Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

Mark R. Vickery, P.G., Executive Director 100EC28 P~1 3:3"1 

TEXAS CoMMISSION ON ENVIRONMENTAL QuALITY 

Protecting Texas by Reducing and Preventing Pollution 

December 22, 20 1 0 

Dr. Alfredo. "Al" Armendariz, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Dr. Armendariz: 

· Docket No. 2009-1613-S 

Project No. 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 of acronyms, 

section references, structure, formatting, and certain terminology. 

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

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

Sincerely, 

BWS/jmm 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Toby Baker, Office ofBudget, Planning and Policy, Office of the 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 Internet address: www.tceq.state.tx.us 
Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

'• ' 

':._; 

~ 

.,, -~ t'' -~ . 1:·_ '.,~--

'· 

Mark R. Vickery, P.G., Executive Director 7\l\G o·:c 28 PH z, 5\ 

TEXAS COMMISSION ON ENVIRONMENTAL QVAtrW s:~tt 

11 ~1!1". I" I -1: ' D,. ·l·l i'):~ c ""· .) t: 

Protecting Texas by Reducing and PrevenNng Pollution 

December 22, 20 I 0 

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 of acronyms, 

section references, structure, formatting, and certain terminology. 

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

hearings, and the accompanying orders. 1 look forward to your expeditious approval of these SIP revisions. 

Sincerely, 

BWS/jmm 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Toby Baker, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Mark R. 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 

Docket No. 2009-1613-SIP, 2009-1610-RUL 

This is to certify that the attached are ttue and correct copies of docwnents for revisions to the Texas 

State Implementation Plan, adopted on November 18, 2010, pursuant to 40 Code of Federal Regulations § 

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

Quality (Commission). 
Texas Commission on Environmental Quality 

Public Hearings 

July 20, 21, 22, 2010 

Concerning Revisions to 30 TAC Chapter 114 

Control of Air Pollution from Motor Vehicles 

HB 715: Vehicle Emissions Testing Limit and 

Enrissions Testing Analyzer Specifications 

Rule Project No. 2009-027-114-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held public hearings in Fort Worth 

on July 20, 2010; in Austin on July 21, 2010; and in Houston on July 22, 2010, to receive testimony 

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

revisions to the state implementation plan. 

The rulemaking implements House Bill (HB) 715 and HB 1796 from the 81St Texas Legislature, 2009, 

Regular Session, relating to requiring low-volume vehicle emissions inspection stations to meet the 

criteria for a low-volume waiver established by the Texas Department of Public Safety and increasing 

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 

implementing minor non-programmatic modifications to the vehicle emissions inspection analyzer 

specifications and repeals the Early Participation Incentive Program. 

The comment period closed on July 26, 2010. All testimony and comments have been reviewed and 

seriously considered. This hearing record contains a complete record of the public hearings and is 

divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations/Order 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 

Circle, Austin, Texas 78753. For further information, please contact Edgar Gilmore at (512) 239-

2069. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

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

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

Austin American-Statesman: June 18, 2010 

Fort Worth Star-Telegram: June 18,2010 

Houston Chronicle: June 18, 2010 

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

5718). 

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

TexReg 5967). 

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

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Austin, Mayor's Office 

City of Dallas, Department of Environmental and Health Services 

City of Dallas, Department of Aviation 

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 of Governments 

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 of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Tarrant County Judge 

Texas Department of Transportation 

Travis County Judge 

Victoria Metropolitan Planning Organization 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

United States Environmental Protection Agency 
Example of Newspaper Classified Ad 

Austin American-Statesman, June 18, 2010 

l

i PIJBUC HEARINo$ ON PROPOSED REVISIONS TO 3D TAC CHAPTER 114 ANC REVISIONS TO THE STATE 

IMPLEMENTATION PLAN The TtDall CommiSIIon on Envtronmensal Quality {TCEC or commiSSion) wRI conduct 

public hearingS 10 I'8C8iV8 IHtlmony regartling propelled amencrnants to 30 Texu Admlnls&raiWI Cc:de (TAC) 

Chlptlr 11ll, Control of Air Palb.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 of T-s Hllllh and Sllely ~. 382.017; 

T axaa Government Code, ChapW 2001, SUbchapter 8; and ~ Code of Federal 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!Ung to 

NQUtrtnD tow-wwme vetUda arnialione lnapeclion 1tatiDJW to mHI. the crlleria for a low.wlume wai'N alllbltlhad 

by 1nt TIPCBS Depertment of Pubic safety and i\craallng lhe mmc1mum lime allowec:l from rtve to len Cllyllhat 

counties wfl haYB to ntlmburle dealerlnips participating ln lhe LOw lnccme Vehicle Raplir Aatunce, RWoftt, and 

--• Vehicle RallnlmentAssls1ance ~ragnom, mpocttvoly. The propaMd ruler.-.g WOUld aloa .....,.,e , lha proceu for lmplemanUng ninor non-programmatic mDdl&cetion& 10 lhe V&hfcle emlulonllnspldlan analyDr' 

] speclncationaancl ~I tne Eady ParUclpalion lncentve Progr11m. (RIM ProJect Number 200N2'M14-EN) The 

propaoed SIP ...-n wautdlmptement HB 715 from lhe 81at T-Legilleture, 20119, Reg!Ar -· rotatod 10 ,· nsquitng low-YOiume vahlcle amisslonll~ atatkn to maar. lle criteria for a kM'-YDiurne waMr ISlabOih8d 

I 

by lho TUB& DeparlmMt of Pubic Safety. The propaoed '"""""" wwlcl aJsa .... mtlne lho """",..far implementing n*\or ngn..prograrrmatic modifications to 1he YBhicla emtssions lnapeclion anaJyar spedlcalons and 

II Include vartaus 1101HUbstantlve cllangos to apply appraprtats and cans~t use of 11C1<J011111, secttan retarancas, 

, SUUduro, - and - tsnntnalagy. (SIP Projact Number 2000.U0-81P-NR) The aammlutan will hald 

: publcheloings on lheoe prcpoeal& In For1 Wanh on July 20,2010, et2:00 p.m. et lheTCEQ, Region 4 Ofllce. 

Dalla&-!''"' Wal1h Public - Roam. 2309 Gravel -•· Fort Wal1h, TX 78118; in Aue1ln on July 21, 2010, 111 

! 10;00 a.m.lllhaTCEQ, Bulldilg E, Room201S, 12100 Park 35 Clrcle, AUslln, TX78753; and kl HouslDn on JWy 1 

J 22. 2010, at 3:00 p.m. at the Hol.eton- Gatvealon Ar8a Coundl, Conference Room A. 3555 Tlmmona u.ne. HouRJn, · 

I. I TX T7DZT. The hiBings era atruclUreCI for lhB raceipl of en I or written commenll by lnt8rested fJIIBDI1&. lnclvlduals i may- oral sta....,nts whan caled upcr1 In ardar of regts1ratlan. Open dtsaJssiOn will not bo l""mttted dul!ng 

l

l the heartngs; hoMMir. ccmrnission staff rnerntJm wRI be avatlabB to discusS the proposal 3D minutes prior &o lhe 

1 hearings. PerBma whD have spaCial commuricallon or other accommodallon needs who .are pJaming ID attend the 

I[ haallllgslhauldcontactOiartolleHom, a-ofl.J!glll Sorvlalsat (812)~ Req..-lhauldbomadoao 1 far tn acNanca aa poasltlt8. Wl1ltan c:orments may be eubmttlad tD Mlcl'lael Parrish, MC 205. ontca rl Legal" 

! Sarvtcas, Taxas cornriiukm on envtrcnrnardll Quality. P.O. Box 13087, Austin, iaxas 78711-SOB7, orlaxad ID •

1

. (512) 230-411011. E»Wonic aammonts moy bo IIIJbnljUecf 111 hltp:llwww5.tcaq.stata.tx. ushulol/acammenll/. Fie stzs 

ro1111ctlanB moy apply to aammonts being eullmltlBd""' 1ho oCamiiiBIIIB system. All comments ,-nng to lhe 

""-'dng &hautd ......... Rule PrDjeCl Number 2DOIMI27-114-EN. All aamments rolallng to the Sl~­

llhaUid l8leranco ~raject -r21J00.1135- SIP-NR. The cammont poriad ctaeaa July 26, 2010. Cqies of lhe 

prapORd rulamlklng tlll"' bt Obtllned from U'ta comrntsalan'l Web lila at http://WWW.tc8q.IUIIe.tx.LS' 

118WrulollpropoooJidapl.htmt. COplol ollho PfOPDOOd Sl~- .,. at!_.._ aen bl-lrom 1ho 

OCEC'e web attslll hUp:/twww.tcoq.atate.tx.~ta~hlml-Farfur1hlrtnlormltlan,­

;I contact Edgar J. -· 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 

TEXAS1 COfvfMJSSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

PUBLIC HEARINGS ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 

AND REVISIONS TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (TCEQ or commission) will conduct public hearings to 

receive testimony regarding proposed amendments to 30 Texas Adminis1rative Code (T AC) Chapter 114, 

Control of Air Pollution from Motor Vehicles, §§114.2, 114.51, and 114.64; the repeal of§ 114.52; and 

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

§382.017; Texas Government Code, Chapter 2001, Subchapter B; and40 Code ofFedeml Regulations 

§51.1 02 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemakingwould implement House Bill (HB) 715 and HB 1796 from the 8lst Texas 

Legislature,2009, Regular Session. relating to requiring low-volume vehicle emissions inspection 

stations to meet the criteria for a low-volume waiver established by the Texas Department of Public 

Safety and increasing the maximum time allowed from five to ten days that counties will have to 

reimburse dealerships participating in the Low Income Vehicle Repair Assistance, Retrofit, and 

Accelerated VehicJe Retirement Assistance Program, respectively. The proposed rulemaking would also 

streamline the process for implementing minor non-programmatic modifications to the vehicle emissions 

inspection analyzer specifications and repeal the EaJ:ly Participation Incentive Program. (Rule Project 

Number 2009-027-114-EN) 

The proposed SIP revision would implement HB 715 from the 8lst Texas Legislature, 2009, Regular 

Session, related to requiring low-volume vehicle emissions inspection stations to meet the criteria for a 

low-volume waiver established by the Texas Department of Public Safety. The proposed revision wo_uld 

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 of acronyms, section references, structure, formatting, and certain 

terminology. (SIP Project Number 2009-035-SIP-NR) 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • www.tceq.state.tx.us 

How is our customer service? www.tceq.state.tx.us/goto/customersurvey 

prialod"" ~ed-
The commission will hold public hearings on these proposals in Fort Worth on July 20,2010, at 2:00p.m. 

at the TCEQ, Region 4 Office, Dallas-Fort Worth Public Meeting Room, 2309 Gravel Road, Fort Worth, 

TX 76118; in Austin on July 21, 2010, at 10:00 a.m. at the TCEQ, Building E, Room 20IS, 12100 Park 

35 Circle, Austin, TX 78753; and in Houston on July 22,2010, at 3:00p.m. at the Houston-Galveston 

Area Council, Conference Room A, 3555 Timmons Lane, Houston, TX 77027. The hearings are 

structured for the receipt of oral or written comments by interested persons. Individuals may present oral 

Statements when called upon in order of registration. Open discussion will not be permitted during the 

hearings; however, commission staff members will be available to discuss the proposal30 minutes prior 

to the hearings. 

Persons who have special communication or other 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. 

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 faxed to (512) 

239-4808. Electronic comments may be submitted a1 http:/!www5.tceq.state.tx.us/ruleslecommentsl. 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-SIP-NR. The comment period 

closes July 26, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site 

at http:l!www.tceq.state.tx.uslnavlruleslpropose_adopt.html. Copies of the 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 

Edgar J. Gilmore, Jr., Air Quality Planning Section, (512) 239-2069. 
The TCEQ may grant a contested c hearing on the petition if a written hearing request is filed within 30 days after the newspaper publication of the notice. To request contested case hearing, you must 

submit the following: (1) your (or for a group or associatio~ an 

official representative). mailing ss, daytime phone number, and 

fax number, if any; (2) the name o e Petitioner and the TCEQ Internal Control Number; (3) the state ent "J/we request a contested case 

hearing"; (4) a brief description o ow you would be affected by the 

petition in a way not common to e general public; and (5) the location of your 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 

Office of the Chief Clerk at the ad ss provided in the information section below. The Executive Directo may approve the petition unless a 

written request for a contested case caring is filed within 30 days after 

the newspaper publication of this otice. If a 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. If a contested case 

hearing is held, it will be a legal ceeding similar to a civil trial in 

state district court. Written bearing quests should be submitted to the 

Office of the Chief Cleric, MC 105, CEQ, P.O. Box 13087, Austin, TX 

78711-3087. For information con ming the hearing process, please 

contact the Public Interest Counse MC 1 03, at the same address. For 

additional information, individual embers of the general public may 

contact the 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 I Quality 

Flied: June 23, 2010 

• • 

Notice of Public Hearings on Proposed Revisions to 30 TAC 

Chapter 114 and Revisions to the State Implementation Plan 

The Texas Commission on Environmental Quality (TCEQ or commission) will conduct public hearings to receive testimony regarding p~ 

posed amendments to 30 Texas Administrative Code (TAC) Chapter 

!14, Control of Air Pollution from Motor Vehicles, §§!14.2, !14.51, 

and 1 14.64; the repeal of §1 14.52; and revisions to the state implementation plan (SIP), under the requirements of Texas Health and Safety 

Code, §382.017; Texas Government Code, Chapter 2001, Subchapter 

B; and 40 Code of Federal Regulations §51.102 of the United States 

Enviroomental Protection 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, relating to requiring low-volume vehicle emissions inspection stations to 

meet the criteria for a low-volume waiver established by the Texas Department of Public 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 Retirement Assistance Program, respectively. 

1be proposed rulemaking would also streamline the process for implementing minor non-programmatic modifications to the vehicle emis--

sions inspection analyzer specifications and repeaJ the Early Participation Incentive Program. (Rule Project Number 2009-027-114-EN) 

The proposed SIP revision would implement HB 715 from the 8lst 

Texas Legislature, 2009, Regular Session, related to requiring low-vo1-

ume vehicle emissions inspection stations to meet the criteria for a lowvolume waiver established by the Texas Department of Public 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 consistent use of acronyms, 

section references, structure, formatting, and certain terminology. (SIP 

Project Number 2009-035-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-Fort Worth Public Meeting Room, 2309 Gravel Road, 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 of oral 

or written comments by interested persons. Individuals may present 

oral statements when called upon in order of registration. Open discussion will not be pennitted during the hearings; however, commission staff members will be available to discuss the proposal30 minutes 

prior to the hearings. 

Persons who have special communication or other accommodation 

needs who are planning to attend the bearings should contact Charlotte 

Hom, Office of Legal Services at (512) 239-0779. Requests should be 

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, 20 I 0. 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 

Edgar J. 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 of Public Hearing on 

Chapter 116 and Revisions to 

posed Revisions To 30 TA C 

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 of the 

United States Environmental P ction Agency (EPA) regulations 

concerning SIPs. 

IN ADDITION July 2, 2010 35 TexReg 5967 
ill). [fm] contains such other information or criteria 

that the department may specify include in the request for propoS· 

als. 

(k) - (I) (No change.) 

This agency hereby certifies tha the proposal has been reviewed 

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

Filed with the Office of the Seer ry of State on June 16, 2010. 

TRD·201 003407 

Usa Hernandez 

General Counsel 

Department of State Health Servl 

Earliest possible date of adoption: ugust 1 , 201 0 

For further information, please call: (512) 458·7111 x6972 

• • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 114. CONTROL OF AIR 

POLLUTION FROM MOTOR VEHICLES 

The Texas Commission on Environmental Quality (TCEQ or 

commission) proposes amendments to §§114.2, 114.51, and 

114.64; and the repeal of §114.52. 

If adopted, 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 §114.64 will not be submitted to the 

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 DFW area 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 pre35 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 DFW and HGB areas to offer both ASM 

and OBD inspections to the public with 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 because the cost of ASM vehicle emissions inspection analyzers, which have the capability to inspect all vehicles 

required to undergo liM inspections, is much higher than the cost 

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 of vehicle emissions inspection stations were available to provide both ASM and OBD inspections at the start of the revised liM 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 of Public Safety (DPS}, the agency that implements the 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 of the revised liM program in the DFW and HGB areas. The EPIP encouraged ear1y purchases of ASM analyzers 

by providing vehicle emissions inspection stations with financial 

assu ranee offered by the state if the liM program was terminated 

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 owners that were 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 of the program start date. As the 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 

the TCEQ's "Specifications for On-Board Diagnostics ll Analyzer 

for Use in the Texas Vehicle Emissions Testing Program," dated 

May 1, 2005. Since October 2005, theTAS have been modified 

four times to improve oversight and enhance effectiveness of the 

liM program. The minor modifications did not affect the vehicle 

emissions inspection procedure or the design and performance 

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 would be 

considered a minor non-programmatic modification if n 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 liM program. The 

modified TAS have not been incorporated by rule. 

Rules adopted by the commission on March 27, 2002, implemented the Low Income Vehicle Repair Assistance, Retrofit, and 

Accelerated Vehicle Retirement Program (LIRAP), which was 

designed to assist low income individuals with repairs, retrofrts, 

or retirement of vehicles 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 later than five business days after the sale of a replacement 

vehicle is completed. 

The primary reason for this proposed 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 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 staff to implement minor non-programmatic modifications including updates to accommodate new technology vehicles, enhancements to the method of collecting inspection data, 

and updates to internal reference tables. 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 "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 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 of the 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 of acronyms, 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 amendment to §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 waiver from 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. This proposed amendment would 

ensure that the definnion 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 tha DPS rules 

(37 TAG §23.95) and meet the 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 to the 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 days as 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 of the 

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 

PROPOSED RULES July 2, 2010 35 TexReg 5719 
Currently, 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 of the 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 order to 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 limit tor vehicle 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 meet the cmeria tor obtaining a low-volume waiver 

from the DPS. This change would ensure that the definition of a 

low-volume emissions inspection station would not conflict with 

the low-volume waiver criteria tor inspection stations listed in the 

DPS rules. 

The proposed rule revisions would be implemented by the TCEQ 

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 tor the TCEQ or the DPS 

as a result of the 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 the TCEQ but administered and implemented in the local areas by county program 

administrators. The TCEQ does not conduct any reimbursement 

activities to dealerships. Local govemments and 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 significant fiscal impacts on the TCEQ or affected 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 modifications to the TAS.In 

addftion, the rule revision would remove the "Specifications tor 

On-Board Diagnostics II Analyzer tor Use in the Texas Vehicle 

Emissions Testing Program" and fts corresponding references to 

remove redundant requirements. 

EPIP 

On October 24, 2001, the commission adopted rules tor the EPIP 

in §114.52. The EPIP was established to ensure that an adequate number of vehicle emissions inspection stations were 

available to provide ASM and OBD inspections at the start of the 

liM program tor the DFW and HGB areas. Vehicle emissions inspection station owners that were accepted into the EPIP and 

maintained their eligibility could receive a payment of up to $675 

per month to cover the cost of the ASM analyzer if the 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 impacts due 

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 due to the increase in the amount of inspections 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 of the 

increase or decrease expenenced by each type of station 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 improve the efficiency of payments to dealerships. 

Businesses and motorists would not experience any fiscal impacts due to the proposed rule revisions relating to theTAS. The 

proposed changes would only affect the way the TCEQ approves 

minor non-programmatic modifications to theTAS 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 of the 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 or administration of the 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 FLEXIBILITY ANALYSIS 

The commission has reviewed this proposed rulemaking and detenmined that a small business regulatory flexibility analysis 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 of the proposed rulemaking is 

procedural, and all of the proposed rule revisions are consistent 

with the public health, safety, environmental, and economic welfare 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 material way for the first five years that 

the proposed rule revisions are in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of the 

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 and that may adversely affect in a material way 

the economy, a sector of the economy, productivity, competition, 

jobs, the environment or the public health and safety of the state 

or a sector of the state." Furthenmore, while the proposed rulemaking does not constitute a major environmental rule, even if it 

did, a regulatory impact analysis would not be required because 

the proposed 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 of the agency 

instead of under a specific state law." 

The proposed rulemaking implements requirements of the 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 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, marl<etable penmits, and auctions of emissions rights), as 

well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this 

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 public to collaborate on the best methods for 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 provide for 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 of the 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 further this specific intent, this rulemaking incorporates the following proposed amendments to the 1/M program. The current 

definition of a low-volume emissions inspection station in §114.2 

states that "a low-volume emissions inspection station is a vehicle emissions inspection station that perfonms only the OBD test 

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-volume waiver from 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" of theTAS and remove the "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 

PROPOSED RULES July 2, 2010 35 TexReg 5721 
of the 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 of the proposed rule revision is not 

to protect the environment 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 Ll RAP by 

implementing HB 715 and HB 1796, streamlining the programs, 

and eliminating certain expired provisions; and 2) as discussed 

in the FISCAL NOTE, PUBLIC BENEFITS AND 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 sector of the economy, productivity, competition, or jobs, nor would the proposed rule revisions 

adversely affect in a material way the environment, or the 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. 

While the proposed rulemaking does not constitute a major environmental law, even if tt did, tt would not be 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 under the 

general powers of the 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 

that the bill will have significant fiscal implications for the agency 

due to tts limited application." The commission also noted that 

the number of rules that would require assessment under the 

provisions of the bill was not large. This conclusion was based, 

in part, on the criteria set forth in the bill that exempted rules from 

the full analysis unless the rule was a major environmental rule 

that exceeds a federal law. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the 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 by the Legislative Budget Board (LBB) in 

tts fiscal notes. Since the legislature is presumed to understand 

the fiscal impacts of the 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 greater than is necessary or appropriate 

to meet the requirements of the FCAA. For these reasons, rules 

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

Government Code, §2001.0225(a), because they are required 

by federal law. 

The commission has 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 attempt to limtt the number of rule challenges based 

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

standard of "substantial compliance," 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 impact analysis is not required because this exemption is part of the commission's SIP for making progress toward 

the attainment and maintenance of the NAAQS. Therefore, the 

proposed 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 NAAQS. 

In addition, the adoption and maintenance of the 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 of the 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 under the general powers of the 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 the 
STATUTORY 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 rather to clarify, 

improve upon, and increase consistency wit~in the liM program 

and the LIRAP by implementing HB 715 and HB 1796, streamlining the programs, and eliminating certain expired provisions; and 

2) the proposed rulemaking would not adversely affect in a material way the economy, a sector of the economy, 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 sector of the state, because the proposed rulemaking actually 

clarifies, improves upon, and increases consistency within the 

JIM program and the LIRAP. Furthennore, even if the proposed 

rulemaking was a major environmental rule, it does not meet any 

of the four applicability criteria listed in Texas Government Code, 

§2001.0225 because: 1) the proposed rulemaking is part of the 

SIP, and as such is designed to meet, not exceed the relevant 

standard set by federal law; 2) parts of the 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 of THSC, Chapter 382 (also known as the Texas Clean 

Air Act), and the TWC, which are cited in the STATUTORY AUTHORITY section of this preamble. 

The commission invites public comment regarding the draft regulatory impact analysis detennination during the public comment 

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 of whether 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 entity 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, Article I, Texas Consmution; or (8) a governmental action that: (i) 

affects an owner's private real property that is the subject of the 

governmental action, in whole or in part or temporarily or pennanenUy, in a manner that restricts or limits the owner's r1ght to the 

property that would otherwise exist in the absence of the governmental action; and (ii) is the producing cause of a reduction of at 

least 25% in the marl<et value of the affected private real property, detennined by comparing the marl<et value of the property 

as if the governmental action is not in effect and the mar!<et value 

of the property detennined as if the governmental action is in effect" 

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 conflict with 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" of theTAS and removing the "Specifications for 

On-Board Diagnostics II Analyzer for Use in the Texas Vehicle 

Emissions Testing Program" and its corresponding references; 

streamlining the process used by the commission for implementing minor non-programmatic modifications to 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 neither a statutory nor a constitutional taking of private 

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 benefit the public by improving upon the JIM program and the LIRAP, 

making them more accessible to the public and 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 limit the 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 of the regulations. Therefore, these proposed rule 

revisions would not constitute a taking under Texas 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 consistent with 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 comply with regulations in the Code of Federal 

Regulations to protect and enhance air quality in the coastal 

area (31 TAC §501.32). This rulemaking proposal would not 

have a detrimental effect on SIP emissions reduction obligations 

relating to maintenance of the ozone NAAQS by continuing to 

PROPOSED RULES July 2, 2010 35 TexReg 5723 
implement the existing OBD, ASM, and TSI vehicle inspections 

as a part of the 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 of this rulemaking may be 

submitted to the contact person at the address listed under the 

SUBMITIAL OF COMMENTS section of this 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. at the TCEQ, Region 4 Office, DFW Public Meeting Room, 2309 Gravel Road, Fort Worth, 

TX 76118; in Austin on July 21, 2010, at 10:00 a.m. at the TCEQ, 

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, TX 77027. The hearings are structured for 

the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order 

of registration. Open discussion will not be permitted during the 

hearings; however, commission staff members will be available 

to discuss the proposal 30 minutes prior to the hearings. 

Persons who have special communication or other 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. 

SUBCHAPTER A. 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 

under Texas Health and Safety Code (THSC}, §382.017, Rules, 

which authorizes the commission to propose rules consis35 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 

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 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 et seq.; 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 pursuant to Texas 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 and Maintenance Definitions. 

Unless specifically defined in Texas Health and Safety Code, Chapter 

382, also known as the Texas Clean Air Act (TCAA), or in the rules 

of the commission, the terms used 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, when used in Subchapter C of this chapter (relating to 

Vehicle Inspection and Maintenance; Low Income Vehicle Repair As· 

sistance, Retrofit, and Accelerated Vehicle Retirement Program; and 

Early Action Compact Counties), have the following meanings, unless 

the context clearly indicates othei"\.V:ise. 

(1) Acceleration simulation mode (ASM-2) test--An emis· 

sions test using a dynamometer(a set of rollers on which a test vehicle's 

tires rest) that applies an increasing load or resistance to the drive train 

of a vehicle, thereby simulating actua1 tailpipe emissions of a vehicle 

as it is moving and accelerating. The ASM·2 vehicle emissions test is 

comprised of two phases: 

(A) the 50115 mode-in which the vehicle is tested on 

the dynamometer simulating the use of 500/o of the vehicle available 

horsepower to 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 of 25% of the vehicle available 

horsepower to accelerate at a rate 3.3 mph per second at a constant 

speed of 25 mph. 

(2) Consumer price index-· The conswner price index for 

any calendar year is the average of the consumer price index for all· 

urban conswners published by the Department ofLabor, as of the close 

of the 12-month period ending on August 31 of the caleodar year. 

(3) Control1er area network (CAN}--A vehicle manufacturer's communications protocol that connects to the various electronic 
modules in a vehicle. CAN provides one protocol that collects information from the vehicle's electronic systems including the on-board 

diagnostics (OBD) emissions testing system. The United States Environmental Protection Agency requires the CAN protocol to be installed 

in OBD-compliant vehicles beginning with some model year 2003 vehicles and phasing 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 of Public Safety. 

fi'eFfeRBS ea l1eafEI diagaesties (Gimt tesliftg ~ Slltl dees tiel 

.-~ QIW-""' eoleBtlaf yetlfoj 

(5) Motorist--A person or other entity responsible for the 

inspection, repair, and maintenance of a motor vehicle, 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 of the vehicle emissions control equipment, fuel metering 

system, and ignition system for the purpose of detecting malfunction 

or deterioration in performance that would be expected to cause the 

vehicle not to meet emissions standards. All references to OBD 

should be interpreted to mean the second generation of this equipment, 

sometimes referred to as OBD IT. 

(7) On-road test--Utilization of remote sensing technology 

to identify vehicles operating within the inspection and maintenance 

program areas that have a high probability of being high-emitters. 

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

(9) Primarily operated--Use of a motor vehicle greater than 

60 calendar days per testing cycle in an affected county. Motorists shaH 

comply with emissions requirements for such counties. It is presumed 

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

(1 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: 

(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 of El Paso 

County; 

(C) the Houston-Galveston-Brazoria program area, 

consisting of Brazoria, Fort Bend, Galveston. Harris, and Montgomery 

Counties; and 

(D) the extended Dallas-Fort Worth program area, consisting of Ellis, Johnson, Kaufman, Parker, and Rockwall Counties. 

These counties became part of the program area as of May 1, 2003. 

(11) Retests--Successive vehicle emissions inspections following the failing of an 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 

while the vehicle idles, first at a lower speed and then again at a higher 

speed. 

(14) Uncommon part-A part that takes more than 30 days 

for expected delivery and installation, \\'here a motorist can prove that a 

reasonable attempt made to locate necessary emission control parts by 

retail or wholesaJe part suppliers will exceed the remaining time prior 

to expiration of the vehicle safety inspection certificate or the 30-day 

period following an out-of-cycle inspection. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the 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, 

PROPOSED RULES July 2, 2010 35 TexReg 5725 
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 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. Equipment Evaluation Procedures for Vehicle Exhaust Gas 

Analyzers. 

(a) Any manufacturer or distributor of vehicle testing equipment may apply to the executive director of the commission or his appoin~e, for approval of an exhaust gas analyzer or analyzer system 

for use in the Texas Inspection and Maintenance (1/M) program administered by the Texas Department of Public 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 in the 11M program 

wiB satisfy all design and perfonnance criteria set forth in the most recent version of the "Specifications for Vehicle Exhaust Gas Analyzer 

Systems for Use in the Texas Vehicle Emissions Testing Program.=..:[;!! 

dated May -I,~ Milt ''S)'eeifieatiens -fer. Oft Be&I'EI D:iagBesties H 

ftwYsemthe:re....¥eltiele EJBissieas 'fesliflg p..,gt'lllft;" <leleeMey-1, 

~] Copies of this doewnent [these deeHmeftts) are available at the 

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 of all hardware components, 

the results of appropriate perfonnance testing. and a point-by-point response to each specific requirement. 

(b) All equipment must [ollall] be tested by an independent test 

laboratory. The cost oftbe 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) of this 

section; 

(2) documentation of successful results from appropriate 

performance testing; 

(3) evidence of necessary changes to internal computer 

programming, display fonnat, and data recording sequence; 

(4) a commitment to fulfill all maintenance, .repair, training, and other service requirements described in the specifications referenced in subsection (a) of this section. A copy of the minimum warranty agreement to be offered to the purchaser of an approved vehicle 

exhaust gas analyzer must [-shell] be included in the demonstration of 

confonnance; and 

(5) documentation of communication ability using protocol provided by the commission or the eommission Texas Infonnation 

Management System (TIMS) contractor. 

(c) If a review of the demonstration of confonnance and all 

related support material indicates compliance with the criteria listed 

in subsections (a) and (b) of this section, the executive director or his 

appointee may issue a notice of approval to the analyzer manufacturer 

35 TexReg 5726 July 2, 2010 Texas Register 

that endorses the use of the specified analyzer or analyzer 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 of approval. 

(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 or the rules and regulations 

promulgated thereunder if: 

(I) any infonnation included in the confonnance demonstration as required in subsection (b) of this section is misrepresented 

resulting in the purchase or operation of equipment in the Texas 11M 

program that does not meet the specifications referenced in subsection 

(a) of this section; [eo] 

(2) the applicant fails to comply with any requirement or 

commitment specified in the notice of approval issued by the executive 

director or implied by the representations submitted by the applicant 

in the confonnance demonstration required by subsection (b) of this 

section; [ .. ] 

(3) the manufacturer or distributor fails to provide on-site 

service response by a qualified repair technician within two business 

days of a 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 or distributor fails to fulfill, on a continuing basis, the requirements described in this section or in the specifications referenced in subsection (a) of this 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 of commission written notice of acceptance. 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's legal authorijy 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 the following section proposed for repeal 

will not be published. Th£ section may be examined in 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 under Texas 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 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 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 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 

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 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, §§7 401 et seq.; 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. Early Participation Incentive Program. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on June 18, 2010. 

TRD-201 003433 

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. LOW INCOME VEHICLE REPAIR 

ASSISTANCE, RETROFIT, AND ACCELERATED 

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 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 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 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 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 of 

a LIRAP in the requesting county. The executive director and county 

shaH enter into a grant contract for the implementation of the LIRAP. 

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

LIRAP. 

(2) A participating county may contract with an entity approved by the executive director for services necessary to implement 

the LIRAP. A participating county or its designated entity 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 shall remain the contracted entity even if the 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 repairs directly related to bringing certain vehicles that have failed a 

required emissions test into compliance with emissions requirements or 

for installing retrofit equipment on vehicles that have failed a required 

emissions test, if practically and economically feasible, in lieu of or 

in combination with repairs performed to bring a vehicle into compliance with emissions requirements. Vehicles under the LIRAP must be 

repaired or retrofitted at a recognized emissions repair facility. To dePROPOSED RULES July 2, 2010 35 TexReg 5727 
termlne 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: 

(1) the vehicle has failed a vehicle emissions test within 30 

days of application submittal; 

(2) the vehicle can be driven under its own power to the 

emissions inspection station or vehicle retirement facility; 

(3) the vehicle is currently registered in and has been registered in the program county for the 12 months immediately preceding 

the application for assistance; 

( 4) the vehicle has passed the safety portion of the Texas 

Department of Public Safety (DPS) motor vehicle safety and emissions 

inspection as recorded in the Vehicle Inspection Report (VIR), or provide 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 or below 

300% [300 JIOI""'Bl] of the 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 or other compensatory assistance to eligible vehicle owners 

to be used toward the purchase of a 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) of this 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 of the participating county 

or the 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) of this section, an eligible vehicle owner of avehicle that is gasoline powered and is at least I 0 years old as detennined 

fium the current calendar year (i.e., 20 I 0 [i!OO+] minus I 0 years equals 

2000 [-199+]) and meets the requirements under subsection (b)(2), (3), 

and (5) of this section, may be eligible for accelerated vehicle retirement and compensation. 

(4) Replacement vehicles must: 

(A) be in ·a class or category of vehicles that has been 

certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 

40 Code of federal Regulations §86.1811-04, as published in the February 10, 2000, Fe.kral Register (65 FR ~]6698); 

(B) have a gross vehicle weight rating of less than 

I 0,000 pounds; 

(C) be a vehicleJ. the total cost of which 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. If the re~ 

quirements of subsection (b) or (c) of this section are met and based on 

available funding, the county shaH authorize monetary or other com~ 

pensations to the eligible vehicle owner. 

(1) Compensations must be: 

(A) no more than $600 and no less than $30 per vehicle 

to be used for emission-related repairs or retrofits perfonned at recognized emissions repair facilities, including diagnostics tests performed 

on the vehicle; or 

(B) based on vehicle type and model year of a replacement vehicle for the accelerated retirement of a vehicle meeting therequirements under this subsection. Only one retirement compensation 

can be used toward one replacement vehicle annuaUy per applicant 

The maximum amount toward a replacement vehicle, must not exceed: 

(i) $3,000 for a replacement car of the current model 

year or previous three model years, except as provided by clause (iii) 

of this subparagraph; 

(ii) S3,000 for a replacement truck of the current 

model year or the previous two model years, except as provided by 

clause (iii) of this subparilgraph; 

(iii) $3,500 for a replacement hybrid vehicle of the 

current model year or the previous model year. 

(2) Vehicle owners shall be responsible for paying the first 

$30 of emission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle. 

(3) For accelerated vehicle retirement, provided that the 

compensation levels in paragraph (l)(B) of this subsection are met and 

minimum eligibility requirements under subsection (c) of this section 

are met, a participating county may set a specific level of compensation 

or implement a level of compensation schedule that allows flexibility. 

The following criteria may be used for detennining the amount of financial assistance: 

(A) model year of the vehicle; 

(B) miles registered on the vehicle's odometer; 

(C) fair market value of the 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 of the 

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 of receiving an invoice that meets the requirements of the 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 county has the discretion, on a case-by-case basis, to make payment 

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 later than 10 [H-Ye] business days after the county receives 

proof of the sale, proof of transfer to a dismant1er, and any administrative documents that meet the requirements of the county or designated 

entity. A list of all 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 a participating 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 of Texas. 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 vehic1e 

and for tracking such purchase. 

(A) The document must include at a minimum, the full 

name of applicant, the vehicle identification number of the retired vehicle, expiration date of the document, the program administrator's contact infonnation, and the amount of money available to the participating 

vehicle owner. 

(B) The document must be presented to a participating 

dealer by 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 

issued by the participating county has no duty to confinn the eligibility 

of the person purchasing a replacement vehic1e in the manner provided 

by this section. 

This agency hereby certiftes that the proposal has been reviewed 

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

Filed w~h the Office of the Secretary of State on June 18, 2010. 

TRD-201 003434 

Robert Martinez 

Diredor, Environmental Law Division 

Texas Commjssion on Environmental Quality 

Eartiest possible date of adoption: 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 September 23, 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, et al United Stetes EPA et al, 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 of flexible permits that d not incorporate emission 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 for this type 

of minor NSR program, to ensur accountability and provide a 

means to determine compliance. e EPA also identified anumber of related 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 under the 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~. At the time the flexible 

permtt program was developed, th commission lacked the authority to 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 thereof can be included in a xible permit. The applicant 

for a flexible perm~ can combine e isting facilities and new facil~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 of the flexible perPROPOSED RULES July 2, 2010 35 TexReg 5729 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Guy Donaldson, United States Environmental 

Protection Agency 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGIONS 

Mr. Michael Parrish 

MC 205, Office of Legal Services 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

JUN 2 3 2010 

Texas Commission on Environmental Quality 

P. 0. Box 13087 

Austin, Texas 78711-3087 

Dear Mr. Parrish: 

W-1 

Thank you for the opportunity to comment on proposed revisions to 30 Texas 

Administrative Code Chapter 114, Control of Air Pollution from Motor Vehicles, and the 

state implementation plan. 

We support the proposed revisions to§§ 114.2, 114.51, 114.52, and 114.64. None 

of these revisions impact the program design, program performance criteria, or emission 

inspection procedures. These revisions will update the rule to match current program 

conditions as well as implement legislative changes. Changing specific document dates to 

reference the most recent version improves SIP efficiency for both agencies. We continue 

to support the Low Income Repair Assistance Program even as reimbursement rules are 

revised. 

If we can be of any assistance to you in future rule development regarding mobile 

source programs, please feel free to contact me or Sand Rennie of my staff at (214) 665-

7367. 

Sincerely yours, 

Guy Donaldson, Chief 

Air Planning 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 TESTIMONY WAS RECEIVED PERTAINING TO THIS RULEMAKING. 
- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: July 20, 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 

HEARING OFFICER REPORT 

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; 

and Inspection and Maintenance 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 staff and 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: July 21, 2010 

Time: 10:00 AM 

Quality 

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, Building E, Room 201S, 12100 Park 35 Circle, Austin, TX 

Concerning: Proposed revisions to 30 TAC Chapter 114 and to the 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 OFFICER REPORT 

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 and Maintenance SIP Revision. 

A public heating was scheduled for July 21, 2010, at 10:00 a.m. in Austin at TCEQ, 

Buildlng E, Room 201S, located at 12100 Park 35 Circle. 

At 9: 15 a.m. the room "WaS open, TCEQ staff and a court reporter 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 on the record. Therefore, the public hearing was not formally 

opened for comment and a transcript was not prepared. 

earing Officer 

01 I B.I/Jp 

Date signed 
- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: July 22, 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 Emissions Testing 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 30 TAC 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 OFFICER REPORT 

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; 

and Inspection and Maintenance 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 Room A, 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 opened for comment and no transcript was prepare4. 

,. 

Date signed 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Qualitv iNTER.Omct •;:m!\ioRA.'ibOM 

To: Commissioners Date: October 29.2010 

Thru: LaDonna Castailuela, Chief Clerk 

Mark R. Vickery, P.G., Executive Director 

From: ~usana M. Hildebrand, P.E., Chief Engineer 

DocketNo.: 2009-1610-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 114, Control of Air PolJution from Motor Vehicles 

Inspection and Maimenance (JIM) Rule Revisions 

Rule Project No. 2009-027-114-EN 

Background and reason(s) for tbe rulemaking: 

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 assist with 

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 the DFW and HGB areas to offer both ASM and OBD inspections to 

the public with the exception of low-volume emissions inspection stations. The adopted rules also revised 

theTAS and established the Early Participation Incentive Program (EPIP). 

Low-Volume Emissions Inspection 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 of vehicle emissions inspection stations were available to 

provide both ASM and OBD inspections at the start of the revised 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 of Public Safety (DPS) were restricted to a msximurn of 1,200 OBD inspections per calendar 

year. 

Section 1 of House Bill (HB) 715, 8lst Texas Legislature, 2009, Regular Session, establishes a minimum 

vehicle emissions inspection limit for low-volume emissions inspection stations that will become 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 with the requirements 

ofHB 715. 

HiE. 

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 stan of the revised L'M 

program in the DFW and HGB areas. The EPIP encouraged early purchases of ASM analyzers by providing 

vehicle emissions inspection stations with financial assurance offered by the state if the 11M program was 

terminated early. Vehicle emissions inspection station owners that were accepted into the EPIP and 
Commissioners 

Page2 

October 29. 20 I 0 

Re: Docket No. 2009-161 0-RUL 

maintained their eligibility could have received a payment of up to $675 per month to cover the cost of the 

ASM analyzers if the I/M program was terminated within five years of the program start date. Because the 

EPIP has expired, § 114.52 is no longer applicable and should be repealed. 

IJlJAf'_ 

The commission adopted rules on Mm·ch 27, 2002, to implement the Low Income Vehicle Repair Assistance, 

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 of a vehicle that has failed the emissions inspection. The 

commission adopted rules on December 5, 2007, that modified the LIRAP by requiring funds be transferred 

to a participating dealer not later than five business days after the sale of a replacement vehicle is completed. 

The LIRAP operates in Travis and Williamson Counties in the 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 in the HGB 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. The roles regarding the LIRAP in 30 TAC §114.64 currently require 

counties to reimbutse dealerships participating in the lJRAP in five business days. The adopted rule revision 

to 30 TAC §114.64 is needed in order to comply with the requirements ofHB 1796. While the LIRAP, also 

known as the Drive a Clean Machine program, provides nionetaiy assistance associated with the liM 

program, the LIRAP is not included in 1he liM state implementation plan (SIP) revision. 

TAS 

On October 26,2005, the commission adopted revisions to 30 TAC §.114.51, which required manufacturers 

of vehicle emissions inspection analyzers used in the liM program to meet the requirements contained in the 

TeXIIli Commission on Envirorunental Quality's (fCEQ) documents referenced in the rule, the vehicle 

emissions testing analyzer specifications. These documents, also referred to as the TAS, are dated May 1, 

2005, in the t'Uie. 

Since October 2005, the T AS have been modified four times to improve oversight and enhance effectiveness 

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 of collecting 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 nonprogrmnmatic 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 11M program. The modified 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 

October 29, 2010 

Re: DocketNo.2009-1610-RLL. 

Scope o( the rulemaking: 

The adopted rule revisions will revise 30 TAC Chapter 114, Subchapter A, §114.2; Subchapter C, §114.51, 

and §114.64 to implement changes required by HB 715 and HB 1796 (8lst Texas Legislature, 2009, Regular 

Session). TI1e adopted rulemaking will 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 of this 

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 of acronyms, section references, rule structure, and certain 

terminology. 

A) Summary of what the rulemaking will do: 

Low-V o1ume Emissions 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 station that meets all criteria for obtaining a low-volume waiver from the Texas 

Department of Public 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 in the DPS rules (37 TAC §23.95) and meet 1he requirements ofHB 715. 

EPIP 

The adopted repeal of 30 TAC § 114.52 ,,.ill remove all requirements related to the EPIP and delete the EPIP 

requirements that were incorporated into the 11M SIP in the preamble of previous rulemakings adopted on 

October 24, 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 change made since the rulemaking was proposed. 

IdS. 

The adopted rule revision to 30 TAC §114.51 will remove 1he dates associated with theTAS and will 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 adopted rule revision will also add language indicating that the TAS are available at the 

TCEQ's central office or at 

htrp:llwww.tceq.state.tx.us/assetslpublic/implementationlairfms!IM/trvehanlspecs.pclf. In addition, the 

adopted rule ;revision will remove the TCEQ's "Specifications for On-Board Diagnostics II Analyzer for Use 

in the Texas Vehicle Emissions Testing Program" and its corresponding references as these TAS are no 

longer needed because the specifications for OBD-only vehicle inspection analyzers are also contained in the 

TCEQ's "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions 

Testing Program." 
Commissioners 

Page4 

October 29, 2010 

Re: Docket No. 2009-161 0-RUL 

B) Scope required by federal regulations or state statutes: 

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 of at least 150 OBD inspections per month 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 I 0 business days as required by HB 1796. 

C) Additioual staff recommeadations that are not req aired by federal rule or state 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 longer applicable. 

IM 

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

modifications to theTAS and remove the TCEQ's "Specifications for On-Board Diagnostics II Analyzer for 

Use in the Texas Vehicle Emissions Testing Prognun" 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, §5.1 05, General Policy, which provides the commission with the general powers to carry 

out its duties and authorizes the commission to adopt rules necessary to carry out its powers and duties under 

the TWC; and TWC, §5.013, Geneml Jurisdiction of Commission, 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 of the 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 of public health, general welfBre, and physical property; 

THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the 

state's air; lHSC. §382.012, State Air Control Plan, which authorizes the commissiot) to prepare and 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 reduce emissions from engines used to prope1land vehicles; and TIISC, 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 petformed at inspection 

facilities consistent with the requirements of Federal Clean Air Act, 42 United States Code, §§7401 et seq.; 

and THSC, Chapter 3 82, 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 from the 81st Texas Legisla1ure, 2009, Regular Session. 
Commissioners 

PageS 

October 29, 2010 

Rc: Docket No. 2009-1610-RlJL 

Effect on the: 

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 of the 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 of vehicle 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 of inspections 

they are allowed to perform each month. Non low-volume emissions inspection stations, also known as fullservice vehicle emissions inspection stations, may experience a corresponding 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 will be determined by the 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 I 0 business days after the county receives proof that the 

sale of a 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 county auditor's, commissioner's court, or treasurer's duties with respect to dealer payments. 

1M 

The adopted rule revision related to the TAS will not have an effect or a fiscal impact on the regulated 

community as minor non-programmatic modifications to the TA~ will not result in additional costs to vehicle 

inspection station ov.ners. 

B) Public: 

The adopted rule revisions mil not have a fiscal impact on the public. 

Low-Volume Emissions Ins.pection Stafiom 

The adopted rule revision regarding tow-volume emissions inspection stations may cause motorists of modelyear 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 nwnber of full-service inspection stations offering ASM inspections. 
Commissioners 

Page 6 

October 29, 20 l 0 

Re: Docket No. 2009-161 0-RUL 

EPIP 

The adopted rule repeal regarding the EPIP will not have an effect on the public. 

lJ&1E. 

The adopted rule revision regan:ling the LIRAP v.~ll not have an effuct on the public. 

IM 

TI1e adopted rule revision reganfingthe TAS will not have an effect on the public. 

C) Agency progralils: 

Low-Vohmte Emissions ln:mecti071 Stations 

The adopted rule revision regar!iing the definition of the low-volume enllllsions inspection station will have 

no significant impact on the agency. · 

EE1E. 

The adopted rule repeal regarding the EPIP will have no significant impact on the agency because the EPIP 

bas expired. 

URAP 

The adopted rule revision regan:ling the LIRAP will have no significant impact on the agency. The LIRAP 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 review time that will improve the efficiency of payments 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 modifications to the T AS in a timely manner. 

Public commeat: 

TCEQ staff offered public hearings in Fort Worth on July 20, 2010; in Austin on July 21, 2010; and in 

Houston on July 22, 2010. No member of the public wished to present comments, so staff did not open the 

public hearings. The comment period opened on June 18,2010, and closed on July 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 for the 11M program and the LIRAP. 

SiguifJCant changes from pniposal: 

None 

Stakeholder meetings: 

Stakeholder meetings were not held. 
Commissioners 

Page 7 

October 29, 2010 

Re: Docket No. 2009-1610-RUL 

Potential controversial concerns and legWa1ive interest remaining after proposal and public comment: 

None 

Does this rulemaking affect any current policies or require development or new policies? 

Low-Volume Emissions l11QJectian Srations 

The adopted rule revision will modify criteria within the cwrent IIM program but will not affect the current 

agency policies regarding implementation, enforcement, and oversight of the IIM program as required by the 

cwrent rules. 

EPIP 

The adopted rule repeal regarding the EPIP will not affect any current policies or require development of 

new policies. 

I.ll1AE. 

The adopted rule revision regarding the LIRAP will not affect any current policies or require development of 

new policies. 

w. 

Under the current policies, implementing minor non-programmatic moclifications to the TAS may take up to 

3 0 months. The process includes approximately 12 to 18 months to revise the rule and an additional nine to 

12 months for software development. The adopted rule revision will result in a more streamlined process for 

minor non-programmatic modifications to the TAS and allow staff to implement minor non-programmatic 

modifications in a timely manner. However, modifications to the I1M program design, performance criteria 

for the vehicle emissions inspection analyzer, and 1he vehicle emissions inspection procedure will not be 

implemented unless commission approval is received through the rule and SIP revision process. 

What are the coasequences If this. rulemaking does not go forward? Are there alteruatives tn 

ndemakiug? 

Low-Volume Emissions Inspection Srations 

The current rule, which defmes a low-volmne emtsStons inspection smtion, will conflict with the 

requirements ofHB 715. There are no 'liable alternatives to this revision to the rule since HB 715 directs the 

DPS to set the inspection limit for low-volume emissions inspection smtions. If the rule revision does not go 

forward, the TCEQ rules will be in conflict with HB 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. H this section is not amended, the rules 

will continue to reference out-of-date requirements, possibly leading to confusion :from external stakeholders. 

I.ll1AE. 

The cummt rules related to LIRAP requirements will continue to conflict with Section 12 of HB 1796. The 

LIRAP requirements of HB 1796 did not 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 not to proceed with the adopted rule revision. However, minor non-programmatic 

modifications to theTAS may require up to 30 months to implement. 

Key points in the adoption rulemaklng schedule: 

Proposal date: 

Tt!X8S RegiSter proposal publication date: 

Anticipated Tt!X8S Register publication date: 

Anticipated effective date: 

Six-month Tam- Register filing deadline: 

Agency contacts: 

June 16,2010 

July 2, 2010 

December 10,2010 

December 16, 2010 

January 2, 2011 

Edgar J. Gilmore, Jr., Rule Project Manager, 239-2069, Air Quality Division 

Ross Hendersoli, Staff Attorney, 239-6257, Environmental Law Division 

Michael Parrish, Texa& Register Coordinatoc, 239-2548 

Attachments: 

HB715 

HB 1796 

cc: Chief Clezt, 2 copies 

Executive Director's Office 

Susana M. Hildebrand, P .E. 

Kevin Patteson 

Curtis Sealoo 

Ashley Morgan 

OfEioe of General Counsel 

Edgar J. Gilmore Jr. 

Michael Parrish 
EVALUATION OF TESTIMONY 

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 

United 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 nitrogen oxides (NOx) and volatile organic 

compounds (VOC) necessary for the counties included in the Dallas-Fort Worth (DFW), HoustonGalveston-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 (T AS) 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 

Harris County in the HGB area. On May I, 2003, the 11M program expanded to include Ellis, Johnson, 

Kaufman, Parker, and Rockwall Counties for the DFW area and Brazoria, Fort Bend, 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 detect NOx 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 NOx is a precursor to ground-level ozone 

formation, reduced NOx and VOC emissions result in ground-level ozone reductions. In addition, the 

inclusion of OBD in the liM program ensured compliance with a fedeml mandate requiring all 1996 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 defmed 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 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 of ASM 

vehicle emissions inspection analyzers, which have the capability to inspect all vehicles required to 

undergo liM inspections, is much higher than the cost 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 of vehicle emissions inspection stations were available to provide both ASM and OBD 

inspections at the start of the revised liM program in the DFW and HGB areas, stations that voluntarily 

opted to be designated as a low-vulume emissions inspection station by the Texas Department of Public 

Safety (DPS), the agency that implements the liM 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 of the revised 

2 
11M program in the DFW and HGB areas. The EPIP encouraged early purchases of ASM analyzers by 

providing vehicle emissions inspection stations with fmancial assurance offered by the state if the 11M 

program was terminated early. The EPIP was available to the first I ,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 owners that were accepted into the EPIP and maintained their 

eligibility could have received a payment of up to $675 per month to cover the cost ofthe ASM analyzers 

if the 11M program was terminated within five years of the 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 in the 11M 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 I, 2005, or in the TCEQ's "Specifications for On-Board 

Diagnostics II Analyzer for Use in the Texas Vehicle Emissions Testing Program," dated May I, 2005. 

Since October 2005, the T AS have been modified four times to improve oversight and enhance 

effectiveness of the 11M program. The minor modifications did not affect the vehicle emissions 

inspection procedure or the design and performance 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 nonprogrammatic modification if it results in additional costs to vehicle inspection station owners. Each time 

the T AS were modified, staff incorporated the necessary software enhancements into a draft version of 

theTAS, and these enhancements were implemented on all analyzers by the analyzer manufacturers 

participating in the 11M program. The modified T AS have not been incorporated by rule. 

3 
Rules adopted by the commission on March 27, 2002, implemented the Low Income Vehicle Repair 

Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), which was designed to assist 

low income individuals with repairs, retrofits, or retirement of vehicles 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 after 

the sale of a replacement vehicle is completed. 

The primary reason for this adopted rulemaking is to implement portions ofHB 715 and HB 1796 from 

the 81st Texas Legislature, 2009, relating to requiring the vehicle emissions inspection limit for lowvolume 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 theTAS as "the most recent 

version" resulting in a more streamlined process for minor non-programmatic modifications to theTAS 

and allow staff to implement minor non-programmatic modifications including updates to accommodate 

new technology vehicles, enhancements to the method of collecting inspection data, and updates to 

internal reference tables. However, modifications to the 11M program design, performance 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. 

4 
The EPIP was established as an incentive program and is not a control strategy measure of the 11M 

program. In addition, the EPIP expired on May I, 2008. Therefore, removal of the EPIP will not change 

the stringency or effectiveness of the 11M 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 of acronyms, section references, rule 

structure, and certain terminology. These changes are non-substantive and generally are not specifically 

discussed in this preamble. 

The adopted amendment to §I 14.2 modifies the definition of a low-yolume 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 I ,200 OBD tests per calendar 

year." The modified defmition states that "a low-volume 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 inspection station to fewer 

than I 50 OBD inspections per month. This adopted amendment ensures that the defmition for a lowvolume emissions inspection station contained in §I 14.2 does not conflict with the low-volume waiver 

criteria for inspection stations listed in the DPS rules (37 TAC §23.95)and meets the requirements ofHB 

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 

5 
theTAS. The most recent version of theTAS 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 Analyzer for Use in the 

Texas Vehicle EmissionsTesting Program" and its corresponding references as the specifications for 

OBD-only 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 adopted repeal of§ 114.52 removes all requirements relating to the EPIP, which has expired, and 

deletes the EPIP requirements that were incorporated into the 11M 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 l 0 business days as mandated by HB 1796. This 

section is being adopted with a minor non-substantive punctuation change to subsection (dX1XB) made 

since the rulemaking was proposed. 

FINAL REGULATORY IMP ACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225 and determined that the adopted rule revisions do not meet the 

defmition 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 health from environmental exposure and that may adversely affect in a material way the economy, 

a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety 

of the state or a sector of the state." 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 

ru1emaking does not meet any of the 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 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 tbe federal government to implement a state and federal program; or 

(4) adopts a rule solely under tbe general powers oftbe agency instead of under a specific state law." 

The adopted rulemaking implements requirements of tbe 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 not require specific programs, metbods, or reductions in order to meet tbe 

standard, state SIPs must include "enforceable emission limitations and other control measures, means or 

techniques (including economic incentives such as fees, marketable permits, and auctions of emissions 

rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet tbe 

applicable requirements oftbis chapter," (meaning 42 USC, Chapter 85, Air Poilution Prevention and 

Control, otherwise known as the FCAA). The provisions of tbe FCAA recognize that states are in tbe 

best position to determine what programs and controls are necessary or appropriate in order to meet tbe 

NAAQS. This flexibility allows states, affected industry, and tbe public to collaborate on tbe best 

metbods for attaining tbe NAAQS for tbe specific regions in tbe state. Even tbough tbe FCAA allows 

states to develop tbeir own programs, this flexibility does not relieve a state from developing a program 

tbat meets tbe requirements of 42 USC, §7410. States are not free to ignore tbe requirements of 42 USC, 

§741 0 and must develop programs and control measures to assure tbat tbeir SIPs provide for 

implementation, attainment, maintenance, and enforcement of tbe NAAQS witbin tbe state. Furthermore, 

while states generally are afforded some flexibility in adopting and implementing a SIP, vehicle 11M 

programs are required elements oftbe SIP pursuant to 42 USC, §7511(a). 

7 
The specific intent of the adopted rulemaking is to 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. To further this specific intent, this rulemaking incorporates the 

following adopted amendments to the 11M program. The current definition of a low-volume emissions 

inspection station in § 114.2 states that "a low-volume emissions inspection station is a vehicle emissions 

inspection station that performs only the OBD test and does not exceed I ,200 OBD tests per calendar 

year." The adopted amendment to§ 114.2 modifies the current defmition 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 inspection station to fewer than ISO OBD inspections per month. The 

adopted amendment ensures 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 ofHB 715. The adopted amendment to §114.~ 

increases the maximum time that counties have to reimburse dealerships participating in the LIRAP from 

five to I 0 business days as mandated by HB I 796. The adopted amendment to § 114.51 removes the dates 

associated with the TAS and add language requiring analyzer manufacturers to meet the requirements 

contained in the "most recent version" of theTAS and remove the "Specifications for On-Board 

Diagnostics IT Analyzer for Use in the Texas Vehicle Emissions Testing Program" and its corresponding 

references. The adopted amendment will improve the efficiency of the process used by the commission 

for implementing minor non-programmatic modifications to theTAS and remove redundant 

requirements. The adopted repeal of§ 114.52 repeals all requirements 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: I) the specific intent of the adopted rule revision is not to protect the 

environment or reduce risks to human health from environmental exposure, but rather to clarify, improve 

8 
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 way the economy, a sector of the economy, 

productivity, competition, or jobs, nor do the adopted rule revisions adversely affect in a material way the 

environment, or the public health and safety of the state or a sector of the state because the adopted 

rulemaking actually clarifies, improves upon, and increases consistency within the 11M program and the 

LIRAP. Because the adopted rulemaking is not a major environmental rule, it is not subject to a 

regulatory impact analysis under Texas Government Code, §2001.0225. 

While the adopted rulemaking does not constitute a major environmental law, even if it did, 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 under the general powers of the TCEQ. 

With the understanding that this requirement would seldom apply, the commission provided a cost 

estimate for SB 633 that concluded: "based on an assessment of rules adopted by the agency in the past, 

it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited 

application." The commission also noted that the number of rules that would require assessment under 

the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the 

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

a federal law. 

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

NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas 

9 
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 with the conclusions reached by the commission in its cost 

estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed 

to understand the fiscal impacts of the bills it passes and that presumption is based on information 

provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to 

require the full regulatory impact analysis for rules that are extraordinary in nature. While the 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 SIP fall under the 

exception in Texas Government Code, §200 1.0225(a), because they are required by federal law. 

The commission has consistently applied this construction to its rules since this statute was enacted in 

1997. Since that time, the legislature has revised the Texas Government Code but left this provision 

substantially unamended. It is presumed that, "when an agency interpretation is in effect at the time the 

legislature amends the laws without making substantial change in the statute, the legislature is deemed to 

have accepted the agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 

(Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 

(Tex. 1997); 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. 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 Coastal Indus/. Water Autk v. Trinity Portland Cement 

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

10 
The commission's interpretation of the regulatory impact analysis requirements is also supported by a 

change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt 

to limit the number of rule challenges based upon AP A requirements, the legislature clarified that state 

agencies are required to meet these sections of the AP A against the standard of "substantial compliance," 

Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, 

§200 1.0225 as falling under this standard. The commission has substantially complied with the 

requirements ofTexas Government Code, §2001.0225. 

Even if the adopted rulemaking constituted a major environmental rule under Texas Government Code, 

§2001.0225(g)(3), a regulatory impact analysis is not required because this exemption is part of the 

commission's SIP for making progress toward the attainment and maintenance of the NAAQS. 

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 NAAQS. In addition, the adoption and maintenance of the 

11M program is directly required by federal law pursuant to 42 USC, §75ll(a). The commission is 

charged with protecting air quality within the state and to design and submit a plan to achieve attainment 

and maintenance of the federally mandated NAAQS. The Third District Court of Appeals 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 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 of this 

rulemaking. Finally, this rulemaking was not developed solely under the general powers of the TCEQ but 

is authorized by specific sections of Texas Health and Safety Code (THSC), Chapter 382 (also known as 

the Texas Clean Air Act), and the Texas Water Code (TWC), which are cited in the STATUTORY 

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, 

11 
§200 1.0225(b ), for the following reasons. The adopted rulemaking is not a major environmental law 

because: I) 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, 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 way the economy, a sector of the economy, productivity, competition, or 

jobs, nor does it adversely affect in a material way the environment, or the public health and safety of the 

state or a sector of the state, because the adopted rulemaking actually clarifies, improves upon, and 

increases consistency within the 11M program and the LIRAP. Furthermore, even if the adopted 

rulemaking was a major environmental rule, it does not meet any of the four applicability criteria listed in 

Texas Government Code, §2001.0225 because: I) the adopted rulemaking is part of the SIP, and as such 

is designed to meet, not exceed the relevant standard set by federal law; 2) parts of the adopted 

rulemaking are directly required by state law; 3) no contract or delegation agreement covers the topic that 

is the subject of this rulemaking; or 4) the adopted rulemaking is authorized by specific sections of 

TIISC, Chapter 382 (also known as the Texas Clean Air Act), and the TWC, which are cited in the 

STATIITORY AUTHORITY section of this preamble. 

The commission invited public comment regarding the draft regulatory impact analysis determination 

during the public comment period, 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 a taking under Texas 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 governmental action that affects 

12 
private real property, in whole or in part or temporarily or permanently, in a manner that requires the 

governmental entity to compensate the private real property owner as provided by the Fifth and 

Fourteenth Amendments to the United States Constitution or 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 of the governmental action, in whole or in part or temporarily or permanently, in a manner that 

restricts or limits the owner's right to the property that would otherwise exist in the absence of the 

governmental action; and (ii) is the producing cause of a reduction of at least 25% in the market value of 

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

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

governmental action is in effect." 

The specific purpose of the adopted rulemaking is to 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. Therefore, the adopted rulemaking substantially 

advances 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 defmition 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 (3 7 TAC 

§23.95) and meet the requirements ofHB 715; increasing the maximum time that counties have to 

reimburse dealerships participating in the LIRAP from five to I 0 business days as mandated by HB 1796; 

removing the dates associated with the T AS and adding language requiring analyzer manufacturers to 

meet the requirements contained in the "most recent version" of theTAS and removing the 

"Specifications for On-Board Diagnostics ll Analyzer for Use in the Texas Vehicle Emissions Testing 

Program" and its corresponding references; streamlining the process used by the commission for 

implementing minor non-programmatic modifications to the TAS; removing redundant requirements; and 

13 
deleting all requirements relating to the EPIP, which has expired. 

Promulgation and enforcement of the adopted rule revisions is neither a statutory nor a 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 11M program and the LIRAP. Furthermore, the adopted rule 

revisions benefit the public by improving upon the 11M 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 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 of the regulations. Therefore, these adopted 

rule revisions do not constitute a taking under Texas Government 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 et seq., and therefore must be consistent with all applicable CMP goals and 

policies. The commission conducted a consistency determination 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 contaminants are 

authorized and ozone levels will be reduced as a result 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 (31 TAC §50 1.32). 

This adopted rulemaking will not have a detrimental effect on SIP emissions reduction obligations 

14 
relating to maintenance of the ozone NAAQS by continuing to implement the existing OBD, ASM, and 

TSI vehicle inspections as a part of the 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 comment regarding the consistency with the CMP during tbe public 

comment period and no comments were received. 

PUBLIC COMMENT 

Public hearings were offered in Fort Worth on July 20, 20 I 0, at 2:00 p.m. at the TCEQ, Region 4 Office, 

DFW Public Meeting Room, 2309 Gravel Road; in Austin on July 21, 20 I 0, at I 0:00 a.m. at the TCEQ, 

Building E, Room 201 S, I2!00.Park 35 Circle; and in Houston on July 22, 2010, at 3:00p.m. at the 

Houston-Galveston Area Council, Conference Room A, 3555 Timmons Lane. No oral comments were 

received. The comment period opened on June 18, 20 I 0, and closed on July 26, 2010. One written 

comment was received from the EPA. 

RESPONSE TO COMMENTS 

The EPA expressed support for the proposed revisions to the rule and the liM SIP and expressed 

continued support for the liM program and the LIRAP. 

The commission appreciates the support for the proposed revisions to the rule and 11M SIP, the 11M 

program, and the LIRAP. No changes were 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), §5.1 02, General Powers, TWC, §5.1 03, 

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 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 adopt rules that differentiate among 

particular conditions, particular sources, and particular areas of the state. The amendment 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 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, 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 (FCAA), 42 

United States Code (USC), §§7401 et seq.; and THSC, Chapter 382, Subchapter H, 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 pursuant to Texas 

Transportation Code, §548.3075, which was amended by House Bill715 from the 8lst Texas 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), or in the rules of the commission, the terms used by the commission have 

the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that 

are defmed by the TCAA, the following words and terms, when used in Subchapter C of this chapter 

(relating to Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and 

Accelerated Vehicle Retirement Program; and Early Action Compact Counties), have the following 

meanings, unless the context clearly indicates otherwise. 

(I) Acceleration simulation mode (ASM-2) test-An emissions test using a dynamometer 

(a set of rollers on which a test vehicle's tires rest) that applies an increasing load or resistance to the drive 

train of a vehicle, thereby simulating actual tailpipe emissions of a vehicle as it is moving and accelerating. 

The ASM-2 vehicle emissions test is comprised of two phases: 

2 
(A) the 50/15 mode--in which the vehicle is tested on the dynamometer simulating 

the use of 50% of the vehicle available horsepower to accelerate at a rate of3.3 miles per hour (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% of the vehicle available horsepower to accelerate at a rate 3.3 mph per second at a constant 

speed of 25 mph. 

(2) Consumer price index-The consumer price index for any calendar year is the average 

of the consumer price index for all-urban consumers published by the Department ofLabor, as of the close 

ofthe 12-month period ending on August 31 of the calendar year. 

(3) Controller area network (CAN}-A vehicle manufacturer's communications protocol 

that connects to the various electronic modules in a vehicle. CAN provides one protocol that collects 

information from the vehicle's electronic systems including the on-board diagnostics (OBD) emissions 

testing system. The United States Environmental Protection Agency requires the CAN protocol to be 

installed in OBD-compliant vehicles beginning with some model year 2003 vehicles and phasing 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 of Public Safety. 

3 
(5) Motorist--A person or other entity responsible for the inspection, repair, and 

maintenance of a 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 

manufacturer that monitors the performance of the vehicle emissions control equipment, fuel metering 

system, and ignition system for the purpose of detecting malfunction or deterioration in performance that 

would be expected to cause the vehicle not to meet emissions standards. All references to OBD should be 

interpreted to mean the second generation of this equipment, sometimes referred to as OBD II. 

(7) On-road test--Utilization of remote sensing technology to identiJY vehicles operating 

within the inspection and maintenance program areas that have a high probability of being high-emitters. 

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

testing cycle. 

(9) Primarily operated-Use of a motor vehicle greater than 60 calendar days per testing 

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 of Public 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, consisting of the following counties: 

Collin, Dallas, Denton, and Tarrant; 

(B) the El Paso program area, consisting ofEI Paso County; 

{C) the Houston-Galveston-Brazoria program area, consisting of Brazoria, Fort 

Bend, Galveston, Harris, and Montgomery Counties; and 

{D) the extended Dallas-Fort Worth program area, consisting of Ellis, Johnson, 

Kaufman, Parker, and Rockwall Counties. These counties became part of the program area as of May I, 

2003. 

(II) Retests--Successive vehicle emissions inspections following the failing of an 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) il'lspection and maintenance test-A measurement of the tailpipe 

exhaust emissions of a vehicle while the vehicle idles, first at a lower speed and then again at a higher 

speed. 

5 
(14) Uncommon part--A part that takes more than 30 days for expected delivery and 

installation, where a motorist can prove that a reasonable attempt made to locate necessary emission 

control parts by retail or wholesale part suppliers will exceed the remaining time prior to expiration of the 

vehicle safety inspection certificate or the 30-day period following an out-of-cycle inspection. 

6 
SUBCHAPTER C: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE 

REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEIDCLE RETIREMENT 

PROGRAM; AND EARLY ACTION COMPACT COUNTIES 

DIVISION 1: VEHICLE INSPECTION AND MAINTENANCE 

§114.51 

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, §5.0 13, General Jurisdiction of Commission, whkh states the commission's 

authority over various statutory programs. The amendment is also adopted under Texas Health and Safety 

Code (THSC), §382.oJ 7, 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 

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 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 authorizes the commission to prepare and 

develop a genera~ 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 establish, 

7 
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 et 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 to § 114.51 is adopted pursuant to THSC, 

§382.205. 

The adopted amendment implements THSC, Subchapter G, §§382.201 - 382.220, Vehicle Emissions. 

§114.51. Equipment Evaluation Procedures for Vehicle Exhaust Gas Analyzers. 

(a) Any manufacturer or distributor of vehicle testing equipment may apply to the executive 

director of the commission or his appointee, for approval of an 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 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 in the liM program will satisfy all design and performance criteria set forth in the most recent 

version of the "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle 

Emissions Testing Program." Copies of this document are available at the commission's Central Office, 

located at 12100 Park 35 Circle, Austin, Texas 78753 or at 

http:!!www.tceq.state.tx.us!assetslpublic!imp/ementation/air/ms/IM/txvehanlspecs.pdf. The manufacturer 

shall also provide sufficient documentation to demonstrate conformance with these criteria including a 

8 
complete description of all hardware components, the results of appropriate performance testing, and a 

point-by-point response to each specific requirement. 

(b) All equipment must be tested by an independent test laboratory. The cost of the 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) of this section; 

(2) documentation of successful results from appropriate performance testing; 

(3) evidence of necessary changes to internal computer programming, display format, and 

data recording sequence; 

(4) a commitment to fulfill all maintenance, repair, training, and other service 

requirements described in the specifications referenced in subsection (a) of this section. A copy of the 

minimum warranty agreement to be offered to the purchaser of an approved vehicle exhaust gas analyzer 

must be included in the demonstration of conformance; and 

(5) documentation of communication ability using protocol provided by the commission or 

the commission Texas Information Management System (TIMS) contractor. 

9 
(c) If a review of the demonstration of conformance and all related support material indicates 

compliance with the criteria listed in subsections (a) and (b) of this section, the executive director or his 

appointee may issue a notice of approval to the analyzer manufucturer that endorses the use of the 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 or his appointee in the notice of approval. 

(e) Any manufacturer or distributor that receives a notice of approval from the executive director 

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

may be subject to appropriate enforcement action and penalties prescribed in the Texas Clean Air Act or 

the rules and regulations promulgated thereunder if: 

(I) any information included in the conformance demonstration as required in subsection 

(b) of this section is misrepresented resulting in the purchase or operation of equipment in the Texas liM 

program that does not meet the specifications referenced in subsection (a) of this section; 

(2) the applicant fails to comply with any requirement or commitment specified in the 

notice of approval issued by the executive director or implied by the representations submitted by the 

applicant in the conformance demonstration required by subsection (b) of this section; 

(3) the manufacturer or distributor fails to provide on-site service response by a qualified 

repair technician within two business days of a 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, Thanksgiving Day, and Christmas Day), and other days 

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) of this 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 of commission written notice of acceptance. 

11 
SUBCHAPTER C: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEIDCLE 

REP Am ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT 

PROGRAM; AND EARLY ACTION COMPACT COUNTIES 

DIVISION 1: VEIDCLE INSPECTION AND MAINTENANCE 

§114.52 

STATUTORY AUTHORITY 

The repeal is adopted under Texas Water Code (TWC), §5. I 02, General Powers, TWC, §5. I 03, Rules, and 

TWC, §5. I 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 repeal is also adopted under Texas Health and Safety Code (THSC), 

§382.01 7, 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 repeal 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 of public health, general welfare, and physical property; THSC, 

§382.01 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 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 3 82, Subchapter 

G, Vehicle Emissions, which provides the commission the authority by rule to establish, implement, and 

12 
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 et seq.; 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 INCOME VEHICLE 

REP AIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT . 

PROGRAM; AND EARLY ACTION COMPACT COUNTIES 

DIVISION 2: LOW INCOME VEHICLE REPAIR ASSISTANCE, 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, §5.1 03, 

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 under Texas Health and Safety 

Code (THSC), §382.0 17, 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, particular sources, and particular areas of the state. The amendment 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 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 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, 

14 
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 et seq.; 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, §382.21 0 

which was amended by House Bi111796 from the 8lst Texas Legislature, 2009. 

The adopted amendment implements rnsc, §382.210. 

§114.64. LJRAP Requirements. 

(a) hnplementation. Upon receiving a written request to 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 of a LIRAP in the requesting county. The 

executive director and county shall enter into a grant contract for the implementation of the LIRAP. 

(I) The grant contract must provide conditions, requirements, and projected funding 

allowances for the implementation ofthe LIRAP. 

(2) A participating county may contract with an entity approved by the executive director 

for services neces~ary to implement the L!RAP. A participating county or its designated entity shall 

demonstrate to the executive director that, 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 if the 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 repairs directly related to bringing certain vehicles that have failed 

a required emissions test into compliance with emissions requirements or for installing retrofit equipment 

on vehicles that have failed a required emissions test, if practically and economically feasible, in lieu of or 

in combination with repairs performed to bring a vehicle into compliance with emissions requirements. 

Vehicles under the LIRAP must be repaired or retrofitted at a recognized emissions repair facility. To 

determine 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: 

(I) the vehicle has failed a vehicle emissions test within 30 days of application submittal; 

(2) the vehicle can be driven under its own power to 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 preceding the application for assistance; 

16 
(4) the vehicle has passed the safety portion of the Texas Department of Public Safety 

(DPS) motor vehicle safety and emissions inspection as recorded in the Vehicle Inspection Report (VIR), 

or provide 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 or below 300% of the 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 monetwy or other compensatory 

assistance to eligible vehicle owners to be used toward the purchase of a replacement vehicle. 

(I) To determine eligibility, the participating county or its designated entity shall make 

applications available for LIRAP participants. The application, at a minirnwn, must require the vehicle 

owner to demonstrate that: 

(A) the vehicle meets the requirements under subsection (b)(!)- (3) and (5) of this 

section; 

(B) the vehicle has passed a DPS motor vehicle safety or safety and emissions 

inspection within 15 months prior to application submittal; and 

17 
(C) any other requirements of the participating county or the executive director are 

met. 

(2) Eligible vehicle owners ofpre-1996 model year 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 

detennined 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)(!) of this 

section, an eligible vehicle owner of a vehicle that is gasoline powered and is at least I 0 years old as 

detennined from the current calendar year (i.e., 20 I 0 minus I 0 years equals 2000) and meets the 

requirements under subsection (b)(2), (3), and (5) of this section, may be eligible for accelerated vehicle 

retirement and compensation. 

(4) Replacement vehicles must: 

(A) be in a class or category of vehicles that has been certified to meet federal Tier 

2, Bin 5 or cleaner Bin certification under 40 Code of Federal Regulations §86.1811-04, as published in 

the February I 0, 2000, Federal Register (65 FR 6698); 

(B) have a gross vehicle weight rating of less than I 0,000 pounds; 

18 
(C) be a vehicle, the total cost of which does not exceed $25,000; and 

(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. If the requirements of subsection (b) or (c) of this section are met and based on 

available funding, the county shall authorize monetary or other compensations to the eligible vehicle 

owner. 

(1) Compensations must be: 

(A) no more than $600 and no less than $30 per vehicle to be used for emissionrelated 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 of a replacement vehicle for the 

accelerated retirement of a vehicle meeting the requirements under this subsection. Only one retirement 

compensation can be used toward one replacement vehicle annually per applicant. The maximum amount 

toward a replacement vehicle must not exceed: 

(i) $3,000 for a replacement car of the current model year or previous 

three model years, except as provided by clause (iii) of this subparagraph; 

19 
(ii) $3,000 for a replacement truck of the current model year or the 

previous two model years, except as provided by clause (iii) of this subparagraph; 

(iii) $3,500 for a replacement hybrid vehicle of the current model year or 

the previous model year. 

(2) Vehicle owners shall be responsible for paying the first $30 of emission-related repairs 

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

(3) For accelerated vehicle retirement, provided that the compensation levels in paragraph 

(1)(8) of this subsection are met and minimum eligibility requirements under subsection (c) of this section 

are met, a participating county may set a specific level of compensation or implement a level of 

compensation schedule that allows flexibility. The following criteria may be used for determining the 

amount of financial assistance: 

(A) model year of the vehicle; 

(B) miles registered on the vehicle's odometer; 

(C) fair market value of the vehicle; 

20 
(D) estimated cost of emission-related repairs necessary to bring tbe vehicle into 

compliance witb emission standards; 

(E) amount of money tbe vehicle owner has already spent to bring tbe vehicle into 

compliance, excluding the cost of tbe 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 and retrofits within 30 calendar days of receiving 

an invoice tbat meets tbe requirements oftbe county or designated entity. Repaired or retrofitted vehicles 

must pass a DPS safety and emissions inspection before tbe recognized emissions repair facility is 

reimbursed. In tbe event tbat tbe vehicle does not pass tbe emissions retest after diagnosed repairs are 

perfonned, tbe participating county has tbe discretion, on a case-by-case basis, to make payment for 

diagnosed emissions repair work perfonned. 

(f) Reimbursements for replacements. A participating county shall ensure tbat funds are 

transferred to a participating automobile dealership no later tban I 0 business days after tbe county receives 

proof of tbe sale, proof of transfer to a dismantler, and any administrative documents tbat meet tbe 

requirements of tbe county or designated entity. A list of all administrative documents must be included in 

tbe agreements tbat are entered into by tbe 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 payment toward the purchase of a replacement vehicle. Participating 

automobile dealers shall be located in tbe State of Texas. 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 of applicant, tbe 

vehicle identification number oftbe retired vehicle, expiration date oftbe document, tbe program 

administrator's contact information, and tbe amount of money available to the participating vehicle owner. 

(B) The document must be presented to a participating dealer by tbe person 

seeking to purchase a replacement vehicle before entering into negotiations for a replacement vehicle. 

(C) A participating dealer who relies on the document issued by tbe participating 

county has no duty to confirm tbe eligibility oftbe person purchasing a replacement vehicle in tbe manner 

provided by tbis section. 

22 
Docket No. 2009-161 0-RUL 

On November 18, 2010, the Texas Commission on Environmental Quality (Commission), during a 

public meeting, considered adoption of amendments 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 

Texas Department of Public Safety. The adopted rule revision will also streamline the process 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 of the 

state's air and to issue orders consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 

of the Tex. Health & Safety Code. The proposed 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 1.1 02 and after proper notice, the Commission 

conducted public hearings to consider the proposed amendments to 30 TAC Chapter 114. Proper notice 

included prominent advertisement in the areas affected at least 30 days prior to the da!es of the hearings. Public 

hearings were held in Fort Worth on July 20, 2010 at the TCEQ, Region 4 Office, DFW Public Meeting Room, 

2309 Gravel Road; in Austin on July 21, 2010, at the TCEQ, Building E, 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 of the 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 of the proposed amendments to 30 TAC Chapter 114 were available for public inspection at the 

Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed amendments to 30 TAC 

Chapter 114 were submitted to the Commission during the comment period and. were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The Commission 

finds that the analysis of testimony includes the names of all interested groups or associations offering comment 

on the proposed amendments to 30 TAC Chapter 114 and their position 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 staff to make 

any non-substantive revisions to the rules necessary to comply with Texas Register requirements. The adopted 

rules and the preamble to the adopted rules and the revision to the SIP are incorporated by reference in this 

Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the Chairman 

should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, to the Regional 

Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, codified at 

. 42 U.S. Code Ann. §§ 7401- 767lq, as amended. 

lbis Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Gov't Code,§ 2001.033 (Vernon 2008). 

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, the 

invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: NOV 2 2 2010 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
mission 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 of solid 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 hereby certifies lh 

by legal counsel and found to b 

legal authority. 

he adoption has been reviewed 

a valid exercise of the 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 a federal 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 higher than 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 of the 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 Department of 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 of the 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 by the stale ff the 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 owners that were 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 1/M program was terminated w~hin five years of the program start date. As the EPIP expired in aiii/M program areas on 

ADOPTED RULES December 10, 2010 35 TexReg 10985 
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 

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 

four times to improve oversight and enhance effectiveness of the 

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 Repair Assistance, Retrofit, and 

Accelerated Vehicle Retirement Program (LIRAP), which was 

designed to assist low income individuals with repairs, retrofits, 

or retirement of vehicles 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 after the 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 modifications to theTAS and allow staff 

to implement minor non-programmatic modifications including 

updates to accommodate new technology vehicles, enhancements to the method of collecting 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 of acronyms, 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 waiver from 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 ensures 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 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 

are also contained in the "Specifications for Vehicle 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 deletes 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 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 Register 
The commission reviewed the adopted rulemaking in light of the 

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 may adversely affect in a material way 

the economy, a sector of the economy, productivity, competition, 

jobs, the environment, or the public health and safety of the state 

or a sector of the state." 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 of the agency instead of under 

a specific state law." 

The adopted rulemaking implements requiremenls of the 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 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 appropriate to meet the applicable requiremenls of this 

chapter," (meaning 42 USC, Chapter 85, 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 methods 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 of a 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 of the 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 not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs, 

nor do the adopted rule revisions adversely affect in a material 

way the environment, or the public health and safety of the state 

or a sector of the 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 under Texas Government Code, §2001.0225. 

While the adopted rulemaking does not constnute a major environmental law, even ff n did, 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 under the 

general powers ofthe TCEQ. With the understanding that this requirement would seldom apply, the commission provided a cost 

estimate for SB 633 that concluded: "based on an assessment 

of rules adopted by the agency in the pest, it is not anticipated 

that the bill will have significant fiscal implications for the agency 

due to its limited application." The commission also noted that 

the number of rules that would require assessment under the 

provisions of the bill was not large. This conclusion was based, 

in part, on the criteria set forth in the bill that exempted rules from 

ADOPTED RULES December 10, 2010 35 TexReg 10987 
the full analysis unless the rule was a major environmental rule 

that exceeds a federal law. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the 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, §7 410, 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 cost estimate 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 SIP fall under the exception in Texas 

Government Code, §2001.0225(a), because they are required 

by federal law. 

The commission has consistently applied this construction to 

its rules since this 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. 

water Auth. 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 if the 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 quality within the 

state and to design and submit a plan to achieve attainment 

and maintenance of the 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 of this 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 of this 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, or jobs, nor does it adversely affect in a material 

way the environment, or the public health and safety of the 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 if the adopted 

rulemaking was a major environmental rule, it does not meet any 

of the 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 of the adopted rulemaking 

are dorectiy requ1red by state law; 3) no contract or delegation 

agreement covers the topic that is the subject of this rulemaking; 

or 4) the adopted rulemaking IS authorized by specific sections 

of THSC, Chapter 382 (also known as the Texas Clean Air Act) 

and the TWC, which are cited in the STATUTORY AUTHORITY 

section of this preamble. 

The cor:nmission invited public comment regarding the draft regula!ory 1mpact analysis determination during the 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 a taking under Texas 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, Ar35 TexReg 10988 December 10, 2010 Texas Register 
licle 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 of the governmental action: and (ii) is the producing cause of a reduction of at 

least 25% in tha mar1<et value of the affacted privata real property, determined by comparing the mar1<at value of the property 

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

of the property determined as if the 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 

neither a statutory nor a 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 of any private real proparty by 25% or more 

beyond that which would otherwise exist in the absence of the 

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 (3 t 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 of the 

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. atthe TCEQ, Building E, Room 201 S, 12100 Park 35 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 liM SIP 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. 

SUBCHAPTER A. 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 

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 

ADOPTED RULES December 10, 1010 35 TexReg 10989 
Air Act), and to adopt rules that differentiate among particular 

conditions, particular sources, and particular areas of the state. 

The amendment 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 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 of the 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, 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 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 agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the 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 carry out 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 

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, particular sources, and particular areas of the state. 

The amendment 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 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 et 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 to §114.51 is 

adopted pursuant to THSC, §382.205. 

The adopted amendment implements THSC, Subchapter G, 

§§382.201 - 382.220, Vehicle Emissions. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of 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 under Texas Water Code (TWC), §5.102, 

General Powers, TWC, §5.1 03, 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 

35 Tex:Reg 10990 December 10, 2010 Texas Register 
programs. 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, particular sources, and particular areas of the 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 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, 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 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 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 that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on 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. LOW INCOME VEIDCLE REPAIR 

ASSISTANCE, RETROFIT, AND ACCELERATED 

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 

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 adopt rules that differentiate among particular 

conditions, particular sources, and particular areas of the state. 

The amendment 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 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 of the 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, §382.21 0 which was amended by House Bill 1796 

from the 81st Texas Legislature, 2009. 

The adopted amendment implements THSC, §382.210. 

§114.64. lJRAP Requ;n?ments. 

(a) Implementation. Upon receiving a written request to 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 of 

a LIRAP in the requesting county. The executive director and county 

shall enter into a grant contract for the implementation of the LIRAP. 

(1) The grant contract mwt provide conditions, requirements, and projected funding allowances for the implementation of the 

LIRAP. 

(2) A participating county may contract with an entity approved by the executive director for services necessary to implement 

the LIRAP. A participating 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) The participating county shall remain the contracted entity even if the 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 repairs directly related to bringing certain vehicles that have failed a 

required emissions test into compliance with emissions requirements or 

for installing retrofit equipment on vehicles that have failed a required 

emissions test, if practically and economically feasible, in lieu of or 

in combination with repairs performed to bring a vehicle into compliance with emissions requirements. Vehicles under the URAP must be 

repaired or retrofitted at a recognized emissions repair facility. To determine 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: 

ADOPTED RULES December 10, 2010 35 TexReg 10991 
(1) the vehicle has failed a vehicle emissions test within 30 

days of application submittal; 

(2) the vehicle can be driven under its own power to the 

emissions inspection station or vehicle retirement facility; 

(3) the vehicle is currently registered in and has been regis~ 

tered in the program county for the 12 months immediately preceding 

the application for assistance; 

(4) the vehicle has passed the safety portion of the Texas 

Department ofPublic Safety (DPS) motor vehicle safety and emissions 

inspection as recorded in the Vehicle Inspection Report (VIR), or provide 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 or below 

300% of the 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 of a 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 prior to application submittal; and 

(C) any other requirements of the 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) of this section, an eligible vehicle owner of a vehicle that is g~JSQiine powered and is at least 10 years old as determined 

from the current calendar year (i.e., 2010 minus 10 years equals 2000) 

and meets the requirements under subsection (b)(2), (3), and (5) of this 

section, may be eligible for accelerated vehicle retirement and compensation. 

(4) Replacement vehicles must: 

(A) be in a class or category of vehicles that has been 

certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 

40 Code ofFcderal Regulations §86.1811-04, as published in the February 10, 2000, Federal Register (65 FR 6698); 

(B) have a gross vehicle weight rating of less than 

10,000 pounds; 

(C) be a vehicle, the total cost of which does not exceed 

$25,000; and 

(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 detennine 

eligibility and approve or deny the application promptly. If the requirements of subsection (b) or (c) of this section are met and based on 

available funding, the county shall authorize monetary or other compensations to the eligible vehicle owner. 

(I) Compensations must be: 

(A) no more than $600 and no less than $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 of a replacement vehicle for the accelerated retirement of a vehicle meeting the requirements under this subsection. Only one retirement com~!lS8tion 

can be used toward one replacement vehicle annual1y per ap-plicant. 

The maximum amount toward a replacement vehicle must not exceed: 

(l) $3,000 for a replacement carofthe current model 

year or previous three model years, except as provided by clause (iii) 

of this 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) of this subparagraph; 

(iii) $3,500 for a replacement hybrid vehicle of the 

current model year or the previous model year. 

(2) Vehicle owners sball be responsible for paying the first 

$30 of emission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle. 

(3) For accelerated vehicle retirement, provided that the 

compensation levels in paragraph (1)(B) of this subsection are met and 

minimum eligibiJity requirements under subsection (c) of this section 

are met, a participating county may set a specific level of compensation 

or implement a level of compensation schedule that allows fiexibility. 

The following criteria may be used for detennining the amount of financial assistance: 

(A) model year of the vehicle; 

(B) miles registered on the vehicle's odometer; 

(C) fair market value of the 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 of the 

vehicle emissions inspection; and 

(F) vehicle owner's income. 

(e) Reimbursement for repairs and retrofits. A panicipating 

county shall reimburse the appropriate recognized emissions repair facility for approved repairs and retrofits within 30 calendar days of receiving an invoice that meets the requirements of the 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 performed, the participating county has the discretion, on a case-by-case bWiiS, to make payment 

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 later than 10 business days after the county receives proof 

of the sale, proofoftransfcrto adismantler, and any administrative doc35 TexReg 10992 December 10, 2010 Texas Register 
uments that meet the requirements of the county or designated entity. 

A list of all 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 a participating 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 must include at a minimum, the full 

narne of applicant, the vehicle identification number of the retired vehicle, expirntion date of the document, the program administrator's contact information, and the amount of money available to the participating 

vehicle owner. 

(B) The document must be presented to a participating 

dealer by 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 

issued by the participating county has no duty to confirm the eligibility 

of the person purchasing a replacement vehicle in the manner provided 

by this section. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on 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, 201 0 

For further information, please call: (512) 239-2548 

• 

TITLE 37. PUBLICS 

TIONS 

• 

FETY AND CORRECPART 5. TEXAS B ARD OF PARDONS 

AND PAROLES 

CHAPTER 145. PARO 

SUBCHAPTER A. LE PROCESS 

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 of the 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 during which the TDCJ-Parole Divis n shall provide written notice to 

an eligible offender offuture 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 of these 

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 of offe ers on mandatory supervision. 

This agency hereby certifies that he adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer tary of State on November 22, 

2010. 

TRD-201 006702 

Bettie Wells 

General Counsel 

Texas Board of Pardons and Parol 

Effective date: December 12, 2010 

Proposal publication date: Septem 

For further information, please call: 

• 

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. 

T JPC adopts these amendmen in an effort to further ensure 

juveniles and staff within secure cilities are protected from the 

accidental or intentional introdu ·on of firearms into the secure 

portion of the facility. Adult corre tional facilities have similar prohibitions against the presence of 1rearms within secure facilities. 

No public comment was receiv during the official public comment period. 

ADOPTED RULES December 10, 2010 35 TexReg 10993