Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

May 15, 2006 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency - Region 6 

1445 Ross A venue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

Docket Nos. 2005-1442-RUL 

2005-1443-RUL 

2005-1444-RUL 

On April26, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to 

the State Implementation Plan (SIP). 

The Commission adopted amendments to §§114.6, 114.312, 114.313, 114.315- 114.318 in 30 Texas 

Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter H, 

Low Emission Fuels, Division 2, Low Emission Diesel; and corresponding revisions to the SIP. This 

rulemaking amends the definition of additive; specifies that the executive director must consult with EPA 

before approving an alternative test method; revises the documentation requirements for the alternative 

diesel formulation approval procedures; revises the minimum requirements for candidate fuel formulations 

used for testing purposes; specifies requirements for the test engine used for alternative diesel fuel 

formulation testing; adds clarifying language to the alternative test sequences; revises the emission 

comparison requirements to be more consistent with similar California Air Resource Board regulations; 

clarifies demonstration methods for alternative diesel formulation approval; clarifies records requirements 

relating to sampling; revises reporting requirements for producers with alternative emission reduction 

plans; establishes procedures that require producers to submit alternative emission reduction plans that are 

either developed in accordance with the EPA's Unified Model or use diesel credits from early introduction 

of low-sulfur gasoline in affected counties; and corrects citations and cross-references. (Rule Project No. 

2005-063-114-EN) 

The Commission also adopted amendments to §114.512 and §114.517 in 30 TAC Chapter 114 and 

corresponding revisions to the SIP, This rulemaking implements House Bill1540, 79th Legislature, 2005, 

Regular Session, as well as adds language that the Austin Early Action Compact members have requested 

be added so as to more greatly protect public health and safety. (Rule Project No. 2005-064-114-EN) 

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

Page 2 

The Commission adopted the repeal of §§114.3 114.150, 114.151, and 114.153 - 114.157 in 30 TAC 

Chapter 114 and corresponding revisions to the SIP. This action repeals the state regulations implementing 

the Texas Clean Fleet Program in its entirety, in accordance with Senate Bill 1032, 79th Legislature, 

Regular Session, 2005. (Rule Project No. 2005-067-114-EN) 

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

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

revisions. 

c~~~'-{-j ?J/ubK1threen Hartnett White 

Chairman 

KHW/lb 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 
Texas Commission on 

Environmental Quality 

Public Hearing 

January 10, 2006 

Concerning Revisions to 30 TAC Chapter 114, 

Control of Air Pollution from Motor Vehicles 

House Bill 1540: Locally Enforced Idling Rule Amendment 

Rule Project No. 2005-064-114-EN 
11\JTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on January 10, 

2006, to receive testimony regarding revisions to 30 TAG Chapter 114, Control of Air Pollution from Motor 

Vehicles; and corresponding revisions to the Texas state implementation plan. 

Amended §114.512 and §114.517 implement House Bill1540, 79th Legislature, 2005, Regular Session, as 

well as add language that the Austin Early Action Compact members have requested be added so as to more 

greatly protect public health and safety. 

The comment period closed at 5:00p.m. on January 17, 2006. 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 (including Order and Texas Register publication) 

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 Santos Olivarez at (512) 239-4718. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

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

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

Austin American-Statesman: December 5, 2005 

Fort Worth Star-Telegram: December 8, 2005 

Houston Chronicle: December 5, 2005 

Beaumont Enterprise: December 5, 2005 

Corpus Christi Caller-Times: December 3, 2005 

El Paso Times: December 5, 2005 

San Antonio Express-News: December 5, 2005 

Tyler Morning Telegraph: December 5, 2005 

Victoria Advocate: December 6, 2005 

2. Publication of the proposed rules in the November 25, 2005, issue of the Texas Register 

(30 TexReg 7828). 

3. Publication of the Notice of Public Hearing in the December 16, 2005, issue of the Texas Register 

(30 TexReg 8473). 

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

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Dallas Department of Environmental and Health Services 

City of Dallas Department of Aviation 

City of Fort Worth Environmental Management Department 

City of Houston Department of Health and Human Services 

City of Victoria Planning Department 
East Texas Council of Governments 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Harris County Pollution Control Department 

Houston-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

U.S. Environmental Protection Agency 
Example of Newspaper Classified Ad 

Austin Ame_r1can-Statesman IIi statesman.com 1 Monday, December 5, 2005 

NOTICE Of PUBLIC >!fARING RY THE TEXAS COMMISSION ON [NVII10NMENTAL OUALn\' ON PnOrOSED REVISIONS TO 30 T AC CliAMEH 11•1 AND TO THE STATE IMPLEMENlA TIOI< PLAN lhl:' lex;~s (ontmi!sion on ~nvi· 

ronrnenlal Oualnv will conduct a 

public hea1lng to lfCeive lesli· 

rnonv conrerning revrs1ons ro 30 TAC Chaplel 114. (onuol of Au 

J.>olluunn from Moto1 Vehiclt'!;, 

:-~~~~h tile <~~~~lUII:'~r~~~ of~~~~~ ~38.2.017; Texa~. Govt"rnmem 

Codtc>, Chnpttol ~001. Subcholfller 

8; and -10 C01.ie of FPcU~iill Heoularion~ §51.102, of rhe Unifed Srale~ Environnu•ntill Prorenio:r A~la>llc_y (!:PAl regulations con cernin9 slat~ ilnplt:ment<aliorl 

c~~~~!f~PSi~-, A ,e~~\,1:;, h~=~~~~~ '~:~ January 10. 2006, at 10:00 a.m. in 

Uuilding (, Hoorn 2015. at the> 

lexJ3 Commission on Envimn· 

mental Qu\lhly wmrleK located 

at 12100 Pml·. 35 Circle. lh£: lu~Ming will be .~JnJCH!red foJ the 

recr.ipt of oroll or written corn· 

n"\e~H ~~· lnt.¥.resred persom. Heg1stri'lllon w1ll begin 30 mi11· 

~~j~aFsr~~a~t~~!~n e;r~~~~ ~~:: ten stalemenn WhE"fl called 

~pon _In. order cf registr<nion. A 

tum~ hmn may be eStrlbiished at 

the hearing tc.• <l!Jsure tha1 

enough lime is ;~!lowed for every 

JnrPrested peTSOil l"o speak. Thrre will be no open diSCllssion dllr-

~~irf11~~~~~~~; :ur~e~:~~~~~ to dlKUSS the propo§al 30 minutes pnor to I he hearing and will 

~~§~h~ 1~~~:~~.s ~~~or~r~~~s=~ rulemaking would repe;~t :he 

§tatr. regularlon~· implememing 

the Texa$ Clean Fleet Proori'ln in 

~~n=~ir~~~· ~~~3~~c~~~hfl{~o~l~~ lure, :was. !Rule Proiect -. No. 200S-061-11HNJ . 

In addition, thP oroposeri 

rutemt~kin~t would iffiplement 

House 13itl 1540, 79th Legislalllre 

2005, as well a~ add timouao~ that thP. Austin Early ActiOn 

Compact mP.ml.Jer~ have 

requl•Hed bt" added to more 

grea!IV protec! public healrh and 

saiEI\'· \Rule Projec.t No. 

:mo!>-06·1·114-fNl 

Tlw p~oposed rul('rnaking would 

alsc- amend lhe definition at attdinve: ~pccif)• that rhe 

exec.utivr. d~reoor n1ust consul! 

with the Unirecl Sti'IIPS Environmem~t Protection Agentv (EPA) 

before <'Pproving an· raltfmi'ltive rest n1ethod; revtse the 

dowm!"mation requiremenrs lor 

tht' rJiterni'ltiv~ dif's~l formulation 

approval procedures; revise rhP. 

n~inrnrum requirf'mem~ fur can· 

~~~~~~ed:~~~~ :~~;~::,~i~~~~ ,~~~~~W pil!lS P~' million sulfln to be 

~~~=~ ify :h~t rt~:s~~i1 ~n~i~'J ~~=-d lor alterntHi\'t:' diPsel fLiP/ lormu· 

lrrt_io_n tesling ~nu~t hilvt? rr maunnrnr of l:?~ how~. or use 

ant~ e:.:hlt~il . ~t.lbl~ opt>ration 

bpfme begmnm9 the te!.tintr and 

must nm exrP:P.CI 110~\-. 01 iu 

applicable exllrrust em1ssion 

slandard~ when· u~lllCl tht? 

retercnce fuel; elder cl~rifymg 

l;~ngu.lQ'i' Ia tile alr""m~ltivP. test sr.qucnce~ to ~pecHy tlw numl>er 

of hot Harr test tycl~;s that 111wt 

be pot.·r!ormecl for e.1ch sequence, 

II"VI~~-· the t"nmston c.cHn[.lclri~on 

r~:>qunt'rn~n!S to be rnme consis· 

tent With srmilm (C'IIifOrlll<l Air P.esow_c£' Eloard r£~qulation.s bv 

renlm'lll(J the emisSions ol tor~\ 1 

hydrocarbon~ nHCI <Inti non· I 

m•·'lh;me hvd1ocarbOr1~- INMHC) 

h(•rn the comp.1nson c~lc.ulation 

but ~p£'cif1•inq that thC' erniHiOrl< 

ct TH(. (lr\d NMHC n! th~ 

o:andidi'll~ fuel mu~l not exceed thE' ermss1on c:ertlfrc<~tron 

st;~ndrrrds appllcabl~ 1o the \'E'Cir 

rnociel of the lest l'ngine; cl~rify 

~~a~ a~~ ~l;n~l~!~ t ~~~ ;u ~ c.~st ;,~~~~~~~~ declarrrm tire appropri(ltf' i'110nl?.IK hvdrac.:~rbon ccnten•. 

Han~l .. ltd. or thr. J.uel; '.evi~e '.' I ~~!~n? .. ~~~ur~f'lllf'~t~ tor 

producen wilh ollterna\ive emis· 

sion reduction plans to includ~ 

information in their qutlrterly 

report th~t is req,tircd ro be cotl~cred 111 accord;mce wilh the 

so\mpling and testing 

requireffienrs; e~l"i:lblish proce"-

du.-e~ thaL requtr-Ec prod\!Cer~ to 

~ubmil alrernativ.? emission 

reduction plans tl1a: ate devel- oped in accordilnce with the EPA'S Unified mod~l to 

demonstrate that the e~verage of 

atl on-road diesel fuel produced 

~~~~~~~ff-~~:d f~:e~!?:.rs~~~~~~.1 ~~ oftered _tor !lupply by the 

t~~o~~~~r :~,!~~~~~~~~s<a~~!:;~ s.s~:.u redllctlon in nitrogen oxide 

emiuions for the yeM 2001, al\ri 

ill least a 6.l'Jt~ reduction from 

~~~~~~~~f~~t" ~:~;o;;~~~~~~~~~~: usc in tht' nffccLed colmlies, ami 

allow altcrntllivc emission rl.'!duction plans to use die).el 

credits from early gasoline ~ulfur 

1·edur.11on th.H (an only be 

•-:~n~rated hom the qa!iollne 'IUpphed lly tl1c- produce"r to tile auaimnt:!nl counties in 2003, 1()().4, c1nd 2005. and can onlv be 

used to demonstrate complr.lnl~<' 

through DEcember 31, 2010, in 

auainmem coumieo!i within rile 

ll.'!xas tow emission diesel control 

area: and correct citalions cmd cross-rE"ierenCe!>. (Rule Project 

No. 200S-063-II-1-EN) Persom who have ~pecial comlllllnrcation or O(her accommodation needs whf> are 

planning to cnl!nd the hearing 

should conla.::r Holly Vierk, Offic.e 

ol Legal Services. at i512) 

239·0177. Hequem should be made as fat in adllil!lCt' a~ 

JJOSsible 

Wrinen commen1s may ~ 

submitted 10 Br01ndon Smith. MC 206, Chief Engineer's Office. 

Texas Commi§5iou orl Environme>nt"'l Quality r•. 0. l:ioA 

130B7, Auslin. Texas "/871 \·30BJ; 

liut';d lr• iS I~) ~39 56B7, ur 

emr11lcd to 

5iPillle~~~tceq.~tale.rx.us. All commems stmull! relt:renu.- m~ 

rule projec1 number!. 1hat thev 

per\.:1in tl.:•. CllJHmenb must ~ 

leCt:.'ived by 5:00p.m on Jut wary 17. :!006. Th~ prnpo~t!t1 1ules may be: viewed on thtcommi~~lon·:. Well sue ill 

llli[I://WwW.lr.eq.SiiHt:.IX.ll~/lliiV/ 

ntlesJpropos~_;;dopt. htnll. Fm 

ltHTht!r in(orm<uion. pl~~se con· lilCl Mum~ Brown. Au Qu<Jiity 

PI<Jnnut\J .1nrl hnplemenl.liiDn 

Division. ~11 (Sl2.) :uc;. \'lJ!Ior Erik Gribbin. Air Oullh\\' fll;umiuq .1nd 

hnplenH'nl<liiOil [)i·lli)IIJIO. at·(~ 121 

"2::W-::!S90 

ls~uP.(! in Austin I ex<J~. on 

Novt:rnh.:; 30, ~uo~ 

-----
The Texas Commission on Environm {a! Quality (TCEQ or commission) staff is providing an opportuni for written public comment on 

the listed Agreed Orders (AOs) in ace rdance with Texas Water Code 

(TWC), §7.075. Section 7.075 requi es that, before the commission 

may approve the AOs, the comrnissi n shall allow the public an opportunity to submit written commen on the proposed AOs. Section 

7.075 requires that notice of the oppo unity to comment must be published in the Texas Register no later th · the 30th day before the date on 

which the public comment period clos s, which in this case is January 

16, 2006. Section 7.075 also require that the commission promptly 

consider any written comments recei d and that the commission may 

withdraw or withhold approval of an 0 if a comment discloses facts 

or considerations that the consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules 

within the commission's orders and jrmits issued in accordance with 

the commission's regulatory authori . Additional notice of changes 

to a proposed AO is not required to .e published if those changes are 

made in response to written commen s. 

A copy of e~ch proposed AO is avail ble for public inspe~tion at b_oth 

the commissiOn's central office, locattid at 12100 Park 35 Circle, Building A, 3rd Floor, Austin, Texas 78753~.· (512) 239-3400 and at the app.licable regional office listed as follows Comments about an AO should 

be sent to the attorney designated for e AO at the commission's central office at P. 0. Box 13087, MC 17~, Austin, Texas 78711-3087 and 

must be received by 5:00p.m. on J~'' uary 16,2006. Comments may 

also be sent by facsimile machine t the attorney at (512) 239-3434. 

The designated attorney is available t discuss the AO and/or the comment procedure at the listed phone mhnber; however, §7.075 provides 

that comments on an AO should be submitted to the commission in 

writing. 

(1) COMPANY: AI Barkaat Enterp,·ses, Inc. dba Amans Grocery 

Store; DOCKET NUMBER: 2005 0184-PST-E; TCEQ ID NUMBERS: 36861 and RN102719895; .LOCATION: 703 East Second 

Street, El Campo, Wharton Coun , Texas; TYPE OF FACILITY: 

convenience store with retail sales gasoline; RULES VIOLATED: 

30 TAC §37.815(a) and (b), by f: iling to demonstrate acceptable 

financial assurance for taking correo;ive action and for compensating 

third parties for bodily injury and woperty damage caused by accidental release arising from the operation of petroleum underground 

storage tanks (USTs); PENALTYi $1,120; STAFF ATTORNEY: 

Arnie Richardson, Litigation Divieyion, MC 175, (512) 239c2999; 

REGIONAL OFFICE: Houston Re~ional Office, 5425 Polk Avenue, 

Suite H, Houston, Texas 77023-148~, (713) 767-3500. 

(2) COMPANY: American Chrom~ & Chemicals L.P.; DOCKET 

NUMBER: 2000-0711- MLMfE; TCEQ ID NUMBER: 

RN100210814; LOCATION: 3800: Buddy Lawrence Drive on the 

south bank of the Corpus Christ{ Inner Harbor, Corpus Christi, 

Nueces County, Texas; TYPE OF ~FACILITY: manufacturing plant 

for processing chromite ore and ~oducing chromium compounds; 

RULES VIOLATED: 30 TAC §335f4 and §327.5, and TWC, §26.121 

and §26.266, by failing to preve~t an unauthorized discharge of 

groundwater contaminated with industrial waste that originated from 

the facility into surface waters of lhe state because the coffer dam 

groundwater recovery system was hot in operation from January 17 

-January 27, 2000; 30 TAC §305.125(1), Texas Pollutant Discharge 

Elimination System Permit Num~er 00349, Effluent Limitations 

and Monitoring Requirement I, arid TWC, §26.121, by failing to 

comply with permitted limits at O~tfall!OlA; 30 TAC §116.115(c) 

and Air Permit Number 7736, Special Condition Number 1, by 

failing to comply with special pe!T\'lit conditions by allowing nitrous 

oxide emissions in excess of the permit limit for a failed stack test 

dated June 29, 2000; PENALTYj $20,625; STAFF ATTORNEY: 

Arnie Richardson, Litigation Divfsion, MC 175, (512) 239-2999; 

r REGIONAL OFFICE: Corpus Ohristi Regional Office, 6300 Ocean 

Drive, Suite 1200, Corpus ChristijTexas 78412-5503, (361) 825-3100. 

(3) COMPANY: Exxon Mobil Gorporation dba ExxonMobil Refining & Supply Company; DOC~T NUMBER: 2004-0818-AIR-E; 

TCEQ ID NUMBERS: HG-0232~Q and RN102579307; LOCATION: 

2800 Decker Drive, Baytown, !Harris County, Texas; TYPE OF 

FACILITY: petroleum refining dJant; RULES VIOLATED: 30 TAC 

§ 116.715(a), TCEQ Flexible Pe~it Number 18287/PSD-TX-730M2, 

and Texas Health and Safety Coqe, §382.085(b), by failing to prevent 

unauthorized emissions; PENA~TY: $7,500; STAFF ATTORNEY: 

Laurencia Fasoyiro, Litigation Qivision, MC R-12, (713) 422-8914; 

REGIONAL OFFICE: Houston ~egional Office, 5425 Polk Avenue, 

Suite H, Houston, Texas 77023-l486, (713) 767-3500. 

(4) COMPANY: MBE, Inc. (lba Bryan's 2 and dba Bryan's 3; 

DOCKET NUMBER: 2003- !J44-PST-E; TCEQ ID NUMBERS: 

RN101432334 and RN102375$57; LOCATION: 901 East Main, 

San Augustine, and 462 Stat~ Highway 7 East, San Augustine 

County, Texas; TYPE OF FA<}ILITY: convenience store with retail sales of gasoline; RULES ~OLATED: at Bryan's 2, 30 TAC 

§334.45(c)(3)(A), by failing toiinstall a secure anchor at the base 

of the dispenser in each pressurized delivery or product line and 

a UL-listed emergency shutoflli valve in piping systems in which 

regulated substances are conveyed under pressure to an aboveground 

dispensing unit; 30 TAC §37.81$(a) and (b), by failing to demonstrate 

acceptable financial assurance ror taking corrective action and for 

compensating third parties for !bodily injury and property damage 

caused by accidental releases ruising from the operation of petroleum 

USTs; and 30 TAC §334.48(c), llY failing to conduct inventory control 

and reconciliation for all USTs i4volved in the retail sales of petroleum 

substances used as motor fuel; a~ Bryan's 3, 30 TAC §334.45( c)(3)(A), 

by failing to install a secure aljchor at the base of the dispenser in 

each pressurized delivery or prqduct line and a UL-listed emergency 

shutoff valve in piping system)) in which regulated substances are 

conveyed under pressure to a'p aboveground dispensing unit; 30 

TAC §334.50(b)(2)(A)(i)(III), by failing to test a line detector at 

least once per year for perfo~ance and operational reliability; 30 

TAC §334.48(c), by failing td,l reconcile inventory control records 

on a monthly basis in a ma$er sufficiently accurate to detect a 

release which equals or exceed~ the sum of I% of the total substance 

flow-through for the month pluS, 130 gallons; and 30 TAC §334.22(a) 

and §334.128, by failing to pay UST and aboveground storage tank 

fees; PENALTY: $18,000; STAjFF ATTORNEY: Courtney St. Julian, 

Litigation Division, MC 175, (~12) 239-0617; REGIONAL OFFICE: 

Beaumont Regional Office, 38!70 Eastex Freeway, Beaumont, Texas 

77703-1892, (409) 898-3838. i 

j TRD-200505616 ( . 

Stephanie Bergeron Perdue i 

Acting Deputy Director, Of ce o~ Legal Services 

Texas Commission on Environmental Quality 

Filed: December 6, 2005 l 

I 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 114 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony concerning revisions to 

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

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

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code 

of Federal Regulations §51 .I 02, of the United States Environmental 

Protection Agency (EPA) regulations concerning state implementation 

plans (SIPs). 

IN ADDITION December 16, 2005 30 TexReg 8473 
A public hearing will be held in Austin, Texas, on January 10, 2006, 

at 10:00 a.m. in Building E, Room 201S, at the Texas Commission 

on Environmental Quality complex located at 12100 Park 35 Circle. 

The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior 

to the hearing. Individuals may present oral or written statements when 

called upon in order of registration. A time limit may be established at 

the hearing to assure that enough time is allowed for every interested 

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

however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before 

and after the hearing. 

The proposed rulemaking would repeal the state regulations implementing the Texas Clean Fleet Program in its entirety, in accordance 

with Senate Bill l 032, 79th Legislature, 2005. (Rule Project No. 2005-

067-114-EN) 

In addition, the proposed rulemaking would implement House Bill 

1540, 79th Legislature, 2005, as well as add language that the 

Austin Early Action Compact members have requested be added 

to more greatly protect public health and safety. (Rule Project No. 

2005-064-114-EN) 

The proposed rulemakingwould also amend the definition of additive; 

specify that the executive director must consult with the EPA before approving an alternative test method; revise the documentation requirements for the alternative diesel fonnulation approval procedures; revise 

the minimum requirements for candidate fuel formulations to only allow diesel fuel with less than 15 parts per million sulfur to be used for 

testing purposes; specify that the test engine used for altemative diesel 

fuel formulation testing must have a minimum of 125 hours of use and 

exhibit stable operation before beginning the testing and must not exceed 110% of its applicable exhaust emission standards when using the 

reference fuel; add clarifying language to the alternative test sequences 

to specify the number of hot start test cycles that must be performed 

for each sequence; revise the emission comparison requirements to 

be more consistent with similar California Air Resource Board regulations by removing the emissions of total hydrocarbons (THC) and 

non-methane hydrocarbons (NMHC) from the comparison calculation 

but specifying that the emissions ofTHC and NMHC of the candidate 

fuel must not exceed the emission certification standards applicable to 

the year model of the test engine; clarify that only those records relating to sampling require a statement declaring the appropriate aromatic 

hydrocarbon content standard ofthe fuel; revise reporting requirements 

for producers with alternative emission reduction plans to include infOlmation in their quarterly report that is required to be collected in 

accordance with the sampling and testing requirements; establish procedures that require producers to submit alternative emission reduction 

plans that are developed in accordance with the EPA's Unified model to 

demonstrate that the average of all on-road diesel fuel produced in any 

given calendar year that is sold, offered for sale, supplied, or offered for 

supply by the producer in the counties affected by these rules achieves 

at least a 5.5% reduction in nitrogen oxide emissions for the year 2007, 

and at least a 6.2% reduction from the average of all non-road diesel 

produced by the producer for use in the affected counties, and allow 

alternative emission reduction plans to use diesel credits from early 

gasoline sulfur reduction that can only be generated from the gasoline 

supplied by the producer to the attainment counties in 2003, 2004, and 

2005, and can only be used to demonstrate compliance through December 31, 20 I 0, in attainment counties within the Texas low emission 

diesel control area; and correct citations and cross-references. (Rule 

Project No. 2005-063-114-EN). 

Persons who have special communication or other accommodation 

needs who are planning to attend the bearing should contact Holly 

Vierk, Office of Legal Services, at (512) 239-0177. Requests should 

be made as far in advance as possible. 

Written comments may be submitted to Brandon Smith, MC 206, 

Chief Engineer's Office, Texas Commission on Environmental Quality, P. 0. Box 13087, Austin, Texas 78711-3087; faxed to (512) 

239-5687; or e-mailed to siprules@tceq.state.tx.us. All comments 

should reference the rule project numbers that they pertain to. Comments must be received by 5:00p.m. on January 17, 2006. The 

proposed rules may be viewed on the commission's web site at 

http://wv.rw.tceq.state.tx.uslnavlrules/propose_adopt.html. For further 

information, please contact Morris Brown, Air Quality Planning and 

Implementation Division, at (512) 239-1438 or Erik Gribbin, Air 

Quality Planning and Implementation Division, at (512) 239-2590. 

TRD-200505569 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: December 1, 2005 

Notice of Water Rights App ication 

Notice issued November 30, 2 05: 

APPLICATION NO. 5893; B anch Double Diamond Development 

Corp., 415 Highway 46 West, Boeme, Texas, 78006, applicant, has 

applied to the Texas Commissi n on Environmental Quality (TCEQ) 

for a Water Use Permit pursu nt to 11.143, Texas Water Code, and 

TCEQ Rules 30 Texas Admi istrative Code (TAC) 295.1, et seq. 

Blanch Double Diamond De elopment Corp., applicant, seeks to 

maintain an existing, exempt n-channel dam and reservoir with a 

capacity of 25 acre-feet of wa er (normal maximum operating level) 

on an unnamed tributary ofDe~p Hollow Creek, tributary of Frederick 

Creek, tributary of Cibolo Crepk, tributary of the San Antonio River, 

San Antonio River Basin, wit11 a surface area of 3.5 acres of land for 

in-place recreation purposes itt Kendall County. The dam is located 

in the C&M. R.R. Co. OrigintSurvey No. 283, Abstract No. 746. 

Station 0 +00 on the centerlin. of the dam is S 72.858 W, I ,462 feet 

from the northeast corner oft e C&M. R.R. Co. Survey at Latitude 

29.753 N, Longitude 98.792 · , approximately 5.0 miles southwest 

direction from the City ofBoefne, Kendall County, Texas. Ownership 

of the innundated land is evidenced by a General Warranty Deed 

filed as Volume 866, Pages 17~ t~1ough. 482 ~n the official r~cords 

of Kendall County. The Col~mlsSIOn wlll rev1ew the apphcatwn as 

submitted by the applicant an may or may not grant the application 

as requested. The application . as received on March 24, 2005. Additional information was receiv don June 14, August 4, and November 

3, 2005. The application was ~eclared administratively complete and 

filed with the Office of the C~ief Clerk on August 12, 2005. Written 

public comments and requests for a public meeting should be received 

in the Office of Chief Clerk, at the address provided in the information 

section below, within 30 days jof the date of newspaper publication of 

the notice. 

1

. INFORMATION SECTION 

A public meeting is intended or the taking of public comment, and is 

not a contested case hearing. 

The Executive Director can cJnsider approval of an application unless 

a written request for a contest{d case hearing is filed. To request a contested case hearing, you must fubmit the following: (I) your name (or 

for a group or association, an pfficial representative), mailing address, 

daytime ~hone number, and frx number, if any: (2) applicant's name 

and penmt number; (3) the st~tement "[I/we] request a contested case 

30 TexReg 8474 December 16, 2005 Texas Register 
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, 

Austin.) 

STATUTORY AUTHORITY 

The repeals are proposed under TWC, §5.1 02, concerning General Powers; §5.1 03, concerning Rules; and §5.1 05, concerning 

General Policy, which provide the commission with the general 

powers to carry out its duties and authorize the commission to 

adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of THSC, Chapter 382 (also known as 

the Texas Clean Air Act). The repeals are also proposed under 

THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent with the protection of public health, general 

welfare, and physical property; §382.011, concerning General 

Powers and Duties, which authorizes the commission to control 

the quality of the state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's 

air; and §382.019, which authorizes the commission to adopt 

rules to control and reduce emissions from engines used to propel land vehicles. 

The proposed repeals implement THSC, §§382.002, 382.011, 

382.012, and 382.019. 

§114.150. Requirements for Mass Transit Authorities. 

§114.151. Requirements for Local Governments and Private Entities. 

§114.153. Exceptions. 

§ 114.15 4. Exceptions for Certain Mass Trans it Authorities. 

§114.155. Reporting. 

§ 114.15 6. Record Keeping. 

§114.15 7. Low Emission Vehicle Fleet Program Compliance Credits. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on November 10, 

2005. 

TRD-200505192 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: December 25, 2005 

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

SUBCHAPTER J. OPERATIONAL CONTROLS 

FOR MOTOR VEHICLES 

DIVISION 2. LOCALLY ENFORCED MOTOR 

VEHICLE IDLING LIMITATIONS 

30 TAC §114.512, §114.517 

The Texas Commission on Environmental Quality (commission 

or TCEQ) proposes amendments to §114.512 and §114.517; 

and corresponding revisions to the state implementation plan 

(SIP). 

The amended rules will be submitted to the United States Environmental Protection Agency (EPA) as proposed revisions to the 

SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

The concept of an early, voluntary eight-hour air quality plan, or 

early action compact (EAC), was endorsed by EPA Region 6 in 

June 2002, then slightly modified and made available nationally 

in November 2002. The EACs are tailored to local needs and 

driven by local decisions. A key point of an EAC is the flexibility 

afforded areas to select emission reduction measures. Based 

on quality science, signatories may choose the combination of 

measures that meet both local needs and emission reduction 

targets. Each EAC recognizes that not every entity within the 

EAC area will implement every measure. 

Chapter 114, Subchapter J, Operational Controls for Motor Vehicles, Division 2, Locally Enforced Motor Vehicle Idling Limitations rule, was proposed at the request of the local air quality 

planning organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for use as a control strategy in its EAC agreement to maintain attainment with the 

federal eight-hour ozone national ambient air quality standards. 

The rule package also provided local governments in other areas 

of the state the option of applying these rules in their areas when 

additional control measures were needed to achieve or maintain 

attainment of the federal eight-hour ozone standard in the future. 

The rules were adopted on November 17, 2004. 

The December 18, 2002, EAC committed the commission to incorporate a Clean Air Action Plan for the Austin area into the 

SIP and adopt a revised SIP by December 31, 2004. The idling 

restriction rule was part of that attainment demonstration. While 

the Austin Metropolitan Statistical Area (MSA) was monitoring 

attainment with the eight-hour ozone standard, future monitoring could have shown nonattainment. Therefore, members of 

the Austin MSA worked to ratify a memorandum of agreement 

(MOA) with the TCEQ that would allow them to enforce the idling 

restriction rule in their region. The Locally Enforced Idling Restriction MOA was signed by the commission and members of 

the Austin EAC area on August 1, 2005. 

In meetings with officials of the Austin EAC to develop the 

idling rule MOA, concerns arose regarding language in the 

locally enforced idling restrictions. Austin EAC members voiced 

concern that parts of §114.517, Exemptions, were ambiguous 

and needed revision. Members of the EAC felt that §114.517(7) 

and (8) could be misinterpreted to mean that a transit vehicle 

could idle for a total of one hour. There was also concern 

that the commission's rule conflicted with Texas Department 

of Transportation (TxDOT) guidelines for vehicle idling by employees. Austin EAC members brought to the commission's 

attention TxDOT's policy regarding idling. The guidelines advise 

employees to idle their vehicles to operate the air conditioner or 

heating system for employee health and safety while they perform an essential job function related to roadway construction or 

maintenance. In many instances on-road and off-road vehicles 

at roadway construction sites must remain in idle mode during 

normal operations. The commission agrees with the Austin EAC 

members that the locally enforced idling restrictions should be 

revised in light of these concerns. At the request of the Austin 

30 TexReg 7828 November 25, 2005 Texas Register 
EAC members, the commission is proposing revisions to the 

locally enforced motor vehicle idling rule. 

The commission ~s al.so proposing revisions to the idling rule 

to conf?rm to leg1slat1on passed in 2005. On May 16, 2005, 

the leg1slature passed House Bill (HB) 1540, amendments to 

Texas Health and Safety Code, Chapter 382, Subchapter B, 

§382.0191, Idling of Motor Vehicle While Using Sleeper Berth. 

The bill, effective September 1, 2005, states that the "commission may not prohibit or limit the idling of a motor vehicle when 

idling is necessary to p.ower a heater or air conditioner while a 

driver is using the vehicle's sleeper berth for a government-mandated r~st ~eriod." In addition, th.e bill states that, "no driver using 

the veh1cle s sleeper berth may 1dle the vehicle in a school zone 

or within 1 ,000 feet of a public school during its hours of operation," or else be subject to a fine not to exceed $500. 

This proposed rulemaking will amend the rule on idling limits for 

gasoline and diesel-powered engines in motor vehicles within 

the jurisdiction of any local government in the state that has 

signed an MOA with the commission to delegate enforcement 

to that local government. Local enforcement is crucial to the effectiv~ implem~ntation of rules to reduce the extended idling of 

gasol1ne and d1esel-powered heavy-duty vehicles and will help to 

ensure the reduction in nitrogen oxide (NO,) and volatile organic 

compound (VOC) emissions, which is needed by local governments to achieve or maintain attainment of the federal eight-hour 

ozone standard. These proposed idling limits will lower NO 

emissions and other pollutants from fuel combustion. Because 

NO, is a precursor to ground-level ozone formation reduced 

emissions of NO, will result in ground-level ozone red~ctions. 

Currently, there are no federal regulations governing idle time for 

motor vehicles. Therefore, the state has the authority to control 

motor vehicle idling. The requirements developed by the commission for this NO, emission reduction strategy will result in restrictions on the time allowed for motor vehicle idling. 

Modeling assessing the benefits of this NO emission reduction 

strategy demonstrated that by the year 2007 the idling limits will 

reduce NO, emissions in the Austin MSA by 0.19 tons per day. 

The commission believes that this proposed amendment to the 

rule will not reduce the amount of reductions demonstrated. 

SECTION BY SECTION DISCUSSION 

The proposed amendment to §114.512, Applicability, would 

amend the existing paragraph as subsection (a). The proposed 

amendment to §114.512 would also add subsection (b), which 

would establish that, "no driver of a motor vehicle may use the 

vehicle's sleeper berth for a government-mandated rest period 

if the vehicle is within a school zone or within 1 ,000 feet of a 

public school during its hours of operation." Any offense under 

proposed subsection (b) is punishable by a fine not to exceed 

$500. The requirements under subsection (b) will expire on 

September 1, 2007, just as in HB 1540. 

Proposed §114.517(1) would still provide an exemption for a 

motor vehicle that has a gross vehicle weight rating of 14,000 

pounds or less, but only if before September 1, 2007, it does 

not contain a sleeping berth. That is to say, after September 

1, 2007, any vehicle that has a gross vehicle weight rating of 

14,000 pounds or less will be exempt from any idling restriction. 

Until then, these vehicles that contain a sleeper berth are 

subject to the rule. The proposed amendment to §114.517(4) 

would replace the phrase, "not including" with "other than." 

The proposed amendment to §114.517(7) would replace the 

phrase, "comfort/safety" with "comfort and safety." The proP,osed a.m;nd~ent to §11.4.517(4) would also add the phrase, 

or public. ThiS change IS necessary to combine exemptions 

§114.517(7) and (8), thereby clarifying the intent of the rule. 

The pr~pos.e~ amendment to §114.517(8) eliminates language 

exe~pt1ng idling up to 30 minutes for, "the primary propulsion 

engme of a motor vehicle used for transit operations." The 

proposed amendment to §114.517(8) would add a new exe~ption for, "the primary propulsion engine of a motor vehicle 

be1ng used to operate the air conditioning or heating system 

for ~mployee health or safety when the employee is using the 

vehicle t~ perform ~n essential job function related to roadway 

construction or maintenance." One reason this exemption has 

been added is because in most types of construction equipment 

(e.g., dump trucks, etc.) the operator must remain in the vehicle 

throughout the workday for both operational and safety reasons. 

Furthermore, most heavy-duty, on-road vehicles such as dump 

trucks, asphalt maintenance units, and aerial devices have 

power tak~off units that operate ancillary equipment attached 

to t~e v~h1cle and that ar~ powered by the primary propulsion 

eng1ne. rherefore, the pnmary propulsion engine must remain 

in an idling mode. Proposed §114.517(11) would allow for the 

exemption of, "the primary propulsion engine of a motor vehicle 

when it is necessary for the driver to power a heater or air 

conditioner while he/she is using the vehicle's sleeper berth for 

a. government-mandated rest period." Section 114.517(11) expires on September 1, 2007. This language has been added in 

order to ensure that the rule is compliant with the requirements 

set forth in HB 1540. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jeffrey. Horvath, Analyst, Strategic Planning and Assessment, 

determ1ned that ~or the first five-year period the proposed 

amendments are 1n effect, no fiscal implications are anticipated 

for units of state or local government. 

The proposed rules implement HB 1540, 79th Legislature, 2005 

by ~me~ding the idling limits for gasoline and diesel-powered 

eng1nes 1n motor vehicles within the jurisdiction of any local government in the state that has signed an MOA with the commission to implement the locally enforced motor vehicle idling rule. 

The proposed rules would allow operators of motor vehicles with 

sleeper berths to idle for reasons not permitted by the current 

rules. Specifically, commercial vehicles would be allowed to idle 

the motor to heat or cool the vehicle in which the driver is using 

the sleeper berth for a government mandated rest break. The 

proposed rules would prohibit a commercial driver from using the 

sleeper berth and idling the engine within a school zone or within 

1 ,000 feet of a public school during its hours of operation. The 

proposed rules also include an idling exemption for construction 

and repair vehicles and remove an idling exemption for transit 

vehicles. 

The proposed rules will impact the Austin EAC members and any 

other local governments in the state who wish to adopt additional 

control measures to achieve or maintain attainment of the federal eight-hour ozone standard. Any enforcement costs for local 

governments to implement the agreement for the idling controls 

are voluntary. However, the proposed rules do provide local governments the authority to fine drivers $500 for using their sleeper 

berths and idling within a school zone or within 1 ,000 feet of a 

~ublic school during its hours of operation. No fiscal implications are expected for the agency as enforcement of the idling 

rule is delegated to local governments who enter into an agreement with the commission. 

PROPOSED RULES November 25,2005 30 TexReg 7829 
PUBLIC BENEFITS AND COSTS 

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

years the proposed rules are in effect, the public benefit anticipated from the enforcement of and compliance with the proposed 

rules would be the provision of additional options for local governments to use to ensure a reduction in NO and VOC emissions 

needed to maintain attainment with the federal eight-hour ozone 

standards. 

No fiscal implications are anticipated to businesses or individuals 

as a result of the implementation of the proposed amendments. 

The exemptions from the idling rule will allow drivers to idle the 

motor to heat or cool the vehicle in which the driver is using the 

sleeper berth for a government mandated rest break. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micro-businesses as a result of implementation of the proposed 

amendments. Any fiscal implications would be the same as 

those for large businesses. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required 

because the proposed amendments do not adversely affect a 

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

proposed amendments are in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking action in 

light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rules are not 

subject to §2001.0225 because although the proposal meets 

the definition of a "major environmental rule" as defined in the 

statute, it does not meet any ofthe four applicability requirements 

listed in §2001.0225(a). The regulatory analysis requirements 

of Texas Government Code, §2001.0225 only apply to a major 

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

by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed 

a requirement of a delegation agreement or contract between 

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

rule solely under the general powers of the agency instead of 

under a specific state law. Specifically, this proposal will amend 

the rules that limit heavy-duty motor vehicle idling within the jurisdiction of any local government in the state that has signed 

an MOA with the commission to delegate enforcement to that 

local government. The amendments will clarify current rule requirements and implement the new requirements of HB 1540. 

Currently, there are no federal regulations governing idle time 

for motor vehicles. This proposal therefore does not exceed a 

standard set by federal law. The amendments are needed to implement state law, and the proposal therefore does not exceed 

an express requirement of state law. The proposed rules do involve a compact, which is an agreement or contract between the 

state and an agency or representative of federal government to 

implement a state and federal program, however, the proposed 

amendments do not exceed the requirements of that compact. 

This proposed rulemaking helps the Austin EAC area continue 

to meet the milestones of the compact and demonstrate continuing attainment of the eight-hour ozone standard. Finally, this 

proposed rulemaking was not developed solely under the general powers of the agency. Because this rulemaking does not 

meet any of the four applicability requirements, Texas Government Code, §2001.0225 does not apply, and a regulatory impact 

analysis is not required. 

The commission invites public comment on the draft regulatory 

impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

Under Texas Government Code, §2007.002(5), "taking" means: 

1) 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 §17 or §19, Article I, 

Texas Constitution; or 2) a governmental action that affects an 

owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, 

in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 

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

governmental action is not in effect and the market value of the 

property determined as if the governmental action is in effect. 

The commission completed a taking impact analysis for the proposed rules. Promulgation and enforcement of the rules will 

not affect private real property in a manner that would require 

compensation to private real property owners under the United 

States Constitution or the Texas Constitution. The proposed 

rules also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, 

the proposed rules will not cause a taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking action and 

found that the proposal is an action identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, or will affect 

an action/authorization identified in §505.11, and therefore will 

require that applicable goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. 

The commission determined that under 31 TAC §505.22, the proposed rulemaking action is consistent with the applicable CMP 

goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural 

resource areas (31 TAC §501.12(1)). No new sources of air contaminants will be authorized and ozone levels will be reduced as 

a result of the proposed rule making. The CMP policy applicable 

to this rulemaking action is the policy that commission rules comply with regulations in 40 Code of Federal Regulations, to protect 

and enhance air quality in the coastal area (31 TAC §501.14(q)). 

This rulemaking action complies with 40 Code of Federal Regulations. Therefore, in compliance with 31 TAC §505.22(e), this 

rulemaking action is consistent with CMP goals and polities. Interested persons may submit comments regarding the consistency of the proposed amendments with the CMP during the public comment period. 

ANNOUNCEMENT OF HEARING 

30 TexReg 7830 November 25, 2005 Texas Register 
Public hearings for this proposed rulemaking have been scheduled for the following time and location: January 10, 2006, 10:00 

a.m., Texas Commission on Environmental Quality, 12100 North 

1-35, Building E, Room 201S, Austin. The hearings will be structured for the receipt of oral or written comments by interested 

persons. Registration will begin 30 minutes prior to the hearings. Individuals may present oral statements when called upon 

in order of registration. A time limit may be established at each 

hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during 

the hearings; however, commission staff members will be available to discuss the proposal 30 minutes before each hearing and 

will answer questions before and after each hearing. 

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

Chief Engineer's Office at (512) 239-4900. Requests should be 

made as far in advance as possible. 

SUBMITIAL OF COMMENTS 

Comments may be submitted to Brandon Smith, MC 206, Chief 

Engineer's Office, Texas Commission on Environmental Quality, 

P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 

239-5687; or emailed to siprules@tceq.state.tx.us. All comments should reference Rule Project Number 2005-064-114-EN. 

Comments must be received by 5:00 p.m. on January 17, 

2006. The proposed rules may be viewed on the commission's Web site at http://www.tceq.state.tx.us!us/navlrules!propose_adopt.htm/. For further information, please contact Erik 

Gribbin, Air Quality Planning and Implementation Division, at 

(512) 239-2590. . 

STATUTORY AUTHORITY 

The amendments are proposed under Texas Water Code (TWC), 

§5.1 03, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC, and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

§382.017, which provides the commission with the authority to 

adopt rules consistent with the policy and purposes of the TCAA. 

The amendments are also proposed under TCAA, §382.011, 

which authorizes the commission to control the quality of the 

state's air; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; §382.019, which authorizes the commission to adopt rules to control and reduce emissions from engines 

used to propel land vehicles; §382.0191, which authorizes use 

of a sleeping berth for a government-mandated rest period; and 

§382.039, 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 amendments implement TCAA, §§382.002, 

382.011, 382.012, 382.019, 382.0191, and 382.039. 

§114.512. Control Requirements for Motor Vehicle Idling. 

~ No person shall cause, suffer, allow, or pennit the primary 

propulsion engine of a motor vehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in § 114.51 0 of this 

title (relating to Definitions), is not in motion during the period of April 

I through October 31 of each calendar year. 

{!D No driver using the vehicle's sleeper berth may idle the vehicle in a school zone or within I ,000 feet of a public school during its 

hours of operation. An offense under this subsection may be punishable by a fine not to exceed $500. This subsection expires September 

I, 2007. 

§114.517. Exemptions. 

The provisions of § 114.512 of this title (relating to Control Requirements for Motor Vehicle Idling) do not apply to: 

(I) a motor vehicle that has a gross vehicle weight rating of 

14,000 pounds or less, and if before September I, 2007, does not have 

a sleeper berth; 

(2) - (3) (No change.) 

( 4) the primary propulsion engine of a motor vehicle providing a power source necessary for mechanical operation, other than 

[oot iootllemg] propulsion, and/or passenger compartment heating, or 

air conditioning; 

(5) - (6) (No change.) 

(7) the primary propulsion engine of a motor vehicle that 

is being used to supply heat or air conditioning necessary for passenger comfort and safety [comfort/safety] in [these] vehicles intended for 

commercial or public passenger transportation, or passenger transit operations, [sefteel ffitses] in which case idling up to a maximum of 30 

minutes is allowed; 

(8) the primary propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary for employee 

health or safety while the employee is using the vehicle to perform an 

essential job function related to roadway construction or maintenance 

[the j3fimary propttlsion eHgffie ef a metor -vehicle l:!Seti fuf passenger 

tffiftsit operations in wftieft ease ffil.i.ng 1:1f3 to a maldmum ef ~ mintttes 

is altewed]; 

(9) the primary propulsion engine of a motor vehicle being 

used as airport ground support equipment;[ or] 

(I 0) the owner of a motor vehicle rented or leased to a person that [whe] operates the vehicle and is not employed by the owner~ 

2!H 

Ql2 a motor vehicle when idling is necessary to power a 

heater or air conditioner while a driver is using the vehicle's sleeper 

berth for a government-mandated rest period. This subsection expires 

September 1, 2007. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on November 10, 

2005. 

TRD-200505193 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: December 25, 2005 

For further information, please call: (512) 239-6087 

CHAPTER 116. CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

SUBCHAPTER L. PERMITS FOR SPECIFIC 

DESIGNATED FACILITIES 

PROPOSED RULES November 25, 2005 30 TexReg 7831 
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and PJ·eventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND 

TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony 

concerning revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, under the 

requirements of Texas Health and Safety Code, §382.017; Texas Govermnent Code, Chapter 2001, 

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

Agency (EPA) regulations concerning state implementation plans (SIPs). 

A public hearing will be held in Austin, Texas, on January 10, 2006, at 10:00 a.m. in Building E, Room 

201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. The 

hearing will be structured for the receipt of oral or written comments by interested persons. Registration 

will begin 30 minutes prior to the hearing. Individuals may present oral or written statements when called 

upon in order of registration. A time limit may be established at the hearing to assure that enough time 

is allowed for every interested person to speak. There will be no open discussion during the hearing; 

however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing 

and will answer questions before and after the hearing. 

The proposed rulemaking would repeal the state regulations implementing the Texas Clean Fleet Program 

. in its entirety, in accordance with Senate Bill1032, 79th Legislature, 2005. (Rule Project No. 2005-067-

114-EN) 

In addition, the proposed rulemaking would implement House Bi111540, 79th Legislature, 2005, as well 

as add language that the Austin Early Action Compact members have requested be added to more greatly 

protect public health and safety. (Rule Project No. 2005-064-114-EN) 

The proposed rulemaking would also amend the definition of additive; specify that the executive director 

must consult with the United States Environmental Protection Agency (EPA) before approving an 

alternative test method; revise the documentation requirements for the alternative diesel formulation 

approval procedures; revise the minimum requirements for candidate fuel formulations to only allow diesel 

fuel with less than 15 parts per million sulfur to be used for testing purposes; specify that the test engine 

used for alternative diesel fuel formulation testing must have a minimum of 125 hours of use and exhibit 

stable operation before beginning the testing and must not exceed 110% of its applicable exhaust emission 

standards when using the reference fuel; add clarifying language to the alternative test sequences to specify 

the number of hot start test cycles that must be performed for each sequence; revise the emission 

comparison requirements to be more consistent with similar California Air Resource Board regulations by 

removing the emissions of total hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from the 
comparison calculation but specifying that the emissions of THC and NMHC of the candidate fuel must 

not exceed the emission certification standards applicable to the year model of the test engine; clarify that 

only those records relating to sampling require a statement declaring the appropriate aromatic hydrocarbon 

content standard of the fuel; revise reporting requirements for producers with alternative emission 

reduction plans to include information in their quarterly report that is required to be collected in accordance 

with the sampling and testing requirements; establish procedures that require producers to submit 

alternative emission reduction plans that are developed in accordance with the EPA's Unified model to 

demonstrate that the average of all on-road diesel fuel produced in any given calendar year that is sold, 

offered for sale, supplied, or offered for supply by the producer in the counties affected by these rules 

achieves at least a 5.5% reduction in nitrogen oxide emissions for the year 2007, and at least a 6.2% 

reduction from the average of all non-road diesel produced by the producer for use in the affected counties, 

and allow alternative emission reduction plans to use diesel credits from early gasoline sulfur reduction that 

can only be generated from the gasoline supplied by the producer to the attairunent counties in 2003, 2004, 

and 2005, and can only be used to demonstrate compliance through December 31, 2010, in attaimnent 

counties within the Texas low emission diesel control area; and correct citations and cross-references. 

(Rule Project No. 2005-063-114-EN) 

Persons who have special communication or other accmrunodation needs who are planning to attend the 

hearing should contact Holly Vierk, Office of Legal Services, at (512) 239-0177. Requests should be 

made as far in advance as possible. 

Written comments may be submitted to Brandon Smith, MC 206, Chief Engineer's Office, Texas 

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

5687; or emailed to siprules@tceq.state. tx. us. All cmrunents should reference the rule project numbers 

that they pertain to. Cmrunents must be received by 5:00p.m. on January 17, 2006~ The proposed rules 

may be viewed on the cmrunission's Web site at http://wwv.l.tceq.state.tx.uslnavlrules!propose_ adopt.html. 

For further information, please contact Morris Brown, Air Quality Planning and Implementation Division, 

at (512) 239-1438 or Erik Gribbin, Air Quality Planning and Implementation Division, at (512) 239-2590. 

Issued in Austin, Texas, on November 30, 2005. 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

W-2 

W-3 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Samuel T. Biscoe, Capital Area Council of Governments 

Brandt Mannchen, Sierra Club, Houston Regional Group 

Thomas Diggs, United States Environmental Protection Agency 
Clean Air 

Coalition: 

Chairman 

Mayor Will Wynn 

City of Austin 

Vice-Chair 

Judge Samuel 

Biscoe 

Travis County 

Commissioner 

Clara Beckett 

Bastrop County 

Mayor James 

Bertram 

City of Lockhart 

Commissioner 

Greg Boatright 

Williamson County 

Mayor Eric 

Carlson 

City of Elgin 

Mayor Mike 

Hendricks 

City of Luling 

Councilmember 

Alan McGraw 

City of Round 

Rock 

Mayor 

Susan Narvaiz 

City of San 

Marcos 

Judge Jim Powers 

Hays County 

Mayor Tom Scott 

City of Bastrop 

Judge H. T. 

Wright 

Caldwell County 

Capital Area Council of Governments 

2512 IH 35 South, Suite 200 

Austin, Texas 78704 

512.916.6000 • Fax512.916.6001 

www.capcog.org 

December 9, 2005 

Mr. Brandon Smith 

Chief Engineer's Office 

Texas Commission on Environmental Quality 

PO. Box 13087, MC 206 

Austin, TX 78711-3087 

Dear Mr. Smith: 

Thank you for the opportunity to comment on the proposed amendments 

to Chapter 114, Control of Air Pollution from Motor Vehicles, Rule 

Project No. 2005-064-114-EN. The Central Texas Clean Air Coalition 

(CAC}, comprising elected officials from the five-county Austin/Round 

Rock MSA, supports the proposed amendments and corresponding 

revisions to the state implementation plan. 

We appreciate the consideration given to the Austin Early Action 

Compact (EAC) members' concerns about clarifying language in the 

exemptions, particularly with regard to transit vehicle idling and TxDOT's 

employee idling policy. We believe that the proposed amendments 

adequately address these concerns. 

The CAC concurs with TCEQ that local enforcement is crucial to the 

effective implementation of rules to reduce extended idling of gasoline 

and diesel-powered heavy-duty vehicles. This rule will help ensure the 

reduction in nitrogen oxide and volatile organic compound emissions 

necessary to achieve and maintain attainment of the federal eight-hour 

standard. These mobile source emission reductions are especially 

important to the region, as reductions from TxLED fuel are still uncertain. 

Thank you for the opportunity to comment and for your ongoing 

commitment to ensuring cleaner air for all Texans. For additional 

information, please contact Bill Gill (512.916.6066) or Scheleen Walker 

(512.854.7219), the EAC Task Force Co-Chairs. 

. Sincerely, 

Judge Samuel T. Biscoe 

Vice Chairman, Clean Air Coalition 
Houston Regional Group 

P. 0. Box.3021 

Houston, Texas 77253-3021 

713-895-9309 

http:/ /texas.sierraclub.org/houston/ 

FOUNDED 1892 

December 13, 2005 

Mr. Brandon Smith 

Chief Engineer's Office 

Texas Commission on Environmental Quality 

MC206 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Mr. Smith, 

Enclosed are the comments of the Houston Regional Group of the Sierra Club 

(HSC) regarding the Texas Commission on Environmental Quality's (TCEQ) 

proposed repeal of 114.3, 114.150, 114.151, and 114.153-114-157, Low 

Emission Vehicle Fleet Requirements; amendments to 114.512 and 114.517, 

Locally Enforced Motor Vehicle Idling Limitations; and amendments to 114.6, 

114.312, 114.313, and 114.315-114.318, Definitions and Low Emission Diesel. 

1) The HSC is concerned about the constant changes that TCEQ has made to 

the Low Emission Vehicle Fleet Requirements program. We understand that 

some of these changes may have been predicated by the Texas Legislature. 

However, as a general rule, for several years TCEQ required that fleet owners 

conduct business in a certain way. Then TCEQ changed th~ program. Now 

TCEQ proposes a repeal of all the requirements. 

The HSC is concerned that this leads to economic inefficiencies; operational 

inefficiencies; higher costs for businesses and consumers; disillusionment with 

the law; and temporary or non-existent reductions in air pollutants from motor 

vehicle fleets. The HSC is concerned that the Low Emission Vehicle Fleet 

Requirements were used to meet legal requirements but were not used as a 

long-term commitment by TCEQ to reduce emissions from fleet owners. TCEQ 

must look more carefully at its control strategies to determine whether they will 

be needed in the long-term and are not just short-term stop-gap efforts. 

2) Regarding the proposed changes to the Locally Enforced Motor Vehicle Idling 

Limitations, 114.512 and 114.517, the HSC supports these changes. 

3) Regarding the proposed changes to Definitions and Low Emission Diesel, 

114.6, 114.312, 114.313, and 114.315-114.318, the HSC is opposed to any 

proposal that allows alternative emission reduction plans to be labeled as 

"confidential business information" and kept from the public. It is one thing to 

"When we try to pick out anything by itself, we find it hitched to everything else in the universe." john Mt_tir 

Printed on 100% Kenaf tree free paper 

e 
I. 

have some inform~tion that is confidential and placed in a separate file. It is 

entirely a different situation to allow entire plans to be labeled as confidential and 

hidden from the public. The HSC opposes any such regulation, rule, program, or 

policy that supports this. The public has the right to know, review, and comment 

on what alternative emission reduction plans are proposed and approved by 

TCEQ. 

On page 5 of the proposal, the TCEQ states, "Diesel engines emit very little VOC 

emissions". However, on page 6 TCEQ states, " ... these changes would also 

require that the average individual emissions of total hydrocarbons (THC) and 

non-methane hydrocarbons (NMHC), respectively, recorded during testing with 

the candidate fuel not exceed 11 0% of the test engine's applicable exhaust 

emission standards in order to prevent unacceptable increase in VOC 

emissions." 

These two statements appear, at best confusing, and at worst contradictory. If 

there are f~w VOC emissions in diesel then there should be little concern for any 

minimal increase. In addition, the soot particles that diesel engines generate act 

as adsorption surfaces for VOC, whether THC, NMHC, or toxic VOC fractions 

(for example, aromatic hydrocarbons or polycyclic aromatic hydrocarbons), which 

make the diesel particulates particularly dangerous to the deep lung areas like 

the alveoli. TCEQ should more clearly explain the importance of VOC in the . 

control of air pollution from the evaporation and combustion of diesel fuels. 

Overall, the rule is very ~;:onfusing because of the multiple average percentage 

requirements listed .in the rule proposal (5.5%, 5.7%, 5.78%, and 6.2%). TCEQ 

should develop a rule that is easy for the public and regulated entities to 

understand and comply with. The HSC requests that TCEQ simplify this rule. 

The HSC appreciates this opportunity to comment. Thank you. 

Sincerely, 

Brandt Mannchen 

Chair, Air Quality Committee 

Houston Regional Group of the Sierra Club 

Lone Star Chapter 

5431 Carew 

Houston, Texas 77096 

713-664-5962 

brandtshnfbt@juno.com 

2 
I 

UNITED STATES ENVJRONMENTAL PROTECTION AGENCY 

REGJON 6 

Mr. Branclon Smith · 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

1!1 N ~. 1

: •:;y: :·~ ...... . ~ 

Texas Commi::.;~i(m llll Environmental Quality 

ChieJ Engineer's Office 

MC2D6 

P.O. Box 13087 

Austin, TX 78711~3087 

Reference: Rule Project Nos. 2005-067-114-EN; 2005-064~ 114-I:::N: and 2005-063-114-EN 

Dear Mr. Smith: 

Thank you for the opportunity to comment on proposed revi:::ions to the Texas Low 

Emission Diesel Rule, the Locally Enforced Motor Vehic::le Idling J .imitations rule, and the Texas 

Clea~ Fleet Rule. The Region 6 detailed comments on these rules arc found in the enclosure. 

Additional comments from EPA will be forwarded when we rccci vc them . 

. Tn summary, we do not oppose the l"epcal of the Texas Clean 1-/leet program as-it w.a.s 

designed befote, btlt the fcdcl'al clean ruel n~el requirement must be fulfilled by measures other 

than federal requirements, We may not be able to approve the l'cvisions lo Lhe Locally Enforced· · 

Mowr Vehicle Idling Limitations because that would be a weakening of the fe.derally appl'Ovcd 

STP. Our comments on the Texas Low Emission Diesel rule revisions focus primarily on lesl . 

methods and alternative emission reduction plans. While we support many of the revisions that 

are pro-posed for Lhis rule, our concern is with correcting director discretion and with establishing 

a replicable procedure that is approv~ble. We also.offcr comments as requested on No Harm 

Testing and use of credits for Early lmplementmion ofLuw Sulfur Gasoline. 

Region 6 continues to offer Texas our support during the rule revision process. Please let 

us know how we may be of further assistance. 

. · Sin,.ely y(mrs, 

. /~~,12.//~ ~_;Thoma.r:; Digg~. Chief · r· - Air Planning Section 

Enclol-iure 

cc: Camlice Gauelt, Director 

Air Quality Planning and lmplememation Division 

ReJc::vt:len:l/Re~t:lnblc. • Pn·ntsd wllh Veae/ilbie 01/ Based /nics on 1 OO% Rocyc/od P~por(tW% Po:;tc;;on&umsr) 
.EPA Region 6 Comments 

Texas Clean JilccL Rule Repeal 

·we do not oppose the repeal of the Texas Clean FleeT program, bm we do take 1ssue with 

lhe substiLute measures that are proposed to lJSc in its place. 

Section 24q(2)(A) of the 1990 Clean Air Act reguire::; states to implement the Clean Fuel 

Fleer (CFF) program in certain ozone nonatlninment areas. Sccrlon I 82(c)( 4 )(B) allows a state to· 

··opt om of the CFF program provided the state submits a SlP revision consisting of a substitute . 

progr£Lm that results in as much oi· gl'eater long term emissions reductions .as the CFP program. 

The EPA may approve such a revision only if the substimte program is riot reguired by the Act. 

See for e.J.ample, 70 Fed. Reg. 13425, 13435 (Mlm::h 21, 2005). Thus, the state of Texas may 

substitute its Texas Clean Fleet (TCF) program with any other program that resu1ts in as much or 

greater 1ong-t6rm emis!iinns reductions as the CFF program. In no event, however. ca.n the · 

substitute progra~ be either the Tier .U Ol' heavy-duty diesel engines (HDDE) standards. Also, 

the termination ofrhc TCF program prior to EPA approval of any substitute meastlrc would 

likely result in a weakening of the er:.isting SIP and thus, appear to be in vio1a6on oT the Act. 

Kentucky Resources Coutlc'il, Jnc., v. EPA, 304 F.Supp.- 2d 920 (W.D .Ky. 2004). · 

Fu1thcr, the EPA has determined that only certain vehicles and engines certified to current 

Part 86 emissions standards are either a~ stringent or more stringent than corresponding CFF 

cmissio11 standards. Accordingly, the EPA has advlsecl t1eet managerS seeking lo meet tbe CFF 

program requirements that only such vehicles and engines .meet CFF emission standards. See 

· EPA guidance lettet CCD-05-12., (July 21, 2005), which is availablE: on-line at: 

http://www.cpa.gov/otaq/ccn/dcannfr/ccd0512.pdL 1l would, therefore, be premature to asserr 

that either the Tier II or fTDDE slandar&; have superseded the CFF standards. 

We recommend that a demonstration be provided in 1he final rul~ submittal to show what 

federal CFF crcdiu: need Lo bt:: subslilult::d by SLaL~ rule. '~.;r!:!c.lits for each affected nonattalnmem 

area. We believe there are sufficient State rule credits tbat are beyond RACT to fulfil.l this 

reguireme11t. 

· Locally Enr()rced Motor Vehicle ldling Limitations Rule 

The addition of exemprion number (11) and Lhe revision to exernptjon number (l) weaken 

the SIP nt1es that were approved by EPA in 2005. We can appreciate and undersland why rhe 

Legislature would make this mandate, Technology to accommodate overnight comfmt for 

d1i vers of These vehicles is not readily available and spolty i:lt most in the nonattainment areas, 
Even Lht)ugh ynu must ado]1t these changes, we will not be able to approve them into the SIP 

unless yoll can provjde substitute reductions or model m show thal attainment can be met without 

those credits. We' gently remind yotdhar approved program~> in the SlP still have to be enforced · 

unless we approve a SIP revision. · 

. Texas Low .Emission Diesel Rule Revision 

We recommend l~e followiTig for some of the proposed provisions: 

Section 114.6. We do not see the value of addin~ the phrase "required to he" in this 

definition. Some may misjnterpret this to mean that addi Lives can be 'llSCd 

in texas before being approved and registered by the EPA. We know that 

is not the case, therefore we recommend this change not be finalized. 

Section ll4.315(b). Section 114.315(b) does not ~o far enough Lo resnlve concems regarding 

Executive Director discretion. Consultation is not adequate ln case of 

disagreements. We suggest the section be changed to read "with the 

consent of EPA" or "consultation and agreement l:ly EPA:' Another 

·. acceptable example is in Section ll4.31S(d) where something must be 

dernonstrated to tl1e satisfaction of lhe Ex,x:uLive Director and the EPA. 

Section 114.315(c) 4. Add Lhe words "and in the Environmental Technology Verification 

Pt·otoco I of the EPA, where applicab~e" at the end of the reference to 

40CFR86 Stlbpan N. Note: 17u~ TCEQ pre!amble on page 6 re.f'ers lo the . 

necessity of being consistent 1ivith the E1"V Prorocol. 

There is an issue with cumulative effect additives being used. in vehicles 

that arc not cons1stently fueled with Lhe same additives. Our Office of 

Transportation and Air Quality will be addressing this further in comments 

which W5 \>Vill for.,;,ard to you. 

,Section 114.315(d). (d)(2) reads: "If the alternative diesel fuel formulation has been 

demonstrated to the satisfaction of the executive dircc!Or to .achieve 

comparable or better reductions in emissions of NOx [,THC, NMHC,] 

and PM under this subsection .. '' To b~ consi~Lent with (d), ''and the EPA" 

. should be added just after executive director .here. ' 

No harm tests. The supplier should be in a position tn guaranty that ''the approved fuels 

and fue1 additives are nol harmful to the mechanical operation of diesel 

engines." Such a clause could be included in the document under revjew. 

The key factor in detennining "the approved fuels and fuel additives arc not harmtul LO the 

mechanical Dpflration of diesel engines" is the effect it WOLllcl have on the elastomers used in 

Diesel Engines. The engine manufacturers should be able to provide samples of all the 

elastomers exposed to the fuel, used in lheh engines. The sample could then be, tcsred for 

resistance to the fuel being evaluated. There are several ASTM standards to lest the properties of 
! . elastomers under different conditions and there are several lab:;; that could carry om these tests. 

Such a test system should be fonmtlated. · 

The :::uppliers' vvarr;:mty or the results of such tests prior to approval ofa formulation WOL11d he 

appr.oprjate. 

With regard to meclwnic~d wear and tear of the engine, the protm;nl fnr a ·no harm· test to check 

whether "the approved fuels ancl fl1e1 additives are not hnrmful to the mechanical operation nf 

diesel' engines" would extend to a period equivalent to a million miles on a diese1 engine under 

diverse load conditi~n1:, ambient temperatures, stops arid starts. Lubricant mJmtlfacturers jn · · 

collaboration with e11gine m?-nufacturers carry out simulated tests 1.0 check the wear and tear on 

piston rings, cylinders and crankshaft bcaringo etc. Sur.:h a te::;t using a Jubrkant with. known 

characteristics and the candidate fuel should provide useful results. 

Section 114.318. We do not oppose the removal ofEPAapprovaJ from §ll4.318(a) hecaw;e 

· a replicable procedw·e for the State to approve thc.ABRP plans is being proposed. Should the 

State adopt a revision of this Section and tho~>t3 provisions ·be approve!=\ into the SIP hy EPA, EPA 

approval then is implicir for any plan approved b'y.the State, A critical parr. o[ a replicable 

procedure such a1; this in which credits from one source a1·e·subsrirured for another is public 

pa11icipation iT! the pi·oce~s at the State level. That public participation is being carried oul · 

through the notice and comment pc1iod in which the Slate is enacting the revised 114 .. 318. 

Early Implementation of Low Sulfur Gasoline Credits. While il it:: ini::licatcd that credits for 

early implementation oflpw sulfur gasoline may on1y be generated ln 2003, '2004 and 2005, you 

are taking comments for a11owing thc1se credits to be used through 2010. The benefits for early 

implementation of low sulfur gasoline will have been 1·eplaecd years prior by the manc;iated low 

s~tlfur gasoline. ]3y March l, 2006, low sulfur gasoline will be fully implemented in Texas by all 

the major reti~ers that provide the majority of gasoline sold at retail in the state. Usin.g early 

credits· until2010 is problematic fc)r the Beaumont-Pelt Althu!' (BPA) nonat'tainment urea and the 

Early AcTion Compacl areas that would benefit greatly from real-time NOx reductions. Although 

it is possible for the MOBILE model to calculate a benef"it to pre:-Tier 2 vehicles. we do not 

believe the model can reflect real-world b.enefits because of the uncertainty of fueling habits or 

the general public. Therefore, we do no[ support allowing credits for cai·ly implementation of 

low sulfur gasoline for use in the areas mentioned above past December 31, 2006. Rea.1-t1me 

NOx benefits from a low-NOx fuel.could potentiallybe used to partially !':atisfy the federal Clean 

Fuel Fleet requirement for BFA, for example. . 
INDEX OF ORAL TESTIMONY 

January 10, 2006, 10:00 a.m.- Texas Commission on Environmental Quality complex 

No oral testimony was received pertaining to this proposal. 
Page 1 

Texas Commission on Environmental Quality 

Public Hearing Registration 

Location: Austin (10:00 a.m.) Date: January 10, 2006 . 

Concerning: 30 TAC Chapter 114 (Rule Project No.'s 2005-063-114-EN, 2005-064-114-EN, i005-067-114) 

Name and Address Representing Presenting Oral Testimony? 

· (Circle One) 

(Please Print) 

J; !'I Uyt 1/i)Oo u <. 0 41. y X'li. ~,/tr/1. v""-~ 

LI-A<J/t4s #ro/() f) aotVr.. Yes NQJ 

6oOCJ"J.N6Mr;., /nfr.,_ rl: 13tH fu.m-v 7'>s 

~ c;;-c-+, v ~ se:'~ §) :rAt)~ ;:) LJ. "'k,__N -- Yes 

L..e-cr,rr ~ .Jyl 7 't&Cf J 

c_ lWl s P~P't- fL lfu~ Coc.. G.. h ~ (J ('..._ 

fj[ (.g LO"-~ A.tL ®No 

Ausn;J -nC F 1'brda~_-·· ~ 

.=._,~s L::} ~ -~ 

- - _,..-~ - '""'=" ~ ~"" 

_r;s,[' b,-;, clj-PCtJ6·- 11--us.fcV:. El-t-L C9 No 

JgJ (~cktr(}/- rf~t~ Yes 6 " 

.. 

?rt( OsVtb(t{ J4ct._ Yes(§) 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental ·Quality · friTEROFBCEMEMORANDUM 

To: 

Thru: 

From: 

Commissioners 

LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

David C. Schanbacher, P.E. r{' S 

Chief Engineer's Office vDate: October 21, 2005 

Docket No.: 2005-1443-RUL 

Subject: Corrnnission Approval for Proposed Rulemaking 

Chapter 114, Control of Air Pollution from Motor Vehicles 

House Bill 1540: Locally Enforced Idling Rule Amendment 

Rule Project No. 2005-064-114-EN 

Reasons for the rule package: 

This rulemaking will implement House Bill (HB) 1540, 79th Legislature, 2005, Regular Session, 

effective September 1, 2005. In addition, in response to a request from the Austin Early Action 

Compact (EAC) task force; additional provisions would add an exemption to allow idling at road 

construction or maintenance sites where necessary to protect road workers' health and safety, and 

clarify· a passenger transit exemption. 

• Under what authority are we proposing these changes? 

• HB 1540, §1 and §2, amends Texas Health and Safety Code, Chapter 382, Subchapter B 

by adding §382.0191. 

• Texas Clean Air Act (TCAA), Texas Health and Safety Code, §382.011, concerning 

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

state's air; §382.012, concerning State Air Control Plan, which authorizes the commission 

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

§382.017, concerning Rules, which provides the commission with the authority to adopt 

rules consistent with the policy and purposes of the TCAA. 

• Is this rulemaking required by federal rule or state statute? Which ones? Yes, a portion of 

the rulemaking is required by HB 1540. 

• Are there any legal deadlines by which these rules must be proposed, adopted, or effective? 

No. 

• What issue(s) or problem(s) are we trying to solve? The commission's Locally Enforced Idling 

·Restrictions Rule must be revised due to passage of HB 1540, which places some limits on the 

types of idling that the commission may restrict. Also, the Austin EAC members have signed a 

memorandum of agreement (MOA) with the commission to enforce the idling rule, and have 

requested that the commission revise an exemption in the rule for transit vehicles that they consider 

vague. Austin EAC members also asked that an exemption be added for idling operations at road 

construction or maintenance sites. 
Commissioners 

Page 2 

October 21, 2005 

Re: Docket No. 2005-1443-RUL 

• Why is it important that we do this rule package? So that local governments may enforce an 

air quality measure that will aid.in the attainment of national ambient air quality standards. 

• Other important backgrourid or historical information. The Austin EAC members signed an 

MOA with the commission so that the EAC could enforce idling restrictions starting April1, 2006. 

Scope of the rulemaking: 

This rulemaking implements provisions of HB 1540. HB 1540 states that, "the commission may 

not prohibit or limit the idling of a motor vehicle when idling is necessary to power a heater or air 

conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest 

period." The bill also states that, "no driver using the vehicle's sleeper berth may idle the vehicle 

in a school zone or within 1,000 feet of a public school during its hours of operation," or else be 

subject to a fine not to exceed $500. This rulemaking would amend the rule on idling limits for 

motor vehicles within the jurisdiction of any local government in the state that has signed an MOU 

with the commission to delegate enforcement authority to that local government. 

In meetings with officials of the Austin EAC to develop an idling restriction MOA, members of 

the EAC felt that parts of the existing rule could be misinterpreted to mean that a transit vehicle 

could idle for a total of one hour, instead of one-half hour as the rule intended. In addition, there 

was also concern that the commission's rule conflicted with Texas Department of Transportation 

guidelines on vehicle idling at road construction and maintenance sites for purposes of driver 

health and safety. The commission is proposing this rulemaking to amend the rule as suggested 

by the Austin EAC members. 

• Changes required by federal rule: None. 

• Changes required by state statute: HB 1540 requires that idling be permitted if it is performed 

to operate the heater or air conditioner of a vehicle when the sleeper berth is being used by the 

driver to take a government-mandated rest break, unless the vehicle is within a school zone, or 

within 1,000 feet of a public school during its hours of operation. 

• Staff recommendations that are D.ot expressly required by federal rule or state statute: 

• Delete existing language regarding idling by transit vehicles in one exemption and move 

it into another. 

• Create an exemption to the rule for the primary propulsion engine of a motor vehicle being 

used to operate the air conditioning .or heating system for driver health or safety when the 

driver is using the vehicle to perform an essential job function related to roadway 

construction or maintenance. 

Impact on the regulated community: 

• Who will be affected? Drivers of motor vehicles with sleeper berths and drivers working at 

roadway construction sites. Their health and safety will be protected because they will be allowed 

to run their primary propulsion engine for heating or cooling of the cab. 

• Does it create a group of affected persons who were not affected previously? How? Yes, 

drivers of vehicles with sleeper berths and drivers at construction sites. These drivers will receive 

an exemption from the rule. 
Commissioners 

Page 3 

October 21, 2005 

Re: Docket No. 2005-1443-RUL 

• Will there be a fiscal b;npact? If so; estimate. No. 

Impact on the public: 

• Who will be ·affected? Persons in public schools during their normal hours of operation will be 

protected from emissions from vehicle idling caused by drivers using their sleeper berths to take 

a government-mandated rest break. 

• Does it create a group of affected persons who were not affected previously? How'? The 

proposed rulemaking would permit more idling, hence air pollution will affect more citizens. 

However, the type of idling allowed under HB 1540 is not allowed hear a public school, thus 

protecting public school students.and faculty, which prior to this provision did not exist. 

• Will there be a fiscal impact? If so, estimate. None. 

Impact on agency programs: 

There is no impact on agency programs. 

Stakeholder meetings: 

• Have any stakeholder meetings been held? Yes. 

• With whom'? Meetings with the Austin EAC members have been held·. 

• What were the general·sentiments'? There were concerns that the rule needed an exemption for 

drivers supporting roadway construction personnel. There were also concerns that one of the 

exemptions to the idling rule was ambiguous and could be interpreted to mean that certain transit 

vehicles could idle for up to orie hour Instead of one-half hour as the ruli intended. 

• Were any changes made in response to stakeholder concerns? Yes, we agreed with all of their 

proposed changes to the rule. 

Policy Issues: 

• What policy issues are affected'? None. 

• Are any policies that are not currently based on rule being made into a rule? No . 

• What are the consequences if this rulemaking ~not approved to go forward? None . 

• Are there alternatives? No . 

Potentially controversial matters: None. 

Key points in rulemaking schedule: 

• Anticipated proposal date: 

• Anticipated Texas Register publication date: 

• Public hearing date (if any): 

• Public comment period: 

• Anticipated adoption date: 

N ()vember 9, 2005 

N overri.ber 25, 2005 

January 10, 2006 

Nov-ember 9, 2005- January 13, 2006 

April 26, 2006 
Commissioners 

Page 4 

October 21, 2005 

Re: Docket No. 2005-1443-RUL 

Agency contacts: 

Roland Castaneda, Rule Project Manager, 239-0774, Air Quality Planning and Implementation 

Division 

Garrett Arthur, Staff Attorney, 239-5757 

Patricia Duron, Texas Register Coordinator, 239-6087 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Brent Wade 

Office of General Counsel 

. Roland Castaneda, Rule Project Manager 

Patricia Dur6n, Texas Register Coordinator 

cc (without attachments): 

Garrett Arthur, Staff Attorney 

Margie McAllister, Program Office Liaison 

Candice Garrett, Division Liaison 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMONY 

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

§114.512 and §114.517 without changes to the proposed text as published in the November 25, 2005, 

issue of the Texas Register (30 TexReg 7828) and will not be republished. 

The amended sections as adopted will be submitted to the United States Environmental Protection 

Agency (EPA) as revisions to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

The commission adopts these revisions to Chapter 114, Control of Air Pollution from Motor Vehicles, 

and to the SIP in order to reduce ground-level ozone from fuel combustion resulting from motor 

vehicle idling. 

The concept of an early, voluntary eight-hour air quality plan, or early action compact (EAC), was 

endorsed by EPA Region 6 in June 2002 then slightly modified and made available nationally in 

November 2002. The EACs are tailored to local needs and driven by local decisions. A key point of 

an EAC is the flexibility afforded areas to select emission reduction measures. Based on quality 

science, signatories may choose the combination of measures that meet both local needs and emission 

reduction targets. Each EAC recognizes that not every entity within the EAC area will implement 

every measure. 

1 
Chapter 114, Subchapter J, Operational Controls for Motor Vehicles, Division 2, Locally Enforced 

Motor Vehicle Idling Limitations rule, was proposed at the request of the local air quality planning 

organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for 

use as a control strategy in its EAC agreement to maintain attainment with the federal eight-hour ozone 

national ambient air quality standards. The rule package also provided local governments in other 

areas of the state the option of applying these rules in their areas when additional control measures 

were needed to achieve or maintain attainment of the federal eight-hour ozone standard in the future. 

The rules were adopted on November 17, 2004. 

The December 18, 2002, EAC committed the commission to incorporate a Clean Air Action Plan for 

the Austin area into the SIP and adopt a revised SIP by December 31, 2004. The idling restriction rule 

was part of that attainment demonstration. While the Austin Metropolitan Statistical Area (MSA) was 

monitoring attainment with the eight-hour ozone standard, future monitoring could have shown 

nonattainment. Therefore, members of the Austin MSA worked to ratify a memorandum of agreement 

(MOA) with the TCEQ that would allow them to enforce the idling restriction rule in their region. The 

Locally Enforced Idling Restriction MOA was signed by the commission and members of the Austin 

EAC area on August 1, 2005. Members of the Austin EAC area signing the MOA included the 

counties of Bastrop, Caldwell, Hays, Travis, and Williamson and the cities of Austin, Bastrop, Elgin, 

Lockhart, Luling, Round Rock, and San Marcos. 

In meetings with officials of the Austin EAC to develop the idling rule MOA, concerns arose regarding 

language in the locally enforced idling restrictions. Austin EAC members voiced concern that parts of 

§114.517, Exemptions, were ambiguous and needed revision. Members of the Austin EAC felt that 

2 
§ 114.517(7) and (8) could be misinterpreted to mean that a transit vehicle could idle for a total of one 

hour. There was also concern that the commission's rule conflicted with Texas Department of 

Transportation (TxDOT) guidelines for vehicle idling by employees. Austin EAC members brought to 

the commission's attention TxDOT's policy regarding idling. The guidelines advise employees to idle 

their vehicles to operate the air conditioner or heating system for employee health and safety while they 

perform an essential job function related to roadway construction or maintenance. In many instances 

on-road and off-road vehicles at roadway construction sites must remain in idle mode during normal 

operations. The commission agrees with the Austin EAC members that the locally enforced idling 

restrictions should be revised in light of these concerns. At the request of the Austin EAC members, 

the commission adopts revisions to the locally enforced motor vehicle idling rule. 

The commission also adopts revisions to the idling rule to conform to legislation passed in 2005. On 

May 16, 2005, the 79th Legislature passed House Bill (HB) 1540, amendments to Texas Health and 

Safety Code, Chapter 382, Subchapter B, §382.0191, Idling of Motor Vehicle While Using Sleeper 

Berth. The bill, effective September 1, 2005, states that the "commission may not prohibit or limit the 

idling of a motor vehicle when idling is necessary to power a heater or air conditioner while a driver is 

using the vehicle's sleeper berth for a government-mandated rest period." In addition, the bill states 

that, "no driver using the vehicle's sleeper berth may idle the vehicle in a school zone or within 1,000 

feet of a public school during its hours of operation," or else be subject to a fine not to exceed $500. 

This rulemaking amends the rule on idling limits for gasoline and diesel-powered engines in motor 

vehicles within the jurisdiction of any local government in the state that has signed an MOA with the 

commission to delegate enforcement to that local government. Local enforcement is crucial to the 

3 
effective implementation of rules to reduce the extended idling of gasoline and diesel-powered heavyduty vehicles and will help to ensure the reduction in nitrogen oxides (NOx) and volatile organic 

compound (VOC) emissions, which is needed by local governments to achieve or maintain attainment 

of the federal eight-hour ozone standard. These idling limits will lower NOx emissions and other 

pollutants from fuel combustion. Because NOx is a precursor to ground-level ozone formation, 

reduced emissions of NOx will result in ground-level ozone reductions. 

Currently, there are no federal regulations governing idle time for motor vehicles. Therefore, the state 

has the authority to control motor vehicle idling. The requirements developed by the commission for 

this NOx emission reduction strategy will result in restrictions on the time allowed for motor vehicle 

idling. 

EPA methodology assessing the benefits of this NOx emission reduction strategy demonstrated that by 

the year 2007 the idling limits will reduce NOx emissions in the Austin EAC area by 0.67 tons per day. 

The commission believes that these amendments to the rule will not reduce the amount of reductions 

demonstrated. 

SECTION BY SECTION DISCUSSION 

The amendment to §114.511, Applicability, amends the existing paragraph as subsection (a). The 

amendment to § 114.511 also adds subsection (b), which establishes that, "no driver of a motor vehicle 

may use the vehicle's sleeper berth for a government-mandated rest period if the vehicle is within a 

school zone or within 1,000 feet of a public school during its hours of operation." Any offense under 

4 
subsection (b) is punishable by a fine not to exceed $500. The requirements under subsection (b) 

expire on September 1, 2007, just as in HB 1540. 

Adopted §114.517(1) provides an exemption for a motor vehicle that has a gross vehicle weight rating 

of 14,000 pounds or less, but only if before September 1, 2007, it does not contain a sleeping berth. 

That is to say, after September 1, 2007, any vehicle that has a gross vehicle weight rating of 14,000 

pounds or less will be exempt from any idling restriction. Until then, these vehicles that contain a 

sleeper berth are subject to the rule. The amendment to §114.517(4) replaces the phrase, "not 

including" with "other than." The amendment to §114.517(7) replaces the phrase, "comfort/safety" 

with "comfort and safety." The amendment to §114.517(4) also adds the phrase, "or public." This 

change is necessary to combine the exemptions in §114.517(7) and (8), thereby clarifying the intent of 

the rule. The amendment to §114.517(8) eliminates language exempting idling up to 30 minutes for, 

"the primary propulsion engine of a motor vehicle used for transit operations." The amendment to 

§114.517(8) adds a new exemption for, "the primary propulsion engine of a motor vehicle being used 

to operate the air conditioning or heating system for employee health or safety when the employee is 

using the vehicle to perform an essential job function related to roadway construction or maintenance." 

One reason this exemption has been added is because in most types of construction equipment (e.g., 

dump trucks, etc.) the operator must remain in the vehicle throughout the workday for both operational 

and safety reasons. Furthermore, most heavy-duty, on-road vehicles such as dump trucks, asphalt 

maintenance units, and aerial devices have power takeoff units that operate ancillary equipment 

attached to the vehicle and that are powered by the primary propulsion engine. Therefore, the primary 

propulsion engine must remain in an idling mode. Adopted §114.517(11) allows for the exemption of, 

"the primary propulsion engine of a motor vehicle when it is necessary for the driver to power a heater 

5 
Texas Commission on Environmental Quality 

Chapter 114- Control of Air Pollution from Motor Vehicles 

Rule Project No. 2005-064-114-EN 

Page 6 

or air conditioner while he/she is using the vehicle's sleeper berth for a government-mandated rest 

period." Section 114.517 (11) expires on September 1, 2007. This language has been added in order 

to ensure that the rule is compliant with the requirements set forth in HB 1540. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

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

Government Code, §2001.0225, and determined that the rules are not subject to §2001.0225 because 

although the rulemaking meets the definition of a "major environmental rule" as defined in the statute, 

it does not meet any of the four applicability requirements listed in §2001.0225(a). The regulatory 

analysis requirements of Texas Government Code, §2001.0225 only apply to a major environmental 

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

required by state law; 2) exceed an express requirement of state law, unless the rule is specifically 

required by federal law; 3) exceed a requirement of a delegation agreement or contract between the 

state and an agency or representative of the federal government to implement a state and federal 

program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific 

state law. Specifically, this rulemaking amends the rules that limit heavy-duty motor vehicle idling 

within the jurisdiction of any local government in the state that has signed an MOA with the 

commission to delegate enforcement to that local government. The amendments clarify current rule 

requirements and implement the new requirements of HB 1540. Currently, there are no federal 

regulations governing idle time for motor vehicles. This rulemaking action therefore does not exceed a 

standard set by federal law. The amendments are needed to implement state law, and the rulemaking 

6 
Texas Commission on Environmental Quality 

Chapter 114 - Control of Air Pollution from Motor Vehicles 

Rule Project No. 2005-064-114-EN 

Page 7 

therefore does not exceed an express requirement of state law. The amendments do involve a compact, 

which is an agreement or contract between the state and an agency or representative of federal 

government to implement a state and federal program, however, the amendments do not exceed the 

requirements of that compact. This rulemaking helps the Austin EAC area continue to meet the 

milestones of the compact and demonstrate continuing attainment of the eight-hour ozone standard. 

Finally, this rulemaking was not developed solely under the general powers of the agency. Because 

this rulemaking does not meet any of the four applicability requirements, Texas Government Code, 

§2001.0225 does not apply, and a regulatory impact analysis is not required. 

TAKINGS IMPACT ASSESSMENT 

Under Texas Government Code, §2007.002(5), "taking" means: 1) 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 §17 or §19, Article I, Texas Constitution; 

or 2) a governmental action that affects an owner's private real property that is the subject of the 

governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or 

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

action; and is the producing cause of a reduction of at least 25% in the market value of the affected 

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

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

in effect. 

7 
Texas Commission on Environmental Quality 

Chapter 114- Control of Air Pollution from Motor Vehicles 

Rule Project No. 2005-064-114-EN 

Page 8 

The commission completed a taking impact analysis for this rulemaking action. Promulgation and 

enforcement of the rules do not affect private real property in a manner that would require 

compensation to private real property owners under the United States Constitution or the Texas 

Constitution. The adopted rules are not a government action that affects private real property in a 

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

of the governmental action. Therefore, the adopted rules do not cause a taking under Texas 

Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the rulemaking and found that this rulemaking is an action identified in 

Coastal Coordination Act Implementation Rules, 31 TAC §505.11, or will affect an 

action/authorization identified in §505.11, and therefore, requires that applicable goals and policies of 

the Texas Coastal Management Program (CMP) be considered during the rulemaking process. 

The commission determined that under 31 TAC §505.22, this rulemaking action is consistent with the 

applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to 

protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural 

resource areas (31 TAC §501.12(1)). No new sources of air contaminants will be authorized and ozone 

levels will be reduced as a result of this rulemaking action. The CMP policy applicable to this 

rulemaking action is the policy that commission rules comply with regulations in 40 Code of Federal 

Regulations, to protect and enhance air quality in the coastal area (31 TAC §501.14(q)). This 

8 
Texas Commission on Environmental Quality 

Chapter 114 - Control of Air Pollution from Motor Vehicles 

Rule Project No. 2005-064-114-EN 

Page 9 

rulemaking action complies with 40 Code of Federal Regulations. Therefore, in compliance with 31 

TAC §505.22(e), this rulemaking action is consistent with CMP goals and policies. 

PUBLIC COMMENT 

The commission held a hearing on this proposal on January 10, 2006, at 10:00 a.m. at the Texas 

Commission on Environmental Quality, 12100 North 1-35, Building E, Room 201S, in Austin, Texas, 

but no oral comments were received. The public comment period closed at 5:00 p.m on January 17, 

2006. Written comments were received from the Capital Area Council of Governments (Capital Area 

COG), Houston Regional Group of Sierra Clubs (Sierra Club-Houston), and EPA. 

RESPONSE TO COMMENTS 

Capital Area COG and Sierra Club-Houston commented that they support the proposed amendments 

and corresponding revisions to the SIP. Capital Area COG commented that the rules clarified language 

in the current exemptions and addressed concerns related to TxDOT's employee idling policy. 

The commission appreciates the support for the locally enforced motor vehicle idling limitations 

and the proposed amendments. The commission agrees that the amendments will clarify idling 

requirements and provide for consistency with employee safety idling policies and regulations. 

EPA commented that the revision to § 114.51 7 ( 1), which amended the exemption to include vehicles 

that do not have sleeper berths and the addition of paragraph (11) which exempts a motor vehicle when 

9 
Texas Commission on Environmental Quality 

Chapter 114 - Control of Air Pollution from Motor Vehicles 

Rule Project No. 2005-064-114-EN 

Page 10 

idling is necessary to power a heater or air conditioner while a driver is using the vehicle's sleeper 

berth for a government-mandated rest period will weaken the SIP rules that it approved in 2005. 

EPA commented that it will not be able to approve these adopted amendments into the SIP unless the 

commission can provide substitute reductions or modeling to show that attainment can be met without 

the credits affected by these changes. EPA comments further that programs in an approved SIP must 

still be enforced unless EPA approves a SIP revision. 

The commission disagrees with the comment that these amendments weaken the idling 

requirements and thus the SIP. The commission is committed to implementing idling restrictions 

contained in the EPA-approved SIP. The purpose of the adopted amendments is to clarify idling 

restrictions for affected vehicle owners and operators and provide local jurisdictions with clearer 

and more consistent enforcement responsibilities, and not to weaken the idling requirements. 

The amendments and new exemption also ensure that the rulemaking is consistent with statute 

provisions found in HB 1540, 79th Legislature, 2005, and will expire September 1, 2007. 

To date, the commission has only taken credit for idling restrictions in the Austin EAC SIP. The 

commission has made a commitment in the Austin EAC SIP to make up reduction shortfalls from 

idling restriction rules through Texas Emission Reduction Program project reductions, if needed. 

However, a shortfall is not anticipated. In the SIP, the commission used EPA's Guidance for 

Qualifying and Using Long Duration Truck Idling Emission Reductions in State Implementation 

Plans and Transportation Conformity to determine that the maximum benefit from idling 

10 
Texas Commission on Environmental Quality 

Chapter 114 - Control of Air Pollution from Motor Vehicles 

Ru1e Project No. 2005-064-114-EN 

restrictions placed on diesel-powered "18-wheeler" vehicles would be a 0.67 tons per day 

reduction of NOx for the five-county Austin EAC area. 

Page 11 

Based upon the fact that the Austin EAC includes the Texas Emission Reduction Program as a 

backup measure for any idling reduction shortfall, and the expiration date of September 1, 2007, 

for the amendments added from HB 1540, the commission disagrees that new substitute 

reductions or modeling need to be developed to monitor continued attainment as a result of this 

rulemaking. This is especially the case for the Austin EAC area since the five-county area is 

currently designated an attainment area, and if monitored nonattainment in the future could not 

be designated nonattainment until December 31, 2007, at the earliest. The commission did not 

revise the rule in response to this comment. 

11 
STAFF 

RECOMMENDATIONS 
CHAPTER 114: CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES 

SUBCHAPTER J: OPERATIONAL CONTROLS FOR MOTOR VEHICLES 

DIVISION 2: LOCALLY ENFORCED MOTOR VEHICLE IDLING LIMITATIONS 

§114.512, §114.517 

§114.512. Control Requirements for Motor Vehicle Idling. 

(a) No person shall cause, suffer, allow, or permit the primary propulsion engine of a motor 

vehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in §114.510 

of this title (relating to Definitions), is not in motion during the period of Apri11 through October 31 

of each calendar year. 

(b) No driver using the vehicle's sleeper berth may idle the vehicle in a school zone or within 

1,000 feet of a public school during its hours of operation. An offense under this subsection may be 

punishable by a fine not to exceed $500. This subsection expires September 1, 2007. 

§114.517. Exemptions. 

The provisions of §114.512 of this title (relating to Control Requirements for Motor Vehicle 

Idling) do not apply to: 

(1) a motor vehicle that has a gross vehicle weight rating of 14,000 pounds or less, 

and if before September 1, 2007, does not have a sleeper berth; 
(2) a motor vehicle forced to remain motionless because of traffic conditions over 

which the operator has no control; 

(3) a motor vehicle being used by the United States military, national guard, or 

reserve forces, or as an emergency or law enforcement motor vehicle; 

(4) the primary propulsion engine of a motor vehicle providing a power source 

necessary for mechanical operation, other than propulsion, and/or passenger compartment heating, or 

air conditioning; 

(5) the primary propulsion engine of a motor vehicle being operated for maintenance 

or diagnostic purposes; 

( 6) the primary propulsion engine of a motor vehicle being operated solely to defrost a 

windshield; 

(7) the primary propulsion engine of a motor vehicle that is being used to supply heat 

or air conditioning necessary for passenger comfort and safety in vehicles intended for commercial or 

public passenger transportation, or passenger transit operations, in which case idling up to a maximum 

of 30 minutes is allowed; 

2 
(8) the primary propulsion engine of a motor vehicle being used to provide air 

conditioning or heating necessary for employee health or safety while the employee is using the vehicle 

to perform an essential job function related to roadway construction or maintenance; 

(9) the primary propulsion engine of a motor vehicle being used as airport ground 

support equipment; 

(10) the owner of a motor vehicle rented or leased to a person that operates the vehicle 

and is not employed by the owner; or 

(11) a motor vehicle when idling is necessary to power a heater or air conditioner 

while a driver is using the vehicle's sleeper berth for a government-mandated rest period. This 

subsection expires September 1, 2007. 

3 
LoOOnllii Castanuela, Chief Clerk ·r~ws Commission on Environments! Quality 

ORDER ADOPTING AMENDED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2005-1442-RUL 

On Apri126, 2006, the Texas Cmmnission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended§§ 114.6, 114.312, 114.313, 114.315, 114.316, 114.317 and 

114.318. The commission adopts these amendments in Chapter 114, Control of Air Pollution from Motor 

Vehicles; and corresponding revisions to the state implementation plan (SIP). The adoption amends the 

definition of additive; specifies that the executive director must consult with the United States Environmental 

Protection Agency (EPA) before approving an alternative test method; revises the documentation 

requirements for the alternative diesel formulation approval procedures; revises the minimum requirements 

for candidate fuel formulations used for testing purposes; specifies requirements for the test engine used 

for alternative diesel fuel formulation testing; adds clarifying language to the alternative test sequences; 

revises the emission comparison requirements to be more consistent with similar California Air Resource 

Board regulations; clarifies demonstration methods for alternative diesel fonnulation approval; clarifies 

records requirements relating to sampling; revises reporting requirements for producers with alternative 

emission reduction plans; establishes procedures that require producers to submit alternative emission 

reduction plans that are either developed in accordance with the EPA's Unified Model or use diesel credits 

from early introduction of low-sulfur gasoline in affected counties; and corrects citations and crossreferences. Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), 

the Commission has the authority to control the quality of the state's air and to issue orders consistent with 

the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The 

proposed rules were published for comment in the December 16, 2005, issue of the Texas Register (30 

TexReg 8407). 

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

2001 (Vernon 2000 & Vernon Supp. 2001) and 40 Code of Federal Regulations§ 51.102 and after proper 

notice, the Commission conducted a public hearing to consider the amendments and revisions to the SIP. 

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date of 

the hearing. A public hearing was held in Austin on January 1 0, 2006. 

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

persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The 

public was invited to submit data, views, and recommendations on the proposed amended rules and SIP 

revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled 

hearing, copies of the proposed amended rules and SIP revisions were available for public inspection at the 

Commission's central office and on the Commission's Web site. 
Data, views, and recommendations of interested persons regarding the proposed amended rules and 

SIP revisions were submitted to the Commission during the comment period, and were considered by the 

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

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

offer~g comment on the proposed amended rules and the SIP revisions and their position concerning the ,, 

same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions to 

the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes 

staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 

requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are 

incorporated by reference in this Order as if set forth at length verbatim in this Order. 

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

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

to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean 

Air Act, § 110, as amended. 

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

Government Code, § 2001.033. 

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

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

Date issued: . MAY 0 3 2006 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

·~ athleen Hartnett White, Chairman 
tion and, as appropriate, the sulfur properties and volumes of the gasoline that is being used to generate credit in accordance with subsection 

(b)(3) or (4) of this section. 

This agency hereby certifies that the adoption has been reviewed 

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

legal authority. 

Filed with the Office of the Secretary of State on April 27, 2006. 

TRD-200602361 

Stephanie Bergeron Perdue 

Acting Deputy Director, Of ce of Legal Services 

Texas Commission on Environmental Quality 

Effective date: May 17, 2006 

Proposal publication date: December 16, 2005 

For further information, please call: (512) 239-0348 

• 

SUBCHAPTER J. 

• • 

OPERATIONAL CONTROLS 

FOR MOTOR VEHICLES 

DIVISION 2. LOCALLY ENFORCED MOTOR 

VEHICLE IDLING LIMITATIONS 

30 TAC §114.512, §114.517 

The Texas Commission on Environmental Quality (commission 

or TCEQ) adopts the amendments to §114.512 and §114.517 

without changes to the proposed text as published in the November 25, 2005, issue of the Texas Register (30 TexReg 7828) and 

will not be republished. 

The amended sections as adopted will be submitted to the 

United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULES 

The commission adopts these revisions to Chapter 114, Control 

of Air Pollution from Motor Vehicles, and to the SIP in order to 

reduce ground-level ozone from fuel combustion resulting from 

motor vehicle idling. 

The concept of an early, voluntary eight-hour air quality plan, or 

early action compact (EAC), was endorsed by EPA Region 6 in 

June 2002 then slightly modified and made available nationally 

in November 2002. The EACs are tailored to local needs and 

driven by local decisions. A key point of an EAC is the flexibility 

afforded areas to select emission reduction measures. Based 

on quality science, signatories may choose the combination of 

measures that meet both local needs and emission reduction 

targets. Each EAC recognizes that not every entity within the 

EAC area will implement every measure. 

Chapter 114, Subchapter J, Operational Controls for Motor Vehicles, Division 2, Locally Enforced Motor Vehicle Idling Limitations rule, was proposed at the request of the local air quality 

planning organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for use as a control strategy in its EAC agreement to maintain attainment with the 

federal eight-hour ozone national ambient air quality standards. 

The rule package also provided local governments in other areas 

of the state the option of applying these rules in their areas when 

additional control measures were needed to achieve or maintain 

31 TexReg 3900 May 12, 2006 Texas Register 

attainment of the federal eight-hour ozone standard in the future. 

The rules were adopted on November 17, 2004. 

The December 18, 2002, EAC committed the commission to incorporate a Clean Air Action Plan for the Austin area into the 

SIP and adopt a revised SIP by December 31, 2004. The idling 

restriction rule was part of that attainment demonstration. While 

the Austin Metropolitan Statistical Area (MSA) was monitoring 

attainment with the eight-hour ozone standard, future monitoring could have shown nonattainment. Therefore, members of 

the Austin MSA worked to ratify a memorandum of agreement 

(MOA) with the TCEQ that would allow them to enforce the idling 

restriction rule in their region. The Locally Enforced Idling Restriction MOA was signed by the commission and members of 

the Austin EAC area on August 1, 2005. Members of the Austin 

EAC area signing the MOA included the counties of Bastrop, 

Caldwell, Hays, Travis, and Williamson and the cities of Austin, 

Bastrop, Elgin, Lockhart, Luling, Round Rock, and San Marcos. 

In meetings with officials of the Austin EAC to develop the 

idling rule MOA, concerns arose regarding language in the 

locally enforced idling restrictions. Austin EAC members voiced 

concern that parts of §114.517, Exemptions, were ambiguous 

and needed revision. Members of the Austin EAC felt that 

§114.517(7) and (8) could be misinterpreted to mean that a 

transit vehicle could idle for a total of one hour. There was 

also concern that the commission's rule conflicted with Texas 

Department of Transportation (TxDOT) guidelines for vehicle 

idling by employees. Austin EAC members brought to the 

commission's attention TxDOT's policy regarding idling. The 

guidelines advise employees to idle their vehicles to operate the 

air conditioner or heating system for employee health and safety 

while they perform an essential job function related to roadway 

construction or maintenance. In many instances on-road and 

off-road vehicles at roadway construction sites must remain in 

idle mode during nonmal operations. The commission agrees 

with the Austin EAC members that the locally enforced idling 

restrictions should be revised in light of these concerns. At the 

request of the Austin EAC members, the commission adopts 

revisions to the locally enforced motor vehicle idling rule. 

The commission also adopts revisions to the idling rule to 

conform to legislation passed in 2005. On May 16, 2005, the 

79th Legislature passed House Bill (HB) 1540, amendments to 

Texas Health and Safety Code, Chapter 382, Subchapter B, 

§382.0191, Idling of Motor Vehicle While Using Sleeper Berth. 

The bill, effective September 1 , 2005, states that the "commission may not prohibit or limit the idling of a motor vehicle when 

idling is necessary to power a heater or air conditioner while a 

driver is using the vehicle's sleeper berth for a government-mandated rest period." In addition, the bill states that, "no driver 

using the vehicle's sleeper berth may idle the vehicle in a school 

zone or within 1,000 feet of a public school during its hours of 

operation," or else be subject to a fine not to exceed $500. 

This rulemaking amends the rule on idling limits for gasoline 

and diesel-powered engines in motor vehicles within the jurisdiction of any local government in the state that has signed an 

MOA with the commission to delegate 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 and will help to ensure 

the reduction in nitrogen oxides (NO.) and volatile organic compound (VOC) emissions, which is needed by local governments 

to achieve or maintain attainment of the federal eight-hour ozone 

standard. These idling limits will lower NO, emissions and other 
pollutants from fuel combustion. Because NO, is a precursor to 

ground-level ozone formation, reduced emissions of NO will result in ground-level ozone reductions. ' 

Currently, there are no federal regulations governing idle time for 

motor vehicles. Therefore, the state has the authority to control 

motor vehicle idling. The requirements developed by the commission for this NO, emission reduction strategy will result in restrictions on the time allowed for motor vehicle idling. 

EPA methodology assessing the benefits of this NO emission 

reduction strategy demonstrated that by the year' 2007 the 

idling limits will reduce NO, emissions in the Austin EAC area 

by 0.67 tons per day. The commission believes that these 

amendments to the rule will not reduce the amount of reductions 

demonstrated. 

SECTION BY SECTION DISCUSSION 

The amendment to §114.512, Control Requirements for Motor 

Vehicle Idling, amends the existing paragraph as subsection (a). 

The amendment to §114.512 also adds subsection (b), which establishes that, "no driver of a motor vehicle may use the vehicle's 

sleeper berth for a government-mandated rest period if the vehicle is within a school zone or within 1,000 feet of a public school 

during its hours of operation." Any offense under subsection (b) 

is punishable by a fine not to exceed $500. The requirements 

under subsection (b) expire on September 1, 2007, just as in HB 

1540. 

Adopted §114.517(1) provides an exemption for a motor vehicle 

that has a gross vehicle weight rating of 14,000 pounds or less, 

but only if before September 1, 2007, it does not contain a 

sleeping berth. That is to say, after September 1, 2007, any 

vehicle that has a gross vehicle weight rating of 14,000 pounds 

or less will be exempt from any idling restriction. Until then, 

these vehicles that contain a sleeper berth are subject to the 

rule. The amendment to §114.517(4) replaces the phrase, "not 

including" with "other than." The amendment to §114.517(7) 

replaces the phrase, "comfort/safety" with "comfort and safety." 

The amendment to §114.517(4) also adds the phrase, "or 

public." This change is necessary to combine the exemptions 

in §114.517(7) and (8), thereby clarifying the intent of the rule. 

The amendment to §114.517(8) eliminates language exempting 

idling up to 30 minutes for, "the primary propulsion engine of 

a motor vehicle used for transit operations." The amendment 

to §114.517(8) adds a new exemption for, "the primary propulsion engine of a motor vehicle being used to operate the air 

conditioning or heating system for employee health or safety 

when the employee is using the vehicle to perform an essential 

job function related to roadway construction or maintenance." 

One reason this exemption has been added is because in most 

types of construction equipment (e.g., dump trucks, etc.) the 

operator must remain in the vehicle throughout the workday 

for both operational and safety reasons. Furthermore, most 

heavy- duty, on-road vehicles such as dump trucks, asphalt 

maintenance units, and aerial devices have power takeoff units 

that operate ancillary equipment attached to the vehicle and 

that are powered by the primary propulsion engine. Therefore, 

the primary propulsion engine must remain in an idling mode. 

Adopted §114.517(11) allows for the exemption of, "the primary 

propulsion engine of a motor vehicle when it is necessary for the 

driver to power a heater or air conditioner while he/she is using 

the vehicle's sleeper berth for a government-mandated rest 

period." Section 114.517(11) expires on September 1, 2007 .. 

This language has been added in order to ensure that the rule 

is compliant with the requirements set forth in HB 1540. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

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

§2001.0225, and determined that the rules are not subject to 

§2001.0225 because although the rulemaking meets the definition of a "major environmental rule" as defined in the statute, it 

does not meet any of the four applicability requirements listed 

in §2001.0225(a). The regulatory analysis requirements of 

Texas Government Code, §2001.0225 only apply to a major 

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

by state law; 2) exceed an express requirement of state law, 

unless the rule is specifically required by federal law; 3) exceed 

a requirement of a delegation agreement or contract between 

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

rule solely under the general powers of the agency instead of 

under a specific state law. Specifically, this rulemaking amends 

the rules that limit heavy-duty motor vehicle idling within the 

jurisdiction of any local government in the state that has signed 

an MOA with the commission to delegate enforcement to that 

local government. The amendments clarify current rule requirements and implement the new requirements of HB 1540. 

Currently, there are no federal regulations governing idle time 

for motor vehicles. This rulemaking action therefore does not 

exceed a standard set by federal law. The amendments are 

needed to implement state law, and the rulemaking therefore 

does not exceed an express requirement of state law. The 

amendments do involve a compact, which is an agreement or 

contract between the state and an agency or representative of 

federal government to implement a state and federal program, 

however, the amendments do not exceed the requirements of 

that compact. This rulemaking helps the Austin EAC area continue to meet the milestones of the compact and demonstrate 

continuing attainment of the eight-hour ozone standard. Finally, 

this rulemaking was not developed solely under the general 

powers of the agency. Because this rulemaking does not meet 

any of the four applicability requirements, Texas Government 

Code, §2001.0225 does not apply, and a regulatory impact 

analysis is not required. 

TAKINGS IMPACT ASSESSMENT 

Under Texas Government Code, §2007.002(5), "taking" means: 

1) 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 §17 or §19, Article I, 

Texas Constitution; or 2) a governmental action that affects an 

owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, 

in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 

25% in the market value of the affected private real property, determined by comparing the market value of the property as if the 

governmental action is not in effect and the market value of the 

property determined as if the governmental action is in effect. 

The commission completed a taking impact analysis for this rulemaking action. Promulgation and enforcement of the rules do 

not affect private real property in a manner that would require 

compensation to private real property owners under the United 

States Constitution or the Texas Constitution. The adopted rules 

ADOPTED RULES May 12, 2006 31 TexReg 3901 
are not a government action that affects private real property in 

a manner that restricts or limits an owner's right to the property 

that would otherwise exist in the absence of the governmental 

action. Therefore, the adopted rules do not cause a taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the rulemaking and found that this 

rulemaking is an action identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, or will affect an action/authorization identifted in §505.11, and therefore, requires that applicable goals and policies of the Texas Coastal Management 

Program (CMP) be considered during the rulemaking process. 

The commission determined that under 31 TAC §505.22, this 

rulemaking action is consistent with the applicable CMP goals 

and policies. The CMP goal applicable to this rulemaking action 

is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)}. No new sources of air contaminants will 

be authorized and ozone levels will be reduced as a result of this 

rulemaking action. The CMP policy applicable to this rulemaking 

action is the policy that commission rules comply with regulations 

in 40 Code of Federal Regulations, to protect and enhance air 

quality in the coastal area (31 TAC §501.14(q)). This rulemaking 

action complies with 40 Code of Federal Regulations. Therefore, 

in compliance with 31 TAC §505.22(e), this rulemaking action is 

consistent with CMP goals and policies. 

PUBLIC COMMENT 

The commission held a hearing on this proposal on January 10, 

2006, at 10:00 a.m. at the Texas Commission on Environmental Quality, 12100 North 1-35, Building E, Room 201 S, in Austin, 

Texas, but no oral comments were received. The public comment period closed at 5:00 p.m on January 17, 2006. Written comments were received from the Capital Area Council of 

Governments (Capital Area COG), Houston Regional Group of 

Sierra Clubs (Sierra Club-Houston), and EPA. 

RESPONSE TO COMMENTS 

Capital Area COG and Sierra Club-Houston commented that 

they support the proposed amendments and corresponding revisions to the SIP. Capital Area COG commented that the rules 

clarified language in the current exemptions and addressed concerns related to TxDOT's employee idling policy. 

RESPONSE 

The commission appreciates the support for the locally enforced 

motor vehicle idling limitations and the proposed amendments. 

The commission agrees that the amendments will clarify idling 

requirements and provide for consistency with employee safety 

idling policies and regulations. 

EPA commented that the revision to §114.517(1 ), which 

amended the exemption to include vehicles that do not have 

sleeper berths and the addition of paragraph (11) which exempts 

a motor vehicle when idling is necessary to power a heater or air 

conditioner while a driver is using the vehicle's sleeper berth for 

a government-mandated rest period will weaken the SIP rules 

that it approved in 2005. 

EPA commented that it will not be able to approve these adopted 

amendments into the SIP unless the commission can provide 

substitute reductions or modeling to show that attainment can 

be met without the credits affected by these changes. EPA com31 TexReg 3902 May 12, 2006 Texas Register 

ments further that programs in an approved SIP must still be 

enforced unless EPA approves a SIP revision. 

RESPONSE 

The commission disagrees with the comment that these amendments weaken the idling requirements and thus the SIP. The 

commission is committed to implementing idling restrictions 

contained in the EPA-approved SIP. The purpose of the adopted 

amendments is to clarify idling restrictions for affected vehicle 

owners and operators and provide local jurisdictions with clearer 

and more consistent enforcement responsibilities, and not to 

weaken the idling requirements. The amendments and new 

exemption also ensure that the rulemaking is consistent with 

statute provisions found in HB 1540, 79th Legislature, 2005, 

and will expire September 1, 2007. 

To date, the commission has only taken credit for idling restrictions in the Austin EAC SIP. The commission has made a commitment in the Austin EAC SIP to make up reduction shortfalls 

from idling restriction rules through Texas Emission Reduction 

Program project reductions, if needed. However, a shortfall is 

not anticipated. In the SIP, the commission used EPA's Guidance 

for Qualifying and Using Long Duration Truck Idling Emission Reductions in State Implementation Plans and Transportation Conformity to determine that the maximum benefit from idling restrictions placed on diesel-powered "18-wheeler'' vehicles would be 

a 0.67 tons per day reduction of NO, for the five-county Austin 

EAC area. 

Based upon the fact that the Austin EAC includes the Texas 

Emission Reduction Program as a backup measure for any idling 

reduction shortfall, and the expiration date of September 1, 2007, 

for the amendments added from HB 1540, the commission disagrees that new substitute reductions or modeling need to be 

developed to monitor continued attainment as a result of this 

rulemaking. This is especially the case for the Austin EAC area 

since the five-county area is currently designated an attainment 

area, and if monitored nonattainment in the future could not be 

designated nonattainment until December 31, 2007, at the earliest. The commission did not revise the rule in response to this 

comment. 

STATUTORY AUTHORITY 

The amendments are adopted under Texas Water Code (TWC), 

§5.1 03, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC, and 

under Texas Health and Safety Code, Texas Clean Air Act 

(TCAA), §382.017, which provides the commission with the 

authority to adopt rules consistent with the policy and purposes of the TCAA. The amendments are also adopted under 

TCAA, §382.011, which authorizes the commission to control 

the quality of the state's air; §382.012, which authorizes the 

commission to prepare and develop a general, comprehensive 

plan for the control of the state's air; §382.019, which authorizes 

the commission to adopt rules to control and reduce emissions 

from engines used to propel land vehicles; §382.0191, which 

authorizes use of a sleeping berth for a government-mandated 

rest period; and §382.039, 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 amendments implement TCAA, §§382.002, 

382.011, 382.012, 382.019, 382.0191, and 382.039. 
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 April 27, 2006. 

TRD-200602354 

Stephanie Bergeron Perdue 

Acting Deputy Director, Of ce of Legal Services 

Texas Commission on Environmental Quality 

Effective date: May 17, 2006 

Proposal publication date: November 25, 2005 

For further information, please call: (512) 239-6087 

+ + + 

TITLE 37. PUBLIC SAFETY AND CORRECTIONS 

PART 13. TEXAS COMMISSION ON 

FIRE PROTECTION 

CHAPTER 421. STANDARDS FOR 

CERTIFICATION 

37 TAC §421.3 

The Texas Commission on Fire Protection (TCFP) adopts an 

amendment to §421.3, concerning minimum standards set by 

the TCFP, in Chapter 421, entitled Standards for Certification. 

The amendment is adopted without changes to the proposed 

text published in the March 10, 2006, issue of the Texas Register (31 TexReg 1623) and will not be republished. The adopted 

amendment adds functional position descriptions for Fire Service Instructor I, II, and Ill, which had not previously existed in 

§421.3. 

The TCFP has determined the amendment to be in compliance 

with Texas Government Code, §419.022(b). 

No comments were received from the public regarding the proposed amendment. 

The amendment is adopted under Texas Government Code, 

§419.008, which provides the TCFP with the authority to adopt 

rules for the administration of its powers and duties; and Texas 

Government Code, §419.032, which provides the TCFP with the 

authority to prescribe the means of presenting evidence of the 

fulfillment of the qualifications for appointment as fire protection 

personnel. 

Cross reference to statute: Texas Government Code, §419.008 

and §419.032. 

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 May 1, 2006. 

TRD-200602416 

Gary L. Warren, Sr. 

Executive Director 

Texas Commission on Fire Protection 

Effective date: May 21, 2006 

Proposal publication date: March 10, 2006 

For further information, please call: (512) 936-3821 

+ 

CHAPTER 425. 

37 TAC §425.13 

+ + 

FIRE SERVICE INSTRUCTORS 

The Texas Commission on Fire Protection (TCFP) adopts new 

§425.13, concerning individuals serving as coordinators prior to 

March 1, 2006, in Chapter 425, entitled Fire Service Instructors. 

The new rule is adopted without changes to the proposed text 

published in the March 10, 2006, issue of the Texas Register 

(31 TexReg 1624) and will not be republished. The purpose of 

the adopted new rule is to provide, for a limited period of time, a 

qualifying path to advance to Fire Service Instructor Ill certification for those individuals serving as facility coordinators prior to 

March 1, 2006. 

The adopted new rule provides that for one year only from March 

1, 2006, individuals who possess a Fire Service Instructor II certification will be eligible to be certified for Fire Service Instructor 

Ill after meeting certain requirements. The individual must submit an application for certification to the commission and provide documentation from the head of a fire department or other 

organization that the individual: 1) has been assigned or is currently assigned as a chief training officer or coordinator of record; 

and 2) has demonstrated the minimum job performance requirements of National Fire Protection Association (NFPA) Standards 

1 041 , entitled Standard for Fire Service Instructor Professional 

Qualifications. 

The TCFP has determined this new rule to be in compliance with 

Texas Government Code §419.022(b). 

No comments were received from the public regarding the proposed new rule. 

The new rule is adopted under Texas Government Code, 

§419.008, which provides the TCFP with the authority to adopt 

rules for the administration of its powers and duties; Texas 

Government Code, §419.022, which provides the TCFP with 

authority to establish minimum educational, training, physical, and mental standards; and Texas Government Code, 

§419.028(3), which provides the TCFP with the authority to 

certify persons as qualified fire protection personnel instructors 

under conditions which the TCFP prescribes. 

Texas Government Code, §§419.008, 419.022, and 419.028 are 

affected by this rulemaking. 

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 May 1, 2006. 

TRD-200602417 

Gary L. Warren, Sr. 

Executive Director 

Texas Commission on Fire Protection 

Effective date: May 21, 2006 

Proposal publication date: March 10, 2006 

For further information, please call: (512) 936-3821 

+ + + 

CHAPTER 431. FIRE INVESTIGATION 

The Texas Commission on Fire Protection (TCFP) adopts 

amendments to §431.11 and §431.201, concerning minimum 

ADOPTED RULES May 12, 2006 31 TexReg 3903