Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

Mark R. Vickery, P.G., Executive Director 10APR-2 PHI2:58 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Thxas by Reducing and Preventing Pollution 

March 25, 2010 

Dr. Alfredo Armendariz, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross A venue 

Dallas, Texas 75202'-2733 

Dear Dr. Armendriz: 

Docket No. 2009-1185-RUL 

Rule Project No. 2009-047-114-EN 

On February 24, 2010, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 

state implementation plan (SIP). · 

The Commission adopted new §§114.650-114.658 of 30 TAC Chapter 114, Control of Air Pollution from 

Motor Vehicles, and corresponding revisions to the SIP. The adoption implements Senate Bill 1759, 8lst 

Legislature, 2009, Regular Session by adding th~ Texas Clean Fleet Program. This voluntary grant program is 

designed to encourage eligible entities to replace diesel-powered vehicles with alternative fuel or hybrid 

vehicles. 

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

hearing, and the accompanying order. I look forward to your expeditious approval of this SIP revision. 

Sincerely, ' 

~~ Chairman 

BS/br 

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 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us 
TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY 

Docket No. 2009-1185-RUL 

TilE STATE OF TEXAS 

COUN1Y OF TRAVIS 

This is to certify that the attached are true and correct copies of documents for revisions to the Texas 

State Implementation Plan, adopted on February 24, 2009, pursuant to 40 Code of Federal Regulations (C.F.R.) 

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

Environmental Quality (Commission). 

+~~Quali~ Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

November 16, 2009 

Concerning Revisions to 30 TAC Chapter 114 

Control of Air Pollution from Motor Vehicles 

Texas Clean Fleet Program 

Rule Project No. 2009-047-114-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on November 

16, 2009, to receive testimony regarding new sections to 30 TAC Chapter 114, Subchapter K, Division 5, 

Texas Clean Fleet Program. The new sections implement Senate Bil11759, 81st Legislature, 2009, Regular 

Session by adding the Texas Clean Fleet Program. This voluntary grant program is designed to encourage 

eligible entities to replace diesel-powered vehicles with alternative fuel or hybrid vehicles. 

The comment period closed on November 23, 2009. All testimony and comments have been reviewed and 

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

the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations/Order 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 3 5 Circle, 

Austin, Texas 78753. For further information, please contact Steve Dayton at (512) 239-6824. 
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: October 9, 2009 

Fort Worth Star-Telegram: October 9, 2009 

Houston Chronicle: October 9, 2009 

San Antonio Express-News: October 9, 2009 

2. Publication of the proposed rules in the October 23, 2009, issue of the Texas Register 

(34 TexReg 7295). 

3. Publication of the Notice of Public Hearing in the December 29, 2006, issue of the Texas 

Register (34 TexReg 7384). 

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 El Paso, Environmental Services 

City of Fort Worth, Environmental Management Department 

City of Houston, Department of Health and Human Services 
East Texas Council of Governments 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Harris County Public Health and Environmental Services 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Travis County Judge 

Victoria Metropolitan Planning Organization 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

United States Environmental Protection Agency 
Example of Newspaper Classified Ad 

San Antonio Express-News, October 9, 2009 

. NOTICE OF A --l 

PUBUC HEARING 

ON PROPOSED 

NEW SECTIONS TO · · 30 TAC CHAPTER 

114ANI>TO 

THE STATE 

IMPLEMENTATION 

PLAN 

-.The_T~Commission_Dil ~ • Environmental Quality ·. · (commission) will. con- ;; duct a public hunng 11:1 ·;; receive tlstimony regard- ::. ins prOJ)QSed new sec- :; ·: .lions 11:1 3Q Texas Admin- ; .· istratlve Code (TA;j ' ·· : ~=~·~Mo1Dr ·. 

' Vehicles, and 11:1 the state • ·' ~ im_plementation ~I an \, (Sll'). TileR new sections ,, 

are proposed undt!r the ;..: 

: 

=~~~=-~, 1382.017; Texas~ ;::. ment Coile~ SubchaDter A 

8, Chapter ~001; and 40 ,;• ·.·Code or Fedl!lll RT ;:: ·~~~~..,:~; . mental Promction Agen- if 

.' r:y (!;PAl ~ulations con- ); ·. cemmg SIPs. · :-: 

· .: Tile DnlDOSed l'lllemaking b 

would i[!)plement Senate .:. · BHI l7~L 8lst Le;lsla- ·:. ture, 2uw, Regular Ses· ' . 

. ~~~if/."g ~~ :. 

vol!lll1af'Y gns~ program '·'' Is designed to encourage ;, · eligible entities 11:1 re- [.' 

j~=d~~~t: 

' fuel or hybrid vehides. ':': 

' A public huring on this :l · I will be held in 7'! '.~on Nolll!mber 16, ~.:, · 2009 It 2:00 ~.m. ln :>; • Building E, Room 201S It ,-;: 

;. ~:r=on~ ~'llj ~~·· Pm 35 Circle. The hul"' . ' 

ing wm be structured for 

'· the receipt of ot~l or : written comments. ~~ ~ 

: lstmion begins 30 miit-. ' ' utes {1\io!: to the hearing. % i =lvid~p= -~ • cal~ upan in order .of J, .. registration. A ~me limit ; • • lTliiY be es1;1blishlld til : ·: assure enough time is t allow8d for ovary in· ~ 

· terested ~n til speak. t ; There wftl be no open • ' discussion during the •• : hearing; '-ever, com- 1. 

' mission staff members · will be availlible for di$- · . cussion 30 minutes prior ·; 

~ 11:1 the . hearing and ~II •: • answer questions before ·~ 

·. and attar tile hearing. ; 

· · Persons plannil)9 1D at- -3 , tl!nd the hearing, who :· , hM special communi- ,. 

t~~=.·=~ :~:~~=~~~. 1 (512) 239-on9. Re- . quests should be madeas :·• , ; far in advance es !lOt" ·:'. ;·1 Sible. _ 

.'·Comments lTliiY be ~ :,, mlttld 11:1 Jessica Raw-

:lings, MC 205, omce at ; Legal S~rvices, "~:exas 

· CommisSion on Emironmental Qual~. RO. Box 

' 13087, Austm, Texas 

787ll·3087, or bxed 11:1 

~(c~~-ma~ submitted at http:// wwwS.tceq.state.tx.us/ 

rules/ecomments. File 

size restrictions may applr 11:1 comments su1r 

m1tted through the

1 

. eComments system. AI comments should raltr- ence Rule Proiect Nurn- :- ber 2009-047·114-J;N. ; The comment panod closes November 23, . 2009. To viaw rul~ 

please visit http:// . www.tceQ.state.tx.us/: 

nav/rules/propase_adopt.h_tml. For lui"' ther iilformatiOn or ques- . · tions concerning this · 

proposal, =ease Cllntact Stephen , Im~l~ · mentation rants Section at Sl2·23HII24 . 
Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

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

TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF A PUBUC HEARING ON 

PROPOSED NEW SECTIONS TO 30 TAC CHAPTER 114 

AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive 

testimony regarding proposed new sections to 30 Texas Administrative Code (TAC) Chapter 114, Control 

of Air Pollution from Motor Vehicles, and to the state implementation plan (SIP). These new sections are 

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

Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, §51.102, of the United States 

Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would implement Senate Bill1759, 81st Legislature, 2009, Regular Session by 

adding the Texas Clean Fleet Program. This voluntary grant program is designed to encourage eligible 

entities to replace diesel-powered vehicles with alternative fuel or hybrid vehicles. 

A public hearing on this proposal will be held in Austin on November 16, 2009 at 2:00p.m. in Building 

E, Room 201S at the commission's central office located at 12100 Park 35 Circle. The hearing will be 

structured for the receipt of oral or written comments. Registration begins 30 minutes prior to the hearing. 

Individuals may present oral statements when called upon in order of registration. A time limit may be 

established to assure enough time is allowed for every interested person to speak. There will be no open 

discussion during the hearing; however, commission staff members will be available for discussion 30 

minutes prior to the hearing and will answer questions before and after the hearing. 

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

should contact Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as 

far in advance as possible. 

Comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission 

on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. 

Electronic comments may be submitted at http:llwww5.tceq.state.tx.uslru/eslecomments. File size 

restrictions may apply to comments submitted through the eComments system. All comments should 

reference Rule Project Number 2009-047-114-EN. The comment period closes November 23, 2009. To 

view rules, please visit http://www.tceq.state.tx. uslnavlrules/propose _ adopt.html. For further information 

or questions concerning this proposal, please contact Stephen Dayton, Implementation Grants Section at 

512-239-6824. 

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

)11 J!!lvd 1111 rL'L\'t·l~ J 11;qwr 11.\JTJ~ ;,ll_\·-h,L~l'd 111h 
ƇƇƇ

Amanda Henry, (713) 767-3500; REGIONAL OFFICE: 3870 Eastex

Freeway, Beaumont, Texas 77703-1830, (409) 898-3838.

(28) COMPANY: Trinity Bay Conservation District; DOCKET

NUMBER: 2009-0878-MWD-E; IDENTIFIER: RN102077393;

LOCATION: Winnie, Chambers County; TYPE OF FACILITY:

wastewater treatment; RULE VIOLATED: 30 TAC §305.125(1),

TPDES Permit Number WQ0010851001, Effluent Limitations and

Monitoring Requirements Number 1, and the Code, §26.121(a), by

failing to comply with the permitted effluent limitations for ammonia

nitrogen; PENALTY: $11,750; ENFORCEMENT COORDINATOR:

Samuel Short, (512) 239-5363; REGIONAL OFFICE: 5425 Polk

Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(29) COMPANY: United States Department of the Army; DOCKET

NUMBER: 2009-0553-EAQ-E; IDENTIFIER: RN101060101; LOCATION: San Antonio, Bexar County; TYPE OF FACILITY: training

sites; RULE VIOLATED: 30 TAC §213.23(a)(1), by failing to obtain approval of a modification to an Edwards Aquifer Contributing

Zone Plan; PENALTY: $1,507; ENFORCEMENT COORDINATOR:

Lauren Smitherman, (512) 239-5223; REGIONAL OFFICE: 14250

Judson Road, San Antonio, Texas 78233-4480, (210) 490-3096.

(30) COMPANY: Woden Independent School District; DOCKET

NUMBER: 2009-0898-MWD-E; IDENTIFIER: RN102887213;

LOCATION: Woden, Nacogdoches County; TYPE OF FACILITY:

wastewater treatment; RULE VIOLATED: 30 TAC §305.125(1) and

TCEQ Permit Number WQ0014345001, Special Provisions Number

8, by failing to prevent ponding or surfacing of the effluent; 30 TAC

§305.125(1) and TCEQ Permit Number WQ0014345001, Special Provisions Number 15, by failing to collect and submit for analysis annual

soil samples for 2008; 30 TAC §305.125(1), TCEQ Permit Number

WQ0014345001, Final Effluent Limitations and Monitoring Requirements A, and the Code, §26.121(a), by failing to comply with final

effluent limitations for biochemical oxygen demand concentration;

30 TAC §305.125(1) and TCEQ Permit Number WQ0014345001,

Monitoring Requirements Number 3.b and Special Provisions Number

17, by failing to maintain records of the inspection dates for the sludge

in each of the septic tanks; 30 TAC §305.125(1) and TCEQ Permit

Number WQ0014345001, Monitoring Requirements Number 3.b,

by failing to retain at the facility all records of monitoring; 30 TAC

§305.125(1) and TCEQ Permit Number WQ0014345001, Monitoring

Requirements Number 3.b and Special Provisions Number 16, by

failing to retain records of the analysis of the irrigation effluent;

30 TAC §305.125(1) and TCEQ Permit Number WQ0014345001,

Monitoring Requirements Number 3.b and Special Provisions Number 18, by failing to maintain records of sludge removal; 30 TAC

§305.125(1) and TCEQ Permit Number WQ0014345001, Special

Provisions Number 20, by failing to maintain records of all grease

removed from the grease trap; 30 TAC §305.125(1) and TCEQ Permit

Number WQ0014345001, Special Provisions Number 8, by failing to

record grass harvesting dates and weights in a log book kept on site;

30 TAC §305.125(1) and TCEQ Permit Number WQ0014345001,

Permit Conditions Number 4.a and Special Provisions Number 5,

by failing to submit a summary submittal letter within 90 days from

the date of permit issuance; 30 TAC §305.125(1) and TCEQ Permit

Number WQ0014345001, Final Effluent Limitations and Monitoring

Requirements Number B, by failing to monitor pH once per month;

30 TAC §305.125(1) and TCEQ Permit Number WQ0014345001,

Special Provisions Number 7, by failing to comply with the effluent

application rate of 0.07 gallons per square foot per day; 30 TAC

§305.125(1) and TCEQ Permit Number WQ0014345001, Monitoring

Requirements Number 5, by failing to calibrate the effluent flow meter

at least annually; and 30 TAC §305.125(1) and TCEQ Permit Number

WQ0014345001, Monitoring Requirements Number 7.c, by failing

to report in writing within five working days any effluent violation

that exceeded the permitted limit by more than 40%; PENALTY:

$14,225; ENFORCEMENT COORDINATOR: Merrilee Hupp, (512)

239-4490; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont,

Texas 77703-1830, (409) 898-3838.

TRD-200904608

Kathleen C. Decker

Director, Litigation Division

Texas Commission on Environmental Quality

Filed: October 13, 2009

Notice of a Public Hearing on Proposed New Sections to 30

TAC Chapter 114 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed new

sections to 30 Texas Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, and to the state implementation plan (SIP). These new sections are proposed under the requirements of Texas Health and Safety Code, §382.017; Texas Government

Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, §51.102, of the United States Environmental Protection Agency

(EPA) regulations concerning SIPs.

The proposed rulemaking would implement Senate Bill 1759, 81st

Legislature, 2009, Regular Session by adding the Texas Clean Fleet

Program. This voluntary grant program is designed to encourage

eligible entities to replace diesel-powered vehicles with alternative

fuel or hybrid vehicles.

A public hearing on this proposal will be held in Austin on November

16, 2009 at 2:00 p.m. in Building E, Room 201S at the commission’s

central office located at 12100 Park 35 Circle. The hearing will be

structured for the receipt of oral or written comments. Registration

begins 30 minutes prior to the hearing. Individuals may present oral

statements when called upon in order of registration. A time limit may

be established to assure enough time is allowed for every interested

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

however, commission staff members will be available for discussion

30 minutes prior to the hearing and will answer questions before and

after the hearing.

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

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

as far in advance as possible.

Comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission on Environmental

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed

to (512) 239-4808. Electronic comments may be submitted at

http://www5.tceq.state.tx.us/rules/ecomments. File size restrictions

may apply to comments submitted through the eComments system. All

comments should reference Rule Project Number 2009-047-114-EN.

The comment period closes November 23, 2009. To view rules,

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

For further information or questions concerning this proposal, please

contact Stephen Dayton, Implementation Grants Section at (512)

239-6824.

TRD-200904553

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: October 9, 2009

34 TexReg 7384 October 23, 2009 Texas Register
ƇƇƇ

(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.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on October 9, 2009.

TRD-200904573

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: November 22, 2009

For further information, please call: (512) 239-6090

DIVISION 5. TEXAS CLEAN FLEET

PROGRAM

30 TAC §§114.650 - 114.658

The Texas Commission on Environmental Quality (commission

or agency) proposes new §§114.650 - 114.658.

The new sections are proposed to be submitted to the United

States Environmental Protection Agency (EPA) as a revision to

the state implementation plan.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

Senate Bill 1759, 81st Legislature, 2009 amended the Texas

Health and Safety Code by adding Chapter 391, Texas Clean

Fleet Program. This program is designed to encourage eligible

fleets to replace diesel vehicles with alternative fuel or hybrid

vehicles. Eligible entities that replace 25 or more on-road diesel

vehicles with alternative fuel or hybrid vehicles may apply for a

grant under the program to offset the cost of replacing those vehicles.

SECTION BY SECTION DISCUSSION

§114.650, Definitions

Section 114.650 establishes the definitions specific to the Texas

Clean Fleet Program, as required by Texas Health and Safety

Code, §391.001.

§114.651, Applicability

Section 114.651 establishes the applicability requirements as required by Texas Health and Safety Code, §391.002. These requirements outline entities that are eligible to apply for a grant

under the program.

§114.652, Qualifying Vehicles

As required by Texas Health and Safety Code, §391.003, this

section clarifies the types of vehicles that are and are not eligible

for participation in the program.

§114.653, Grant Eligibility

Section 114.653 establishes grant eligibility requirements, as required by Texas Health and Safety Code, §391.005. These requirements establish use and ownership criteria of any vehicles

being replaced, as well as the level of emissions that must be

achieved in order to receive a grant under the program. Subsection (d) provides that the executive director may establish additional criteria for purposes of prioritizing projects for selection,

which may include, but are not limited to: nonattainment status

of the primary location in which the eligible vehicles are used; or

cost per ton benefits of the overall emissions being reduced. The

commission is considering the establishment of prioritizing criteria that would limit the commission to initially considering only

grant projects that include vehicles with a primary location in a

county that is located within an eight-hour ozone nonattaiment

area or a near nonattainment area that has submitted an early

action compact plan. The commission seeks public comment

on proposed rules regarding the grant eligibility requirements

and whether to prioritize grant projects to the initial consideration of only grant projects in counties within nonattainment or

near nonattainment areas.

§114.654, Usage and Disposition

As required by Texas Health and Safety Code, §391.005, this

section outlines requirements regarding the use of new vehicles

purchased through the program, as well as the disposal of vehicles being replaced.

§114.655, Grant Restrictions

As required by Texas Health and Safety Code, §391.006, this

section outlines the allowable use of grant funds awarded under

the program.

§114.656, Eligible Grant Amounts

As required by Texas Health and Safety Code, §391.007, this

section outlines the various eligible grant amounts allowed under

the program based on the age and type of each vehicle being

replaced.

§114.657, Reporting Requirements

Section 114.657 identifies the reporting requirements, as required by Texas Health and Safety Code, §391.005.

§114.658, Implementation Schedule

Section 114.658 identifies the expiration date of the program, as

stated in Texas Health and Safety Code, §391.008.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

has determined that, for the first five-year period the proposed

rules are in effect, fiscal implications are anticipated for the

agency as a result of administration or enforcement of the

proposed rules. The agency will utilize available funding appropriated out of the Texas Emissions Reduction Plan (TERP)

Account 5071 to implement the proposed rules. Other state

agencies and local governments may experience cost savings

as a result of the proposed rules if they are eligible to use

the Texas Clean Fleet Program grant funds to replace diesel

powered vehicles in their fleets with alternative fuel vehicles.

Senate Bill 1759 requires the agency to create the Texas Clean

Fleet Program using a portion of the funds appropriated in TERP

Account 5071. The proposed rules would add a new division to

PROPOSED RULES October 23, 2009 34 TexReg 7295
30 TAC Chapter 114 to outline the definitions and requirements

for participation in the Texas Clean Fleet Program, which is voluntary. The Texas Clean Fleet Program would be a new type

of incentive grant in the overall TERP incentive grant program,

and five percent of funding for the diesel emissions reduction

incentive program would be allocated to the Texas Clean Fleet

Program. To be eligible for grant funding, an entity would be required to have a fleet of at least 100 vehicles, 25 of which are

diesel powered and meet other grant criteria for replacement.

Grant amounts range from 80% of the cost for replacement of

a heavy-duty vehicle to 60% of the cost for replacement of a

light-duty diesel vehicle. The agency has been appropriated approximately $6.8 million in fiscal year 2010 and $5.2 million in

fiscal year 2011 for the Texas Clean Fleet Program. The cost for

alternative fuel vehicles is estimated to range from $20,000 to

$150,000.

State agencies or local governments with fleets and vehicles that

meet the criteria for the Texas Clean Fleet Program grant may

experience cost benefits if they qualify to receive grant funds

to purchase alternative fuel vehicles to replace diesel vehicles.

Applying for a grant from the Texas Clean Fleet Program would

be voluntary, and it is not known at this time how many state

agencies or local governments would do so.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first

five years the proposed new rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will

be improved air quality statewide since there will be additional

opportunities to apply for grant funds to replace diesel vehicles

with alternative fuel options that have fewer emissions.

Businesses with fleets and vehicles that meet the criteria for the

Texas Clean Fleet Program grant may experience cost benefits if they qualify to receive grant funds to purchase alternative fuel vehicles to replace diesel vehicles. Applying for a grant

from the Texas Clean Fleet Program would be voluntary and it

is not known at this time how many businesses would do so.

Grant amounts range from 80% of the cost for replacement of a

heavy-duty diesel vehicle to 60% of the cost for replacement of

a light-duty diesel vehicle. The agency has been appropriated

approximately $6.8 million in fiscal year 2010 and $5.2 million in

fiscal year 2011 for the Texas Clean Fleet Program. The cost for

alternative fuel vehicles is estimated to range from $20,000 to

$150,000.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules. It is not expected that most small businesses will meet the criteria to qualify

for the Texas Clean Fleet Program. However, if a small business

does qualify for a Texas Clean Fleet Program grant, it would experience the same cost benefits as a large business under the

proposed rules.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

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

not required, because the proposed rules are required to comply

with state law and do not adversely affect a small or micro-business in a material way for the first five years that the proposed

rules are in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required, because the proposed rules do not adversely affect a

local economy in a material way for the first five years that the

proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code,

§2001.0225 and determined that this rule action is not subject

to §2001.0225, because it does not meet the definition of a

"major environmental rule" as defined in that statute. A "major

environmental rule" means a rule the specific intent of which

is to protect the environment or reduce risks to human health

from environmental exposure and that may adversely affect in a

material way the economy, productivity, competition, jobs, the

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

sector of the state.

The new Chapter 114 rules are proposed in accordance with

Senate Bill 1759, which added Texas Health and Safety Code,

Chapter 391. The proposed rules add a new voluntary incentive program with the goal of reducing diesel emissions. The

program offers financial incentives for the voluntary replacement

of diesel engines. Because the proposed rules place no involuntary requirements on the regulated community, the proposed

rules will not adversely affect in a material way the economy, a

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

of the state. Also, none of the proposed rules place additional

financial burdens on the regulated community.

In addition, a regulatory impact analysis is not required because

the proposed rules do not meet any of the four applicability criteria for requiring a regulatory analysis of a "major environmental

rule" as defined in the Texas Government Code. Texas Government Code, §2001.0225 applies only to a major environmental

rule the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2)

exceed an express requirement of state law, unless the rule is

specifically required by federal law; 3) exceed a requirement of

a delegation agreement or contract between the state and an

agency or representative of the federal government to implement

a state and federal program; or 4) adopt a rule solely under the

general powers of the agency instead of under a specific state

law. This rulemaking does not exceed a standard set by federal

law. In addition, this rulemaking does not exceed an express

requirement of state law and is not proposed solely under the

general powers of the agency, but is specifically authorized by

the provisions cited in the STATUTORY AUTHORITY section of

this preamble. Finally, this rulemaking does not exceed a requirement of a delegation agreement or contract to implement a

state and federal program.

The commission invites public comment on the draft regulatory

impact analysis determination. Written comments on the draft

regulatory impact analysis determination may be submitted to

the contact person at the address listed under the SUBMITTAL

OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed

an analysis of whether the proposed rules are subject to Texas

Government Code, Chapter 2007. The primary purpose of the

rulemaking is to amend Chapter 114 in accordance with Senate

Bill 1759. The new rules implement a voluntary program and

34 TexReg 7296 October 23, 2009 Texas Register
only affect motor vehicles, which are not considered to be private

real property. Therefore, promulgation and enforcement of the

proposed rules is neither a statutory nor a constitutional taking

because it does not affect private real property. Therefore, the

rules do not constitute a taking under Texas Government Code,

Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), concerning Actions and Rules Subject to the Coastal Management Program (CMP), and will, therefore, require that the goals and policies of the CMP be considered during the rulemaking process.

The commission reviewed this action for consistency and determined that the rulemaking for Chapter 114 does not impact

any CMP goals or policies, because it adds a voluntary incentive grant program and does not govern air pollution emissions.

Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address listed under the

SUBMITTAL OF COMMENTS section of this preamble.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on November 16, 2009 at 2:00 p.m. in Building E, Room

201S at the commission’s central office located at 12100 Park 35

Circle. The hearing is structured for the receipt of oral or written

comments by interested persons. Individuals may present oral

statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal

30 minutes prior to the hearing.

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

Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Jessica Rawlings, MC

205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,

or faxed to (512) 239-4808. Electronic comments may be

submitted at: http://www5.tceq.state.tx.us/rules/ecomments/.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should reference

Rule Project Number 2009-047-114-EN. The comment period

closes on November 23, 2009. Copies of the proposed rulemaking can be obtained from the commission’s Web site at

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

further information, please contact Stephen Dayton, Implementation Grants Section, (512) 239-6824.

STATUTORY AUTHORITY

These new rules are proposed under Texas Water Code, §5.102,

which provides the commission with the general powers to carry

out its duties under the Texas Water Code; Texas Water Code,

§5.103, which authorizes the commission to adopt any rules necessary to carry out the powers and duties under the provisions

of the Texas Water Code and other laws of this state; and Texas

Water Code, §5.105, which authorizes the commission by rule

to establish and approve all general policy of the commission.

These new rules are also proposed under Texas Health and

Safety Code, Texas Clean Air Act, §382.017, which authorizes

the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; Texas Health and Safety Code,

Texas Clean Air Act §382.011, which authorizes 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; and Texas Health and

Safety Code, Texas Clean Air Act, §382.012, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of the state’s air. Finally, the proposed

new rules are specifically authorized by Senate Bill 1759.

The proposed new rules implement Texas Health and Safety

Code, Chapter 391.

§114.650. Definitions.

Unless specifically defined in the Texas Clean Air Act (TCAA) or in

the rules of the commission, the terms used in this subchapter have the

meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA and §§3.2,

101.1, and 114.1 of this title (relating to Definitions), the following

words and terms, when used in this division will have the following

meanings, unless the context clearly indicates otherwise.

(1) Alternative fuel--A fuel, other than gasoline or diesel

fuel, including electricity, compressed natural gas, liquefied natural

gas, hydrogen, propane, or a mixture of fuels containing at least 85%

methanol by volume.

(2) Eligible entity--Any person or entity with a fleet of 100

or more vehicles that:

(A) are registered in Texas; and

(B) include at least 25 vehicles that are eligible for replacement.

(3) Golf cart--A motor vehicle designed by the manufacturer primarily for transporting persons on a golf course.

(4) Heavy-duty vehicle--A motor vehicle with a gross vehicle weight rating greater than 8,500 pounds and containing an engine certified to the United States Environmental Protection Agency’s

heavy-duty engine standards.

(5) Hybrid vehicle--A motor vehicle with at least two different energy converters and two different energy storage systems on

board the vehicle for the purpose of propelling the vehicle.

(6) Light-duty motor vehicle--A motor vehicle with a gross

vehicle weight rating of less than 10,000 pounds and certified to the

United States Environmental Protection Agency’s light-duty vehicle

emission standards.

(7) Motor vehicle--A self-propelled device designed for

transporting persons or property on a public highway that is required

to be registered under Texas Transportation Code, Chapter 502.

(8) Neighborhood electric vehicle--A motor vehicle that:

(A) is originally manufactured to meet, and does meet,

the equipment requirements and safety standards established for "lowspeed vehicles" in Federal Motor Vehicle Safety Standard No. 500 (49

Code of Federal Regulations §571.500);

(B) is a slow-moving vehicle, as defined by Texas

Transportation Code, §547.001 that is able to attain a speed of more

than 20 miles per hour but not more than 25 miles per hour in one mile

on a paved, level surface;

(C) is a four-wheeled motor vehicle;

PROPOSED RULES October 23, 2009 34 TexReg 7297
(D) is powered by electricity or alternative power

sources;

(E) has a gross vehicle weight rating of less than 3,000

pounds; and

(F) is not a golf cart.

(9) Program--The Texas Clean Fleet Program established

under this division.

§114.651. Applicability.

(a) Any eligible entity that will replace 25 or more on-road

diesel vehicles within a twelve-month period with qualifying vehicles

may apply for a grant under the Texas Clean Fleet Program to offset the

cost of replacing those vehicles with alternative fuel or hybrid vehicles.

(b) The commission may allow a regional planning commission, council of governments, or similar regional planning agency created under Local Government Code, Chapter 391, or a private nonprofit

organization to apply for and receive a grant to improve the ability of

the program to achieve its goals.

§114.652. Qualifying Vehicles.

(a) A qualifying vehicle is one that:

(1) is certified to current federal emissions standards;

(2) replaces a diesel-powered on-road vehicle of the same

weight classification and use; and

(3) is a hybrid vehicle or fueled by an alternative fuel.

(b) As a condition of receiving a grant the qualifying vehicle

must be continuously owned, registered, and operated in Texas by the

grant recipient for at least five years from the date of reimbursement of

the grant-funded expenses.

(c) A vehicle is not a qualifying vehicle if it:

(1) is a neighborhood electric vehicle;

(2) has been used as a qualifying vehicle to qualify for a

grant under this division for a previous reporting period or by another

entity; or

(3) has qualified for a similar grant or tax credit in another

jurisdiction.

§114.653. Grant Eligibility.

(a) To be eligible for a grant under the program a project must

result in a reduction in emissions of nitrogen oxides of at least 25%,

based on:

(1) the baseline emission level set by the executive director; and

(2) the certified emission rate of the new vehicle or engine.

(b) The vehicle being replaced must:

(1) be an on-road vehicle that has been owned, registered,

and operated by the applicant in Texas for at least the two years immediately preceding the submission of a grant application;

(2) satisfy any minimum average annual mileage or fuel

usage requirements established by the executive director;

(3) satisfy any minimum percentage of annual usage requirements established by the executive director; and

(4) be in operating condition with at least two years of remaining useful life, as determined in accordance with criteria established by the executive director.

(c) At the discretion of the executive director, projects that result in a 25% reduction in other pollutants may be considered eligible

for funding under this program.

(d) The executive director may establish additional criteria for

purposes of prioritizing projects for selection. Such criteria may include, but are not limited to:

(1) nonattainment status of the primary location in which

the eligible vehicles are used; or

(2) cost per ton benefits of the overall emissions being reduced.

§114.654. Usage and Disposition.

(a) Not less than 75% of the annual use of the qualifying vehicle, either mileage or fuel use as determined by the executive director,

must occur in Texas.

(b) A vehicle or engine replaced under this program must be

rendered permanently inoperable in accordance with criteria established by the executive director.

§114.655. Grant Restrictions.

A recipient of a grant under this division shall use the grant to pay the

costs of the project for which the grant is made, which may include the

initial cost of the alternative fuel or hybrid vehicle. The recipient shall

not use the grant to pay the recipient’s administrative expenses.

§114.656. Eligible Grant Amounts.

(a) The eligible grant amount for each heavy-duty on-road vehicle being replaced is determined as follows:

(1) 80% of the cost for replacement of a vehicle that:

(A) was manufactured prior to implementation of federal or California emission standards; and

(B) is not certified to meet a specific emission level by

either the United States Environmental Protection Agency or the California Air Resources Board;

(2) 70% of the cost for replacement of a vehicle with an

engine certified to meet 1990 through 1997 federal emission standards;

(3) 60% of the cost for replacement of a vehicle with an

engine certified to meet 1998 through 2003 federal emission standards;

and

(4) 50% of the cost for replacement of a vehicle with an

engine certified to meet 2004 and later federal emission standards.

(b) The eligible grant amount for each light-duty on-road vehicle being replaced is determined as follows:

(1) 80% of the cost for replacement of a light-duty diesel

vehicle that:

(A) was manufactured prior to the implementation of

certification requirements; and

(B) is not certified to meet either mandatory or voluntary emission certification standards;

(2) 70% of the cost for replacement of a light-duty diesel

vehicle certified to meet federal Tier 1 emission standards phased in

between 1994 and 1997; and

(3) 60% of the cost for replacement of a light-duty diesel

vehicle certified to meet federal Tier 2 emission standards phased in

between 2004 and 2009.

34 TexReg 7298 October 23, 2009 Texas Register
ƇƇƇ

(c) The executive director may revise the standards for determining grant amounts as needed to reflect changes to federal emission

standards and decisions on pollutants of concern.

§114.657. Reporting Requirements.

Grant recipients must meet the reporting requirements of their grant,

which must occur no less frequently than annually.

§114.658. Implementation Schedule.

This division expires on August 31, 2017.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on October 9, 2009.

TRD-200904552

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: November 22, 2009

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

CHAPTER 290. PUBLIC DRINKING WATER

SUBCHAPTER G. WATER SAVING

PERFORMANCE STANDARDS

The Texas Commission on Environmental Quality (TCEQ,

agency, or commission) proposes new §290.267, amendments

to §§290.251 - 290.254, 290.256, and 290.260, and the repeal

of §290.255.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

In 2009, the 81st Legislature passed House Bill (HB) 2667,

relating to performance standards for plumbing fixtures sold in

this state. HB 2667 amends Texas Health and Safety Code

(THSC), §372.001 and §372.002 to increase efficiency standards, add performance, labeling, and testing requirements,

add exemptions, add a five-year phase-in of new standards,

and repeal TCEQ labeling and fee requirements for plumbing

fixtures sold in this state. HB 2667 adds THSC, §§372.0025,

372.0045, and 372.006 to add exceptions for municipalities or

counties, a phase-in of water saving performance standards,

and performance standards for nonwater-supplied urinals,

respectively. HB 2667 amends Texas Water Code, §5.701(q) to

remove the commission’s authority to collect fees for testing a

product to ensure that the certification is accurate.

In a corresponding rulemaking published in this issue of the

Texas Register, the commission proposes to also amend 30

TAC Chapter 291, Utility Regulations.

SECTION BY SECTION DISCUSSION

§290.251. Purpose, Authority, and Definitions.

The commission proposes to amend §290.251 to revise definitions for various plumbing fixtures relating to the subchapter.

Terms to be revised are plumbing fixture and toilet. Terms to be

added are plumbing fixture fitting, pressurized flushing device,

and water closet. The term "ASME" is proposed to be deleted, as

this acronym is no longer used throughout the subchapter, and

the term "ASTM" is proposed to be deleted, as this organization

is currently known only as ASTM International. As a result of the

additions and deletions, some existing definitions are proposed

to be renumbered accordingly. This amendment is required by

THSC, §372.001, as amended by HB 2667.

§290.252. Design Standards.

The commission proposes to amend §290.252 to include new

performance standards and revise testing requirements for

plumbing fixtures. A reference to testing standards established

by the American National Standards Institute is removed. All

references to testing procedures adopted by the commission

for plumbing fixtures are removed. Performance, testing, and

labeling requirements for plumbing fixtures prescribed by American Society of Mechanical Engineers Standard A112.19.2-2008

and Canadian Standards Association Standard B45.1-2008

are added. Performance standards for nonwater-supplied

urinals are also added. This amendment is required by THSC,

§372.002, as amended by HB 2667.

§290.253. Plumbing Fixture List.

The commission proposes to amend §290.253 to change the

process of providing test results for plumbing fixtures to the commission. All references to testing by the commission and fees

were removed by the statute and therefore are removed from

this section. This amendment is required by THSC, §372.002,

as amended by HB 2667.

§290.254. Removal from List.

The commission proposes to amend §290.254 to remove the references to the commission charging fees, which was removed

by the statute. The commission proposes to replace a reference to "the department" with "the agency." As a result of the removals, paragraphs are renumbered accordingly. This amendment is required by THSC, §372.002, as amended by HB 2667.

§290.255. Fees.

The commission proposes to repeal §290.255, concerning fees

charged by the commission. This repeal is required because

THSC, §372.002(d) is repealed by HB 2667.

§290.256. Exemptions.

The commission proposes to amend §290.256 to add additional

exemptions for municipalities and counties that have situations

that would require a greater quantity of water, nonwater-supplied

urinals, and plumbing fixtures certified by the United States Environmental Protection Agency (EPA) under the WaterSense program. This amendment is required by THSC, §372.0025, as

amended by HB 2667. The commission proposes to amend

§290.256 to add additional exemptions for heavy-duty commercial urinals, and toilets that are mounted on the wall and discharge to the drainage system on the floor, are located in a correctional facility, are used in a bariatric application, are used by

children at a daycare, or consist of a non-tank type commercial

bowl connected to the plumbing system through a pressurized

device. As a result of these additions, existing subsection (b) is

relettered accordingly. This amendment is required by THSC,

§372.002, as amended by HB 2667.

§290.260. Labeling.

The commission proposes to amend §290.260 to remove the

TCEQ’s labeling requirements for plumbing fixtures. This repeal is required because THSC, §372.003(a) and (b), concerning labeling requirements, are repealed by HB 2667. As a result

of these deletions, the remaining subsections are relettered accordingly.

PROPOSED RULES October 23, 2009 34 TexReg 7299
WRITTEN AND 

ORAL TESTIMONY 
INDEX OF WRITTEN TESTIMONY 

Reference Number Submitted By 

No written testimony was received pertaining to this proposal. 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted By 

0-1 Ken Nicholson, Clean Energy 
PUBLIC HEARING 

BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114, AND TO 

THE STATE IMPLEMENTATION PLAN 

******************************************************* 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

PUBLIC HEARING 

NOVEMBER 16, 2009 

**********•*******************************~~ ~** *** 

BE IT REMEMBERED that the above~enti~led 

hearing came on the 16th day of November 2009, from 

2:00p.m. to 2:11p.m. at the Texas Com~is~i6~ on 

Environmental Quality, Public Meeting Room 201, 12100 

Park 35 Circle, BUilding E, Austin, Texas, and the. 

following proceedings were reported by me, Rebecca J. 

Callow, Certified Shorthand Reporter in and for the 

State of Texas. 

a record of excellence 

1801 Lavaca • Suite 115 • Austin, Texas 78701 • 512-474-2233 
1 P R 0 C E E D I N G S 

2 MONDAY, NOVEMBER 16, 2009 

3 (2:00p.m.) 

4 MS. RAWLINGS: Good afternoon. I would 

5 like to welcome everyone to this public hearihg being 

6 conducted by the Texas Commission on En~ironmental 

7 Quality. My name is Jessica Rawlings, and I am ~ith 

8 the General Law Division. ·I would also like to 

9 introduce Steve Dayton from our Impl.ement·atioh Grarit · 

10 Section. 

11 We are here this aftern6bn to receive 

12 oral and/or written comments on th~ propdsed new 

13 sections to 30 fAC, Chapter 114, Control 6f ~ir 

14 Pollution from Motor Vehicles, TCEQ Rule· Project 

15 Number 2009-047-114-EN. If you intend· to present or~l 

. . . . . . 

16 testimony, and you have not already signed i~ ~t · 6ur. 

17 registration table, please do that now. ~f you are 

18 not familiar with the proposed changesj copi~~ of the 

19 proposal from the Texas Register are a~ailable at the 

2 0 registration table. We also have copies of the 

21 hearing notice, so that if anyone is planning to 

22 submit written comments, you can quickly find the 

23 information on where to fax or mail those. You can 

24 also submit comments via eComments. We will continue 

25 to accept written comments until Monday, November 

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1 23rd. 

2 This hearing is structured strictly for receipt 

3 of oral or written comments, open discussion during 

4 the hearing is not allowed; however, if anyone had any 

5 additional questions or comments regarding this 

6 proposal, there will be another opportuni~y after th~ 

7 hearing to have your questions answered. 

8 We will n6w begiti ~eceiving testimorty in the 

9 order in which you registered. Once I call your name, 

10 please come up to the podium, state your name arid who. 

11 you represent, then present you~ testimony. 

12 Ken Nicholson. 

13 ***~***************************************~********~* 

14 PUBLIC COMMENTS 

15 ******************************************************·. 

16 MR. NICHOLSON: Good afternoon. . y ~-~ 

17 name is Ken Nicholson with Clean Energy. I'm a: 

18 general manager of Central United States for Clean 

19 Energy based iii Seal Beach, California. .Clean Energy 

20 is the largest natural gas fuel provider for 

21 transportation in the country --

22 MR. DAYTON: We are recording, and your 

23 mic is not on. 

24 MR. NICHOLSON: Do you want me to start 

25 over? 

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3 
1 MR. DAYTON: At least your·name for the 

2 record. 

3 MR. NICHOLSON: Okay. My ~arne is Ken 

4 Nicholson, general manager, Central United States for 

5 Clean Energy. Clean Energy is the largest natural gas 

6 fuel provider in the country. We fuel over 17,000 

. . 

7 vehicles on a daily basis from one of,.· our 200 CNG and 

8 LNG stations. We dispensed over 75 milli6n gallon~ in 

9 2008 of clean burning domestic fuel. Our cus'.torner 

10 base consists of refuse, transit, airport· shuttles,· 

11 taxis, port trucking, and muni~ipal fleets. We 

12 appreciate the chance to comment at TCEQ ru_lemaking to.· 

13 implement the Texas Clean Fleet Program, created by 

14 the Senate Bill 1795. My comments today will be 

15 general in nature; we will provide more written detaii 

16 by the November 23rd deadline. 

17 Here in Texas, Clean Energy owns and 

18 operates nine CNG stations throughout the Dallas-Fort 

19 Worth Metroplex and two in the Houston area. We 

20 recently opened a CNG facility to fuel dozens of the 

21 City of San Antonio refuse trucks. Some of our other 

22 customers include DART, City of Dallas, AT&T, UPS, DFW 

23 Airport, Love Field, HEB, Texas A&M University, just 

24 to name a new. We also own and operate the McCornmas 

25 Bluff Landfill in Dallas where we produce nearly 10 

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1 million cubic feet of renewable natural gas on a daily 

2 basis. 

3 For qualifying fleet customers, we 

4 often cover a hundred percent of the capi~al cost to 

5 design, build, and construct a fuel statio~ in 

6 exchange for affordable long-term fuel contract which 

7 is· less than what the customers are usually paying for 

8 diesel or gasoline. Our long-term fuel c9ntracts 

9 eliminate the unpredictability of rising fuel costs 

10 allow'ing our customers to focus on their fleets and·.· 

11 regardless of the fluctuating market. 

12 Clean Ener~y is currehtli working ~i~h 

13 fleet operators across the State of Te~as on various 

14 and promising projects. we are demonst~ating to our . . . 

15 prospective customers that natural gas. is· an 

16 economical alternative to gasoline and dies~l, 

17 especially given the ri~ing price of fuel.a~d: 

18 availability of the vast quantities of natural gas 

19 here in the state. 

20 We believe CNG not only provides an 

21 economic alternative, but also moves us one step 

22 closer to energy independence here in Texas and as a 

23 country. Clean Energy, through its acquisition of BAF 

24 Technologies in September of 2009, provides natural 

25 gas vehicle conversions for light duty and medium duty 

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1 vehicles. BAF Technology is a leading provider of 

2 natural gas vehicle systems and conversions in the 

3 United States and supports a global client with 

4 alternative fuel systems. The Texas Emissiort 

5 Reduction Plan program has been a tremendous success; 

6 although not many TERP program grants have been issued 

7 for CNG projects or other alternative fuel proje~ts. 

8 The legislation which creates the Clean Fieet Program 

9 was intend~d to carve out part of TERP program 

10 specifically for alternative fuel projects. 

11 As you know~ Senate Bill 1425~ H6Use 

12 Bill 2978, and House Bill 1425, all were filed in the 

13 most recent 81st legislation session ~o 6~eate ihe 

14 Clean Fleet Program, but did not pa~s; however: t~~· 

15 Clean Fleet Program was ~dded on Senate Bill 17~~ tb · 

16 become law. Clean fleet legislation received broad 

17 support from a broad base of entities ~uppor~ing 

18 natural gas and alternative fuels. Some of those 

19 entities are Texas Gas Association, Texas Propane Gas 

20 Association, Texas Motor Transportation~ UPS, ·HEB, 

21 AT&T, to name a few. Clean Energy believes th~t the 

22 Clean Fleet Program will provide opportunities for 

23 natural gas projects that may have not existed prior 

24 to the establishment of this program. We also hope 

25 that the Clean Fleet Program will establish a track 

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1 record of successful natural gas projects that could 

2 be analyzed and copied in the TERP program. 

3 Ultimately we hope the Clean Fleet Program will open 

4 the TERP program to more natural gas projects. 

5 Regarding the proposed clean fleet 

6 rules, the rules proposed by the T~EQ appear to be 

7 cleanly implemented in the statutes, which Clean 

8 Energy supports. The proposed rules generally 

. . 

9 delegate a great deal of authdrity~to the EXecuti~~ 

10 Director, such as setting the b~seline emission levels 

11 from which emission reductions can be. 

12 calculated, setting minimum annual mileage or £uel 

13 usage requirements, and consideration of reduction of: 

14 other pollutants besides nitrogen o~ides. · ~e sup~6rt 

15 the flexibility of the proposed rule~ which alio~.the 

16 Executive Director to adapt· and modify implementation 

17 of the Clean Fleet Program quickly·and ~espond ~6 

18 changing conditions. We will endeavor to work with 

19 staff as the specific grant eligibility r~quirements 

20 are developed. 

21 Clean Energy believes that prioritized 

22 consideration should be given to projects in 

23 nonattainment area or non -- or near nonattainment 

24 areas. However, there are projects involved involving 

25 fleets that operate for a substantial portion of the 

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1 time traveling between nonattainment areas and near 

2 nonattainment areas. These projects should be given 

3 the same consideration as a project operating only in 

4 nonattainment areas; the air quality and benefits 

5 would be the same. We also support the development of 

6 new grant program _procedures and new application forms 

7 which are different from TERP programs. ·The. procedure 

8 and application requirements for the Clean Fleet 

9 Program should be tailored to large fleets. Many of 

10 the details currently required in the ap:t:>iicatfon for 

11 a TERP program may not be necessary for the 

12 application of a Clean Fleet Program grant. 

13 The Cleart Fleet Program is g~ared 

14 towards large fleets with over a.hundred v~hicles; 

. . . . . 

15 while the TERP program is a broad-based program that 

16 almost exclusively results in a grant to projects with 

. . . .. 

17 only a few vehicles .. The needs of the.diff~rent 

18 classes of application for the TERP program and the 

19 Clean Fleet Program are very different, and th~ 

20 application process should also be different. ·Under 

21 the TERP program, an applicant is required to expend 

22 the time and resources to submit a substantial grant 

23 of information on each vehicle identified in the 

24 application. This may be appropriate for an applicant 

25 with one or two vehicles; however, Clean Energy 

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1 encourages the TCEQ to consider allowing an applicant 

2 for a Clean Fleet Grant to provide the basic 

3 information and let the applicant know if it appears 

4 that the applicant will qualify for the grant. An 

5 applicant in the Clean Fleet Program will be providing 

6 information on 25 or more vehicles which can be a 

7 substantial investment without any indication whether . . . . 

8 the investment in compiling the application may. be. 

9 worthwhile. Thus a preview of a Clean Fleet Program 

10 application would be useful in attracting good 

11 projects from the fleet operator who might riot 

12 otherwise do so. The September 18th, 2000, ~e~o to 

13 the commissioners state that a limited number of 

14 applicants may qualif~ for the grant funds ~ince each 

15 grant must be for 25 vehicles. 

16 Clean Energy encourages the TCEQ to 

17 consider whether TERP funding might be· used to. 

18 supplement a Clean Fleet Program grant application 

19 which meets the requirements of both programs, but for 

20 which the funding is not available. There may also be 

21 other sources of funding from other states and local 

22 sources which might also be in conjunction_ with the 

23 Clean Fleet Program. The General Land Office Natural 

24 Gas Vehicle Initiative Program, the Federal American 

25 Recovery Reinvestment Act of 2009, and the Congestion 

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1 Mitigation Air Quality Improvement Program 

2 Implementation by the Federal Highway. 

3 Administration. 

4 Senate Bill 1759 also requires the TCEQ 

5 to study the amount of emission reductions achieved 

6 for alternative fueling infrastructure, and requires 

7 the EPA consideration whether emission reduction 

8 credit can be attributed to refueling infrastructure. 

9 Although this is not expressly part of the propo~ed 

10 rulemaking, Clean Energy is prepared to assist ariy ~ay 

11 we can. 

12 In closin~, Clean Energy a~preciates 

13 the opportunity to participate irt the rulem~king for 

14 Senate Bill 1759 and the Clean Fleet Program.· .We will . . . . . . . . . 

15 submit formal written comments to the agency by the 

16 November 23rd deadline. We also ~r~ certainly 

17 available to work with staff in develo~irig. a~y of the 

18 suggestions that we have made here t6day or will b~ 

19 making in the formal comment. I appreciate your time 

20 and consideration. 

21 MS. RAWLINGS: Thank you. ·Is there 

22 anyone else who would like to present testimony at 

23 this time? 

24 Okay. Once again the Commission will 

25 continue to accept written comments on the proposed 

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1 new sections to 30 TAC 114, Control of Air Pollution 

2 from Motor Vehicles, until Monday, November 3rd. 

3 If there are no further comments, this 

4 hearing is now closed. We appreciate your comments 

5 and thank you for coming. 

6 (Hearing concluded at 2:11p.m.) 

7 

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14 

15 

16 

17 

18 

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22 

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1 REPORTER'S CERTIFICATION 

2 

3 STATE OF TEXAS 

4 COUNTY OF TRAVIS 

5 I, Rebecca J. Callow, Certified 

6 Shorthand Reporter in and for the State of Texas, 

7 Registered Professional Reporter, Certified Realtime 

8 Reporter, do hereby certify that the above-mention~d 

9 matter occurred as hereihbefore set out;· 

10 I FURTHER CERTIFY·THAT the proceedings 

11 of such were reported by me or under my supe~vision~ 

12 later reduced to typewritten form under my supervision 

13 and control and that the foregoing pages are a fuli, · 

14 true, and correct transcription of.the original riotes. . . . . ' . 

15 IN WITNESS WHEREOF, I have hereuhto set--< 

16 my hand and seal this B._ da . of· f\JQ~, 

17 

18 

19 

20 

21 

22 

23 

24 

25 

CSR, RPR,. CRR 

d Reporter 

pires 12/31/11 . Firm Certification No.· 276 · 

Kennedy Reporting Service, Inc. 

1801 Lavaca Street 

Suite 115 

Austin, Texas 78701 

KENNEDY REPORTING SERVICE, INC. 

512.474.2233 

12 
- 1 -

Texas Commission oh Environmental Quality - Public Hearing Registration · 

Date: November 16, ).009 

Time: 2:00PM 

Rule Project No.: 2009-047-114-EN 

Short Title: SB 1759: Texas Clean Fleet Program 

Location: TCEQ Complex, 12100 Park 35 Circle, Building E, Room 2018, Austin, Texas 

Concerning: Proposed new sections to 30 Texas Administrative Code (TAC) Chapter 114 

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony? 

(Please Print) (Circle One) 

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Yes No 

Yes No 

Yes No 
--···----. --·----·-·---. 

-2-

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: November 16, 2009 

Time: 2:00 PM 

Rule Project No.: 2009-047-114-EN 

Short Title: SB 1759: Texas Clean Fleet Program 

Location: TCEQ Complex, 12100 Park 35 Circle, Building E, Room 2015, Austin, Texas 

Concerning: Proposed new sections to 30 Texas Administrative Code (TAC) Chapter 114 

NiiJII~t\d.J.ff.l9.ne~Q~~m:~.m51i~~1 61Ritt111BI . mw~ettillli~ ___ g ______ •.. __ g_ .. ~ffiE'f~tstfftltii:l"'?. ··- ..... , . . .. .. Y .. 

(Please Print) (Circle One) 

-:::r...., 1/rM.D/J vf$ Yea@:::) 

--

&;Gttllv ftAu LtJG.,. £,.~ Yes 8 

~~ &Mi~ Yes@ 

' 

Yes No 

Yes No 

Yes No 

Yes No 

Yea No 
EVALUATION OF 

TESTIMONY 
-, 

Texas Commission on Environmental Quality · INTEROFFICE MEMORANDUM 

To: Commissioners Date: February 5, 2010 

Thru: LaDonna Castaiiuela, Chief Clerk 

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

From: Susana M. Fh1deb.-and. P.E., ChiefEngin~ 

Docket No.: 2009-1185-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 114, Control of Air Pollution From Motor Vehicles 

SB 1759: Texas Clean Fleet Program 

Rule Project No. 2009-047-114-EN 

Background and reason(s) for the rulemaking: 

The rules implement revisions to Texas Health and Safety Code, Chapter 391, as a result of Senate Bill (SB) 

1759, 81st Legislature, 2009. The changes were originally proposed by Senator Williams in SB 1425. 

However, because of procedural delays, that bill did not go forward. The changes were then added to SB 

1759, authored by Senator Watson. 

Sco(,e of the proposed ~lemaking: 

A) Summary of what the rulemaking will do: The rulemaking implements the new Texas Clean Fleet 

Program. This voluntary grant program provides incentives to owners of eligible fleets to replace dieselpowered vehicles with alternative fuel or hybrid vehicles. 

B) Scope required by federal regulations or state statutes: The rulemaking incorporates language from 

new Texas Health and Safety Code, Chapter 391, as established under SB 1759. 

C) Additional staff recommendations that are not required by federal rule or state statute: No 

additional provisions are included beyond those needed to implement the program established under SB 

1759. 

Statutory authority: 

• Texas Water Code, §5.102, which provides the commission with the general powers to carry out its 

duties; 

• Texas Water Code, §5.103, which authorizes the commission to adopt any rules necessary to carry 

out the powers and duties under the provisions of the Texas Water Code and other laws of this state; 

• Texas Water Code, §5.105, which authorizes the commission by rule to establish and approve all 

general policy of the commission; 

• Texas Health and Safety Code, §382.017, which authorizes the commission to adopt rules consistent 

with the policy and purposes of the Texas Clean Air Act; , 

• Texas Health and Safety Code, §382.ol 1, which authorizes 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; 

• Texas Health and Safety Code, §382.012, which authorizes the commission to prepare and develop a 

general, comprehensive plan for the control ofthe state's air; 

• Texas Health and Safety Code, Chapter 386, which establishes the Texas Emissions Reduction Plan 

(TERP) program. 
. -- ; 

Commissioners 

Page2 

February 5, 2010 

Re: Docket No. 2009-1185-RUL 

Effect on the: 

A) Regulated community: Owners of fleets of 100 or more vehicles operated in Texas, at least 25 of which 

are diesel-powered vehicles, will potentially be eligible to apply for a grant under this new program. ·Many 

of these same entities may have already been eligible to apply under the other TERP grant programs, but this 

program targets the larger fleets for replacement of diesel vehicles with alternative fuel or hybrid vehicles. 

The new program may be implemented statewide, although the commission may prioritize funding based on 

the areas of use and other factors. The commission requested public comment regarding limiting the 

applications under the initial fun4ing period to projects where the primary area of vehicle operation is in the 

nonattainment and early-action compact areas. Comments were received in support of this approach, with an 

additional recommendation that travel between the areas be included in the area-<>f-use restrictions. Also, 

this program includes both light-duty and heavy-duty vehicles, while the other TERP grant programs include 

only heavy-duty vehicles. The appropriated funding for the current biennium is approximately $12 million. 

This will be enough funding for replacement of between 100 and 200 vehicles, depending upoil the type of 

vehicles. This number of vehicles represents between one and eight grants that may be issued over the 

biennium. 

B) Public~ Same as above. 

C) Agency programs: New program materials will need to be developed to implement this program. 

Application and contract processing and approval procedures, as well as long-term monitoring procedures, 

will need to be developed and implemented. 

Stakeholder meetings: 

No stakeholder meetings ~ere held for this rulemaking. 

Public comment: . 

The commission held a public hearing on November 16, 2009, in Austin. The comment period closed on 

November 23, 2009. Written comments were received from the United States Environmental Protection 

Agency Region 6 (EPA). Oral and written comments were received from Clean Energy. ·Significant 

comments and concerns are discussed below. 

The EPA asked whether the reference to "methanol" in §114.650(1) should instead refer to "ethanol." EPA 

also asked whether the list of alternative fuels included in this section is all-inclusive. · 

The EPA commented that the categories for determining the percentage of costs that may be eligible for 

funding in § 114.65 6 should be clarified to refer to vehicle model years and engine manufacture years. The 

EPA also expressed concern that the language regarding eligibility of vehicles 'and engines not certified for 

federal or California emission standards could open the possibility of funding illegally-imported vehicles that 

did not meet emission certification requirements. 

Clean Energy recommended that the commission consider using other TERP grants and allowing grants from 

other state and local programs to supplement a grant under this program. Clean Energy also commented that 

§114.655 did not include language from SB 1759 authorizing funding for reasonable and necessary labor 

expenses needed to install emissions-reducing equipment. 

Clean Energy responded to the proposal to limit the initial grant funding to projects operating in the eighthour nonattainment and near-:nonattainment areas with an early-action plan in place. Clean Energy expressed 

support for the proposal, but recommended that the criteria also include travel between the areas. 
.--

! . 

Commissioners 

Page 3 

February 5, 2010 

Re: Docket No. 2009-1185-RUL 

Clean Energy also recommended that the commission simplify the application process from the process used 

for the other TERP grants. In addition, Clean Energy recommended that the commission provide a pre..: 

review process to review basic information from the applicant and inform the applicant whether the project 

would be eligible before the applicant is required to compile detailed information about the vehicles to be 

:r;eplaced. · 

Significant changes from proposal: 

In response to the EPA's question regarding whether the list of alternative fuels in §114.650(1) is all 

inclusive, this section was revised to make it clear that only the fuels listed are considered alternative fuels 

for purposes of this program. 

In response to the EPA's comments regarding the need to clarify the funding categories in §114.656, this 

section was revised to refer to the manufacture year of a heavy-duty vehicle engine and the model year of a 

light-duty vehicle. In response to the EPA's concerns that an illegally-imported vehicle might qualify for a 

_ grant, language was added to this section to specifically exclude imported vehicles that did not meet the _ 

emissions certification requirements from eligibility under this program. 

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

Due to the limited funding that has been allocated to the Texas Clean Fleet Program, there is a potential for 

controversy regarding the number of entities that will ultimately get selected for grant funding. _ SB 1759 

established that only five percent of the overall TERP funds be allocated to the program. This results in 

approximately $6.8 million in Fiscal Year 2010 and $5.2 million for Fiscal Year 2011. 

This program is designed such that each project would involve the replacement of a minimum of25 vehicles 

at a time. Additionally, the broad language of the bill results in a potentially large pool of eligible entities 

that may seek grant funds. Given these factors, it is likely that all of the program funds will be allocated to 

-only a limited number of applicants. · 

Does tlus rulemaking affect any cu~nt policies or require development ~f new policies? 

This rulemaking implem~ts a new grant program. New program materials and procedures will need to be 

developed and implemented. 

What are the consequences if this rulemaking does not go forward? Are there altern~tives to 

rulemaking? 

If this rulemaking does not go forward, the new Texas Clean Fleet Program will not be implemented.. 

Possible alternatives are not adopting the rules and being inconsistent with the statute or adopting the rules at 

a later date. 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: 

Anticipated Texas Register publication date: 

Anticipated effective date: 

Six-month Texas Register filing deadline: 

October 23,2009 

March 12,2010 

March 18,2010 

April23, 201 0 

i" 
Commissioners 

Page4 

February 5, 2010 

Re: Docket No. 2009-1185-RUL 

Agency contacts: 

Steve Dayton, Rule Project Manager, 239-6824, Chief Engineer's Office 

Ben Rhem, Staff Attorney, 239-6501 

Jessica Rawlings, Texas Register Coordinator, 239-0177 

'-· Attachments 

cc: ChiefClerk, 5 copies 

Executive Director's Office 

Susana M. Hildebrand, P .E. 

Kevin Patteson 

Curtis Seaton 

Daniel Womack 

Office of General Counsel 

Steve Dayton 

Jessica Rawlings 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts new §§114.650-

114.658. 

Sections 114.650 and 114.656 are adopted with changes to the proposed text as published in the 

October 23, 2009, issue of the Texas Register (34 TexReg 7295). Sections 114.651- 114.655, 

114.657, and 114.658 are adopted without changes to the proposed text and the text will not be 

republished. 

The new sections will be submitted to the United States Environmental Protection Agency 

(EPA) as a revision to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED 

RULES 

Senate Bill (SB) 1759, 81st Legislature, 2009, amended the Texas Health and Safety Code by 

adding Chapter 391, Texas Clean Fleet Program. This program is designed to encourage eligible 

fleets to replace diesel vehicles with alternative fuel or hybrid vehicles. Eligible entities that 

replace 25 or more on-road diesel vehicles with alternative fuel or hybrid vehicles may apply 

for a grant under the program to offset the cost of replacing those vehicles. 

SECTION BY SECTION DISCUSSION 

§J 14.650, Definitions 

Section 114.650 establishes the defmitions specific to the Texas Clean Fleet Program, as 

required by Texas Health and Safety Code, §391.001. Since proposal, the commission revised 

the language in§ 114.650(1) to make it clear that only the fuels listed in this section are 

1 
considered alternative fuels for purposes of this program. 

§114.651, Applicability 

Section 114.651 establishes the applicability requirements as required by Texas Health and 

Safety Code, §391.002. These requirements outline entities that are eligible to apply for a grant 

under the program. 

§114.652, Qualifying Vehicles 

This section clarifies the types of vehicles that are and are not eligible for participation in the 

program, as required by Texas Health and Safety Code, §391.003. 

§114.653, Grant Eligibility 

Section 114.653 establishes grant eligibility requirements, as required by Texas Health and 

Safety Code, §391.005. These requirements establish use and ownership criteria of any vehicles 

being replaced, as well as the level of emissions that must be achieved in order to receive a 

grant under the program. Subsection (d) provides that the executive director may establish 

additional criteria for purposes of prioritizing projects for selection, which may include, but are 

not limited to, nonattainment status of the primary location in which the eligible vehicles are 

used or cost per ton benefits of the overall emissions being reduced. 

§J 14.654, Usage and Disposition 

This section outlines requirements regarding the use of new vehicles purchased through the 

program, as well as the disposal of vehicles being replaced, as required by Texas Health and 

Safety Code, §391.005. 

2 
§114.655, Grant Restrictions 

As required by Texas Health and Safety Code, §391.006, this section outlines the allowable use 

of grant funds awarded under the program. 

§114.656, Eligible Grant Amounts 

As required by Texas Health and Safety Code, §391.007, this section outlines the various 

eligible grant amounts allowed under the program based on the age and type of each vehicle 

being replaced. Since proposal, the commission revised the language for the funding categories 

to refer to the year of manufacture for heavy-duty vehicle engines and the model year for lightduty vehicles. The change was made to clarify the funding categories and make it easier for 

potential grant applicants to determine which category applies to their vehicle. The commission 

also added language to make it clear that vehicles manufactured in other countries that did not 

meet the emissions certification requirements for that vehicle and, therefore were imported 

illegally, are not eligible for replacement under this program. 

§114.657, Reporting Requirements 

Section 114.657 identifies the reporting requirements, as required by Texas Health and Safety 

Code, §391.005. 

§ 114.658, Implementation Schedule 

Section 114.658 identifies the expiration date of the program, as stated in Texas Health and 

Safety Code, §391.008. 

FINAL REGULATORY IMP ACT ANALYSIS DETERMINATION 

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

Texas Government Code, §200 1.0225 and determined that this rule action is not subject to 

3 
§200 1.0225 because it does not meet the defmition of a "major environmental rule" as defmed 

in that statute. A "major environmental rule" means a rule the specific intent of which is to 

protect the environment or reduce risks to human health from environmental exposure and that 

may adversely affect in a material way the economy, productivity, competition, jobs, the 

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

The new Chapter 114 rules are adopted in accordance with SB 1759, which added Texas Health 

and Safety Code, Chapter 391. The adopted rules add a new voluntary incentive program with 

the goal of reducing diesel emissions. The program offers fmancial incentives for the voluntary 

replacement of diesel engines. Because the adopted rules place no involuntary requirements on 

the regulated community, the adopted rules will not adversely affect in a material way the 

economy, a sector ofthe economy, productivity, competition, jobs, the environment, or the 

public health and safety of the state or a sector of the state. Also, none of the adopted new 

sections place additional fmancial burdens on the regulated community. 

In addition, a regulatory impact analysis is not required because the adopted rules do not meet 

any of the four applicability criteria for requiring a regulatory analysis of a "major 

environmental rule" as defmed in the Texas Government Code. Texas Government Code, 

§200 1.0225 applies only to a major environmental rule the result of which is to: 1) exceed a 

standard set by federal law, unless the rule is specifically required by state law; 2) exceed an 

express requirement of state law, unless the rule is specifically required by federal law; 3) 

exceed a requirement of a delegation agreement or contract between the state and an agency or 

representative of the federal government to implement a state and federal program; or 4) adopt a 

rule solely under the general powers of the agency instead of under a specific state law. This 

rulemaking does not exceed a standard set by federal law. In addition, this rulemaking does not I 

exceed an express requirement of state law and is not adopted solely under the general powers 

4 
of the agency, but is specifically authorized by the provisions cited in the STATUTORY 

AUTHORITY section of this preamble. Finally, this rulemaking does not exceed a requirement 

of a delegation agreement or contract to implement a state and federal program. 

The commission invited public comment regarding the draft regulatory impact analysis 

determination during the public comment period. No comments were received regarding the 

commission's determination of regulatory impact. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated this rulemaking action and performed an analysis of whether the 

adopted rules are subject to Texas Government Code, Chapter 2007. The primary purpose of the 

rulemaking is to amend Chapter 114 in accordance with SB 1759. The new rules implement a 

voluntary program and only affect motor vehicles, which are not considered to be private real 

property. Therefore, promulgation and enforcement of the adopted rules is neither a statutory 

nor a constitutional taking because it does not affect private real property. Therefore, the rules 

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 the adoption is a rulemaking 

identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), 

concerning Actions and Rules Subject to the Texas Coastal Management Program (CMP), and 

will, therefore, require that goals and policies of the CMP be considered during the rulemaking 

process. The commission reviewed this action for consistency and determined the rulemaking 

for Chapter 114 does not impact any CMP goals or policies, because it adds a voluntary 

incentive grant program and does not govern air pollution emissions. 

5 
The commission invited public comment regarding the consistency of the rules with the CMP. 

No comments were received regarding the consistency of the rules with the CMP. 

PUBLIC COMMENT 

The public hearing for this rulemaking was held on November 16, 2009, at 2:00p.m. in Austin 

at the commission's central office at 12100 Park 35 Circle. The comment period closed on 

November 23,2009. The commission received comments from Clean Energy (Clean Energy) 

and EPA Region 6 (EPA). 

Clean Energy submitted oral and written comments in support of the rulemaking and provided 

recommendations for implementation ofthe new program. EPA submitted written comments in 

support of the rulemaking and recommended changes to clarify the provisions. 

RESPONSE TO COMMENTS 

EPA and Clean Energy both expressed support for the rules and the implementation of the new 

Texas Clean Fleet Program. 

The commission appreciates the support expressed for the rules and the new program. 

EPA commented that the new rules will contribute to the enhancement of air quality in the 

nonattainment areas where they are implemented. EPA also commented that emissions 

reductions claimed in the SIP from these new rules must be quantifiable, surplus, permanent, 

and enforceable. 

The commission will ensure that any emissions reductions from this new program used to 

show progress towards meeting the SIP emissions reductions goals meet the creditability 

6 
requirements. The commission did not make any changes to the rules in response to this 

comment. 

Clean Energy commented on the commission's request for public comment under the discussion 

in the SECTION BY SECTION DISCUSSION of the proposed preamble. The commission 

solicited comments on a proposal to establish prioritizing criteria that would limit the 

commission to initially consider only grant projects that include vehicles with a primary 

location in a county that is located within an eight-hour ozone nonattainment area or nearnonattainment area that has submitted an early action compact plan. Clean Energy expressed 

support for giving prioritized consideration to projects in nonattainment and near-nonattainment 

areas. Clean Energy further commented that there are eligible fleets that operate for a 

substantial portion of the time traveling between nonattainment and near-nonattainment areas. 

Clean Energy recommended that these fleets be given the same consideration as a fleet 

operating only in a nonattainment or near-nonattainment area. 

The commission appreciates the support expressed for the program and the input 

provided regarding how the commission could best prioritize the selection of grant 

projects. The commission will consider these comments when developing the 

implementation plans and criteria for the initial grant round. 

Clean Energy commented that the estimates of the cost for alternative fuel vehicles in the 

FISCAL NOTE section of the proposed preamble were high. The preamble provided a cost 

estimate ofbetween $20,000 and $150,000 for alternative fuel vehicles. Clean energy stated that 

the cost of an alternatively fueled vehicle ranges from $6,000 for light-duty vehicles such as the 

Honda Civic, $24,000 for medium-duty shuttles, and up to $100,000 for heavy-duty, Class 8, 

tractor trucks with 14.9L engines. 

7 
Clean Energy appears to be referring to the difference in cost between an alternative-fuel 

vehicle and a similar gasoline-fuel or diesel-fuel vehicle. The cost estimates in the 

preamble were general estimates of the total costs for the purchase of an alternative-fuel 

vehicle. The commission did not change the cost estimates. 

Clean Energy agreed with the statement in the FISCAL NOTE section of the proposed preamble 

that the public benefit will be improved air quality statewide since there will be additional 

opportunities to apply for grant funds to replace diesel vehicles with alternative-fuel options that 

have fewer emissions. 

The commission appreciates the support expressed for the program and agreement with 

the assessment of potential benefits of the program. 

EPA commented that it is an unfortunate coincidence that this program has the same name as a 

previous Texas Clean Fleet Program adopted in Texas, and subsequently repealed, under 

§ 182(c)(4) of the Texas Clean Air Act as amended in 1990. EPA expressed hope that the use of 

the same name for this new program does not confuse the public. 

The name of the program was specified by SB 1759. Where appropriate, the commission 

will include statements in the grant materials to make it clear that this program is 

different from the earlier Texas Clean Fleet Program. 

Clean Energy expressed support for the proposed defmitions in § 114.650 tracking the statutory 

defmitions. 

8 
The commission appreciates the support expressed for the program. 

EPA questioned whether there is a typographical error in the defmition of alternative fuel in 

§ 114.650( 1 ), where it refers to "a mixture of fuels containing at least 85% methanol." The EPA 

asked whether this should read "ethanol" instead of "methanol." 

The definition in the rule is the same as stated in Texas Health and Safety Code, 

§391.001(1), as added by SB 1759. Ethanol is not included in the list. 

EPA asked whether the specified list of alternative fuels in § 114.650( 1) is all-inclusive or does 

the program allow for the use of other unspecified alternative fuels. 

The specified list of alternative fuels is all-inclusive. The commission has revised the 

language in §114.650(1) to make it clear that only the fuels listed are considered 

alternative fuels for purposes of this program. 

Clean Energy expressed support for the proposed language in §114.651 and also suggested 

including clarifying language that local governments, such as regional transit agencies or school 

districts, may also apply for a grant. 

The commission appreciates the support expressed for the program. The definition of an 

eligible entity is included in §114.650(2) and is based on the statutory language. The 

commission will provide information in the grant materials to explain that all types of 

entities, including local governments, may be eligible to apply for a grant. The commission 

did not make any changes to the rules as a result of this comment. 

9 
Clean Energy expressed support for the language in § 114.652 regarding qualifying vehicles. 

Clean Energy also commented regarding the limited amount of funding available for this 

program. Clean Energy recommended that the commission consider whether other Texas 

Emission Reduction Program (TERP) grant funding might be used to supplement a grant 

application that meets the requirements of both the TERP grant program and this program. In 

discussing the other TERP grant funding, Clean Energy is referring to the Diesel Emissions 

Reduction Incentive Program established under Texas Health and Safety Code, Chapter 386. 

Clean Energy also commented that there may also be other sources of funding from other state 

or local sources that might be used in conjunction with this program, including programs of the 

Texas General Land Office Natural Gas Vehicle Incentive Program, the Federal American 

Recovery Reinvestment Act of 2009, and the Congestion Mitigation Air Quality Improvement 

Program implemented by the Federal Highway Administration. 

The commission appreciates the support expressed for the program. Regarding the 

recommendation about using other grants or financial incentives in conjunction with a 

grant from this program, joint funding with other TERP grants may not be feasible due to 

the unique requirements of each program, including funding allocation requirements, 

timing of the grants and purchases, location and use requirements, and the calculation 

and use of the emissions reductions under the different programs. The feasibility of joint 

funding with other financial incentive programs will depend upon the requirements of 

those programs. Also, any joint funding would need to be consistent with §114.652(c)(3), 

which states that a qualifying vehicle does not include a vehicle that has qualified for a 

similar grant or tax credit in another jurisdiction. The commission will consider Clean 

Energy's recommendations when implementing the program and will include guidance in 

the grant implementation materials on the possible use of other financial incentives in 

conjunction with a grant from this program. 

10 
Clean Energy expressed support for the language in § 114.653 regarding grant eligibility, 

including language allowing the executive director to adapt and modify implementation of the 

program quickly and respond to changing conditions. Clean Energy specifically expressed 

support for the flexibility granted the executive director to set baseline emission levels and to 

establish criteria which the vehicle being replaced must meet, including minimum annual 

mileage or fuel usage requirements, minimum percentage of annual usage requirements, and 

criteria for determining that the vehicle was in operating condition with at least two years of 

remaining useful life. 

The commission appreciates the support expressed for the program. 

Clean Energy expressed support for the language in § 114.653( c), authorizing the executive 

director to also consider, at the executive director's discretion, projects that result in a 25% 

reduction in pollutants other than nitrogen oxides (NUx), and the language in § 114.653( d)(2), 

authorizing the executive director to prioritize projects based on the cost per ton benefits of the 

overall emissions being reduced. 

The commission appreciates the support expressed for the program. 

EPA also commented regarding authority granted the executive director in § 114.653( c) to 

consider other pollutants in addition to NOx. The EPA questioned how the state would keep the 

emissions reductions in other pollutants separate from the NOx emissions reductions. 

The commission appreciates the support expressed for the program. Regarding the 

question raised by the EPA, the commission maintains a detailed database of all TERP 

11 
project information and the emissions reductions associated with each project. If, in the 

future, the commission bases the grant eligibility on reductions in other pollutants in 

addition to or in place ofNOx, the commission will be able to distinguish between and 

track the projects and the types of emissions that will be reduced by each project. 

EPA also asked about situations where the reduction in the other pollutant resulted in an 

increase in NOx. 

Regardless of the pollutant addressed under this program, the NOx emissions standards 

for vehicles purchased under this program will be more stringent or, at a minimum, the 

same as the standards for the vehicles being replaced. Therefore, the commission does not 

anticipate a circumstance where the replacement of a vehicle under this program would 

result in an increase in NOx emissions when compared to the emissions of the vehicle being 

replaced. The commission did not make any changes to the rule in response to this 

comment. 

Clean Energy expressed support for the language in § 114.654 regarding usage and disposition. 

The commission appreciates the support expressed for the program. 

Clean Energy expressed support for the language in § 114.655 regarding grant restrictions and 

also recommended that the commission clarify that a grant may also be used for labor to install 

emissions-reducing equipment, which is consistent with the statute. 

The commission agrees that SB 1759 authorizes the commission to include the reasonable 

and necessary expenses incurred for the labor needed to install emissions-reducing 

12 
equipment. However, the purchase of emissions-reducing equipment is not an eligible 

grant activity under this program. Therefore, this language does not apply and would be 

confusing if included in the rules. The commission did not make a change to the rules as a 

result of this comment. 

EPA commented that clarification is needed in § 114.656(a)(l) listing the eligible grant amounts 

based on the emissions certification of the vehicle or engine being replaced. EPA suggested that 

it would be helpful if the year of manufacture is specified for both federal and California 

emission standards. 

The commission agrees that the references to the categories of emissions standards for 

determining the eligible percentage of costs should be clarified. The commission bas 

·amended the language in §114.656(a) to refer to the year of manufacture of the heavy-duty 

on-road engines and in §114.656(b) to the model year ofthe light-duty on-road vehicles. 

Under the federal and California emissions certification requirements, heavy-duty onroad engines must have met the emissions standards applicable to the manufacture year of 

the engine and light-duty vehicles must have met the emissions standards applicable to the 

model year of the vehicle. The change in the rule language will help clarify the appropriate 

funding category of the vehicle being replaced. 

EPA also commented that §114.656(a)(l)(B) and §114.656(b)(l)(A) and (B) could be 

interpreted to allow vehicles illegally imported into the United States to be eligible for 

replacement under the program. EPA explained that vehicles imported after the implementation 

of emission standards were required to meet the certification requirements in order to legally be 

imported into the United States. EPA expressed concern that the language authorizing funding 

for vehicles and engines not certified to a federal or California emissions standard could result 

13 
in funding for imported vehicles that were required to, but did not meet, the emissions standards 

applicable to that vehicle. EPA recommended specifying the year of manufacture of heavy-duty 

on-road engines and the model year of light-duty on-road vehicles for federal and California 

emission standards and clarifying the requirements. 

The commission agrees that the language should be clarified. The commission has 

amended the language in §114.656(a) to refer to the year of manufacture of the heavy-duty 

on-road engines and in §114.656(b) to the model year of the light-duty on-road vehicles. 

Heavy-duty on-road engines must have met the emissions standards applicable to the 

manufacture year of the engine and light-duty vehicles must have met the emissions 

standards applicable to the model year of the vehicle. The commission bas removed the 

language referring to vehicles and engines not certified to meet a specific emissions 

standard. The commission bas also added §114.656(d) to make it clear that non-compliant 

vehicles and engines imported into the country illegally would not be eligible for 

replacement under the program. 

EPA also asked what is meant by "voluntary emission certification standards" under 

§114.656(bXl)(B). 

The references to voluntary emission certification standards pertain to the voluntary 

National Low Emission Vehicle (NLEV) standards. The NLEV came into effect through 

an agreement by northeastern states and the auto manufacturers to provide more 

stringent emission standards for the transitional period before the Tier 2 standards were 

introduced. The commission has amended the language in §114.656(b) to refer to the 

model year of the light-duty on-road vehicles and removed the references to voluntary 

emission certification standards. 

14 
Clean Energy expressed support for the language in § 114.656 regarding eligible grant amounts. 

Clean Energy also expressed support for § 114.656( c) authorizing the executive director to 

revise the standards for determining grant amounts in order to reflect changes to federal 

emissions standards and decisions on pollutants of concern. 

The commission appreciates the support expressed for this program. 

Clean Energy expressed support for the language in § 114.657 regarding reporting requirements. 

The commission appreciates the support expressed for this program. 

Clean Energy expressed support for the language in§ 114.658 regarding the expiration date of 

these rules. 

The commission appreciates the support expressed for this program. 

Clean Energy expressed support for development of new grant program procedures and new 

grant application forms that are different from the other TERP grant forms. Clean Energy 

recommended that the procedures and application requirements be tailored to large fleets and 

that many of the details currently required in an application for a TERP grant may not be 

necessary for an application under this program. Clean Energy expressed its opinion that the 

needs of the applicants under the TERP grants and the applicants under this program are very 

different and that the application process should also be different. 

This comment pertains to implementation procedures and requirements and not a rule 

15 
provision. The commission is cognizant of the need to not make the application process 

any more complicated than is necessary to effectively implement the program. The 

commission will consider these comments when developing the application materials, 

requirements, and procedures. 

Clean Energy commented that for a TERP grant, the applicant is required to expend the time 

and resources needed to compile and submit a substantial amount of information on each 

vehicle identified in the application. Clean Energy expressed its opinion that this amount of 

information may be appropriate for an applicant with one or two vehicles. Clean Energy 

explained that because an applicant under this program will be providing information on 25 or 

more vehicles, the applicant may have a substantial investment in compiling that information 

without any indication whether the investment in compiling the application may be worthwhile. 

Clean Energy recommended that the commission consider allowing an applicant under this 

program to initially just provide basic information and that the commission pre-review the 

application to let the applicant know if it appears that the applicant will qualify for a grant. 

Clean Energy expressed its opinion that a pre-review of an application would be useful in 

attracting good projects from fleet operators who may not otherwise be willing to submit a grant 

application, given the time and resources it takes to submit an application. 

This comment pertains to implementation procedures and requirements and not a rule 

provision. The commission is cognizant of the need to not make the application process 

any more complicated than is necessary to effectively implement the program. The 

commission will consider these comments when developing the application materials, 

requirements, and procedures. However, because vehicle eligibility and the eligible grant 

amount is dependent on the specific characteristics of the vehicle being replaced, a prereview of the applicant's information will be of limited value unless detailed information 

16 
about each vehicle to be included in the application is provided. 

Clean Energy also expressed support for the provisions of SB 1759 directing the commission to 

study the amount of emissions reductions achieved from alternative-fueling infrastructure and to 

request that the EPA consider whether emissions reduction credit can be attributed to the 

installation and use of the infrastructure. Clean Energy stated that it is prepared to assist in any 

way it can. 

This comment is beyond the scope of this rulemaking. The commission appreciates the 

support expressed for the infrastructure study and the offer of assistance. 

STATUTORY AUTHORITY 

These new rules are adopted under Texas Water Code, §5.102, which provides the commission 

with the general powers to carry out its duties under the Texas Water Code; Texas Water Code, 

§5.1 03, which authorizes the commission to adopt any rules necessary to carry out the powers 

and duties under the provisions ofthe Texas Water Code and other laws of this state; and Texas 

Water Code, §5.105, which authorizes the commission by rule to establish and approve all 

general policy of the commission. These new rules are also adopted under Texas Health and 

Safety Code, Texas Clean Air Act, §382.017, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the Texas Clean Air Act; Texas Health and Safety 

Code, Texas Clean Air Act, §382.011, which authorizes 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; and Texas 

Health and Safety Code, Texas Clean Air Act, §382.012, which authorizes the commission to 

prepare and develop a gener~l, comprehensive plan for the control ofthe state's air. Finally, the 

adopted new rules are specifically authorized by SB 1759, 81st Legislature, 2009. 

17 
The adopted new rules implement Texas Health and Safety Code, Chapter 391, as added by SB 

1759 of the 81st Legislature, 2009. 

18 
STAFF 

RECOMMENDATIONS
SUBCHAPTER K: MOBD...E SOURCE INCENTIVE PROGRAMS 

DMSION 5: TEXAS CLEAN FLEET PROGRAM 

§§114.650- 114.658 

§114.650. Definitions. 

Unless specifically defmed in the Texas Clean Air Act {TCAA) or in the rules of the commission, 

the terms used in this subchapter have the meanings commonly ascribed to them in the field of air 

pollution control. In addition to the terms that are defined by the TCAA and §§3 .2, 101.1, and 114.1 of 

this title (relating to Defmitions), the following words and terms, when used in this division will have the 

following meanings, unless the context clearly indicates otherwise. 

( 1) Alternative fuel--A fuel, other than gasoline or diesel fuel. When used in this division, 

this defmition is limited to the following: electricity, compressed natural gas, liquefied natural gas, 

hydrogen, propane, or a mixture of fuels containing at least 85% methanol by volume. 

(2) Eligible entity--Any person or entity with a fleet of 100 or more vehicles that: 

(A) are registered in Texas; and 

(B) include at least 25 vehicles that are eligible for replacement. 

(3) Golf cart--A motor vehicle designed by the manufacturer primarily for transporting 

persons on a golf course. 

1 
(4) Heavy-duty vehicle--A motor vehicle with a gross vehicle weight rating greater than 

8,500 pounds and containing an engine certified to the United States Environmental Protection Agency's 

heavy-duty engine standards. 

(5) Hybrid vehicle--A motor vehicle with at least two different energy converters and two 

different energy storage systems on board the vehicle for the purpose of propelling the vehicle. 

( 6) Light-duty motor vehicle--A motor vehicle with a gross vehicle weight rating of less 

than 10,000 pounds and certified to the United States Environmental Protection Agency's light-duty 

vehicle emission standards. 

(7) Motor vehicle--A self-propelled device designed for transporting persons or property 

on a public highway that is required to be registered under Texas Transportation Code, Chapter 502. 

(8) Neighborhood electric vehicle--A motor vehicle that: 

(A) is originally manufactured to meet, and does meet, the equipment 

requirements and safety standards established for "low-speed vehicles" in Federal Motor Vehicle Safety 

Standard No. 500 (49 Code of Federal Regulations §571.500); 

(B) is a slow-moving vehicle, as defined by Texas Transportation Code, 

§54 7.001 that is able to attain a speed of more than 20 miles per hour but not more than 25 miles per hour 

in one mile on a paved, level surface; 

(C) is a four-wheeled motor vehicle; 

2 
(D) is powered by electricity or alternative power sources; 

(E) has a gross vehicle weight rating of less than 3,000 pounds; and 

(F) is not a golf cart. 

(9) Program--The Texas Clean Fleet Program established under this division. 

§114.651. Applicability. 

(a) Any eligible entity that will replace 25 or more on-road diesel vehicles within a twelve-month 

period with qualifying vehicles may apply for a grant under the Texas Clean Fleet Program to offset the 

cost of replacing those vehicles with alternative fuel or hybrid vehicles. 

(b) The commission may allow a regional planning commission, council of governments, or 

similar regional planning agency created under Local Government Code, Chapter 391, or a private 

nonprofit organization to apply for and receive a grant to improve the ability of the program to achieve its 

goals. 

§114.652. Qualifying Vehicles. 

(a) A qualifying vehicle is one that: 

(1) is certified to current federal emissions standards; 

(2) replaces a diesel-powered on-road vehicle of the same weight classification and use; 

3 
and 

(3) is a hybrid vehicle or fueled by an alternative fuel. 

(b) As a condition of receiving a grant the qualifying vehicle must be continuously owned, 

registered, and operated in Texas by the grant recipient for at least five years from the date of 

reimbursement of the grant-funded expenses. 

(c) A vehicle is not a qualifying vehicle if it: 

(1) is a neighborhood electric vehicle; 

(2) has been used as a qualifying vehicle to qualify for a grant under this division for a 

previous reporting period or by another entity; or 

(3) has qualified for a similar grant or tax credit in another jurisdiction. 

§114.653. Grant Eligibility. 

(a) To be eligible for a grant under the program a project must result in a reduction in emissions 

of nitrogen oxides of at least 25%, based on: 

(1) the baseline emission level set by the executive director; and 

(2) the certified emission rate of the new vehicle or engine. 

4 
(b) The vehicle being replaced must: 

( 1) be an on-road vehicle that has been owned, registered, and operated by the applicant 

in Texas for at least the two years immediately preceding the submission of a grant application; 

(2) satisfy any minimum average annual mileage or fuel usage requirements established 

by the executive director; 

(3) satisfy any minimum percentage of annual usage requirements established by the 

executive director; and 

( 4) be in operating condition with at least two years of remaining useful life, as 

determined in accordance with criteria established by the executive director. 

(c) At the discretion ofthe executive director, projects that result in a 25% reduction in other 

pollutants may be considered eligible for funding under this program. 

(d) The executive director may establish additional criteria for purposes of prioritizing projects 

for selection. Such criteria may include, but are not limited to: 

(I) nonattainment status of the primary location in which the eligible vehicles are used; or 

(2) cost per ton benefits of the overall emissions being reduced. 

§114.654. Usage and Disposition. 

5 
(a) Not less than 75% of the annual use of the qualifying vehicle, either mileage or fuel use as 

determined by the executive director, must occur in Texas. 

(b) A vehicle or engine replaced under this program must be rendered permanently inoperable in 

accordance with criteria established by the executive director. 

§114.655. Grant Restrictions. 

A recipient of a grant under this division shall use the grant to pay the costs of the project for 

which the grant is made, which may include the initial cost of the alternative fuel or hybrid vehicle. The 

recipient shall not use the grant to pay the recipient's administrative expenses. 

§114.656. Eligible Grant Amounts. 

(a) The eligible grant amount for each heavy-duty on-road vehicle being replaced is determined 

as follows: 

( 1) 80% of the cost for replacement of a vehicle with an engine manufactured prior to 

1988 and certified to meet the federal emissions standards, if any, applicable to the year of manufacture; 

(2) 70% of the cost for replacement of a vehicle with an engine manufactured after 1987 

and before 1998 and certified to meet the federal emission standards applicable to the year of 

manufacture; 

(3) 60% of the cost for replacement of a vehicle with an engine manufactured after 1997 

and before 2004 and certified to meet the federal emission standards applicable to year of manufacture; 

6 
and 

( 4) 50% of the cost for replacement of a vehicle with an engine manufactured after 2003 

and certified to meet the federal emission standards applicable to the year of manufacture. 

(b) The eligible grant amount for each light-duty on-road vehicle being replaced is determined as 

follows: 

(1) 80% of the cost for replacement of a light-duty diesel vehicle of a model year prior to 

1994 and certified to meet the federal emissions standards, if any, applicable to the model year of the 

vehicle; 

(2) 70% of the cost for replacement of a light-duty diesel vehicle of a model year after 

1993 and before 2004 and certified to meet the federal emission standards applicable to the model year of 

the vehicle; and 

(3) 60% of the cost for replacement of a light-duty diesel vehicle of a model year after 

2003 and certified to meet the federal emission standards applicable to the model year of the vehicle. 

(c) The executive director may revise the standards for determining grant amounts as needed to 

reflect changes to federal emission standards and decisions on pollutants of concern. 

(d) To be eligible for replacement, vehicles and engines imported into the United States from 

another country must have met all applicable emissions certification requirements for importation. 

§114.657. Reporting Requirements. 

7 
Grant recipients must meet the reporting requirements of their grant, which must occur no less 

frequently than annually. 

§114.658. Implementation Schedule. 

This division expires on August 31, 20 1 7. 

8 
TExAs CoMMISSION oN ENVIRONMENTAL QuALITY 

ORDER ADOPTING NEW RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2009-1185-RUL 

On February 24, 2010, the Texas Commission on Enviromnental Quality (Commission), during a public 

meeting, considered adoption of new §§ 114.650 - 114.658 of 30 TAC Chapter 114, Control of Air Pollution 

from Motor Vehicles, and corresponding revisions to the state implementation plan. The adoption will 

implement Senate Bill1759, 81st Legislature, 2009, Regular Session by adding the Texas Clean Fleet Program. 

This voluntary grant program is designed to encourage eligible entities to replace diesel-powered vehicles with 

alternative fuel or hybrid vehicles. Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, 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. Notice of the proposed rules was published for comment in the October 23, 2009, issue of the Texas 

Register (34 TexReg 7295). 

Pursuant to Tex. Health & Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 

(Vernon 2008), and 40 Code of Federal Regulations § 51.102, and after proper notice, the Commission 

conducted a public hearing to consider the new rules and revisions to the SIP. Proper notice included prominent 

advertisement in the areas affected at least 30 days prior to the date of the hearing. A public hearing was held in 

Austin on November 16,2009. 

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 rule changes and corresponding 

revisions to the SIP, either orally or in writing, at the hearing or during the comment period. Prior to the 

scheduled hearing, copies of the proposed rule changes 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 rule changes and the 

SIP revision 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 rule changes and the SIP revision and their position concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the new rules and revisions to the SIP 

incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff to make 

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

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

Order as if set forth at length verbatim in this Order. 
IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted 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 - 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, Tex. 

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 ~e remaining portions. 

Date issued: MAR O 1 2010 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
ƇƇƇ

property. Therefore, the rules 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 the

adoption is a rulemaking identified in the Coastal Coordination

Act Implementation Rules, 31 TAC §505.11(b)(2), concerning

rules subject to the Texas Coastal Management Program (CMP),

and will, therefore, require that goals and policies of the CMP be

considered during the rulemaking process. The commission reviewed this action for consistency and determined the rulemaking for Chapter 114 does not impact any CMP goals or policies,

because it revises a voluntary incentive grant program and does

not govern air pollution emissions.

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the consistency of the rules with

the CMP.

PUBLIC COMMENT

A public hearing was scheduled for November 16, 2009, in

Austin. The comment period closed on November 23, 2009. No

oral or written comments were received at the hearing or during

the comment period.

STATUTORY AUTHORITY

These amendments are adopted under Texas Water Code,

§5.102, which provides the commission with the general powers

to carry out its duties under the Texas Water Code; Texas Water

Code, §5.103, which authorizes the commission to adopt any

rules necessary to carry out the powers and duties under the

provisions of the Texas Water Code and other laws of this

state; and Texas Water Code, §5.105, which authorizes the

commission by rule to establish and approve all general policy

of the commission. These amendments are also adopted under

Texas Health and Safety Code, §382.017, which authorizes

the commission to adopt rules consistent with the policy and

purposes of the Texas Health and Safety Code; Texas Health

and Safety Code, §382.011, which authorizes 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; Texas Health

and Safety Code, §382.012, which authorizes the commission

to prepare and develop a general, comprehensive plan for the

control of the state’s air; and Texas Health and Safety Code,

Chapter 386, which establishes the Texas Emissions Reduction

Plan. Finally, these amendments are adopted as part of the

implementation of House Bill 1796.

The adopted amendments implement Texas Health and Safety

Code, Chapter 386.

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 February 26,

2010.

TRD-201000991

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 18, 2010

Proposal publication date: October 23, 2009

For further information, please call: (512) 239-6090

DIVISION 5. TEXAS CLEAN FLEET

PROGRAM

30 TAC §§114.650 - 114.658

The Texas Commission on Environmental Quality (commission)

adopts new §§114.650 - 114.658.

Sections 114.650 and 114.656 are adopted with changes to the

proposed text as published in the October 23, 2009, issue of the

Texas Register (34 TexReg 7295). Sections 114.651 - 114.655,

114.657, and 114.658 are adopted without changes to the proposed text and the text will not be republished.

The new sections will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state

implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

Senate Bill (SB) 1759, 81st Legislature, 2009, amended the

Texas Health and Safety Code by adding Chapter 391, Texas

Clean Fleet Program. This program is designed to encourage

eligible fleets to replace diesel vehicles with alternative fuel or

hybrid vehicles. Eligible entities that replace 25 or more on-road

diesel vehicles with alternative fuel or hybrid vehicles may apply

for a grant under the program to offset the cost of replacing

those vehicles.

SECTION BY SECTION DISCUSSION

§114.650, Definitions

Section 114.650 establishes the definitions specific to the Texas

Clean Fleet Program, as required by Texas Health and Safety

Code, §391.001. Since proposal, the commission revised the

language in §114.650(1) to make it clear that only the fuels listed

in this section are considered alternative fuels for purposes of

this program.

§114.651, Applicability

Section 114.651 establishes the applicability requirements as required by Texas Health and Safety Code, §391.002. These requirements outline entities that are eligible to apply for a grant

under the program.

§114.652, Qualifying Vehicles

This section clarifies the types of vehicles that are and are not

eligible for participation in the program, as required by Texas

Health and Safety Code, §391.003.

§114.653, Grant Eligibility

Section 114.653 establishes grant eligibility requirements, as required by Texas Health and Safety Code, §391.005. These requirements establish use and ownership criteria of any vehicles

being replaced, as well as the level of emissions that must be

achieved in order to receive a grant under the program. Subsection (d) provides that the executive director may establish adADOPTED RULES March 12, 2010 35 TexReg 2195
ditional criteria for purposes of prioritizing projects for selection,

which may include, but are not limited to, nonattainment status

of the primary location in which the eligible vehicles are used or

cost per ton benefits of the overall emissions being reduced.

§114.654, Usage and Disposition

This section outlines requirements regarding the use of new vehicles purchased through the program, as well as the disposal of

vehicles being replaced, as required by Texas Health and Safety

Code, §391.005.

§114.655, Grant Restrictions

As required by Texas Health and Safety Code, §391.006, this

section outlines the allowable use of grant funds awarded under

the program.

§114.656, Eligible Grant Amounts

As required by Texas Health and Safety Code, §391.007, this

section outlines the various eligible grant amounts allowed under the program based on the age and type of each vehicle being

replaced. Since proposal, the commission revised the language

for the funding categories to refer to the year of manufacture for

heavy-duty vehicle engines and the model year for light-duty vehicles. The change was made to clarify the funding categories

and make it easier for potential grant applicants to determine

which category applies to their vehicle. The commission also

added language to make it clear that vehicles manufactured in

other countries that did not meet the emissions certification requirements for that vehicle and, therefore were imported illegally,

are not eligible for replacement under this program.

§114.657, Reporting Requirements

Section 114.657 identifies the reporting requirements, as required by Texas Health and Safety Code, §391.005.

§114.658, Implementation Schedule

Section 114.658 identifies the expiration date of the program, as

stated in Texas Health and Safety Code, §391.008.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code,

§2001.0225 and determined that this rule action is not subject

to §2001.0225 because it does not meet the definition of a

"major environmental rule" as defined in that statute. A "major

environmental rule" means a rule the specific intent of which

is to protect the environment or reduce risks to human health

from environmental exposure and that may adversely affect in a

material way the economy, productivity, competition, jobs, the

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

sector of the state.

The new Chapter 114 rules are adopted in accordance with SB

1759, which added Texas Health and Safety Code, Chapter 391.

The adopted rules add a new voluntary incentive program with

the goal of reducing diesel emissions. The program offers financial incentives for the voluntary replacement of diesel engines.

Because the adopted rules place no involuntary requirements on

the regulated community, the adopted rules will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state. Also, none of the

adopted new sections place additional financial burdens on the

regulated community.

In addition, a regulatory impact analysis is not required because

the adopted rules do not meet any of the four applicability criteria

for requiring a regulatory analysis of a "major environmental rule"

as defined in the Texas Government Code. Texas Government

Code, §2001.0225 applies only to a major environmental rule

the result of which is to: 1) exceed a standard set by federal law,

unless the rule is specifically required by state law; 2) exceed an

express requirement of state law, unless the rule is specifically

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or

representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specific state law. This

rulemaking does not exceed a standard set by federal law. In addition, this rulemaking does not exceed an express requirement

of state law and is not adopted solely under the general powers of the agency, but is specifically authorized by the provisions

cited in the STATUTORY AUTHORITY section of this preamble.

Finally, this rulemaking does not exceed a requirement of a delegation agreement or contract to implement a state and federal

program.

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

period. No comments were received regarding the commission’s

determination of regulatory impact.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed an analysis of whether the adopted rules are subject to

Texas Government Code, Chapter 2007. The primary purpose

of the rulemaking is to amend Chapter 114 in accordance with

SB 1759. The new rules implement a voluntary program and

only affect motor vehicles, which are not considered to be private

real property. Therefore, promulgation and enforcement of the

adopted rules is neither a statutory nor a constitutional taking

because it does not affect private real property. Therefore, the

rules 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 the

adoption is a rulemaking identified in the Coastal Coordination

Act Implementation Rules, 31 TAC §505.11(b)(2), concerning

Actions and Rules Subject to the Texas Coastal Management

Program (CMP), and will, therefore, require that goals and policies of the CMP be considered during the rulemaking process.

The commission reviewed this action for consistency and determined the rulemaking for Chapter 114 does not impact any CMP

goals or policies, because it adds a voluntary incentive grant program and does not govern air pollution emissions.

The commission invited public comment regarding the consistency of the rules with the CMP. No comments were received

regarding the consistency of the rules with the CMP.

PUBLIC COMMENT

The public hearing for this rulemaking was held on November

16, 2009, at 2:00 p.m. in Austin at the commission’s central

office at 12100 Park 35 Circle. The comment period closed on

November 23, 2009. The commission received comments from

Clean Energy (Clean Energy) and EPA Region 6 (EPA).

Clean Energy submitted oral and written comments in support

of the rulemaking and provided recommendations for implemen35 TexReg 2196 March 12, 2010 Texas Register
tation of the new program. EPA submitted written comments in

support of the rulemaking and recommended changes to clarify

the provisions.

RESPONSE TO COMMENTS

EPA and Clean Energy both expressed support for the rules and

the implementation of the new Texas Clean Fleet Program.

The commission appreciates the support expressed for the rules

and the new program.

EPA commented that the new rules will contribute to the enhancement of air quality in the nonattainment areas where they

are implemented. EPA also commented that emissions reductions claimed in the SIP from these new rules must be quantifiable, surplus, permanent, and enforceable.

The commission will ensure that any emissions reductions from

this new program used to show progress towards meeting the

SIP emissions reductions goals meet the creditability requirements. The commission did not make any changes to the rules

in response to this comment.

Clean Energy commented on the commission’s request for public comment under the discussion in the SECTION BY SECTION

DISCUSSION of the proposed preamble. The commission solicited comments on a proposal to establish prioritizing criteria

that would limit the commission to initially consider only grant

projects that include vehicles with a primary location in a county

that is located within an eight-hour ozone nonattainment area

or near-nonattainment area that has submitted an early action

compact plan. Clean Energy expressed support for giving prioritized consideration to projects in nonattainment and near-nonattainment areas. Clean Energy further commented that there

are eligible fleets that operate for a substantial portion of the

time traveling between nonattainment and near-nonattainment

areas. Clean Energy recommended that these fleets be given

the same consideration as a fleet operating only in a nonattainment or near-nonattainment area.

The commission appreciates the support expressed for the

program and the input provided regarding how the commission could best prioritize the selection of grant projects. The

commission will consider these comments when developing the

implementation plans and criteria for the initial grant round.

Clean Energy commented that the estimates of the cost for alternative fuel vehicles in the FISCAL NOTE section of the proposed

preamble were high. The preamble provided a cost estimate

of between $20,000 and $150,000 for alternative fuel vehicles.

Clean energy stated that the cost of an alternatively fueled vehicle ranges from $6,000 for light-duty vehicles such as the Honda

Civic, $24,000 for medium-duty shuttles, and up to $100,000 for

heavy-duty, Class 8, tractor trucks with 14.9L engines.

Clean Energy appears to be referring to the difference in cost

between an alternative-fuel vehicle and a similar gasoline-fuel

or diesel-fuel vehicle. The cost estimates in the preamble were

general estimates of the total costs for the purchase of an alternative-fuel vehicle. The commission did not change the cost

estimates.

Clean Energy agreed with the statement in the FISCAL NOTE

section of the proposed preamble that the public benefit will be

improved air quality statewide since there will be additional opportunities to apply for grant funds to replace diesel vehicles with

alternative-fuel options that have fewer emissions.

The commission appreciates the support expressed for the program and agreement with the assessment of potential benefits

of the program.

EPA commented that it is an unfortunate coincidence that this

program has the same name as a previous Texas Clean Fleet

Program adopted in Texas, and subsequently repealed, under

§182(c)(4) of the Texas Clean Air Act as amended in 1990. EPA

expressed hope that the use of the same name for this new program does not confuse the public.

The name of the program was specified by SB 1759. Where

appropriate, the commission will include statements in the grant

materials to make it clear that this program is different from the

earlier Texas Clean Fleet Program.

Clean Energy expressed support for the proposed definitions in

§114.650 tracking the statutory definitions.

The commission appreciates the support expressed for the program.

EPA questioned whether there is a typographical error in the definition of alternative fuel in §114.650(1), where it refers to "a mixture of fuels containing at least 85% methanol." The EPA asked

whether this should read "ethanol" instead of "methanol."

The definition in the rule is the same as stated in Texas Health

and Safety Code, §391.001(1), as added by SB 1759. Ethanol

is not included in the list.

EPA asked whether the specified list of alternative fuels in

§114.650(1) is all-inclusive or does the program allow for the

use of other unspecified alternative fuels.

The specified list of alternative fuels is all-inclusive. The commission has revised the language in §114.650(1) to make it clear

that only the fuels listed are considered alternative fuels for purposes of this program.

Clean Energy expressed support for the proposed language in

§114.651 and also suggested including clarifying language that

local governments, such as regional transit agencies or school

districts, may also apply for a grant.

The commission appreciates the support expressed for the

program. The definition of an eligible entity is included in

§114.650(2) and is based on the statutory language. The commission will provide information in the grant materials to explain

that all types of entities, including local governments, may be

eligible to apply for a grant. The commission did not make any

changes to the rules as a result of this comment.

Clean Energy expressed support for the language in §114.652

regarding qualifying vehicles. Clean Energy also commented

regarding the limited amount of funding available for this program. Clean Energy recommended that the commission consider whether other Texas Emission Reduction Program (TERP)

grant funding might be used to supplement a grant application

that meets the requirements of both the TERP grant program and

this program. In discussing the other TERP grant funding, Clean

Energy is referring to the Diesel Emissions Reduction Incentive Program established under Texas Health and Safety Code,

Chapter 386. Clean Energy also commented that there may also

be other sources of funding from other state or local sources that

might be used in conjunction with this program, including programs of the Texas General Land Office Natural Gas Vehicle Incentive Program, the Federal American Recovery Reinvestment

Act of 2009, and the Congestion Mitigation Air Quality ImproveADOPTED RULES March 12, 2010 35 TexReg 2197
ment Program implemented by the Federal Highway Administration.

The commission appreciates the support expressed for the program. Regarding the recommendation about using other grants

or financial incentives in conjunction with a grant from this program, joint funding with other TERP grants may not be feasible

due to the unique requirements of each program, including funding allocation requirements, timing of the grants and purchases,

location and use requirements, and the calculation and use of

the emissions reductions under the different programs. The feasibility of joint funding with other financial incentive programs will

depend upon the requirements of those programs. Also, any

joint funding would need to be consistent with §114.652(c)(3),

which states that a qualifying vehicle does not include a vehicle that has qualified for a similar grant or tax credit in another

jurisdiction. The commission will consider Clean Energy’s recommendations when implementing the program and will include

guidance in the grant implementation materials on the possible

use of other financial incentives in conjunction with a grant from

this program.

Clean Energy expressed support for the language in §114.653

regarding grant eligibility, including language allowing the executive director to adapt and modify implementation of the program quickly and respond to changing conditions. Clean Energy

specifically expressed support for the flexibility granted the executive director to set baseline emission levels and to establish

criteria which the vehicle being replaced must meet, including

minimum annual mileage or fuel usage requirements, minimum

percentage of annual usage requirements, and criteria for determining that the vehicle was in operating condition with at least

two years of remaining useful life.

The commission appreciates the support expressed for the program.

Clean Energy expressed support for the language in

§114.653(c), authorizing the executive director to also consider,

at the executive director’s discretion, projects that result in a

25% reduction in pollutants other than nitrogen oxides (NOX

),

and the language in §114.653(d)(2), authorizing the executive

director to prioritize projects based on the cost per ton benefits

of the overall emissions being reduced.

The commission appreciates the support expressed for the program.

EPA also commented regarding authority granted the executive

director in §114.653(c) to consider other pollutants in addition to

NOX. The EPA questioned how the state would keep the emissions reductions in other pollutants separate from the NOX emissions reductions.

The commission appreciates the support expressed for the program. Regarding the question raised by the EPA, the commission maintains a detailed database of all TERP project information and the emissions reductions associated with each project.

If, in the future, the commission bases the grant eligibility on

reductions in other pollutants in addition to or in place of NOX,

the commission will be able to distinguish between and track the

projects and the types of emissions that will be reduced by each

project.

EPA also asked about situations where the reduction in the other

pollutant resulted in an increase in NOX.

Regardless of the pollutant addressed under this program, the

NOX emissions standards for vehicles purchased under this program will be more stringent or, at a minimum, the same as the

standards for the vehicles being replaced. Therefore, the commission does not anticipate a circumstance where the replacement of a vehicle under this program would result in an increase

in NOX emissions when compared to the emissions of the vehicle

being replaced. The commission did not make any changes to

the rule in response to this comment.

Clean Energy expressed support for the language in §114.654

regarding usage and disposition.

The commission appreciates the support expressed for the program.

Clean Energy expressed support for the language in §114.655

regarding grant restrictions and also recommended that the commission clarify that a grant may also be used for labor to install emissions-reducing equipment, which is consistent with the

statute.

The commission agrees that SB 1759 authorizes the commission to include the reasonable and necessary expenses incurred

for the labor needed to install emissions-reducing equipment.

However, the purchase of emissions-reducing equipment is not

an eligible grant activity under this program. Therefore, this language does not apply and would be confusing if included in the

rules. The commission did not make a change to the rules as a

result of this comment.

EPA commented that clarification is needed in §114.656(a)(1)

listing the eligible grant amounts based on the emissions certification of the vehicle or engine being replaced. EPA suggested

that it would be helpful if the year of manufacture is specified for

both federal and California emission standards.

The commission agrees that the references to the categories of

emissions standards for determining the eligible percentage of

costs should be clarified. The commission has amended the

language in §114.656(a) to refer to the year of manufacture of

the heavy-duty on-road engines and in §114.656(b) to the model

year of the light-duty on-road vehicles. Under the federal and

California emissions certification requirements, heavy-duty onroad engines must have met the emissions standards applicable to the manufacture year of the engine and light-duty vehicles

must have met the emissions standards applicable to the model

year of the vehicle. The change in the rule language will help

clarify the appropriate funding category of the vehicle being replaced.

EPA also commented that §114.656(a)(1)(B) and

§114.656(b)(1)(A) and (B) could be interpreted to allow vehicles

illegally imported into the United States to be eligible for

replacement under the program. EPA explained that vehicles

imported after the implementation of emission standards were

required to meet the certification requirements in order to legally

be imported into the United States. EPA expressed concern

that the language authorizing funding for vehicles and engines

not certified to a federal or California emissions standard could

result in funding for imported vehicles that were required to,

but did not meet, the emissions standards applicable to that

vehicle. EPA recommended specifying the year of manufacture

of heavy-duty on-road engines and the model year of light-duty

on-road vehicles for federal and California emission standards

and clarifying the requirements.

The commission agrees that the language should be clarified.

The commission has amended the language in §114.656(a)

to refer to the year of manufacture of the heavy-duty on-road

35 TexReg 2198 March 12, 2010 Texas Register
engines and in §114.656(b) to the model year of the light-duty

on-road vehicles. Heavy-duty on-road engines must have met

the emissions standards applicable to the manufacture year of

the engine and light-duty vehicles must have met the emissions

standards applicable to the model year of the vehicle. The

commission has removed the language referring to vehicles

and engines not certified to meet a specific emissions standard.

The commission has also added §114.656(d) to make it clear

that non-compliant vehicles and engines imported into the

country illegally would not be eligible for replacement under the

program.

EPA also asked what is meant by "voluntary emission certification standards" under §114.656(b)(1)(B).

The references to voluntary emission certification standards

pertain to the voluntary National Low Emission Vehicle (NLEV)

standards. The NLEV came into effect through an agreement by

northeastern states and the auto manufacturers to provide more

stringent emission standards for the transitional period before

the Tier 2 standards were introduced. The commission has

amended the language in §114.656(b) to refer to the model year

of the light-duty on-road vehicles and removed the references

to voluntary emission certification standards.

Clean Energy expressed support for the language in §114.656

regarding eligible grant amounts. Clean Energy also expressed

support for §114.656(c) authorizing the executive director to revise the standards for determining grant amounts in order to reflect changes to federal emissions standards and decisions on

pollutants of concern.

The commission appreciates the support expressed for this program.

Clean Energy expressed support for the language in §114.657

regarding reporting requirements.

The commission appreciates the support expressed for this program.

Clean Energy expressed support for the language in §114.658

regarding the expiration date of these rules.

The commission appreciates the support expressed for this program.

Clean Energy expressed support for development of new grant

program procedures and new grant application forms that are

different from the other TERP grant forms. Clean Energy recommended that the procedures and application requirements be

tailored to large fleets and that many of the details currently required in an application for a TERP grant may not be necessary for an application under this program. Clean Energy expressed its opinion that the needs of the applicants under the

TERP grants and the applicants under this program are very different and that the application process should also be different.

This comment pertains to implementation procedures and

requirements and not a rule provision. The commission is

cognizant of the need to not make the application process any

more complicated than is necessary to effectively implement

the program. The commission will consider these comments

when developing the application materials, requirements, and

procedures.

Clean Energy commented that for a TERP grant, the applicant

is required to expend the time and resources needed to compile

and submit a substantial amount of information on each vehicle

identified in the application. Clean Energy expressed its opinion

that this amount of information may be appropriate for an applicant with one or two vehicles. Clean Energy explained that

because an applicant under this program will be providing information on 25 or more vehicles, the applicant may have a substantial investment in compiling that information without any indication whether the investment in compiling the application may

be worthwhile. Clean Energy recommended that the commission consider allowing an applicant under this program to initially

just provide basic information and that the commission pre-review the application to let the applicant know if it appears that

the applicant will qualify for a grant. Clean Energy expressed

its opinion that a pre-review of an application would be useful in

attracting good projects from fleet operators who may not otherwise be willing to submit a grant application, given the time and

resources it takes to submit an application.

This comment pertains to implementation procedures and

requirements and not a rule provision. The commission is

cognizant of the need to not make the application process any

more complicated than is necessary to effectively implement

the program. The commission will consider these comments

when developing the application materials, requirements, and

procedures. However, because vehicle eligibility and the eligible grant amount is dependent on the specific characteristics

of the vehicle being replaced, a pre-review of the applicant’s

information will be of limited value unless detailed information

about each vehicle to be included in the application is provided.

Clean Energy also expressed support for the provisions of SB

1759 directing the commission to study the amount of emissions

reductions achieved from alternative-fueling infrastructure and

to request that the EPA consider whether emissions reduction

credit can be attributed to the installation and use of the infrastructure. Clean Energy stated that it is prepared to assist in any

way it can.

This comment is beyond the scope of this rulemaking. The commission appreciates the support expressed for the infrastructure

study and the offer of assistance.

STATUTORY AUTHORITY

These new rules are adopted under Texas Water Code, §5.102,

which provides the commission with the general powers to carry

out its duties under the Texas Water Code; Texas Water Code,

§5.103, which authorizes the commission to adopt any rules

necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state; and

Texas Water Code, §5.105, which authorizes the commission by

rule to establish and approve all general policy of the commission. These new rules are also adopted under Texas Health and

Safety Code, Texas Clean Air Act, §382.017, which authorizes

the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; Texas Health and Safety Code,

Texas Clean Air Act, §382.011, which authorizes 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; and Texas Health and

Safety Code, Texas Clean Air Act, §382.012, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of the state’s air. Finally, the adopted

new rules are specifically authorized by SB 1759, 81st Legislature, 2009.

The adopted new rules implement Texas Health and Safety

Code, Chapter 391, as added by SB 1759 of the 81st Legislature, 2009.

§114.650. Definitions.

ADOPTED RULES March 12, 2010 35 TexReg 2199
ƇƇƇ

Unless specifically defined in the Texas Clean Air Act (TCAA) or in

the rules of the commission, the terms used in this subchapter have the

meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA and §§3.2,

101.1, and 114.1 of this title (relating to Definitions), the following

words and terms, when used in this division will have the following

meanings, unless the context clearly indicates otherwise.

(1) Alternative fuel--A fuel, other than gasoline or diesel

fuel. When used in this division, this definition is limited to the following: electricity, compressed natural gas, liquefied natural gas, hydrogen, propane, or a mixture of fuels containing at least 85% methanol

by volume.

(2) Eligible entity--Any person or entity with a fleet of 100

or more vehicles that:

(A) are registered in Texas; and

(B) include at least 25 vehicles that are eligible for replacement.

(3) Golf cart--A motor vehicle designed by the manufacturer primarily for transporting persons on a golf course.

(4) Heavy-duty vehicle--A motor vehicle with a gross vehicle weight rating greater than 8,500 pounds and containing an engine certified to the United States Environmental Protection Agency’s

heavy-duty engine standards.

(5) Hybrid vehicle--A motor vehicle with at least two different energy converters and two different energy storage systems on

board the vehicle for the purpose of propelling the vehicle.

(6) Light-duty motor vehicle--A motor vehicle with a gross

vehicle weight rating of less than 10,000 pounds and certified to the

United States Environmental Protection Agency’s light-duty vehicle

emission standards.

(7) Motor vehicle--A self-propelled device designed for

transporting persons or property on a public highway that is required

to be registered under Texas Transportation Code, Chapter 502.

(8) Neighborhood electric vehicle--A motor vehicle that:

(A) is originally manufactured to meet, and does meet,

the equipment requirements and safety standards established for "lowspeed vehicles" in Federal Motor Vehicle Safety Standard No. 500 (49

Code of Federal Regulations §571.500);

(B) is a slow-moving vehicle, as defined by Texas

Transportation Code, §547.001 that is able to attain a speed of more

than 20 miles per hour but not more than 25 miles per hour in one mile

on a paved, level surface;

(C) is a four-wheeled motor vehicle;

(D) is powered by electricity or alternative power

sources;

(E) has a gross vehicle weight rating of less than 3,000

pounds; and

(F) is not a golf cart.

(9) Program--The Texas Clean Fleet Program established

under this division.

§114.656. Eligible Grant Amounts.

(a) The eligible grant amount for each heavy-duty on-road vehicle being replaced is determined as follows:

(1) 80% of the cost for replacement of a vehicle with an

engine manufactured prior to 1988 and certified to meet the federal

emissions standards, if any, applicable to the year of manufacture;

(2) 70% of the cost for replacement of a vehicle with an

engine manufactured after 1987 and before 1998 and certified to meet

the federal emission standards applicable to the year of manufacture;

(3) 60% of the cost for replacement of a vehicle with an

engine manufactured after 1997 and before 2004 and certified to meet

the federal emission standards applicable to year of manufacture; and

(4) 50% of the cost for replacement of a vehicle with an engine manufactured after 2003 and certified to meet the federal emission

standards applicable to the year of manufacture.

(b) The eligible grant amount for each light-duty on-road vehicle being replaced is determined as follows:

(1) 80% of the cost for replacement of a light-duty diesel

vehicle of a model year prior to 1994 and certified to meet the federal

emissions standards, if any, applicable to the model year of the vehicle;

(2) 70% of the cost for replacement of a light-duty diesel

vehicle of a model year after 1993 and before 2004 and certified to

meet the federal emission standards applicable to the model year of the

vehicle; and

(3) 60% of the cost for replacement of a light-duty diesel

vehicle of a model year after 2003 and certified to meet the federal

emission standards applicable to the model year of the vehicle.

(c) The executive director may revise the standards for determining grant amounts as needed to reflect changes to federal emission

standards and decisions on pollutants of concern.

(d) To be eligible for replacement, vehicles and engines imported into the United States from another country must have met all

applicable emissions certification requirements for importation.

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 February 26,

2010.

TRD-201000990

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 18, 2010

Proposal publication date: October 23, 2009

For further information, please call: (512) 239-6090

TITLE 34. PUBLIC FINANCE

PART 4. EMPLOYEES RETIREMENT

SYSTEM OF TEXAS

CHAPTER 71. CREDITABLE SERVICE

34 TAC §71.14

The Employees Retirement System of Texas (ERS) adopts

amendments to 34 TAC §71.14, concerning Payments to Establish or Reestablish Service Credit, without changes to the

proposed text as published in the December 25, 2009, issue

35 TexReg 2200 March 12, 2010 Texas Register