Bryan W. Shaw, Ph.D., Chainnan

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

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

RECEIVEO - GPO\.. "IR PLANNING SEC.

H NOV -I PH 3: 5\

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing andPreventing Pollution

October 28, 2011

Docket Nos. 201O-2068-RUL,201O-2074-SIP

Alfredo Armendariz, Ph.D.

Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear.Dr. Armendariz:

On October 5,2011, the Texas Commission on Environmental Quality (Commission) adopted

revisions to the State Implementation Plan (SIP).

The Commission adopted the repeal of § 101.30, Conformity of General Federal Actions to

State Implementation Plans, in 30 TAC Chapter 101, General Air Quality Rules, Subchapter

A, General Rules; and corresponding revisions to the SIP. The repeal removes the General

Conformity regulations in state rule that have been rendered unnecessary by passage and

implementation of the Safe, Accountable, Flexible, Efficient Transportation EquityAct: A

Legacy for Users (SAFETEA-LU) in 2005.

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

record ofthe public hearing, and the accompanying order. I look forward to your expeditious

approval ofthese SIP rev;isions.

Sincerely,

?.;:;~:\::D

Chairman

BWSjjmm

Enclosures

cc: The Honorable Rick Perry, Governor of Texas

Mr. Toby Baker, Office of Budget, Planning anq. Policy, Office ofthe Governor

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental

Quality

P.O. Box 13087 Austin, Texas 787!l-3087 512-239-1000 Internet address: VrlWW.tceq.state.tx.lls
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Docket Nos. 201O-2068-RUL,201O-2074-SIP

THE STATE OF TEXAS

COUNTY OF TRAVIS

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

revisions to the Texas State Implementation Plan, adopted on October 5, 2011, pursuant to 40

Code of Federal Regulations § 51.104. I am the records administrator for the Air Quality

Planning ofthe Texas Commission on Environmental Quality (Commission).

avid ~Q\~ er, Direr

Air Quality Planning Division

Texas Commission on Environmental Quality
Texas Commission on Environmental Quality

Public Hearing

May 31, 2011

Concerning General Conformity

Revision to 30 TAC Chapter 101

Rule Project No. 2010-047-101-EN
INTRODUCTION

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

on May 31,2011, to receive testimony regarding the proposed repeal of 30 Texas Administrative

Code (TAC) Chapter 101, General Air Quality Rules, §101.30.

The rulemaking repeals the general conformity requirements in 30 TAC §101.30, which mirror

the federal requirements in 40 Code of Federal Regulations (CFR) Part 93, Subpart B and Part

51, Subpart Wand specifically reference the now repealed Part 51, Subpart W.

The comment period closed on June 6, 2011. All testimony and comments have been reviewed

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

and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations/Order

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

35 Circle, Austin, Texas 78753. For further information, please contact Amy Muttoni at (512)

239-6351.
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION

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

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

Austin American-Statesman: April 25, 2011

Fort Worth Star-Telegram: April 25, 2011

Houston Chronicle: April 25, 2011

2. Publication of the proposed repeal in the May 6, 2011, issue of the Texas Register (36 TexReg

2817).

3. Publication of the Notice of Public Hearing in the May 6, 2011, issue of the Texas Register (36

Tex,Reg 3035).

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

Speaker of the House

Lieutenant Governor

Alamo Area Council of Governments

Capital Area Planning Council

City of Austin, Mayor's Office

City of Dallas, Department of Environmental Quality

City of Dallas, Department of Aviation

City of EI Paso, Environmental Services

City of Fort Worth, Environmental Management Department

City of Houston, Department of Health and Human Services

East Texas Council of Governments
EI Paso Metropolitan Planning Organization

Federal Highway Administration

Galveston County Health District

Harris County Public Health and Environmental Services

North Central Texas Council of Governments

Houston-Galveston Area Council

South East Texas Regional Planning Commission

Texas Department of Transportation

Travis County Judge

Victoria Metropolitan Planning Organization

Arkansas Department of Pollution Control and Ecology

Louisiana Department of Environmental Quality

New Mexico Environmental Department

Oklahoma Department of Environmental Quality

United States Environmental Protection Agency
Example of Newspaper Classified Ad

Austin American-Statesman, April 25, 2011

PUBUC HEARING ON

THE PROPOSED

REVlSlON TO 30 TAt

CHAPTER 101

AND REVISION TO

THE STATE lMpLI!MENTAnON PLAN

The Texas Commission on Environmental Quality (commission) ~III conduct a public hearinl;J to receive

testimony regarding the proposed repeal 30 Texas Administrative Code (TAC) ChaplEr 101, General Air

Quality Rules, §lOl.)O; and revision to the state Implementation plan {SIP), under the requirements Texas

Health and Safety Code, §3S2.017; Texas Government Cocle, Chapter 2001, Subchapter B; and 40 Code

Federal Regulations §51.102 of the United States Environmental Protection AQency (EPA) regulations concerning

SIPs.

The proposed rulemaking ~ould repeal the veneral conformity requirements In 30 lAC §101.30, ~hlch mirror

the federal reqUirements in 40 Code of Federal Regulations (CFR) Part 93, SUbpart B and Part 51, Subpart w, and specifically reference the now repealed Part 51, Subpart W. Amended 40 CFR Part 93, Subpart B continues

to subject certain federal actions to general conformity requirements ~ithout the need tor Identical state rules

and SIPs. (Rule Project Number 2010·047-101-EN)

The proposed SIP revision ~ould remove references to the no~ repealed 40 CFR Part 51, Subpart W. The SIP

~ision ~iIl be updated to instead reference 40 CFR Part 93, Subpart B. (5IP Project Number 2011·002·SIPNR) .

The commis.sion ~i11 hold a publiC hearing on th'ese proposals in Austin on May 31, 2011, at 10:00 a.m. In

Building E, Room 2015, at the commission's central omce located at 12100 Part: 35 Circle. The hearing 15

structured for the receipt of oral or ~ritten comments by inten=Sted penons. IndlYlduals may pnsent onl

statements ~hen called upon In order of ~Istratlon. Open diScussion wIN nat be permitted during the heartng;

however, commission staff members ~1I1 be i!lvallable ttl .dtsaJss the proposal 30 rRnut"e5 prior to the heBrtng.

Persons who have special COmmunication or other accommodation- needs who are planning to attend the

hearings should contact Sandy Wong, Office of Legal services at {S12) 239-1802. Requests should be-made as

far in advance as possible.

Wr1tten comments may be submItted to Michael PamSh, HC 205, OffICe of Legal servIces, Texas Commis.slon

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

comments may be submitted at: htt:p://www5.tceq.

texils.gov/rufes/

ecommentsl. FIle size restrictions may apply to -comments being submitted via the e<:omments system. All

comments pertaining to the rulemaklng should reference Rule Project Number 2010·Q47-101·EN. All comments

relabng to the SIP revision should reference Project Number 2OU·OO2-SIP·NR. The comment period closes

June 6, 2011. Copies of the proposed rulemaklng can be obtained from the commission's Web SoIte at

http://www.tceq.texiJs

.gov/nav/f1Jles/

propose<hr ~lclthc~50%·:></hr:>iJdopt.htmf.

Copies of the proposed SIP revisIon and all appendices can be obtained from the commission's Web site at

htt:p://www.tceq.texiJs .goV/iJirquillity/sJp/sJpplans.htnJ/.

For further Information, please contact Amy Muttoni, Air Quality Planning Section, at 512·239-6351.
a perpetual basis and the remainin 58 acre-feet ofwater per year on a

tenn basis. The application, techn cal memoranda. and the Executive

Director's draft amendment are a ilable for viewing and copying at

the Office of the Chief Clerk, 121 0 Park 35 Circle. Bldg. F.• Austin,

Texas 78753. Written public com nts and requests for a public meeting should be received in thc Offi ofthe Chief Clerk, at the address

provided in thc information sectio below, within 30 days of the date

of newspaper publication ofthe nice.

INFORMATION SECTION

Public Hearing on lhe Proposed Revision 1030 TAC Chapter

101 and Revision to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public bearing to receive testimony regarding the proposed

repeal of 30 Texas Administrative Code (TAC) Chapter 10I, General

Air Quality Rules, §IOI.30; and revision to the state implementation

plan (SIP), under the requirements of Texas Health and Safety Code,

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

40 Codc ofFedeml Regulations §51.1 02 ofthc United States Environmental Protection Agency (EPA) regulations concerning SIPs.

To vicw the complete issued noti e, view the notice on our website

at www.tceq.state.tx.us/comm_exe Icc/pub_notice.html or call the Of·

fice ofthe Chief Clerk at (512) 23 -3300 to obtain a copy ofthe complete notice. When searching the bsite, type in the issued date range

shown at the top of this document 0 obtain search results.

A public meeting is intended for taking of public comment, and is

not a contested case hearing.

The Executive Director can consid r approval of an application unless

a written request for a contested c hearing is filed. To request a contested case hearing, you must su it thc following: (I) your name (or

for a group or association, an offic I representative), mailing address.

daytimc phone number, and fax n ber, if any: (2) applicant(s) name

and pennit number; (3) the statem nt "[I!we] request a contested case

hearing"; and (4) a brief and spec' c description of how you would be

affected by the application in a wa not common to the general public.

You may also submit any proposed onditions to the requested application which would satisfy your can ms. Requests for a contested case

hearing must be submitted in writ' g to the TCEQ Office ofthc Chief

Clerk at the address provided in th infonnation section below.

Ifa bearing request isfiled, the Exe utive Director will not issue the requested pennit and may forward th application and hcaring request to

the TCEQ Commissioners for thei consideration at a scheduled Commission meeting.

Written hearing requests, public omments or requests for a public

meeting should be submitted to e Office of the Chief Clerk, MC

105, TCEQ, P.O. Box 13087, Aust , Tcxas 78711·3087. For infonnation concerning the hearing proces , please contact the Public Interest

Counse~ MC 103, atthc same ad 55. For additional infonnation, individual members ofthe geneml p lic may contact the Office ofPubtic Assistance at 1-800-687-4040. General infonnation regarding the

TCEQ can be found at our websi at www.tceq.state.tx.us. Si desea

infonnaciOn en Espaftol, puede 11 ar aI1-800-687-4040.

TRD-201101567

LeDonne Castanuels

Chief Clerk

Texas Commission on Environmen I Quality

Filed: April 27. 2011 •

d Prairie, Texas 75052

oad 4206, Mount Pleasant, Texas

Gene Freeman, 4422 Cabot Dr.,

Dorothy D. Goebe~ 136 Private

75455

•

Texas Ethics Commissio

List of Late Filers

Listed below are the names offiler from the Texas Ethics Commission

who did not file reports, or failcd t pay penahy fines for late reports in

reference to the listed filing deadl' e. If you have any questions, you

may contact Robbie Douglas at (5 2) 463-5800.

Deadline: Semiannual Report d e January 18, 2011, for Candidates and Officeholders

The proposed rolemaking would repeal thc geneml confonnity requirements in 30 TAC §101.30, which mirror the federal requirements in

40 Code of Federal Regulations (CFR) Part 93, Subpart B and Part

51. Subpart W, and specifically reference the now repealed Part 51,

Subpart W. Amended 40 CFR Part 93, Subpart B continues to subject certain federal actions to general conformity requirements without the need for identical state roles and SIPs. (Rule Project Nwnber

2010-047-\01.El')

The proposed SIP revision would remove references to the now repealed 40 CFR Part 51, Subpart W. The SIP revision will be updated

to instead reference 40 CFR Part 93, Subpart B. (SIP Project Number

2011-oo2-SIP·NR)

The commission will hold a public bearing on these proposals in Austin

on May 31, 2011, at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing

is structured for the receipt of oral or written comments by interested

persons. Individuals may present oral statements when called upon in

order ofregistration. Open discussion will not be pennitted during the

hearing; however. commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation

needs who are planning to attend the hearings should contact Sandy

Wong, Office of Legal Services, at (512) 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 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.gov/roleslecommentsl. File size restrictions

may apply to comments being submitted via the eComments system.

All comments pertaining to the rolemak.ing should reference Rule

Project Number 2010·047-101·EN. All comments relating to the

SIP revision should reference Project Number 2011-002-SIP-NR

The comment period closes June 6, 2011. Copies of the proposed

rolemaking can be obtained from the commission's Web site at

http://www.tceq.texas.gov/nav/ru/es/propose_adopl.html. Copies of

the proposed SIP revision and all appendices can be obtained from the

commission's Web site at http://www.tceq.texQS.gov/airqua/ity/sip/siJr

p/ans.htm/. For further infonnation, please contact Amy Muttoni, Air

Quality Planning Section, at (512) 239-6351.

TRG-201101524

Robert Martinez

Director, Environmental Law Division

Texas Commission on Env\ronmental Quality

Flied: April 21. 2011

• ••

INADDITION May 6, 2011 36 TexReg 3035
Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

Mark R Vickery, P.G., Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALIlY

Protecting Texas by Reducing and Preventing Pollution

PUBLIC HEARING ON THE PROPOSED REVISION TO 30 TAC CHAPTER 101 AND

REVISION TO THE STATE IMPLEMENTATION PLAN

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

hearing to receive testimony regarding the proposed repeal of 30 Texas Administrative

Code (TAC) Chapter 101, General Air Quality Rules, §101.30; and revision to the state

implementation plan (SIP), under the requirements ofTexas Health and Safety Code,

§382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of

Federal Regulations §51.102 ofthe United States Environmental Protection Agency

(EPA) regulations concerning SIPs.

The proposed rulemaking would repeal the general conformity requirements in 30 TAC

§101.30, which mirror the federal requirements in 40 Code of Federal Regulations

(CFR) Part 93, Subpart B and Part 51, Subpart W, and specifically reference the now

repealed Part 51, Subpart W. Amended 40 CFR Part 93, Subpart Bcontinuesto subject

certain federal actions to general conformity requirements without the need for identical

state rules and SIPs. (Rule Project Number 201O-047-101-EN)

The proposed SIP revision would remove references to the now repealed 40 CFR Part

51, Subpart W. The SIP revision will be updated to instead reference 40 CFR Part 93,

Subpart B. (SIP Project Number 2011-002-SIP-NR)

The commission will hold a public hearing on these proposals in Austin on May 31, 2011,

at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at

12100 Park 35 Circle. The hearing is structured for the receipt of oral or written

comments by interested persons. Individuals may present oral statements when called

upon in order of registration. Open discussion will not be permitted during the hearing;

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • Internet address: www.tceq.state.tx.us
however, commission staff members will be available to discuss the proposal 30 minutes

prior to the hearing.

Persons who have special communication or other accommodation needs who are

planning to attend the hearings should contact Sandy Wong, Office of Legal Services at

(512) 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 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.gov/rules/ecomments/. File size restrictions may apply to

comments being submitted via the eComments system. All comments pertaining to the

rulemaking should reference Rule Project Number 201O-047-101-EN. All comments

relating to the SIP revision should reference Project Number 2011-002-SIP-NR. The

comment period closes June 6, 2011. Copies ofthe proposed rulemaking can be

obtained from the commission's Web site at

http://www.tceq.texas.gov/nav/rules/propose_adopt.html. Copies ofthe proposed

-SIP revision and all appendices can be obtained from the commission's Web site at

http://www.tceq.texas.gov/airquality/sip/sipplans.html. Forfurther information,

please contact Amy Muttoni, Air Quality Planning Section, at 512-239-6351.
(c) A person registered 0 licensed under the Act and employed by a finn [&£I: asseeiatioft• I'artflersh:i:p, ef eBPflBratieft] shall

notify the Board in written form [w fitmg] within five (5) business days

prior to leaving employment or n later than five (5) business days

after leaving emnlo~ent. The fir In must notifir the board in written

fonn within five (5) business d';;;-s f an-;;-chan"e of emDloVOlent of a

registered nmfessionalland surve;; r ffiPLS'.IfunemDlovment ofthe

RPLS is due to a bardshin~ de.th ccident or serious illness.. the firm

may continue to offer survevin2: ",ices durin~a transition -period of

not more than 3 months nrovided e circumstance is annroved bv the

Executive Director with consent f the board executive committee.

Consent shall be based on the invo ement and overshrht ofa licensed

RPLS in the nrnvision ofsurvevin services. [M!Ieuf>_~

elftflls} ftleflt.]

(d) The board may refuse t issue orrenew and may suspend or

revoke the registration of any finn eMiBesseftti!l'l and may impose

an administrative penalty againsttl! e owner ofafinn [I!tI5i&ess etHi!l'l

for a violation of this chapter by a employee, agent, or other representative of the finn [eftti!l'], inclo ling a registered professional land

surveyor employed by the entity a ~~ time afthe violation. A FIRM

REGISTRATION IS NOT TRANS RABLE WITHOUTMEETING

THE REOUIREMENTS IN SUBS CTION 'a OF TIllS SECTION.

[(et +lle-mer_ tIt& 'fel!llS ....l.mel GeftCf&I f<ll'

~f'fel3:Fiate ae8eft aBY "" ti.......e_I!le Aol ""

'&BY

__

esse eiatiea, pBItac,ship, 6f efferiBg sw •e, ing 5eI'Yiees t&e&tBjlly_~

W [tlt] Any finn furnishiJ g contract land surveying crews to

persons or finns other than those '·istered under this Act [,_

tieM;- par-mershifls 6f e6fJ'8l"fltiens fleeBsederfegisfefCd tI:ft6efthis

-set] must have a registered profes ianal land surveyor as a fullMtime

employee in that firm as reflected iJ i3 registration fann filed with the

board. [A_o"",l.lOO;"&ft .. cfftJ'le}ed.ey.il:eelBl'aft)

me eft g8iBg~withil: . &fM ,eileEitt1od W<lf1<!Ieuf>

J'CI' weel<;- £ weeI<sJ'CI' year,1

ill [tgll A nonrefundable e, as established by the Board, will

be submitted with the registration onn.

{gl No firm em"lovee othe than the RPLS shall affix an RPLS

seal and/or the RPLS silJ11l'1ture to nv Surv""" document.

ill A full-time emnlovee i an individual emnloved bv a comDanv in an on-lloino: nosition with a minimum of 35 scheduled work

hours week. 52 weeks ncr veo.

ill Tho Board mav referto 'he Texas Attomev General for annronriate action 8IlV I'IP1'WlD reaj.m-. d or licensed underthe Act or any

firm offerinv survevinO' services th t fails to com I with this section.

This agency hereby certifies tha ~jrOPOSal has been reviewed

by legal counsel and lound to be . in the agency's legal authority to adopt.

Filed with the Office of the Sec, tary of State on April 25, 2011.

TRD-201101557

Frank DITucd

Executive Director

Texas Board of Professional Land urveying

Ear1iest possible date of adoption: une 5. 2011

For further information, please call: (512) 2311-5263

• •

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 101. GENERAL AIR QUALITY

RULES

SUBCHAPTER A. GENERAL RULES

30 TAC §101.30

(Editor s note: The text 0/the following section proposed/or repeal

will not be published The section may be uamined in the offices a/the

Texas Commission on Environmental Quality or in the Texas Register

office, Room 245, James Ea,.l Rudder Building, /0/9 Brazos Street,

Austin, Texas.)

The Texas Commission on Environmental Quality (commission)

proposes the repeal of §101.30.

If adopted, the repeal would be submitted to the United States

Environmental Protection Agency (EPA) as a revision to the state

implementation plan (SIP).

Background and Summary of the Factual Basis lor the Proposed

Repeal

This rulemaking would align certain general conlonnlty air

quality rules and definitions with federal regUlations by repealing

§101.30, Conlonnity of General Federal Actions to State implementation Plans. This provision was superseded by federal

regulation.

On December 12, 1994, the commission adopted §101.30. The

purpose of the rule was to establish the criteria and procedures

lor general conlonnity detenninations, as required by 40 Code of

Federal Regulations (CFR) §51.851. In August 2005, the Unijed

Stales Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy lor Users (SAFETEALU) that eliminated the requirement lor states to adopt and submit general conlonnity SIP revisions. On AprilS, 2010, the EPA

adopted revisions to the general conlonnity regulations in 40

CFR Parts 51 and 93 (75 Federal Regisler17254, AprilS, 2010).

The revisions made the adoption and submittal of the general

confonnity SIP optional lor the state and deleted all of 40 CFR

Part 51, Subpart Wexcept for §51.851. 40 CFR §51.851 was

revised to clarify that if a state chooses to submij a general conlonnity SIP, ij must be consistent with the requirements of 40

CFR Part 93, SUbpart B. These changes beceme effective on

July 6, 2010.

The EPA's April 2010 revisions also added lour new sections to

40 CFR Part 93: §§93.161, 93.163, 93~164, and 93.165. Under the new 40 CFR §93.161, federal agencies may negotiate

a facility-wide emissions bUdget to be incorporated into the SIP.

After the EPA approves the SIp, any action at the facility can

be presumed to conlonn Wthe emissions from the proposed action along with all other emissions at the facility are within the

approved facility-wide emissions budget. Therefore, a conlormity detennination would not be necessary. The new 40 CFR

§93.163 allows eltemate schedules for mitigating emissions increases. Federal agencies and states cen negotiete a program

for some emissions mitigation to occur in Mure years, and states

cen use this approach to accommodate short-lenn increases in

emissions if the stale believes thet a substantiel long-tenn reduction in emissions will result from a federal action. The new 40

CFR §93.164 allows the emissions of one precursor of a criteria

pollutant to be offset by the reduction in the emissions of another

precursor of that pollutant. For example, emissions of volatile

PROPOSED RULES May 6, 2011 36 TexReg 2817
organic compounds could be offset by a reduction in emissions

of nitrogen oxides. Finally, the new 40 CFR §93.165 incorporates the use of early emissions reduction credits into the regulations. This section also provides other federal agencies with

regulations and guidance similar to the Airport Early Emissions

Reduction Credit program established by the United States Congress in the Federal Aviation Administration Reauthorization Act

of 2003.

The general conformity requirements in §101.30 mirror the federal requirements in 40 CFR Part 93, SUbpart B and Part 51,

Subpart W, and specifically relerence the now repealed 40 CFR

Part 51, SUbpart W. Amended 40 CFR Part 93, Subpart B continues to subject certain lederal actions to general conformity r&-

quirements without the need for identical state rules and SIPs.

Therefore, repealing the state rule would not impact program

continuity, but would eliminate relerences. in the state rule to

repealed lederal rules and the need for future stale rule revisions

as a resutt of amendments to lederal regu lations.

Section Discussion

The proposal would repeal §101.30, Conformity of General Federal Actions to State Implementation Plans, to meet the requir&-

ments of the SAFETEA-LU that eliminated the requirement for

states to adopt and subm~ general conformity SIP revisions.

Fiscal Note: Costs to State and Local Government

Jeffrey Horvath, Analyst in the Strategic Planning and Assessment Section, has determined that for the first five-year period

the proposed rule is in effect, no significant fiscal implications are

anticipated for the agency, and no fiscal implications are anticipated for other units of state or local government as a resutt of

administration or enforcement of the proposed rule.

The proposed rulernaking would repeal § 101.30. The repeal of

the Conformity of General Federal Actions to State Implementation Plans rule would align certain agency air quality rules and

definitions federal regulations. The proposed repeal would

eliminate references in state rules to repealed _ral rules and

is therefore not anticipated to have fiscal implications for units

of state or local government The agency may experience operational efficiencies in that the proposed rule may eliminate the

need for any future stete rule revisions that would be required

due to changes in federal regUlations; but these efficiencies are

not expected to be significant

Public Benefits and Costs

Mr. Horvath has also determined that for each year of the first

frve years the proposed rule is in effect, the pUblic benefit anticipated from the change seen in the proposed rule will conform

with federal rules and regulations.

No fiscal implications are anticipated for businesses or individuals as a result of administration or enforcement of the proposed

rule. The proposed rulemaking would align certain general conformity air quality ruies an.d definitions with _ral regulations

by repealing the Conformity of General Federal Actions to State

Implementation Plans rule. This provision has been superseded

by federal regulation.

Small Business and Micro Business Assessment

No adverse fiscal implications are anticipated for small or micro-businesses as a result of administration or enforcement of

the proposed rule. The proposed rulemaking would align certain

general conformity air quelity rules and defin~ions federal

36 TexReg 2818 May 6, 2011 Texas Register

regulations and is not expected to affect any business, large or

small.

Small Business Regulatory FleXibility Analysis

The commission has reviewed this proposed rulemaking and determined that a smallbusiness regulatory flexibility anaiysis is

not required, because the proposed rule does not adversely aflect small or micro-businesses for the first five years that the proposed rule is in effect.

Local Employment Impact S1atement

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not r&-

quired, because the proposed rule does not adversely affect a

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

proposed rule is in eflecl

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 action is not SUbject to §2001.0225, because does not meet the

definition of a major environmental rule as defined in that statute.

Major environmental rule means a rule, the specific intant of

which, is to protect the environment or reduce risks to human

health from environmental exposure and that may adversely aflect in a material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment or the public heaith

and salety of the state or a sector of the state. The repeal of

§101.30 is not intended to protect the environment or reduce

risks to human heaith from environmental exposure to air pollutants. The repeal is necessary to meet the requirements of the

SAFETEA-LU that eliminated the requirement for statas to adopt

and subm~ general conformity SIP revisions and repeals the

federal general conformity rules relerenced by §101.30. Therefore, the commission finds that is not a major environmental

rule. Adldilionally, the repeal does not affect in a material way

the economy, a sector ofthe economy, productivity, compelliion,

jobs, the environment, or the public heaith and salety of the state

or a sector of the stale. Federal agencies are still subject to general COnformity demonstrations under federal rules.

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 person at the

address listed under the SUBMITIAL OF COMMENTS section

of this preamble.

Takings Impact Assessment

The commission conducted a takings impact evaluation for the

proposed rule in accordance Texas Government Code,

§2007.043. The specific purpose of the proposed rulemaking

is to meet lederal general conformity rules by repealing state

SIP-approved rules that are now unnecessary and relerence

rules repealed by the SAFETEA-LU. The proposed repeal will

not burden private, real properly because general conformity

requirements apply only to lederal actions that potentially impact

nonattainment areas in the state. General conformity requir&-

ments are mandated by lederal law, specifically 42 Un~ed

States Code, §7506(c)(1). Through this repeal, conformity

requirements ere now implemenledexclusively through federal

rule. Consequently, the proposed repeal is an action reasonably

taken to fulfill an obligation mandated by federal regulations.
TEXAS Y UTH COMMISSION

This agency hereby certifies that the proposal has been reviewed

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

Flied with the Office of the Secretary of State on April 21, 2011.

TRD-201101523

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Ear1iest possible date of adoption: June 5, 2011

For further information, please call: (512) 239-2546

•

TV AND CORREC-

•

TITLE 37. PUBLIC S

nONS

PART 3.

period closes June 6, 2011. Copies of the proposed rulemaking can be obtained from the commission's Web site at

http://www.tceq.texas.govlnav/ruleslpropose_adopt.html. For

further information, please contact Amy Muttoni, Air Quality

Planning Section, at (512) 239-6351.

Statutory Authority

The repeal is proposed under Texas Water Code (TWC), §5.1 02,

concerning General Powers, §5.103, concerning Ruies, and

§5.105, concerning General Policy, which authorize the commission to adopt rules as necessary to cany out tts power and

duties under the TWC. The repeal is also proposed under Texas

Health and Safety Code (THSC), Texas Clean Air Act (TCAA),

§382.011, which authorizes the commission 10 administer the

requirements of the TCAA; THSC, §382.Q13, which authorizes

the commission to designate air quality control regions to

provide adequate implementation of air quality standards; and

THSC, §382.017 which authorizes the commission to adopt

ruies consistent with the policy and purpose of the TCAA.

The proposed repeal Implements TWC, §§5.102, 5.103, and

5.105; and THSC, §§382.011, 382.013, and 382.017.

§ 101.30. Confol'mityofGene,.al Federal Actions to State Implementation Plans.

CHAPTER 85, ADMIS ION, PLACEMENT,

RELEASE, AND DISC GE

SUBCHAPTER B. PL CEMENT PLANNING

37 TAC §85.21

The Texas Youth Commission C) proposes an amendment

to §85.21, concerning Place ent Assignment System. The

amended rule establishes that r1ain youth who were commttted to TYC for offenses of mo rale severity and who receive a

score in the lowest category the agency's risk assessment

may be eligible for an inttial pi cement at a medium restrtction

facility. The amended rule als allows the executive director to

make exceptions to placemen requirements On a case-bY-case

basis, if justified by the youth' needs and pUblic safety considerations. Other changes in amended rule include several

minor clarifications and upda to terminology.

Janie Ramirez Duarte, Chief inancial Officer, has determined

that for the first five-year perio the section is In effect, there will

Therefore, this proposed rulemaking action will not constitute a

taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the proposed rulemaking and found

that the proposal is subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination

Act, Texas Natural Resources Code, §§33.201 et seq., and

therefore, must be consistent with all applicable CMP goals and

policies. The commission reviewed this proposed rulemaking

for consistency with the CMP goals and polides in accordance

with the regulations of the Coastal Coordination Council and

determined that the proposed rulemaking will not affect any

coastal natural resource areas. The CMP goals applicable to

the proposed rulemaklng is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and

values of coastal natural resource areas. No new sources of air

contaminants would be authorized in those affected counties,

and it is possible that ozone levels would be reduced as a resutt

of the proposed rulemaking. The CMP policy applicable to this

proposed rulemaking action is the policy that commisSion rules

comply with regUlations in the CFR to protect and enhance air

quality in the coastal area (40 CFR §501.32). This rulamaking

proposal would not have a detrimental effect on SIP emissions

reduction obligaijons relating to maintenance of the ozone National Ambient Air Quality Standard. This proposed rulemaking

action complies with the CFR. Therefore, in compliance with 40

CFR §505.22(e), this proposed rulemaking action is consistent

with CMP goals and policies. PromUlgation and enforcement of

the proposed rule would 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 the 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

SUBMITIAL OF COMMENTS section of this preamble.

Announcement of Hearing

The commission will hold a public hearing on this proposal in

Austin on May 31, 2011, at 10:00 a.m. in Building E, Room 201S,

at the commission's central office located at 12100 Parl< 35 Circle. The hearing is structuned for the receipt of oral or written

comments by interested persons. Individuals may present oral

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

30 minutes prior to the hearing.

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

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 Michael Parrish, MC

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

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

submitted at: http://www5.tceq.texas.gov/rules/ecommentsl.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should reference Rule Project Number 2010-047-101-EN. The comment

PROPOSED RULES May 6, 2011 36 TexReg 2819
WRITTEN AND 

ORAL TESTIMONY 
INDEX OF WRITIEN TESTIMONY

NO WRITTEN TESTIMONY WAS RECEIVED PERTAINING TO THIS RULE REPEAL.
INDEX OF ORALTESTIMONY

NO ORAL TESTIMONY WAS RECEIVED PERTAINING TO THIS RULE REPEAL.
- 1 -

Texas Comlnission on Environmental Quality

Public Hearing Registration

Date: May 31, 2011

Time: 10:00AM

Rule Project No.: 2010-047-101-EN and corresponding SIP revision, TCEQ Project Number 20n-002-SIP-NR

Short Title: General Confortnity Rule Repeal

Location: Austin, Building E, Room 2018, at the commission's central office located at 12100 Park 35 Circle

Concerning: Proposed repeal to 30 TAC Chapter 101. §101.30 and SIP revision .

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

(Please Print) . (Circle One)

Yes No

"" 0r0L. Yes No

0f/~ V~ Yes No

/'

..

,

" .~~ / [)(\ Yes No

I' ./ N\) .C-/ / / Yes No

•

L/ Yes No

Yes No

Yes No

.
HEARING OFFICERREPORT

I am the hearing officer assigned to conduct the public hearing regarding the

Amendment to 30 TAC §101.30, Rule Project No. 201o-047-101-EN, and

corresponding revision to the state implementation plan.

A public hearing was scheduled in Austin on May 31, 2011 at 10:00 AM in

Building E, Room 2018, at the commission's central office located lrt: 12100 Park

35 Circle. TCEQ staff and a court reporter were presentfor the public hearing.

At 9:30 AM, the room was open and TCEQ staff members were available to

discuss the proposal. At 10:00 AM, TCEQ staff and a court reporter were present

and ready to open the hearing for public co=ent. After waiting for ten

minutes, no one had arrived to make co=ents on the record. Therefore, the

public hearing was not formally opened for comment and a transcript was not

prepared.

Hearing Officer

Date signed
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality

Interoffice Memorandum

To:

Thru:

Commissioners

Melissa Chao, Acting Chief Clerk

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

Date: September 16, 2011

From: SusanaM. Hildebrand, P.E, ChiefEngin~

Docket No.: 2010-2068-RUL \Y

Subject: Commission Approval for Rulemaldng Adoption

Chapter 101, General Air Quality Rules

General Conformity Rule Repeal

Rule Project No. 201O-047-101-EN

Background and reason(s) for the rulemaking:

On December 12, 1994, the Texas Natural Resource Conservation Commission, now known

as the Texas Commission on Environmental Quality (TCEQ), adopted 30 Texas

Administrative Code (TAC) Chapter 101, Subchapter A, §101.30, Conformity of General

Federal Actions to State Implementation Plans. The purpose ofthe rule was to establish

the criteria and procedures for general conformity determinations, as required by 40 Code

ofFederal Regulations (CFR) §Sl.8S1. In August 2005, the United States Congress passed

the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users

(SAFETEA-LU) that eliminated the requirement for statesto adopt and submit general

conformity state implementation plan (SIP) revisions. On April 5, 2010, the United States

Environmental Protection Agency (EPA) adopted revisions to the general conformity

regulations in 40 CFR Parts 51 and 93 (75 Federal Register 17254, Aprils, 2010). The

revisions made the adoption and submittal ofthe general conformity SIP optional for the

state and deleted all of40 CFR Part 51, Subpart W except for §51.851. Title 40 CFR §51.851

was revised to clarify that if a state chooses to submit a general conformity SIP, it must be

consistent with the requirements of 40 CFRPart 93, Subpart B. These changes became

effective on July 6, 2010.

The EPA'S April 2010 revisions also added four new sectionsto 40 CFR Part 93: §§93.161,

93.163, 93.164, and 93.165. Under the new 40 CFR §93.161, federal agencies may negotiate

a facility-wide emissions budget to be incorporated into the SIP. After the EPA approves

the SIP revision, any action at ilie facility can be presumed to conform ifthe emissions

from the proposed action along wiili all oilier emissions at the facility are wiiliin the

approved facility-wide emissions budget. Therefore, a conformity determination would

not be necessary. The new 40 CFR §93.163 allows alternate schedulesfor mitigating

emission increases. Federal agencies and states can negotiate a program for some

emissions mitigation to occur in future years, and states can use this approach to

accommodate short-term increases in emissionsifilie state believes that a substantial

long-term reduction in emissions will result from a federal action. The new 40 CFR

§93.164 allowsthe emissions of one precursor of a criteria pollutant to be offset by ilie

reduction in ilie emissions of another precursor ofiliat pollutant. For example, emissions
Commissioners

Page 2

September 16, 2011

Re: Docket No. 2010-2068-RUL

ofvolatile organic compounds could be offset by a reduction inemissions of nitrogen

oxides. Finally, the new 40 CFR §93.165 incorporates the use of early emissions reduction

credits into the regulations. This section also provides other federal agencies with

regulations and guidance similar to the Airport Early Emissions Reduction Credit program

established by the United States Congress in the Federal Aviation Administration

Reauthorization Act of 2003.

The general conformity requirements in 30 TAC §101.30 mirror the federal requirements

in 40 CFR Part 93, Subpart Band Part 51, Subpart W, and specifically reference the now

repealed Part 51, Subpart W. Amended 40 CFR Part 93, Subpart Bcontinuesto subject

certain federal actions to general conformity requirements without the need foridentical

state rules and SIPs. Therefore, repealing the state rule will not impact program

continuity, but it will eliminate references in state rules to repealed federal rules and the

need for future state rule revisions as a result of amendments to federal regulations.

Scope ofthe rulemaking:

The adopted rule revision will repeal 30 TAC §101.30.

A.) Swnmary ofwhat the rulemaking will do:

The adopted rulemaking will repeal the general conformity requirements in 30 TAC

§101.30, which mirror the federal requirements in 40 CFR Part 93, Subpart Band Part 51,

Subpart W, and specifically reference the now repealed Part 51, Subpart W. Amended 40

CFR Part 93, Subpart Bcontinues to subject certain federal actions to general conformity

requirements without the need for identicalstate rules and SIPs. Therefore, repealing the

state rule will not impact program continuity, but it will eliminate references in state rules

to repealed federal rules and the need for future state rule revisions as a result of

amendments to federal regulations.

D.) Scope required by federal regulations or state statutes:

The adopted rulemaking will repeal the general conformity requirements in 30 TAC

§101.30, which mirror the federal requirements in 40 CFR Part 93, Subpart Band Part 51,

Subpart W, and specifically reference the now repealed Part 51, Subpart W.

C.) Additional staffrecoDlDlendationsthat are not required by federal rule or

state statute:

None.

Statutory authority:

The repeal is adopted under Texas Water Code (TWC), §5.102, concerning General Powers,

§5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the

commission to adopt rules as necessary to carry out its power and duties under the TWC.

The repeal is also adopted under Texas Health and Safety Code (THSC), Texas Clean Air

Act ('rCAA), §382.011, which authorizes the commission to administer the requirements of

the TCAA; THSe, §382.013, which authorizes the commission to designate air quality
Commissioners

Page 3

September 16, 2011

Re: Docket No. 2010-2068-RUL

control regions to provide adequate implementation of air quality standards;·andTHSC,

§382.017 which authorizes the commission to adopt rules consistent with the policy and

purpose ofthe TCAA.

The adopted repeal implements TWC, §§5.102, 5.103, and 5.105; and THSC, §§382.011,

382.013, and 382.017.

Effect on the:

A.) Regulated·community:

There will be no effect on the regulated community becanse the regulated community will

need to comply with the federal rules whether state rules are revised or not. The rule

repeal improves clarity by eliminating references to outdated requirements.

B.) Public:

The adopted rule revisions will not have an adverse affect on the public.

C.) Agency programs:

Repealing the rule will streamline the process for the agency by eliminating the need for

any future federal rule revisions that might affect conformity determination.

Stakeholder meetings:

Stakeholder meetings were not held.

Public comment:

No public comments were received.

Significant changesfrom proposal:

There are no changes from proposal.

Potential controversial concerns and legislative interest:

None anticipated.

Does this rulemaking affect any current policies or require development of

newpolicies?

No policies are affected by this adopted rulemaking.

What are the consequences ifthis rulemaking does not go forward? Are there

alternatives to rulemaking?

Ifthe rule repeal does not go forward, 30 TAC §101.30 will continue to reference the now

repealed 40 CFR Part 51, Subpart W.
Commissioners

Page 4

September 16, 2011

Re: Docket NO.2010-2068-RUL

Keypoints in the adoption rulemalcing schedule:

Texas Registerproposal publication date: May 6, 2011 .

Anticipated Texas Register publication date: October 21, 2011

Anticipated effective date: October 27, 2011

Six-month T~"US Registerfiling deadline: November 7,2011

Agency contacts:

Amy Muttoni,Rule Project Manager, 239-6351, Air Quality Division

John Minter, StaffAttorney, 239-0663

MichaelParrish, Texas Register Coordinator, 239-2548

Attachments

75 Federal Register 17254, April 5, 2010

cc: ChiefClerlc, 2 copies

Executive Director's Office

Susana M. Hildebrand, P.E.

Anne Idsal

Curtis Seaton

Ashley Morgan .

Office ofGeneral Counsel

Amy Muttoni

Michael Parrish
EVALUATION OF TESTIMONY

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the

repeal of §101.30 without change to the proposed text as published in the May 6, 2011,

issue ofthe Texas Register (36 TexReg 2817). The text will not be republished.

The adopted repeal 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 Basisfor the Adopted Rule

This rulemaking action will align certain general conformity air quality rules and

definitions with federal regulations by repealing §101.30, Conformity of General

Federal Actions to State Implementation Plans. This provision was superseded by

federal regulation.

On November 16,1994, the commission adopted Chapter 101, Subchapter A, §101.30,

Conformity of General Federal Actions to State Implementation Plan. The purpose of

the rule was to establish the criteria and procedures for general conformity

determinations, as required by 40 Code of Federal Regulations (CFR) §S1.8Sl. In

August 200S, the United States Congress passed the Safe, Accountable, Flexible,

Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) that

eliminated the requirement for states to adopt and submit general conformity SIP

revisions. On AprilS, 2010, the EPA adopted revisions to the general conformity

regulations in 40 CFR Parts SI and 93 (7S Federal Register 172S4, AprilS, 2010). The

1
revisions made the adoption and submittal ofthe general conformity SIP optional for

the state and deleted all of 40 CFR Part 51, Subpart W except for §51.851. 40 CFR

§51.851 was revised to clarify that if a state chooses to submit a general conformity SIP,

it must be consistent with the requirements of 40 CFR Part 93, Subpart B. These

changes became effective on July 6, 2010.

The EPA's April 2010 revisions also added four new sections to 40 CFR Part 93:

§§93.161, 93.163, 93.164, and 93.165. Under the new 40 CFR §93.161, federal agencies

may negotiate a facility-wide emissions budget to be incorporated into the SIP. After

the EPA approves the SIP revision, any action at the facility can be presumed to

conform ifthe emissions from the proposed action along with all other emissions at the

facility are within the approved facility-wide emissions budget. Therefore, a

conformity determination would not be necessary. The new 40 CFR §93.163 allows

alternate schedules for mitigating emissions increases. Federal agencies and states can

negotiate a program for some emissions mitigation to occur in future years, and states

can use this approach to accommodate short-term increases in emissions ifthe state

believes that a substantial long-term reduction in emissions will result from a federal

action. The new 40 CFR §93.164 allows the emissions of one precursor of a criteria

pollutant to be offset by the reduction in the emissions of another precursor ofthat

pollutant. For example, emissions of volatile organic compounds could be offset by a

reduction in emissions of nitrogen oxides. Finally, the new 40 CFR §93.165

incorporates the use of early emissions reduction credits into the regulations. This

section also provides other federal agencies with regulations and guidance similar to

2
the Airport Early Emissions Reduction Credit program established by the United

States Congress in the Federal Aviation Administration Reauthorization Act of 2003·

The general conformity requirements in §101.30 mirror the federal requirements in 40

CFR Part 93, Subpart B and Part 51, Subpart W, and specifically reference the now

repealed Part 51, Subpart W. Amended 40 CFR Part 93, Subpart B continues to

subject certain federal actions to general conformity requirements without the need for

identical state rules and SIPs. Therefore, repealing the state rule will not impact

program continuity, but it will eliminate references in the state rule to repealed federal

rules and the need for future state rule revisions as a result of amendments to federal

regulations.

Section Discussion

The adoption repeals §101.30, Conformity of General Federal Actions to State

Implementation Plans.

Final Regulatory Impact Analysis

The commission reviewed the adopted rulemaking in light ofthe regulatory analysis

requirements ofTexas Government Code, §2001.0225, and determined that the

rulemaking action is not subject to §2001.0225 because it does not meet the definition

of a "major environmental rule" as defined in that statute. "Major environmental rule"

means a rule, the specific intent ofwhich, 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 ofthe economy, productivity, competition, jobs,

3
the environment, or the public health and safety ofthe state or a sector ofthe state.

The repeal of §101.30 is not intended to protect the environment or reduce risks to

human health from environmental exposure to air pollutants. The repeal is necessary

to meet the requirements ofthe SAFETEA-LU that eliminated the requirement for

states to adopt and submit general conformity SIP revisions and repeals the federal

general conformity rules referenced by §101.30. Therefore, the commission finds that

it is not a "major environmental rule." Additionally, the repeal does not affect in a

material way the economy, a sector ofthe economy, productivity, competition, jobs,

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

Federal agencies are still subject to general conformity demonstrations under federal

rules.

The commission invited pu?lic comment regarding the draft regulatory impact

analysis determination during the public comment period, and no comments were

received.

Takings ImpactAssessment

The commission conducted a takings impact evaluation for the adopted rulemaking in

accordance with Texas Government Code, §2007.043. The specific purpose ofthe

adopted rulemaking is to meet federal general conformity rules by repealing state SIPapproved rules that are now unnecessary and that reference rules repealed by the

SAFETEA-LU. The adopted repeal will not burden private, real property because

general conformity requirements apply only to federal actions that potentially impact

nonattainment areas in the state. General conformity requirements are mandated by

4
federal law, specifically 42 United States Code, §7s06(c)(1). Through this repeal,

conformity requirements are now implemented exclusively through federal rule.

Consequently, the adopted repeal is an action reasonably taken to fulfill an obligation

mandated by federal regulations. Therefore, this adopted rulemaking action will not

constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that the adoption is

subject to the Texas Coastal Management Program (CMP) in accordance with the

Coastal Coordination Act, Texas Natural Resources Code §§33.201 et seq., and

therefore, must be consistent with all applicable CMP goals and policies. The

commission reviewed this adopted rulemaking for consistency with the CMP goals and

policies in accordance with the regulations ofthe Coastal Coordination Council and

determined that the adopted rulemaking does not affect any coastal natural resource

areas. The CMP goals applicable to the adopted rulemaking is the goal 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 adopted rulemaking action

is the policy that commission rules comply with regulations in the CFR to protect and

enhance air quality in the coastal area (40 CFR §S01.32). This rulemaking adoption

does not have a detrimental effect on SIP emissions reduction obligations relating to

maintenance ofthe ozone National Ambient Air Quality Standards. This adopted

rulemaking action complies with the CFR. Therefore, in compliance with 40 CFR

§Sos.22(e), this adopted rulemaking action is consistent with CMP goals and policies.

5
Promulgation and enforcement ofthe adopted repeal does not violate or exceed any

standards identified in the applicable CMP goals and policies, because the adopted

rulemaking is consistent with these CMP goals and policies, and because the adopted

repeal does not create or have a direct or significant adverse effect on any coastal

natural resource areas.

The commission invited public comment regarding the consistency with the CMP

during the public comment period and no comments were received.

Public Comment

A public hearing was offered on May 31, 2011. The hearing was not officially opened

because no party indicated a desire to give comment. The public comment period

opened May 6, 2011, and closed June 6, 2011. The commission did not receive any oral

or written comments.

Response to Comments

The commission did not receive any oral or written comments on the General

Conformity Rule repeal.

6
STAFF 

RECOMMENDATIONS
SUBCHAPTERA: GENERAL RULES

§lOl.30

Statutory Authority

The repeal is adopted under Texas Water Code (TWC), §S.102, concerning General

Powers, §S.103, concerning Rules, and §S.lOS, concerning General Policy, which

authorize the commission to adopt rules as necessary to carry out its power and duties

under the TWC. The repeal is also adopted under Texas Health and Safety Code

(THSC), Texas Clean Air Act (TCAA), §382.011, which authorizes the commission to

administer the requirements ofthe TCAA; THSC, §382.013, which authorizes the

commission to designate air quality control regions to provide adequate implementation

of air quality standards; and THSC, §382.017 which authorizesthe commission to adopt

rules consistent with the policy and purpose ofthe TCAA.

The repeal implements TWC, §§S.102, 5.103, and 5.105; and THSC, §§382.011, 382.013,

and 382.017.

§101.30. Conformity ofGeneral Federal Actions to State Implementation

Plans.

1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

THE STATE OF TEXAS

COUNTY OF tRAVIS

I hereby certify Ihallhis is a lrue and correct copy of a

Texas Commission on Environmental Quality document,

which is filed in the permanent records of the Commission.

Given under my hand and the seal of offICe on

Bri~;tfo!~~rk0CT I I 2011,--"""",--

Texas Commission on Environmen1a1 Quality

ORDER ADOPTING REPEALED RULE AND

REVISION TO THE STATE IMPLEMENTATION PLAN

Docket Nos. 201O-2068-RUL, 201O-2074-SIP

On October 5, 2011, the Texas Commission on Environmental Quality (Commission),

during a public meeting, considered repeal of § 101.30 - 114.702, 114.706, 114.707, and

114.709. The Commission adopts this repeal, in Chapter 101, Subchapter A, Conformity of

General Federal Actions to State Implementation Plans; and a corresponding revision to the

state implementation plan (SIP). The repeal removes the General Conformity regulations in

state rule that have been rendered unnecessary by passage and implementation ofthe federal

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users

(SAFETEA-LU) in 2005. Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and

382,023 (Vernon 2001), the Commission has the authority to control the quality ofthe state's

air and to issue orders consistent v,ith the policies and purposes of the Texas Clean Air Act,

Chapter 382 of the Tex. Health & Safety Code. The proposed rule repeal was published for

comment in the May 6, 2011 issue ofthe Texas Register (36 TexReg 3035).

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code

Chapter 2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations §

51.102 and after proper notice, the Commission conducted a public hearing to consider the

repeal. Proper notice included prominent advertisement in the areas affected at least 30 days

prior to the date ofthe hearing. A public hearing was held in Austin on May 31,2011.

The Commission circulated hearing notices of its intended action to the public,

including interested persons, the Regional Administrator of the EPA, and all applicable local

air pollution control agencies. The public was invited to submit data, views, and

recommendations on the proposed repeal, either orally or in writing, at the hearing or during

the comment period. Prior to the scheduled hearing, copies of the proposed repeal were

available for public inspection at the Commission's central office and on the Commission's

Web site.

IT IS THEREFORE ORDERED BY THE COMMISSION that the repealed § 101.30 and

revision to the SIP incorporated by reference to this Order are hereby adopted. The

Commission further authorizes staff to make any non-substantive revisions to the repeal

necessary to comply v.ith Te.;ms Register requirements. The adopted repealed rule and the

preamble to the adopted repealed rule and the revision to the SIP are incorporated by

reference in this Order as ifset forth at length verbatim in this Order.
IT IS FURTHER ORDERED BY THE COMMISSION that on behalf ofthe Commission,

the Chairman spoulditranBmit~oopyof this Order, together with the repealed rule and the

revision to the SIP" t&tneRegional Administrator of EPA pursuant to the Federal Clean Air

.J '~:iAct~:FtP:;Aplq~fie,~.'#42U,S:,C9d;~Ann.§§ 7410 - 7671q, as amended.

<>'~2 ,""':. ~\!rl:' ;""·;"t'·,,, _ ,\ \"," ,Ie- i~_ •. ~;~, "II

C' S • > This\Order: :cqnstitutes th~;0rder of the Commission required by the Administrative

Procedure Ac(tl'!~Gov't Cmle,§,2001.033 (Vernon 2000 & Vernon Supp. 2005). - , ..,_ "_ ...,. ,\ ," _, H".'

,," ':_l~'i·:'.':{~;,,,,-) '_.' ,': ",' _..1:

"'-. ,; Ifariy ~~rtl(imofthis Order is for any reason held to be invalid by a court of competent

jurisdiction, ''the invalidity of any portion shall not affect the validity of the remaining

portions.

Date issued:

., Chairman
ADMINISTRATION

LEAVE POOL

sharing policy in the MBI progr with the cost sharing policy

in MBIC as it relates to person residing in federaily declared

disaster areas.

Comments The 3O-<!ay commen period ended August 29, 2011.

During this period. HHSC did n t receive comments regarding

the proposed rule change.

Legal Authority

The amendment is adopted u dar Texas Government Code

§531.033, which provides th Executive Commissioner of

HHSC with broad rulemaking authority; Human Resources

Code §32.021 and Texas G emment Code §531.021(a),

which provide HHSC with the a hority to administer the federal

medical assistance (Medicaid) gram in Texas.

This agency hereby certifies that he adoption has been reviewed

by legal counsel and found to be valid exercise of the agency's

legal authority.

Filed with the Office of the Secre ry of State on October 5,2011.

TRD-201104219

Steve Aragon

Chief Counsel

Texas Health and Human Services ommission

Effective date: October 25,2011

Proposal pUblication date: July 29, 011

For further information, please call: 512) 424-e900

• •

TITLE 28. INSURANC

PART 1. TEXAS D PARTMENT OF

INSURANCE

CHAPTER 1. GENE

SUBCHAPTER K.

28 TAC §1.1201

The Commissioner of Insuran (Commissioner) adopts new

§1.1201, conceming the agen 's sick leave pool. Section

1.1201 is adoptee without cha ges to the proposed text published in the August 19, 2011, sue of the Texas Register (36

TexReg 519B).

REASONED JUSTIFICATION. he new section is necessary to

address the administration of th agency's sick leave pool. Section 661.002(c) of the Govemm t Code requires a state agency

to adopt rules and prescribe pr dures relating to the administration of the agency sick leave 001.

HOW THE SECTIONS WILL F NCTION. The new section pre>-

vides for procedures relating to t e operation ofthe agency's sick

leave pool. The new section as blishes a sick leave pool to be

administered by the agency's D ctor of Human Resources. As

sick leave pool administrator, th Director of Human Resources

will recommend a policy, oper ing procedures. and forms for

the sick leave pool. The operat n of the sick leave pool will be

consistent with Chapter 661 of e Government Code.

SUMMARY OF COMMENTS A D AGENCY RESPONSE. The

Department did not receive any mments on the published proposal.

STATUTORY AUTHORITY. Th new section is adopted under

the Government Code §661.0 2(c} and the Insurance Code

§36.001. Section 661.002(c) of he Government Code provides

that a governing body of a st agency shall adopt rules and

prescribe procecures relating t the operation of the agency sick

leave pool. Section 36.001 of t e Insurance Code proVides that

the Commissioner of Insurance may adopt any rules necessary

and appropriate to impiement the powers and duties of the

Texas Department of Insuran under the Insurance Code and

other laws of this state.

This agency hereby certifies tha the adoption has been reviewed

by legal counsel and found to b a valid exercise of the agency's

iegal authority.

Filed with the Office of the Secr ary ofState on October 6,2011.

TRD-201104227

Sara Waitt

Acting General Counsel

Texas Department of Insurance

Effective dale: October 26,2011

Proposal publication date: August 9,2011

Forfurther information, please call: (512) 463-6327

• •

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 101. GENERAL AIR QUALITY

RULES

SUBCHAPTER A. GENERAL RULES

30 TAC §101.30

The Texas Commission on Environmental Quality (TCEQ or

commission) adopts the repeal of §101.30 without change to

the proposed text as published in the May 6, 2011, issue of

the Texas Register (36 TexReg 2B17). The text will not be

republished.

The adopted repeal will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state

impiementation plan (SIP).

Background and Summary of the Factual Basis for the Adoptee

Rule

This rulemaking action will align certain general conformity air

quality rules and definitions with feeeral regulations by repealing

§1 01.30, Confonmity of General Federal Actions to State Implementation Plans. This provision was superseded by federal regulation.

On November 16, 1994, the commission adopted Chapter 101,

Subchapter A, §1 01.30, Confonmity of General Federal Actions

to State Implementation Plan. The purpose of the rule was to establish the criteria and procedures for general conformity determinations, as required by 40 Code of Federal Regulations (CFR)

§51.851. In August 2005, the United States Congress passed

the Sale, Accountable, Flexible, Efficient Transportation Equity

Act: A Legacy for Users (SAFETEA-LU) that eliminated the requirement for states to adopt and submit general confonmity SIP

revisions. On AprilS, 2010, the EPA adopted revisions to the

ADOPTED RULES October 21,2011 36 TexReg 7167
general conformity reguialions in 40 CFR Parts 51 and 93 (75

Federal Register 17254, AprilS, 2010). The revisions made the

adoption and submittal of the general conformity SIP optional for

the state and deleted all of 40 CFR Part 51, Subpart Wexcept

for §51.851. 40 CFR §51.851 was revised to clarify that If a state

chooses to submit a general conformity SIP, it must be consistent with the requirements of 40 CFR Part 93, Subpart B. These

changes became effective on July 6, 2010.

The EPA's April 2010 revisions also added four new sections to

40 CFR Part 93: §§93.161, 93.163, 93.164, and 93.165. Under the new 40 CFR §93.161, federal agencies may negotiate

a facility-wide emissions budget 10 be incorporated into the SIP.

After the EPA approves the SIP revision, any action at the facility

can be presumed to conform if the emissions from the proposed

action along with all other emissions at the facility are within the

approved facility-wide emissions budget. Therefore, a conformity delenmination would not be necessary. The new 40 CFR

§93.163 allows alternate schedules for mitigating emissions increases. Federal agencies and states can negotiate a program

for some emissions mitigation to occurin future years, and states

can use this approach to accommodate short-term increases in

emissions if the state believes that a sUbstantial long-term reduction in emissions will result from a federal action. The new 40

CFR §93.164 allows the emissions of one precursor of a criteria

pollutant to be offset by the reduction in the emissions of another

precursor of that pollutant. For example, emissions of volatile

organic compounds could be offset by a reduction in emissions

of nitrogen oxides. Finally, the new 40 CFR §93.165 incorporates the use of early emissions reduction credits into the regulations. This section also prOVides other federal agencies with

regulations and guidance similar to the Airport Early Emissions

Reduction Credit program established by the United States Congress in the Federal Aviation Administration Reauthorization Act

of 2003.

The general conformity requirements in §101.30 mirror the fedaral requirements in 40 CFR Part 93, Subpart B and Part 51,

Subpart W, and specifically reference the now repeaied Part

51, Subpart W. Amended 40 CFR Part 93, SUbpart B continues

to subject certain federal actions to general conformity requirements without the need for identical state rules and SIPs. Therefore, repealing the state rule will not Impact program continuity,

but it will eliminate references in the state rule to repealed federal rules and the need for future state rule revisions as a result

of amendments to federal regulations.

Section Discussion

The adoption repeals §101.30, Confonmity of General Federal

Actions to State Implementation Plans.

Final Regulatory Impact Analysis

The commission reviewed the adopted rulemaking in light of the

regUlatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rulemaking action is not

subject to §2001.0225 because it does not meet the definition of

a ''major environmental rule" as defined in that statute. "Major

environmental rule" means a rule, the specific intent of which, is

to protect the environment or reduce risks to human health from

environmental exposure and that may adversely affect in a material way the economy, 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. The repeal of §101.30 is not

intended to protect the environment or reduce risks to human

health from environmental exposure to air pollutants. The re36 TexReg 7168 October 21,2011 Texas Register

peal is necessary to meet the requirements of the SAFETEA-LU

that eliminated the requirement for states to adopt and submit

general conformity SIP revisions and repeals the federal general

conformity rules referenced by §1 01.30. Therefore, the commission finds that it is not a "major environmental rule." Additionally,

the repeal does not affect in a material way the economy, a sector of the economy, productlvrty, competition, jobs, the environment, or the public health and safety of the state or a sector of

the state. Federal agencies are still subject to general conformity demonstrations under federal rules.

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 conducted a takings impact evaluation for

the adopted rulemaking in accordance with Texas Government

Code, §2007.043. The specific purpose of the adopted rulemaking is to meet federal general conformity rules by repealing

state SIP-approved rules that are now unnecessary and that reference rules repealed by the SAFETEA-LU. The adopted repeal

will not burden private, real property because general conformity requirements apply only to federai actions that potentially

impact nonattainment areas in the state. General conformity requirements are mandated by federal law, specifically 42 United

States Code, §7506(c)(1). Through this repeai, conformity

requirements are now implemented eXclusively through federal

rule. Consequently, the adopted repeal is an action reasonably

taken to fulfill an obiigation mandated by federal regulations.

Therefore, this adopted rulemaking action will not constitute a

taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found

that the adoption Is subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination

Act, Texas Natural Resources Code §§33.201 etseq., and therefore, must be consistent with all applicable CMP goais and policies. The commission reviewed this adopted rulemaking for consistency with the CMP goals and policies in accordance With the

regulations of the Coastal Coordination Council and determined

that the adopted rulemaking does not aftect any coastal natural

resource areas. The CMP goals applicable to the adopted rulemaking is the goal 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 aftected counties. The CMP policy applicable

to this adopted rulemaking action is the policy that commission

rules comply with regulations in the CFR to protect and enhance

air quality in the coastai area (40 CFR §501.32). This rulemaking adoption does not have a detrimental effect on SIP emissions

reduction obligations relating to maintenance of the ozone Na·

tionai Ambient Air Quality Standards. This adopted rulemaking

action compiies with the CFR. Therefore, in compliance with 40

CFR §505.22(e), this adopted rulemaking action is consistent

with CMP goals and policies. Promulgation and enforcement of

the adopted repeal does not violate or exceed any standards

identified in the applicable CMP goals and policies, because the

adopted rulemaking is consistent with these CMP goals and policies, and because the adopted repeal does not create or have

a direct or significant adverse effect on any coastal natural resource areas.
•

FETY AND CORRECSUBCHAPTER E. PARa E PLACEMENT AND

DISCHARGE

37 TAC §85.85

The Texas Youth Commission ( C) adopts the repeal of

§85.85, concerning Interstate Co pact for TYC Youth, without

changes to the proposed text as p blished in the September 2,

2011, issue of the Texas Register 6 TexReg 5655).

The duties and responsibilities des ribed this rule are governed

by, and more appropriately addre ed in, specific statutes and

national rules which apply to all stB s who are signatories to the

Compact, including Texas.

Texas Family Code, §60.010, co fies the Interstale Compact

for Juveniles and requires the cou s and executive agencies of

each compacting state to enforce t provisions of the Compact.

The Compact also creates the Int tate Commission for Juveniles and provides that body with au hority to promulgate national

rules that have the force and effe of statutory law in member

states. Because Texas is a mem r of the Interstate Compact

for Juveniles, TYC has a legal oblig tion to enforce the Compact

and comply with rules adopted by t e Interstate Commission for

Juveniles. There is no need for to maintafn separate rules

that require TYC to participate in he Compact and follow the

rules of the Interstate Commission or Juveniles.

The amended rule clarifies that certain screenings and assessments are conducted within 4 hours after admission to

TYC. The rule also lists the mini um areas to be addressed

in the medical and mental heal screenings. Additionally,

the amended rule establishes th t one purpose of the initial

assessment process is to identify specialized treatment needs

and begin specialized treatment p nning.

Regarding youth who have a mi imum length of stay of 12

months or longer, the amende rule no longer requires a

comprehensive psychiatric eval tion as part of the initial

assessment process if TYC rec Ives the results of such an

evaluation conducted Within the p st 90 days.

The justification for the amended Ie is the provision of timely

and appropriate and medical and ental health assessments for

youth committed to TYC.

TYC did not receive any public co ents regarding the adoption

of the amended ruie.

The amended rule is adopted un er Human Resources Code

§244.001, which requires TYC to xamine and make a study of

each youth committed to the agen y.

This agency hereby certifies thatlh adoption has been reviewed

by legal counsei and found to be a alid exercise of the agency's

legal authority.

The commission invited public comment regarding the consistency with the CMP during the public comment period and no

comments were received.

Public Comment

A public hearing Was offered on May 31, 2011. The hearing was

not officially opened because no party indicated a desire to give

comment. The public comment period opened May 6, 2011, and

closed June 6, 2011. The commission did not receive any oral

or written comments.

Response to Comments

The commission did not receive any oral or written comments on

the General Confonmity Rule repeal.

Statutory Authority

The repeal is adopted under Texas Water Code (TWC), §5.102,

concerning General Powers, §5.103, concerning Rules, and

§5.105, concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and

duties under the TWC. The repeal is also adopted under Texas

Health and Safety Code (THSC), Texas Clean Air Act (TCM),

§382.011, which authorizes the commission to administer the

requirements of the TCM; THSC, §382.013, which authorizes

the commission to designate air quality control regions to

provide adequate implementation of air quality standards; and

THSC, §382.017 which authorizes the commission to adopt

rules consistent with the policy and purpose of the TCAA.

The repeal implements TWC, §§5.102, 5.103, and 5.105; and

THSC, §§382.011, 382.Q13, and 382.017.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on October 7, 2011.

TRD-201104229

Robert Martinez

Director, Environmental law Division

Texas Commission on Environmental Quality

Effective dale: October 27,2011

Proposal publication date: May 6, 2011

For further information, please call: (512) 239-2548

•

TITLE 37. PUBLIC S

nONS

PART 3. UTH COMMISSION

CHAPTER 85. ADMIS ION, PLACEMENT,

RELEASE, AND DISC RGE

SUBCHAPTER A. DE INITIONS;

COMMITMENT AND CEPTION

37 TAC §85.5

The Texas Youth Commission (TYC) adopts amendments to

§85.5, concerning Initial Ass ment, without changes to the

proposed text as pUblished in t e September 2, 2011, issue of

the Texas Register (36 TexReg 653).

Filed with the Office olthe Secreta

TRD-201104220

Cheryln K. Townsend

Executive Director

Texas Youth Commission

Effective date: November 1, 2011

Proposal publication date: September

For further information, please call: (5

• •

of State on October 6, 2011.

,2011

) 424-6014

•

ADOPTED RULES October 21, 2011 36 TexReg 7169