify, improve upon, and increase consistency within
the 11M program and the LIRAPby implementingHB 715 and HB 1796, streamliningthe programs, and eliminating certain expired provisions. To further this specific intent, this rulemaking incorporates the following adopted amendments to the 11M program. The current definition ofa low-volume emissions inspection station in §114.2 states that "alow-volume emissions inspection station is a vehicle emissions inspection station that performs only the OBD test and does notexceed I,200 OBD tests per calendar year." The adopted amendmentto§ 114.2 modifies the current defmition to 

### state that "a low-volume
emissions inspection station is a vehicle emissions inspection station thatmeets all criteria for obtaining a low-volume waiver from the Texas Department ofPublic Safety." HB 715 prevents the DPS from restricting a vehicle emissions inspection station to fewer than 

## ISO OBD inspections permonth. The adopted amendment ensures thatthe definition for a low-volume emissions inspection station contained in §114.2 does not conflict with the low-volume waiver criteria for inspection stations listed in the DPS
rules (37 TAC §23.95) and meettherequirements ofHB 715. The adopted amendmentto**§114.~** 

### increases the maximum time that counties have toreimburse dealerships participating in the LIRAP from
five to I0 business days as mandated byHB I796. The adopted amendmentto §114.51 removes the dates
associated withthe TAS and add language requiring analyzermanufacturers to meet the requirements
contained in the "mostrecent version" oftheTAS and remove the "Specifications for On-Board Diagnostics IT Analyzer for Use in theTexas VehicleEmissions Testing Program" and its corresponding
references. The adopted amendment will improve the efficiency ofthe process used bythe commission
for implementing minornon-programmatic modifications totheTAS andremove redundant requirements. The adopted repeal of§114.52 repeals all requirements relatingto the EPIP, which has expired.

The adoptedrulemaking does not constitute a majorenvironmentalrule under Texas Government Code, §2001.0225(g)(3)because: I) the specific intent ofthe adopted rule revision is notto protectthe
environment orreduce risks to human health from environmental exposure, butratherto clarify, improve 

## 8

### upon, and increase consistency withinthe 11M program and the LIRAP by implementing HB 715 and HB 1796, streamliningthe programs, and eliminating certain expired provisions; and 2)the adopted rulemaking does not adversely affect in a material waythe economy, a sector ofthe economy, productivity, competition, orjobs, nor dothe adopted rule revisions adversely affect in a material waythe environment, orthe public health and safety ofthe state ora sector ofthe state becausethe adopted rulemaking actually clarifies, improves upon, and increases consistency withinthe 11M program and the
LIRAP. Becausethe adopted rulemaking is not a major environmental rule, it is not subjectto a regulatory impact analysis under Texas Government Code, §2001.0225.

While the adopted rulemaking does not constitute a major environmental law, even ifit did, it is not subject to a regulatory impact analysis under Texas Government Code, §2001.0225. The requirementto provide a fiscal analysis ofregulations in the Texas Government Code was amended by SB 633 during
the 75th Texas Legislature, 1997. The intent ofSB 633 was to require agencies to conduct a regulatory impact analysis ofextraordinary rules. These are identified inthe statutory language as major
environmental rules that will have a material adverse impact and will exceed a requirement ofstate law,
federal law, or a delegated federal program; or are adopted solely underthe general powers ofthe TCEQ.
With the understanding thatthis requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: "based on an assessment ofrules adopted by the agency in the past, it is not anticipatedthatthe bill will have significant fiscal implications forthe agency due to its limited application." The commission also noted thatthe number ofrules that would require assessment under
the provisions ofthe bill was not large. This conclusion was based, in part, on the criteria set 

### forth in the
bill that exemptedrules from the full analysis unless the rule was a major environmental rulethat exceeds

a federal law.

TheFCAA does not always require specific programs, methods, orreductions in orderto meetthe NAAQS; thus, states must develop programs for each nonattainment areato 

### help ensurethatthose areas


## 9

### will meet the attainment deadlines. Because ofthe ongoing need to address nonattainment issues and to
meet the requirements of42 USC, §7410, the commission routinely proposes and adopts revisions to the
SIP andrules. The legislature is presumed to understand this federal scheme. Ifeach rule proposed for
inclusion in the SIP and rules was considered to 

## be a major environmental rule thatexceeds federal law,
then every revisiontothe SIP and rules 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 bytheLegislative BudgetBoard (LBB) in its fiscal notes. Since the legislature ispresumed

to understand the fiscal impacts ofthe bills it passes and thatpresumption is based on information provided by state agencies and theLBB, the commission believes thatthe intent ofSB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP and
rules have a broad impact, that impact is no greaterthan is necessary or appropriate to meetthe requirements ofthe FCAA. Forthese reasons, rules adopted for inclusion in the SIP fall underthe exception in Texas Government Code, §2001.0225(a), becausethey are required by federal law.

The commissionhas consistently applied this construction to its rules since this statute was enacted in
1997. Sincethat time, the legislature has revisedthe Texas Government Code butleft this provision substantially unamended. It

### is presumed that, "when an agency interpretation is in effect atthe timethe legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." 

### CentralPower & 

### Light Co. v. 

### Sharp, 919 S.W.2d485, 489 (Tex. App. Austin 1995), 

### writdeniedwithpercuriam opinion respectinganother issue, 960 S.W.2d 617 (Tex. 1997);

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

### Cf
Humble Oil & 

### Refining Co. v. 

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

### Dudney v. 

### State Farm Mut. AutoIns. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); 

### Southwestern LifeIns. Co. v. 

### Montemayor, 24 S.W.3d
581 (Tex. App. Austin 2000,

### pet. denied); and 

### CoastalIndus/. WaterAutk v. 

### Trinity PortlandCement Div., 563 S.W.2d916 (Tex. 1978).

10

### The commission's interpretation oftheregulatory impact analysis requirements is also supported by a change made tothe Texas Administrative Procedure Act (APA) by the legislature in 1999. 

### In an attempt
to limitthe number ofrule challenges based upon AP A requirements, the legislature clarified that state agencies are requiredto meet these sections ofthe AP A againstthe standard of"substantial compliance,"
Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, §2001.0225 as falling underthis standard. The commission has substantially complied with the requirements ofTexas Government Code, §2001.0225.

Even ifthe adopted rulemaking constituted a majorenvironmentalrule under Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis is notrequired because this exemption is part ofthe
commission's SIP for making progress toward the attainment and maintenance oftheNAAQS. Therefore, the adopted rule revisions do not exceed a standard set by federal law or exceed an express requirement ofstate law since they are 

## part ofan overall regulatory scheme designed to meet, not exceed
the relevant standard set 

### by federal law- theNAAQS. 

### In addition, the adoption and maintenance ofthe
11M program is directly required by federal law pursuant to42 USC, §75ll(a). The commission is charged with protecting airquality within the state and to design and submit a plan to achieve attainment
and maintenance ofthe federally mandated NAAQS. The Third DistrictCourt ofAppeals upheld this interpretation in

### Brazoria Countyv. Texas Comm'n onEnvtl. Quality, 128 S.W. 3d 728 (Tex. App.-
Austin 2004, 

### no writ). In addition, portions ofthis rulemaking are directly required by HB 715 and HB
1796. Furthermore, no contract or delegation agreement covers the topicthat is the subject ofthis rulemaking. Finally, this rulemaking was not developed solely underthe general powers ofthe TCEQ but
is authorized by specific sections ofTexas Health and Safety Code (THSC), Chapter382 (also known as the Texas Clean Air Act), and the Texas Water Code (TWC), which are cited in the STATUTORY
AUTHORITY section ofthis preamble, including THSC, §§382.011, 382.012, and 382.017.

This rulemaking is not subject to the regulatory analysis provisions ofTexas Government Code,

11

### §2001.0225(b), forthe following reasons. The adopted rulemaking is not a majorenvironmental law
because: I)the specific intent ofthe adopted rulemaking is nottoprotect the environment orreduce risks

to human health from environmental exposure, but ratherto clarify, improve upon, and increase consistency within the 11M program and the LIRAP by implementing HB 715 and HB 1796, streamlining
the programs, and eliminating certain expired provisions; and 2) the adopted rulemaking does not adversely affect in a material waythe economy, a sector ofthe economy, productivity, competition, or jobs, nordoes it adversely affect in a material way the environment, orthe public health and safety ofthe

state or a sectorofthe state, because the adopted rulemaking actually clarifies, improves upon, and
increases consistency within the 11M program and the LIRAP. Furthermore, even ifthe adopted rulemakingwas a major environmentalrule, it does not meet any ofthe four applicability criteria listed in
Texas Government Code, §2001.0225 because: I) the adopted rulemaking is part ofthe SIP, and as such
is designedtomeet, not exceedthe relevant standard set by federal law; 2) parts ofthe adopted rulemaking are directly required by state law; 3) no contract ordelegation agreement covers the topicthat
is the subject ofthis rulemaking; or4) the adopted rulemaking is authorized by specific sections of TIISC, Chapter 382 (alsoknown asthe Texas Clean AirAct), and the TWC, which are cited in the
STATIITORY AUTHORITY section ofthis preamble.

The commission invited public commentregarding the draft regulatory impact analysis determination during the public commentperiod, and no comments werereceived.

TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rule revisions and performed an analysis ofwhether the adopted
rule revisions constitute a taking under Texas Government Code, Chapter 2007. The commission's

assessment indicates Texas GovernmentCode, Chapter2007 does not apply.

Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects
12

### privatereal property, in whole or inpartortemporarily orpermanently, in a mannerthatrequires the governmental entityto compensatethe private real property owner asprovidedbythe Fifth and
Fourteenth Amendmentstothe United States Constitution or Section 17 or 19, Article 

### I, Texas Constitution; or (B) a governmental action that: (i) affects an owner's private real property that is the subject ofthe governmental action, in whole orin

### part ortemporarily orpermanently, in a mannerthat
restricts or limits the owner'sright totheproperty thatwould otherwise existin the absence ofthe governmental action; and (ii) is theproducingcause ofa reduction ofat least 25% in the market value of
the affected privatereal property, determined by comparingthemarket value ofthe property as ifthe governmental action is not in effect and themarket value ofthe property determined as ifthe governmental action is in effect."

The specific purpose ofthe adopted rulemaking is to clarify, improve upon, and increase consistency
within the 11M program and theLIRAP by implementingHB 715 and HB 1796, streamlining the
programs, and eliminating certain expired provisions. Therefore, the adopted rulemaking substantially
advances this stated purposeby: modifyingthe currentdefinition ofa low-volume emissions inspection
station to state that "alow-volume emissions inspection station is a vehicle emissions inspection station
thatmeets all criteriafor obtaining a low-volume waiverfrom the Texas Department ofPublic Safety"; ensuring thatthe defmitionfor a low-volume emissions inspection station contained in §114.2 does not conflictwith the low-volume waiver criteriafor inspection stations listed in the DPSrules (37 TAC §23.95) and meettherequirements ofHB 715; increasingthemaximum time thatcountieshave to
reimburse dealerships participating in the LIRAP from five to I0 business days as mandatedbyHB 1796; removing the dates associated with the TAS and adding language requiring analyzer manufacturers to

meet the requirements contained in the "mostrecent version" oftheTAS and removing the "Specificationsfor On-Board Diagnostics ll

### Analyzerfor Use in the TexasVehicle EmissionsTesting Program" and its correspondingreferences; streamliningthe process used

### by the commissionfor implementing minor non-programmatic modifications to the TAS; removing redundantrequirements; and 

## 13

### deleting all requirements relating to the EPIP, which has expired.

Promulgation and enforcement ofthe adopted rule revisions is neither a statutory nor a constitutional taking ofprivate real property. These adopted rule revisions are notburdensome, restrictive, orlimiting
ofrights to privatereal property becausethe adopted rule revisions simply clarify, improve upon, and
increase consistency within the existing 11M program and the LIRAP. Furthermore, the adopted rule
revisions benefitthe public by 

### improving upon the 11M program and the LIRAP, makingthem more accessible to the public and subsequently improvingtheir effectiveness. The adopted rule revisions do

not affect a landowner's rights in privatereal propertybecausethis rulemaking does notburden, restrict,

orlimitthe owner's rightto property, nor does it reduce the value ofanyprivatereal propertyby 25% or

more beyond thatwhich would otherwise exist in the absence ofthe regulations. Therefore, these adopted
rule revisions do notconstitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCYWITH THE COASTALMANAGEMENTPROGRAM
Thecommissionreviewed the adopted rulemaking and found that the adoption is subjecttothe Texas
Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural
Resources Code, §§33.201 

### et seq., and therefore mustbe consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rulerevisions in
accordancewith Coastal Coordination ActImplementation Rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies. The CMP goals applicableto the adopted rulemaking are to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values ofcoastal natural resource areas. No new sources ofair contaminants are authorized and ozone levels will bereduced as a result ofthe adopted rulemaking. The CMP policy applicabletothis rulemaking action is the policy that commission rules comply with regulations in the
Code ofFederal Regulations to protect and enhance airquality in the coastal areas (31 TAC §501.32).
This adopted rulemaking will nothave a detrimental effect on SIP emissionsreduction obligations 

## 14

### relatingto maintenance ofthe ozoneNAAQS by continuingto implement the existing OBD, ASM, and
TSI vehicle inspections as a part ofthe 

### liM program. This rulemaking action complies withthe Code of
Federal Regulations. Therefore, in compliance with 31 TAC §505.22(e), this rulemaking action is
consistent with CMPgoals andpolicies. Promulgation and enforcement ofthese adopted rulerevisions
will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rule revisions are consistent withthese CMP goals and policies and becausethese adopted rule
revisions do not create orhave a direct or significant adverse effect on any coastal natural resource areas.

The commission invited public commentregarding the consistency with the CMP during tbe 

### public

commentperiod and no comments were received.

PUBLIC COMMENT
Public hearings were offered in FortWorth onJuly 20,20I0, at 2:00 p.m. atthe TCEQ, Region 4 Office,
DFWPublic Meeting Room, 2309 Gravel Road; in Austin on July 21, 20I0, at I0:00 a.m. atthe TCEQ, Building E, Room 201 S, I2!00.Park 35 Circle; and 

## in Houston on July 22, 2010, at 3:00p.m. atthe
Houston-Galveston Area Council, Conference Room A, 3555 Timmons Lane. No oral comments were received. Thecommentperiod opened on June 18, 20I0, and closed on July 26, 2010. One written

comment wasreceived from the EPA.

RESPONSE TO COMMENTS
TheEPA expressed support for the proposedrevisions to the rule andthe 

### liM SIP and expressed continued support for the 

### liMprogram and the LIRAP.



## Thecommission appreciates the supportfor the proposed revisions to the rule and 11M SIP,the 11M
program, and the LIRAP. No changeswere made to the rule based on this comment.



## 15

# STAFF RECOMMENDATIONS

### STATUTORY AUTHORITY SUBCHAPTER A: DEFINITIONS 

### §114.2

The amendment is adopted under Texas Water Code (TWC), §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provide the commission with the general powers to carry
out its duties and authoriZe the commission to adopt rules necessary to carry out its powers and duties
underthe TWC; and TWC, §5.013, General Jurisdiction ofCommission, which statesthe commission's authority overvarious statutory programs. The amendment is also adopted under Texas Health and Safety
Code (THSC), §382.017, Rules, which authorizes the commission to adoptrules consistent with the policy
and purposes ofTHSC, Chapter 382 (the Texas Clean Air Act), and to adoptrules that differentiate among particular conditions, particular sources, and particular areas ofthe state. The amendment is also adopted
underTHSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the
state's air resources, consistent with the protection ofpublic health, general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission to controlthe quality of
the state's air; THSC, §382.012, State AirControl Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC, §382.019, Methods Used to
Control and Reduce Emissions FromLand Vehicles, which providesthe commission the authority to adopt
rules to control and reduce emissions from engines used to propel landvehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections ofmotorvehicles to be performed at inspection facilities consistent withthe requirements ofFederal Clean AirAct (FCAA), 42
United States Code (USC), §§7401 etseq.; and THSC, Chapter382, SubchapterH, Vehicle Emissions

I

### Programs in Certain Counties, which authorize the commission to adopt an Inspection and Maintenance
program for participating Early Action Compact counties. The amendment is adopted pursuantto Texas Transportation Code, §548.3075, which was amended by House Bill715 from the 8lstTexas Legislature,
2009.

The adopted amendment implements Texas Transportation Code, §548.3075.



### §114.2. Inspection and Maintenance Definitions.

Unless specifically defmed in Texas Healthand Safety Code, Chapter 382, also known as the
Texas Clean Air Act(TCAA), orin the rules ofthe commission, the terms used by the commission have
the meanings commonly ascribed to them in the field ofair pollution control. In addition to the terms that

are defmed bythe TCAA, the following words and terms, when used in SubchapterC ofthis chapter (relating to Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and
Accelerated Vehicle Retirement Program; and Early Action Compact Counties), havethe following meanings, unless the contextclearly indicates otherwise.

(I) Acceleration simulation mode (ASM-2)test-Anemissions test using a dynamometer (a set ofrollers on which a test vehicle's tires rest)that applies an increasing load orresistance tothe drive
train ofa vehicle,thereby simulating actual tailpipe emissions ofa vehicle as it is moving and accelerating.
The ASM-2 vehicle emissions test is comprised oftwo phases:



## 2

### (A) the 50/15 mode--in which the vehicle is tested on the dynamometer simulating
the use of50% ofthe vehicle available horsepowerto accelerate ata rate of3.3 miles perhour(mph) per
second at a constant speed of

### IS mph; and

(B)

### the 25125 mode-in which the vehicle is tested on the dynamometer simulating
the use of25% ofthe vehicle available horsepower to accelerate ata rate 3.3 mphper second at a constant speed of25 mph.

(2) Consumerprice index-The consumerprice index for any calendar year is the average ofthe consumerprice index for all-urban consumers publishedby the Department ofLabor, as ofthe close
ofthe 12-monthperiod ending on August 31 ofthe calendar year.

(3) Controller area network (CAN}-A vehicle manufacturer's communications protocol
thatconnects to the various electronic modules in a vehicle. CAN provides one protocol that collects
information from the vehicle's electronic systems includingthe on-board diagnostics (OBD) emissions testing system. TheUnited States Environmental Protection Agency requiresthe CANprotocol to be
installed in OBD-compliant vehicles beginning with somemodel year 2003 vehicles andphasing in to all OBD-compliant vehicles by the 2008 model year.

(4) Low-volume emissions inspection station--A vehicle emissions inspection station that

meets all criteria for obtaining a low-volume waiver from the Texas Department ofPublic Safety.



## 3

### (5) Motorist--A person orother entity responsible for the inspection, repair, and
maintenance ofa motor vehicle, which may include, but is not limited to, owners and lessees.

(6) On-board diagnostic (OBD) system--The computer system installed in a vehicle by the
manufacturerthat monitors the performance ofthe vehicle emissions control equipment, fuel metering system, and ignition system for thepurpose ofdetecting malfunction ordeterioration in performance that
would be expected to cause the vehicle notto meet emissions standards. All references to OBD should be interpreted to mean the second generation ofthis equipment, sometimes referred to as OBD II.

(7) On-road test--Utilization ofremote sensingtechnology to identiJY vehicles operating
within the inspection and maintenance program areas that have a high probability ofbeing high-emitters.

(8) Out-of-cycle test-Required emissions test not associated with vehicle safety inspection testingcycle.

(9) Primarily operated-Use ofa motor vehicle greaterthan 60 calendardays pertesting cycle in an affected county. Motorists shall comply with emissions requirements for such counties. It

### is presumed that a vehicle is primarily operated in the county in which it is registered.

(I

### 0) Program area-County or counties in which the Texas Department ofPublic Safety, in
coordination with the commission, administers the vehicle emissions inspection and maintenance program contained in the Texas Inspection and Maintenance State Implementation Plan. These program areas include:


## 4

### {A) the Dallas-Fort Worth program area, consistingofthe following counties: Collin, Dallas, Denton, and Tarrant;

(B) 

### the El Paso program area, consistingofEI Paso County;

{C) the Houston-Galveston-Brazoria program area, consisting ofBrazoria, Fort Bend, Galveston, Harris, and Montgomery Counties; and

{D) the extended Dallas-Fort Worth program area, consisting ofEllis, Johnson, Kaufman, Parker, and Rockwall Counties. These counties became part ofthe program area as ofMay I,
2003.

(II) Retests--Successive vehicle emissions inspections following the failing ofan initial

testby a vehicle during a single testing cycle.

(12) Testing cycle-Annual cycle commencing withthe first safety inspection certificate expiration date for which a motorvehicle is subjectto a vehicle emissions inspection.

(13) Two-speed idle (TSI) il'lspection and maintenance test-A measurement ofthe tailpipe
exhaust emissions ofa vehicle while the vehicle idles, first at a lower speed and then again at a higher speed.



## 5

### (14) Uncommon part--A partthat takes more than 30 days for expected delivery and installation, where a motorist can provethat a reasonable attemptmade to locate necessary emission
control parts 

### by retail orwholesale part suppliers will exceedthe remaining time priorto expiration ofthe
vehicle safety inspection certificate orthe 30-day period following an out-of-cycle inspection.



## 6

### SUBCHAPTER C: VEHICLE INSPECTIONAND MAINTENANCE; LOW INCOME VEHICLE
REPAIRASSISTANCE, RETROFIT,AND ACCELERATED VEIDCLERETIREMENT PROGRAM; AND EARLYACTION COMPACT COUNTIES
DIVISION 1: VEHICLE INSPECTION AND MAINTENANCE §114.51

STATUTORY AUTHORITY
The amendment is adopted under Texas WaterCode (TWC), §5.102, General Powers, TWC, §5.103, Rules, andTWC, §5.105, General Policy, which provide the commission withthe general powers to carry
out its duties and authorize the commissionto adopt rules necessary to carry out its powers and duties
underthe TWC; and TWC, §5.013, General Jurisdiction ofCommission, whkh states the commission's authority overvarious statutory programs. The amendment 

### is also adopted under Texas Health and Safety
Code (THSC), §382.oJ7, Rules, which authorizes the commission to adopt rules consistent withthe policy
and purposes ofTHSC, Chapter 382 (the Texas CleanAir Act), and to adoptrules that differentiate among particularconditions, particular sources, and particular areas ofthe state. The amendment is also adopted
underTHSC, §382.002,Policy and Purpose, which establishes the commission's purpose to safeguard the
state's airresources, consistent with the protection ofpublic health, general welfare, and physical property; THSC, §382.oJ I, General Powers and Duties, which authorizes the commission to control the quality of
the state's air; THSC, §382.012, State Air Control Plan, which authorizesthe commission toprepare and develop a**genera~** 

### comprehensive plan for the control ofthe state's air; THSC, §382.019, Methods Used to
Control and Reduce Emissions From LandVehicles, which provides the commission the authority to adopt
rules to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commissionthe authority by rule to establish,


## 7

### implement, and administer a program requiring emissions-related inspections ofmotorvehicles to be performed at inspection facilities consistent with the requirements ofFederal Clean Air Act, 42 United
States Code, §§7401 etseq.; and THSC, Chapter 382, Subchapter H, Vehicle Emissions Programs in
Certain Counties, which authorize the commission to adopt an Inspection and Maintenance program for participating Early Action Compact counties. The amendment to §114.51 is adopted pursuantto THSC, §382.205.

The adopted amendment implements THSC, Subchapter G, §§382.201

- 382.220, Vehicle Emissions.



### §114.51. Equipment EvaluationProcedures for Vehicle Exhaust Gas

### Analyzers.

(a) Any manufacturer ordistributor ofvehicle testing equipment may apply to the executive
director ofthe commission or his appointee, for approval ofan exhaust gas analyzer or analyzer system for

use in the Texas Inspection and Maintenance (IIM) program administered by the Texas Department of
Public Safecy. Each manufacturer shall submit a formal certificateto the commission stating that any analyzer model sold orleased bythe manufacturer or its authorized representative and any model currently
in use in the 

## liMprogram will satisfy all design and performance criteria set forth in the mostrecent
version ofthe "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in theTexas Vehicle
Emissions Testing Program." Copies ofthis document are available at the commission's Central Office,
located at 12100 Park 35 Circle, Austin, Texas 78753 orat http:!!www.tceq.state.tx.us!assetslpublic!imp/ementation/air/ms/IM/txvehanlspecs.pdf. The manufacturer
shall also provide sufficientdocumentationto demonstrate conformance with these criteria including a



## 8

### complete description ofall hardware components, the results ofappropriate performance testing, and a point-by-point response to each specific requirement.



### (b) All equipment must be tested by an independenttest laboratory. The cost ofthe certification

must be absorbed by the manufacturer. The conformance demonstration must include, but is not limited

to:

(I)certification that equipment design and construction conform with the specifications
referenced in subsection (a) ofthis section;

(2) documentation ofsuccessful results from appropriate performance testing;

(3) evidence ofnecessary changes to internal computerprogramming, display format, and
data recording sequence;

(4) a commitment to fulfill all maintenance, repair, training, and otherservice requirements described in the specifications referenced in subsection (a) ofthis section. A copy ofthe
minimum warranty agreementto be offered tothe purchaserofan approved vehicle exhaust gas analyzer

must be included in the demonstration ofconformance; and

(5) documentation ofcommunication ability using protocol provided bythe commission or the commission Texas Information Management System (TIMS) contractor.



## 9

### (c) Ifa review ofthe demonstration ofconformance and all related supportmaterial indicates compliance with the criteria listed in subsections (a) and 

### (b) ofthis section, the executive directororhis appointee may issue a notice ofapproval tothe analyzermanufucturerthat endorses the use ofthe specified analyzer or analyzer system in the Texas liM

### program.

(d) The applicant shall comply with all special provisions and conditions specified by the
executive director orhis appointee in the notice ofapproval.

(e) Any manufacturer ordistributor that receives a notice ofapproval from the executive director

orthe executive director's appointee for vehicle emissions test equipment for use in the Texas liM

### program
may be subjectto appropriate enforcement action and penalties prescribed in the Texas Clean AirAct or the rules andregulations promulgated thereunder if:

(I) 

### any information included in the conformance demonstration as required in subsection 

### (b) ofthis section is misrepresented resulting in the purchase oroperation ofequipment in the Texas liM


### program that does not meetthe specifications referenced in subsection (a) ofthis section;

(2)the applicant fails to comply with any requirement orcommitment specified in the
notice ofapproval issued bythe executive director orimplied by the representations submittedby the applicant in the conformance demonstration required by subsection 

### (b) ofthis section;

(3) the manufacturer ordistributor fails to provide on-site service response by a qualified repairtechnician within two business days ofa request from an inspection station, excluding Sundays,


### 10

### national holidays (New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, ThanksgivingDay, and Christmas Day), and otherdays
when a purchaser's business might be closed;

(4) the manufacturer or distributor fails to fulfill, on a continuing basis, the requirements
described in this section or in the specifications referenced in subsection (a) ofthis section; or

(5) the manufacturer fails to provide analyzer software updates within six months of request and fails to install analyzer updates within 90 days ofcommissionwritten notice ofacceptance.



### 11

### SUBCHAPTERC: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEIDCLE
REP AmASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLYACTION COMPACT COUNTIES
DIVISION 1: VEIDCLE INSPECTION AND MAINTENANCE 

## §114.52

STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code (TWC), §5.I02, General Powers, TWC, §5.I03, Rules, and TWC, §5.I05, General Policy, which provide the commission with the general powers to carry out its
duties and authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.013, General Jurisdiction ofCommission, which states the commission's authority

over various statutoryprograms. Therepeal is also adopted under Texas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofTHSC, Chapter 382 (the Texas Clean Air Act), and 

### to adoptrules that differentiate among particular conditions, particular sources, and particularareas ofthe state. Therepeal is also adopted under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air

resources, consistent with the protection ofpublic health, general welfare, and physical property; THSC, §382.01 I, General Powers and Duties, which authorizes the commission

### to control the quality ofthe state's air; THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC, §382.019, Methods Used to Control
and Reduce Emissions From Land Vehicles, which provides the commission the authorityto adopt rules 

### to
control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, whichprovides the commission the authority by rule to establish, implement, and


## 12

### administer a program requiring emissions-related inspections ofmotorvehicles to be performed at inspection facilities consistent with the requirements ofFederal Clean AirAct, 42 United States Code, §§7401 etseq.; 

### and 1HSC, Chapter 382, Subchapter H, Vehicle Emissions Programs in Certain Counties,
which authorize the commission to adopt an Inspection and Maintenance program for participating Early
Action Compact counties. The repeal of§114.52 is adopted pursuantto 1HSC, §382.216.

The adopted repeal implements 1HSC, Subchapter G, §§382.201

- 382.220, Vehicle Emissions.



### §114.52. Early Participation Incentive Program.



## 13

### SUBCHAPTER C: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOMEVEHICLE
REP AIR ASSISTANCE, RETROFIT, AND ACCELERATEDVEHICLE RETIREMENT

. PROGRAM; AND EARLYACTION COMPACT COUNTIES
DIVISION 2: LOW INCOME VEHICLE REPAIRASSISTANCE, RETROFIT,AND
ACCELERATED VEHICLE RETIREMENT PROGRAM 

### §114.64

STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.1 02, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provide the commission with the general powers to carry
out its duties and authorize the commission to adoptrules necessaryto carry outits powers and duties
under the TWC; and TWC, §5.013, General Jurisdiction ofCommission, which states the commission's authority over various statutory programs. The amendment is also adopted under Texas Health and Safety
Code (THSC), §382.017, Rules, which authorizes the commission to adoptrules consistent with the policy
and purposes ofTHSC, Chapter 382 (the Texas Clean Air Act), and to adoptrules that differentiate among particular conditions, particular sources, and particular areas ofthe state. The amendment is also adopted
under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the
state's airresources, consistent with the protection ofpublic health, general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of
the state's air; THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authorityto adopt
rules to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382,


## 14

### SubchapterG, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections ofmotorvehicles to be performed at inspection facilities consistent with the requirements ofFederal Clean Air Act, 42 United
States Code, §§7401 

## etseq.; and TIISC, Chapter 382, Subchapter H, Vehicle Emissions Programs in
Certain Counties, which authorize the commission to adopt an Inspection and Maintenance program for participating Early Action Compact counties. The amendment is adopted pursuant to TIISC, §382.210
which was amended by House Bi111796 from the 8lstTexas Legislature, 2009.

The adopted amendment implements

# rnsc, §382.210.



### §114.64. LJRAP Requirements.

(a) hnplementation. Upon receivinga written requestto implement a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) by a county commissioners
court, the executive director shall authorize the implementation ofa LIRAP in the requesting county. The
executive director and county shall enterinto a grant contract for the implementation ofthe LIRAP.

(I) The grant contract must provide conditions, requirements, and projected funding
allowances for the implementation oftheLIRAP.

(2) A participating county may contract withan entity approved 

### by the executive director
for services**neces~ary** 

### to implementtheL!RAP. A participating county or its designated entity shall
demonstrate to the executive directorthat, at a minimum, the county or its designated entity has provided


## IS

### for appropriate measures for determining applicant eligibility and repair effectiveness and ensuring against
fraud.

(3) The participating county shall remain the contracted entity even ifthe county contracts
with another county or anotherentity approved by the executive directorto administer the LIRAP.

(b) Repair and retrofit assistance. A LIRAP must provide for monetary orother compensatory
assistance to eligible vehicle owners for repairs directly related to bringingcertain vehicles that have failed

a required emissions test into compliance with emissions requirements orfor installing retrofit equipment

on vehicles thathave failed a required emissions test, ifpractically and economically feasible, in lieu ofor in combination with repairs performed to bring a vehicle into compliance with emissions requirements.
Vehicles underthe LIRAP mustbe repaired orretrofitted at a recognized emissions repair facility. To
determine eligibility, the participating county orits designated entity shall make applications available for
LIRAP participants. The application, at a minimum, must require the vehicle ownerto demonstrate that:

(I)the vehicle has failed a vehicle emissionstestwithin 30 days ofapplication submittal;

(2) the vehicle can be driven under its own powerto the emissions inspection station or vehicle retirement facility;

(3) the vehicle is currently registered in and has been registered in the program count)' for
the 12 months immediately precedingthe application for assistance;



## 16

### (4) the vehicle has passed the safety portion ofthe Texas Department ofPublic Safety (DPS) motorvehicle safety and emissions inspection as recorded in the Vehicle Inspection Report (VIR),

orprovide assurance that actions will be taken to bring the vehicle into compliance with safety requirements;

(5) the vehicle owner's net family income is at orbelow 300% ofthe federal poverty level;
and

(6) any otherrequirements ofthe participating county orthe executive director are met.

(c) Accelerated vehicle retirement. A LIRAP must provide monetwy orother compensatory
assistance to eligible vehicle owners to be used toward the purchase ofa replacement vehicle.

(I) 

### To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP participants. The application, ata minirnwn, must require the vehicle

ownerto demonstrate that:

(A) the vehicle meets the requirements under subsection (b)(!)- 

### (3) and (5) ofthis section;



### (B) 

### the vehicle has passed a DPS motorvehicle safety orsafety and emissions inspection within 15 months priorto application submittal; and



## 17

### (C) any otherrequirements ofthe participating county orthe executive director are

met.

(2) Eligible vehicle owners ofpre-1996 model yearvehicles that pass the required United
States Environmental Protection Agency (EPA) Start-Up Acceleration SimulationMode (ASM) standards
emissions test, but would have failed the EPA Final ASM standards emissions test, or some othercriteria
detennined by the commission, may be eligible for accelerated vehicle retirement and replacement compensation underthis section.

(3) Notwithstandingthe vehicle requirementprovided under subsection (b)(!)ofthis section, an eligible vehicle owner ofa vehicle that is gasoline powered and is atleast I0 years old as detennined from the current calendaryear (i.e., 20I0 minus I0 years equals 2000) and meets the requirements under subsection (b)(2), (3), and (5) ofthis section, may be eligible for accelerated vehicle
retirement and compensation.

(4) Replacementvehicles must:

(A)be in a class orcategory ofvehicles that has been certified to meetfederal Tier 2, Bin 5 orcleaner Bin certification under 40 Code ofFederal Regulations §86.1811-04, as published in
the February I0, 2000, FederalRegister (65 FR 6698);

(B) 

### have a gross vehicle weight rating ofless than I0,000 pounds;



## 18

### (C) be a vehicle, the total cost ofwhich does not exceed $25,000; and

(D) have passed a DPS motor vehicle safety inspection or safety and emissions inspection within the 15-monthperiod before the application is submitted.

(d) Compensation. The participating county shall determine eligibility and approve or denythe application promptly. Ifthe requirements ofsubsection (b) or (c) ofthis section are met and based on available funding, the county shall authorize monetary orother compensations to the eligible vehicle

owner.

(1) Compensations must be:

(A) no more than $600 and no less than $30per vehicle to be used for emissionrelated repairs orretrofits performed at recognized emissions repair facilities, including diagnostics tests performed on the vehicle; or

(B) 

### based on vehicle type and modelyear ofa replacementvehicle forthe
accelerated retirement ofa vehicle meetingtherequirements underthis subsection. Only one retirement compensation canbe used toward one replacementvehicle annually per applicant. The maximum amount
toward a replacementvehicle must not exceed:

(i) 

### $3,000 for a replacement car ofthe current model year or previous
three model years, except as provided by clause (iii) ofthis subparagraph;


## 19

### (ii) $3,000 for a replacementtruck ofthe current model year orthe previoustwo model years, except as providedby clause (iii) ofthis subparagraph;



### (iii) $3,500 for a replacement hybrid vehicle ofthe currentmodel year or the previous modelyear.

(2) Vehicle owners shall 

## be responsible for payingthe first $30 ofemission-related repairs

or retrofit costs that may include diagnostics tests performed on the vehicle.

(3) For accelerated vehicle retirement, provided thatthe compensation levels inparagraph (1)(8) ofthis subsection are met and minimum eligibility requirements under subsection (c) ofthis section

are met, a participating county may set a specific level ofcompensation orimplement a level of compensation schedulethat allows flexibility. The following criteria may beused for determining the

amount offinancial assistance:

(A) model yearofthe vehicle;

(B) milesregistered onthe vehicle's odometer;

(C) fair market value ofthe vehicle;



## 20

### (D) 

### estimated cost ofemission-related repairs necessary to bringtbe vehicle into compliance witb emission standards;



### (E) amount ofmoney tbe vehicle owner has already spentto bringtbe vehicle into compliance, excluding the cost oftbe vehicle emissions inspection; and



### (F) vehicle owner's income.

(e) Reimbursement for repairs and retrofits. A participating county shall reimburse tbe appropriate recognized emissions repair facility for approved repairs andretrofits within 30 calendar days ofreceiving

an invoice tbat meets tbe requirements oftbecounty or designated entity. Repaired orretrofitted vehicles

mustpass a DPS safety and emissions inspection before tbe recognized emissions repair facility is
reimbursed. 

### Intbe eventtbat tbe vehicle does not pass tbe emissions retest after diagnosed repairs are perfonned, tbe participatingcounty has tbe discretion, on a case-by-case basis, to make payment for diagnosed emissions repair workperfonned.



### (f) Reimbursements for replacements. A participating county shall ensure tbat funds are transferred to a participatingautomobile dealership no latertban I0 business days after tbe county receives proofoftbe sale, proofoftransferto a dismantler, and any administrative documents tbat meettbe requirements oftbe county ordesignated entity. A list ofall administrative documents must be included in
tbe agreements tbat are entered into bytbe county or designated entity and tbe participating automobile dealerships.



## 21

### (I) A participating county shall provide an electronic means for distributing replacement
funds to a participating automobile dealership once all program criteria have been met. The replacement
funds may be used as a down paymenttoward the purchase ofa replacement vehicle. Participating
automobile dealers shall be located in tbe State ofTexas. Participation in tbe LIRAP by an automobile
dealer is voluntary.

(2) Participating counties shall develop a document for confirming a person's eligibility for purchasing a replacement vehicle and for tracking such purchase.

(A) The document must include at a minimum, tbe full name ofapplicant, tbe
vehicle identification number oftberetired vehicle, expiration date oftbe document, tbe program administrator's contact information, and tbe amount ofmoney available tothe participating vehicle owner.

(B) The document must be presented to a participating dealer bytbeperson seeking to purchase a replacement vehicle before entering into negotiations for a replacementvehicle.

(C) 

### A participating dealer who relies on the document issued by tbe participating county has no dutyto confirm tbe eligibility oftbepersonpurchasing a replacementvehicle in tbe manner provided by tbis section.



# 22

### DocketNo. 2009-1610-RUL
On November 18, 2010, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamendments to 30 TAC §§ 114.2, 114.51, and 114.64; and the repeal of §114.52. The amendments relate to the Texas Inspection and Maintenance 

### (liM) state implementation plan (SIP) concerning the requirements for low-volume vehicle emissions inspection stations and the vehicle emissions inspection analyzer specifications. The Commission adopts the proposed rule changes, which will implement House Bill 715 from the 8lst Texas Legislature, 2009, Regular Session, relating to requiring lowvolume vehicle emissions inspection stations to meet the criteria for a low-volume waiver established by the TexasDepartment ofPublic Safety. The adopted rulerevision will also streamlinetheprocess for implementing minor non-programmatic modifications to the vehicle emissions inspection 

## analyzer specifications and**includ~** 

### various non-substantive changes to apply appropriste and consistent use of acronyms, section references,**struc~.** 

### formatting, 

### and certain terminology. Finally, the adopted repeal of§ 114.52 removes all requirements relating to the Early Participation Incentive Program (EPIP), which has expired, and deletes· the EPIP requirements 

## thll! were incorporated into the 

## liM SIP in the preamble of previous rulemakings adopted on October 24, 2001, October 8, 2003, and September 14, 2004. Under Tex. Health & Safety Code 

## Ann. §§ 382.011, 382.oJ2, and 382.023 (Vernon 2008), the Commission has the authority to control the quality ofthe state's 

## air and to issue orders consistent withthe policies and purposes ofthe Texas CleanAir Act, Chapter 382 ofthe Tex. Health & Safety Code. The proposed rules were published for comment in the July 2, 2010, issue of the 

## Texas Register (35 TexReg 5718).
Pursuant 

### to 40 Code of Federal Regulations § 5

## 1.102 and after proper notice, the Commission conducted public hearings 

### to consider the proposed amendments 

### to 30 TAC Chapter 114. Proper notice includedprominent advertisement in the areas 

## affected atleast 30 days priorto the da!es ofthe hearings. Public hearings were held in FortWorth on July 20, 2010 at the TCEQ, Region 4 Office, DFW PublicMeeting Room, 2309 Gravel Road; in Austin on July 21, 2010, attheTCEQ, BuildingE, Room 20JS, 12100 Park 35 Circle; and in Houston on July 22, 2010, at the Houston-Galveston Area 

### Council, Conference Room A, 3555 Timmons Lane. A question and answer session was held 30 minutes prior 

### to each hearing. The hearings were not officially opened because no party indicated a desire to give comment.
The Commission circulated hearing notices of its intended action to the public, including interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public 

## was invited to submit data, views, and recommendations on the proposed amendments to 30 TAC Chapter 114, either orally or in writing, at the hearings or during the comment period. Prior to the scheduled hearings, copies oftheproposed amendments to 30TAC Chapter 114 were available for public inspection at the Commission's central office and onthe Commission'sWeb site. Data, views, and recommendations ofinterested persons regarding the proposed amendmentsto 30TAC Chapter 114 were submitted to the Commission during the comment period and. were considered by the Commission as reflected in the analysis oftestimony incorporated by reference to this Order. The Commission finds thatthe analysis oftestimony includes the names ofall interested groups or associations offering comment on the proposed amendments to 30 TAC Chapter 114 and theirposition concerning the same.

### IT IS THEREFORE ORDERED BY THE COMMISSION that the rules and revision to the SIP incorporated by reference to this Order are hereby adopted

.. The Commission further authorizes staffto make any non-substantive revisions to the rules necessary to comply with Texas Register requirements. The adopted rules and the preamble 

### to the adopted rules and the revision to the SIP are incorporated 

### by reference in this Order as ifset forth at length verbatim in this Order.
IT IS FURTHERORDERED BY THE COMMISSION that on behalfofthe Commission, the Chairman should transmit a copy ofthis Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator ofEPA as a proposed revision 

### to the Texas SIP pursuant to theFederal Clean AirAct, codified at

. 42 U.S. Code 

## Ann. §§ 7401- 767lq, as amended.
lbis Order constitutes the Order ofthe Commission required by the Administrative Procedure Act, Gov'tCode,§ 2001.033 (Vernon 2008). If

### any portion ofthis Order is for any reason held

### to be invalid by a court ofcompetentjurisdiction, the invalidity of

## anyportion shall not affectthe validity oftheremainingportions.

Dateissued: 

# NOV 

# 2 22010 TEXAS COMMISSION ON ENVIRONMENTAL QUALITYmission the authority to adopt les and establish fees for the transportation and disposal of solid waste; Texas HeaHh and Safety Code, §361.022, which rovides the state's public policy for preferred methods for gene sting, treating, storing, and disposing of municipal sludge as euse; Texas**Hea~h** and Safety Code, §361.024, which provid s the commission with authority to adopt rules consistent with he chapter and establish**min~** mum standards of operation fa the management and control of solid waste; Texas Health an Safety Code, §361.061, which provides the commission the thority to issue permits for the construction, operation, and ma ntenance ofsolid waste facilities that store, process, or dispose f solid waste; and Texas Health and Safety Code, §361.121, ich provides that a permit is required for the land application Class B sewage sludge, that a fee shall be charged for the is ance of a permit, and that the commission shall adopt rules require an applicant to submit certain infonnation with a perm application, including information relating to commercialliabil 

### y insurance and environmental impairment insurance. The adopted amendment imple ents Texas Health and Safety Code, §361.121. This agency herebycertifies lh by legal counsel and found to b legal authority. headoption has been reviewed a valid exercise ofthe agency's

Filed with the Office of the Seer tary of Stale on November 23, 2010. TRD-201006704 Robert Martinez Director, Environmental Law Oivisio Texas Commission on Envtronmen I Quality Effective date: December 13, 2010 Proposal publication date: June 18, 10 For further information, ptease call: 512) 239-6090 

# • • CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES The Texas Commission on Environmental Quality (TCEQ or commission) adopts the amendments to §§ 114.2, 114.51, and 114.64; and the repeal of §114.52. Section 114.64 is adopted with change to the proposed text as published in the July 2, 2010, issue of the Texas Register (35 TexReg 5718) and will be republished. Sections 114.2 and 114.51 and the repeal of §114.52 are adopted without change and the text will not be republished. The adopted amendments to §114.2 and §114.51 and the repeal of §114.52 will be submitted to the**Un~ed** States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). Section 114.64 is not included in the SIP and the amendment to §114.64 will not be submitted to the EPA. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES A rulemaking adopted by the commission on October 6, 2000, revised an air pollution control strategy involving emissions inspection of vehicles 

### to reduce**n~rogen** oxides (NO,) and volatile organic compounds (VOC) necessary for the counties included in the Dallas-Fort Worth (DFW), Houston-Galvastan-Brazoria (HGB), and El Paso (ELP) ozone nonattainment areas in order to assist In the ability to demonstrate attainment with the one-hour ozone National Ambient Air Quality Standard (NAAQS). The commission adopted vehicle emissions testing analyzer specifications (TAS} and inspection requirements for acceleration simulation mode (ASM) and·on-board diagnostics (OBD) inspections. The revised vehicle emissions inspection program, also known as the Inspection and Maintenance (liM) program, began on May 1, 2002, In Collin, Dallas, Denton, and Tarrant Counties in the DFW area and Hanis County in the HGB area. On May 1, 2003, the 1/M program expanded to include Ellis, Johnson, Kaufman, Parker, and Rockwall Counties for the DFW area and Brazoria, Fort Bend, Galveston, and Montgomery Counties in the HGB area. Unlike the two-speed idle {TSI) vehicle emissions inspection that had been in place, the ASM inspection has the ability 

### to detect NO, emissions, while the OBD inspection has the abiltty 

### to ensure vehicle emissions control systems are functioning as designed by verification through the vehicle's computer system. Because NOx is a precursor to ground-level ozone formation, reduced NO, and VOC emissions result in ground-level ozone reductions. In addition, the inclusion of OBD in the 1/M program ensured compliance with afederal mandate requiring all1996 and newer model-year vehicles to receive an OBD inspection. On October 24, 2001, the commission adopted rules that implemented portions of House Bill (HB) 2134, 77th Texas Legislature, 2001. The adopted rules defined the term "low-volume emissions inspection station" and required all vehicle emissions inspection stations in the DFW and HGB areas 

### to offer both ASM and OBD inspections to the public**w~h** the exception of low-volume emissions inspection stations. The adopted rules also revised the TAS and established the Early Participation Incentive Program (EPIP). The low-volume emissions inspection station designation was established because the cost of ASM vehicle emissions inspection analyzers, which have the capability 

### to inspect all vehicles required to undergo 1/M inspections, is.much higherthan the cost of OBD-only vehicle inspection analyzers, which only have the**capabil~y** to inspect 1996 and newer model-year vehicles. To ensure that an adequate number of vehide emissions inspection stations were available to provide both ASM and OBD inspections at the start ofthe revised 1/M program in the DFW and HGB areas, stations that voluntarily opted to 

### be designated as a low-volume emissions inspection station by the Texas Departmentof Public Safety (DPS), the agency that implements the 1/M program along with the TCEQ, were restricted to a maximum of 1.200 OBD inspections per calendar year. The EPIP was established as an additional method to ensure that an adequate number of vehicle emissions inspection stations were available to provide both ASM and OBD inspections at the start ofthe revised 1/M program in the DFW and HGB areas. The EPIP encouraged**ea~y** purchases of ASM analyzers by providing vehicle emissions inspection stations with financial assurance offered bythe stale ffthe 1/M program was terminated early. The EPIP was available 

### to the first 1,000 eligible**veh~** cle emissions inspection stations that were certified by the DPS to offer ASM and OBD inspections to the public. Vehicle emissions inspection station ownersthatwere accepted into the EPIP and maintained their eligibility could have received a paymentof up to $675 per month to cover the cost of the ASM analyzers if the 1/M program was terminated**w~hin** five years ofthe program start date. As the EPIP expired in aiii/M program areas on



## ADOPTED RULES December 10, 2010 35 TexReg 10985May 1, 2008, vehicle emissions inspection stations owners are no longer participating In the program. On October 26, 2005, the commission adopted revisions to §114.51, which required manufacturers of vehicle emissions inspection analyzers used in the 1/M program 

### to meet the revised requirements contained in the TCEQ's "Specifications forVehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program," dated May 1, 2005, or in the TCEQ's "Specifications for On-Board Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program," dated May 1, 2005. Since October 2005, theTAS have been modified fourtimes to improve oversight and enhance effectiveness ofthe liM program. The minor modifications did not affect the vehicle emissions inspection procedure or the design and perfonnance criteria for the vehicle emissions inspection analyZer. However, the minor modifications did include updates to accommodate new technology vehicles, enhancements to the method of collecting inspection data that is used to identify the occurrence of possible improper or fraudulent inspections, and updates to internal reference tables used to determine the applicable vehicle emissions inspection criteria. No modification will be considered a minor non-programmatic modification if it results in additional costs to vehicle inspection station owners. Each time 

### the TAS were modified, staff incorporated the necessary software enhancements into a draft version of the TAS, and these enhancements were implemented on all analyzers by the analyzer manufacturers participating in the 1/M program. The modified TAS have not been incorporated by rule. Rules adopted by the commission on March 27, 2002, implemented the Low Income Vehicle RepairAssistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), which was designed 

### to assist low income individuals with repairs, retrofits, or retirement ofvehicles that failed emissions inspections as required by HB 2134, 77th Texas Legislature, 2001. Under the LIRAP, monetary assistance is provided for emissions-related repairs directly related 

### to bringing the vehicle into compliance or for replacement assistance for a vehicle that has failed the required emissions inspection. Due to the requirements of Senate Bill (SB) 12, 80th Texas Legislature, 2007, the commission adopted rules on December 5, 2007, that modified the LIRAP, now commonly referred to as the Drive a Clean Machine program, by requiring funds be transferred to a participating dealer not later than five business days afterthe sale 

### of a replacement vehicle is completed. The primary reason for this adopted rulemaking is to implement portions 

### of HB 715 and HB 1796 from the 81st Texas Legislature, 2009, relating to requiring the vehicle emissions inspection limit for low-volume emissions inspection stations to 

### be set at no fewer than 150 OBD inspections per month and increasing the maximum time that counties have 

### to reimburse dealerships participating in the LIRAP from five to 10 business days, respectively. This adopted rulemaking also defines the TAS as "the most recent version" resulting in a more streamlined process for minor non-programmatic modificationsto theTAS and allow staff to implement minor non-programmatic modifications including updates to accommodate new technology vehicles, enhancements

### to the method ofcollecting inspection data, and updates to internal reference tables. However, modifications to the 1/M program design, perfonnance criteria for the vehicle emissions inspection analyzer, or the vehicle emissions inspection procedure will not be implemented unless commission approval is received through the rule and SIP revision process. In addition, the adopted rulemaking removes the "Specifications for On-Board Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program" and its corresponding references 

### to remove redundant requirements and also repeals the EPIP. The EPIP was established as an incentive program and is not a control strategy measure of the liM program. In addition, the EPIP expired on May 1, 2008. Therefore, removal of the EPIP will not change the stringency or effectiveness of the 1/M program. SECTION BY SECTION DISCUSSION In addition to the adopted amendments associated with the rulemaking for Chapter 114, various stylistic, non-substantive changes are included to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use ofacronyms, sectivn references, rule structure, and certain tenninology.**The~t-:** changes are non-substantive and generally are not**specificai~y** discussed in this preamble. The adopted amendment to §114.2 modifies the definition of a low-volume emissions inspection station. The current definition states that "a low-volume emissions inspection station is a vehicle emissions inspection station that performs only the 080 test and does not exceed 1,200 OBD tests per calendar year." The modified definition states that "a low-volume inspection station is a vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiverfrom the Texas Department of Public Safely." HB 715 prevents the DPS from restricting a vehicle emissions inspection station to fewer than 150 08D inspections per month. This adopted amendment ensuresthatthe definition for a low-volume emissions inspection station contained in §114.2 does not conflict with the low-volume waiver criteria for inspection stations listed in the DPS rules (37 TAG §23.95) and meets the requirements 

### of HB 715. The adopted amendment to §114.51 removes the dates associated with theTAS and adds language requiring analyzer manufacturers to meet the requirements contained in the "most recent version" of the TAS resulting in a more streamlined process for implementing minor non-programmatic modifications to theTAS. The most recent version of theTAS will be the version available at the TCEQ's central office or at http:/lwww.tceq.state.tx.uslassetslpublic/imp/ementationlair/ms/IM/txvehantspecs.pdf. In addition, the adopted amendment removes the '"Specifications for On-Board Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program" and its corresponding references as the specifications for OBD-only vehicle inspection analyzers arealso contained in the "SpecificationsforVehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program." The adopted repeal of §114.52 removes all requirements relating 

### to the EPIP, which has expired, and deletesthe EPIP requirements that were Incorporated into the liM SIP in the preamble of previous rulemakings adopted on October 24, 2001, October 8, 2003, and September 14, 2004. The adopted amendment 

### to §114.64 increases the maximum time that counties have to reimburse dealerships participating in the LIRAP from five to 10 business days as mandated by HB 1796. This section is being adopted with a minor non-substantive punctuation change 

### to subsection (d)(1)(B) made since the rulemaking was proposed. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION



## 35 TexReg 10986 December 10, 2010 Texas RegisterThe commission reviewed the adopted rulemaking in light ofthe regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the adopted rule revisions do not meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environ· mental rule"" is. "a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that mayadversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector of the state." Furthermore, while the adopted rulemaking does not constitute a major environmental rule, even if it did, 

### a regulatory impact analysis is not required because the adopted rulemaking does not meet any of the four applicability 

### criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies only to a major environmental rule, which: "(1) exceeds a standard set by federal law, unless the rule is specifically required by state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds 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) adopts a rule solely under the general powers ofthe agency instead of under a specific state law." The adopted rulemaking implements requiremenls of the Federal Clean AirAct (FCAA). Under42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or reductions in order to meet the standard, state SIPs must include "enforceable emission limitations and other control measures, means or techniques (induding economic incentives such as fees, marketable permils, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriateto meetthe applicable requiremenls ofthis chapter," (meaning 42 USC, Chapter85, Air Pollution Prevention and Control, otherwise known as the FCAA). The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropri· ate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best meth

### ods for attaining 

### 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 meels the requiramenls of42 USC, §7410. States are not free to ignore the requiremenls of 42 USC, §7410 and must develop programs and control measures to assure that their SIPs provide for implementation, attainment, maintenance, and enfoncement 

### of the NAAQS wdhin the state. Furthermore, while states generally are afforded some flexibility in adopting and implementing a SIP, vehicle liM programs are required elemenls of the SIP pursuant to 42 USC, §7511(a). The specific intent of the adopted rulemaking is to clarify, improve upon, and increase consistency within the 

### 1/M program and the LIRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating certain expired provisions. To further this specific intent, this rulemaking incorporates the following adopted amendmenls to the liM program. The current deflnition 

### ofa low-volume emissions inspection station in §114.2 states that "a low-volume emissions inspection station is a ve-- hicle emissions inspection station that performs only the OBD test and does not exceed 1,200 OBD tesls per calendar year." The adopted amendment to §114.2 modifies the current definition to state that "a low-volume emissions inspection station is a vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiver from the Texas Department of Public Safety." HB 715 prevents the DPS from restricting a vehicle emissions inspeclion station 

### to fewer than 150 OBD inspeclions per month. The adopted amendment ensures that the definition for a low-volume emissions inspection station contained in §114.2 does not conflict wnh the low-volume waiver**crite~a** for inspection stations listed in the DPS rules (37 TAC §23.95) and meet the requirements of HB 715. The adopted amendment to §114.64 increases the maximum time that counties have to re-- imburse dealerships participating in the LIRAP from five to 10 business days as mandated by HB 1796. The adopted amendment to §114.51 removes the dates associated with theTAS and add language requiring analyzer manufacturers to meet the requirements contained in the "most recent version" 

### of the TAS and remove the "Specifications for On-Board Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program" and ils corresponding references. The adopted amendment will improve the efficiency 

### of the process used by the commission for implementing minor non-programmatic modifications to the TAS and remove redundant requiremenls. The adopted repeal of §114.52 repeals all requiremenls relating to the EPIP, which has expired. The adopted rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because: 1)the specific intent ofthe adopted rule revision is not to protect the environment or reduce risks to human health from environmental exposure, but rather 

### to clarify, improve upon, and increase consistency wilhin the liM program and the LIRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating ceriain expired provisions; and 2) the adopted rulemaking does notadversely affect in a material way the economy, a sector ofthe economy, productivity, competition, orjobs, nor do the adopted rule revisions adversely affect in a material way the environment, orthe public health and safety 

### ofthe state ora sector ofthe state because the adopted rulemaking actually clarifies, improves upon, and increases consistency within the liM program and tha LIRAP. Because the adopted rulemaking is not a major environmental rule, it is not subject to a regulatory impact analysis underTexas Government Code, §2001.0225. While the adopted rulemaking does not constnute a major environmental law, even 

### ff 

# ndid, it Is not subject to a regulatory impact analysis under Texas Government Code, §2001.0225. The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by SB 633 during the 75th Texas Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program; or are adopted solely underthe general powers oftheTCEQ. With the understanding thatthis 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 pest, it is not anticipated thatthe bill will have significantfiscal implicationsforthe 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 setforth in the bill that exempted rulesfrom



## ADOPTEDRULES December 10, 2010 35 TexReg 10987the full analysis unless the rule was a major environmental rule that exceeds a federal law. The FCAAdoes notalways require specific programs, methods, or reductions in order to meet 

### the NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meetthe attainment deadlines. Because of the ongoing need to address nonattainment issues and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature is presumed to understand this federal scheme. If each rule proposed for indusion In the SIP and rules was considered to be a major environmental rule that exceeds federal law, then every revision to the SIP and rules would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its costestimate and by the Legislative Budget Board (LBB) in 1ts fiscal notes. S1nce the legislature is presumed to understand the fiscal impacts of the bills**~** passes and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP and rules have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons rules adopted for inclusion in the SIPfall underthe exception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistently applied this construction to its rules since this statule was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially unamended. It is presumed that, "when an agency**interpreta~on** 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 cunam opmton respecbng another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. waterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).**T~e** comr:nission's _interpretation of the regulatory impact analysis requ1rements IS elsa supported by a change made to the Texas Administrative Procedure 

### Act (APA) by the legislature in 1999. In an attempt to limit the number 

### of rule challenges based upon APA requirements, the legislature clarified that state agenCieS are reqwred to meet these sections of the APA against the standard of**"substant~al** compliance,• Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225. Even ifthe adopted rulemaking constituted a major environmental rule under Texas Government Code, §2001.0225(g)(3), a**~gu_latory** impact**analy~is_** is**~at** required because this exemption IS part 

### of the commiSSIOns SIP for making progress toward the attainment and maintenance of the NAAOS. Therefore the adopted rule revisions do not exceed a standard set by federal law or exceed an express requirement of state law since they are part of an overall regulatory scheme designed to meet, not exceed the relevant standard set by federal law

- the NAAOS. In addition, the adoption and maintenance ofthe liM program is directly required by federal law pursuant to 42 USC, §7511(a). The commission is charged with protecting air qualitywithin the state and to design and submit a plan to achieve attainment and maintenance ofthe federally mandated NAAOS. The Third District Court 

### of Appeals upheld this interpretation in Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W. 3d 728 (Tex. App.

- Austin 2004, no writ). In addition, portions of thiS rulemaking are directly required by HB 715 and HB 1796. Furthermore, no contract or delegation agreement covers the topic that is the subject ofthis rulemaking. Finally, this rulemaking was not developed solely under the general powers of the TCEQ but is authorized by specific sections**ofTexa~ Hea~h**  and Safety Code (THSC), Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code (TWC), which are c1ted 1n the STATUTORY AUTHORITY section ofthis preamble including THSC, §§382.011, 382.D12, and 382.017. ' T_his rulemaking is not subject to the regulatory analysis proviSions of Texas Government Code, §2001.0225(b), for the following reasons. The adopted rulemaking is not a major environmental law because: 1) the specific intent of the adopted rulemaking IS not to protect the environment or reduce risks to human health from environmental exposure, but rather to clarify, 1mprove upon, and increase consistency within the liM program and the LIRAP by implementing HB 715 and HB 1796, streamhnmg the programs, and eliminating certain expired provisions;· and 2) the adopted rulemaking does not adversely affect in a**~ate**rial**w~¥** the economy, a sector of the economy, productivIty, competition, orjobs, nor does 

### it adversely affect in a material way the environment, or the public health and safety ofthe state or a sector of the state, because the adopted rulemaking actually darifies, improves upon, and increases consistency within the liM program and the LIRAP. Furthermore, even ifthe adopted rulemaking was a majorenvironmental rule, 

### itdoes not meet any ofthe four applicability criteria listed in Texas Government Code §2001.0225 because: 1) the adopted rulemaking is pari of

### th~ SIP, and as such is designed to meet, not exceed the relevant standard set by federal law; 2) parts ofthe adopted rulemaking are dorectiy requ1red by state law; 3) no contract or delegation agreement covers the topicthat is the subject ofthis rulemaking; or 4) the adopted rulemaking IS authorized by specific sections ofTHSC, Chapter 382 (also known as the Texas Clean Air

### Act) and the TWC, which are cited in the STATUTORY AUTHORITY section ofthis preamble. The cor:nmission invited public comment regarding the draft regula!ory 1mpact analysis determination duringthe public comment penod, and no comments were received. TAKINGS IMPACT ASSESSMENT The commission evaluated the adopted rule revisions and performed an analysis of whether the adopted rule revisions constitute ataking underTexas Government Code, Chapter 2007. The commission's assessment indicates Texas Government Code Chapter 2007 does not apply. ' Under Texas Government Code, §2007.002(5), taking means: "(A) a goyernmental action that affects private real property, in whol.e or 1n part or temporarily or permanenUy, in a manner that requ1res the governmental enttty to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Ar

## 35 TexReg 10988 December 10, 2010 Texas Registerlicle I, Texas Constitution; or (B) a govemmental action that: (i} affects an owner's private real property that is the subject of the govemmantal action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence ofthe governmental action: and (ii) is the producing cause ofa reduction ofat least 25% in tha mar1<et value of the affacted privata real property, determined by comparing the mar1<at value of the property as ifthe governmental action is not in effectand the marketvalue ofthe property determined as 

### ifthe govemmental action is in effect." The specific purpose of the adopted rulemaking is to clarify, improve upon, and increase consistency within the liM program and the LIRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating certain expired provisions. Therefore, the adopted rulemaking substantially advances this stated purpose by: modifying the current definition of a**low-vo~** ume emissions inspection station to state that "a low-volume emissions inspection station is a vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiver from the Texas Department of Public Safety"; ensuring that the definition for a low-volume emissions inspection station contained in §114.2 does not conflict with the low-volume waiver criteria for inspection stations listed in the DPS rules (37 TAC §23.95) and meet the requirements of HB 715; increasing the maximum time that counties have to reimburse dealerships participating in the LIRAP from five to 10 business days as mandated by HB 1796; removing the dates associated with the TAS and adding language requiring analyzer manufacturers to meet the requirements contained in the "most recent version" of the TAS and removing the 'Specifications for On-Board Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program" and its corresponding references;**stream~** lining the process used by the commission for implementing minor**non~programmatic** modifications to the TAS; removing redundant requirements; and deleting all requirements relating 

### to the EPIP, which has expired. Promulgation and enforcement of the adopted rule revisions is neithera statutory nora constitutional taking of private real property. These adopted rule revisions are not burdensome, restrictive, or limiting of rights to private real property because the adopted rule revisions simply clarify, improve upon, and increase consistency within the existing liM program and the LIRAP. Furthermore, the adopted rule revisions benefit the public by improving upon the liM program and the LIRAP, making them more accessible to the public and subsequently improving their effectiveness. The adopted rule revisions do not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limit the ownar's right to property, nor does It reduce the value ofany private real proparty by 25% or more beyond that which would otherwise exist in the absence ofthe regulations. Therefore, these adopted rule revisions do not constitute a taking under Texas Govemment Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission reviewed the adopted rulemaking and found that the adoption is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 

### at seq., and therefore must be consistant with all applicable CMP goals and policies. The commission conducted a consistency**determlna~** tion for the adopted rule revisions in accordance with Coastal Coordination 

### Act Implementation Rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies. The CMP goals applicable 

### to the adopted rulemaking are 

### to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. No new sources of air**con~** taminants are authorized and ozone levels will 

### be reduced as a resutt of the adopted rulemaking. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations in the Code of Federal Regulations to protect and enhance air quality in the coastal areas (3t TAC §501 .32). This adopted rulemaking will not have a detrimental effect on SIP emissions reduction obligations relating to**main~** terrance of the ozone NMOS by continuing 

### to implement the existing OBD, ASM, and TSI vehicle inspections as a part ofthe liM program. This rulemaking action complies with the Code of Federal Regulations. Therefore, in compliance with 31 TAC §505.22(e}, this rulemaking action is consistent with CMP goals and policies. Promulgation and enforcement of these adopted rule revisions will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rule revisions are consistent with these CMP goals and policies and because these adopted rule revisions do not create or have a direct or significant adverse effect on any coastal natural resource areas. The commission invited public**commen~** regarding the**consis~** tency with the CMP during the public comment period and no comments were received. PUBLIC COMMENT Public hearings were offered in Fort Worth on July 20, 2010, at 2:00 p.m. at the TCEQ, Region 4 Office, DFW Public Meeting Room, 2309 Gravel Road; in Austin on July 21, 2010, at 10:00 a.m. attheTCEQ, Building E, Room201 S, 12100 Park35 Circle; and in Houston on July 22, 2010, at 3:00 p.m. at the HoustonGalveston Area Council, Conference Room A, 3555 Timmons Lane. No oral comments were received. The comment period opened on June 18, 2010, and closed on July 26, 2010. One wrttten comment was received from the EPA. RESPONSE TO COMMENTS The EPA expressad support for the proposed revisions to the rule and the liMSIP and expressed continued support for the liM program and the LIRAP. The commission appreciates the support for the proposed revisions to the rule and liM SIP, the liM program, and the LIRAP. No changes were made to the rule based on this comment. 

## SUBCHAPTERA. 

## DEFINITIONS 30 TAC §114.2 STATUTORY AUTHORITY The amendment is adopted under Texas Water Code (TWC), §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5.1 05, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various statutory programs. The amendment is also adopted underTexas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofTHSC, Chapter 382 (the Texas Clean



## ADOPTEDRULES December 10, 1010 35 TexReg 10989Air Act), and 

### to adopt rules that differentiate among particular conditions, particular sources, and particular areas of the state. The amendment is also adopted underTHSC, §382.002, 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, General Powers and Duties, which authorizes the commission to control the quality of the slate's air; THSC, §382.012, Slate Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe slate's air; THSC, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to adopt rules 

### to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections 

### of motor vehides to be performed at inspection facilities consistent with the requirements of Federal Clean Air Act (FCAA), 42 Unijed Slates Code (USC), §§7401 

### et seq.; and THSC, Chapter382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission to adopt an Inspection and Maintenance program for participating Early Action Compact counties. The amendment is adopted pursuant to Texas Transportation Code, §548.3075, which was amended by House Bill 715 from the 81st Texas Legislature, 2009. The adopted amendment implements Texas Transportation Code, §548.3075. This agencyherebycertifiesthattheadoption has been reviewed 

### by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secrelary of Slate on November 23, 2010. TRD-201006712 Robert Martinez Director, Environmental Law Dtvision Texas Commission on Environmental Quality EffectiVe date: December 13, 2010 Proposal publication date: July 2, 2010 For further information, please call: (512) 239-2548 

# • • • SUBCHAPTER C. VEIDCLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT COUNTIES DIVISION I. 

## VEHICLE INSPECTION AND MAINTENANCE 30 TAC §114.51 STATUTORY AUTHORITY The amendment is adopted under Texas Water Code (TWC), §5.1 02, General Power,;, TWC, §5.1 03, Rules, and TWC, §5.105, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to adopt rules necessary to carryout its J'Owers and duties under the TWC; and TWC, §5.013, General Jurisdiction 

### of Commission, which states the commission's authority over various statutory programs. The amendment is also adopted underTexas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofTHSC, Chapter 382 (the Texas Clean Air Act), and to adopt rules that differentiate among particular conditions, particular sources, and particular areas of the state. The amendment is also adopted underTHSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general**we~are,** and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission 

### to control the quality of the state's air; THSC, §382.012, 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, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to adopt rules to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to eslablish, implement, and administer a program requiring emissions-related inspections of motor vehicles to be perfonned at inspection facilities consistent with the requirements of Federal Clean Air Act, 42 United States Code, §§7401 

### etseq.; and THSC, Chapter 382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission to adopt an Inspection and Maintenance program for participating Early Action Compact counties. The amendment to §114.51 is adopted pursuant 

### to THSC, §382.205. The adopted amendment implements THSC, Subchapter G, §§382.201

- 382.220, Vehicle Emissions. This agencyherebycertifiesthatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of Slate on November 23, 2010. TRD-201006713 Robert Martinez Director, Environmental Law DiVision Texas Commission on Environmentel Quality Effective date: December 13, 2010 Proposal publication date: July 2, 2010 For further information, please call: (512) 239-2548 

# • 30 TAC §114.52 STATUTORY AUTHORITY 

# • •

The repeal is adopted underTexas Water Code (TWC), §5.102, General Powers, TWC, §5.1 03, Rules, and TWC, §5.1 05, General Policy, which providethe commission with the general powers to carry out its duties and authorize the commission to adopt rules necessary to carry out 

### Its powers and duties under the TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various statutory



## 35 Tex:Reg 10990 December 10, 2010 Texas Registerprograms. The repeal is also adopted under Texas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission 

### to adopt rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to adopt rules that differentiate among particular conditions, partic

### ular sources, and particular areas ofthe state. The repeal is also adopted underTHSC, §382.002, 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, General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to adopt rules to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehide Emissions, which 

### provides the commission the authority by rule to establish, implement, and administer a program requiring emissions·related inspections 

### of motor vehicles to 

### be performed at inspection facilities consistent with the requirements of Federal Clean Air Act, 42 United States Code, §§7401 elseq.; and THSC, Chapter 382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission 

### to adopt an Inspection and Maintenance program for participating Early Action Compact counties. The repeal of §114.52 is adopted pursuant to THSC, §382.216. The adopted repeal implements THSC, Subchapter G, §§382.201

- 382.220, Vehicle Emissions. 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 of

### the Secretary of State on November 23, 2010. TRD-201 006714 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: December 13, 2010 Proposal publication date: July 2, 2010 For further Information, please call: (512) 239-2548 

# • • • DIVISION 2. LOWINCOMEVEIDCLEREPAIR ASSISTANCE,RETROFIT, ANDACCELERATED VEHICLE RETIREMENT PROGRAM 30 TAC §114.64 STATUTORY AUTHORITY The amendment is adopted under Texas Water Code (TWC), §5.102, General Powers, TWC, §5.103, Rules, and TWC, §5.105, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to adopt rules necessary to carry out 

### its powers and duties under the TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various statutory programs. The amendment is also adopted underTexas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofTHSC, Chapter 382 (the Texas Clean Air Act), and to adopt rules that differentiate among particular conditions, particular sources, and particular areas 

### ofthe state. The amendment is also adopted underTHSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public**hea~h.** general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; THSC §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which pre>- vides the commission the authority

### to adopt rules 

### to control and reduce emissions from engines used to propel land vehicles; THSC, Chapter 382, Subchapter G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and administer a program requiring emissions-related inspections of motor vehicles to 

### be performed at inspection facilities consistent with the requirements of Federal Clean Air Act, 42 United States Code, §§7401 el seq.; and THSC, Chapter 382, Subchapter H, Vehicle Emissions Programs in Certain Counties, which authorize the commission to adopt an Inspection and Maintenance program for participating Early Action Compact counties. The amendment is adopted pursuant to THSC, §382.210 which was amended by House Bill 1796 from the 81st Texas Legislature, 2009. The adopted amendment implements THSC, §382.210. §114.64. lJRAPRequ;n?ments. (a) Implementation. Upon receiving a written request to 

### implementaLowIncome Vehicle RepairAssistance, Retrofit. andAccelerated Vehicle Retirement Program (LIRAP) by acounty commissioners court, the executive director shall authorize the implementation of aLIRAP in the requesting county. The executive director and county shall enter into agrant contract for the implementation ofthe LIRAP. (1) The 

### grant contract mwt provide conditions, requirements, andprojected funding allowances for the implementation ofthe 

### LIRAP. (2) A participating county may contract with an entity approved by the executive director for services necessary to implement the LIRAP. Aparticipating county or its designated entity shall demonstrate to the executive director that, at a minimum, the county or its designated entity has provided for appropriate measures for determining applicant eligibility and repair effectiveness and ensuring against fraud. (3) Theparticipatingcountyshallremainthe contracted entity even ifthe county contracts with another county or another entity approved by the executive directorto administer the LIRAP. (b) Repair and retrofit assistance. A LIRAP must provide for monetary or other compensatory assistance to eligible vehicle owners forrepairs directly relatedtobringingcertain vehicles thathave failed a requiredemissions testintocompliancewithemissionsrequirements or for installingretrofit equipment on vehicles that have failed arequired emissions test, ifpractically 

### and economically feasible, in lieu ofor 

### in combination with repairs performed to bring avehicle into compliance with emissions requirements. Vehicles under the URAP must be repaired or retrofitted at arecognized emissions repair facility. To determine eligibility, theparticipatingcounty or

### its designatedentity shall make applications available for LIRAP participants. The application, at aminimum, must require the vehicle owner to demonstrate that:



## ADOPTEDRULES December 10, 2010 35 TexReg 10991(1) thevehiclehas failed a vehicle emissionstestwithin 30 days ofapplication submittal; (2) the vehicle can be driven under its own power to the emissions inspection station orvehicle retirement facility; (3) the vehicleis currentlyregistered in and has been**regis~** tered inthe program county for the 12 months immediatelypreceding 

### the application for assistance; (4) the vehicle has passed the safety portion ofthe Texas DepartmentofPublic Safety (DPS) motorvehicle safetyand emissions inspection as recorded in the Vehicle Inspection Report (VIR), orprovide assurance that actions will be taken to bringthe vehicle into compliance with safety requirements; (5) the vehicle owner's net family income is at or below 300% ofthe federal poverty level; and (6) any other requirements of the participating county or the executive director are met. (c) Accelemted vehicle retirement. A LIRAP must provide monetary or other compensatory assistance to eligible vehicle owners to be used toward the purchase ofa replacement vehicle. (1) To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP**partici~** pants. The application, at a minimum, must require the vehicle owner to demonstrate that: (A) the vehicle meets the requirements under**subsec~** tion (b)(l) • (3) and (5) oftbis section; (B) the vehicle has passed a DPS motor vehicle safety or safety and emissions inspection within 15 months priorto application submittal; and (C) any other requirements ofthe participating county or the executive director are met. (2) Eligible vehicle owners of pre-1996 model yeai vehicles that pass the required United States Environmental Protection Agency (EPA) Start-Up Acceleration Simulation Mode (ASM) standards emissions test. but would have failed the EPA Final ASM standards emissions test, or some other criteria detennineii by the commission, may be eligible for accelerated vehicle retirement and replacement compensation under this section. (3) Notwithstanding the vehicle requirement provided under subsection (b)(1) ofthis section, an eligible vehicle ownerofa vehicle that is**g~JSQiine** poweredandis at least 10 years oldas determined from the currentcalendaryear (i.e., 2010 minus 10 years equals 2000) and meets therequirements undersubsection (b)(2), (3), and (5)ofthis section, may be eligible for accelerated vehicle retirement and compensation. (4) Replacement vehicles must: (A) be in a class or category ofvehicles that has been certified to meetfederal Tier 2, Bin 5 or cleanerBincertificationunder 40 Code ofFcderal Regulations §86.1811-04, as published inthe February 10, 2000,FederalRegister (65 FR 6698); (B) have a gross vehicle weight rating of less than 10,000 pounds; (C) be avehicle, the total costofwhichdoes notexceed $25,000; and(D) have passed a DPS motor vehicle safety inspection or safety and emissions inspection within the 15-monthperiod before the application is submitted. (d) Compensation. The participating county shall detennine eligibility and approve or deny the application promptly. If the requirements ofsubsection (b) or (c) ofthis section are met andbased on available funding, the county shall authorize monetary or other compensations to the eligible vehicle owner. (I) Compensations must be: (A) no morethan $600 and no lessthan $30 per vehicle to be used for**emission~related** repairs or retrofits performed at recognized emissions repair facilities, including diagnostics tests performed on the vehicle; or (B) based on vehicle type and model year ofa replacement vehicle forthe acceleratedretirement ofa vehicle meetingtherequirements under this subsection. Only one retirement**com~!lS8tion** can be used toward one replacement vehicle annual1y per ap-plicant. The maximum amounttoward a replacement vehicle must not exceed: (l) $3,000fora replacementcarofthecurrentmodel yearor previous three model years, except as provided 

### by clause (iii) ofthis subparagraph; (ii) $3,000 for a replacement truck of the current model year or the previous two model years, except as provided by clause (iii) ofthis subparagraph; (iii) $3,500 for a replacement hybrid vehicle ofthe current model year orthe previous model year. (2) Vehicle owners sball be responsible for paying the first $30 ofemission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle. (3) For accelerated vehicle retirement, provided that the compensationlevels inparagraph (1)(B) ofthis subsection are met and minimum eligibiJity requirements under subsection (c) ofthis section aremet, aparticipatingcountymay seta specific levelofcompensation or implement a level ofcompensation schedule that allows fiexibility. The following criteria may be used for detennining the amount offinancial assistance: (A) model yearofthe vehicle; (B) miles registered onthe vehicle's odometer; (C) fair market value ofthe vehicle; (D) estimated cost of emission-related repairs necessary to bring the vehicle into compliance with emission standards; (E) amount of money the vehicle owner has already spent to bring the vehicle into compliance, excluding the cost ofthe vehicle emissions inspection; and (F) vehicle owner's income. (e) Reimbursement for repairs and retrofits. A panicipating county shall reimburse the appropriaterecognizedemissions repair facility for approved repairs and retrofits within 30 calendar days ofreceiving aninvoice that meets the requirements ofthe county ordesignated entity. Repaired or retrofitted vehicles must pass a DPS safety and emissions inspection before the recognized emissions repair facility is reimbursed. In the event 

### that the vehicle does not pass the emissions retest after diagnosed repairs are performed, the participatingcountyhas thediscretion, onacase-by-casebWiiS, tomakepayment for diagnosed emissions repair workperformed. (f) Reimbursements for replacements. A participating county shall ensure that funds are transferred to a participating automobile dealershipnolaterthan 10businessdaysafterthecountyreceivesproof ofthesale,proofoftransfcrtoadismantler, and anyadministrative doc

## 35 TexReg 10992 December 10, 2010 Texas Registeruments that meet the requirements ofthe county or designated entity. A list ofall administrative documents must be included in the agreements 

### that are entered into by the county or designated entity and the participating automobile dealerships. (I) A participating county shall provide an electronic means for distributingreplacement funds to aparticipating automobile dealership once all program criteria have been met. The replacement funds may be used as a down payment toward the purchase of a replacement vehicle. Participating automobile dealers shull be located in the State ofTeus. Participation in the LIRAP by an automobile dealer is voluntary. (2) Participating counties shall develop a document for confinning a person's eligibility for purchasing a replacement vehicle and for tnu:k.ing such purchase. (A) The document mustinclude at a minimum, the full narne ofapplicant, the vehicleidentificationnumberoftheretiredvehicle, expirntion date ofthe document, the program administrator's contactinformation, andtheamountof moneyavailabletotheparticipating vehicle owner. (B) The document must bepresented to a participating dealerby the person seeking to purchase a replacement vehicle before entering into negotiations for a replacement vehicle. (C) A participating dealer who relies on the document issuedby theparticipatingcountyhas no duty to confirm the eligibility ofthe personpurchasing a replacementvehicle in themannerprovided by this section. This agency herebycertifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary of State on November 

### 23, 2010. TRD-201 006715 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: December 13, 2010 Proposal publication date: July 2, 2010 For further information, please call: (512) 239-2548 

# • TITLE 37. PUBLICS TIONS 

# • FETY AND CORREC
## PART 5. TEXAS B ARD OF PARDONS AND PAROLES CHAPTER 145. PARO SUBCHAPTERA. 

## LEPROCESS 37 TAC 

### §145.14 The Texas Board of Pardons an Paroles adopts amendments to 

### 37 TAC 

### §145.14, concerning ction upon review; release to mandatory supervision. The am ndments are adopted without changes to the proposed text as ublished**i~** the $eptember

### 24, 2010, issue 

### ofthe Texas Registe 

### (35 TexReg 

### 8716). The text of the rule will not 

### be republished. The amended rule is adopted to clarify the legal time frame duringwhich the TDCJ-Parole Divis nshall providewritten notice to an eligible offenderoffuture con ideration for release to mandatory supervision under 

### §508.14 , Government Code, in order to provide an offender the opportu ity to submit information to the voting panel. No public comments were recei ed regarding adoption ofthese amendments. The amended rule is adopted der 

### §§508.0441, 508.045 and 

### 508.149, Government Code. ctions 

### 508.0441 and 

### 508.045 authorize the Board to adopt easonable rules as proper or necessary relating to the eligi lity of an offender for release to mandatory supervision and act on matters of release to mandatory supervision. Sectio 

### 508.149 provides authority for the discretionary release ofoffe ers on mandatory supervision. This agency hereby certifies that he adoption hasbeen reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority. Filed with the Office of the Seer tary of State on November 

### 22, 2010. TRD-201006702 Bettie Wells General Counsel Texas Board of Pardons and Parol Effective date: December 12, 2010 Proposal publication date: Septem Forfurther information, pleasecall: 

# • PART 11. TEXAS ENILE PROBATION COMM SSION CHAPTER 343. SEC JUVENILE PRE-ADJUDICATION D TENTION AND POST-ADJUDICATION ORRECTIONAL FACILITIES SUBCHAPTER B. 

## PRE ADJUDICATION AND POST-ADJUDICATION STANDARDS 37 TAC §343.249 The Texas Juvenile Probatio Commission (TJPC) adopts amendments to 

### §343.249, con eming internal security within pre-adjudication and post-adjudi ation secure facility standards. These amendments are adopt without changes to the proposed text as published in the ugust 

### 13, 2010, issue of the Texas Register

### (35 TexReg 

### 700 ) and will not be republished. TJPC adopts these amendmen in an effort to further ensure juveniles and staffwithin secure cilities are protected from the accidental or intentional introdu ·on offirearms into the secure portion ofthe facility. Adult corre tionalfacilities have similar prohibitions againstthe presence of 1rearms within secure facilities. No public comment was receiv during the official public comment period.



## ADOPTEDRULES December 10, 2010 35 TexReg 10993