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

### Chairman Carlos Rubinstein, 

### Commissioner Toby Baker, 

### Commissioner Zak Covar, 

### Executive Director 

# RECEIVED- 6PDL AIR PLANNING SEC. 

# 12 SEP -4 PH 

# t.: 23 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by 

### Reducing andPreventing Pollution 

## August 31, 2012

Mr. Samuel Coleman, Acting Regional Administrator U.S. Environmental ProtectionAgency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 Docket No. 2011-1639 -RUL Rule ProjectNo. 2011-060-114-EN

OnAugust 8, 2012, the Texas Commission on Environmental Quality (Commission) adopted revisions to the Texas State Implementation Plan (SIP) concerning the requirements for Locally Enforced MotorVehicle Idling Limitations. The Commission adopted amendments to 30 Texas Administrative Code (TAC) Chapter 114, Control ofAir Pollution from Motor Vehicles, Subchapter

## J, Operational Controls for MotorVehicles, Division 2, Locally Enforced Motor Vehicle Idling Limitations, Section 114.517, and corresponding revisions to the SIP. The adoption creates a new exemption for motor vehicles thaJ have a gross vehicle weight rating greater than 14,000 pounds and are equipped with a 2oo8 or subsequent model year heavyduty diesel engine or liquefied or compressed natural gas engine that has been certified bythe United States Environmental ProtectionAgency or another state environmental agency to emit no more than 30 grams ofnitrogen oxides emissionsperhourwhen idling. Enclosed are the revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying order. I look forward to your expeditious approval of these SIP revisions. Sincerely,

BWS/rh Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Terry Zrubek, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is our customer service? tceq.texas.govjcustomersurvey

## TEXAS COMMISSION ON ENVIRONMENTAL QuALITY

THE STATE OF TEXAS
COUNITOF TRAVIS Docket

## No. 2011-1639-RUL Rule Project

## No. 2011-060-114-EN



## This is to certifythatthe attached electronic file is includedandthatthe electronicfile is a
true and correct copy ofdocuments for a revision to the Texas State Implementation Plan, adopted onAugust 8, 2012, 

## pursuantto 40 

## Code ofFederal Regulations § 51.104. 

## I am the
records administrator for the Air Quality Division ofthe Texas Commission on Environmental Quality (Commission).

# ~~J)d=.J Air Quality Division Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality Public Hearings April 2 and 3, 2012 Concerning Revisions to 30 TAC Chapter 114 Control ofAir Pollution from Motor Vehicles and Revisions to the State Implementation Plan
Project No. 2011-060-114-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) held public hearings in Austin on April 2, 2012 and in Fort Worth on April 3, 2012, to receive testimony regarding a proposed
amendmentto 30 TAC Chapter 114, SubchapterJ, Division 2, Locally Enforced MotorVehicle Idling
Limitations and corresponding revisions to the state implementation plan.

The rulemaking will implement Senate Bill493, 82nd Legislature, 2011, which amends Texas Health
and Safety Code, Chapter 382, Subchapter 

## 8 by adding §382.0191, which prohibits the commission
from limiting the idling ofa motorvehicle that has a gross weight rating greaterthan 14,000 pounds
and that is equipped with a 2008 orsubsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the United States Environmental
Protection Agency or a state environmental agency to emit no more than 30 grams of nitrogen
oxides emissions per hourwhen idling.

The comment period closed on April9, 2012. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete record ofthe public hearings and is
divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations/Order

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle, Austin, Texas 78753. Forfurther information, please contact Holly Brightwell at (512) 239-
4905.

# NOTICE 

# & 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: February 24, 2012 

### Fort Worth Star-Telegram: February 24, 2012 

### Houston Chronicle: February 24, 2012

2. Publication of the proposed rules in the March 9, 2012, issue ofthe 

### Texas Register(37 TexReg 1656).

3. Publication of the Notice of Public Hearings in the March 9, 2012, issue of the 

### Texas Register(37 TexReg 1811).

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

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

### Example of Newspaper Classified Ad
Fort Worth Star- Telegram, 

### February 24, 2012

### 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 andPreventing Pollution 

## NOTICE OF PUBLIC HEARINGS ON A PROPOSED REVISION TO 30TAC CHAPTER 114 AND REVISION TO THE STATE IMPLEMENTATION PLAN The Texas Commission on Environmental Quality (commission) will conduct publichearings to receive testimonyregarding a proposed amendmentto 30Texas Administrative Code (TAC) Chapter 114, Subchapter

## J, Division 2, Locally Enforced MotorVehicle Idling Limitations andrevision to the state implementationplan (SIP), under the requirements of Texas Health and Safety Code (THSC), §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental ProtectionAgency (EPA) regulations concerning SIPs. The proposed rulemaking would implement Senate Bill 493, 82nd Legislature, 2011, amendingTHSC, Chapter 382, Subchapter Bby adding §382.0191, which prohibits the commissionfrom limiting the idling ofa motor vehicle that has a gross vehicle weight rating greaterthan 14,000pounds andthat is equippedwith a 2008 or subsequent modelyear heavy-duty diesel engine orliquefied or compressed natural gas engine that hasbeen certified bythe EPA or a state environmental agencyto emit no more than 30 grams ofnitrogen oxides emissions perhourwhen idling. The commission will hold publichearings onthese proposals inAustin onApril 2, 2012, at 2:00p.m., in Building E, Room 201S atthe commission's central office located at 12100 Park 35 Circle; and in FortWorth onApril3, 2012, at 2:00p.m., atthe Texas Commission on Environmental Quality Dallas Regional Office, 2309 Gravel Drive. The hearings are structuredfor thereceipt oforal orwritten commentsbyinterested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will notbe permitted during the hearings; however, commission staffmembers will be available to discuss the proposal 30 minutes priorto eachhearing.
Persons who have special communication or other accommodation needs who are planning to attendthe hearings should contact SandyWong, Office ofLegal Services, at (512) 239-1802. Requests shouldbe made as far in advance as possible. Comments maybe submittedto Charlotte Horn, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submittedat: 

## http:jjwwws.tceq.texas.govjrulesjecommentsj. File size restrictions may apply to commentsbeing submittedvia the eComments system. All comments pertaining tothe rulemaking should reference Rule Project Number 2011-060-114-EN. The commentperiod closesApril9, 2012. Copies ofthe proposed rulemaking canbe obtainedfrom the commission's Web site at

## http:jjwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further information, please contact Holly Brightwell, Air Quality Planning Section, at (512) 239-4905.

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

### Notice ofPublic Hearings on a Proposed Revision to 30 TAC Chapter 114 

### and Revision to the State ImplementationPlan The Texas Commission on Environmental Quality (commission) will conduct public hearings to receive testimony regarding a proposed amendment to 30 Texas Administrative Code (TAC) Chapter 114, Subchapter J, Division 2, Locally Enforced Motor Vehicle Idling Limitations and revisionto the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code (THSC), §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental Protection Agency (EPA) regulations concerning SIPs. Theproposedmlemaking would implementSenateBill493, 82nd Leg· islature, 2011, amending THSC, Chapter 382, Subchapter B by adding §382.0191, which prohibits the commission from limiting the idling ofa motor vehicle that has a gross vehicle weight rating greater than 14,000 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or a state environmental agency to emit no more than 30 grams ofnitrogen oxides emissions per hour when idling. The commission will hold public hearings onthese proposals in Austin on April2, 2012, at 2:00p.m., in Building E, Room 201S at the commission's central office located 

### at 12100 Park 35 Circle; and in Fort Worth on April3, 2012, at 2:00 p.m., at the Texas Commission on En· vironmental Quality Dallas Regional Office, 2309 Gravel Drive. The hearings are structtu·edforthe receiptoforal orwritten conunentsby interested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not be permitted duringthe hearings; however, commission staffmembers will be available to discuss the proposal 30 minutes prior to each hearing. Persons who have special communication or other accommodation needs who are planning to attend the lrearings slrould contact Sandy Wong, Office ofLegal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Comments may be submitted to Charlotte Horn, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at: http:/lwww5.tceq.texas.gov/rules/ecommentsl. Pile size restrictions may apply to comments being submitted via the eComments system. All comments pe11aining to the rulemaking should reference Rule Project Number 20ll-060-114-EN. The comment period**clos~;:s** April 9, 2012. Copies ofthe proposed rulemaking can be obtained from the commission's Web site athttp:/lwww.tceq.texas.gov/nav/ruleslpropose_adopt.html. For further information, please contact Holly Brightwell, Air Quality Planning Section, at (512) 239-4905. TRD-201201124 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quanty Filed: February 24, 2012 

# • • • Notice ofPublic Hearing nProposed Revisions to 30 TAC Chapter 116 and to the St eImplementation Plan The Texas Commission on · lVironmental Quality (commission) will conduct apublic hearing to r eive testimony regarding proposed revisions to 30 Texas Administr tive Code (TAC) Chapter 116, Control of Air Pollution by Permits for New Construction or Modilication, §§116.12, 116.150, 116.151, 116.180, and 116.186, and corresponding revisions to the state implementati n plan (SIP) under the requirements ofTexas Health and Safety Cod , §382.017; Texas Government Code, Chapter 2001, Subchapter B; , d 40 Code ofFederal Regulations §51.102 ofthe United States En ironmental Protection Agency (EPA) concerning SIPs. The proposed rulemaking would remo e areference to flexible permits in the definition ofplant-wide applic bility limit, include references to federal terminology, and state that t e failure to use monitoring required in a plant-wide applicability 1i 'tpermit would renderthat permit invalid. The commission will hold a public he ing on this proposal in Austin onMarch29, 2012, at IO:OOa.m. inBu ldingERoom201S, atthe commission's central office located at 121 0 Park 35 Circle. The hearing is structured for the receipt oforal or ritten comments by interested persons. Individuals may present oral tatements when called upon in order ofregistration. Open discussion ill not be permitted during the hearing; however, commission staffm mbers will be available to discuss the proposal 30 minutes prior to e hearing. Persons who have special communic tion or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office ofLegal Services, at (5 2) 239-1802. Requests should 

### be made as far in advance as possible. Written comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas ommission on Environmental Quality, P.O. Box 13087, Austi Texas 78711-3087 or fuxed to (512) 239-4808. Electronic co ents may be submitted at: http:llwww5.tceq.texas.govlrules/eco entsl. File size restrictions may apply to cotntnents being ubmitted via the eComments system. All comments should re renee Rule Project Number 2012-015-116-AT. The comment perio closes April9, 2012. Copies ofthe proposed rnlemaking can be o tained from the commission's Web site at http://www. tceq.texas.go navlruleslpropose _adopt.html. For further information, please cont t Blake Stewart, Air Permits Division, (512) 239-6931. TRD-201201123 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Filed: February 24, 2012 

# • • Notice ofReceipt 

### ofApplication Municipal Solid Waste 

### Permit Proposed Permit No. 2379 

# •

APPLICATION.**Liquit~k,** LLC (Liq 1itek Arlington Liquid Waste Processing Facility), P.O. Box 47038 , Fort Worth, Tarrant County, Texas 76147, has applied to the Texas ommission on Environmental Quality (TCEQ) for a new Type V M Wpermit to authorize a liquid waste dewatering fl\cility. The fhcility is located at 408 II3th Street, Arlington, Tarrant County, Tcx:as 76 11. The TCEQ teceived the application on January 26, 2012. The ermit application is available fur viewing and copying at the Geor e W. Hawks Central Library,

. 101 East Abram Street, Arlington, arrant Co11nty, Texas 76006. 'l11e following link to an electronic map of the site or facility's general location is provided as a p lie courtesy and is not pa1i of the application or notice: http:/! .tceq.texas.gov/asscts/public!hh610/index.html?lat=32.7448&1n 97.0432&zoom=l3&type=r. For exact location, refer to application ADDITIONAL NOTICE. TCEQ's Exe utive Director has determined the application is administratively com Jete and will conduct atechni

## INADDITION March 9, 2012 37TexReg 1811the executive director and in accord nee with the appronriate oroce- 

## CHAPTER 114 CONTROL OF AIR dures ofthe TCEO Sampling PJ'Oce ures Manual. Tests must consist 

## POLLUTION FROM MOTOR VEHICLES ofthree runs with aminimtl!n of30 minutes for each 

### rtm or IoniZer if required bv the reference method. A I engine- and turbine-based CHP 

## SUBCHAPTER J. 

## OPERATIONAL CONTROLS units desilmecl to generate more that 375 kW must be retested bv the 

## FOR MOTOR VEIDCLES above method after every 16 000 hot

### h's ofoperation regardless ofcertification. 

## DIVISION2. LOCALLY ENFORCED MOTOR (3) Except for rich-burn ngines equipped with oxidation- 

## VEHICLE IDLING LIMITATIONS reduction (three-wav) catalvsts the ncontrolled source must demon- 30 TAC §114.517 strate comQliance with the emission anclards in subsection (d)ofthis section. The Texas Commission on Environmental Quality (TCEQ or (f)**Recordkeeoin~t.** In addi 'on to the minimum records re- commission) proposes an amendment to §114.517. auired bv 6106.8 ofthis title (relath

### lg to Recordkeeping). the owner Ifadopted, the amended section will be submitted to the United or ooerator must keen the foliowine: records: States Environmental Protection Agency (EPA) as a revision to (1) Forthe life ofthe CH unit the registration anolication the state implementation plan (SIP). and anv additional representations n ade during the approval process Background and Summary ofthe Factual Basis forthe Proposed to obtain the registmtion, and Rule (2) The owner orooerato must keep the following records Chapter 114, Subchapter J, Division 2, Locally Enforced Mota for at leasttwo vears and make them a lvailable to the TCEO oranv local Vehicle Idling Limitations, was originally adopted by the commisoollution control program withiuriS< ·ction upon request: sion on November 17. 2004, atthe request of the local air quality (A) A record of ever one-week period of ooeration planning organization in the Austin Early Action Compact (EAC) where the CHP unit did not compl with subsection ( C)(2) of this area (Bastrop, Caldwell, Hays, Travis, and Williamson Counsection; ties) for use as a control strategy in its EAC agreement to maintain attainment of the 1997 eight-hour ozone National Ambien (B) All**monitorin~~:** ar**~** testh1g data generated in com- Air Quality Standard (NAAQS), as published in the December nliance with subsection (e) ofthis seption and in aformat that shows 3, 2004, issue of the Texas Register (29 TexReg 11355). The the emission standards have been m( · adopted Motor Vehicle Idling Rule provides any local govern- (C) RecordsofCHP u itoperation sufficientto demon- ment In Texas the option ofapplying the rules in theirjurisdiction strate compliance with any applicabl! hour-based r1;1quirements ofsub- in the event additional control measures are needed to achieve section {e} ofthis section; and or maintain attainment of the ozone NAAQS.
(])) Recofds of main**~nance** described in subsection The EAC concept ofan early, voluntary air quality plan was en- (g)(2) ofthis section. dorsad by the EPA Region 6 in June 2002. It was slightly modified and made available nationally in November 2002. A key (_g) Planned Maintenance St rtup, and Shutdown. point of an EAC was the flexibility allowed to areas to select (I) This pel'mit by rule authori7..es all emissions from emission reduction measures such as limiting vehicle idling. Benlanned startun and shutdown activit es associated with facilities that ginning on August 1, 2005, members of the Austin EAC and are authol'izcd by this section. the TCEQ signed the locally enforced idling restrictions**mem~** orandum of agreement (MOA). This MOA allowed participating (2) '11lis permit bv rule a thorizes emissions from the fol- counties and cities to enforce the idling restriction rule in their lowing olam1ed maintenance activit'

### bs associated with facilities au- jurisdictions. Members ofthe Austin EAC area signing the MOA thorized by this section: routine mai!J.tenance including, but not lim- included Bastrop, Caldwell, Hays, Travis, and Williamson Counited to filter changes oxygen senso replacements overhauls lubri- ties, and the cities ofAustin, Bastrop, Georgetown, Hutto, Lockcant changes, SQark Qlug changes, an

### li emission control svstem main- hart, Luling, Round Rock, and San Marcos. Idling restrictions are tenance. a control measure put in place in the Austin-Round Rock 1997 This agency hereby certifies**thatt~** eproposal has been reviewed**Eight~Hour** Ozone Flex Plan, which was signed in Septembe by legal counsel and found to be w hin the agency's legal author- 2008. ity to adopt. Four counties, 20 cities, and two towns in the Dallas-Fort Worth 

### :ary of State on February 23, (DFW) area have also signed agreements to enforce the MoFiled with the Office of the Secre tor Vehicle Idling Rule in their jurisdictions. Idling restrictions 12012. are a Voluntary Mobile Emissions Reductions Program (VMEP) control measure in the DFW 1997 Eight-Hour Ozone Attainment TRD-201201110 Demonstration SIP revision, which was adopted by the commisRobert Martinez sian on May 23, 2007. Director, Environmental Law Division This proposed rulemaking amends the MotorVehicle Idling Rule Texas Commission on Environmental :Juality as stated in Chapter 114, Subchapter J, Division 2. The Mo- Earliest possible date of adoption: Ap 118,2012 tor Vehicle Idling Rule limits idling for gasoline and diesel-pow- For further information, please call: (5 2) 239-2141 ered engines in motorvehicles within the jurisdiction of any lo- 

# + 

# • + cal government in the state that has signed an MOA with the TCEQ delegating enforcement to that local government. Local enforcement is crucial to the effective implementation of rules to reduce the extended idling of gasoline and diesel-powered



## 37 TexReg 1656 March 9, 2012 Texas Registerheavy-duty vehicles and vital to the reduction of nitrogen oxides (NO,) and volatile organic compounds (VOC) necessary to achieve or maintain attainment of the ozone NAAQS. The 79th Legislature, 2005, enacted House Bill (HB) 1540, establishing Texas Health and Safety Code (THSC), §382.0191, Idling of Motor Vehicle While Using Sleeper Berth, which prohibited the commission from restricting the idling of a motor vehicle while a driver is using the vehicle's sleeper berth for a government-mandated rest period. HB 1540 also restricted drivers using the vehicle's sleeper berth from idling in a school zone or within 1,000 feet of a public school during its hours of operation, and it defined the penalty for an offense as 

### a fine not to exceed $500. HB 1540 did not specify an enforcement period, but It set a September 1, 2007, expiration date on the section. The commission adopted MotorVehicle Idling Rule revisions to be consistent with HB 1540 on April26, 2006, as published May 12, 2006, in the Texas Register(31 TexReg 3900). The 80th Legislature, 2007, enacted Senate Bill (SB} 12, which in part amended THSC, §382.0191, to extend the prohibition on the TCEQ from restricting certain idling activities from September 1, 2007 to September 1, 2009, as published in the February 15, 2008, issue of the Texas Register(33 TexReg 1345). The prohibition in §114.512(b) of certain vehicles from Idling within 1,000 feet of a school or hospital expired on September 1, 2009. Therefore, this subsection was deleted in previous rulemaking. On May 22, 2008, the National Armored Car Association submitted a petition for rulemaking requesting that armored vehicles be added to the list of Idling restriction exemptions under §114.517. The commission adopted rule changes incorporating the armored vehicle exemption on July 20, 2011. The July 20, 2011, rulemaklng also deleted the ozone season dates under §114.512 to allow local governments to enforce idling limits**year~round** for consistent enforcement year-round (36 TexReg 4972). The 82nd Legislature, 2011, enacted SB 493, amending THSC, Chapter 382, Subchapter 8 by adding THSC, §382.0191, which prohibits the commission from limiting the idling of a motor vehicle that has a gross vehicle weight rating greater than 8,500 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or another state environmental agency to emit no more than 30 grams of NOx emissions per hour when idling. Though SB 493 provides for an exemption of vehicles with agross vehicle weight greater than 8,500 pounds and equipped with the low-NO, engine, the proposed rule change exempts vehicles weighing greater than 14,000 pounds and equipped with the low-NO. engine. The reason for this specification is because only vehiclesweighing more than 14,000 pounds are subject to the idling resbictions. This proposed rulemaking incorporates the amendment into the existing Motor Vehicle idling Rule. Federal Clean AirAct, §110(1) Demonstration The exemption will not interfere with attainment or reasonable further progress in the SIP. The rule currently includes an exemption for motor vehicles with a gross vehicle weight rating of 14,000 pounds or less; there is no net change in emissions to exempt vehicles with a gross vehicle weight rating between 8,500 and 14,000 pounds with an engine as specified in the statute. Furthermore, adding the exemption for vehicles employing the newer engines as previously described will not interfere with at- -tainment or reasonable further progress In the SIP because the DFW area achieved an excess of NOx and VOC emissions reductions through the VMEP commitments. The excess emissions reductions achieved was greater than the 0.12 tons per day (tpd) NOx and 0.004 tpd VOC emissions reduction shortfall estimated In the North Central Texas Council of Governments (NCTCOG} VMEP accounting forthe Locally Enforced Idling**Re~** strictions. In addition, the 0.86 tpd NOx and 

### 3.66 tpd VOC excess emissions reductions achieved forthe overall VMEP, as**es~** timated in the_ NCTCOG's VMEP accounting, were greater than the emissions reduction commitments for the Locally Enforced Idling Restrictions component of the VMEP. Section Discussion §114.517. Exemptions. This proposal amends §114.517 to include an exemption in proposed paragraph (2) for .any motor vehicle with a gross vehicle weight rating greater than 14,000 pounds that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or another state environmental agency to emit no more than 30 grams of NOx emissions per hour when idling. Though SB 493 provides for an exemption {)f vehicles with a gross vehicle weight greater than 8,500 pounds and equipped with the low-NOx engine, the proposed rule change exempts vehicles weighing greater than 14,000 pounds and equipped with the 

### I ow-NOx engine. The reason for this specification is because only vehicles weighing more than 14,000 pounds are subject to the idling restrictions. In addition, the current exemptions in existing paragraphs (2)- (12) would be renumbered as paragraphs (3)

- (13). 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 rule is in effect no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rule. The proposed rule is not expected to have any fiscal impact on other state agencies or units of local government The proposed rule implements SB 493 and allows the Idling of a motor vehicle with a gross vehicle weight rating greater than 8,500 pounds that is equipped with a 2008 or newer engine as specified in the staMe that has been certified by the EPA or another state environmental agency to emit no more than 30 grams of NOx emissions per hour. The EPA could require the agency to demonstrate that backsliding will not occur in the SIP underthe proposed rule since there may be an increase in emissions due to idling of certain motor vehicles. The agency w!ll use currently available resources to perform any required demonstrations and use excess emissions reductions achieved for the overall VME:P to offset any increase in emissions resulting from the exemption of these vehicles. Participation in the Idling program is voluntary and currently only the Central Texas Area (CTA} and the North Central Texas Area (NCTA) have signed agreements to implementvehicle idling limitations. The CTA includes Bastrop, Caldwell, Hays, Travis, and Williamson Counties and the cities of Austin, Bastrop, Georgetown, Hutto, LoCkhart, Luling, Round Rock, and San Marcos. The NCTA includes Collin, Dallas, Kaufman, and Tarrant Counties, the cities of Ar1ington, Benbrook, Cedar Hill, Celina, Colleyville, Dallas, Euless, Hurst, Keene, Lake Worth, Lancaster, Mabank, McKinney, Mesquite, North Richland Hills, Pecan Hill,



## PROPOSED RULES March 9, 2012 37TexReg 1657

### Richardson, Rowlett, University Park, and Venus, and the towns of Little Elm and Westlake. Participation in the vehicle idling program provides local governments with additional options to reduce emissions and maintain attainment with the federal ozone standards. State agencies and local governments that own or operate motor vehicles with gross vehicle weight ratings greater**th~n 8,50~**  

### pounds and are equipped with a 2008 and newer engme .ce_rtlfied to emit no more than 30 grams of NO. per hourwhen tdhng may benefit from the proposed rule since they will allow drivers to operate air conditioners or heating**wh7~** 

### idling

..**~he pro~osed**  

### rule will also give the governmental entitles parttctpatJng.1n the voluntary idling program more flexibility concerning certain motor vehicles that may be idling in their area. Neitherthe agency nor otherstate agenciestrackwhere certified engines are registered, and information regarding the number of vehicles certified to emit no more than 30 grams ofNO, per hour when idling in the CTA and NCTA is not available. Public Benefits and Costs Nina Chamness also determined that for each year of the first five years the proposed rule is in effect, the anticipated public benefit from the proposed rule will be 

### compliance with state law. Individuals that drive certain motor vehicles that have the certified engines are expected to benefit from the proposed rule through the use of air conditioning and heating when idling durIng mandated rest breaks. Businesses that own the types ofmotorvehicles that are affected by the proposed rule are not expected to experience any fiscc;tl impacts as a result of this proposed rule. The proposed rule will allow employees to operate alrconditioning and heating systems when idling certain motor vehicles during mandated rest breaks. Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or m!- cro-businesses as a result of the proposed rule. A small business should experience the same type of fiscal**impa~t** 

### as that experienced by a large business. The proposed**r~le** 

### w1ll**.a.llo~** 

### a small business to permit employees to operate a1r condttionmg and heating systems when idling certain motor vehicles during mandated rest breaks. Small Business Regulatory Flexibility Analysis The commission has revlewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rule is required in order to comply with state law and does not adve!'lely affect a small or micro-business in a material way for the ftrst five years that the proposed rule is 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 rule does not adversely affect .a local economy for the first five years that the proposed rule wtll be in effect Draft Regulatory Impact Analysis Determination The commission reviewed the proposed rulemaking in light ofthe regulatory analysis requirements of Texas Government Code, §2001.0225 

### and determined that the proposed rulemaking does not meetthe definition ofa major environmental rule. Texas Gov

## 37TexR.eg .1658 March 9, 2012 Texas Register ernment Code, §2001.0225 

### states that a major environmental rule is, a rule the specific intent ofwhich is to protectthe environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Furthermore, while the proposed rulemaking does not constitute a major environmental rule, even if 

### it did, a regulatory impact analysis would not be required**beca~se ~~e**  

### proposed rulemaking does not meet any ofthe.four**appl1~ab1hty** 

### criteria for requiring a regulatory impact analysts for amaJor**~n** 

### vironmental rule. Texas Government Code, §2001.0225 

### applies only to a major environmental rule that: 1) 

### exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless**~he** 

### rule is specifically required by federal law; 3) exceeds a reqUirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement astate and federal program; or4) adopts arule solely under the general powers ofthe agency instead of under a specific state law. Specifically, it does not meet any of the four applicability criteria listed in Texas Government Code, §2001.0225 

### because: 1) 

### the proposed rulemaking is part of the SIP, and as such is designed to meet, not exceed the**releva~t** 

### standa_rd set by federal law; 2) parts of the proposed rulemakmg are directly required by state law; 3) no contract or delegation**agree~ent** 

### covers the topic that is the subject of this proposed rulemak1ng; and 4) the proposed rulemaking is authorized by specific sections of THSC, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the Statutory Authority section of this preamble. The proposed rulemaking implements requirements of the Federal Clean Air Act (FCAA}. Under 42 United States Code (USC), §7

410, 

### each state is required to adopt and implement.a**S~**

### Pcontaining adequate provisions to implement, attain, mamta1n, and enforce the NAAQS within the state. While 42 USC, 

### §7410 

### generally does not require specific programs, methods, or reductions in order to meet the standard, SIPs must include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements ofthis chapter (meaning 42 USC, Chapter 85, Air Pollution**Pr~vention** 

### and Control, otherwise known as the FCAA). The prov1slons of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best .methods for attaining the NMQS for the specific regions in the state. Even though the FCM allows states to develop their own programs, this flexibility does not relieve astate from developing a program that meets the requirements of42 

### USC, §7410. 

### States are not free to ignore the requirements of 42 USC, §7410, 

### and must develop programs and control measures to assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAQS within the state. Participation in the idling program is voluntary, and currently only the local governments in the CTA and the NCTA have signed agreements to implement vehicle idling limitations. The**affect~d** 

### idling**lim~tions** 

### rules provide all local governments the opt1on of applying the rules when additional control measures are needed to achieve or maintain attainment of the federal ozone standards.The specific intent of the proposed rulemaking is 

### to include an exemption implementing SB 493 for any motor vehicle with a gross vehicle weight rating greater than 8,500 pounds that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied

### or compressed natural gas engine that has been certified by the EPA or another state environmental agency 

### to emit no more than 30 grams of NO. emissions per hour when idling. · The proposed rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because while the specific intent of the proposed rulemaking is to protect the environment or reduce risks to human health from environmental exposure, as discussed previously in the Fiscal Note,. Public Benefits and Costs, Small Business Regulatory FlexibilityAnalysis, and the Local Employment Impact Statement sections of this preamble, the proposed .rulemaking would not adversely affect in 

### a material way the economy, 

### a sector of the economy, productivity, competiti.on, or jobs; nor would the proposed rulemaklng adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state. The idling restrictions are effecti.ve only 

### in certain areas ofthe state where an MOA between the TCEQ and the local government is in effect and only in certain defined areas within those limited areas. The proposed rulemaking is not subjectto a regulatory impact analysis underTexas Government Code, §2001.0225 because it is not a major environmental rule. The requirement 

### to provide afiscal analysis ofregulations in the Texas Government Code was amended by SB .633, 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language f!S major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program; or are adopted solely under the .general powers of the TCEQ. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fisca! implications for the agency due to its limited application. The commission also noted that the number of rules that would require assessment unde.r the provisions ofthe billwas not large. This conclusion was based, in part, on the criteria set forth In the bill that e?<empted rules from the full analysis unless the rule was a major environmental rule that exceeded a federal law. The FCAA does not always require specific programs, methods, or reductions in order to meetthe NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet the attainment deadlines. Because of the ongoing need to address nonattainmentissues and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts revisions,to the SIP and rules. The legislature is presumed to understand this federal scheme. Ifeach rule proposed for inclusion in the SIP was considered-to be a major environmental rule that exceeds federal law, then every revision to the Sl Pwould require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes and that presumption is based on infonnation provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the rules have a broad Impact, that impact Is no greater than is necessary or appropriate to meetthe requirements ofthe FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially unamended. It is presumed that, When an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to. have accepted the agency's interpretation. Central Power & Light Co. 

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

### v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney 

### v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. 

### v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal lndust. WaterAuth. 

### v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). The commission's interpretation of the regulatory impact analysis requirements Is also supported by a cl:lange made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections ofthe APA against the standard of substantial compliance as required in Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, §2001.0225 as falling underthis standard. The commission has substantially compiled with the requirements ofTexas Government Code, §2001.0225. Even if the proposed .rulemaking constitutes a major environmental rule under Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis Is not required because this exemption is part of the commission's SIP for making progress toward the attainmentand maintenance of the NAAQS. Therefore, the proposed rulemaking does not exceed a standard set by federal law or exceed an express requirement of state law, since they are part of an overall regulatory scheme designed to meet, not exceed the relevant standard set by federal law (NAAQS). The commission is chargedwith protecting air qualitywithin the state and to design and submit aplan to achieve attainment and maintenance of the federally mandated NAAQS. The Third District Court of Appeals upheld this Interpretation in Brazoria Countyv. Texas Comm'n on Envtl. Quality, 128 S.W. 3d 728 (Tex. App. " Austin 2004, no writ}. The specific intent of the proposed rulemaking Is to Include the exemption for a motorvehicle that has a gross vehicle Wfilight rating greaterthan 14,000 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine. that has been certified by the EPA or another state environmental ager\cy to emit no more than 30 grams of NOx emissions per hour when idling. This proposal, therefore,. does not exceed an express requirement of federal Jaw. The amendment is needed to implement state law but does exceed those new requirements. The proposed rulemaking does involve a compact (in particular, the Austin EAC), which Is an agreement between the state and federal government to implement a state and federal program; however, the proposed amendment does not exceed the



## PROPOSED RULES March 9, 2012 37TexReg 1659requirements of that compact. Finally, this proposed rulemaking was not developed solely under the general powers of the agency, but is authorized by specific**sectio~s** of**T~SC, C~apter**  382 which are cited in the Statutory Authonty section ofth1s preamble, including THSC, §382.Q12 and §382.019.

### Becau~e th!s proposed rulemaking does not meet any of the four apphcabrlity requirements, Texas Government**Cod~, ~2001.022?(b)**  does not apply, and a regulatory impact analysis IS not requrred. The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment period. Written comments on the draft regulatory impact analysis determination may be submitted to the contact**per~**on at th.e address listed underthe Submittal of Comments sect1on of this preamble. Takings Impact Assessment The commission evaluated the proposed rulemaking and performed an analysis of whether the proposed rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply. Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action**~hat** affects private.real property, in whole or in part or temporanly or permanently, 1n a ma.nner that requires the governmental entity to compensate the prrvate real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article 1 Texas Constitution; or (B) a governmental action that (i)

### affect~ an owner's private real property that is the subject of the governmental action, In whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property thatwould otherwise exist in the absence ofthe .governmental action; and (ii) is the producing cause ofa redu<:Uon of at least 25 percent in the market value of the affected pnvate real property, determined by comparing the market value ofthe property as ifthe governmental action is n_ot in effect and the**mar~et** value of the property determined as If the governmental act1on is in effect." Promulgation and enforcement of the proposed**r~lemakin~** would be neither a statutory nor a constitutional takrng of pnvate real property. The primary purpose of the proposed**ru~e** is to implement THSC, §382.0191 added by SB 492. ThiS proposed rule Is not burdensome, restrictive, or limiting. of rights to private real property because the proposed rulemakrng regulates vehicle idling in certain**limi~ed** areas

..**Further":l~re,** the proposed rulemaking would benefrt**t~e** public by prov1d.rng all local governments the option of applyrng the Motor Vehicle Idling Rule when additional control measures are needed to achieve or maintain attainment of the federal ozone standards. The proposed rulemaking does not affect a landowner's rights in private real property because this rulemaking does not**bu~­** den, restrict, or limit the owner's right to property, nor does rt reduce the value of any private real property by 25% or more beyond that which would otherwise exist in the absence**o~** the regulations. Therefore, this proposed rule would not constitute a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management Program The commission reviewed the proposed rulemakihg and found that the adoption is subject to the Texas Coastal**Mana~em~nt** Program (CMP) in accordance with the Coastal Coordrnatlon Act, Texas Natural Resources Code §§33.201 etseq., and**ther~"** fore, must be consistent with all applicable CMP goals and polr

## 37 TexReg 1660 March 9, 2012 Texas Register cies. The commission reviewed this proposed rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the proposed rulemaking does not affect any coastal natural resource areas. The CMP goals applicable to the pmposed rulamaking are to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. No new sources of air contam 1nants are authorized in those affected counties. The CMP policy applicable to this proposed rulemaking action is the policy that commission rules comply with regulations in the Code of Federal Regulations (CFR) to protect and enhance airquality in the coastal area (40 CFR §501 .32). This proposed rulemaking does not have a detrimental effecton SIP emissions reduction obligations relating to maintenance ofthe ozone NMQS. This proposed rulemaking action complies with the CFR. Therefore, in compliance with 31 TAC §505.22(e), this proposed rulemaking action is consistent with CMP goals and policies. Promulgation and enforcement ofthis proposed rule does not violate or exceed any standards identified in the applicable CMP goals and policies, because the proposed rulemaking is consistent with these CMP goals and policies, and because this proposed rule does not create or have a direct or significant adverse effect on any coastal natural resource areas. Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section ofthis preamble. Announcement of Hearings The commission will hold public hearings on this proposal in Austin on April2, 2012, at 2:00p.m., in Building E, Room**201~.** at the commission's central office located at 12100 Park 35 Crrcle, and in Fort Worth on April 3, 2012, at 2:00 p.m. in the Public Meeting Room, at the DFW TCEQ Region 4 Office located at 2309 Gravel Road. The hearings are structured forthe receipt of oral orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearings; however, commission staff members will be available to discuss the proposal 30 minutes prior to each hearing. Persons who have special communication orother accommodation needs who are planning to attend a hearing should contact Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Charlotte Hom, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.texas.govlru/es/ecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2011-060-114-EN. The comment period closes April 9, 2012. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.texas.govlnavlru/eslpropose_adopt.html. For further information, please contact Holly Brightwell, Air Quality Planning Section, {512) 239-4905. Statutory Authority The amendment is proposed under the authority of the Texas Government Code and underTexas Water Code (TWC), §5.1 02,General Powers; TWC, §5.1 03, Rules; and TWC, §5.105, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to prop.ose rulemaking necessary to carry out its powers and duties underthe TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various statutory programs. The amendment is also proposed under Texas Health and Safety Code {THSC), §382.017, Rules, which authorizes the commission to propose rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to propose rules that differentiate among particular conditions, particular sources, and particular areas ofthe state. The amendment is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.003, concerning Definitions; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, ·§382.012, State Air Control Plan, which authorizes the commission to prepare and develop 

### a general, comprehensive plan for the control o.f the state's air; THSC, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to propose rules to control and reduce emissions from engines used to propel land vehicles; and THSC, §382.208, Attainment Program, which authorizes the commission to develop and implement transportation programs and other measures necessary to demonstrate attainment and protect the public from exposure to hazardous air contaminants from motor vehicles. The proposed amendment implements SB 493, which established THSC, §382.0191. §114.517. Exemptions. The provisions of§114.512 ofthis title (relating to Control Require· ments for Motor Vehicle Idling) do not apply to: (!) a motor vehicle that has a gross vehicle weight rating of 14,000 pounds or less; (2) a motor vehicle that has a gross vehicle weight rating greater than 14,000 pounds and that is equipped with a2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the United States Environmental Protection Agency or another state environmental agency to emit no more than 30 grams ofnitrogen oxides emissions per hour when idling; 

## ill**[~]** the primary propulsion engine ofamotor vehicle being used to provide air conditioning or heating necessary for em· ployee health or safety in an armored vehicle while the employee re· mains inside the vehicle to guard the contents or while the vehicle is being loaded or unloaded; 

## ill**[~]** a motor vehicle forced 

### to remain motionless be· cause oftraffic conditions over which the operatorhas no control; 

## ill [t4}] a motor vehicle being used by the United States military, national guard, or reserve forces, or as an emergency Ot' law enforcement motor vehicle; 

## ill [ts1] the primary propulsion engine ofa motor vehicle providing a power source necessary for mechanical operation, other than propulsion, and/or passenger compartment heating, or ait· condi· tioning; 

# m [(61] the primaty pl'Opulsion engine ofa motor vehicle being operated for maintenance or diagnostic purposes; 

### ID [(11] the primm·y propulsion engine ofa motor vehicle being operated solely to defrost a windshield; .(2} [00] the primary propulsion et1git1e ofa motor vehicle that is beit1g used to supply heator air conditionit1g necessary for passengercomfort atldsafetyinvehicles intendedfor commercialorpublic passengertransportation, orpassengertransitopemtions, in which case idling up to a maximum of30 minutes is allowed; {!_Q)**[~]** the primary propulsion engine ofa motor vehi· cle being used to provide air conditioning orheating necessary for employee health or safety while tho employee is using the vehicle to per· fotm anessentialjobfunction relatedto roadway construction ormain· tenance; 

## D.D. [twj] the primary propulsion engine ofamotor vehi· · cle being used 

### as airpo11 ground support equipment; @ [ff.l-)] the owner ofamotorvehicle rented or leased to apet•sonthat operates the vehicle and is notemployod by the owner; or QJ) [fh!t] a motor vehicle when idling is necessary to power a heater or air conditioner while a driver is using the vehicle's sleeper berth fot· a government-mandated rest period and is not within two miles of a facility offering external heating and air conditioning connections at a time whenthose connections are available. This. agency hereby certifies thatthe proposal has been reviewed by legal counsel and found to bewithin the agency's legal**author~** tty to adopt. Filed with the Office of the Secretary of State on February 24, 2012. TRD-201201125 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: April 8, 2012 For further information, please call: (512) 239-0779 

# • 

# • • CHAPTER 116. CO TROL OF AIR POLLUTION BY PE TS FOR NEW CONSTRUCTION 0 MODIFICATION The Texas Commission o Environmental Quality (commission or TCEQ) proposes 

### a endments to §§116.12, 116.150, 116.151, 116.180, and 116. 86. The proposed amendment to §§116.12, 116.150, 116.151, 116.180, and 116.186 

### will e submitted to the United States Environmental Protection ency {EPA) as revisions to the State Implementation Plan ( IP). Background and Summary 

### o the Factual Basis forthe Proposed Rules On June 10, 2005, theTCEQ ubmitted amendments to §116.12 to the EPA as revisions to t New Source Review (NSR) SIP and §116.150 as revisions 

### t the Nonattainment New Source Review (NNSR) SIP, both ad ted on May 25, 2005. On January 11, 2006, the TCEQ repeal d §§116.180 • 116.183, 116A10, and 116.617; amended §§11 .12, 116.150, 116.151, 116.160, and 116.610; and adopted n §§116.121, 116.180, 116.182, 116.184,116.186,116.188, 11 .190, 116.192,116.194,116,196, 116.198, 116.400, 116.402, 16.404, 116.406, 116.617, and



## PROPOSED RULES March 9, 2012 37 TexReg 1661

# TESTIMONY

### Reference Number

W-1
W-2


### W-3 INDEX OF WRITTEN TESTIMONY

Submittedby

Chris Klaus, North Central Texas Council ofGovernments
John D. Esparza, Texas Motor Transportation Association GuyDonaldson, United States Environmental Protection Agency

### North Central Texas Council 

## Of Governments

Ms. Charlotte Horn MC205 Office of Legal Services Texas Commission on Environmental Quality PO Box 13087 Austin, TX 78711-3087 April 9, 2012 

# W-1

Re: Public Comment on Proposed Revisions to 30 Texas Administrative Code (TAC) Chapter 114, Subchapter J, Division 2, Locally Enforced Motor Vehicle Idling Limitations- Rule Project Number: 2011-060-114-EN.
Dear Ms. Horn:
The North Central Texas Council of Governments (NCTCOG) appreciates the opportunity to comment on the Texas Commission on Environmental Quality's (TCEQ) Proposed Revisions to 30 TAC, Chapter 114, Subchapter J, Division 2- Locally Enforced Motor Vehicle Idling Limitations and State Implementation Plan (SIP)

- Rule Project Number: 2011-060-114-EN. As the Dallas-Fort Worth (DFW) Metropolitan Planning Organization, NCTCOG is tasked with implementing a large number of control strategies in the DFW 8-Hour Ozone Attainment Demonstration SIP. One ofthese strategies is to promote adoption and local enforcement of idling restrictions within the North Central Texas area. As an advocate of idling restrictions, and as an agency having firsthand experience assisting local governments in adopting and enforcing such rules, NCTCOG would like to provide the following comments on the proposed revisions to the Rule.
Clean Idle Engine Exemption: NCTCOG supports the inclusion ofan exemption for 2008 and newer diesel, liquefied natural gas, and compressed natural gas engines certified by the United States Environmental Protection Agency or another State environmental agency to emit no more than 30 grams of nitrogen oxides emissions per hour when idling. S.uch engines are often cleaner than add-on technologies aimed at reducing emissions from idling; thus, this exemption provides drivers more options for complying with the rule and has the possibility to result in additional emissions reductions. Idling Near Sensitive Areas: On July 20, 2011, TCEQ approved the reinstatement of an exemption for drivers idling while on a government-mandated rest-period. With this reinstatement also came the removal of a prohibition of idling near sensitive areas including schools, hospitals, and neighborhoods. NCTCOG spoke in opposition to the removal ofthis prohibition. With the addition ofthe exemption for idling of "Certified Clean Idle" engines, NCTCOG requests consideration that only these such engines be allowed to idle in sensitive areas due to having a lower impact on vulnerable populations.
In addition to these comments, NCTCOG would like to request guidance from TCEQ on how local governments may go about restricting idling near sensitive areas outside ofthis Rule, as perthe direction of TCEQ Commissioners at the July 20, 2011, hearing. Commissioner Shaw explicitly

616 Six Flags Drive, CenterpointTwo P. 0. Box 5888, Arlington, Texas 76005-5888 (817) 640-3300 FAX: 817-640-7806 

### ® recycled paper www.nctcog.org

### Ms. Charlotte Horn Page Two April9, 2012

stated that it was not TCEQ's intention to inhibit a local government's ability to restrict idling in these sensitive areas. While cities have an ability to pass parking ordinances to possibly address restricting this type of idling, counties have no mechanism by which to adopt restrictions; and thus, are limited to enforcing only rules that are explicitly included in the TAC. Any direction TCEQ can provide on how counties can restrict the idling ofvehicles near vulnerable populations would be greatly appreciated.
Thank you for this opportunity to comment. We look forward to a continued partnership with TCEQ as we work together towards the common goal of cleaner air. Should you have any questions, please contact Amanda Brimmer at (817) 608-2354 or abrimmer@nctcog.org.

# Sinc;;:;tris Klaus Senior Program Manager RG/AB:ch

## March 26,2012

Ms. Charlotte Horn Office ofLegal Services Texas Commission onEnvironmental Quality P.O. Box 13087 Austin, Texas 78711-3087



# .RE: Rule Project Number 20Jl.:060-114.;EN



## Dear Ms. Horn: 700 East 11th Street Austin, TX 78701 (512) 478-2541 (512) 474-6494 

## fax www.tmta.com


# W-2

RECEIVED 

# MAR 29· 

# 2012 TEXAS REGISTER TEAM

Texas Motor Transportation Association (TMTA) is a trade association which represents more than 900 motor carriers operating trucks throughout Texas and the United States. Some ofthese companies have drivers that are required to stop and obtain government mandated rest in non-attainment and near non-attainment areas. Depending on the time of year, the drivers with sleeper-cabs need to maintain heating and/or cooling inside the cab while resting and occasionally that requires idling.
Great strides

.have been made by the heavy-duty truck engine manufactures to build cleaner engines. Some of these truck engines are actually emitting cleaner air than they are taking in. In effect, these engines are cleaning the air in the non-attainment areas. Some states are recognizing these efforts and are certifying certain new engines that meet strict EPA guidelines as "clean idle" engines. 

## Itis for that reason that TMTA supports the Commission's proposed amendment to 

## §114.517 that adds the exemption concerning heavy-duty diesel engines or liquefied or compressed natural gas engines, provided those have been certified by the United States Environmental Protection Agency or another state environmental agency to emit no more than 30 grams ofnitrogen oxides emissions perhour when idling.
TMTA urges the proposed amendments be finalized as soon as possible. Respectfully submitted,

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGIONS



## Ms. Charlotte Hom Office ofLegal Services, MC 2051445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202·2733



# APR 092012

Texas Commission on Environmental Quality P.O. Box 13087 Austin, TX 78711-3087
Re: Rule ProjectNumber 2011-060-114-EN
DearMs. Horn: 

# W-3

Thank you for the opportunity to comment on proposed revisions to the Locally Enforced Motor VehicleIdling Restrictions found at30 TAC Chapter 114, Control ofAir Pollution From Motor Vehicles. The Texas Commission on Environmental Quality (TCEQ) has proposed a revision to § 

## 114.517 (RY:emptions) 

## that would add a new exemption from the motorvehicle idling rules for amotor vehicle having a gross vehicle weight rating greaterthan 14,000 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified bythe EPA 

# or a state environmental agency to emit no more than 30 grams ofnitrogen dioxide (NOx) emissions per hour when idling.
The motor vehicle idling restrictions are currently being implemented as one ofseveral local control measures under the Vohmtary Mobile Emissions Reductions Program (VMEP) in the Dallas-Fort Worth (DFW) Eight-Hour Ozone Attainment Demonstration State Implementation Plan (SIP). The VMEP control measures were fully approved by EPA into the SIP in January 2009. The TCEQ states that this new exemption will not interfere with attainment or reasonable further progress in the SIP because even though there is a shortfallin the NOx and volatile organic compounds (VOC) emissions reductions achieved by the DFW area through implementation ofthe Locally Enforced Idling Restrictions as ofMarch 2009, the DFW area has achieved an excess ofNOx and VOC emissions reductions as ofMarch 2009 for the overall VMEP, which is above and beyond whatit

## committed to achieve in the DFW Attainment Demonstration SIP. TCEQ states the exemption will not interfere with attainment orreasonable further progress in the SIP. However, TCEQ has not yet quantified the estimated increase in NOx and VOC emissions expected to result from the proposed new exemption. TCEQ states that the current rule includes an exemption for motorvehicles with a gross vehicle weight rating of

R$c:yc:led/R.cyelahle • Printed with Vegetable OU Base<.! Inks

### em 100% Recycled P<tper (40% Pos!oonsumer)

## 14,000 pounds or less, and therefore there would be no netchange in emissions to exempt vehicles with a gross vehicle weight rating between 8,500 and 14,000 poundoS with the abovespecified standards. In addition, TCEQ states that the new exemption will not interfere ¥lith attainment orreasonable further progress in the SIP because the DFW area achieved an excess of NOx and VOC emissions reductions through the VMEP commitments. Specifically, the excess NOx and VOC emission reductions achieved by the DFW area for the overall VMEP are greater than the NOx and VOC emissions reductions Texas committed to achieve through implementation ofthe Locally Enforced Motor Vehicle Idling Restrictions component ofthe VMEP in the DFW Attainment Demonstration SIP, When this amendmentto the Locally Enforced Motor Vehicleidling Restrictions is submitted to EPAas a SIPrevision, TCEQ should demonstrate thatthe revision is consistent with section 110(1) ofthe Clean AirAct ( CAA) and that backsliding 

## will not occur in the SIP as a result ofthe new exemption. As part ofthe 110(1) demonstration, the SIP submittal should include proper documentation showing that excess emissions reductions achieved for the overall VMEP will offset any potential increase in emissions resulting from the new exemption to the LocaHy Enforced Motor Vehicle Idling Restrictions. The SIPsubmittal must also provide an accounting ofthe substitute emissions reductions that are being used to offset any potential increase inemissions resulting from the new exemption, including a breakdo\\>11 ofthe specific control measures under theVMEP and the corresponding substitute emissions reductions that are being used as offsets.

In addition, we remind TCEQ that any excess emissions reductions achieved by the DFW area that are used as substitute emissions reductions to 

## offset any potential increase in emissions resulting from the new exemption cannotbe used as substitute emissions reductions to offset a shortfall in any other control measure in the SIP or othenvise be used as a SIP credit for any other emissions reduction control measure. In December2010, EPA published a final detennination offailure to attain and reclassification ofthe DFW area from a moderate to a serious nonattainment area forthe 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS), and inJanuary 2012, TCEQ submitted to EPA a DFW Attainment Demonstration SIP and reasonable further progress (RFP) SIP revision to address the serious ozone nonattainmei1t
area requirements ofthe CAA. When the new exemption to the Locally Enforced Motor Vehicle Idling Restrictions is submitted to EPA as a SIP revision, TCEQ mustprovide an explanation of what VMEP emissions reduction commitments were made inthe SIP revision addressing the serious ozone nonattainment DFW area, including a breakdown ofeach ofthe control measures under the VMEP and the corresponding emissions reduction commitments.
The motorvehicle idling restrictions are also acontrol measure in the Austin Early Action Compact (EAC) CleanAir Action Plan (CAAP), which was approvedby EPA into the SIP. The AustinEAC CAAP includes control measures and demonstrates maintenance through 2012. The Austin EAC CAAP commits to reducing NOx by 0.67 tons per day through implementation ofthe motor vehicle idling restrictions. Even though EPA designated the Austin

## area in attainment ofthe 1997 8-hour ozone NAAQS on Aprill5, 2004, the Austin area must continue to meet the emissions reductions it 

## committed to achieve through implementation ofthe control measures in the EAC CAAP, since these are in the SIP. Therefore, when this amendment to the Locally Enforced MotorVehicle Idling Restrictions is submitted to EPA as a SIP revision, TCEQ should demonstrate that the revision is consistent with section 110(1) ofthe CAA and that backsliding will not occur inthe SIP as aresult ofthe new exemption. As part ofthe 11O(l) demonstration, the SIP submittal should provide substitute reductions or atechnical or modeling demonstration, including proper documentation, showing that maintenance ofthe NAAQS will continue in the Austin area without the SIP credits affected by this exemption. Region 6 continues to offer Texas our support during the rule revision process. Please let
us know how we may be offurther assistance. Sincerely yours,

Guy Donaldson Chief Air Planning Section

### INDEX OF ORAL TESTIMONY



## NO ORALTESTIMONYWAS RECEIVED PERTAININGTO THIS RULE REVISION.

## - 1 - 

# Texas CommissiononEnvironmental Quality Public HearingRegistration Apri12, 2012

2:oop.m. 

## Rule ProjectNo.: 2011-060-114-EN ShortTitle: Senate Bill 493: MotorVehicle Idling Location: TCEQ main complex, 12100 Park35 Circle, Austin, Texas Concerning: Proposed amendmentsto 30TAC Chapter 114, Control ofAir

## Pollutionfrom MotorVehicles

Name Representing Presenting OralTestimony? 

### (PleasePrint) 

### (CircleOne)
Yes 

## No

..... 

# / Yes 

## No 

# / Yes 

## No 

## L

# '~~ I 

# / Yes 

## No
/

# ~v / Yes 

## No

t-.. 

### /1

# ~

# '- ''0/'JO Yes 

## No**\\~** 

# r&' 

# v / ... Yes 

## No 

# / Yes 

## No

## HEARINGOFFICERREPORT



## I am the hearing officer assigned to conduct the public hearing regarding a proposed amendment to 30 

## TAC Chapter 114, 

## Subchapter J, 

## Division 2, 

## Locally Enforced Motor Vehicle Idling Limitations and revision to the state implementation plan. SB 493: Motor Vehicle Idling, Rule Project Number 2011- 

## o60-114-EN. A public hearing was scheduled for April 2, 2012 

## in Austin, at 2:00 

## p.m., in Building E, Room 2018 

## at the commission's central office located at 12100 

## Park 35 Circle, Austin Texas. At 1:30 

## p.m. the room was open and TCEQ staff members were available to discuss the proposal. At 2:00 

## p.m. TCEQ staffand a court reporter were present and ready to open the hearing for public comment. After waiting for 10 

## minutes, no one had arrived to make comments on the record. Therefore, the public hearing was notformally openedfor comment and atranscriptwas notprepared.

Date signed

## -2- 

# Texas CommissiononEnvironmental Quality Public Hearing Registration April3, 2012

2:oop.m. 

### Rule ProjectNo.: 2011-060-114-

### EN ShortTitle: Senate Bill493: 

### MotorVehicleIdling Location: TCEQ Dallas/FortWorth

### Regional Office, 

### 2309 Gravel Drive, 

### Fort Worth, 

### Texas Concerning: Proposedamendmentsto30

### TAC Chapter 114, 

### Control of

## AirPollutionfrom MotorVehicles

- 

### Name 

### Representing Presenting OralTestimony? 

### (PleasePrint) 

### (Circle One)

' I

# C00JP~v 

# @ 

# cltft**~** Yes0D 

# N \

# cotf OQ Q

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No



## .. Yes 

## No

Yes 

## No

.,,

## HEARINGOFFICERREPORT



## I amthehearing officer assignedto conductthepublic hearing regarding a proposed amendmentto 30TAC Chapter 114, Subchapter

## J, Division 2, Locally Enforced Idling Limitations andrevision tothe stateimplementationplan: SB 493, Motor Vehicle Idling, Rule Project Number 2011-060-114-EN.
Apublic hearingwas scheduledfor April3, 2012, inAustin, at 2:00p.m., atthe TCEQ region office located at 2309 Gravel Drive, FortWorthTexas. At 1:30 p.m. theroom was open andTCEQ staffmembers were available to discuss theproposal. At 2:00p.m. TCEQ staffand a courtreporterwere present andready to openthehearingfor publiccomment. After waiting for 10 

## minutes no one had arrivedto make comments ontherecord. Therefore, the public hearingwas notformally openedfor comment and a transcriptwas notprepared.

Datesign d

# EVALUATION

# Texas Commission on Environmental Quality InterofficeMemorandum
To: Thru:

From: Commissioners Bridget C. Bohac, ChiefClerk Zak Covar, Executive Director
Steve Hagle, P.E., Deputy Director Office ofAir 

## Docket No.: 

## 2011-1639-RUL 

## Date: July 20, 2012



## Subject: CommissionApproval for Rulemaking Adoption Chapter 114, Control ofAir Pollution from MotorVehicles SB 493: MotorVehicle Idling Rule Project No. 2011-060-114-EN 

## Backgroundand reasonfor the rulemaking: 30 Texas Administrative Code (TAC) Chapter 114, SubchapterJ, Division 2, Locally Enforced MotorVehicle Idling Limitations, was originally adoptedbythe Texas Commission on Environmental Quality (TCEQ) on November 17, 2004, for use as a control strategyintheAustin areato maintain attainmentwith the 1997 eight-hour ozone National AmbientAir Quality Standard (NAAQS). The adopted idling limitations rules provided any local governmentinTexas the option ofapplying the rules intheirjurisdiction should additional control measures be neededto achieve or maintain attainment ofthe ozone NAAQS. Since its inception, 29 cities, two towns, and nine counties have signed memorandums ofagreement (MOA) to enforce the idling restriction intheirjurisdictions.
The 82ndLegislature, 2011, Regular Session, enacted Senate Bill (SB) 493, amending Chapter 382, Subchapter B, oftheTexas Health and Safety Code (THSC) by adding §382.0191, which prohibitsthe commissionfrom limiting the idling ofa motorvehicle that has a gross vehicle weight rating greaterthan 14,000 pounds andthat is equippedwith a 2008 or subsequentmodelyear heavy-duty diesel engine orliquefied or compressed natural gas engine thathas been certifiedbythe United States Environmental Protection Agency (EPA) or another state environmental agency to emit no more than 30 grams of nitrogen oxides (NOx) emissions perhourwhenidling. Although SB 493 provides for an exemption ofvehicles with a gross vehicle weight greaterthan 8,500 pounds and equipped withthelow-NOx engine, the rule change exempts vehicles weighing greater than 14,000 pounds and equipped with thelow-NOx engine because onlyvehicles weighing more than 14,000pounds are subject to the idling restrictions. 

## Scope ofthe rulemaking: A.) 

## Summaryofwhatthe rulemakingwill do: The adoptedrule revision will amend Chapter 114, SubchapterJ, as follows:

• Amend §114.517 to include an exemptionfor motorvehicles having a gross vehicle weight rating greater than 14,000 pounds and equippedwith a 2008 or subsequent model year heavy-duty diesel engine orliquefied or compressed natural gas engine

## Commissioners Page2 July 20, 2012
Re: Docket No. 2011-1639-RUL

thathas been certifiedbythe EPA or another state environmental agencyto emit no more than 30 grams ofNOx emissions perhourwhenidling. The amended section will be submittedto the EPA as a revision to the state implementationplan (SIP). 

## B.) Scope required

## byfederal regulations or state statutes: The amendment is requiredto incorporate SB 493 enactedby the 82ndLegislature, 2011, Regular Session. C.) 

## Additional staffrecommendations that arenotrequired

## byfederal rule or state statute: None. 

## Statutoryauthority: This rulemaking is adoptedunder the authority ofTexas Water Code (TWC), §5.102, General Powers, TWC, §5.103, Rules, andTWC, §5.105, General Policy, which provide the commission withthe general powers to carry out its duties and authorize the commission to propose rules necessary to carry outits powers and duties undertheTWC; andTWC, §5.013, General Jurisdiction ofCommission, which states the commission's authority over various statutoryprograms. The amendment is also adoptedunder THSC, §382.017, Rules, which authorizes the commissionto adopt rules consistent with the policy andpurposes of THSC, Chapter 382 (the Texas Clean AirAct), andto adopt rules that differentiate among particular conditions, particular sources, and particular areas ofthe state. The amendment is also adoptedunderTHSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air resources, consistentwith the protection ofpublic health, general welfare, and physical property; THSC, §382.003, concerning Definitions; THSC, §382.011, General Powers and Duties, which authorizes the commissionto control the quality ofthe state's air; THSC, §382.012, State Air Control Plan, which authorizes the commissionto prepare and develop a general, comprehensive planfor the control ofthe state's air; THSC, §382.019, Methods Used to Control and Reduce Emissions From LandVehicles, which provides the commission the authorityto adopt rules to control andreduce emissions from engines usedto propel landvehicles; and THSC, §382.208, which authorizes the commission to develop andimplement transportationprograms and other measures necessaryto demonstrate attainment and protect the publicfrom exposure to hazardous air contaminants from motorvehicles. The adopted amendmentimplements SB 493, which establishedTHSC, §382.0191. 

## Effect onthe: A.) 

## Regulated community: Localjurisdictions that have signed an MOA with theTCEQ to implement and enforce the idling restrictions will have to addvehicles weighing greater than 14,000 pounds that are

## Commissioners Page3 July 20, 2012
Re: Docket No. 2011-1639-RUL
equippedwith a 2008 or newer engine certified to emit no more than 30 grams ofNOx emissions perhourwhen idling to theirlist ofvehicles exemptfrom idling restrictions. There is no fiscal impact onthe regulated community. 

## B.) Public: The rule revision does nothave an adverse effect onthe public. There is no fiscal impact on the public. 

## C.) Agencyprograms: There is no anticipated effect on any agency programbyimplementingthe adoptedrule revision. There will be no fiscal impact onthe agency. 

## Stakeholdermeetings: · No stakeholder meetings were heldfor this rulemaking. 

## Public comment: The commission offered publichearings for the proposal inAustin onApril 2, 2012, andin FortWorth onApril3, 2012. A question and answer session was held 30 minutes prior to the hearing. The hearing was not'officially openedbecause no party indicated a desire to give comment. The public commentperiodwas from March 9, 2012, throughApril 9, 2012. The commission received written comments from Texas Motor TransportationAssociation (TMTA), North Central Texas Council ofGovernments (NCTCOG), andthe EPA. 

## General Comments TMTA and NCTCOG submittedcommentin support oftherulemaking.

## No changes were made in response to this comment. §110(1) 

## Demonstration The EPA commentedthat itwould notbe able to approve the proposed exemptionin the SIP unless the commission provided substitute reductions or modeling to showthat attainment canbe met withoutthe credits affectedbythe exemption. 

## In response to the EPA's comments, the §110(1) 

## demonstration of the adoptionpreamble was updated to demonstrate that the clean idle engine exemption will notinterfere with attainmentor reasonable furtherprogress in the SIP. §114-512, 

## ControlRequirements forMotor Vehicle Idling The NCTCOG suggested the commission consider reinstating the prohibitionfrom idling in sensitive areas including school zones, hospitals, and neighborhoods. 

## No changes were made in response to this comment. The NCTCOG requested guidancefrom the commissionregarding the creation oflocal regulations restricting idling beyond provisions laid outin Chapter 

## 114, SubchapterJ,

## Commissioners Page4 July20, 2012
Re: Docket No. 2011-1639-RUL

Division 2, Locally Enforced MotorVehicle Idling Limitations.

## No changes were made in response to this comment. 

## Significant changes from proposal: The §110(1) demonstration was updated in response to comments made bythe EPA. No changes were made to §114.517 inresponse to comments. 

## Potentialcontroversial concerns andlegislative interest: None. 

## Does this rulemakingaffect anycurrentpolicies or require development of newpolicies? No policies are affectedbythis adopted rulemaking. 

## What are the consequences ifthis rulemakingdoes notgoforward? Are there alternativesto rulemaking? If

## this rulemaking does not go forward, the TAC will be inconsistent withTHSC, §382.0191. There are no alternatives to rulemaking. 

## Keypoints inthe adoption rulemaking·schedule: TexasRegister

## proposalpublicationdate: March 9, 2012 

## Anticipated TexasRegister

## publicationdate: August 24, 2012 

## Anticipatedeffective date: August 30, 2012 

## Six-month TexasRegister

## filing deadline: September 10, 

## 2012 

## Agencycontacts: Holly Brightwell, Rule Project Manager, 239-4905, Air Quality Division Ross Henderson, StaffAttorney, 239-6257 Charlotte Horn, Texas Register Coordinator, 239-0779 

## Attachments SB 493, 82ndTexas Legislature, 2011, Regular Session

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

## EVALUATION OFTESTIMONY



## The Texas Commission on Environmental Quality (TCEQ or commission) adopts
amendmentto §114.517 

## withoutchange tothe proposedtext as publishedinthe March 9, 2012, 

## issue ofthe 

## Texas Register (37

## TexReg 1656) 

## andthetext will notbe republished.

The amended section will be submittedtothe United States Environmental Protection Agency (EPA) as a revision tothe state implementation plan (SIP).



## Backgroundand Summaryofthe Factual Basisfor the Rule Chapter 114, 

## SubchapterJ, Division 2, 

## Locally Enforced MotorVehicle Idling Limitations, was originally adoptedbythe commission on November 17, 2004, 

## atthe request ofthelocal air qualityplanning organization intheAustin EarlyAction Compact (EAC) area (Bastrop, Caldwell, Hays, Travis, andWilliamson Counties) for use as a control strategyinits EAC agreementto maintain attainment ofthe 1997

## eight-hour

ozone National AmbientAir Quality Standard (NAAQS) as publishedinthe December 3, 2004, 

## issue ofthe 

## Texas Register (29 

## TexReg 11347). 

## The adopted MotorVehicle Idling Rule provides anylocal government inTexas the option ofapplying the rules intheir jurisdiction inthe event additional control measures are neededto achieve ormaintain attainmentofthe ozone NAAQS.

The EAC concept ofan early, voluntary air qualityplan was endorsedbythe EPA Region
6 

## in June 2002. It

## was slightly modified andmade available nationally in November

1

## 2002. 

## Akey point ofan EAC was theflexibility allowedto areas to select emission
reduction measures such as limitingvehicle idling. Beginning onAugust 1, 2005, 

## members oftheAustin EAC andtheTCEQ signedthelocally enforcedidling restrictions
memorandum ofagreement (MOA). This MOA allowed participating counties andcities

to enforce the idling restriction rule intheirjurisdictions. Members oftheAustin EAC

area signing the MOA included Bastrop, Caldwell, Hays, Travis, andWilliamson Counties andthe cities ofAustin, Bastrop, Georgetown, Hutto, Lockhart, Luling, Round Rock, and San Marcos. Idling restrictions are also a control measureputinplace inthe
Austin-Round Rock 1997

## Eight-Hour Ozone Flex Plan, which was signed in September
2008.



## Fourcounties, 21 

## cities, andtwo towns in the Dallas-FortWorth (DFW) area have also signed agreements to enforce the MotorVehicle Idling Rule intheirjurisdictions. Idling restrictions are a Voluntary Mobile Emissions Reductions Program (VMEP) control

measure inthe DFW 1997

## Eight-Hour Ozone Attainment Demonstration SIP revision, which was adoptedbythe commission on May 23, 2007, 

## and approvedby the EPA on January 14, 2009 (74 

## FR 1903).



## This adopted rulemaking amends the MotorVehicle Idling Rule as statedin Chapter 114, SubchapterJ, Division 2. 

## The MotorVehicle Idling Rule limits idling for gasoline and diesel-powered engines in motorvehicles withinthejurisdiction ofanylocal government in the statethathas signed an MOA withthe TCEQ delegating enforcementto thatlocal government. Local enforcement is crucial to the effective implementation ofrules to reduce the extendedidling ofgasoline and diesel-powered heavy-dutyvehicles. Aresult

2

## ofreducedidling is the reduction ofnitrogen oxides (NOx) andvolatile organic compound (VOC) emissions, which is necessaryto achieve or maintain attainment ofthe
federal eight-hour ozone NAAQS. In addition, idling limitationswill lower NOx and
otherpollutants emittedfrom fuel combustion. Because NOx is a precursorto groundlevel ozone formation, reduced emissions ofNOx will result in ground-level ozone reductions.

The 79th Legislature, 2005, enacted House Bill (HB) 1540, establishingTexas Health and Safety Code (THSC), §382.0191, Idling ofMotorVehicle While Using Sleeper Berth, whichprohibitedthe commission from restricting motorvehicle idling while a driver is using thevehicle's sleeperberthfor a government-mandatedrestperiod. HB 1540 also
restricted idling in a school zone orwithin 1,000feet ofa public school during its hours
ofoperation and definedthe penaltyfor an offense as a fine notto exceed $500. HB 1540 did not specify an enforcementperiod, butit set a September 1, 2007, expiration
date onthe section. The commission adoptedMotor Vehicle Idling Rule revisions tobe consistentwith HB 1540 onApril 26, 2006, as publishedinthe May 12, 2006, issue of
the 

## Texas Register (31 TexReg 3900).

The 8oth Legislature, 2007, enacted Senate Bill (SB) 12, which inpart amendedTHSC, §382.0191, to extendthe prohibition ontheTCEQ from restricting certain idling activities from September 1, 2007, to September 1, 2009, as publishedinthe February 15, 2008, issue ofthe 

## Texas Register (33 TexReg 1345). The prohibition in §114.512(b)
ofcertainvehicles from idling within 1,000feet ofa school orhospital expired on September 1, 2009. Therefore, this subsectionwas deleted in a previous rulemaking.

3

## On May 22, 2008, the National Armored CarAssociation submitted a petition for rulemaking requesting armoredvehicles be exemptedfrom idling restrictions under §114.517. The commission adopted rule changes incorporating the armoredvehicle exemption onJuly 20, 2011. The July 20, 2011, rulemaking also removedthe ozone

season dates under §114.512 to allowlocal governments to enforce idling limitations year-roundfor consistent enforcement (August 5, 2011, issue ofthe 

## Texas Register 36 TexReg 4972).



## CurrentRulemaking
The 82ndLegislature, 2011, enacted SB 493, amending THSC, Chapter 382, Subchapter
Bby adding THSC, §382.0191, which prohibits the commission from limitingthe idling
ofa motorvehicle thathas a gross vehicle weight rating greaterthan 8,500 poundsthat
is equipped with a 2008 or subsequent model year heavy-duty diesel engine orliquefied

or compressed natural gas engine thathas been certifiedbytheEPA ora state environmental agencyto emit no more than 30 grams ofNOx emissions perhour when idling. Although SB 493 provides for an exemption ofvehicles with a gross vehicle weight greater than 8,500 pounds and equipped with thelow-NOx engine, the adopted rule change exempts vehicles weighing greaterthan 14,000pounds and equippedwith thelow-NOx engine. The reasonfor this specification is because onlyvehicles weighing

more than 14,000 pounds are subject tothe Chapter 114 MotorVehicle Idling Rule. This adoptedrulemaking incorporates the amendment into the existing Motor Vehicle Idling
Rule.

4

## Federal CleanAirAct, §no(l)

## Demonstration The exemption will notinterfere with attainment or reasonable further progress in the
SIP.

At proposal ofthe new exemption in §114.517(2), the commission indicated inthe preamblethatthe exemption would notinterfere with attainment orreasonable further
progress inthe SIP because the DFW area achieved an excess ofNOx andVOC emissions reductions throughtheVMEP commitments. In responseto comments receivedbythe EPA, the §no(l) 

## demonstration has beenupdated.

The exemption for vehicles employing 2008 and newer engines certifiedto emit no more than 30 grams ofNOx emissions per hourwhen idling will promotethe use ofthe newer and cleanervehicles equipped with this technology. Due tothe changes inthe federal heavy-duty engine emissions standards, i.e., from 2.5 grams perbrakehorsepower-hour (g/bhp-hr) for 2004to 2006vehicles to 0.20 g/bhp-hrfor 2007 and newer vehicles, the 2008 andnewer engines described inthe exemption emit significantlyless NOx emissions as comparedto uncontrolledheavy-dutyvehicles bothwhile idling andin transit. Additionally, these engines have a steady emission reduction efficiency rate during idle as comparedto other older enginesthathave declining emission reduction efficiencywhenidling longer.

Using eitherthe EPA's 

## Guidance for Quantifying and Using Long Duration Truck Idling Emission Reductions in StateImplementation Plans and Transportation Conformity MOBILE6.2 guidance, orthe newer EPA motorvehicle emissions simulator

5

## (MOVES) model (the replacementto MOBILE6.2 for SIP andtransportation conformity), a heavy-duty engine idling at a rate of30 grams ofNOxperhour would emitroughly 8o% less than anuncontrolledheavy-duty engine. The MOBILE6.2 guidance establishes the extendedidling NOx emission rate at 135 grams perhour (gph) for all model years 2002through 2030, MOVES sets the extended idling NOx emission

rate at 170 gph for model years 2006 and older, and 150 gph for model years 2007 and

newer. In all three comparisons, the overall emissions benefit gainedby allowingthe exemption ofengines certifiedto emitno more than 30 grams ofNOx perhour outweighs any potential increase inidling thatmayresultfrom the exemption.

Vehicle age distributions are developed for use in estimating on-road mobile source emissions inventories. The age distributions arebasedtothe extent possible onTexas Department ofMotorVehicles (TxDMV) mid-year countyregistrations data. Where gaps

occur inthe datathe age distributions arebased on defaults builtintothe MOVES model. For heavy-dutyvehicles, the TxDMVvehicle population data is aggregated statewideto determinethe statewide age distributions for thevehicle class. For historicalyears, historical-year specific TxDMV data are used. For SIP and transportation conformitypurposes, future year age distributions are basedupon the

most recentyear ofregistration data. For a recent set ofSIP inventories, the TCEQ contracted a reportbytheTexas Transportation Institute (TTl) 

## Houston-GalvestonBrazoriaMOVES-BasedReasonableFurtherProgress On-RoadInventories and ControlStrategyReductions that contains statewidevehicle age distributions to include heavy-duty diesel vehicles based on 2011 TxDMV county data aggregated statewide. Using the statewide age distributions documented in the report 12% ofheavy-duty diesel

6

## vehicles statewide are 2008 

## or newer. Baseduponthe same age distribution, by 2018,
53% 

## ofheavy-dutyvehicles will be 2008 

## and newer. From TTl's calculations, itis anticipatedthatthepercentage ofheavy-dutyvehicles which are a 2008 

## or newer model will continue to increase. Due totheinherentemissionbenefits ofthe 2008 

## or subsequent model yearheavy-duty engine thathasbeen certifiedto emitno more than
30 

## grams ofNOx emissions perhour when idling, emissions maybe reducedbyup to
So% 

## as olderuncontrolledtrucks arereplacedbythe 2008 

## and newer vehicles.

SectionDiscussion §114.517, Exemptions 

## This rulemaking amends §114.517

## to include an exemption inparagraph (2) 

## for any
motorvehicle with a gross vehicle weight rating greaterthan 14,000 

## poundsthatis equippedwith a 2008 

## or subsequentmodel yearheavy-duty diesel engine orliquefied or compressednatural gas engine thathas been certifiedbythe EPA or another state environmental agency to emitno more than 30 

## grams ofNOx emissions perhourwhen idling. Although SB 493 

## provides for an exemption ofvehicles with a gross vehicle weight greater than 8,500 

## pounds and equippedwith the low-NOx engine, the adopted rule exempts vehicles weighing greaterthan 14,000 

## pounds and equippedwith the lowNOx engine. The reason for this specification is because only vehicles weighing more than 14,000

## pounds are subjecttothe idling restrictions. In addition, the current exemptions in existing paragraphs (2)

- (12) 

## are renumbered as paragraphs (3)

- (13).



## Final RegulatoryImpactAnalysis Determination The commission reviewed the adopted rule inlight ofthe regulatory analysis

7

## requirements ofTexas Government Code, §2001.0225 

## and determinedthatthe adopted rulemaking does not meetthe definition ofa major environmental rule. Texas Government Code, §2001.0225 

## statesthat a major environmental rule is a rule for which the specific intentis to protectthe environment orreduce risks to humanhealthfrom environmental exposure andthatmay adversely affect in a materialwaythe economy, a
sector ofthe economy, productivity, competition,jobs, the environment, orthepublic health and safety ofthe state or a sector ofthe state. Furthermore, while the adopted rulemaking does not constitute a major environmental rule, even ifit did, a regulatory impact analysis would notbe requiredbecause the adopted rulemaking does not meet
any ofthefour applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 

## applies onlyto a major environmental rule that: 1) 

## exceeds a standard setbyfederal law, unlessthe rule is specifically requiredby statelaw; 2) 

## exceeds an express requirement ofstatelaw, unless the rule is specifically requiredbyfederal law; 3) exceeds a requirement ofa delegation agreement or contractbetweenthe state and an agency orrepresentative ofthe federal governmentto implement a state andfederal program; or 4) adopts a rule solelyunder the general powers ofthe agency instead ofunder a specific statelaw. Specifically, it does not meet any ofthefour applicability criterialistedin Texas Government Code,
§2001.0225

## because: 1)

## the adopted rulemaking is part ofthe SIP, and as such is designed to meet, not exceedthe relevant standard setbyfederal law; 2) 

## parts ofthe adoptedrulemaking are directly requiredbystatelaw; 3) no contract ordelegation agreement covers thetopicthatis the subject ofthis adopted rulemaking; and4) the adoptedrulemaking is authorizedby specific sections ofTHSC, Chapter 382 (also known as the Texas CleanAir Act), andtheTexas Water Code, which are citedinthe

8

## StatutoryAuthority section ofthis preamble.

The adopted rule implements requirements ofthe Federal Clean AirAct (FCAA). Under
42 

## United States Code (USC), §7410, 

## each state is requiredto adopt andimplement a SIP containing adequateprovisions to implement, attain, maintain, andenforce the NAAQS within the state. While 42 

## USC, §7410 

## generally does notrequire specific
programs, methods, orreductions in orderto meetthe standard, SIPs mustinclude enforceable emissionlimitations and othercontrol measures, means, ortechniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules andtimetables for compliance as maybe
necessary or appropriate to meetthe applicable requirements ofthis chapter, (meaning
42 

## USC, Chapter 85, Air Pollution Prevention and Control, otherwise known as the FCAA). The provisions ofthe FCAA recognize that states are inthebestpositionto determine whatprograms and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affected industry, andthe publicto collaborate on thebestmethods for attaining the NAAQS for the specific regions inthe state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a statefrom developing a programthatmeets the requirements of42 

## USC, §7410. 

## States are notfree to ignore the requirements of42 

## USC, §7410, 

## and must develop programs and control measures to assure thattheir SIPs provide for implementation, attainment, maintenance, and enforcement ofthe NAAQS within the

state. Participation intheidling programis voluntary, andcurrently onlythe local governments inthe Central Texas Area andthe North Central Texas Area have signed agreements to implementvehicle idling limitations. The affected idling limitations rules

9

## provide all local governments inTexas the option ofapplying therules when additional control measures are neededto achieve or maintain attainment ofthefederal ozone standards.

The specific intentoftherule is to include an exemption implementing SB 493 for any
motorvehicle with a gross vehicle weight rating greaterthan 14,000 pounds thatis equippedwith a 2008 orsubsequentmodel year heavy-duty diesel engine orliquefied or compressednatural gas enginethathasbeen certifiedbythe EPA or state environmental
agency to emit no more than 30 grams ofNOx emissions perhourwhen idling.

The rule does not constitute a major environmental rule underTexas Government Code, §2001.0225(g)(3) becausewhile the specific intent ofthe rulemaking is to protectthe environment or reduce risks tohumanhealth from environmental exposure, as discussed previously inthe 

## FiscalNote, Public Benefits and Costs, SmallBusiness RegulatoryFlexibilityAnalysis, andthe

## LocalEmploymentImpactStatement sections ofthe proposedversion ofthis rule's preamble, the rulemaking would notadversely affect in a material way the economy, a sector ofthe economy, productivity, competition,

orjobs; norwouldthe rulemaking adversely affect in a material waythe environment, or the public health and safety ofthe state or a sector ofthe state. The idling restrictions

are effective onlyincertain areas ofthe statewhere an MOAbetween the TCEQ andthe local government is in effect. The rulemaking is not subject to a regulatory impact analysis underTexas Government Code, §2001.0225 becauseitis not a major environmental rule.

10

## The requirementto provide a fiscal analysis ofregulations intheTexas Government Code was amendedby SB 633, 75th Legislature, 1997. The intentofSB 633 was to require agencies to conduct a regulatoryimpact analysis ofextraordinaryrules. These

are identified inthe statutorylanguage as major environmental rules thatwill have a material adverse impact andwill exceed a requirement ofstate law, federal law, or a delegatedfederal program; or are adopted solely underthe general powers oftheTCEQ. Withtheunderstanding thatthis requirementwould seldom apply, the commission provided a cost estimate for SB 633 thatconcluded: based on an assessment ofrules adoptedbythe agency inthepast, itis not anticipatedthatthebill will have significant fiscal implications for the agency due to its limited application. The commission also notedthatthe number ofrules thatwould require assessmentunderthe provisions of thebill was notlarge. This conclusion was based, in part, onthe criteria setforth inthe bill that exemptedrules from the full analysis unless the rule was a major environmental rule thatexceeded a federal law.

The FCAA does not always require specific programs, methods, orreductions in orderto
meetthe NAAQS; thus, states must develop programs for each nonattainment areato help ensure thatthose areas will meetthe attainment deadlines. Because ofthe ongoing needto address nonattainment issues andto meet the requirements of42 

## USC, §7410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature is presumedto understandthis federal scheme. If

## each rule proposedfor inclusion inthe SIP was consideredtobe a major environmental rule thatexceeds federal law, thenevery revision to the SIP would require the full regulatoryimpact analysis contemplatedby SB 633. This conclusion is inconsistent with the conclusions

11

## reachedbythe commission inits cost estimate andbythe Legislative Budget Board (LBB) inits fiscal notes. Since thelegislature is presumedto understandthefiscal impacts ofthebills it passes andthatpresumption is based on information providedby

state agencies andthe LBB, the commissionbelieves thattheintentofSB 633 was only

to require thefull regulatoryimpact analysis for rules that are extraordinaryin nature. While the rules have a broadimpact, thatimpact is no greaterthan is necessary or appropriate to meetthe requirements ofthe FCAA. Forthese reasons, rules adoptedfor inclusion inthe SIP fall underthe exception inTexas Government Code, §2001.0225(a), becausethey are requiredbyfederal law.

The commission has consistently appliedthis constructionto its rules since this statute

was enactedin 1997. Since thattime, the legislature has revised the Texas Government Code butleftthis provision substantiallyunamended. It

## is presumedthat, when an
agency interpretationis in effect atthetime thelegislature amends the laws without making substantial change inthe statute, the legislature is deemedto have accepted the agency's interpretation. 

## CentralPower &

## Light Co. v. Sharp, 919 S.W.2d 485,489 (Tex. App. Austin 1995), 

## writdenied withpercuriam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

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

## CfHumble Oil & 

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

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

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

## pet. denied); and 

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

12

## The commission's interpretation ofthe regulatoryimpact analysis requirements is also supportedby a changemadeto the Texas Administrative ProcedureAct (APA) bythe legislature in 1999. In an attempttolimitthe number ofrule challenges baseduponAPA requirements, the legislature clarifiedthat state agencies are requiredto meetthese sections oftheAPA against the standard ofsubstantial compliance as required inTexas Government Code, §2001.035. Thelegislature specificallyidentified Texas Government Code, §2001.0225 as falling underthis standard. The commission has compliedwith the requirements ofTexas Government Code, §2001.0225.

Even ifthe proposed rulemaking constitutes a major environmental rule underTexas Government Code, §2001.0225(g)(3), a regulatoryimpact analysis is not required because this exemption is partofthe commission's SIP for making progress towardthe attainment andmaintenance ofthe NAAQS. Therefore, theproposed rulemaking does

not exceed a standard setbyfederal lawor exceed an express requirement ofstatelaw, since they are part ofan overall regulatory scheme designedto meet, not exceedthe relevant standard setbyfederal law (NAAQS). The commission is chargedwith protecting air qualitywithin the state andto design and submit a planto achieve attainment and maintenance ofthefederally mandatedNAAQS. The Third District Court ofAppeals upheldthis interpretation in

## Brazoria County v. Texas Comm 'n on Envtl. Quality, 128 S.W. 3d728 (Tex. App. -Austin 2004, 

## no writ). The specific intent ofthe rulemaking is toinclude the exemptionfor a motorvehicle that have a gross vehicle weight rating greater than 14,000 pounds andthatis equipped with a 2008 or subsequent modelyear heavy-duty diesel engine orliquefied or compressed natural gas engine thathasbeen certifiedbythe EPA ora state environmental agencyto emit no

13

## more than 30 

## grams ofNOx emissions perhourwhen idling. This adoption, therefore, does notexceed an express requirement offederal law. The amendment is needed to implement statelawbut does exceed those newrequirements. The rulemaking does involve a compact (in particular, theAustin EAC), which is an agreementbetweenthe

state andfederal governmentto implement a state andfederal program; however, the amendment does not exceedthe requirements ofthat compact. Finally, this rulemaking

was not developed solelyunderthe general powers ofthe agency, butis authorizedby specific sections ofTHSC, Chapter 382, 

## which are cited inthe StatutoryAuthority section ofthis preamble, including THSC, §382.012 

## and §382.019. 

## Becausethis adopted rulemaking does not meet anyofthefour applicability requirements, Texas Government Code, §2001.0225(b) 

## does not apply, and a regulatoryimpact analysis is notrequired.

The commission invited public comment regarding the draft regulatory impact analysis determination duringthe public commentperiod andno comments were received.



## TakingslrnpactAssessrnent
The commission evaluatedthe adopted rulemaking andperformed an analysis of whetherthe adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. 

## The commission's preliminary assessment indicates Texas Government Code, Chapter 2007

## does not apply.

Under Texas Government Code, §2007.002(5),

## taking means: "(A) a governmental action that affects private real property, inwhole or in partortemporarily or permanently, in a mannerthatrequires the governmental entityto compensatethe

14

## private real propertyowner as providedbythe Fifth andFourteenthAmendments to the United States Constitution or Section 17 

## or 19, 

## Article I, Texas Constitution; or (B) a governmental actionthat: (i) 

## affects an owner's private real propertythatis the subject ofthe governmental action·, inwhole orinpart ortemporarily orpermanently, in a

mannerthat restricts orlimitsthe owner's right to thepropertythatwould otherwise exist inthe absence ofthe governmental action; and (ii) 

## is the producing cause ofa reduction ofatleast 25 

## percentinthe marketvalue ofthe affected private real property, determinedbycomparingthemarketvalue oftheproperty as ifthe governmental action is notin effect andthe marketvalue ofthepropertydetermined as ifthe governmental action is in effect."

Promulgation andenforcement ofthe rulemaking wouldbe neither a statutorynor a constitutionaltaking ofprivate real property. The primarypurpose ofthe rule is to implementTHSC, §382.0191 

## addedby SB 493. 

## This rule is notburdensome, restrictive,

orlimiting ofrights toprivate real propertybecause the rulemaking regulates vehicle idling incertain limited areas. Furthermore, the rulemakingbenefits the publicby providing all local governments the option ofapplying the MotorVehicle Idling Rule when additional control measures are neededto achieve or maintain attainment ofthe federal air quality standards. The rulemaking does not affect a landowner's rights in private real propertybecausethis rulemaking does notburden, restrict, orlimitthe owner's rightto property, nor does itreduce thevalue ofany private real propertyby
25% 

## or morebeyondthatwhich would otherwise exist inthe absence ofthe regulations. Therefore, this rule does not constitute ataking under Texas Government Code, Chapter
2007.

15

## Consistencywiththe CoastalManagement Program The commission reviewed the rulemaking andfound thatthe adoption is subjecttothe
Texas Coastal Management Program (CMP) in accordance with the Coastal CoordinationAct, Texas Natural Resources Code §§33.201 

## etseq., andtherefore, must be consistentwith all applicable CMP goals andpolicies. The commission reviewed this rulemaking for consistencywiththe CMP goals andpolicies in accordance with the regulations ofthe Coastal Coordination Council and determinedthatthe rulemaking does not affect any coastal natural resource areas. The CMP goals applicable to the rulemaking areto protect, preserve, restore, andenhance the diversity, quality, quantity, functions, andvalues ofcoastal natural resource areas. No new sources ofair contaminants are authorizedinthose affected counties. The CMP policy applicable to this rulemaking action is the policythat commission rules complywith regulations in the Code ofFederal Regulations (CFR) to protect and enhance air qualityinthe coastal

area (40 CFR §501.32). This rulemaking does nothave a detrimental effect on SIP emissions reduction obligations relating to maintenance ofthe ozone NAAQS. This rulemaking action complies with the CFR. Therefore, in compliance with 31 TAC §505.22(e), this rulemaking action is consistentwith CMP goals andpolicies. Promulgation andenforcement ofthis rule does notviolate orexceed any standards identifiedin the applicable CMP goals andpolicies because the rulemaking is consistent withthese CMP goals andpolicies, andbecause this rule does not create orhave a direct

or significant adverse effect on any coastal natural resource areas.

16

## The commission invited public commentregarding consistencywith the CMP andno
comments were received.

Public Comment The commission offered publichearings for the proposal inAustin onApril 2, 2012, and
in FortWorth onApril3, 2012. A question and answer session was held 30 minutes priorto thehearing. The hearing was not officially openedbecause no partyindicated a desire to give comment. The public commentperiodwas from March 9, 2012, through Aprilg, 2012.

Written comments regarding Chapter 114 were providedbytheTexas Motor TransportationAssociation (TMTA), the North Central Texas Council ofGovernments (NCTCOG), andthe EPA.

Responseto Comments
Comment
TMTA submittedcommentinfull support ofthe proposedrule revision.

Response
The commission appreciates the supportfor theproposedrule revision. No changeswere madebasedonthis comment.

17

## Comment The NCTCOG submittedcommentsupportingthe proposedrule revision andrequested thatthe commission consider a provisionto allow onlythe engines described inthe proposed rule revision toidle in sensitive areas such as schools, hospitals, and residential neighborhoods.



## Response
The commission acknowledgesthe concernsfor the health and safetyof those affectedbyidlingin sensitive areas. The suggestedchangeis outside the scope ofthis rulemaking. No changeswere madeinresponseto this
comment.

Comment The NCTCOG requested guidance from the commission regarding the creation oflocal regulations restricting idlingbeyondprovisions laidoutin Chapter 114, 

## Subchapter

## J, Division 2, 

## Locally Enforced MotorVehicle Idling Limitations.



## Response
The commissionis committedto assistinglocalgovernments regarding idlingas a control strategy optionintheTexas SIPbutcannotprovidelegal advice to a local governmentregardingits ownpowers and duties. Additionally, givingguidanceto a local governmentregardingits own
powers and duties isbeyondthe scope ofthis rule making. No changeswere

18

## madeinresponse tothis comment.

Comment The EPA recommendedthatthe commission include a §uo(l) 

## demonstration in the rule submittalto demonstratethatbackslidingwill not occur as a result ofthe new exemption. As 

## partofthe §uo(l) 

## demonstration, the EPA requestedinclusion ofa technical analysis or modeling demonstration to showthat excess emissions inthe DFW
VMEP will offset anyincrease in emissions resulting from the new exemption and an accounting ofthe offsets used.



## Response

Inresponseto the EPA's comment,the commission revisedthe 

# §noO)
demonstration.

The exemption as proposed does not constitutebackslidinginthe DFWarea becausethe engines certifiedto emitno morethan 30 

## grams ofNOxper hourwhenidling are significantlycleanerthantheuncontrolledvehicles currentlyinuse that emit**betw~en** 

### 135 

## and 170

## grams ofNOxperhourwhen idling. As

## the 2008 

## andnewervehiclesreplacethe olderuncontrolled vehicles, the emissionsbenefitgainedby allowingthe exemption ofthe cleanidle engines will outweigh anypotentialincreasein emissionsthat
mayresultfrom increasedidling. The exemptedengines are more efficient

19

## bothwhileidling andwhileintransit. No changes were madetotherulein
response to this comment.

Comment The EPA requestedthatthe TCEQ provide an explanation ofwhatVMEP emission reduction commitments were made inthe DFW 1997 Eight-Hour Ozone Nonattainment
AreaAttainment Demonstration SIP revision including a breakdown ofeach ofthe control measures undertheVMEP, the corresponding emission reduction commitments, andthe corresponding substitute emissions reductions that are being used as offsets.



## Response
Thepreamble oftheproposedrule statedthatthe exemptionwouldnot interferewith attainment orreasonablefurther progressinthe SIPbecause the DFWarea achieved an excess ofNOxandVOC emissions reductions throughtheVMEP commitments. Inresponsetothe EPA's comments, the 

## Federal CleanAirAct, §11o(l)

## Demonstrationportion ofthispreamblehas beenrevised. No changeswere made totherule inresponse to this
comment.

20

## Comment
The EPA statedthatwhen the TCEQ submitsthe adopted Locally Enforced Motor Vehicle Idling Restrictions tothe EPA, it shouldinclude a §no(l) 

## demonstration regarding the proposed idling exemption andits effect ontheAustin EAC. The EPA requestedthattheTCEQ include a modeling demonstration ortechnical analysis as part ofthe §no(l) 

## demonstration including documentation thatmaintenance ofthe NAAQS will continue intheAustin areawithoutthe SIP credits affectedbytheproposed exemption.



## Response
TheAustin EACincludedidlingrestrictionsinthe commitmentto demonstrate attainment ofthe 1997

## eight-hour ozone standard. The exemption mayincreasethe amount ofidlingintheEACfor a briefportion ofthe demonstrationperiod. However, duetotheinherent emission benefits ofthe 2008 

## or subsequentmodelyearheavy-dutyenginethathas beencertifiedto emitno morethan 30 

## grams ofNOxemissionsperhour whenidling, anypotentialincreaseinidlingdueto the exemptedengines willnotincreasethe overallemissions. No changes were madetotherule in
response to this comment.

21

# RECOMMENDATION

## SUBCHAPTERJ: 

## OPERATIONAL CONTROLS FORMOTORVEHICLES DIVISION 2: 

## LOCALLY ENFORCED MOTORVEHICLE IDLING LIMITATIONS §114.517

StatutoryAuthority


## The amendmentis adoptedunderthe authorityofthe Texas Government Code and underTexas Water Code (TWC), §5.102, 

## General Powers; TWC, §5.103, 

## Rules; and TWC, §5.105, 

## General Policy, which provide the commission withthe general powers to
carry outits duties and authorizethe commissionto adopt rulemaking necessaryto
carryoutits powers and duties underthe TWC; andTWC, §5.013, 

## General Jurisdiction ofCommission, which states the commission's authority overvarious statutory
programs. The amendmentis also adoptedunderTexas Health and Safety Code (THSC), §382.017, 

## Rules, which authorizes the commissiontopropose rules consistentwith the policy andpurposes ofTHSC, Chapter 382 

## (the Texas Clean Air Act), andto adopt rules that differentiate among particular conditions, particular sources, andparticular areas ofthe state. The amendmentis also adoptedunderTHSC, §382.002, 

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

resources, consistentwith the protection ofpublichealth, general welfare, and physical property; THSC, §382.003, 

## concerning Definitions; THSC, §382.011, 

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

## StateAir Control Plan, which authorizes the commissiontoprepare and develop a general, comprehensive planfor the control ofthe state's air; THSC, §382.019, 

## Methods Used to Control and Reduce Emissions From LandVehicles, which

1

## providesthe commission the authorityto adopt rules to control andreduce emissions from engines usedtopropel landvehicles; andTHSC, §382.208,

## Attainment Program, which authorizes the commissionto develop and implementtransportation programs and othermeasures necessary to demonstrate attainment andprotect the publicfrom
exposure to hazardous air contaminantsfrom motorvehicles.

The adopted amendmentimplements Senate Bill 493, 

## which established THSC, §382.0191.



## · §114.517. Exemptions.

The provisions of§114.512 

## ofthis title (relating to Control Requirements for
MotorVehicle Idling) do not applyto:

(1) 

## a motorvehicle thathas a gross vehicle weight rating of 14,000

## pounds

or less;

· (2) 

## a motorvehicle thathas a gross vehicle weightrating greaterthan 14,000

## pounds andthatis equippedwith a 2008 

## or subsequentmodel year heavy-duty diesel engine orliquefied or compressednatural gas engine thathas been certifiedby the United States Environmental ProtectionAgency or another state environmental

2

## agencyto emitno morethan 

## 30 grams ofnitrogen oxides emissions perhourwhen idling;

(3) the primarypropulsion engine ofa motorvehicle being usedto provide air conditioning orheating necessaryfor employee health or safetyin an armored vehicle while the employee remains inside thevehicle to guardthe contents orwhile the vehicle is beingloaded orunloaded;

(4) a motorvehicle forced to remain motionless because oftraffic conditions over which the operatorhas no control;

(5) a motorvehicle being usedbythe United States military, national guard, or reserve forces, or as an emergency or law enforcement motorvehicle;

(6) the primarypropulsion engine ofa motorvehicle providing a power

source necessary for mechanical operation, otherthanpropulsion, and/orpassenger compartmentheating, or air conditioning;

(7) the primarypropulsion engine ofa motorvehicle being operatedfor maintenance ordiagnostic purposes;

3

## (8) the primarypropulsion engine ofa motorvehicle being operated solely

to defrost a windshield;

(9) theprimarypropulsion engine ofa motorvehicle thatis being usedto supplyheat or air conditioning necessaryfor passenger comfort and safetyinvehicles intendedfor commercial orpublicpassenger transportation, orpassengertransit operations, in which case idling upto a maximum of30 minutes is allowed;

(10) 

## theprimarypropulsion engine ofa motorvehicle being usedto provide air conditioning orheating necessary for employee health or safetywhile the employee is using thevehicle toperform an essentialjobfunction relatedto roadway construction ormaintenance;

(n) 

## the primarypropulsion engine ofa motorvehiclebeing used as airport ground support equipment;

(12) 

## the owner ofa motorvehicle rented orleasedto a personthat operatesthevehicle andis notemployedby the owner; or

(13) 

## a motorvehicle when idling is necessary to power a heater or air conditionerwhile a driver is usingthevehicle's sleeperberthfor a government4

## mandatedrestperiod andis notwithintwo miles ofa facility offering external heating and air conditioning connections at a time when those connections are available.

5

### THE STATE OF TEXAS 

# TEXAS CoMMISSION ON**ENVIRro.~~lY'lO.~ Tt~l,&**  

# rrrvt d 

# t f

### 'it1\~r~'t5'fc~ftny**~~riti's''!s** 

## a rue an correc copy o a**"~:])~'\** 

### Texas Commission on Environmental Quality document, 

# rL**~~** 

### which is filed in the permanent records ofthe Commission. 

## l;=:**~h** 

### Given u_nder my hand and the seal ofoffice on

# \~_,p,/**DM~CD-kv** 

# AUG 1 5 2012 Bridget C. ohac, Chief Clerk Texas Commission on Environmental Quality 

## ORDERADOPTINGAMENDED RULES AND REVISIONS TO THE STATE IMPLEMENTATION PIAN



## Docket No. 2011.-1639 

## -RUL 

## On August 8, 2012, the Texas Commission on Environmental Quality (Commission) adopted amended rules in 30 Texas Administrative Code (TAC) Chapter 114, concerning Control ofAir Pollution from Motor Vehicles. The adoption creates a new exemption for motor vehicles that have a gross vehicle weight rating greater than 14,000 pounds and are equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certifiedby the United States Environmental Protection Agency (EPA) or another state environmental agency to emit no more than 30 grams of nitrogen oxides emissions per hour when idling. The proposed rules were published for comment in the March 9, 2012, issue of the Texas Register 

## (37 TexReg 1656).
Pursuant to 40 Code ofFederal Regulations § 

## 51.102 and after proper notice, the Commission conducted public hearings to consider the proposed amendments to 30 TAC, Chapter 114. Proper notice included prominent advertisement inthe areas affected at least 30 days priorto the dates ofthe hearings. Public hearings ·were offered inAustin on April 2, 2012, and in Fort "\Vorth on April3, 2012. The hearings ·were not opened as no interestedpartyexpressed desire to present comment. The Commission circulated hearing notices of its intended action to the public, including interested persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations onthe proposed amendments to 30 TAC, Chapter 114, either orally or in writing, at the hearings and during the comment period. Prior to the scheduled hearings, copies of the proposed amendments to 30 TAC, Chapter 114 were available for public inspection at the Commission's central office and on the Commission's Web site. Data, views, and recommendations ofinterested persons regarding the proposed amendments to 30 TAC, Chapter 114 were submitted to the Commission during the comment period, and were considered by the Commission as reflected in the analysis oftestimony incorporated by reference to this Order. The Commission finds that the analysis oftestimony includes the names of all interested groups or associations offering comment on the proposed amendments to 30 TAC, Chapter 114 and their position concerningthe same. IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules are herebv adopted. The Commission further authorizes staffto make any non-substantive re\isions to the**rule~** 

## necessary to comply vvith Texas Register requirements. The adopted rules and the preamble to the adopted rules are incorporated by reference in this Order as if set forth at length verbatim in this Order.

# • CHAPTER 114. 

# • 

# • CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES SUBCHAPTER J. OPERATIONAL CONTROLS FOR MOTOR VEHICLES DIVISION 2. LOCALLY ENFORCED MOTOR VEHICLE IDLING LIMITATIONS 30 TAC §114.517 The Texas Commission on Environmental Quality (TCEQ or commission) adopts amendment to §114.517 without change to the proposed text as published in the March 9, 2012, issue of the Texas Register (37 TexReg 1656) and the text will not be republished. The amended section will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). Background and Summary ofthe Factual Basis for the Rule Chapter 114, Subchapter J, Division 2, Locally Enforced Motor Vehicle Idling Limitations, was originally adopted by the commission on November 17, 2004, at the request of the local air quality planning organization in the Austin Early Action Compact (EAC) area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for use as a control strategy in its EAC agreement to maintain attainment ofthe 1997 eight-hour ozone National Ambient Air Quality Standard (NAAQS) as published in the December 3, 2004, issue of the Texas Register (29 TexReg 11347). The adopted Motor Vehicle Idling Rule provides any local government in Texas the option of applying the rules in their jurisdiction in the event additional control measures are needed to achieve or maintain attainment ofthe ozone NAAQS. The EAC concept of an early, voluntary air quality plan was endorsed by the EPA Region 6 in June 2002. It was slightly modified and made available nationally in November 2002. A key point of an EAC was the flexibility allowed to areas to select emission reduction measures such as limiting vehicle idling. Beginning on August 1, 2005, members of the Austin EAC and the TCEQ signed the locally enforced idling restrictions memorandum of agreement (MOA). This MOA allowed participating counties and cities to enforce the idling restriction rule in their jurisdictions. Members ofthe Austin EAC area signing the MOA included Bastrop, Caldwell, Hays, Travis, and Williamson Counties and the cities of Austin, Bastrop, Georgetown, Hutto, Lockhart, Luling, Round Rock, and San Marcos. Idling restrictions are also a control measure put in place in the Austin-Round Rock 1997 Eight-Hour Ozone Flex Plan, which was signed in September 2008. Four counties, 21 cities, and two towns in the Dallas-Fort Worth (DFW) area have also signed agreements to enforce the Motor Vehicle Idling Rule in their jurisdictions. Idling restrictions are a Voluntary Mobile Emissions Reductions Program (VMEP) control measure in the DFW 1997 Eight-Hour Ozone Attainment Demonstration SIP revision, which was adopted by the commission on May 23, 2007, and approved by the EPA on January 14, 2009 (74 FR 1903). This adopted rulemaking amends the Motor Vehicle Idling Rule as stated in Chapter 114, Subchapter J, Division 2. The Motor Vehicle Idling Rule limits idling for gasoline and diesel-powered engines in motor vehicles within the jurisdiction ofany local government in the state that has signed an MOA with the TCEQ delegating enforcement to that local government. Local enforcement is crucial to the effective implementation of rules to reduce the extended idling of gasoline and diesel-powered heavy-duty vehicles. A result of reduced idling is the reduction of nitrogen oxides (NO,) and volatile organic compound (VOC) emissions, which is necessary to achieve or maintain attainment ofthe federal eight-hour ozone NAAQS. In addition, idling limitations will lower NO, and other pollutants emitted from fuel combustion. Because NO, is a precursorto ground-level ozone formation, reduced emissions of NO, will result in ground-level ozone reductions. The 79th Legislature, 2005, enacted House Bill (HB) 1540, establishing Texas Health and Safety Code (THSC), §382.0191, Idling of Motor Vehicle While Using Sleeper Berth, which prohibited the commission from restricting motor vehicle idling while a driver is using the vehicle's sleeper berth for a government-mandated rest period. HB 1540 also restricted idling in a school zone or within 1,000 feet of a public school during its hours of operation and defined the penalty for an offense as a fine not to exceed $500. HB 1540 did not specify an enforcement period, but it set a September 1, 2007, expiration date on the section. The commission adopted Motor Vehicle Idling Rule revisions to be consistent with HB 1540 on April 26, 2006, as published in the May 12, 2006, issue ofthe Texas Register(31 TexReg 3900). The 80th Legislature, 2007, enacted Senate Bill (SB) 12, which in part amended THSC, §382.0191, to extend the prohibition on the TCEQ from restricting certain idling activities from September 1, 2007, to September 1, 2009, as published in the February 15, 2008, issue of the Texas Register (33 TexReg 1345). The prohibition in §114.512(b) of certain vehicles from idling within 1,000 feet of a school or hospital expired on September 1, 2009. Therefore, this subsection was deleted in a previous rulemaking. On May 22, 2008, the National Armored Car Association submitted a petition for rulemaking requesting armored vehicles be exempted from idling restrictions under §114.517. The commission adopted rule changes incorporating the armored vehicle exemption on July 20, 2011. The July 20, 2011, rulemaking also removed the ozone season dates under §114.512 to allow local governments to enforce idling limitations year-round for consistent enforcement (August 5, 2011, issue of the Texas Register (36 TexReg 4972)). Current Rulemaking The 82nd Legislature, 2011, enacted SB 493, amending THSC, Chapter 382, Subchapter B by adding THSC, §382.0191, which prohibits the commission from limiting the idling of a motor vehicle that has a gross vehicle weight rating greater than 8,500 pounds that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or a state environmental agency to emit no more than 30 grams of NO, emissions per hour when idling. Although SB 493 provides for an exemption of vehicles with a gross vehicle weight greater than 8,500 pounds and equipped with the low-NO, engine, the adopted rule change exempts vehicles weighing greater than 14,000 pounds and equipped with the low-NO, engine. The reason forthis specification is because only vehicles weighing more than 14,000 pounds are subjectto the Chapter 114 MotorVehicle Idling Rule. This adopted rulemaking incorporates the amendment into the existing Motor Vehicle Idling Rule.



## ADOPTEDRULES August24, 2012 37TexReg 6619Federal Clean AirAct, §110(1) Demonstration The exemption will not interfere with attainment or reasonable further progress in the SIP. At proposal of the new exemption in §114.517(2), the commission indicated in the preamble that the exemption would not interfere with attainment or reasonable further progress in the SIP because the DFW area achieved an excess of NOx and VOC emissions reductions through the VMEP commitments. In response to comments received by the EPA, the §110(1) demonstration has been updated. The exemption for vehicles employing 2008 and newer engines certified to emit no more than 30 grams of NOx emissions per hour when idling will promote the use ofthe newer and cleaner vehicles equipped with this technology. Due to the changes in the federal heavy-duty engine emissions standards, i.e., from 2.5 grams per brake horsepower-hour (g/bhp-hr) for 2004 to 2006 vehicles to 0.20 g/bhp-hr for 2007 and newer vehicles, the 2008 and newer engines described in the exemption emit significantly less NOx emissions as compared to uncontrolled heavy-duty vehicles both while idling and in transit. Additionally, these engines have a steady emission reduction efficiency rate during idle as compared to other older engines that have declining emission reduction efficiency when idling longer. Using eitherthe EPA's Guidance for Quantifying and Using Long Duration Truck Idling Emission Reductions in State Implementation Plans and Transportation ConformityMOBILE6.2 guidance, or the newer EPA motor vehicle emissions simulator (MOVES) model (the replacementto MOBILE6.2 for Sl Pand transportation conformity), a heavy-duty engine idling at a rate of 30 grams of NOx per hourwould emit roughly 80% less than an uncontrolled heavy-duty engine. The MOBILE6.2 guidance establishes the extended idling NOx emission rate at 135 grams per hour (gph) for all model years 2002 through 2030, MOVES sets the extended idling NOx emission rate at 170 gph for model years 2006 and older, and 150 gph for model years 2007 and newer. In all three comparisons, the overall emissions benefit gained by allowing the exemption of engines certified to emit no more than 30 grams of NOx per hour outweighs any potential increase in idling that may result from the exemption. Vehicle age distributions are developed for use in estimating on-road mobile source emissions inventories. The age distributions are based to the extent possible on Texas Department of Motor Vehicles (TxDMV) mid-year county registrations data. Where gaps occur in the data the age distributions are based on defaults built into the MOVES model. For heavy-duty vehicles, the TxDMV vehicle population data is aggregated statewide to determine the statewide age distributions for the vehicle class. For historical years, historical-year specific TxDMV data are used. For SIP and transportation conformity purposes, future year age distributions are based upon the most recent year of registration data. For a recent set of SIP inventories, the TCEQ contracted a report by the Texas Transportation Institute (TTl) Houston-Galveston-Brazoria MOVES-Based Reasonable Further Progress On-Road Inventories and Control Strategy Reductions that contains statewide vehicle age distributions to include heavy-duty diesel vehicles based on 2011 TxDMV county data aggregated statewide. Using the statewide age distributions documented in the report 12% of heavy-duty diesel vehicles statewide are 2008 or newer. Based upon the same age distribution, by 2018, 53% of heavy-duty vehicles will be 2008 and newer. From Til's calculations, it is anticipated that



## 37 TexReg 6620 August24,2012 Texas Register the percentage of heavy-duty vehicles which are a 2008 or newer model will continue to increase. Due to the inherent emission benefits ofthe 2008 or subsequent model year heavy-duty engine that has been certified to emit no more than 30 grams of NOx emissions per hourwhen idling, emissions may be reduced by up to 80% as older uncontrolled trucks are replaced by the 2008 and newer vehicles. Section Discussion §114.517, Exemptions This rulemaking amends §114.517 to include an exemption in paragraph (2) for any motor vehicle with a gross vehicle weight rating greater than 14,000 pounds that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or another state environmental agency to emit no more than 30 grams of NOx emissions per hour when idling. Although SB 493 provides for an exemption of vehicles with a gross vehicle weight greater than 8,500 pounds and equipped with the lowNOx engine, the adopted rule exempts vehicles weighing greater than 14,000 pounds and equipped with the low-NOx engine. The reason for this specification is because only vehicles weighing more than 14,000 pounds are subject to the idling restrictions. In addition, the current exemptions in existing paragraphs (2)

- (12) are renumbered as paragraphs (3)- (13). Final Regulatory Impact Analysis Determination The commission reviewed the adopted rule in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the adopted rulemaking does not meet the definition of a major environmental rule. Texas Government Code, §2001.0225 states that a major environmental rule is a rule for which the specific intent is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Furthermore, while the adopted rulemaking does not constitute a major environmental rule, even if it did, a regulatory impact analysis would not be required because the adopted rulemaking does not meet any ofthe four applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies only to a major environmental rule that 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopts a rule solely under the general powers of the agency instead of under a specific state law. Specifically, it does not meet any of the four applicability criteria listed in Texas Government Code, §2001.0225 because: 1) the adopted rulemaking is part ofthe SIP, and as such is designed to meet, not exceed the relevant standard set by federal law; 2) parts of the adopted rulemaking are directly required by state law; 3) no contract or delegation agreement covers the topic that is the subject of this adopted rulemaking; and 4) the adopted rulemaking is authorized by specific sections of THSC, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the Statutory Authority section of this preamble.The adopted rule implements requirements ofthe Federal Clean Air Act (FCAA). Under 42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or reductions in order to meet the standard, SIPs must include enforceable emission limitations and other control measures, means, ortechniques (inCluding economic incentives such as fees, marketable permits, and auctions ofemissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meetthe applicable requirements ofthis chapter, (meaning 42 USC, Chapter 85, Air Pollution Prevention and Control, otherwise known as the FCAA). The provisions ofthe FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of42 USC, §7410, and must develop programs and control measures to assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAQS within the state. Participation in the idling program is voluntary, and currently only the local governments in the Central Texas Area and the North Central Texas Area have signed agreements to implement vehicle idling limitations. The affected idling limitations rules provide all local governments in Texas the option of applying the rules when additional control measures are needed to achieve or maintain attainment of the federal ozone standards. The specific intent of the rule is to include an exemption implementing SB 493 for any motor vehicle with a gross vehicle weight rating greaterthan 14,000 pounds that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or state environmental agency to emit no more than 30 grams of NO, emissions per hour when idling. The rule does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because while the specific intent of the rulemaking is to protect the environment or reduce risks to human health from environmental exposure, as discussed previously in the Fiscal Note, Public Benefits and Costs, Small Business Regulatory Flexibility Analysis, and the Local Employment Impact Statement sections of the proposed version of this rule's preamble, the rulemaking would not adversely affect in a material way the economy, a sector of the economy, productivity, competition, orjobs; nor would the rulemaking adversely affect in a material way the environment, orthe public health and safety ofthe state or a sector ofthe state. The idling restrictions are effective only in certain areas of the state where an MOA between the TCEQ and the local government is in effect. The rulemaking is not subject to a regulatory impact analysis under Texas Government Code, §2001.0225 because it is not a major environmental rule. The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by SB 633, 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program; or are adopted solely under the general powers of the TCEQ. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application. The commission also noted that the number of rules that would require assessment under the provisions ofthe bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeded a federal law. The FCAA does not always require specific programs, methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet the attainment deadlines. Because ofthe ongoing need to address nonattainment issues and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts revisions to the SIP and rules. The legislature is presumed to understand this federal scheme. Ifeach rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every revision to the SIP would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the rules have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements ofthe FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially unamended. It is presumed that, when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation. Central Power & Light Co. 

### v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil & Refining Co. 

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

### v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections ofthe APA against the standard of substantial compliance as required in Texas Government Code, §2001.035. The legislature specifically identified



## ADOPTEDRULES August24, 2012 37 TexReg 6621Texas Government Code, §2001.0225 as falling under this standard. The commission has complied with the requirements of Texas Government Code, §2001.0225. Even if the proposed rulemaking constitutes a major environmental rule under Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis is not required because this exemption is part of the commission's SIP for making progress toward the attainment and maintenance of the NAAQS. Therefore, the proposed rulemaking does not exceed a standard set by federal law or exceed an express requirement of state law, since they are part of an overall regulatory scheme designed to meet, not exceed the relevant standard set by federal law (NAAQS). The commission is charged with protecting air quality within the state and to design and submit a plan to achieve attainment and maintenance ofthe federally mandated NAAQS. The Third District Court of Appeals upheld this interpretation in Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W. 3d 728 (Tex. App.

- Austin 2004, no writ). The specific intent of the rulemaking is to include the exemption for a motor vehicle that have a gross vehicle weight rating greater than 14,000 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or a state environmental agency to emit no more than 30 grams of NOx emissions per hour when idling. This adoption, therefore, does not exceed an express requirement of federal law. The amendment is needed to implement state law but does exceed those new requirements. The rulemaking does involve a compact (in particular, the Austin EAC), which is an agreement between the state and federal government to implement a state and federal program; however, the amendment does not exceed the requirements of that compact. Finally, this rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of THSC, Chapter 382, which are cited in the Statutory Authority section of this preamble, including THSC, §382.012 and §382.019. Because this adopted rulemaking does not meet any ofthe four applicability requirements, Texas Government Code, §2001.0225(b) does not apply, and a regulatory impact analysis is not required. The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period and no comments were received. Takings Impact Assessment The commission evaluated the adopted rulemaking and performed an analysis of whether the adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply. Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) affects an owner's private real property that is the subject ofthe governmental action, in whole or in part ortemporarily or permanently, in a manner that restricts or limits the owner's right to the property thatwould otherwise exist in the absence ofthe governmental action; and (ii) is the producing cause ofa reduction of at least 25 percent in the market value ofthe affected private real property, determined by comparing the marketvalue ofthe prop

## 37 TexReg 6622 August24,2012 Texas Register erty as ifthe governmental action is not in effect and the market value of the property determined as if the governmental action is in effect." Promulgation and enforcement ofthe rulemaking would be neither a statutory nor a constitutional taking of private real property. The primary purpose of the rule is to implement THSC, §382.0191 added by SB 493. This rule is not burdensome, restrictive, or limiting of rights to private real property because the rulemaking regulates vehicle idling in certain limited areas. Furthermore, the rulemaking benefits the public by providing all local governments the option of applying the Motor Vehicle Idling Rule when additional control measures are needed to achieve or maintain attainment of the federal air quality standards. The rulemaking does not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limit the owner's right to property, nor does it reduce the value of any private real property by 25% or more beyond that which would otherwise exist in the absence ofthe regulations. Therefore, this rule does not constitute a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management Program The commission reviewed the rulemaking and found that the adoption is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code §§33.201 etseq., and therefore, must be consistent with all applicable CMP goals and policies. The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking does not affect any coastal natural resource areas. The CMP goals applicable to the rulemaking are to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. No new sources of air contaminants are authorized in those affected counties. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations in the Code of Federal Regulations (CFR) to protect and enhance air quality in the coastal area (40 CFR §501.32). This rulemaking does not have a detrimental effect on SIP emissions reduction obligations relating to maintenance of the ozone NAAQS. This rulemaking action complies with the CFR. Therefore, in compliance with 31 TAC §505.22(e), this rulemaking action is consistent with CMP goals and policies. Promulgation and enforcement of this rule does not violate or exceed any standards identified in the applicable CMP goals and policies because the rulemaking is consistent with these CMP goals and policies, and because this rule does not create or have a direct or significant adverse effect on any coastal natural resource areas. The commission invited public comment regarding consistency with the CMP and no comments were received. Public Comment The commission offered public hearings for the proposal in Austin on April 2, 2012, and in Fort Worth on April 3, 2012. A question and answer session was held 30 minutes prior to the hearing. The hearing was not officially opened because no party indicated a desire to give comment. The public comment period was from March 9, 2012, through April9, 2012. Written comments regarding Chapter 114 were provided by the Texas Motor Transportation Association (TMTA), the North Central Texas Council of Governments (NCTCOG), and the EPA.Response to Comments Comment TMTA submitted comment in full support of the proposed rule revision. Response The commission appreciates the support for the proposed rule revision. No changes were made based on this comment. Comment The NCTCOG submitted comment supporting the proposed rule revision and requested that the commission consider a provision to allow only the engines described in the proposed rule revision to idle in sensitive areas such as schools, hospitals, and residential neighborhoods. Response The commission acknowledges the concerns for the health and safety of those affected by idling in sensitive areas. The suggested change is outside the scope of this rulemaking. No changes were made in response to this comment. Comment The NCTCOG requested guidance from the commission regarding the creation of local regulations restricting idling beyond provisions laid out in Chapter 114, Subchapter J, Division 2, Locally Enforced Motor Vehicle Idling Limitations. Response The commission is committed to assisting local governments regarding idling as a control strategy option in the Texas SIP but cannot provide legal advice to a local government regarding its own powers and duties. Additionally, giving guidance to a local government regarding its own powers and duties is beyond the scope of this rulemaking. No changes were made in response to this comment. Comment The EPA recommended that the commission include a §110(1) demonstration in the rule submittal to demonstrate that backsliding will not occur as a result ofthe new exemption. As part ofthe 

### §11 0(1) demonstration, the EPA requested inclusion of a technical analysis or modeling demonstration to show that excess emissions in the DFW VMEP will offset any increase in emissions resulting from the new exemption and an accounting of the offsets used. Response In response to the EPA's comment, the commission revised the §110(1) demonstration. The exemption as proposed does not constitute backsliding in the DFWarea because the engines certified to emit no more than 30 grams of NOx per hour when idling are significantly cleaner than the uncontrolled vehicles currently in use that emit between 135 and 170 grams of NOx per hour when idling. As the 2008 and newer vehicles replace the older uncontrolled vehicles, the emissions benefit gained by allowing the exemption ofthe clean idle engines will outweigh any potential increase in emissions that may result from increased idling. The exempted engines are more efficient both while idling and while in transit. No changes were made to the rule in response to this comment. Comment The EPA requested that the TCEQ provide an explanation of what VMEP emission reduction commitments were made in the DFW 1997 Eight-Hour Ozone Nonattainment Area Attainment Demonstration SIP revision including a breakdown of each of the control measures under the VMEP, the corresponding emission reduction commitments, and the corresponding substitute emissions reductions that are being used as offsets. Response The preamble of the proposed rule stated that the exemption would not interfere with attainment or reasonable further progress in the SIP because the DFW area achieved an excess of NOx and VOC emissions reductions through the VMEP commitments. In response to the EPA's comments, the Federal Clean AirAct, §110(1) Demonstration portion of this preamble has been revised. No changes were made to the rule in response to this comment. Comment The EPA stated thatwhen the TCEQ submits the adopted Locally Enforced Motor Vehicle Idling Restrictions to the EPA, it should include a §110(1) demonstration regarding the proposed idling exemption and its effect on the Austin EAC. The EPA requested that the TCEQ include a modeling demonstration or technical analysis as part ofthe 

### §110(1) demonstration including documentation that maintenance ofthe NAAQS will continue in the Austin area without the SIP credits affected by the proposed exemption. Response The Austin EAC included idling restrictions in the commitment to demonstrate attainment ofthe 1997 eight-hour ozone standard. The exemption may increase the amount of idling in the EAC for a brief portion ofthe demonstration period. However, due to the inherentemission benefits ofthe 2008 orsubsequent model year heavy-duty engine that has been certified to emit no more than 30 grams of NOxemissions per hour when idling, any potential increase in idling due to the exempted engines will not increase the overall emissions. No changes were made to the rule in response to this comment. Statutory Authority The amendment is adopted under the authority of the Texas Government Code and underTexas Water Code (TWC), §5.1 02, General Powers; TWC, §5.103, Rules; and TWC, §5.105, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to adopt rulemaking necessary to carry out its powers and duties underthe TWC; and TWC, §5.013, General Jurisdiction ofCommission, which states the commission's authority over various statutory programs. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to propose rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to adopt rules that differentiate among particular conditions, particular sources, and particular areas of the state. The amendment is also adopted under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.003, concerning Definitions; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of



## ADOPTEDRULES August24, 2012 37 TexReg 6623the state's air; THSC, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to adopt rules to control and reduce emissions from engines used to propel land vehicles; and THSC, §382.208, Attainment Program, which authorizes the commission to develop and implement transportation programs and other measures necessary to demonstrate attainment and protect the public from exposure to hazardous air contaminants from motor vehicles. The adopted amendment implements Senate Bill493, which established THSC, §382.0191. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary ofState on August 10, 2012. TRD-201204219 Robert Martinez Director. Environmental Law Division Texas Commission on Environmental Quality Effective date: August 30, 2012 Proposal publication date: March 9, 2012 For further information, please call: (512) 239-0779 

# • t 

# • CHAPTER 291. UTILI Y REGULATIONS The Texas Commission on E vironmental Quality (TCEQ or commission) adopts the repea of §291.7 and also adopts an amendment to §291.22. Sections 291.7 and 291.22 are dopted without changes to the proposed text as published in th February 24, 2012, issue ofthe Texas Register(37 TexReg 117 ) and will not be republished. Background and Summary oft Factual Basis for the Adopted Rules Section 291.7 sets forth the filin fees required for a rate change application; an application for a ertificate ofpublic convenience and necessity (CCN); and an a plication for sale, assignment, or lease of a CCN, or notice o intent to sell, assign, lease, or rent a water or sewer system. T is rule was promulgated based on Texas Water Code (TWC), C apter 13, Subchapter L. House Bill (HB) 2694 was passed dur g the 82nd Legislature, 2011. HB 2694, §6.04 repealed TWC, hapter 13, Subchapter L, thus eliminating the commission's ab ity to collect application fees for rate change requests; applicati ns for CCNs; applications for sale, transfer or merger reques s; and notices of intent to sell, assign, lease, or rent a water o sewer system. Therefore, the commission adopts the repeal o §291.7 and will not require any filing fees for a rate change appli ation; an application for a CCN; an application for sale, assignm nt, or lease of a CCN; or a notice of intent to sell, assign, leas , or rent a water or sewer system. Section 291.22 allows a gover ng body of a municipality or a political subdivision that provid retail water or sewer service to customers outside their respe tive boundaries to mail or hand deliver individual written notice each affected ratepayer eligible to appeal a rate change wit n 30 days after the date of the final decision. HB 2694, §9.01 a ended TWC, §13.043(i) by increasing this time frame from 3 to 60 days and by allowing the written notice to be e-mailed if t e municipality or political sub

## 37 TexReg 6624 August24, 2012 Texas Register division has access to a ratepayers e-mail address. The commission therefore adopts an amen ment to §291.22 to increase the time frame for delivery of noti e of a final rate decision by a municipality or political subdivisi n and allow the notice to be e-mailed ifthe municipality or politi al subdivision has access to a ratepayer's e-mail address in ord rto achieve consistency with HB 2694, §6.04. Section 291.22 also requires a utili y to mail or hand deliver the statement of intent to change rat s to the appropriate officer of each affected municipality. HB 694, §9.02 amended TWC, §13.187(b), by allowing a utility to -mail the statement of intent to change rates. Therefore, the co mission adopts an amendment to §291.22 by allowing the s atement of intent to change rates to be e-mailed in order to hieve consistency with HB 2694, §9.02. The commission al o adopts an amendment to §291.22 to allow e-mail as an ac eptable delivery method for the noticing of utility rate change ap lications in order to maintain internal consistency in commissio rules regarding rate change notification. In a corresponding rulemaking p Texas Register, the commission al Chapter 293, Water Districts, and Rights, Substantive. Section by Section Discussion §291. 

### 7, Filing Fees blished in this issue of the adopts revisions to 30 TAG 0 TAG Chapter 297, Water

The commission adopts the repeal f §291.7 and will not require any filing fees for a rate change ap lication; an application for a CCN; an application for sale, assig ment, or lease ofa CCN; or a notice of intentto sell, assign, lease or rent awater or sewersystem. The commission adopts the r peal ofthis section because HB 2694, 82nd Legislature, 2011, repealed TWC, Chapter 13, Subchapter L, which was the statut ry basis for the rule. The repeal ofthe rule ensures consisten with the statutory change. §291.22, Notice ofIntent to Chan Rates The commission adopts an amend ent to §291.22(a) by allowing a utility to provide notice of a p posed rate change to all affected utility customers by e-mail, i addition to delivery by mail or hand delivery. This amendment nsures internal consistency in commission rules regarding not ce as to rate changes. The commission adopts an amendment o §291.22(b) by allowing the governing body of a municipality r a political subdivision that provides retail water or sewer se ce to customers outside the boundaries ofthe municipality or p itical subdivision to e-mail individual written notice ofafinal deci ion on a rate change to each affected ratepayer eligible to appe it, ifthe municipality or political subdivision has access to a rat payer's e-mail address. The commission also adopts an ame ment to this subsection by changing the number ofdays from 0 to 60 that the municipality or political subdivision has to prov e such notice. The amendment ensures consistency with H 2694, §9.01. The commission adopts an amendment to §2 1.22(c) by allowing a utility to deliver notice of a proposed ra change by e-mail, in addition to mailing notices separately with customer billings. This amendment ensures internal con istency in commission rules regarding notice as to rate change

. The commission adopts an amendment to §291.22(d) by allo ng a utility to deliver a statement of intentto change rates bye ail to the appropriate officer of each affected municipality, in a dition to the options of mailing or delivering a copy of the stat ment of intent. The amendment ensures consistency with H 2694, §9.02. The commission adopts an amendment to §2 1.22(e) by clarifying that the