Docket ID: EPA‐R06‐OAR‐2012‐0099

Technical Support Document ‐ B

Addressing

Revisions to Chapter 114: Control of Air Pollution from Motor Vehicles

and the Texas Conformity State Implementation Plan;

Revisions to the Failure‐to‐Attain Contingency Measures Plan for the Dallas‐Fort Worth SIP;

and the Requirement to Address Clean Fuel Fleet Programs

March 2014

Table of Contents

A. Introduction

B. Background

C. The Revisions to Chapter 114 and EPA’s Evaluations and Recommendations

1. The July 25, 2007 Submittal

2. The March 25, 2010 and the April 13, 2012 Submittals

D. The Revisions to the Failure‐to‐Attain Contingency Measures SIP and EPA’s Evaluation

and Recommendation

E. The Requirement to Address Clean Fuel Fleet Programs

F. References

A. Introduction

In this technical support document (TSD) the EPA is evaluating four submittals provided

by the Texas Commission on Environmental Quality (TCEQ), which would revise portions of the

Texas State Implementation Plan (SIP). The submittals make revisions to Title 30 of the Texas

Administrative Code, Chapter 114 (denoted 30 TAC 114), which addresses Control of Air

Pollution from Motor Vehicles and the Transportation Conformity SIP. One of the submittals

addresses the failure‐to‐attain contingency measures in the Dallas‐Fort Worth (DFW) SIP and

another, the Clean Fuel Fleet Programs (CFFPs). More detail on these submittals and our

evaluations are provided in sections C and D below. Throughout this document, “we,” “us,” and

“our” means the EPA.

Section B of this document provides an introduction to the national ambient air quality

standards (NAAQS), a brief description of why we regulate ground‐level ozone, and the

components of a SIP. We also include the legal authority and process under which the TCEQ

submitted each of the SIP revisions under review here. Copies of the TCEQ’s submittals are in

the docket for this rulemaking.

Sections C ‐ E contain a description of each submittal, followed by our evaluation and

recommended action.

Section F lists the guidance documents we reference here, along with electronic links,

should readers wish to review these guidance documents.
2 

B. Background

Section 108 of the Act requires EPA to establish NAAQS for pollutants that “may

reasonably be anticipated to endanger public health and welfare” and to develop a primary and

secondary standard for each NAAQS. The primary standard is designed to protect human health

with an adequate margin of safety and the secondary standard is designed to protect public

welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as

criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and

sulfur dioxide. These standards present state and local governments with the minimum air

quality levels they must meet to comply with the Act. Also, these standards provide information

to residents of the United States about the air quality in their communities. For additional

information on the NAAQS, please visit www.epa.gov/ttn/naaqs/.

Ozone is a gas composed of three oxygen atoms. It is not usually emitted directly into

the air, but at ground level is created by a chemical reaction between volatile organic

compounds (VOCs) and oxides of nitrogen (NOx) in the presence of sunlight. Repeated

exposure to ozone pollution may cause permanent lung damage. Even at very low levels,

ground‐level ozone triggers a variety of health problems including aggravated asthma, reduced

lung capacity, and increased susceptibility to respiratory illnesses like pneumonia and

bronchitis. It can also have detrimental effects on plants and ecosystems. For additional

information on ground level ozone, please visit www.epa.gov/groundlevelozone/.

Section 110 of the CAA requires states to develop air pollution regulations and control

strategies to ensure that air quality meets the NAAQS established by EPA. A SIP is a set of air

pollution regulations, control strategies, other means or techniques, and technical analyses

developed by the state, to ensure that the state meets the NAAQS. A SIP protects air quality

primarily by addressing air pollution at its point of origin. A SIP can be extensive, containing

state regulations or other enforceable documents, and supporting information such as

emissions inventories (EIs), monitoring networks, and modeling demonstrations. Each state

must submit regulations and control strategies to EPA for approval and incorporation into their

federally‐enforceable SIP. Any changes to the SIP‐approved rules and control strategies must

also be submitted to the EPA for approval.

Legal Authority

The Texas Health and Safety Code (THSC) and the Texas Water Code (TWC) provide

various authorities to the TCEQ. Under the TWC, Chapter 5, section 102 (denoted §5.102)

provides the commission with the general powers to carry out its duties; §5.103 requires the

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

provisions of the TWC and other laws of the state; and §5.105 requires the commission by rule

to establish and approve all general policy of the commission. Under the THSC, Chapter 382

(the Texas Clean Air Act), §382.002 establishes the commission's purpose to safeguard the

state's air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011 requires the commission to establish the level of quality to be

maintained in the state's air and to control the quality of the state's air; §382.012 requires the

commission to prepare and develop a general, comprehensive plan for the control of the state's

air; §382.017 authorizes the commission to adopt rules consistent with the policy and purposes
3 

of the Texas Clean Air Act; §382.019 authorizes the commission to adopt rules to control and

reduce emissions from engines used to propel land vehicles; §382.023 authorizes the

commission to issue orders and make determinations as necessary to carry out the purpose of

this chapter; and Chapter 386 establishes the Texas Emission Reduction Plan (TERP) program.

We initially distinguish the four Texas SIP revisions by the dates they were submitted to

us: July 25, 2007; March 25, 2010; April 6, 2010; and April 13, 2012. Notice of the proposed

revisions to the SIP for the July 25, 2007 submittal was published in area newspapers on

February 1, 2007 and in the February 9, 2007 issue of the Texas Register (32 TexReg 499); on

June 27, 2007, the TCEQ adopted these revisions. Notice of the proposed revisions to the SIP

for the March 25, 2010 submittal was published in area newspapers on October 9, 2009 and in

the October 23, 2009 issue of the Texas Register (34 TexReg 7291); on February 24, 2010, the

TCEQ adopted these revisions. Notice of the proposed revisions to the SIP for the April 6, 2010

submittal was published in area newspapers on September 25 and 28, 2009 and in the October

9, 2009 issue of the Texas Register (34 TexReg 7133); on March 10, 2010, the TCEQ adopted

these revisions. Notice of the proposed revisions to the SIP for the April 13, 2012 submittal was

published in area newspapers on October 20, 2011 and in the November 4, 2011 issue of the

Texas Register (36 TexReg 7468); on March 28, 2012, the TCEQ adopted these revisions. More

detail and our evaluations for each of these submittals are provided in Section D below.

The State has the authority to implement these revisions.

C. The Revisions to Chapter 114 and EPA’s Evaluations and Recommendations

1. The July 25, 2007 Submittal

On July 25, 2007, the TCEQ submitted revisions to 30 TAC Chapter 114: Control of Air

Pollution from Motor Vehicles. These revisions address the Transportation Conformity

provisions in the SIP.

We published the first transportation conformity rule on November 24, 1993, in volume

58 of the Federal Register, beginning on page 62188 (denoted 58 FR 62188). The transportation

conformity rules have undergone many revisions since, including May 6, 2005 (70 FR 24280)

and March 10, 2006 (71 FR 12468). In 2005 (70 FR 24280), we published revisions to the

transportation conformity rule to account for the NAAQS for particulate matter (PM) with an

aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2.5), adding

transportation‐related PM2.5 precursors to the transportation conformity regulations: NOx,

VOCs, sulfur oxides, and ammonia. The final rule specifies when each of these precursors must

be considered in conformity determinations in PM2.5 nonattainment and maintenance areas

before and after PM2.5 SIPs are submitted. In 2006 (71 FR 12468), EPA’s revisions to the

transportation conformity rule established the criteria for determining which transportation

projects must be analyzed for local particle emissions impacts in PM2.5 and PM10 nonattainment

and maintenance areas. This rule established requirements in PM2.5 areas and revised existing

requirements in PM10 areas. The rule also required local particle emissions impacts analyses for

certain transportation projects to ensure that such projects would not adversely impact the

NAAQS.
4 

In addition to the conformity revisions referenced above, certain changes to the Federal

transportation conformity rule were enacted with the signing of the Federal Surface

Transportation Reauthorization Act, better known as the Safe, Accountable, Flexible, Efficient

Transportation Equity Act – A Legacy for Users (SAFETEA‐LU) on August 10, 2005 (Pub. L. 109–

59). The transportation conformity provisions in SAFETEA‐LU streamlined the requirements for

conformity SIPs. Prior to SAFETEA‐LU, states were required to address all of the federal

conformity regulations in the SIP. Most of the regulations were required to be copied verbatim

from the Federal rules. With the enactment of SAFETEA‐LU, states are required to adopt only

three sections of the federal conformity regulations into the state SIP: 1) 40 CFR 93.105

addressing interagency consultation procedures; 2) 40 CFR 93.122(a)(4)(ii) addressing written

commitments to transportation control measures; and 3) 40 CFR 93.125(c) addressing written

commitments to mitigation measures (see 73 FR 4420, January 24, 2008).  Any changes to the

federal conformity rules beyond these three provisions would automatically apply in any state

that has incorporated only these three provisions in its approved conformity SIP (73 FR 4420,

4432).

More recent revisions have been made to the Federal transportation conformity rule, to

adopt amendments to implement additional provisions contained in the SAFETEA‐LU (73 FR

4420, January 24, 2008); Transportation Conformity Rule PM2.5 and PM10 Amendments (75 FR

14260, March 24, 2010); to address the Regional Grace Period Extension for the Motor Vehicle

Emission Simulator (MOVES) model (77 FR 11394, February 27, 2012); and Transportation

Conformity Rule Restructuring Amendments (77 FR 14979, March 14, 2012).

We approved Texas’s first transportation conformity SIP on November 8, 1995 (60 FR

56244) and it has undergone several revisions since. The last revisions to the Texas conformity

SIP were approved by EPA on July 6, 2005 (70 FR 38776).1 The July 25, 2007 SIP revisions (“the

2007 SIP revisions”) at issue in this TSD align the Texas conformity rules with the requirements

of SAFETEA‐LU, by rescinding most of the state’s conformity regulations and incorporating by

reference the three sections of the federal conformity regulations listed above: interagency

consultation procedures, and written commitments to transportation control measures and

mitigation measures. Once the state rules are rescinded, the analogous Federal conformity

rules will apply.

The 2007 SIP revisions also address certain federal requirements relating to PM2.5

precursors and when they apply in conformity determinations (pursuant to 70 FR 24280), and

repeal the requirement to perform quantitative PM10 hotspot analyses.2 The EPA requires

quantitative PM10 hot‐spot analyses in PM10 nonattainment and maintenance areas only for

projects of air quality concern.3 At the time of the TCEQ’s (2007) submittal however, we

weren’t requiring quantitative hotspot analyses because we hadn’t published guidance to assist

areas in performing such analyses. We instead indicated that qualitative hot‐spot analyses

 

1 The history of revisions to the Texas conformity SIP is well documented in 70 FR 38776.

2 A hot‐spot analysis assesses the air quality impacts on a scale smaller than an entire nonattainment or

maintenance area, including, for example, congested roadway intersections and highways or transit terminals.

3 See 71 FR 12468. EPA specifies in 40 CFR 93.123(b)(1) that projects of air quality concern are highway and transit

projects that involve significant levels of diesel vehicle traffic, and any other project that is identified in the PM10

SIP as a localized concern.
5 

would be done for these projects before EPA releases its modeling guidance and announces

that quantitative PM10 hot‐spot analyses are required under 40 CFR 93.123(b)(4). See 71 FR

12468, 12484. The EPA released its Transportation Conformity Guidance for Quantitative Hot‐

Spot Analyses in PM2.5 and PM10 Nonattainment and Maintenance Areas in November 2013.4

However and, as noted above, because of the streamlining provisions of SAFETEA‐LU, such

changes to the conformity rules from 2008 to the present (including requirements addressing

quantitative hotspot analyses) automatically apply in Texas and Texas need not submit further

revisions.

Table 1 below includes an evaluation of each revision in the July 25, 2007 submittal,

which addresses 30 TAC 114. We’re including underline (depicts new text) and [bracketed

strikeout] (depicts deleted text) annotations of the submitted rules to show how each section

of the rule is revised. Our comments include an explanation for how each revision meets the

requirements for SIP approval under 23 CFR 450, 40 CFR 93, and EPA’s guidance.

Table 1: July 25, 2007 revisions to 30 TAC 114.260

Submitted revisions EPA Comments

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

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

Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded, or

Approved under Title 23 United States Code (USC) or the Federal Transit Laws), which are the

regulations developed by the United States Environmental Protection Agency (EPA) under the

Federal Clean Air Act Amendments of 1990, §176(c)(4)(e). This section addresses the consultation

process and the written commitment requirements for control measures and mitigation measures

that are used [It includes policy, criteria, and procedures] to demonstrate and assure conformity of

transportation planning activities with the state implementation plan (SIP).

Pursuant to and

consistent with the

transportation conformity

streamlining provisions in

SAFETEA‐LU and 40 CFR

Parts 93.105,

93.122(a)(4)(ii) and

93.125(c). See also 73 FR

4420.

(b) Applicability. This applies to transportation‐related criteria pollutants for which an area is

designated nonattainment or is subject to a maintenance plan. The transportation‐related criteria

pollutants are [include] ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic

diameter of ten micrometers (PM10) and smaller, and particles with an aerodynamic diameter less

than or equal to a nominal 2.5 micrometers (PM2.5). [,] This section also applies to [and] the

precursors of ozone, nitrogen dioxide, [and] PM10, and PM2.5 as required in 40 CFR §93.102. [(For

the official list and boundaries of nonattainment areas, see 40 CFR Part 81 and pertinent Federal

Register notices.)]

Pursuant to 40 CFR

93.102, adds PM2.5

precursors to the list of

criteria pollutants.

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

specified in 40 CFR §93.122(a)(4)(ii) and 93.125(c) [Part 93, Subpart A, (62 FR 43780) dated August

15, 1997 and amended through July 1, 2004,] are adopted by reference [with the exception of

§93.105. The requirements of §93.105 are addressed in subsection (d) of this section].

Consistent with

93.122(a)(4)(ii) and

93.125(c). Deletes

redundant text.

(d)(2)(A)(i) allow the commission’s executive director [Air Quality Planning and Implementation

Division director,] or a designated representative, to be a voting member of technical committees

on surface transportation and air quality in each nonattainment and maintenance area in order to

consult directly with the particular committee during the development of the transportation plans,

programs, and projects;

Consistent with 40 CFR

93.105.

(d)(2)(A)(ii) send information on time and location, an agenda, and supporting materials (including

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

transportation or air quality to each of the contacts specified in paragraph (1)(B) of this subsection

Consistent with 23 CFR

450.5

 

4 The guidance document number for this publication is EPA‐420‐B‐13‐053. The document can be accessed

electronically at www.fhwa.dot.gov/environment/air_quality/conformity/. Information on transportation

conformity is also available at www.epa.gov/otaq/stateresources/transconf/policy.htm.

5 §450.316(b)(1) [which is deleted in this revision] addresses metropolitan transportation planning and

programming. The revised, broader reference to Part 450 includes definitions, and state and metropolitan

transportation planning and programming.
6 

Submitted revisions EPA Comments

This information must be provided in accordance with the locally adopted public participation

[involvement] process a required in [by] 23 CFR Part 450 [§450.316(b)(1)];

(d)(2)(A)(iii) after preparation of final draft versions of MTPs and TIPs, and before adoption and

approval by the affected governing body, ensure that the contacts specified in paragraph (1)(B) of

this subsection receive a copy, and that they are included in the local area’s public participation

process as required in [by the Metropolitan Planning Rule,] 23 CFR Part 450[§450.316(b)(1)]. Upon

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

contacts specified in paragraph (1)(B) of this subsection;

Consistent with 23 CFR

450.

No changes made to

(d)(2)(A)(iv)

(d)(2)(A)(v) include in the TIP a list of projects exempted from the requirements of a conformity

determination under 40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies

specified in paragraph (1)(A) of this subsection in determining if a project on the list has potentially

adverse emissions for any reason, including whether or not the exempt project will interfere with

implementation of an adopted transportation control measure (TCM). The MPO shall respond in

writing to all comments within 30 days on final MTP and TIP documents. In addition, if no comments

are received as part of the subsequent public participation [involvement] process for the TIP, the

MPO may proceed with implementation of the exempt project;

Consistent with 40 CFR

Parts 93.105, 93.126, and

93.127.

No changes made to

(d)(2)(A)(vi)

(d)(2)(A)[(vii) as required by 40 CFR §93.116 and §93.123, and in cooperation with TxDOT, make a

preliminary identification of those projects located at sites in PM10 nonattainment and maintenance

areas that require quantitative PM10 hot spot analyses. After these projects have been identified,

the MPO shall submit a list of these projects and sufficient data to the agencies specified in

paragraph (1)(A) of this subsection for review and comment;]

                (vii) [(viii)] before adoption of any new or substantially different methods or assumptions

used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified

in paragraph (1)(A) of this subsection to review and comment;

                 (viii) [(ix)] in coordination with TxDOT and the Local transit agencies, disclose all known,

regionally significant, non‐federal projects, even if the sponsor has not made a final decision on its

implementation; include all disclosed, or otherwise known, regionally significant, non‐federal

projects in the regional emissions analysis for the nonattainment area; respond in writing to any

comments that known plans for a regionally significant, non‐federal project have not been properly

reflected in the regional emissions analysis; and have recipients of federal funds determine annually

that their regionally significant, non‐federal projects are included in a conforming MTP or TTP, or are

included in a regional emissions analysis of the MTP and TIP. The MPO shall consult with project

sponsors to determine the non‐federal projects' location and design concept and scope to be used

in the regional emissions analysis, particularly for projects that the sponsor does not report a single

intent because the sponsor's alternatives selection process is not yet complete. If the MPO assumes

a design concept and scope that is different from the sponsor's ultimate choice, the next regional

emissions analysis for a conformity determination must reflect the most recent information

regarding the project's design concept and scope;

                 (ix) [(x)] ensure timely TCM implementation and report on the implementation and

emissions reductions status of adopted TCMs annually to the commission;

                 (x) [(xi)] cooperatively share the responsibility for conducting conformity determinations

on transportation activities that cross the borders of MPOs or nonattainment and maintenance

areas. The affected MPOs will enter into a Memorandum of Agreement (MOA) that will define the

effective boundary and the respective responsibilities of each MPO for regional emissions analysis.

The MPOs will be responsible within their respective metropolitan area boundaries and, at their

option, beyond to the boundaries of the nonattainment/maintenance areas, for regional emissions

analysis. Adjacent MPOs or nonattainment/maintenance areas or basins will share information

concerning air quality modeling assumptions and emission rates that affect both areas; and

                  (xi) [(xii)] for the purpose of determining the conformity of all projects outside the

metropolitan planning area, but within the nonattainment or maintenance area, enter into an MOA

involving the MPO and TxDOT for cooperative planning and analysis of projects.

Removes the provision

addressing quantitative

PM10 hot spot analyses,

pursuant to 71 FR 12468.

Consistent with 40 CFR

Parts 93.116 and 93.123.

Paragraphs are

renumbered to adjust for

the deletion of

(d)(2)(A)(vii).

No changes made to

(d)(2)(B)(i)‐(iv)
7 

Submitted revisions EPA Comments

(d)(2)(B)(v) consult with the applicable agencies specified in paragraph (1)(A) of this subsection, in

order to cooperatively choose conformity tests and methodologies for isolated rural nonattainment

and maintenance areas, as required by 40 CFR §93.109(l)(2)(iii)[§93.109(g)(2)(iii)].

Texas adopted the

SAFETEA‐LU streamlined

approach, thus the

current federal

conformity rules

automatically apply

here.6

(d)(3)(A) The MPO, TxDOT, or the commission, as applicable, shall respond to comments of affected

agencies on MTPs, TIPs, projects, or SIP revisions in accordance with the public participation

[involvement] procedures that govern the involved action. The MPO, TxDOT, or the commission, as

applicable, shall include all comments and the replies to those comments with final documents

when they are submitted for adoption by the agency’s governing board. In the event that comments

are not adequately resolved, the procedures outlined in paragraph (4) of this subsection regarding

conflict resolution apply.

Consistent with 40 CFR

93.105.

No changes made to

(d)(3)(B)

(d)(3)(C) For the purposes of evaluating and choosing a model (or models) and associated methods

and assumptions to be used in hot spot and regional emissions analyses, agencies specified in

paragraph (1)(A) of this subsection shall participate in a working group [identified as the Technical

Working Group for Mobile Source Emissions]. The frequency of meetings and agendas for them will

be cooperatively determined by the agencies specified in paragraph (1)(A) of this subsection. [The

function of this working group may be delegated to an existing group with similar composition and

purpose.]

Consistent with 40 CFR

93.105.

No changes made to

(d)(3)(D)‐(E) and (d)(4)

(d)(5) Public comment on conformity determinations. Consistent with the requirements of 23 CFR

Part 450, concerning public participation [involvement], the agencies making conformity

determinations on transportation plans, programs, and projects must establish a proactive public

participation [involvement] process that provides opportunity for public review and comment. [This

process must, at a minimum, provide reasonable public access to technical and policy information

considered by the agency at the beginning of the public comment period and before taking formal

action on conformity determinations for all MTPs and TIPS as required by 23 CFR §450.316(b) and

this section.] Any charges imposed for public inspection and copying should be consistent with the

fee schedule contained in 49 CFR §7.43 [§7.95]. In addition, these agencies shall address in writing

any public comment claiming that a non‐FHWA/FTA funded, regionally significant project has not

been properly represented in the conformity determination for an MTP or TIP. Finally, these

agencies shall provide opportunity for public involvement in conformity determinations for projects

where otherwise required by law.

Consistent with 23 CFR

450 and 40 CFR 93.105.

No changes made to

(d)(6)

(e) Regionally significant, non‐federal projects. For the purposes of 40 CFR §93.121, adoption or

approval of a regionally significant, non‐federal project (a regionally significant project that does not

require FHWA or FTA approval or finding) occurs when affected agencies that are recipients of

federal funds designated under 23 USC or the federal transit laws take one of the following actions:

      (1) board approval, action, or resolution (such approval, action, or resolution does not include  

MPO approval for the purposes of approving project in a currently conforming MTP or TIP);

      (2) issuance of administrative permits for the regionally significant project;

      (3) action of official authorizing the regionally significant project to proceed;

      (4) providing grants or loans for the construction of a regionally significant project; or

      (5) contract execution for the regionally significant project.

Consistent with EPA’s

Guidance Memorandum,

Conformity Guidance on

Implementation of the

March 2, 1999 Conformity

Court Decision, page 8,

May 14, 1999.

 

6 The citation to 40 CFR 93.109(l) was removed within the Transportation Conformity Rule Restructuring

Amendments (77 FR 14979). However, in today’s rulemaking action we are proposing to approve the Texas

conformity SIP that addresses the three sections that the CAA now requires [(1) interagency consultation

procedures, and written commitments to (2) transportation control measures and (3) mitigation measures].

Pursuant to the streamlining measures in SAFETEA‐LU, Texas would need to revise its conformity SIP only if EPA

revises one of these sections of the conformity rule, or the state chooses to revise one of these three provisions.

Any changes to the federal conformity rules beyond these three provisions would automatically apply in any state

that has only these three provisions in its approved conformity SIP (73 FR 4420, 4432), including the Texas SIP.
8 

Submitted revisions EPA Comments

(f) [(e)] Compliance date. Compliance with this section is required for transportation conformity

determinations that begin the interagency consultation process after [begins on] the date of EPA

approval of the transportation conformity SIP associated with this rule.

Consistent with 40 CFR

93.105.

In February 2007, the TCEQ proposed these SIP revisions and after reviewing, we

submitted a comment letter to the TCEQ dated March 12, 2007. Our letter identified two small

errors and made suggestions; the inaccuracies were corrected by the TCEQ and incorporated

into the revisions in the July 25, 2007 submittal. The July 25, 2007 revisions would make the SIP

current with the TCEQ style and format guidelines, and with the associated state and Federal

statutes.7 The July 25, 2007 revisions are consistent with 23 CFR 450, 40 CFR 93, and EPA’s

Conformity Guidance on Implementation of the March 2, 1999 Conformity Court Decision. The

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

consistent with the TCEQ’s current style and format. The renumbering of certain parts makes

adjustments for the proposed deletions and additions throughout the rule. We therefore

recommend approval of the July 25, 2007 revisions.

2. The March 25, 2010 and April 13, 2012 Submittals

The revisions submitted on March 25, 2010 and April 13, 2012 make changes to 30 TAC

114, Subchapter K, Division 3, Diesel Emissions Reduction Incentive Program for On‐Road and

Non‐Road Vehicles (DERIP). The DERIP falls under the Texas Emissions Reduction Program,

which provides financial incentives to eligible individuals, businesses or local governments to

reduce emissions from polluting vehicles and equipment. The concept of TERP as an economic

incentive program was approved into the Texas SIP on November 14, 2001 (66 FR 57160). On

August 19, 2005, we approved revisions that allow the TCEQ to capture credit from certain

TERP reductions (i.e., the DERIP) and use them in attainment demonstrations for non‐

attainment areas (see 70 FR 48647). The EPA evaluated the DERIP using its guidance for

economic incentive programs (EIPs), Improving Air Quality with Economic Incentive Programs

(“the EIP Guidance”).8 An EIP is a regulatory program that achieves an air quality objective by

providing market based incentives or information to emission sources. In EPA nomenclature,

the TERP is a Financial Mechanism EIP. Specifically, a Financial Mechanism EIP is a type of EIP

that includes fees, taxes, or subsidies targeted at promoting pollution reducing activities or

products; this is also known as a programmatic reduction EIP. For more on our evaluation of the

DERIP, see 70 FR 48647 and the corresponding docket number R06–OAR–2005–TX–0021 at

www.regulations.gov.

The revisions address criteria for the use of grant‐funded vehicles and engines,

destruction of vehicles and engines replaced under the program, and waiver of certain eligibility

requirements by the executive director. An itemized list of these revisions, with our evaluation

of each, is provided in Table 3 below.

 

7 The TCEQ submittal includes the proposed and final revisions, and comments received during their public

comment period. This submittal is included in the docket for this rulemaking.

8 This guidance was published January 2001 and may be viewed and/or downloaded from the internet at

www.epa.gov/ttn/oarpg/t1/memoranda/eipfin.pdf.
9 

Table 3: March 25, 2010 and April 13, 2012 revisions to 30 TAC 114.

March 25, 2010 Revisions April 13, 2012 Revisions EPA Comments

§114.620 (12) Stationary engine‐A

machine used in non‐mobile

applications that converts fuel into

mechanical motion, including turbines

and other internal combustion devices.

Consistent with EPA’s

definition of stationary

engine in 40 CFR

63.6585(a).

§114.622 (b) For a proposed project as

listed in subsection (a) of this section,

other than a project involving a marine

vessel or engine or a project involving

non‐road equipment used for natural

gas recovery purposes, not less than

75% of vehicle miles traveled or hours

of operation projected for the five years

immediately following the award of a

grant must be projected to take place in

a nonattainment area or affected

county of this state. The commission

may also allow vehicle travel on

highways and roadways, or portions of

a highway or roadway, designated by

the commission and located outside a

nonattainment area or affected county

to count towards the percentage of use

requirement.

§114.622 (b) For a proposed project as listed in

subsection (a) of this section, other than a project

involving a marine vessel or engine, [or] a project

involving non‐road equipment used for natural gas

recovery purposes, a project involving replacement of a

motor vehicle, or a project involving the purchase or

lease of a motor vehicle, not less than 75% of vehicle

miles traveled or hours of operation projected for the

five years immediately following the award of a grant

must be projected to take place in a nonattainment

area or affected county of this state. The commission

may also allow vehicle travel on highways and

roadways, or portions of a highway or roadway,

designated by the commission and located outside a

nonattainment area or affected county to count

towards the percentage of use requirement.

The 2012 revisions here

appear to correct an

error by deleting “or”

and thereby increase the

types of projects that can

be considered under the

DERIP. As revised, this

paragraph continues to

meet the integrity

element for

“permanent”9 as

provided by EPA’s EIP

Guidance. The emissions

reductions from such

funded projects would

create a permanent shift

in the emissions reported

to the EI reported to EPA.

(c) For a proposed motor vehicle replacement,

purchase, or lease project, the period used to

determine the emissions reductions and cost‐

effectiveness of each replacement, purchase, or lease

activity included in the project must extend for five

years or more, or 400,000 miles, whichever occurs

earlier. Not less than 75% of the vehicle miles traveled

projected for the period used to determine the

emissions reductions must be projected to take place in

a nonattainment area or affected county of this state.

The commission may also allow vehicle travel on

highways and roadways, or portions of a highway or

roadway, designated by the commission and located

outside of a nonattainment county or affected county

to count towards the percentage of use requirement.

Generally meets the

integrity element for

“permanent” as provided

by EPA’s EIP Guidance.

However, should less

than 75% of the vehicle

miles traveled take place

outside of a nonattain‐

ment area or affected

county, the state must

ensure that emissions

reductions attributed to

such project will still be

valid and, where

applicable, meet our

criteria for SIP credit.

(d) [(c)] For a proposed project that includes a

replacement of equipment or a repower, the old

equipment or engine must be recycled or scrapped

provided, however, that the executive director may

allow permanent removal from the State of Texas in

specific grants where the applicant has provided

sufficient assurances that the old locomotive will not be

returned to the State of Texas.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraph (c); no

other changes.

(e) For a proposed project to replace a motor vehicle,

the vehicle and engine must be decommissioned by

crushing the vehicle and engine, by making a hole in the

engine block and permanently destroying the frame of

the vehicle, or by another method approved by the

Meets the integrity

element for “permanent”

as provided by EPA’s EIP

Guidance. The emissions

reductions from such

 

9 For programmatic reduction EIPs, emission reductions are permanent if the state is able to ensure that these reductions occur

over the duration of the EIP rule, and for as long as they are relied on in the SIP (see the EIP Guidance, beginning on p. 36).
10 

March 25, 2010 Revisions April 13, 2012 Revisions EPA Comments

executive director that permanently removes the

vehicle and engine from operation in this state. For a

proposed project to repower a motor vehicle, the

engine being replaced must be decommissioned in a

manner consistent with the requirements for

decommissioning an engine as part of a vehicle

replacement project. The executive director shall allow

an applicant for a motor vehicle replacement or

repower project to propose an alternative method for

complying with the requirements of this subsection.

funded projects would

create a permanent shift

in the emissions reported

to the EI reported to EPA.

(f) For a project to replace a motor vehicle, the vehicle

being replaced may have been owned, leased, or

otherwise commercially financed by the applicant. The

applicant must have a legal right to replace and recycle

or scrap the vehicle and engine before a grant is

awarded for that project.

Meets the integrity

element for “permanent”

as provided by EPA’s EIP

Guidance. The emissions

reductions from such

funded projects would

create a permanent shift

in the emissions reported

to the EI reported to EPA.

(g) [(d)] To be eligible for a grant, the cost‐effectiveness

of a proposed project as listed in subsection (a) of this

section, except for infrastructure projects and

infrastructure purchases that are part of a broader

retrofit, repower, replacement, or add‐on equipment

project, must not exceed a cost‐effectiveness of

$15,000 per ton of NOx emissions reduced. The

commission may set lower cost‐effectiveness limits as

needed to ensure the best use of available funds. The

commission may also base project selection decisions

on additional measures to evaluate the effectiveness of

projects in reducing NOx emissions in relation to the

funds to be awarded.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraphs (c), (e)

and (f); no other

changes.

(h) The executive director shall waive eligibility

requirements established under subsections (b) – (f) of

this section on a finding of good cause, which may

include a waiver of any ownership and use

requirements established for replacement of a motor

vehicle for short lapses in registration or operation

attributable to economic conditions, seasonal work, or

other circumstances. In determining good cause and

deciding whether to grant a waiver, the executive

director shall ensure that the emissions reductions that

will be attributed to the project will still be valid and,

where applicable, meet the conditions for assignment

for credit to the state implementation plan.

Would accelerate the

introduction of lower

emitting mobile source

technologies statewide.

Meets the integrity

element for “permanent”

as provided by EPA’s EIP

Guidance. The emissions

reductions from such

funded projects would

create a permanent shift

in the emissions reported

to the EI reported to EPA.

(i) [(e)] Projects funded with a grant from this program

may not be used for credit under any state or federal

emissions reduction credit averaging, banking, or

trading program except as provided under Texas Health

and Safety Code, §386.056.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraphs (c), (e),

(f) and (h); no other

changes.
11 

March 25, 2010 Revisions April 13, 2012 Revisions EPA Comments

(j) [(f)] A proposed project as listed in subsection (a) of

this section is not eligible if it is required by any state or

federal law, rule or regulation, memorandum of

agreement, or other legally binding document. This

subsection does not apply to:

     (I) an otherwise qualified project, regardless of the

fact that the state implementation plan

assumes that the change in equipment, vehicles, or

operations will occur, if on the date the grant is

awarded the change is not required by any state or

federal law, rule or regulation, memorandum of

agreement, or other legally binding document; or

     (2) the purchase of an on‐road diesel or equipment

required only by local law or regulation or by corporate

or controlling board policy of a public or private entity.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraphs (c), (e),

(f) and (h); no other

changes.

(k) [(g)] A proposed retrofit, repower, replacement, or

add‐on equipment project must achieve a reduction in

NOx emissions to the level established in the

commission's Texas Emissions Reduction Plan:

Guidelines for Emissions Reduction Incentive Grants

Program (RG‐388) for that type of project compared

with the baseline emissions adopted by the commission

for the relevant engine year and application.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraphs (c), (e),

(f) and (h); no other

changes.

(l) [(h)] If a grant recipient fails to meet the terms of a

project grant or the conditions of this division, the

executive director can require that the grant recipient

return some or all of the grant funding to the extent

that emission reductions are not achieved or cannot be

demonstrated.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraphs (c), (e),

(f) and (h); no other

changes.

(m) [(i)] Criteria established in the guidelines, including

revisions to the commission's Texas Emissions

Reduction Plan: Guidelines for Emissions Reduction

Incentive Grants Program (RG‐388), apply to the Texas

Emissions Reduction Plan program. Notwithstanding

the provisions of this chapter, as authorized under

Texas Health and Safety Code, §386.053(d), revisions to

the guidelines may include, among other changes,

adding additional pollutants; adding stationary engines

or engines used in stationary applications; adding

vehicles and equipment that use fuels other than

diesel; or adjusting eligible program categories; as

appropriate, to ensure that incentives established

under this program achieve the maximum possible

emission reductions.

Letter marking the

paragraph is revised to

adjust for insertion of

new paragraphs (c), (e),

(f) and (h); no other

changes.

In October 2009, the TCEQ proposed the March 25, 2010 SIP revisions. After reviewing

the proposed documents, we submitted a comment letter to the TCEQ dated November 17,

2009, in which we generally supported the proposed revisions because they strengthen the

state’s TERP program. We made additional comments in our November 17, 2009 letter that

pertain to revisions to the Texas Clean Fleet Program and 30 TAC 114 at 114.650, 114.653 and

114.656; such revisions were part of a separate TCEQ submittal on March 25, 2010 and are not

addressed in this TSD or corresponding rulemaking.

In October 2011, the TCEQ proposed the April 13, 2012 SIP revisions. After reviewing the

proposed documents, we submitted a comment letter to the TCEQ dated December 5, 2011, in
12 

which we raised concerns with the language in 114.622(h). Specifically, we recommended that

the rule language be modified to better specify the circumstances under which waivers could

be granted so that the impact of such waivers on the SIP credit can be determined. EPA also

recommended that the commission remove the phrase "or other circumstances" from

subsection (h). In response to our concerns, the TCEQ added language to 114.622(h) to clarify

the limits on the waiver provisions and provide assurance that any waiver decision will be made

only after considering the impact of the waiver on the potential emissions reductions. The TCEQ

did not remove the phrase “or other circumstances.” However, the TCEQ explained in the

response to comments document that the intent of the waiver provision is to authorize the

executive director to consider unique situations, including situations not yet contemplated, that

may not meet the letter of the standard criteria but that will still meet the intent of the

program requirements. Therefore, it would be difficult to further outline each specific instance

where good cause may be determined.10 We believe the TCEQ adequately addressed our

concerns.

These March 25, 2010 and April 13, 2012 revisions are consistent with EPA’s EIP

Guidance. We believe these new rules will contribute to the enhancement of air quality in the

nonattainment areas where they are implemented. We therefore recommend approval of the

March 25, 2010 and April 13, 2012 revisions.

D. The Revisions to the Failure‐to‐Attain Contingency Measures SIP and EPA’s Evaluation and

Recommendation

Section 172(c)(9) of the Act requires nonattainment SIPs to provide for a contingency

plan that will take effect without further action by the State or EPA if an area fails to make

reasonable further progress or fails to attain the standard by the applicable date.  While the Act

does not specify the type of measures or quantity of emissions reductions required, EPA

provided guidance on contingency plans in the April 16, 1992, General Preamble for

Implementation of the Act (57 FR 13498, 13510).  Other information on contingency measures

can be found in the following guidance documents:

"Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,"

Memorandum from G.T. Helms, Chief, Ozone/CO Programs Branch, June 1, 1992;

"Procedures for Processing Requests to Redesignate Areas to Attainment," Memorandum

from John Calcagni, Director, Air Quality Management Division, September 4, 1992;

"Guidance for Growth Factor, Projections, and Control Strategies for the 15 percent Rate‐of‐

Progress Plans," (EPA‐452/R‐93‐002), March 1993;

"Early Implementation of Contingency Measures for Ozone and Carbon Monoxide (CO)

Nonattainment Areas," Memorandum from G.T. Helms, Chief, Ozone/CO Programs Branch,

August 13, 1993;

 

10 The TCEQ submittal includes the proposed and final revisions, and comments received during their public

comment period. This submittal is included in the docket for this rulemaking.
13 

"Guidance on Issues Related to the 15 Percent Rate‐of‐Progress Plans," Memorandum from

Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation to the Regional

Division Directors, August 23, 1993;

"Clarification of Issues Regarding the Contingency Measures that are due on November 15,

1993 for Moderate and Above Ozone Nonattainment Areas," Memorandum from D. Kent

Berry, Acting Director, Air Quality Management Division, November 8, 1993; and

"Guidance on the Post 1996 Rate‐of‐Progress Plan (ROP) and Attainment Demonstration,"

(EPA‐452/R‐93‐015), January 1994.

EPA interprets sections 172 and 182 of the Act to require States with moderate or above

ozone nonattainment areas to include contingency measures to implement additional emission

reductions of 3% of the adjusted base year inventory in the year following the year in which the

failure has been identified (or such lesser percentage that will cure the identified failure). See

57 FR 13498, 13510, April 16, 1992. The State must specify the type of contingency measures,

the quantity of emissions reductions, and show that the measures can be implemented with no

further rulemaking and minimal further action by the State.

On January 14, 2009 (74 FR 1903) we approved the attainment demonstration for the

DFW 8‐hour ozone nonattainment area. At the time, the area was designated as moderate

nonattainment under the 1997 ozone standard. The action at 74 FR 1903 included a

contingency plan that specified State VOC rules (Offset Lithographic Printing or OLP at 30 TAC

115.449(c); Degassing or Cleaning of Stationary, Marine, and Transport Vessels at 30 TAC 115.

549(b); and Petroleum Dry Cleaning at 30 TAC 115.559(a)) and fleet turnover from mobile

sources. Texas estimated that the emissions reductions associated with the VOC rules would be

1.8 tpd and the reductions from fleet turnover would provide approximately 20.78 tpd of NOx

and 4.86 tpd of VOCs (74 FR 1903). Collectively, these measures provided emissions reductions

of 4.03% from the 1999 adjusted base year. Since the contingency requirement is only 3%, the

State had a surplus of 1.03% to use elsewhere, if necessary.

The revisions submitted on April 6, 2010, remove the OLP at 30 TAC 115.449(c) from the

contingency measures (which were projected to provide 0.24 tpd in VOC reductions) and

substitute surplus reductions from fleet turnover. Table A below shows the amount of

emissions reductions available to use as contingency measures.

Table A: Contingency Measures for the DFW Moderate Ozone Nonattainment Area

Contingency Measure Emissions (tpd)

NOx                                  VOC

Offset Lithographic Printing (30 TAC 115.449(c))    

Degassing (30 TAC 115.549(b))    0.18

Dry Cleaning (30 TAC 115.559(a))    1.38

Fleet turnover 20.78 4.86

Totals 20.78 6.42
14 

As approved at 74 FR 1903, the estimated 1999 base year emissions inventory for the

nine‐county DFW nonattainment area was 754.56 tpd NOx and 520.08 tpd VOC. Table B below

provides the calculations for the contingency analysis based on the 1999 base year EI.

Table B: Ratio of Contingency Provisions to 1999 Base Year Emissions Inventory

1999 Base Year EI

and Contingency Measures

Emissions (tpd)

NOx                  VOC

1999 Nine‐County Total (base year EI) 754.56 520.08

2009‐to‐2010 On‐Road Fleet Turnover 20.78 4.86

Degassing + Dry cleaning VOC rules (from Table A above, 0.18 + 1.38) 1.56

Total reductions from contingency measures 20.78 6.42

Total reductions expressed as percent reduction from base year EI 2.75% 1.23%

Collective total of VOC and NOx reductions (percentages) (2.75 + 1.23) = 3.98%

Since the OLP was estimated to contribute only 0.05% in reductions (when expressed as

a percent reduction from the VOC base year EI), there is still a surplus of 0.98% in emission

reductions for the contingency measures without reliance on OLP. If the State uses all the

remaining VOC reductions (see Table B; this is 6.42 tpd, which is equivalent to approximately

1.23% of the base year EI), then only 13.36 tpd in NOx reductions would be needed to achieve

the 3% reductions required for contingency. (Subtract the 1.23% provided by the VOC

reductions from the 3% contingency requirement and 1.77% remains (3 – 1.23 = 1.77); 1.77% =

0.0177; 754.56 x 0.0177 = 13.36).

When the DFW area failed to meet the June 15, 2010 attainment date, the State

announced the implementation of the contingency measures relating to Degassing or Cleaning

of Stationary, Marine, and Transport Vessels and Petroleum Dry Cleaning Systems (see the

Texas Register, 35 TexReg 4268, dated May 21, 2010 and available in the docket for this

rulemaking). The compliance date for implementation of the two VOC measures was May 21,

2011 (see 35 TexReg 4268). Fleet turnover is projected to occur without action by the State or

EPA.

The quantity of emission reductions projected by the State exceeds 3% of the 1999 base

year EI. We believe federal measures already scheduled for implementation and not relied

upon in the attainment demonstration (i.e., fleet turnover) are appropriate contingency

measures (Phase 2 Rule, 70 FR 71612, 71651). The EPA has approved numerous SIP revisions

under the interpretation that contingency measures may include federal measures that are in

place and provide reductions in excess of the attainment demonstration or RFP plan (e.g., 62 FR

15844, April 3, 1997; 62 FR 66279, December 18, 1997; 66 FR 30811, June 8, 2001; 66 FR 586

and 66 FR 634, January 3, 2001). Nothing in the statute precludes a State from implementing

such measures before they are triggered. See LEAN v. EPA, 382 F. 3d 575 (5th Cir. 2004), where

the court upheld contingency measures that were previously required and implemented where

they were in excess of the attainment demonstration and RFP SIP.

As shown above, the emissions reductions projected from fleet turnover offset the loss

in emissions reductions from the loss of the OLP measure. The contingency measures identified
15 

in the SIP revision meet the requirements of sections 172 and 182 of the CAA. We are

recommending approval of the April 6, 2010 revisions that address contingency measures.

E. The Requirement to Address Clean Fuel Fleet Programs

Section 182(c)(4) of the CAA requires that states with serious and worse nonattainment

areas implement federal CFFPs. Section 182(c)(4) also allows states to implement substitute

programs whose long term emissions reductions are equal to or greater than the federal CFFPs.

Texas submitted a substitute program (the Texas Clean Fuel Fleet or TCFF program) that we

approved on February 7, 2001 (66 FR 9203). Subsequent revisions to repeal the TCFF program

were approved on January 31, 2014 (79 FR 5287). Please see the final rulemaking at 79 FR 5287

and the TSD for such rulemaking.11 No credits from the TCFF were counted in the attainment

demonstration or RFP for the DFW serious nine‐county nonattainment area.

EPA determined12 that, beginning with the 2006 model years, both the Tier 2

conventional vehicle and engine standards and heavy‐duty vehicle and engine standards are

either equivalent to or more stringent than the applicable clean fuel vehicle program low

emission vehicle (LEV) standards. New alternatively fueled vehicles must meet the current Tier

2 light‐duty vehicle (LDV) standards or the current heavy‐duty diesel standards, whichever they

are replacing. Because the goal of the federal CFFP was to get more, cleaner vehicles into the

fleet prior to 2004, that goal has been achieved, even though the statutory requirement

remains. Fleets are now allowed to use new Tier 2 and 2007 heavy‐duty diesel vehicles and

engines to meet the LEV requirement.

The DFW nine‐county nonattainment area was reclassified as serious on December 20,

2011 (75 FR 79302). The State was required to submit a revised SIP for the DFW serious area,

including a CFFP, by January 19, 2012, thus the earliest full vehicle model year that would have

been affected by a CFFP upon adoption of such program would have been 2012. By 2007, Tier 2

standards were implemented in 100% of LDVs and light light‐duty trucks (LDTs) and by 2009,

Tier 2 standards were implemented in 100% of the heavy LDTs and medium‐duty passenger

vehicles. Furthermore, standards for 2006 and later model years for Otto cycle and diesel

heavy‐duty vehicles ranging from 8,501 to 14,000 gross vehicle weight rating are more stringent

than the CFFP LEV emissions standard for these vehicles. Therefore, emissions reductions under

Tier 2 and the heavy‐duty engine and vehicle standards achieve equivalent or greater emissions

reductions than would be expected from implementation of the CFFP in the DFW nine‐county

nonattainment area.

The State also implements the Clean Cities, Congestion Mitigation and Air Quality

Improvement (CMAQ) and Texas Emissions Reduction Program (TERP) voluntary programs in

the nine‐county nonattainment area as additional incentive mechanisms to replace older,

 

11 The docket ID for the rulemaking at 79 FR 5287 is EPA‐R06‐OAR‐2006‐0885.

12 The EPA “Dear Manufacturer” Letter CCD‐05 (LDV/LDT/MDPV/HDV/HDE/LD‐FC) is dated July 21, 2005 and

available electronically at http://iaspub.epa.gov/otaqpub/display_file.jsp?docid=14287&flag=1. For more

information on vehicle and fuel emissions standards please visit www.epa.gov/otaq/standards/index.htm.
16 

dirtier light‐duty and heavy‐duty vehicles in the fleets subject to the federal CFFPs because they

will continue to encourage fleet turnover at a faster rate.

We are proposing to find that Texas has met the requirements of section 182(c)(4) of

the CAA for the nine‐county nonattainment area.

E. References

1. Guidance Memorandum, Conformity Guidance on Implementation of the March 2, 1999,

Conformity Court Decision, from Gay MacGregor, Director, EPA Regional and State Programs

Division, to the Regional Air Division Directors (EPA‐420‐F‐99‐025), May 14, 1999. Please see

www.epa.gov/otaq/stateresources/transconf/policy/epaguidf.pdf.

2. Improving Air Quality with Economic Incentive Programs (EPA‐452/R‐01‐001), January 2001.

Please see www.epa.gov/ttn/oarpg/t1/memoranda/eipfin.pdf.

3. Transportation Conformity Guidance for Quantitative Hot‐Spot Analyses in PM2.5 and PM10

Nonattainment and Maintenance Areas (EPA‐420‐B‐13‐053), November 2013. Please see

www.fhwa.dot.gov/environment/air_quality/conformity.

4. EPA Dear Manufacturer Letter CCD‐05 (LDV/LDT/MDPV/HDV/HDE/LD‐FC), dated July 21,

2005. Please see http://iaspub.epa.gov/otaqpub/display_file.jsp?docid=14287&flag=1.