Kathleen HartnettWhite, 

### Chairman R. B. "Ralph" Marquez, 

### Commissioner Larry R. Soward, 

### Commissioner Glenn Shankle, 

### ExecutiveDirector 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducing andPreventing Pollution



## May 15, 2006

Richard E. Greene, Regional Administrator U.S. Environmental Protection Agency

- Region 6 1445 Ross Avenue 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 ofAir 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 ofadditive; specifies that the executive director must consult with EPA before approving an alternative test method; revises the documentation requirements for the alternative diesel formulation approvalprocedures; revises the minimumrequirementsforcandidate 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; clarifiesdemonstration 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 requireproducers to submit alternative emission reductionplans that are eitherdeveloped in accordance withthe EPA's Unified Model oruse diesel credits from early introduction oflow-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, 79thLegislature, 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 andcorresponding revisions to the SIP. Thisactionrepeals 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 ofthe public hearing, and the accompanying orders. I look forward to your expeditious approval ofthese SIP revisions.

# c~~~'-{-j?J/ubK1threen Hartnett White Chairman
KHW/lb

cc: The Honorable Rick Perry, Governor ofTexas 

## Mr. Zak Covar, Office ofBudget, Planning and Policy, Office ofthe 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 ofAir 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 thatthe Austin EarlyAction 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 ofthe public hearing and
is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation ofTestimony

o Staff Recommendations (including Order and Texas Register

### publication)

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle, Austin, Texas 78753. Forfurther information, please contact Santos Olivarez at (512) 239-4718.

# PUBLIC NOTIFICATION AND PROPOSAL

### PUBLIC NOTIFICATION

Notification to the public ofthe 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 ofthe proposed rules in the November25, 2005, issue ofthe Texas Register 

### (30 TexReg 7828).

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

### (30 TexReg 8473).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker ofthe House
Lieutenant Governor
Alamo Area Council of Governments Capital Area Planning Council City of Dallas Department of Environmental and Health Services City of Dallas Department ofAviation City of Fort Worth Environmental Management Department City of Houston Department of Health and Human Services City ofVictoria 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 EastTexas Regional Planning Commission
Texas Department ofTransportation
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 1Monday, 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

IMPLEMENlATIOI< 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** Heou**larion~** §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 10:00a.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 Ihe 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!IVprotec! 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 Environ**mem~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~~i 1** 

### ~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 emissiondiesel 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 Jutwary 17. :!006.**Th~ prnpo~t!t1**  1ules may be: viewed on tht**commi~~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) staffis 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 thatnotice ofthe oppo unity to commentmustbe published in the TexasRegisterno laterth · the30thday beforethe dateon whichthepublic commentperiod 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 ofan 

### 0 ifa comment discloses facts or considerations that the consent is inappropriate, improper, inadequate, or inconsistent with the requirements ofthe statutes and rules within the commission's orders andjrmitsissued in accordance with the commission's regulatory authori

. Additional notice ofchanges to a proposed AO is not required to .e published ifthose changes are made in response to written commen s. A copy of**e~ch**proposedAO is avail ble for public**inspe~tion** at b_oth the commissiOn'scentral office, locattidat 12100Park35 Circle, BuildingA, 3rdFloor, Austin, Texas

### 78753~.· (512) 239-3400andattheapp.licable regional office listed as follows Comments about an AO should be sent to the attorney designated for eAO atthe commission's central office at P. 

### 0.Box 13087,MC**17~,** Austin, Texas 78711-3087 and mustbereceived by 

### 5:00p.m. on

### J~''uary 16,2006. Comments may also be sent by facsimile machine t the attorney at (512) 239-3434. Thedesignated attorney is available t discuss the AO and/orthe commentprocedure 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 ofpetroleum 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 oflhe 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 ChristijTexas78412-5503, (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 underpressure 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 causedby accidental releases ruising from the operation ofpetroleum USTs; and30TAC §334.48(c),

# llY failing to conduct inventory control andreconciliationfor allUSTsi4volvedintheretail sales ofpetroleum substances used as motorfuel;**a~**Bryan's3, 30TAC §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% ofthe 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 ofPublic 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 ofAir 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 ofFederal Regulations §51 .I02, ofthe United States Environmental Protection Agency (EPA) regulations concerning state implementation plans (SIPs).



## INADDITION December 16, 2005 30 TexReg 8473A 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 oforal or written comments by interested persons. Registration will begin 30minutes prior to the hearing. Individualsmaypresentoral orwritten statementswhen called upon in orderofregistration. 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 staffmembers 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 SenateBill l032, 79th Legislature, 2005. (RuleProjectNo. 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) Theproposed rulemakingwould also amend the definition ofadditive; specifythatthe executivedirectormustconsultwiththeEPAbefore approving an alternative test method; revise the documentation requirementsforthealternativediesel fonnulation approvalprocedures;revise the minimum requirements for candidate fuel formulations to only allow diesel fuel with less than 15 parts permillion sulfurto beused for testing purposes; specify thatthe test engine used for altemative diesel fuel formulation testing musthave a minimum of 125 hours ofuse and exhibit stable operation before beginning the testing and must not exceed 110% ofits applicableexhaustemission standards when usingthe reference fuel; addclarifying language

### to the alternativetest sequences to specify the number ofhot 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 oftotal hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from the comparison calculation but specifying that the emissions ofTHC and NMHC ofthe candidate fuel must not exceed the emission certification standards applicable to the year model ofthe test engine; clarify that only those records relating to sampling require a statement declaringthe appropriate aromatic hydrocarboncontent standardofthefuel; revisereportingrequirements 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 testingrequirements; establish proceduresthatrequireproducers to submit alternativeemissionreduction plansthat are developedin accordancewith theEPA's Unified model to demonstrate that the average ofall on-road diesel fuelproduced in any given calendaryear thatis sold, offeredfor sale, supplied, oroffered for supply by theproducer in the counties affected by theserules achieves atleast a5.5% reduction in nitrogen oxideemissions fortheyear2007, and at least a 6.2% reduction from the average ofall 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 producerto the attainment counties in 2003, 2004, and 2005, and can only be used to demonstrate compliance through December 31, 20I0, in attainmentcounties withintheTexas 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 ofLegal 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, ChiefEngineer'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 ofWater 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 of25 acre-feet ofwa er (normal maximum operating level) on an unnamedtributary

### ofDe~p Hollow Creek, tributary ofFrederick Creek, tributary ofCibolo Crepk, tributary ofthe San Antonio River, San Antonio River Basin, wit11 a surface area of3.5 acres ofland 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. ofthe 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** ofKendall 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, August4, and November 3, 2005. The application was**~eclared** administratively complete and filed with the Office ofthe**C~ief** Clerk on August 12, 2005. Written public comments and requests for apublic meeting shouldbe received in the Office ofChiefClerk, at theaddress provided in the information section below, within 30 daysjofthe date ofnewspaper publication of the notice. 

# 1 . INFORMATION SECTION A publicmeeting is intended or the taking ofpublic comment, and is not a contested case hearing. The ExecutiveDirector can cJnsider approval ofan application unless awrittenrequest for acontest{dcasehearing is filed. To request a contested case hearing, you mustfubmit the following: (I) your name (or for a group or association, an pfficial representative), mailing address, daytime**~hone** number, and frx number, ifany: (2) applicant's name and penmt number; (3) the**st~tement** "[I/we] request a contested case



## 30 TexReg 8474 December 16, 2005 Texas Registeroffice, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repeals are proposed underTWC, §5.1 02, concerning General Powers; §5.103, concerning Rules; and §5.105, 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 ofTHSC, 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 ofthe state's air; §382.012, concerning StateAir Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan forthe control ofthe state's air; and §382.019, which authorizes the commission to adopt rules to control and reduce emissionsfrom engines used to propel land vehicles. The proposed repeals implement THSC, §§382.002, 382.011, 382.012, and 382.019. §114.150. RequirementsforMass TransitAuthorities. §114.151. Requirements forLocal GovernmentsandPrivateEntities. §114.153. Exceptions. §114.154. Exceptionsfor Certain Mass TransitAuthorities. §114.155. Reporting. §114.156. RecordKeeping. §114.157. 

### LowEmission Vehicle FleetProgram Compliance Credits. This agency herebycertifiesthatthe proposal has been reviewed by legal counsel and foundto be within the agency's legal authority to adopt.
Filed with the Office ofthe 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 ofan 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 ofan 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 agreementto maintain attainmentwith the federal eight-hour ozone national ambient air quality standards. The rule package also provided local governments in otherareas ofthe state the option ofapplying these rules in their areas when additional control measures were needed to achieve or maintain attainment ofthefederal eight-hourozone standard in thefuture. 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 ofthat 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 allowthem 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 ofthe 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 jobfunction 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 ofthe Austin



## 30 TexReg 7828 November 25, 2005 TexasRegisterEAC 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 thevehicle's sleeper berth for a government-mandated**r~st ~eriod."**  In addition, th.e bill statesthat, "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 subjectto 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 ef**fectiv~ implem~ntation**  of rules to reduce the extended idling of gasol1ne and d1esel-powered heavy-dutyvehicles 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 attainmentofthe 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 ex**e~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 ofconstruction equipment (e.g., dump trucks, etc.) the operator must remain in the vehicle throughoutthe 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 motorvehicles within thejurisdiction ofany 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 ofmotorvehicles 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 prohibita commercial driverfrom using the sleeper berth and idling the enginewithin a school zone orwithin 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 impactthe Austin EAC members and any other local governments in the statewho wish to adopt additional control measures to achieve or maintain attainment ofthe 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 governmentsthe authorityto fine drivers$500 for using theirsleeper 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.



## PROPOSEDRULES November 25,2005 30 TexReg 7829PUBLIC 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 enforcementofand compliancewith the proposed rules would be the provision of additional options for local governmentsto useto ensure a reduction in NO and VOC emissions needed to maintain attainmentwith the federal eight-hourozone standards. Nofiscal implicationsare anticipated to businessesorindividuals as a result ofthe implementation ofthe 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 IMPACTANALYSIS 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, itdoes notmeetany ofthefourapplicability 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 ofstate 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 ofthe 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 ofstate law. The proposed rules do involve a compact, which is an agreementorcontract between the state and an agency or representative offederal 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 ofthe 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 notapply, 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 ortemporarily or permanently, in a manner that restricts or limits the owner's right to the propertythatwould otherwiseexist in the absence ofthe 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 ofthe property as ifthe governmental action is not in effect and the market value ofthe 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 mannerthat restricts or limits an owner's right to the property that would otherwise exist in the absence ofthe 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, orwill 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 determinedthat under31 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 ofaircontaminants will be authorized and ozone levels will be reduced as a result ofthe proposed rulemaking. The CMP policy applicable to this rulemaking action is the policythatcommission rules comply with regulations in 40 Codeof 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 consistencyofthe proposed amendmentswith the CMP during the public comment period. ANNOUNCEMENT OF HEARING



## 30 TexReg 7830 November 25, 2005 Texas RegisterPublic 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 Number2005-064-114-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 amendmentsare proposed underTexasWater Code (TWC), §5.103, 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 consistentwith the policy and purposes ofthe 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 implementtransportation 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. ControlRequirements for Motor Vehicle Idling.**~** Noperson shall cause, suffer, allow, orpennittheprimary propulsion engine ofa motorvehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in §114.51 0 ofthis title (relatingto Definitions), is notin motionduringtheperiod ofApril I through October 31 ofeach calendar year. {!D No driverusingthe vehicle's sleeperberth may idlethe vehicle in a school zone orwithin I,000 feet ofa public school during its hours ofoperation. 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 ofthis title (relating to Control Requirements for MotorVehicle Idling) do not apply to: (I) a motorvehicle thathas agrossvehicle weightrating of 14,000pounds orless, and ifbefore September I, 2007, does nothave a sleeper berth; (2)

- (3) (No change.) (4) the primary propulsion engine ofa motor vehicle providing a power source necessary for mechanical operation, otherthan [oot iootllemg] propulsion, and/or passenger compartment heating, or air conditioning; (5)

- (6) (No change.) (7) the primary propulsion engine ofa motor vehicle that is being used to supply heat or air conditioning necessary for passengercomfortand safety [comfort/safety] in [these] vehicles intendedfor commercial orpublic passengertransportation, orpassengertransitoperations, [sefteelffitses] in which case idling up to a maximum of30 minutes is allowed; (8) the primary propulsion engine ofa motor vehicle being usedto provideairconditioning orheatingnecessaryfor employee health or safety while the employee is using the vehicle to perform an essential job function related to roadway construction ormaintenance [the j3fimary propttlsion eHgffie 

### efa metor-vehicle l:!Seti fuf passenger tffiftsit operations 

### in wftieftease

### ffil.i.ng 1:1f3 to a maldmum 

### ef**~**mintttes is altewed]; (9) theprimarypropulsion engine ofamotorvehicle being used as airport ground support equipment;[ or] (I0) theownerofa motorvehicle rented orleased to aperson that [whe] operates the vehicle and is not employedbythe**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 certifiesthatthe proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office ofthe 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 Forfurther information, please call: (512) 239-6087



## CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION ORMODIFICATION SUBCHAPTER L. 

## PERMITS FOR SPECIFIC DESIGNATED FACILITIES



## PROPOSEDRULES November25, 2005 30 TexReg 7831Kathleen HartnettWhite, 

### Chairman 

### R. B. "Ralph" Marquez, 

### Commissioner Larry 

### R. Soward, 

### Commissioner Glenn Shankle, 

### ExecutiveDirector 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by

### ReducingandPJ·eventing Pollution



### NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ONENVIRONMENTAL QUALITY ONPROPOSED 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 ofAir Pollution from Motor Vehicles, under the requirements of Texas Health and Safety Code, §382.017; Texas Govermnent Code, Chapter 2001, SubchapterB; and40 Code ofFederalRegulations §51.102, ofthe UnitedStates EnvironmentalProtection Agency (EPA) regulations concerning state implementationplans (SIPs).
Apublic hearing will be held in Austin, Texas, onJanuary 10, 2006, at 10:00 a.m. in Building E, Room 201S, at theTexas CommissiononEnvironmental Quality complexlocated at 12100Park35 Circle. The hearing will be structured for the receipt oforal or writtencomments by interestedpersons. Registration willbegin 30minutespriorto the hearing. Individuals may presentoral or written statements when called upon in order ofregistration. 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 staffmembers will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.
The proposedrulemaking wouldrepeal the state regulations implementing the Texas Clean FleetProgram

.in its entirety, in accordance with Senate Bill1032, 79thLegislature, 2005. (RuleProjectNo. 2005-067-

114-EN)

In addition, the proposed rulemaking would implement House Bi111540, 79th Legislature, 2005, as well
as add language thatthe Austin Early Action Compact members have requested be added to more greatly protect public health and safety. (Rule Project No. 2005-064-114-EN)
Theproposed rulemaking would also amend the definition ofadditive; 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 approvalprocedures; revisethe minimumrequirements for candidatefuel formulations toonly 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 ofuse and exhibit stable operationbefore beginning the testing and mustnot exceed 110% ofits applicable exhaust emission standards whenusing the reference fuel; add clarifying languageto the alternativetest sequencesto specify the number of hot start test cycles that must be performed for each sequence; revise the emission comparisonrequirementsto be more consistent with similar CaliforniaAir Resource Board regulations by removing the emissions oftotal hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from the

### comparison calculation but specifying that the emissions ofTHC and NMHC ofthe candidate fuel must not exceed the emission certification standards applicable to the year model ofthe test engine; clarify that only those records relatingto sampling require astatementdeclaring the appropriate aromatichydrocarbon content standard of the fuel; revise reporting requirements for producers with alternative emission reductionplansto includeinformationintheirquarterlyreportthatis requiredto becollectedin 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 averageofall non-roaddieselproduced by the producerfor use in the affected counties, and allow alternativeemissionreductionplans to use dieselcreditsfrom early gasoline sulfurreduction that
canonly be generated fromthe gasoline suppliedby the producerto 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 CmrunissiononEnvironmental 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 pertainto. Cmrunents mustbe received by 5:00p.m. on January 17,**2006~** 

### The proposed rules maybeviewedonthecmrunission'sWeb site at

## http://wwv.l.tceq.state.tx.uslnavlrules!propose_adopt.html. Forfurther information, pleasecontactMorrisBrown, Air Quality Planning and ImplementationDivision, at (512) 239-1438 or ErikGribbin, AirQuality Planning and ImplementationDivision, at (512) 239-2590.


## Issued inAustin, 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 AgencyClean Air Coalition:
Chairman MayorWill Wynn

City ofAustin Vice-Chair Judge Samuel Biscoe Travis County Commissioner Clara Beckett Bastrop County MayorJames

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 ofRound Rock Mayor Susan Narvaiz

City ofSan

Marcos Judge Jim Powers

Hays County MayorTom Scott City of Bastrop

Judge H. T.

Wright Caldwell County Capital Area Council of Governments 

### 2512 IH 35 South, Suite 200 Austin, Texas78704 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:
Thankyou forthe opportunity to comment on the proposed amendments to Chapter 114, Control ofAir Pollution from MotorVehicles, 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 EarlyAction Compact (EAC) members' concerns about clarifying language in the exemptions, particularlywith regard to transit vehicle idling and TxDOT's employee idling policy. We believe thatthe 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 ofgasoline and diesel-powered heavy-dutyvehicles. This rule will help ensure the reduction in nitrogen oxide and volatile organic compound emissions necessaryto achieve and maintain attainment ofthe federal eight-hour standard. These mobile source emission reductions are especially importantto the region, as reductions from TxLED fuel are still uncertain.
Thank you forthe opportunity to comment and foryour ongoing commitment to ensuring cleaner airfor 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

# HoustonRegional 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 ofall 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 notjust 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

"Whenwetrytopickout anything

## byitself, wefindithitchedto everythingelse 

## intheuniverse."

## johnMt_tir

Printed on 100% Kenaftree free paper 

# eI. 

## 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 ofthe proposal, the TCEQ states, "Diesel engines emitvery 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 110% 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 opportunityto comment. Thankyou. Sincerely,
Brandt Mannchen Chair, Air Quality Committee Houston Regional Group ofthe Sierra Club Lone Star Chapter 5431 Carew Houston, Texas 77096 713-664-5962 brandtshnfbt@juno.com

2

# I UNITED STATES ENVJRONMENTAL PROTECTIONAGENCY REGJON 6



## Mr. Branclon Smith · 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 

# 1!1N**~.** 1: 

## •:;y:**:·~**

......

# .**~** 

## Texas**Commi::.;~i(m** llll 

### Environmental 

## Quality ChieJEngineer's Office 

## MC2D6 P.O. Box 13087 Austin, TX**78711~3087** 

### Reference: Rule ProjectNos. 2005-067-114-EN;**2005-064~** 

### 114-I:::N: and 2005-063-114-EN

Dear

## Mr. Smith:


## Thank you for

## the 

## opportunityto comment

## on proposed

## revi:::ions tothe

## Texas Low 

## EmissionDiesel Rule, theLocallyEnforced MotorVehic::le 

## Idling 

## J

## .imitations rule, and theTexas**Clea~** 

## FleetRule. TheRegion 6 detailed comments on 

## these rules arc found in the 

## enclosure. 

## Additional comments from 

## EPA will 

## be forwarded 

## when we 

## rcccivc them

.



## .Tn summary, we 

## do not oppose

## the l"epcal oftheTexas 

## Clean 

## 1-/leetprogram 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, Wemaynot

## be ableto 

## approve thel'cvisions lo Lhe

## LocallyEnforced· · MowrVehicle

## Idling

## Limitations becausethat

## would be a 

## weakening ofthe 

## fe.derally appl'Ovcd 

## STP. Ourcomments on 

## the TexasLow EmissionDiesel rule revisions focus 

## primarily on lesl

. 

## methods and alternative emission reduction plans. While we 

## support many ofthe

## revisions that


## are pro-posed for

## Lhis rule, our

## concern is 

## with correctingdirector 

## discretion andwith establishing
areplicable procedure thatis**approv~ble.** 

## We also.offcr comments 

## as requested on NoHarm Testing and 

## use ofcreditsfor

## Earlylmplementmion 

## ofLuw Sulfur Gasoline. 

## Region 6 continues to offer

## Texas oursupport during the rule 

## revision process. 

## Please let 

## us know how we maybe offurther assistance.

. · Sin,.elyy(mrs,



# .**/~~,12.//~ ~_;Thoma.r:;** **Digg~.** Chief · 

# r· - AirPlanningSection


## Enclol-iure

cc: Camlice Gauelt,

## Director Air Quality Planning and

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

## .EPA Region 6 

## Comments

Texas 

## Clean JilccL Rule Repeal



## ·we

# do not oppose the repeal 

## oftheTexas Clean FleeT 

## program, bm we 

## do take 1ssue with lhe substiLute

## measures thatare proposed to lJSc

## in its place.
Section 24q(2)(A) ofthe 1990 Clean Air Actreguire::; 

## states to 

## implement the Clean Fuel Fleer 

## (CFF) program in certain ozonenonatlninmentareas. Sccrlon 

## I82(c)(4)(B) allows astate to· ··opt om ofthe CFFprogramprovided

## the state submits a

## SlPrevision consisting ofa substitute

. progr£Lm that results in 

## as much 

## oi· gl'eaterlong term emissions reductions .as the CFPprogram. The EPA may approve such arevision only if

## the substimte program is riot reguired bytheAct. Seefor e.J.ample, 

## 70 Fed. Reg. 13425, 13435 (Mlm::h 

## 21, 2005). Thus, the 

## state ofTexas may substituteitsTexas Clean Fleet (TCF) program with any other programthat 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 eithertheTier

## .U Ol'

## heavy-duty diesel engines (HDDE) standards. Also, the termination 

## ofrhcTCF

## program priorto EPA approval 

## ofany substitute

## meastlrc

## would likelyresult in aweakening 

## ofthe er:.isting SIP and thus, appearto be in vio1a6on oT the Act. Kentucky Resources Coutlc'il, Jnc., v. 

## EPA, 304F.Supp.- 

## 2d 920 (W.D

## .Ky. 2004).· Fu1thcr, 

## the

## EPAhas determined that only certain vehicles 

## and engines 

## certified to 

## current Part 86 

## emissions standards are either**a~** 

### stringent

## ormore 

## stringentthan corresponding CFF cmissio11 standards. 

## Accordingly, the

## EPA has advlsecl t1eet

## managerS seeking 

## lo meet tbe CFF program requirements that only suchvehicles 

## and engines .meet CFF emission standards. See

· EPA guidance

## lettet CCD-05-12., (July21, 2005), which is availablE: on-line at:



## http://www.cpa.gov/otaq/ccn/dcannfr/ccd0512.pdL 1l would, therefore, 

## bepremature to

## asserr that eithertheTierII orfTDDE slandar&; have supersededthe CFF standards.
We recommendthat a demonstration be provided in 1he 

## final**rul~** 

## submittal to show 

## what 

## federal CFF 

## crcdiu: need 

# Lobt:: 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.

· LocallyEnr()rced MotorVehicle

## ldlingLimitationsRule


## The addition ofexemprion 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 comfmtfor d1i

## vers ofThese 

## 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 showthal 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. ·

.TexasLow .Emission Diesel RuleRevision


## We recommend**l~e** 

## followiTig for some ofthe 

## proposed provisions:

Section 114.6. We do not see the value of**addin~** 

### the phrase "requiredto he" in this definition. Some

## maymisjnterpretthis 

## to mean that addiLives can be'llSCd 

## in texas before

## being approved andregistered

## by the 

## EPA. Weknowthat 

## is notthe

## case, therefore we recommend 

## thischange 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

## mustbe

dernonstratedto tl1e satisfaction oflhe 

## Ex,x:uLive Director

## andtheEPA.
Section 114.315(c)4. AddLhe words "and

## in the

## Environmental Technology Verification 

## Pt·otocoI

## ofthe

## EPA,

## where**applicab~e"** 

## at the 

## endofthe reference to 40CFR86 StlbpanN.

### Note:**17u~** 

### TCEQpre!amble onpage 6 re.f'ers lo 

### the

. 

## necessity of being consistent1ivith 

## the E1"VProrocol. 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 Qualitywill 

## be addressing

## this further

## in comments which W5

## \>Vill for.,;,ard to you. ,Section 114.315(d). 

## (d)(2) reads: 

## "Ifthe alternative diesel fuel 

## formulation has been demonstrated

## to the satisfaction of

## the executive dircc!Or 

## to .achieve comparable 

## or 

## betterreductions in emissions ofNOx 

## [,THC, NMHC,] and 

## PM underthis 

## subsection

..'' To

## b~**consi~Lent** with 

## (d), ''and the EPA"

.should

# be added

## just afterexecutive director

## .here. '
No 

## harm tests. 

## The supplier

## shouldbe 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 includedin the document underrevjew. The keyfactor in detennining "theapproved fuels andfuel 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 enginemanufacturers 

## should be able to

### provide samples of all the elastomers 

## exposed to 

## the fuel, 

## used in 

## lhehengines. The sample could then be, 

## tcsred for resistance 

## to the 

## fuel beingevaluated. There are several ASTM standards to lest 

### theproperties 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 ofsuch 

## tests prior

## to approval ofa

## formulation WOL11d 

### he appr.oprjate. 

## With regard to**meclwnic~d** 

## wear and tear 

## ofthe engine, 

## the protm;nl fnr 

## a ·no harm· test 

## to check whether "the approvedfuels ancl fl1e1 additives 

## are not

## hnrmful to the mechanical operation nf 

## diesel'engines" would extend to a periodequivalentto 

## amillion

## 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 ate::;t using 

## aJubrkant 

## with.known characteristics andthe candidate fuel shouldprovide useful results. 

## Section 114.318. We do 

## not opposetheremoval 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 

## arevision ofthis Section and**tho~>t3**

## provisions

## ·be approve!=\ into the SIP hyEPA, 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. Thatpublic participation 

## is 

## being carried oul · 

## through the notice and comment

## pc1iodin which the Slateis enacting

## the revised 

## 114

.. 318. EarlyImplementation ofLow

## Sulfur Gasoline Credits. 

## While il

## it:: 

## ini::licatcdthat credits for early

## implementation oflpw sulfurgasoline may 

## on1y be generatedln 2003, '2004 and 2005,

## you are

## taking comments for 

### a11owing 

## thc1se credits to be usedthrough 

### 2010. 

## Thebenefits for

## early implementation oflow sulfur

## gasoline will 

## havebeen 1·eplaecd years prior 

## by the manc;iated low**s~tlfur** 

### gasoline. 

## ]3y

## March l, 2006, 

## low sulfurgasoline 

## will be fully implemented in Texas

## by all 

## the major**reti~ers** 

### thatprovide the majority ofgasoline soldat

## retail in

## the state. Usin.g early 

## credits· until2010is problematic 

## fc)r the

## Beaumont-PeltAlthu!' 

## (BPA) nonat'tainment urea andthe Early

## AcTion Compacl areas that would

## benefit greatlyfrom real-time NOx 

### reductions. Although 

## itis possible for 

## the MOBILE model 

## to calculate abenef"it to

## pre:-Tier2 vehicles. we do 

## not believe the model canreflectreal-world b.enefits 

### becauseoftheuncertainty offueling 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 pastDecember31, 2006. 

## Rea.1-t1me NOx benefits from a low-NOx fuel.could potentiallybeused to

## partially !':atisfy the federal Clean 

## Fuel Fleet

## requirementfor 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 onEnvironmental Quality PublicHearingRegistration
Location: Austin (10:00 a.m.) Date: January 10, 2006



# . Concerning: 30 TAC Chapter 114 (Rule ProjectNo.'s2005-063-114-EN, 2005-064-114-EN, i005-067-114)
Name and Address Representing Presenting OralTestimony?

· (Circle One) 

### (Please Print) 

# J; !'I 

# Uyt 1/i)Oo

## u

## <. 0 41.

# yX'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_

# lWls**P~P't-** fL**lfu~** 

# Coc..

# G..h**~**(J ('..._ 

### ®No 

## fj[(.g

## LO"-~ 

# A.tL

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
ChiefEngineer's Office 

# vDate: October 21, 2005

DocketNo.: 2005-1443-RUL Subject: Corrnnission Approval for Proposed Rulemaking Chapter 114, Control ofAir Pollution fromMotor Vehicles House Bill 1540: Locally EnforcedIdling Rule Amendment Rule ProjectNo. 2005-064-114-EN

Reasons for therule package: This rulemaking will implementHouse Bill (HB) 1540, 79thLegislature, 2005, Regular Session, effective September 1, 2005. 

## Inaddition, in response to 

### a requestfrom the AustinEarlyAction Compact(EAC) task force; additionalprovisionswould addanexemption to allow idling atroad constructionormaintenance sites wherenecessary to

### protectroadworkers' healthand safety, and clarify·a passenger transit exemption.

• Under what authority are we proposing these changes?
• HB 1540, §1 and §2, amends Texas HealthandSafety Code, Chapter 382, SubchapterB by adding §382.0191.
• Texas Clean 

## Air Act (TCAA), Texas Health and Safety Code, §382.011, concerning General Powers and Duties, which authorizes the commissionto controlthe quality ofthe state'sair; §382.012, concerningStateAirControlPlan,whichauthorizesthe commission toprepareanddevelop ageneral, comprehensiveplanforthe control ofthe state'sair; and §382.017, concerning Rules, whichprovides the commission with the authority to adopt rules consistent withthe policy andpurposes ofthe TCAA.

• Is this rulemakingrequiredbyfederal rule or state statute? Which ones? Yes, aportion of the rulemaking is requiredby 

### HB 1540.

• Arethere any legal deadlines bywhich theserules mustbe proposed, adopted, oreffective? No.

• Whatissue(s) orproblem(s) arewetryingto solve? The commission'sLocallyEnforcedIdling ·Restrictions Rule must be revised due to passage ofHB 1540, which places some limits on the types ofidling 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 requestedthatthe commissionrevise anexemptionintherulefortransitvehiclesthattheyconsider vague. AustinEACmembers also asked that an exemptionbe added for idling operations atroad construction or maintenance sites.

### Commissioners Page 2 October 21, 2005
Re: Docket No. 2005-1443-RUL

• Why

## is itimportantthatwe do 

## this rule package? So that local governments may enforce an air quality measure that will aid.in the attainment ofnational ambient air quality standards.

• Otherimportantbackgrouridor historicalinformation. The Austin EAC members signed an MOAwiththecommissionsothattheEAC couldenforceidling restrictions startingApril1, 2006. Scope ofthe rulemaking: This rulemaking implementsprovisions ofHB 1540. HB 1540 states that, "the commissionmay notprohibitor limitthe idling ofa motorvehicle whenidling is necessaryto power aheater or air conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest period." Thebill also statesthat, "nodriverusing thevehicle's sleeperberthmay idle the vehicle in a school zone orwithin 1,000 feet ofa public school during its hours ofoperation," or else be subjectto a fine notto exceed $500. This rulemaking would amend the rule on idling limits for motorvehicleswithinthejurisdictionofanylocal governmentinthe statethathas signedanMOU with the commission to delegate enforcement authority to that local government.
Inmeetings with officials ofthe Austin EAC to develop an idling restriction MOA, members of the EAC felt that parts ofthe existing rule could bemisinterpreted to mean that a transit vehicle could idle for a total ofone hour, instead ofone-halfhour as therule intended. 

## In addition, there
was also concern that the commission's rule conflictedwith Texas Department ofTransportation 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 requiredby federal rule: None.

• Changesrequiredby statestatute: HB 1540requiresthatidling bepermitted ifitisperformed to operate the heater or air conditioner ofa 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 ofa public school during its hours ofoperation.

• Staffrecommendations that are D.ot expressly required byfederalrule or state statute: • Delete existing language regarding idling by transit vehicles 

## in one exemption and move it into another.
• Createanexemptiontotherule fortheprimarypropulsionengine ofamotorvehiclebeing used to operate the air conditioning .orheating system for driver health or safety when the driver is using the vehicle to perform an essential job function related to roadway construction ormaintenance. Impact ontheregulated community: 

## • Who will be affected? Drivers ofmotor vehicles with sleeper berths and drivers working at roadway constructionsites. Theirhealthand safetywillbeprotectedbecausetheywill be allowed to runtheir primary propulsion engine for heating or cooling ofthe cab.

• Does it create a group ofaffected persons who were not affected previously? How? Yes, drivers ofvehicles with sleeperberths anddrivers atconstruction sites. These driverswill 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? Ifso; estimate. No. Impact onthe public: • Who will

## be·affected? Persons inpublic schools during their normalhours ofoperation will be protected from emissions from vehicle idling caused by drivers using their sleeper berths to take
a government-mandated restbreak.

• Does it create a group ofaffected persons who were not affected previously? How'? The proposed rulemaking would permit more idling, hence air 

## pollution will affect more citizens. However, the type ofidling allowed under HB 1540 is not allowed hear a public school, thus protecting public school students.and faculty, whichprior to this 

## provision did not exist.

• Will therebe a fiscal impact? Ifso, estimate. None. Impact onagency programs: There 

## is no impact on agency programs.
Stakeholdermeetings:
• Have any stakeholdermeetings beenheld? Yes.

• Withwhom'? Meetings with the Austin EAC members have beenheld·.

• Whatwerethegeneral·sentiments'? There were concerns thatthe rule needed anexemptionfor drivers supporting roadway construction personnel. There were also concerns that one ofthe exemptions to the idling rule was ambiguous and could be interpreted to meanthat certaintransit vehicles could idle forup to orie hour Instead ofone-halfhour as the ruli intended.

• Wereanychangesmadeinresponsetostakeholderconcerns? Yes, we agreedwith all oftheir proposed changes to the rule. Policy Issues:
• Whatpolicy issues are affected'? None.



# • Areany policies that arenot currentlybasedonrulebeingmadeinto a rule? No

. 

# • What are the consequences 

## ifthis rulemaking**~not** 

## approvedto go forward? None

. 

# • Are there alternatives? No

. Potentially controversial matters: None. Key points in

## rulemaking schedule: • Anticipated proposal date:
• Anticipated 

## Texas Registerpublication date: • Public hearing date (if

## any): • Public comment period: • Anticipated adoption date: N()vember 9, 2005 Noverri.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, 

# StaffAttorney, 239-5757 Patricia Duron, Texas Register Coordinator, 239-6087
Attachments

cc: ChiefClerk, 5 copies Executive Director's Office David C. Schanbacher, P.E. Jason Skaggs Ashley K. Wadick BrentWade Office ofGeneral Counsel

. Roland Castaneda, Rule ProjectManager

PatriciaDur6n, Texas Register Coordinator

cc (without attachments): GarrettArthur, StaffAttorney 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 ofthe 

## 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 OFTHE FACTUAL BASIS FOR THEADOPTED RULES
The commission adopts these revisions to Chapter 114, Control ofAir 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 ofan 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 ofmeasures 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 ofthe 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 ofthe state the option ofapplying these rules in their areas when additional control measures

were needed to achieve or maintain attainment ofthe 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 ofthat 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 ofthe Austin MSA worked to ratify a memorandum ofagreement (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 ofthe Austin
EAC area on August 1, 2005. Members ofthe Austin EAC area signing the MOA included the
counties ofBastrop, Caldwell, Hays, Travis, and Williamson and the cities ofAustin, Bastrop, Elgin,
Lockhart, Luling, Round Rock, and San Marcos.

In meetings with officials ofthe 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 ofthe Austin EAC felt that



## 2

### §

## 114.517(7) and (8) could be misinterpreted to mean that a transit vehicle could idle for a total ofone
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 essentialjob 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 ofthese concerns. At the request ofthe 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 ofMotor Vehicle While Using Sleeper
Berth. The bill, effective September 1, 2005, states that the "commission may notprohibit or limit the idling ofa 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 restperiod." 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 ofa public school during its hours ofoperation," 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 thejurisdiction ofany 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 ofrules to reduce the extended idling ofgasoline 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
ofthe 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 ofNOx 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 ofthis 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 ofreductions
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 ofa motor vehicle

may use the vehicle's sleeper berth for a government-mandated rest period ifthe vehicle is within a
school zone or within 1,000feet ofa public school during its hours ofoperation." 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 ifbefore 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 ofa motor vehicle used for transit operations." The amendment to §114.517(8) adds a new exemption for, "the primary propulsion engine ofa 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 essentialjob function related to roadway construction or maintenance."
One reason this exemption has been added is because in most types ofconstruction 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 takeoffunits 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 ofa motor vehicle when it is necessary for the driver to power a heater



## 5

## Texas Commission on Environmental Quality Chapter 114- Control ofAir 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.

FINALREGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed this rulemaking in light ofthe regulatory analysis requirements ofTexas
Government Code, §2001.0225, and determined that the rules are not subject to §2001.0225 because although the rulemaking meets the definition ofa "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 ofTexas Government Code, §2001.0225 only apply to a major environmental rule, the result ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement ofstate law, unless the rule is specifically required by federal law; 3) exceed a requirement ofa delegation agreement or contractbetween the

state and an agency or representative ofthe federal governmentto implement a state and federal

program; or4) adopt a rule solely under the general powers ofthe agency instead ofunder a specific

state law. Specifically, this rulemaking amends the rules that limit heavy-duty motor vehicle idling
within thejurisdiction ofany 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 ofHB 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 CommissiononEnvironmental Quality Chapter 114

- Control ofAir Pollution from Motor Vehicles Rule Project No. 2005-064-114-EN Page 7

therefore does not exceed an express requirement ofstate law. The amendments do involve a compact,
which is an agreement or contract between the state and an agency or representative offederal
government to implement a state and federal program, however, the amendments do not exceed the requirements ofthat compact. This rulemaking helps the Austin EAC area continue to meet the
milestones ofthe compact and demonstrate continuing attainment ofthe eight-hour ozone standard. Finally, this rulemaking was not developed solely under the general powers ofthe agency. Because
this rulemaking does not meet any ofthe 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 ofthe governmental action, in whole or in part or temporarily orpermanently, in a manner that restricts or
limits the owner's right to the property that would otherwise exist in the absence ofthe governmental action; and is the producing cause ofa reduction ofat least 25% in the market value ofthe affected private real property, determined by comparing the market value ofthe property as ifthe governmental
action is not in effect and the market value ofthe property determined as ifthe governmental action is
in effect.



## 7

## Texas Commission onEnvironmental Quality Chapter 114- Control ofAir 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 ofthe rules do not affectprivate 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
ofthe 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 ActImplementation 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 ofcoastal natural

resource areas (31 TAC §501.12(1)). No new sources ofair contaminants will be authorized and ozone
levels will be reduced as a result ofthis rulemaking action. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations in 40 Code ofFederal Regulations, to protect and enhance air quality in the coastal area (31 TAC §501.14(q)). This



## 8

### Texas Commission onEnvironmental Quality Chapter 114

- Control ofAir Pollution from Motor Vehicles Rule Project No. 2005-064-114-EN Page 9

rulemaking action complies with 40 Code ofFederal Regulations. Therefore, in compliance with 31
TAC §505.22(e), this rulemaking action is consistent with CMP goals and policies.

PUBLIC COMMENT
The commissionheld a hearing on this proposal onJanuary 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,
butno oral comments were received. The public commentperiod closed at5:00 p.m on January 17,
2006. Written comments were received from the Capital Area Council ofGovernments (Capital Area COG), Houston Regional Group ofSierra 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 supportfor the locally enforced motor vehicle idling limitations
andthe 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 ofparagraph (11) which exempts a motor vehicle when



## 9

## Texas CommissiononEnvironmental Quality Chapter 114

- Control ofAir 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 thatthese amendments weaken the idling requirements andthus the SIP. The commission is committed to implementing idling restrictions
contained in the EPA-approved SIP. The purpose ofthe adopted amendments is to clarify idling
restrictions for affected vehicle owners and operators andprovide localjurisdictions with clearer
andmore consistent enforcement responsibilities, andnot to weaken the idling requirements.
The amendments andnew exemption also ensure thatthe 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 inthe Austin EAC SIPto make up reduction shortfalls from idling restriction rules through Texas Emission Reduction Program project reductions, ifneeded. However, a shortfall is not anticipated. In the SIP, the commission used EPA's Guidancefor Qualifying and Using LongDuration TruckIdling Emission Reductions in State Implementation
Plans and Transportation Conformity 

## to determine that the maximum benefit from idling

10

## Texas Commission onEnvironmental Quality Chapter 114

- Control ofAir 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 ofNOx 

## for the five-county Austin EAC area. 

## Page 11

Based upon the fact thatthe Austin EAC includes the Texas Emission Reduction Program as a backup measure for any idling reduction shortfall, andthe expiration date ofSeptember 1, 2007,
for the amendments added from HB 1540, the commission disagrees that new substitute
reductions ormodeling need to be developed to monitor continued attainment as a result ofthis 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 nonattainmentuntil December 31, 2007, atthe 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
SUBCHAPTERJ: OPERATIONAL CONTROLS FOR MOTOR VEHICLES
DIVISION 2: LOCALLYENFORCED MOTOR VEHICLE IDLING LIMITATIONS §114.512, §114.517

§114.512. Control Requirements for Motor Vehicle Idling.



## (a) No person shall cause, suffer, allow, orpermit the primary propulsion engine ofa motor
vehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in §114.510
ofthis title (relating to Definitions), is not in motion during the period ofApri11 through October 31
ofeach calendar year.

(b) No driver using the vehicle's sleeper berth may idle the vehicle in a school zone or within 1,000 feet ofa public school during its hours ofoperation. 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 ofthis 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 ifbefore September 1, 2007, does not have a sleeper berth;

## (2) a motor vehicle forced to remain motionless because oftraffic 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 ofa 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 ofa motor vehicle being operated for maintenance

or diagnostic purposes;

(6) the primary propulsion engine ofa motor vehicle being operated solely to defrost a windshield;

(7) the primary propulsion engine ofa 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
of30 minutes is allowed;



## 2

## (8) the primary propulsion engine ofa 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 essentialjob function related to roadway construction or maintenance;

(9) the primary propulsion engine ofa motor vehicle being used as airport ground
support equipment;

(10) the owner ofa 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

### LoOOnlliiCastanuela, ChiefClerk**·r~ws**

### Commissionon Environments! Quality



## ORDERADOPTING AMENDED RULES AND REVISIONS TO THE STATEIMPLEMENTATION PLAN

Docket No. 2005-1442-RUL
OnApri126, 2006, the Texas CmmnissiononEnvironmentalQuality (Commission), during apublic meeting, considered adoption ofamended§§ 114.6, 114.312, 114.313, 114.315, 114.316, 114.317 and 114.318. The commission adopts these amendments in Chapter 114, Control ofAir Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan (SIP). The adoption amends the definitionofadditive; specifiesthatthe executivedirectormustconsultwiththeUnitedStatesEnvironmental Protection Agency (EPA) before approving an alternative test method; revises the documentation requirementsfor the alternative diesel formulation approvalprocedures; revisesthe minimumrequirements 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 CaliforniaAir 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 reductionplans that are either developed in accordance with the EPA'sUnified Model oruse 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 Commissionhas the authority to control the quality ofthe state's air and to issue orders consistent with the policies and purposes ofthe Texas Clean Air Act, Chapter 382 ofthe Tex. Health & 

## Safety Code. The proposed rules were published for comment in the December 16, 2005, issue ofthe 

## 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 ofFederal 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 ofits intended action to the public, including interested persons, the Regional Administrator oftheEPA, and all applicable local airpollutioncontrol 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 commentperiod. Prior to the scheduled hearing, copies ofthe 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 ofinterestedpersonsregarding theproposed 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 oftestimony includes the names ofall interested groups or associations**offer~g** 

### comment on the proposed amended rules and the SIP revisions and their position concerning the

,, 

### same.
IT IS THEREFOREORDERED BY THECOMMISSION thatthe 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 ofthis Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator ofEPA as aproposedrevisionto the Texas SIPpursuantto the Federal Clean Air Act, § 110, as amended.
This Orderconstitutes the Orderofthe Commissionrequired by the AdministrativeProcedureAct, Government Code, § 2001.033.
If

### any portionofthis Orderis for any reasonheld to be invalidby a courtofcompetentjurisdiction, the invalidity ofany portion shall not affect the validity ofthe remaining portions

.

Date issued: 

# . MAY 03

# 2006 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

# ·~

athleen HartnettWhite, Chairmantion and, as appropriate, the sulfur properties and volumes ofthe gasolinethat is beingused to generate credit in accordance with subsection (b)(3) or (4) ofthis section. This agency hereby certifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority. Filed with the Office ofthe 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 FORMOTOR VEHICLES DIVISION2. 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 withoutchangestothe proposedtextas published in the November25, 2005, issue ofthe 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 agreementto maintain attainmentwith the federal eight-hour ozone national ambient air quality standards. The rule package also provided local governments in otherareas ofthe 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 attainmentofthe federal eight-hourozone 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 ofthat 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 allowthem to enforcethe 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 ofthe Austin EAC area signing the MOA included the counties of Bastrop, Caldwell, Hays, Travis, and Williamson and the cities ofAustin, 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 essentialjob 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 aschool 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 ofthe federal eight-hourozone standard. These idling limits will lower NO, emissions and otherpollutants 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 tothe rule will not reduce the amountof 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 amendmentto §114.512 also adds subsection (b), which establishesthat, "no driverofa motorvehicle may usethe vehicle's sleeper berth for a government-mandated rest period ifthe vehicle is within a school zone orwithin 1,000 feet ofa 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, justas 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 ofthe rule. The amendmentto §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 forthe 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 ofthe 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 ortemporarily 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 propertythatwould otherwise exist in the absence ofthe governmental action; and is the producing cause of a reduction of at least 25% in the market value ofthe affected private real property, determined by comparing the market value ofthe property as ifthe 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 ataking impactanalysis forthis 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 orthe Texas Constitution. The adopted rules



## ADOPTEDRULES May 12, 2006 31 TexReg 3901are not a government action that affects private real property in a mannerthat 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 underTexas 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 CoordinationAct Implementation Rules, 31 TAC §505.11, orwill 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 ofcoastal natural resource areas (31 TAC §501.12(1)}. Nonewsourcesofaircontaminantswill be authorized and ozone levels will be reduced as a result ofthis rulemaking action. The CMP policy applicable to this rulemaking action is the policythatcommission rules complywith 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 complieswith 40 Code ofFederal 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 currentexemptions and addressed concerns related to TxDOT's employee idling policy. RESPONSE The commission appreciates the supportforthe 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 motorvehicle when idling is necessaryto 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 ableto approve these adopted amendments into the SIP unless the commission can provide substitute reductions or modeling to show that attainment can be met withoutthe credits affected by these changes. EPA com

## 31 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 commentthatthese 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 ofthe adopted amendments is to clarify idling restrictions for affected vehicle owners and operators and provide localjurisdictionswith 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 notanticipated. In the SIP, the commission used EPA's Guidance forQualifyingand Using Long Duration TruckIdlingEmission Reductions in State Implementation Plans and Transportation Conformityto determinethatthe maximum benefitfrom 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 asa backup measureforany idling reduction shortfall, and the expiration dateofSeptember 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 underTexas 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 forthe control ofthe 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.Thisagency hereby certifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority.
Filed with the Office ofthe 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 ofthe 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 herebycertifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary ofState 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 Forfurther information, please call: (512) 936-3821 

# + CHAPTER425. 37 TAC §425.13 

# + + FIRE SERVICEINSTRUCTORS

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 oftime, 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 providesthatfor one year onlyfrom 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 achieftraining officerorcoordinatorofrecord; and 2) has demonstrated the minimumjob performance requirements ofNational Fire Protection Association (NFPA) Standards 1041 , entitled Standard for Fire Service Instructor Professional Qualifications. TheTCFP 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 herebycertifiesthatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe 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



## ADOPTEDRULES May 

## 12, 2006 31 TexReg 3903