Kathleen Hartnett White, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Cotnmissioner Glenn Shankle. ExecutiueDirector 

# TEXAS COMMISSION ON 

# ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preuenting Pollution



### Docket Nos. 

### 2005-1442-RUL 2005-1443-RUL 2005-1444-RUL

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: On April 26, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Iinplementation Plan (SIP). The Commission adopted amendments to 55114.6, 114.312, 114.313, 114.315 

### - 114.318 in 30 Texas Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter 

### H, Low Emission Fuels, Division 2, Low Emission Diesel; and corresponding revisions to the SIP. This rulemaking amends the definition of additive; specifies that the executive director must consult with EPA before approviilg an alternative test method; revises the documentation requirements for the alternative diesel formulation approval procedures;revisesthe minimumrequirements for candidate fuel forinulations used for testing purposes; specifies requirements for the test engine used for alternative diesel fuel formulation testing; adds clarifying language to the alternative test sequences; revises the emission comparison requirements to be more consistent with similar California Air Resource Board regulations; clarifies demonstration methods for alternative diesel formulationapproval; clarifies records requirements relating to sainpliilg; revises reporting requirements for producers with alternative emission reduction plans; establishes procedures that require producers to subinitalternative emission reduction plans that are either developed in accordance with the EPA's Unified Modelor use diesel credits fromearly introduction oflow-sulfur gasoline in affected counties; and corrects citations and cross-references. (Rule Project No. 2005-063-114-EN)
Coinmissioil also adopted amendments to 5114.512 and 5114.517 in 30 TAC Chapter 114 and corresponding revisions to the SIP. This ruleinakingimplements House Bill 1540, 79th Legislature, 2005, Regular Session, as well as adds languagethat the Austin Early Action Coinpact ineinbers have requested be added so as to inore greatly protect public health and safety. (Rule Project No. 2005-064-1 14-EN)

P.O. Box 13087 Aust~n, Texds 78711-3087 5121239-1000 Intetnet address www.tceq.state.tx.us
~u~r~l~clo!~ $LL%.IL~ I LO(I,L bu l>,#\.<l I~I

### Mayor Greene Page 2

The Commission adopted the repeal of $$I 14.3 114.150, 114.151, and 114.153 

### - 114.157 in 30 TAC Chapter 114 and corresponding revisionsto the SIP. This action repealsthe stateregulations implementing the Texas Clean Fleet Prograin in its entirety, in accordance with Senate Bill 1032, 79th Legislature, Regular Session, 2005. (Rule Project No. 2005-067-1 14-EN)
Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the public hearing, and the accompanying orders. I look forward to your expeditious approval of these SIP revisions.



### K

# 1 thleen Hartnett White Chairman

cc: The Honorable Rick Perry, Governor of Texas Mr. 

### Zak Covar, Office of Budget, Planning and Policy, Officeof the Governor Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental QualityTexas Commissionon Environmental Quality Public Hearing January 10,2006 Concerning Revisions to 30 TAC Chapter 114,

Control of Air Pollution from Motor Vehicles House Bill 1540: Locally Enforced Idling Rule Amendment Rule Project No. 2005-064-1 14-ENIIVTRODUCTION

The Texas Commission on EnvironmentalQuality (commission) helda public hearinginAustin on January 10, 2006, to receive testimony regarding revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles; and corresponding revisions to the Texas state implementation plan.

Amended §114.512 and §I14.517 implement House Bill 1540, 79th Legislature, 2005, Regular Session, as
well as add language that the Austin Early Action Compact members have requested be added so asto more greatly protect public health and safety.

The comment period closed at 500 p.m. on January 17, 2006. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete record of the public hearing and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations (including Order and Texas Register publication)

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

# PUBLIC 

# NOTIFICATION AND PROPOSALPUBLIC NOTIFICATION

Notification to the public of the proposed revisionswas 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 FortWorth Star-Telegram: December 8,2005 Houston Chronicle: December5, 2005 Beaumont Enterprise: December5, 2005 Corpus Christi Caller-Times: December 3, 2005 El Paso Times: December5,2005 San Antonio Express-IVews: December 5, 2005 Tyler Morning Telegraph: December 5, 2005 Victoria Advocate: December6,2005

2. Publication of the proposed rules in the November 25, 2005, issue of the Texas Register (30 TexReg 7828).

3. Publication of the Notice of Public Hearing in the December 16, 2005, issue of the Texas Register (30 TexReg 8473).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker of the House Lieutenant Governor Alamo Area Council of Governments Capital Area Planning Council City of Dallas Department of Environmentaland Health Services City of Dallas Department of Aviation City of FortWorth Environmental Management Department City of Houston Department of Health and Human Services City of Victoria Planning DepartmentEast Texas Council of Governments El Paso City-County Health and Environmental District
El Paso Metropolitan Planning Organization Federal Highway Administration Galveston County Health District Harris County Pollution Control Department Houston-Galveston Area Council North Central Texas Council of Governments South East Texas Regional Planning Commission Texas Departmentof Transportation Texas Transportation Institute Arkansas Department of Pollution Control and Ecology Louisiana Department of EnvironmentalQuality
New Mexico Environmental Department Oklahoma Department of Environmental Quality U. S. Environmental Protection Agency

### Example of Newspaper Classified Ad

Aust~n American-Statesman 

### 195 statesman.com I Monday, December5,*OO5 - 

## - -- .* - -

I

ron~oemllal Oualltu will conducl a public healing to tccelve lestitmnnv conrernfnu revtrtnru rn30 rAC tllapler 1li.Cunlroi of A!, Poll~~ldc>lo from htolnt VPIIILIQ~, ~~lide~ IIW

renc8ucmentrollexar Iblealrh nnrl Saiely Code. 4382,Oli; Texar Gavrrnnlent Corle. Cllanle! 2001. 5\dchaoter R. and .I0 todc of Fedelal R&LI- la'rioni 651.102, of rile Uooirrl Srale: Lnvitorlm~ntalProrecltn:, Agrncy IEPAi regulauonr con cerrlivrg state illlpbtnrntsliot, laor ISIPSI.A ptll,llc heari~lg nSi!l re Ireld ill Auslin, Texas, on Iantlary 10. 2W6, at 10:00a.n!. ill Uuildino C, Hoolll 2015, sl the 1.135 Cnlnnlissiu!l 01, Environ. )ua111y cunlplex located at 12100 Perl: 35 Circle. l'ht he.lrilIn will be rlruclt!red lo, the

enuugn llnl;lr rtlowed lor evely ~nr~rcsted rlpesntlto spcar Tnrrc rill oe no ow$> olrcussront dur. 

### I ! -~- .~ reccipi'of oral or written con?. menl? by lnlcrerrerl persons. Hegirlralian will begin 30 mu!- ulrs rior la tllc Ilearing. tndi. vicluaf: ma" pesent oral or wrltrm SraLemenrs wl~ert called upon In order of regtstrarion. A tinlr. Illnil niay be estabiirhed a8 llle Ilearisla lo ahlute thar

-.. -

~ ' Inq 111; niaihg: Inowewer. aqency

slall rnemDr?% will be rvalinblp ' to dl~~rr Ine propo$st 30 Inon. urer pro00 10tne nearing and ulll answ~f ymn~ Drlore ano al. rer the iearlno The olouorcd '

rt~lernakirlg w6uld rebea) :he state regularions implementing 

# I
the ~cias clean i~eet ~vmatn in

# I

' doc~rrnentalion rcquire,npnrr lor rhc alterllativc diesel lormulalion ~~!iit~n~un~'req~~it~~nents fo,r calld~dale fuel lor~nularinns lo only allow diesel luelwill?lerr Ii,an I5 p;lrts (pel inillion lu11111 to hc llsetl In1 lerrinrl purlloser. specify rllal rhe leri rnqlne used lot alternativr diesel ~IPIIornlulaliun terling !null hsve a msrlttt!ilnl 01 125 hotrlr or ore exl>ll~!lslablr arlrralmotl hpfole lheglnnlng Ihr. lerting and applicable exhausl emlrriorl rtzndardr when orlnq the rclercnce fuel: adrl rlarilvlno IanguAg? lo lhc allmnat~vc'te~ IXILICIICC~ 10 sl>ecllyrl~r nrtnlber 01 llol sralr lr51 ~vclcr thal IIIL~SI lbc p<rlor811crl lor e.lrll lequenre, (rvrlc Ihc rnllrrlon rorrrpprirolr I?LJLI~~~~IIPIII~ 10 be lnnle conrirlenl wllll Ilmilar Calllor18m Air Rerotucr Board rr.qulallonr hv lenl:l\,lnli The emiriionr 01 loel hydrocarbons (THO 2nd non !n?-*It1aneI~Y~!OL~~LIOII.. INHI~O iloln lile Compnllson cillrularion Ihtl fll~~ilj~itl" 11161 Ihc ernilrioeli c: IHi and NMHC r,t the I candidale lxvel !nu:! ~yot exceed lllr ernelloll ccrriircalcorl 

## 1 standards arll>llcabi- !u ~IIE veal rnodel ai the lev onqme, clirify 10 sarhdlno reot~it~ 6 slsien>e!;i produce15will1 Iilt.lndlive emls- ~iurr reduction plans lo include inlormstlon in tlleii quelrelly ueporr tl~atIS requird 10 be collrcred in arcordnncc wilh lllr

# II

drrlarlt?q 111e applopttal? 

### ! alunlzll; hvdroarboo rr.nlell' 

### ( 

### 1 rraniiard ol Ii~r fuel, rev~,e ~r , p:-ryn?.

, (y?ur!.nrFnrr lor ( emn~led to ~ip~~lle~~l~tC~q.11~IC~Lx~U1. All cantlnelllr sllrruh! relrrenre Ine rule pruiecl nun~berrIhar lhcy pertitin la. Camrnenlr tmlll k #erawedby 5:OIl pm or) Je!laary I:. 2006 The proporud tulel ,nay be viewed on Ihr cctntnisslun's Web 5ne at m~~~.~lwww.~crq.s~a~~~~x.~~~~~ii~~~; rttle~lproposc-idopl hlnrl. For lurrhcl ~nlorma~io~i. please ionlacr Mutn? Hrovun. All Uualny Plannln!) ~nrl lll~plelilenlall~n Uivitiun. a1 i51?123$- Ill!lor Erik Lrtbben Atr Ouah\v I't;lnnitm:l rnil l~n~~le~~~~nl~llo~~ UV.AM<I,-,. :I 15 121 ?;I! 2590 tk~te<! io Acnslin~ lexa: on INovemlrii 30. XI05 -- ;

8 IThe Texas Commission on
(TWC), $7.075. Section

A copy of each proposed A0is availfble for public inspection at both the commission's central office, locatdd at 121 00 Park 35Circle, BuildingA, 3rd Floor, Austin, Texas 78753 (512) 239-3400 and atthe applicable regional office listed as follows Comments about an A0should be sent to the attorney designated for

# k

eA0at the commission's cenwriting. (1) COMPANY: A1 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 correoive action and for compensating 

# r third parties for bodily injury and ~ropertydamage caused by accidental release arising from the opetation of petroleum underground storage tanks (USTs); 

# PENAL^^ $1,120; STAFF ATTORNEY Amie Richardson, Litigation Divi$on, MC 175, (512) 239-2999; REGIONAL OFFICE: Houston Redional Office, 5425 Polk Avenue, Suite H, Houston, Texas 77023-1486, (713) 767-3500. 

### I (2) COMPANY: American Chrom!: & Chemicals L.P.; DOCKET NUMBER: 2000-0711- MLMIE; TCEQ ID NUMBER: RN100210814; LOCATION: 380yBuddy Lawrence Drive on the south bank of the Corpus Christ1 Inner Harbor, Corpus Christi, Nueces County, Texas; TYPE OF/FACILITY manufacturing plant for processing chrornite ore and poducing chromium compounds; RULES VIOLATED: 30 TAC $33514and $327.5, and TWC, $26.121 and $26.266, by failing to preve?t an unauthorized discharge of groundwater contaminated with industrial waste that originated from the facility into surface waters of the 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 Number 00349, Effluent Limitations and Monitoring Requirement 1, a?d TWC, $26.121, by failing to comply with permitted limits at Optfall 101A; 30 TAC $1 16.115(c) and Air Permit Number 7736, Sbecial Condition Number 1, by failing to comply with special peqit conditions by allowing nitrous oxide emissions in excess of the $emit limit for a failed stack test dated June 29, 2000; PENALTY! :20,625; STAFF ATTORNEY: Amie Richardson, Litigation Division. MC 175, (512) 239-2999; r REGIONAL OFFICE: Corpus Fisti Regional Office, 6300 Ocean Drive, Suite 1200, Corpus ChristiiTexas 78412-5503, (361) 825-3100. (3) COMPANY: Exxon Mobil dorporation dba ExxonMobil Refining & Supply Company; DOC@T NUh4BER: 2004-081 8-AIR-E; TCEQ ID NUMBERS: HG-0232f.Qand RN102579307; LOCATION: 2800 Decker Drive, Baytown, 'Harris County, Texas; TYPE OF FACILITY petroleum rdning ant; RULES VIOLATED: 30 TAC $ 116.715(a), TCEQFlexible Pe 

# 2

. it Number 18287PSD-TX-730M2, and Texas Health and Safety Code, $382.085(b), by failing to prevent unauthorized emissions; PENA TY:$7,500; STAFF ATTORNEY Laurencia Fasoyiro, Litigation

# $ ivision, MC R- 12, (713) 422-89 14; REGIONAL OFFICE: Houston Regional Office, 5425 Polk Avenue, Suite H, Houston, Texas 77023- h86, (713) 767-3500. 

# 1 (4) COMPANY: MBE, Inc. Cfba Bryan's 2 and dba Bryan's 3; DOCKET NUMBER: 2003- 1'44-PST-E; TCEQ ID NUMBERS: RN101432334 and RN102375

# 1 $57; LOCATION: 901 East Main, San Augustine, and 462 Stat4 Highway 7 East, San Augustine County, Texas; TYPE OF FAqILITY: convenience store with retail sales of gasoline; RULES lVIOLATED: at Bryan's 2, 30 TAC $334.45(~)(3)(A), by failing toiinstall a secure anchor at the base of the dispenser in each presspized delivery or product line and a UL-listed emergency shutoq valve in piping systems in which regulated substances are conveyFd under pressure to an aboveground dispensing unit; 30 TAC $37.81S(a) and @), by failing to demonstrate acceptable financial assurance for taking corrective action and for compensating third parties for $bodily injury and property damage caused by accidental releases 4sing from the operation ofpetroleum USTs; and 30TAC $334.48(c),

## $failingto conduct inventory control and reconciliation for allUSTsiqvolved inthe retail sales ofpetroleum substancesused asmotor fuel; atjBryanls 3,30TAC $334.45(~)(3)(A), by failing to install a secure aqchor at the base of the dispenser in each pressurized delivery or prgduct line and a UL-listed emergency shutoff valve in piping system5 in which regulated substances are conveyed under pressure to ap aboveground dispensing unit; 30 TAC 5334.50@)(2)(A)(i)(III), by failing to test a line detector at least once per year for perfo ance and operational reliability; 30 

# i TAC 5334.48(c), by failing tq, reconcile inventory control records on a monthly basis in a maaer sufficiently accurate to detect a release which equals or exceed$the sum of 1%of the total substance flow-through for the month plus 130 gallons; and 30 TAC 5334.22(a) and 5334.128, by failing to pa$ UST and aboveground storage tank fees; PENALTY: $18,000; STYFATTORNEY: Courtney St. Julian, Litigation Division, MC 175, (512) 239-06 17; REGIONAL OFFICE: Beaumont Regional Office, 3870 Eastex Freeway, Beaumont, Texas 77703-1 892, (409) 898-3838. f TRD-200505616 I !

. Stephanie Bergeron Perdue Acting Deputy Director, Of ce ofLegal Services Texas Commission on ~nvirondental Quality Filed: December 6, 2005 i
Notice ofPublic Hearing on Proposed Revisions to 30 TAC Chapter 114 The Texas Commission on Environmental Quality (commission) will conduct apublic hearing to receive testimony concerning revisions to 30 TAC Chapter I 14, Control of Air Pollution from Motor Vehicles, under the requirements of Texas Health and Safety Code, 5382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations $51.102, of the United States Environmental Protection Agency (EPA) regulations concerning state implementation plans (SIPS).



### ADDITION December 16, 2005 30 

### TexReg 8473A public hearing will be held in Austin, Texas, on January 10, 2006, at 10:OO a.m. in Building E, Room 201S, at the Texas Commissio~l on Environ~ncntal Quality complex located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30minutes prior to the hearing. Individualsmay present oral 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 thehearing; however, agency staff members will be available to discuss the proposal 30minutes prior to the hearing and will answer questions before and after the hearing. The proposed rulemaking would repeal the state regulations implementing the Texas Clean Fleet Program in its entirety, in accordance with Senate Bill 1032.79thLegislature, 2005. (RuleProject No. 2005- 067-1 14-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. 2005-064-1 14-EN) Theproposed rulemalcingwould also amend the definition of additive; specifythat the executivedirectormust consult with theEPAbefore approving an alternative test method; revise the documentation requirements forthealternative diesel fonnulationapproval procedures; revise the minimum requirements for candidate fuel formulations to only allow diesel fuel with lessthan 15parts per million sulfurto beused for testing purposes; specify that thetest engine used for alten~ative diesel fuel formulation testing must have a minimum of 125hours ofuse and exhibit stable operation before beginning the testing and must not exceed 1 10% ofitsa~~licable exhaust emission standards when using the


# .. - reference fuel; add clarifying language to the alternativetest sequences to specify the number of hot start test cycles that must be performed for each sequence; revise the emission comparison requirements to be more consistent wit11 similar California Air Resource Board regulations by removing the emissions of total hydrocarbons (THC) and non-methane hydrocarbons (NMHC) from the comparison calculation but specifying that the emissions of THCand NMHC ofthe candidate fuel must not exceed the emission certification standards applicable to theyear model ofthe test engine; clarify that o~lly those records relatingto sampling require a statement declaringthe appropriate aromatic hydrocarbon content standard ofthefuel;revise reporting requirements for producers with alternative e~nission reduction plans to include information in their quarterly report that is required to be collected in accordance with the sampling and testing requirements; establish procedures that require producers to submit alternativeemission reduction plans that aredeveloped in accordancewith theEPA'sUnified model to demonstrate that the average of all on-road diesel fuel, produced in any given calendaryear thatissold,offered forsale, supplied,oroffered for supplyby theproducer in the counties affected by these rules achieves atleast a 5.5% reduction in nitrogen oxide emissions for theyear 2007, and at least a 6.2% reduction from the average of all non-road diesel produced by the prodocer for use in the affected counties, and allow alternative emission reduction plans to use diesel credits from early gasoline sulfur rednction that can only be generated from the gasoline supplied by the producer to the attainment counties in 2003,2004,and 2005, and can only be used to demonstrate compliance thro~~gllDecember 31,2010,in attainment counties within theTexas low emission diesel control area; and correct citations and cross-references. (Rule Prqject No. 2005-063- 114-EN). Persons who have special communication or other acco~nmodation needs who are planning to attend the hearing should contact Holly Vierk, Office of Legal Services, at (512) 239-01 77. Requests should be made as far in advance as possible. Written comments may be submitted to Brandon Smith, MC 206. Chief Engineer's Office, Texas Commission 011Environmental Quality, P. 0.Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-5687; or e-mailed to s@rtrles@/ceq.state.~x.us.All comments should reference the rule project numbers that they pertain to. 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 12ttp://wnrw.tceq.stateE tx.us/nav/~~~lm~ropose~adopt~I~tnl. For further information, please contact MomsBrown, 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 ~~~(ication Notice issued November 30, 2 05: 

# f

of the innundated land is evidenced by a General Warranty Deed in the official records

the notice. INFORMATION SECTION 

## (
A publicmeeting is intendcd or the taking ofpublic comment, and is not a contested case hearing.

# 1

The Executive Director can cinsider approval ofan applicvtion unless a written request for a contest "dcasehearing isfiled. To request a contested case hearing, you must ubmit the following: (1)your name (or 

# b for a group or association, an pfficial representative), mailing address, daytime phone number, and f x number, if any: (2) applicant's name 

### ? and pennit number; (3) the st@tement "[IJwe]request a contested case



### 30 

### TexReg8474 

### December 16,2005 Texas RegisteroBce, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repealsare proposed under TWC, $5.102, 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 of THSC, Chapter 382 (also known as the Texas Clean Air Act). The repeals are also proposed under THSC, $382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; $382.011, concerning General Powers and Duties, which authorizes the commissionto control the quality of the state's air; $382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; and $382.019, which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles. The proposed repeals implement THSC, $$382.002, 382.011, 382.012, and 382.019. $114.150. Requirementsfor Mass TransitAuthorities. $114.151. Requirements for Local GovernmentsandprivateEtitities. $114.153. Exceptions. $114.154. Exceptionsfor Certain Mass TransitAuthorities. $114.155. Reporting. $114.156. Record Keeping. $114.157. Lon] Emission Vehicle Fleet Program Compliance Credits. This agency hereby certifiesthatthe proposal has been reviewed by legal counsel andfoundto bewithinthe agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 10, 2005. TRD-200505192 Stephanie Bergeron Perdue Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 25, 2005 For further information, please call: (512)239-0177



### SUBCHAPTER 

### J. OPERATIONAL CONTROLS FOR MOTOR VEHICLES DIVISION 2. 

### LOCALLY ENFORCED MOTOR VEHICLE IDLING LIMITATIONS 30 TAC $114.512, $114.517 The Texas Commission on Environmental Quality (commission or TCEQ) proposes amendments to $114.512 and $114.517; and corresponding revisions to the state implementation plan (SIP). The amended rules will be submitted to the United States Environmental Protection Agency (EPA) as proposed revisions to the SIP. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The concept of an early, voluntary eight-hour air quality plan, or early action compact (EAC), was endorsed by EPA Region 6 in June 2002, then slightly modified and made available nationally in November 2002. The EACs are tailored to local needs and driven by local decisions. A key point of an EAC is the flexibility afforded areas to select emission reduction measures. Based on quality science, signatories may choose the combination of measures that meet both local needs and emission reduction targets. Each EAC recognizes that not every entity within the EAC area will implement every measure. Chapter 114, Subchapter J, Operational Controls for Motor Vehicles, Division 2, Locally Enforced Motor Vehicle Idling Limitations rule, was proposed at the request of the local air quality planning organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for use as a control strategy in its EAC agreementto maintain attainment with the federal eight-hour ozone national ambient air quality standards. The rule package also provided localgovernments inother areas ofthe state the optionof applying these rules intheir areas when additional control measures were neededto achieve or maintain attainment ofthefederal eight-hour ozone standard inthe future. The rules were adopted on November 17,2004. The December 18,2002, EAC committed the commission to incorporate a Clean Air Action Plan for the Austin area into the SIP and adopt a revised SIP by December 31,2004. The idling restriction rule was part of that attainment demonstration. While the Austin Metropolitan Statistical Area (MSA) was monitoring attainment with the eight-hour ozone standard, future monitoring could have shown nonattainment. Therefore, members of the Austin MSA worked to ratify a memorandum of agreement (MOA) with the TCEQ that would allow them toenforce the idling restriction rule in their region. The Locally Enforced Idling Restriction MOA was signed by the commission and members of the Austin EAC area on August 1, 2005. In meetings with officials of the Austin EAC to develop the idling rule MOA, concerns arose regarding language in the locally enforced idling restrictions. Austin EAC members voiced concern that parts of $114.517, Exemptions, were ambiguous and needed revision. Members of the EAC felt that $114.517(7) and (8) could be misinterpreted to mean that a transit vehicle could idle for a total of one hour. There was also concern that the commission's rule conflicted with Texas Department of Transportation (TxDOT) guidelines for vehicle idling by employees. Austin EAC members brought to the commission's attention TxDOT's policy regarding idling. The guidelines advise employees to idle their vehicles to operate the air conditioner or heating system for employee health and safety while they perform an essential job function relatedto roadway construction or maintenance. In many instances on-road and off-road vehicles at roadway construction sites must remain in idle mode during normal operations. The commission agrees with the Austin EAC members that the locally enforced idling restrictions should be revised in light of these concerns. At the request of the Austin



### 30 TexReg 7828 November 25, 2005 Texas RegisterEAC members, the commission is proposing revisions to the locally enforced motor vehicle idling rule. The commission is also proposing revisions to the idling rule to conform to legislation passed in 2005. On May 16, 2005, the legislature passed House Bill (HB) 1540, amendments to Texas Health and Safety Code, Chapter 382, Subchapter B, 5382.0191, 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 usingthevehicle's sleeper berthfor a government-mandated rest period." Inaddition, the bill states that, "no driver using the vehicle's sleeper berth may idlethe vehicle in a school zone or within 1,000 feet of a public school during its hours of operation," or else be subject to a fine not to exceed $500. This proposed rulemaking will amend the rule on idling limits for gasoline and diesel-powered engines in motor vehicles within the jurisdiction of any local government in the state that has signed an MOA with the commission to delegate enforcement to that local government. Local enforcement is crucialto the effective implementation of rules to reduce the extended idling of gasoline and diesel-powered heavy-duty vehiclesandwill helpto ensure the reduction in nitrogen oxide (NOx) and volatile organic compound (VOC) emissions, which is needed by local governments to achieve or maintain attainment of the federal eight-hour ozone standard. These proposed idling limits will lower NOx emissions and other pollutants from fuel combustion. Because NO, is a precursor to ground-level ozone formation, reduced emissions of NO, will result in ground-level ozone reductions. Currently,there are nofederal 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 NOxemission reduction strategy demonstrated that bythe year 2007 the idling limits will reduce NOxemissions 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, "comfortlsafety" with "comfort and safety." The proposed amendment to §114.517(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 proposed amendment to §114.517(8) eliminates language exempting idling up to 30 minutes for, "the primary propulsion engine of a motor vehicle used for transit operations." The proposed amendment to §114.517(8) would add 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 inthe 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. 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 helshe is using the vehicle's sleeper berth for a government-mandated rest period." Section 114.51 7(11) expires on September I,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, determined that for the first five-year period the proposed amendments are in effect, no fiscal implications are anticipated for units of state or local government. The proposed rules implement HB 1540, 79th Legislature, 2005, by amending the 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 implement the locally enforced motor vehicle idling rule. The proposed rules would allow operators of motor vehicles with sleeper berths to idle for reasons not permitted by the current rules. Specifically, commercial vehicles would be allowed to idle the motorto heat or cool the vehicle in which the driver is using the sleeper berth for a government mandated rest break. The proposed rules would prohibit a commercial driver from using the sleeper berth and idling the enginewithin a school zone or within 1,000 feet of a public school during its hours of operation. The proposed rules also include an idling exemption for construction and repair vehicles and remove an idling exemption for transit vehicles. The proposed rules will impact theAustin EAC members and any other local governments inthe statewho wishto adopt additionalcontrol measures to achieve or maintain attainment of the federal eight-hour ozone standard. Any enforcement costsfor local governments to implement the agreementfor the idling controls are voluntary. However,the proposed rules do provide local governments the authority tofine drivers $500 for using their sleeper berths and idling within a school zone or within 1,000 feet of a public school during its hours of operation. No fiscal implications are expected for the agency as enforcement of the idling rule is delegated to local governmentswho enter into an agreement with the commission.



### 'SEDRULES 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 compliance with the proposed rules would be the provision of additional options for local governments to use to ensure a reduction in NOx and VOC emissions neededto maintain attainment with the federal eight-hour ozone standards. Nofiscal implications are anticipated to businessesor individuals as a result of the implementation of the proposed amendments. The exemptions from the idling rule will allow drivers to idle the motorto heat or cool the vehicle inwhich the driver is using the sleeper berth for a government mandated rest break. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT No adverse fiscal implications are anticipated for small or micro-businesses as a result of implementation of the proposed amendments. Any fiscal implications would be the same as those for large businesses. LOCAL EMPLOYMENT IMPACT STATEMENT The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed amendments do not adversely affect a local economy in a material way for the first five years that the proposed amendments are in effect. DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the proposed rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rules are not subject to §2001.0225 because although the proposal meets the definition of a "major environmental rule" as defined in the statute, itdoes not meetany ofthefour applicability requirements listed in §2001.0225(a). The regulatory analysis requirements of Texas Government Code, §2001.0225 only apply to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. Specifically, this proposal will amend the rules that limit heavy-duty motor vehicle idling within the jurisdiction of any local government in the state that has signed an MOA with the commission to delegate enforcement to that local government. The amendments will clarify current rule requirements and implement the new requirements of HB 1540. Currently, there are no federal regulations governing idle time for motor vehicles. This proposal therefore does not exceed a standard set byfederal law. The amendments are neededto implement state law, and the proposal therefore does not exceed an express requirement of state law. The proposed rules do involve a compact,which is an agreement or contract betweenthe state and an agency or representative of federal government to implement a state and federal program, however,the proposed amendments do not exceed the requirements of that compact. This proposed rulemaking helps the Austin EAC area continue to meet the milestones of the compact and demonstrate continuing attainment of the eight-hour ozone standard. Finallv. this era1 powers of the agency. Because this rulemaking does not meet any of the four applicability requirements. Texas Government Code, §2001.0225 does not apply,and a regulatory impact analysis is not required. The commission invites public comment on the draft regulatory impact analysis determination. TAKINGS IMPACT ASSESSMENT Under Texas Government Code, §2007.002(5), "taking" means: I)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 bythe Fifth and Fourteenth Amendments to the United States Constitution or §I7or §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, inwhole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist inthe 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 marketvalue ofthe property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The commission completed a taking impactanalysis 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 ina manner that restricts or limits an owner's rightto the property that would otherwise exist inthe 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, or will affect an action/authorization identified in §505.11, and therefore will require that applicable goals and policies of the Texas Coastal Management Program (CMP) beconsidered duringthe rulemaking process. The commission determined that under 31TAC S505.22, the proposed rulemaking action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). No new sources of air contaminants will be authorized and ozone levels will be reduced as a result of the proposed rulemaking. The CMP policy applicable to this rulemaking action is the policythat commission rules comply with regulations in40 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 consistency of the proposed amendments with the CMP duringthe public comment period. rulemaking was not developed solely under thi'gen- ANNOUNCEMENT OF HEARING



### 30 TexReg 7830 November 25, 2005 TexasRegisterPublic hearings for this proposed rulemaking have been scheduled for the following time and location: January 10, 2006, 10:OO a.m.,Texas Commission on Environmental Quality, 12100 North 1-35, Building E, Room2015Austin. 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 eachhearing 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 hearingand 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. SUBMITTAL 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@tce~.state.tx.us. All comments should reference ~ule'~roje~~umber 2005-064-114-EN. Comments must be received by 500 p.m. on January 17, 2006. The proposed rules may be viewed on the commission's Web site at http://www.tceq. state.tx.udus/nav/ruledpropose-adopt.htm1. For further information, please contact Erik Gribbin, Air Quality Planning and Implementation Division, at (51 2) 239-2590. STATUTORY AUTHORITY The amendments are proposed underTexas Water Code (TWC), 55.103, 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), 5382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. The amendments are also proposed under TCAA, 5382.011, which authorizes the commission to control the quality of thestate's air; 5382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; 5382.019, which authorizes the commissionto adopt rules to control and reduce emissions from engines used to propel land vehicles; 5382.0191, which authorizes use of a sleeping berth for a government-mandated rest period; and 5382.039, which authorizes the commission to develop and implement transportation programs and other measures necessary to demonstrate attainment and protect the public from exposure to hazardous air contaminants from motor vehicles. The proposed amendments implement TCAA, 55382.002, 382.011, 382.012, 382.019, 382.0191, and 382.039. J114.512. Control Requirementsfor Motor Vehicle Idling. able by a fine not to exceed $500. This subsection expires September 1. 2007. .$114.517. Exemptions The provisions of $11 4.5 12 of this title (relating to Control Requirements for Motor Vehicle Idling) do not apply to: (I) a motor vehicle that has a grossvehicle weight rating of 14,000 pounds orless, and ifbefore September 1,2007,doesnot have a sleeper berth; (2) - (3) (No change.) (4) the primary propulsion engine of a motor vehicle providing a power source necessary for mechanical operation, other than [M i~eh&g] propulsion, andlor passenger compartment heating, or air conditioning; (5) - (6) (No change.) (7) the primary propulsion engine of a motor vehicle that is being used to supply heat or air conditioning necessary for passenger comfort and safety [-I in [&ese] vehicles intended for commercial orpublic passenger transportation,or passenger transit operations, [wheelh] in which case idling up to a maximum of 30 minutes is allowed; (8) the primary propulsion engine of a motor vehicle being used to provide air conditioiling or heating necessary for employee health or safety while the employee is using the vehicle to perform an essential job function related to roadway construction or maintenance [Iket3fifffftPg'f3mpkm~d€t~~dfeF~ ~~itl~eitfe~~~e~d~HfiftttteS is&eveel; (9) theprimary propulsion engine of amotor vehicle being used as airport ground support equipment;[ e~] (10) theowner of a motor vehicle rented or leased to aperson

### that 

### [&I operates the vehicle and is not employed by the owner; or [:I - (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. This agency hereby certifies that the proposal has been reviewed by legal counsel andfound to bewithin the agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 10, 2005. TRD-200505193 Stephanie Bergeron Perdue Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 25.2005 For further information.lease call: (512)239-6087

. . . . @ No person shall cause, suffer, allow, orpennit theprimary propulsion engine ofa motor vehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in $114.510 of this title (relatingtoDefinitions),is not in motion duringthe period ofApril 

### CHAPTER 11

### 6. CONTROL OF 

### AIR I through October 3I of each calendar year. 

### POLLUTION BY PERMITS FOR NEW @J No driver using the vehicle's sleeperberth may idlethe ve- 

### CONSTRUCTION OR MODIFICATION hicle in a school zone orwithin 1,000 feet of a public school during its hours of operation. An offense under this subr;e&l may be punish- 

### SUBCHAPTER L. PERMITS FOR SPECIFIC DESIGNATED FACILITIES

PROPOSED RULES November 25,2005 

### 30 TexReg 7831Kathleen Hartnett White,Cllairman R. B. "Ralph"Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shanltle, ExecutiveDirector

Protecting Texas byReducing andPreventingPoIIution



### NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ONPROPOSED REVISIONS TO 30 

### TAC CHAPTER 114 AND TO 

### THE STATE IMPLEMENTATION PLAN
The Texas Commission on Environlnental Quality will coilduct a public hearing to receive testimoily coilcerning revisions to 30 TAC Chapter 114, Coiltrol of Air Pollution from Motor Vehicles, under the requirements of Texas Health and Safety Code, 5382.017; Texas Government Code, Chapter 2001, Subchapter

### B; and 40CodeofFederal Regulations $51.102, ofthe United States Environmental Protectioil Agency (EPA) regulations concerning state implementation plans (SIPS).
A public hearing will be held in Austin, Texas, onJanuary 10, 2006, at 10:OO a.m. in Building E, Room 201S, at theTexas Commission onEnvironmental Quality complex located at 12100Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration willbegin 30minutes prior to the hearing. Individuals may present oral or written statements when called upoil in order of registration. A tiine liinit inay be established at tlle hearing toassure that enough time is allowed for every interested person to speak. There will be no open discussion during the hearing; however, agency staff members will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.
The proposed ruleinaking would repeal the state regulations implementing the Texas Clean Fleet Program in its entirety, in accordance with Senate Bill 1032,79th Legislature, 2005. (RuleProject No. 2005-067- 114-EN) In addition, the proposed ruleinaking would iinpleineilt House Bill 1540, 79th Legislature, 2005, as well as add language that the Austin Early Action Coinpact ineinbers have requested be added to inore greatly protect public health and safety. (Rule Project No. 2005-064-1 14-EN) The proposed ruleinaking would also amend the defiilitioil of additive; specify that the executive director must consult with the United States Eilviroilinental Protectioil Agency (EPA) before approviilg an alternative test method; revise the documentation requireinents for the alternative diesel forinulation approvalprocedures; revisethe ininiinuinrequireineilts for candidatefuel forinulationstoonly allow diesel fuel with less than 15 parts per inillion sulfur to be used for testing purposes; specify that the test eilgiile used for alternative diesel fuel forinulatioil testing must have a iniiliinuln of 125hours of use and exhibit stable operation before beginning the testing and must not exceed 110% of its applicable exhaust einission standards when using the reference fuel; add clarifying languageto the alternative test sequencesto specify the nuinber of hot start test cycles that inust be performed for each sequence; revise the e~nissioil co~nparison requirements to be inore consisteilt with similar California Air Resource Board regulatioils by reinoviilg the einissions of total hydrocarbons 

### (THC) and non-methane l~ydrocarbons (NMHC) froin thecomparison calculation but specifyiilg that the einissions of THC and NMHC of the candidate fuel must not cxceed the einissioil certificatioil standards applicable to the year inodel of the test engine; clarify that only [hoserecords relating to sainpliilg require a stateineiltdeclaring the appropriate aroinatichydrocarbon content standard of the fuel; revise reporting requireineilts for producers with alternative einissioll reduction plans to iilclude inforination intheir quarterly report that isrequired to be collected in accordance with the sampling and testing requirements; establish procedures that require producers to subinit alternative emission reduction plans that are developed in accordance with the EPA's Unified inodel to demoilstrate 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 einissions for the year 2007, and at least a 6.2% reductioil frointhe average of all non-road dieselproduced by the producer for use in the affected counties, and allow alternative einissionreduction plans to use diesel credits froinearly gasoliile sulfur reduction that call oilly be generated fromthe gasoline supplied by the producer to the attainment couilties in 2003, 2004, and 2005, and can oilIy be used to demonstrate coinpliance through December 3 

### 1, 2010, in attaiiuneilt counties within the Texas low einission diesel control area; and correct citations and cross-references. (Rule Project No. 2005-063- 

### 114-EN)
Persons who have special cormnunication or other accoimnodation needs who areplanning 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 coimnents inay be submitted to Brandon Smith, MC 206, Chief Engineer's Office, Texas CoimnissiononEnvironinenta1 Quality, 

### P.O.Box 13087,Austin, Texas 78711-3087; faxed to (512) 239- 5687; or einailed to 

### siprules@tceq.state.tx.

### us. All coimnents should reference the rule project numbers that they pertain to. Coimnents inust be received by 5.00 p.m. on January 17,2006: Theproposed rules inay beviewed onthecoilmission'sWeb site at

### hnp://~~w~),tceq.state. 

## a, us/nav/rules/yr-oposeadopt.lztl~zl. Forfurther inforination, please contactMorrisBrown, Air Quality Plaililing and 1inpleinentat6nDivision, at (512) 239-1438 or Erik Gribbin,Air Quality Planning and Iinpleineiltatioil Division, at (5 12)239-2590.


### Issued irz

### Austin, Texas, onNovenzbel-30, 

### 2005.

# WRITTEN AND ORAL 

# TESTIMONYReference 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 ProtectionAgencyA Ca~ital Area Council of Governments 251'2 

### IH 35 South, Suite 200 Austin,Texas78704 512.916.6000 Fax512.916.6001 w.capcog.org 

### December 9,2005 Mr. Brandon Smith
CleanAir 

### Chief Engineer's OfFice Coalition: 

### Texas Commission on Environmental Quality
Chairman 

### PO. BOX 13087, MC 206 MayorWill Wynn 

### Austin, TX 7871 1-3087

City of Austin Vlce-Chair Judge Samuel Blscoe 

### Dear Mr. Smith: Travis County Commissioner Clara Beckett BastropCounty MayorJames

Bertram City of Lockhart Commissioner Greg Boatright Williamson County Mayor Eric

Carlsan City of Elgln Mayor Mike Hendricks City of Luling 

### Thank you for the opportunity to commenton the proposed amendments to Chapter 114, Control of Air Pollution from Motor Vehicles, Rule Project No. 2005-064-1 14-EN. The Central Texas Clean Air Coalition (CAC), comprising elected officials from the five-county AustinJRound Rock MSA, supportsthe proposed amendments and corresponding revisionsto the state implementation plan. We appreciate the consideration given to the Austin Early Action Compact (EAC) members' concerns about clarifying language in the exemptions, particularlywith regardto transitvehicle idling and TxDOT's employee idling policy. We believe that the proposed amendments adequatelyaddress these concerns.

Councilmember 

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

### effective implementationof rulesto reduce extended idling of gasoline City of Round ~ock 

### and diesel-powered heavy-dutyvehicles. This rule will help ensure the Mayor 

### reduction in nitrogen oxide and volatile organic compound emissions Susan Narvaiz 

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

Ci of San

iJarcos 

### standard. These mobile source emission reductions are especially ~~d~~ Jim Powers 

### importantto the region, as reductionsfrom TxLEDfuel are still uncertain. Hays County MayorTom scott 

### Thank you for the opportunityto comment and for your ongoing cityof Bastrop 

### commitment to ensuring cleaner air for all Texans. For additional

Judge H. T. 

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

Wright Caldwell County 

### (512.854.7219),the EACTask Force Co-Chairs: Sincerely,

Judge Samuel T. 

### Biscoe Vice Chairman, Clean Air Coalition

# SIERRA CLUB

FOUNDED 1892



### December 13,2005 Mr. Brandon Smith Chief Engineer's Office Texas Commissionon Environmental Quality MC 206 P.O. Box 13087 Austin, Texas 78711-3087 HoustonRegionalGroup 

## P. 0.

### Box.3021 Houston,

### Texas 77253-3021 713-895-9309 http://texas.sierraclub.org/houston/



### Dear Mr. Smith, Enclosed are the comments of the Houston Regional Group of the Sierra Club (H,SC) regarding the Texas Commission on Environmental Quality's (TCEQ) proposed repeal of 114.3, 114.150, 114.151, and 

### I 14.153-114-1 57, Low Emission Vehicle Fleet Requirements; amendments to 114.51 2 and 

### I 14.517, Locally Enforced Motor Vehicle Idling Limitations; and amendments to 114.6, 114.312, 114.313, and 114.315-114.338, 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 the program. Now TCEQ proposes a repealof all the requirements. The HSC is concerned that this leads to economic inefficiencies; operational inefficiencies; higher costs for businesses and consumers; disillusionment with the law; and temporary or non-existent reductions in air pollutants from motor vehicle fleets. The HSC is concerned that the Low Emission Vehicle Fleet Requirements were used to meet legal requirements but were not used as a long-term commitment by TCEQ to reduce emissions from fleet owners. TCEQ 

### must look more carefully at its control strategies to determine whether they will be needed inthe long-termand are notjust short-term stop-gap efforts. 2) Regarding the proposed changes to the Locally Enforced Motor Vehicle Idling Limitations, 114.512and 114.517, the HSC supports these changes. 3) Regarding the proposed changes to Definitions and Low Emission Diesel, 114.6, 114.312, 114.313, and 114.315-114.318, the HSC 

### is opposed to any proposal that allows alternative emission reduction plans to be labeled as "confidential business information" and kept from the public. It is one thing to

'When we trytopick out anydungbyitself,we find it hitchedto everydug else intheuniverse."John

### Mfir

Printed on 1W% Kenafuee free paper' 

### have some information that is confidential and placed in a separate file. It is entirely a different situation to allow entire plansto be labeled as confidential and hidden from the public. The HSC opposes any such regulation, rule, program, or policythat supports this. The public has the right to know, review, and comment on what alternative emission reduction plans are proposed and approved by TCEQ. On page 5 of the proposal, the TCEQ states, "Diesel engines emit very little VOC emissions". However, on page 6 

### TCEQ states, 

## "... these changes would also require that the average individual emissions of total hydrocarbons (THC) and non-methane hydrocarbons (NMHC), respectively, recorded during testing with the candidate fuel not exceed j10% 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 few VOC emissions in dieselthen there should be little concern for any minimal increase. 

### In addition, the soot particlesthat diesel engines generate act as adsorption surfaces for VOC, whether THC, NMHC, or toxic VOC fractions (for example, aromatic hydrocarbonsor 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 pollutionfrom the evaporation and combustion of diesel fuels. Overall, the rule is very confusing 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 understandand comply with. The HSC requests that TCEQ simplify this rule. The HSC appreciatesthis opportunityto comment. Thank you. Sincerely, Brandt Mannchen Chair,Air Quality Committee Houston Regional Group of the Sierra Club

I, 

### Lone Star Chapter 5431 Carew Houston,Texas 77096 

### 7

### 1 3-664-5962 brandtshnfbt@iuno.com

### UNITED 

### STATES ENVIRONMENTAL PROTECTION 

### AGENCY REGIOI\I 

### 6

. 1445 

### RossAVENUE, SUITE1200 DALLAS, 

### TX 75202-2733 r'y r*s-l ,*- 

## I&$! 

# f.

. ...is 

### In



### .. La. 

### MI.,B~~~nclon Srriith ' 

# I I Tciaa Commission 

### on Ei~vimnnnita 

### Quality Chid 

### En,qinee~-'s Office 

### MC

### 206 

# I'

' 

### P.O.Box 13OS7 

### Austin, 

### TX 7871 

### 1-3087
Rererence: 

### Rule Project Nos. 2005-067-1 14-EN; 

### 2005-064- 1 

### 14-EN: and 2005-063-1 

### 14-EN
Dens

### Mr. Smirh:

. . 

### Thank you 

### forthe oppo~tullity 

### to 

### commcnr on proposed revisions 

### tothe

### Tcxns Low 

### Emission 

### Diesel Rule, theLocally 

### Enforccd 

### Motor Vehicle Tdlin: llimitntions

### rule, md 

### the Texas

. 

### Clcai Fleet 

### Rule. TheRegion 6 

### derailed commenLs an 

### Lhese I-ulcs81-c 

### found in the ~nclusure, 

### Addirional 

### ~ornrncnrs from EPA will 

### be forwarded 

### when we 

### rcccivcrhcm..



### Tn summary, we 

### do

### not oppose 

### the 1-epcal

### of rhc 

### Tcxas 

### Clean Fleet 

### program asit

### w.as desigl-red

### before, 

### but tllc 

### kdc~~aI 

### &an fuel flec~ 

### nquirernent 

### must be fulfilled

### by measures 

### other than fcdcral

### mguiremen~s, We may nnt

### be able

### to approve 

### thcrevisions LO 

### iheLt~cally 

## Enforced. Moror VehicleTdling Limititions becausethat wou1.dbc a 

### weakening 

### ofthe 

### federally 

### approvcd 

### SiT. Our

### cv~nments 

### on 

### the Texas Low Emission Diesel 

### mle 

### ~qevisions 

### focus 

### pkm,ui~y on L~SL


### . methods and 

### altc~nativa emission reduclion 

### plans. While 

### we support 

### many oT the 

### revisions 

### that 

### u.e prboposecl ror Lhis 

### rule, aur concern 

### is with correctingdirccror discredon and with 

### establishing 

### a replicahleprocedure 

### thut 

### is upprovlblc. 

### Wc dso.offcrcommenls as 

### quested

### onNo 

### Harm

,. 

### Tesdng and 

### use 

### of credits

### for

### EarlyImplemcnt~rion o

### TLow 

### SulfurGasoline. 

# I Region 6 

### conrinues to ofFerTexas 

### our support 

### during rhe yule 

### rcvision prbcess. 

### Please let 

### us 1c11owhow we may

### be oF

### furtherassistance.

ir

### Planning Scction
En~l mure



### cc: Cwrlice 

### Garrett,

### Director Air 

### Quality Planning and Implementation Division

### EPA Region 6 Comments


### Texas Clear1

### FICCL Rule 

### Rcpe;il

We 

### do 

### not 

### oppose the

### repeal 

### of the

### Texas Clean 

### Floor program. bul we 

### do take

### issue with rhe

### subs~irute 

### measures that are

### proposed to use 

### in 

### i~s place.
Secdon 

### 246(2)(A)of the 

### 1990Clean 

### Air 

### Act reqrlil-esstates to

### jrnplemcnr the Cleim 

### Fuel flee^ 

### (CE) program in 

### certain 

### ozonennna~luinment. urcas. 

### Sccrion 

### 182(c)(4)(B)allows a stateto ' .

..

### opr our 

### of Lhe CFP

### program provided the 

### state submi~s fi

### SLPrcvision consifiting of a 

### substitute progLn [hat results in

### as 

### much oi-

### greater 

### long term cmissions reduclions us 

### the 

### CFFprogram. The 

### EPA may 

### approve such 

### arevision 

### only ifrht 

### subsri~utc program 

### is 

### nor required by 

### theACT. 

### Stefor exrrrr~ple, 

### 70 

### Fed,Rcg. 

### 13425,13435(M~irc h 21 

### ,2005). 

### Thus,the'state 

### of Tcxasmay 

## - substiturc

### its Texas 

### Clean Fleet 

### (TCF)

### program with my

### other 

### program that 

### rrasults 

### in 

### ns much or geakrlong-lam 

### en~issinns laductinns 11s 

### the 

### CFFprogrnm,In no ovent, 

### however, can 

### the

. 

### subs~iLuLe: 

### pl-ogrambc citllcr

### thcTicr 51

### or hcavy-duty dicsel 

### engines 

### (HDDE) standards. Also, t11e

### terminnrim df ihcTCF

### program prior 

### ro EPA appwalOF

### any substitutemea8~r~ wol~ld 

### likclyrcsulr in n 

### weakening 

### of the 

### existing 

## SIP anit

### rhus, appear

### to bc 

### in violarian 

# orhe Act. Kentucky 

### Resources 

### Council. Inc-.v. EP4,304F.Supp; 

### 2d 920 

### (W.D,Ky.2004): 

### Further,rhe

### EPA has determined rhat 

### only cerlain vehicles and 

### engines ccrtificd LO

### currenr 

### Pm 86 

### cmissions srmdards areeitherasstringent 01- 

### Inore stringent

### thm 

### comsponding CFF cmissio~l standards. 

### Accon-dingly,the

### EPA has 

### advisecl fleet

### rnanagcrs swking 

### Lu meet the 

## CFF program requirements that 

### only such vehicles and 

### cngines.meet CFF

### emissiun stmdwds. 

## & EPA guidwce

### Jetter CCD-05-12, 

### (July21, 2005), 

### which is available on-line 

### at: 

### httu://www.cpa.~ov/otaq/cerr/deamfr/ccd0512.pdT. 1~



### would, therefore,be 

### premamrc ro 

### assert hat 

### ci~hcr theTi~r 

### ll or

### FTDDE srancfardshave 

### supel-sededthc 

## CFF standards.


### Wereconmend that 

### a demonstration be 

### providcd 

### in 

### .[hefinal rule submittal 

### to show what 

### feclerd CFF crccliLs ncsd 1L

### bt: 

### s~~beljtulcd by 

### SL~LC r~~la'credits 

### For& affected nonaftajnmenr 

### mea. We believe there are sufficiknt State rule credits 

### tll'at are 

### beyond RACT to 

### rulfil,l

### this requireme11 t.
LocallvEnrtsrced 

### Motor Vehicle

### IdlingLimitations Rule
Thc 

### addirion of 

### exemprion numbw (11) 

### and Lhe

### revision to 

### esernptjon 

### numbcr (I)weaken I rhc 

### SIPrl~les rhnt 

### were 

### approvedby 

### EPA in 2005, We 

### can apprcciatc and 

### understmd 

### why the Legislature would 

### rnnlie this 

### mandate, Technology 

### ro accommodaLe

### overnight 

### comfort for diivers 

### of rhese vehiclcs 1s

### nmrcaclily 

### avaflahlc

### and spolty atmust 

### jn the nonattainment 

### areas.

, 

# i

### Even 

### .~hough you ~imst adopt these changes, 

### we will not be 

### nble 

### ro apprnve hem info 

### thc SIP unless you 

### can 

### provide substitute seductions 01. 

### model co show thul

### attainment can bc 

### mcr wilhout tllose GI-cdits, WC*~ETTII~~ rcmjnd you'thar approved pl-ngl-amsin 

### the 

### SLP srill have 

### ro bt: 

### enfn~ccd unlcss wc 

### spprovc 

### n

### STP reavisinn.
'I'exas .Low 

### Emjssion Dics'clRulc Revision 

### WB recommend rhe 

### rolluwing 

### for somc of thc pl*oposcd p~~ovisions:


### Section 

### 114.6. We do 

### not see 

### the value of adding the phrase "rcquirsd LO

### he" in 

### this definition. Somemay misinterp~et his to mean thar addi~ives 

### can bc~uscd 

### in Texas before 

### being approvcd and rcg-isrered

### by the 

### EPA. Wcknow that is 

### not thc

### casc, therefore we recommend this 

### change not bc 

### finalized. 

### 'Section 

### 114.315(b). Section 

### 114.315(b) 

### does not go far cnough LO

### rest~lve conce!ns 

### regarcling ExecutiveDirector discrerion. Consulration 

### is not.kdequntc 

### in casc of, disegreemcnts, 

### Wc suggest rhe 

### sec~ion 

### be changed to

### rcacl "wirh the consent 

### of

### EPA"or "consu1t;ltinn and 

### agreement 

### hy 

### EPA," Anolher

', 

### acceppible 

### eximple

### is in 

### Section 114.315(d) 

### whcrc somelhing 

### inust 

### be

del~~onstrated to 

### the satisfncdon of 

### lhcExcculive:

### Director

### andtheEPA. Section 114.315(c) 

### 4. Add 

### he 

### words 

### "and in

### the 

### Environmental Tcchnology 

### Verihxtion Protocol of 

### the

### EPA, 

### whcrc tipplicable" BI 

### the end of the

### I-eferencc to 

### 40CFR86 subpan

### N. Note: Tlza 

### TCEQprcm~zblc an

### page 

### 6rt$ers fu 

### the ~zeces.sity

### rfhsing cansistent

### 14itlt

### theE'l'V 

### Protocol. There

### is an 

### issue 

### wirh cumulwivc cffcct additivesbeing 

### used

### in vehicles that 

### arc nor consjstmrly f~ieled with 

### [he same 

### additives. Our 

### Ofice

### of Transponation and Air 

### Quality wi

### I

### I be addressing this 

### further 

### in comrnenrs which we 

### will 

### forwa~d to 

### you. 

### Section

### 114,315(c1). (d)(2)

### rcads: "If the altema~i 

### ve diesel 

### Fuel foimulation 

### has been demonstrated to 

### the satisfaction ofthe executive dirccror to 

### .achicvs comparable 

### or better reductions 

### in emissions of 

### NOx 

### [,THC,MVMC,] 

### and 

### PM under this subscction.." 

### To be consislent

### with (d), "wd

### the 

### EPA"

, 

### should 

### be adcled

### just after executive directorhere. 

## NOharm tests. 

### The supplier should

### be in 

### aposilion tn 

### 3ua-rant.ythat 

### "the approved 

### f~lels and 

### fuel addirives are

### nor hurmful to 

### the ~nccl~nnical opcrarion of diesel engines." Such 

### u clause 

### could be 

### includcd in 

### the document 

### under review. 

### The 1rey.factor in 

### determining "the approved Fuels and fuel.additives arc not harmful ro the 

### mechanical operatinn 'of diesel 

### engines" is

### the 

### effect it wo~ilcl hevc on the 

### elastomei-s

### used in Diesel 

### Engines.Thc 

### cnginc manufacturers 

### should bc ablero provide 

### samples of all the ., 

### elastomers cxposed 

### to the fuel,

### used in 

### Lheir engines.The 

### sample could 

### then bc rested for 

### rcsistance to 

### the fuel 

### being evalu~ated. T11el.e are 

### several 

### ASTM standards ro Lest 

### the pruperties 

## OF

### I

, 

### elasrome,:s under different 

### conditions and 

### there 

### are several 

### labs that 

### could 

### carry 

### our rhese 

### tests,

.

### . ! Such n

### rcsr systai-Isho~~ld bc formulated.


## : The 

### supplieis' ~varranty 

### or the results 

### of 

### such tcsfs 

### prior to appl-oval 

### ofafonnulario~~ 

### wo~~ld he

. . 

### appropriate. Wi~h regil~.d 

### to 

### n~ecl-~iinic;d wexand 

### tear 

### of the cngine,theprotocol fnl-

### a 'no 

### harm' tesr to chaclc 

# I whcthcr 

### 'We approvedfuels and 

### file1 additives arsnot 

### humlful to thc mechanical 

### opcracion ol

. . 

### diesel'engines" wo~rld 

### cxrcnd to 

### a period ecluivalentto 

### a million milcs on 

### a diesel engine.under i 

### clivcrseload conditiqns, an~bient te~npel.atuses, 

### st.ops aid

### starcs. Lubricvl 

### manufacturers jn '

. 

### collnboratio~1 with m$ne 

### rn;rnufactu~ess carry 

### our simulated

### rests locheclc the wear 

### and tern on piston 

### rings, 

### uyUnders and 

### cralllcshnlI bearings alc. 

### Such 

### a Lest 

### using 

### a lubricant with'k~lown 

### characteristics 

### and xhc 

### cnndidarc 

### file1 should prtsvide useful 

### ~asults.

' 

### Section 

### 114.318. We 

### do not.

### opposc thc

### rcmoval 

### 01EPA.;lpproval 

### from $114.3 1S(a) 

### hecause

21 

### replicable plsocedureforthe Statero-approvc thc.,4ERPplans 

### isbeingproposed. Should.Lhe 

### State

### adopt 

### ai:cvisjon 

### of this Scctiun and 

### lhuae

### pmvisionabe 

### approved into rhc 

### SIP by

### EPA,EPA approval 

### then is implicit

### for 

### anyplan approved bi.theState, 

### A critical

### par[.olareplicnble 

### procedun 

### such as thir;in 

### which credits 

### from 

### one source are..substitiircd Jar another

### is public , . 

### pa~~icipation in Lhc 

### Pucegs at 

### the Stde

### level. Thnt

### public 

### pa~~icipation-is being cn~s~iricd ULII 

### through 

### the notice 

### and comment

### pc~iod 

### inwhich the 

### Srsltcis enactingthe reviscd 

### 114.318.
~ari~ 

### irnplsrnen~tion of 

### Lpn

### Sulfvr Gasoline Credits. Whils it 

### is indjcntcd 

### that crcdirs 

### Tor 

### earlyimplcrnentotion

# of low 

### sulfurgasoline

### may only 

### be generated

### in 2003,2004 and 2005. 

### you are

### taking commentslor allowing thase 

### credits

### to be

### used through 20J.0. 

### The

### benefi.tsforearly implcrnenraticm 

### OF low 

### sulfurgasoline will 

### have been rcplaccd years 

### prior 

### by the mandated low sulfur 

### gasoline. 

### By March 1,2006,low sullur 

### gasulin; will h~full~ implemented in

### Tcxasby 

### all the

### major 

### retlners that providc rhe 

### majority 

### of gasoline 

### sold

### at 

### r-ettail

### in

### thc stare, 

### Usin-gearly credits

### uhtil2010is problemaiic

### Ear the

### Beaumont-Port hkhru. 

### (BPA) nonafcaiinrnent urca and 

### tho 

### EarlyAcrion Compact 

### ireas that 

### would benefit ~eatly 

### fromrcal-timcNOx I-eductions. 

### Altfipugfl 

### i~is

### possible rur 

### the 

### MOBILE model to calculntc 

### abenefir 10

### pre7Tiier

### 2 vehicles, we 

### do 

### not believe 

### the model 

### conreflcct rcal-worlrl b'enehts

### because

### of the uncertainty 

### of fuelingl~abitfi or the 

### general public. 

### Therefore, we do 

### not support 

### nllowing creditsfor cwly implcmcncndon or 

### low 

### sulfur gasolinefclr 

### use in the 

### areasmentioned abov~ pa= 

### Dcccmber 31, 

### 2006. 

### Real-time 

### Nos beneri~s from a 

### low-NOx fuel.couldpotentially-be

### used to 

### partially satisfythe 

### federd 

### Clean F~lel Fleki-equiremen~ 

### forBPA, for cxainplc.

.INDEX OF ORAL TESTIMONY

January 10,2006, 10:OO a.m. 

## -Texas Commission on Environmental Quality complex

Nooral testimony was received pertaining to this proposal.Page 1


### Texas Commission on Environmental Quality Public Hearing Registration 

# I Location: 

## Austin (10:OO a.m.) Date: 

## January 10, 2006 

# I concerning: 

## 30 TAC Chapter 1

## 14 (Rule ProjectNo.'s 2005-063-114-EN, 2005-064-114-EN, 2005-067-114)
Name and Address (Please Print) 

# ZA'&#DO,,, 14m/r/4~ A~O 

## dou/t.~ 600Cflfl6/wn

## m~i- 13db Pff~7-l~ 

# 3% 

# dU"3 

# TV+Y~.
-pa Lr *Qe-h)

~e-r*.k 

### 7g6q)



# 2/-& kb,~ %I( 

# u!m&d Representing

06Iyf~

### C~KALV



## so[% Presenting OralTestimony?

- (Circle One)

yes

Yes 

# @



# ,6%k&

/oc 

# 4 yes 

# &

Yes 

# @

# EVALUATION OF TESTIMONY

# Texas Commission on Environmental Ouality INTEROFFICEMEMORANDUM



### To: Commissioners Date: October 21, 2005 Thru: LaDonna Castafiuela, Chief Clerk Glenn Shankle, ExecutiveDirector
From: David C. Schanbacher, P.E. Chief Engineer's Office

Docket No.: 2005-1443-RUL Subject: ~ommissio~ Approval for Proposed Rulemaking Chapter 114, Control of Air Pollution from Motor Vehicles House Bill 1540: Locally Enforced Idling Rule Amendment Rule ProjectNo. 2005-064-114-EN
Reasons for the rule package: This rulemaking will implementHouse 

### Bill (HB) 1540,79th Legislature,2005, Regular Session, effective September 1, 2005. 

### In addition, 

### in response 

### to a request fromthe Austin Early Action Compact (EAC) task force; additiodprovisions would add an exemptionto allow idling at road constructionormaintenancesites wherenecessary 

### toprotectroad workers' health and safety,and clafi'a passenger transit exemption.

• 

### Under what authority are we proposing these changes?

• 

### HB 1540, 51 and 82, amends Texas Health and Safety Code, Chapter 382, Subchapter

### B by adding 5382.0191.
• 

### Texas Clean 

### Air Act (TCAA), Texas Health and Safety Code, 5382.011, concerning GeneralPowers and Duties, which authorizesthe commissionto controlthe quality ofthe state's air; 5382.012, concerning StateAir ControlPlan,which authorizesthe commission toprepare and develop ageneral,comprehensiveplan forthe controlofthe state's air; and 4382.017, concerningRules, which provides the commission with the authorityto adopt rules consistentwith the policy and purposes of the TCAA.

• 

### Is 

### this rulemaking requiredby federal rule or state statute? 

### Which ones? Yes, a portion of the rulemaking is requiredby 

### KB 1540.

' 

### Are there any legal deadlines by which these rules must be proposed, adopted, or effective? No.
Whatissue(s)orproblem(s)arewetryingto solve? The commission's Locally Enforced Idling Restrictions Rule must be revised due to passage of 

### HB 1540,which places some limits on the types of idling that the commission may restrict. Also, the Austin EAC members have signed a memorandum of agreement (MOA) with the commission to enforce the idling rule, and have requested thatthe commissionrevise anexemptioninthe rule fortransitvehicles thatthey consider vague. Austin EAC members also asked that an exemptionbe added for idling operationsat road construction or maintenance sites.

### Commissioners Page 

### 2 October 21, 2005
Re: Docket No. 2005-1443-RLTL

Why 

### is it important that we do 

### this rule package? 

### Sothat local governmentsmay enforce an air qualitymeasure that will aid.inthe attainment of national ambient air quality standards. Other important background or historical information, 

### The Austin EAC members signed an MOA withthe commission sothattheEAC

### could enforceidlingresbictions startingApril 1,2006. Scope of the 

### rulemaking: Thisrulemaking implementsprovisions of HB 1540. HB 1540 states that, "the commissionmay

, 

### not prohibit or limit the idling of

### amotor vehiclewhen idling is necessary topower a heater or 

### air conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest period." The bill also statesthat, "no driverusing thevehicle's sleeper berth may idlethe vehicle in 

### a school zone or within 1,000 feet of a public school during its hours of operation," or elsebe subjectto a fine not to exceed $500. Thisrulemakingwould amend the rule on idling limits for motor vehicles within the jurisdiction of anylocal government

### inthe state that has signedanMOU with the commission to delegate enforcement authority to that local government.


### In meetings with officials of the Austin 

### EAC to develop an idling restriction MOA, members of the EAC felt that parts of the existing rule could be misinterpreted to mean that a transitvehicle could idle for 

### atotal of one hour, insteadof one-half hour astherule intended. 

### In addition,there was also concern that the commission's rule conflictedwith Texas Department of Transportation guidelines on vehicle idling at road construction and maintenance sites for purposes of driver health and safety. The commission is proposing this rulemakingto amend the rule as suggested by the Austin EAC members. Changes required by federal rule: 

### None. Changes requiredby state statute: 

### HB 1540requires thatidling bepermitted if it isperformed to operate the heater or 

### air conditioner of a vehicIe 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 1,000feet of a public school during its hours of operation.
Staffrecommendations that are not expressly required by federal rule or state statute: 

### Delete existing language regirding jdling by transit vehicles

### in one exemption and move it into another. Create

### anexemptiontotherule fortheprimary propulsion engine of

### amotorvehiclebeing used to operatethe 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 constructionor maintenance. Impact on the regulated community:
• 

### who 

### will be affected? 

### Drivers of motor vehicles with sleeper berths and drivers working at roadway construction sites. Theirhealth and safetywillbeprotectedbecause they. 

### will be allowed to run 

### their primary propulsionengine for heating or cooling of the cab.

. 

### Does it 

### create a 

### group of affected persons who were not affected previously? How? 

### Yes, driversofvehicles with sleeperberthsanddrivers 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 impact? If so; estimate. No. 

### Impact on the public: Who will 

### be'affected? Persons in public schools during their normal hours of operationwill be protected from emissions from vehicle idling caused by driversusing their sleeper berths to take a govemment-mandatedrest break.


### Does it create a group of affected persons who were not affected previously? How? The proposed rulemaking would permit more idling, hence 

### air pollution 

### will affect more citizens. However, the type of idling allowed under 

### HB 1540 is not allowed near 

### a public school, thus protecting public school students and faculty, whichprior to this 

### provision did not exist.
Will 

### there be a fiscal 

### impact? If 

### so, estimate. None. ' 

### Impact on agency programs: There 

### is no impact on agency programs. 

### Stakeholdermeetings: Have 

### any stakeholdermeetings been held? Yes.


### With whom? Meetings with the Austin 

### EAC members have been held.


### What were the generalsentiments? Therewere concerns thatthe rule needed anexemptionfor drivers supporting roadway constructionpersonnel. There were also concerns that one of the exemptionsto the 

### idling rule was ambiguousand couldbe interpreted to mean that certain transit

. 

### vehicles could idle f& up to one hour &stead of one-half hour as the rule intended. 

### Were any changes made 

### inresponseto stakeholderconcerns? Yes, we agreed with alloftheir proposed changes to the rule. 

### Policy Issues: What policy issues are affected? None.


### Are any policies that arenot currently based on rule being made into a rule? No.


### What are the consequences if 

### this rulemakingis not approvedto 

### go forward? None.
Are 

### there alternatives? No. 

### Potentiallycontroversid matters: None. 

### Key points in 

### rulemaking schedule: Anticipatedproposd date: November 9, 

### 2005 

### Anticipated 

### TexasRegisterpublication date: November 25, 2005 

### Publichearing date (if 

### any): January 

### 10, 2006 

### Public comment period: November 9, 

### 2005 - 

### January 13, 

### 2006 

### Anticipated adoption date: April 26, 2006

### Commissioners Page 4 October 2 1,

### 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 Durbn, Texas Register Coordinator,239-6087
Attachments

cc: Chief Clerk, 5 copies Executive Director's Office David C. 

### Schanbacher,P.E. Jason Skaggs Ashley K. 

### Wadick Brent Wade Office of General Counsel Roland Castaneda, Rule Project Manager Patricia Dur6n, TexasRegister Coordinator cc (without attachments): 

### Garrett Arthur, Staff

### Attorney MargieMcMlister, Program Office Liaison Candice Ganen, Division Liaison Booker Harrison, OLS 

### Liaison Russ Kimble, OLS

### EVALUATION OF TESTIMONY

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

## 5 114.512 and 

## 5 1 14.517 

### without changes to the proposed text as published in the November 25, 2005,
issue of the 

### TexasRegister (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 revisionsto the state implementationplan (SIP).

BACKGROUND AND SUMMARY OFTHE 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 availablenationally 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, signatoriesmay choose the combination of measures that meet both local needs and emission reduction targets. Each EAC recognizes that not every entity within the EAC area will implement

every measure.

### Chapter 114, 

### Subchapter J, 

### Operational Controls for Motor Vehicles, Division 2, Locally Enforced
Motor Vehicle Idling Limitations rule, was proposed at the request of the local air quality planning organization in the Austin EAC area (Bastrop, Caldwell, Hays, Travis, and Williamson Counties) for

use as a control strategy in its EAC agreement to maintain attainmentwith the federal eight-hour ozone
national ambient air quality standards. The rule package also provided local governments in other

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

were needed to achieve or maintain attainment of the federal eight-hour ozone standard in the future.
The rules were adopted on November 17, 2004.

The December 18, 2002, EAC committed the commission to incorporate a Clean Air Action Plan for
the Austin area into the SIP and adopt a revised SIP by December 31, 2004. The idling restriction rule

was part of that attainment demonstration. While the Austin Metropolitan Statistical Area (MSA) was monitoring attainmentwith the eight-hour ozone standard, future monitoring could have shown
nonattainment. Therefore, members of the Austin MSA worked to ratify a memorandum of agreement (MOA) with the TCEQ that would allow them to enforce the idling restriction rule in their region. The Locally Enforced Idling RestrictionMOA was signed by the commission and members of the Austin
EAC area on August 1, 2005. Members of the Austin EAC area signing the MOA included the
counties of Bastrop, Caldwell, Hays, Travis, and Williamson and the cities of Austin, Bastrop, Elgin, Lockhart, Luling, Round Rock, and San Marcos.

In meetings with officials of the Austin EAC to develop the idling rule MOA, concerns arose regarding language in the locally enforced idling restrictions. Austin EAC members voiced concern that parts of $1 14.517, 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 normal operations. The commission agrees with the Austin EAC members that the locally enforced idling
restrictions should be revised in light of these concerns. At the request of the Austin EAC members,
the commission adopts revisions to the locally enforced motor vehicle idling rule.

The commission also adopts revisions to the idling rule to conform to legislation passed in 2005. On May 16, 2005, the 79th Legislature passed House Bill (HB) 1540, amendments to Texas Health and Safety Code, Chapter 382, Subchapter B, $382.0191, Idling of Motor Vehicle While Using Sleeper
Berth. The bill, effective September 1, 2005, states that the "commission may not prohibit or limit the idling of a motor vehicle when idling is necessary to power a heater or air conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest period." In addition, the bill states that, "no driver using the vehicle's sleeper berth may idle the vehicle in a school zone or within 1,000
feet of a public school during its hours of operation," or else be subject to a fine not to exceed $500.

This rulemaking amends the rule on idling limits for gasoline and diesel-powered engines in motor
vehicles within thejurisdiction 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-poweredheavyduty vehicles and will help to ensure the reduction in nitrogen oxides (NO,) and volatile organic compound (VOC) emissions, which is needed by local governments to achieve or maintain attainment
of the federal eight-hour ozone standard. These idling limits will lower NO, emissions and other pollutants from fuel combustion. Because NO, is a precursor to ground-level ozone formation,
reduced emissions of NO, will result in ground-level ozone reductions.

Currently, there are no federal regulations governing idle time for motor vehicles. Therefore, the state
has the authority to control motor vehicle idling. The requirements developed by the commission for
this NO, emission reduction strategy will result in restrictions on the time allowed for motor vehicle idling.

EPA methodology assessing the benefits of this NO, emission reduction strategy demonstrated that by
the year 2007 the idling limitswill reduce NO, emissions in the Austin EAC area by 0.67 tons per day.
The commission believes that these amendments to the rule will not reduce the amount of reductions
demonstrated.

SECTION 

### BY SECTION DISCUSSION
The amendment to $114.5 11, Applicability, amends the existing paragraph as subsection (a). The
amendment to 5114.511 also adds subsection (b), which establishes that, "no driver of 

### a motor vehicle
may use the vehicle's sleeper berth for a government-mandated rest period if the vehicle is within a school zone or within 1,000feet of a public school during its hours of operation." Any offense undersubsection (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 14,000pounds 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 amendmentto $1 14.517(4) replaces the phrase, "not including" with "other than. " The amendment to $1 14.517(7)replaces the phrase, "comfortlsafety " with "comfort and safety." The amendmentto $114.517(4) also adds the phrase, "or public." This change is necessary to combine the exemptions in $114.517(7) and (8), thereby clarifying the intent of
the rule. The amendment to $114.517(8) eliminates language exempting idling up to 30 minutes for,
"the primary propulsion engine of a motor vehicle used for transit operations." The amendment to $114.517(8)adds a new exemption for, "the primary propulsion engine of a motor vehicle being used

to operate the air conditioning or heating system for employee health or safety when the employee is using the vehicle to perform an essential job function related to roadway construction or maintenance."
One reason this exemption has been added is because in most types of construction equipment (e.g., dump trucks, etc.) the operator must remain in the vehicle throughout the workday for both operational
and safety reasons. Furthermore, most heavy-duty, on-road vehicles such as dump trucks, asphalt
maintenance units, and aerial devices have power takeoff units that operate ancillary equipment
attached to the vehicle and that are powered by the primary propulsion engine. Therefore, the primary propulsion engine must remain in an idling mode. Adopted §114.517(11) allows for the exemption of,
"the primary propulsion engine of a motor vehicle when it is necessary for the driver to power a heater

### Texas Commission on Environmental Quality Chapter 114 

### - Control of Air Pollution from Motor Vehicles Rule Project No. 2005-064-1 14-EN 

### Page 6

or air conditioner while helshe is using the vehicle's sleeper berth for a government-mandated rest period." Section 114.517(11) expires on September 1, 2007. This languagehas 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 $2001.0225because although the rulemaking meets the definitionof 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 contractbetween the

state and an agency or representative of the federal governmentto 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 thejurisdiction of any local governmentin the state that has signed an MOA with the
commission to delegate enforcement to that local government. The amendments clarify current rule requirements and implementthe 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

### Texas Commission on Environmental Quality Chapter 114 

### - Control of Air Pollution from Motor Vehicles Rule Project No. 2005-064-1 14-EN Page 7

therefore does not exceed an express requirement of state law. The amendments do involve a compact,
which is an agreement or contract between the state and an agency or representative of federal
government to implement a state and federal program, however, the amendments do not exceed the requirements of that compact. This rulemaking helps the Austin EAC area continue to meet the
milestones of the compact and demonstrate continuing attainment of the eight-hour ozone standard. Finally, this rulemaking was not developed solely under the general powers of the agency. Because
this rulemaking does not meet any of the four applicability requirements, Texas Government Code, $2001.0225 does not apply, and a regulatory impact analysis is not required.

TAKINGS IMPACT ASSESSMENT Under Texas Government Code, $2007.002(5), "taking" means: 1)a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensatethe private real property owner as provided by the Fifth and
Fourteenth Amendments to the United States Constitution or $17 or $19, Article I, Texas Constitution;

or 2) a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of 

### a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental
action is not in effect and the market value of the property determined as if the governmental action is
in effect.

### Texas Commission on Environmental Quality Chapter 114 

### - Control of Air Pollution from Motor Vehicles Rule Project No. 2005-064-1 14-EN Page 

### 8

The commission completed a taking impact analysis for this rulemaking action. Promulgation and
enforcement of the rules do not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adopted rules are not a government action that affects private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence
of the governmental action. Therefore, the adopted rules do not cause a taking under Texas
Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENTPROGRAM
The commission reviewed the rulemaking and found that this rulemaking is an action identified in
Coastal Coordination Act Implementation Rules, 3 1TAC 5505.11

### , 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 3 1 TAC $505.22, this rulemaking action is consistentwith 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 (3 1TAC $501.12(1)). No new sources of air contaminants will be authorized and ozone levels will be reduced as a result of this rulemaking action. The CMP policy applicableto this rulemaking action is the policy that commissionrules comply with regulations in 40 Code of Federal Regulations, to protect and enhance air quality in the coastal area 

### (31TAC $501.14(q)). This

### Texas Commission on Environmental Quality Chapter 114 

### - Control of Air Pollutionfrom Motor Vehicles Rule Project No. 2005-064-114-EN Page 

### 9

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

PUBLIC COMMENT
The commission held a hearing on this proposal on January 10, 2006, at 10:OO a.m. at the Texas
Commission on Environmental Quality, 12100 North 1-35, Building E, Room 201S, in Austin, Texas,
but no oral comments were received. The public comment period closed at 5:00 p.m on January 17,
2006. Written comments were received from the Capital Area Council of Governments (Capital Area COG), Houston Regional Group of Sierra Clubs (Sierra Club-Houston), and EPA.

RESPONSE TO COMMENTS Capital Area COG and Sierra Club-Houston commented that they supportthe proposed amendments
and corresponding revisions to the SIP. Capital Area COG commented that the rules clarified language
in the current exemptions and addressed concerns related to TxDOT's employee idling policy.



### The commission appreciates the support for the locally enforcedmotor 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 (1 1) which exempts a motor vehicle when

### Texas Commission on Environmental Quality Chapter 114 - 

### Control of Air Pollution from Motor Vehicles Rule Project No. 2005-064-1 14-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-mandatedrest period will weaken the SIP rules that it approved in 

### 2005.
EPA commented that it will not be able to approvethese adopted amendments into the SIPunless 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 enforcedunless EPA approves a SIP revision.



### The commission disagrees with the comment that these amendments weaken the idling requirements and thus the SIP. The commission is 

### committedto implementingidling restrictions
contained in the EPA-approved SIP. The purpose of the adopted amendments is to clarify idling
restrictions for affected vehicle owners and operators and provide local jurisdictions with clearer
and more consistent enforcement responsibilities, and not to weaken the idling requirements.
The amendments and new exemption also ensure that the rulemaking is consistentwith statute provisions found 

### in HB 1540, 79th Legislature, 2005, and will expire September 1,

### 2007.

To date, the commissionhas only taken credit for idling restrictions in the Austin EAC SIP. The
commission has made a commitment in the Austin EAC SIP to make up reduction shortfalls from idling restriction rules through Texas Emission Reduction Program project reductions, if needed. However, a shortfall is not anticipated. In the SIP, the commissionused EPA's Guidance for Qualifying and UsingLong Duration TruckIdling Emission Reductions 

### in State Implementation Plans and Transportation Conformity 

### to determine that the maximum benefit from idling

### Texas Commission on Environmental Quality Chapter 114

## - Control of Air Pollution from Motor Vehicles Rule Project No. 2005-064-114-EN Page 

### 11

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 includesthe Texas Emission Reduction Program as a backup measure for any idling reduction shortfall, and the expiration date of September 1, 

### 2007,
for the amendments added from 

### HB 1540, the commission disagreesthat 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.

# STAFF RECOMMENDATIONS

### CHAPTER 114: CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
SUBCHAPTER

### J: OPERATIONAL CONTROLS FOR MOTOR VEHICLES
DIVISION 2: LOCALLY ENFORCED MOTOR VEHICLE IDLING LIMITATIONS 4114.512, 4114.517

4114.512. Control Requirements for Motor Vehicle Idling.

(a) No person shall cause, suffer, allow, or permit the primary propulsion engine of a motor
vehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in $114.510
of this title (relating to Definitions), is not in motion during the period of April 1 through October 31
of each calendar year.

(b) No driver using the vehicle's sleeper berth may idle the vehicle 

### in a school zone or within 1,000feet of a public school during its hours of operation. An offense under this subsectionmay be punishable by a fine not to exceed $500. This subsection expires September 1, 2007.



### 4114.517. Exemptions.

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

(1) a motor vehicle that has a gross vehicle weight rating of 14,000pounds or less,
and if before September 1, 2007, does not have a sleeper berth;

### (2) 

### a motor vehicle forced to remain motionless because of traffic conditions over which the operator has no control;

(3) a motor vehicle being used by the United States military, national guard, or reserve forces, or as an emergency or law enforcement motor vehicle;

(4) 

### the primary propulsion engine of a motor vehicle providing a power source necessary for mechanical operation, other than propulsion, and/or passenger compartmentheating, or air conditioning;

(5) 

### the primary propulsion engine of a motor vehicle being operated for maintenance

or diagnostic purposes;

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

(7) 

### the primary propulsion engine of a motor vehicle that is being used to supply heat

or air conditioning necessary for passenger comfort and safety in vehicles intended for commercial or public passenger transportation, or passenger transit operations, in which case idling up to a maximum
of 30 minutes is allowed;

### (8) 

### the primary propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary for employee health or safety while the employee is using the vehicle

to perform an essential job function related to roadway construction or maintenance;



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

(10) the owner of a motor vehicle rented or leased to a person that operates the vehicle
and is not employed by the owner; or

(11) a motor vehicle when idling is necessary to power a heater or air conditioner
while a 

### driver is using the vehicle's sleeper berth for a government-mandated rest period. This subsection expires September 1, 2007.*k hm F)F COUNTY 

### OF

# TREK' Ihereby certifythatthis is atrue andcorrectcopy da Texafi Commissionon EnvironmentalQualitydm whidl isfiledinthepermanentrecordsofthe

### Com~i~.

~acii,nm Qstanueiti, chiefCC~IC 'rmsCommission

### onEnvlronmerddQuality


### ORDER ADOPTING AMENDED RULES AND REVISIONS TO THE STATEIMPLEMENTATION PLAN

Docket No. 2005-1442-RUL On April 26,2006,the Texas CoinlnissiononEnvironmentalQuality (Commission),duringapublic meeting, considered adoption of amended 

## $8 114.6, 114.312, 114.313, 114.315, 114.316, 114.317 and 114.318. The coinmission adoptsthese amendments in Chapter 114, Control of Air Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan (SIP). The adoption amends the definition of additive;specifies thatthe executive director mustconsultwiththeUnited StatesEnvironmental Protection Agency (EPA) before approving an alternative test method; revises the docuinentation requirements for the alternative dieselformulation approval procedures; revises the minimum requirements for candidate fuel formulationsused for testing purposes; specifies requirements for the test engine used for alternative diesel fuel formulation testing; adds clarifying language to the alternative test sequences; revises the emission comparison requirements to be more consistent with similar California Air Resource Board regulations; clarifies deinonstration methods for alternative diesel 

### formulation approval; clarifies records requirements relating to sampling; revises reporting requirements for producers with alternative emission reduction plans; establishes procedures that require producers to submit alternative emission reduction plans that are either developed in accordance with the EPA's Unified Model or use diesel credits from early introduction of low-sulfur gasoline in affected counties; and corrects citations and crossreferences. Under Tex. Health & 

### Safety Code Ann. 

## $5 382.011, 382.012, and 382.023 (Vernon 2001), the Commissionhas the authority to control the quality of the state's air and to issue orders coilsisteiltwith the 

### policies and purposes ofthe Texas Clean Air Act, Chapter 382 of the Tex. Health & 

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

### TexasRegister (30 TexReg 8407).
Pursuant to Tex. Health & 

### Safety Code Ann. $ 

### 382.017 (Vernon2001), Tex. Gov't Code Chapter 2001 (Vernon 2000 & 

### Vernon Supp. 2001) and 40 Code of Federal Regulations 

## 5 51.102and after proper notice, the Co~n~nission conducted a public hearing to considel-the aineildinents and revisioils to the SIP. Proper notice included prominent advei-tise~neilt 

### in the areas affected at least 30 days prior to the date of the hearing. A public hearing was held in Austin 011 

### January 10,2006.
The Coillinissioilcirculatedheari~lg notices of its intended action to the public, includi~lg interested persons, the Regional Adiniilistrator ofthe EPA, and all applicablelocal airpollutioil control agencies. The public was invited to submit data, views, and recommendations on the proposed amended rules and SIP revisions, either orally or in writing, at the hearing or during the co~n~nent period. Prior to the scheduled hearing, copies of the proposed amended rules and SIP revisionswere availablefor public iilspectio~l at the Commission's central office and on the Commission's Web site.

### Data, views, and recommendations of interestedpersoilsregarding theproposed amended rules and SIP revisions were submitted to the Commission during the commentperiod, and were considered by the Comlnission as reflected in the analysis of testimony incorporated by reference to this Order. The Commission finds that the analysis of testimony includesthe names of all interested groups or associations offereg comment on the proposed amended rules and the SIP revisions and their positioll concerning the

1 

### same. IT IS THEREFORE ORDERED 

### BY THECOMMISSIONthat the amended rules and revisionsto the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff' to make any non-substantive revisions to the rules necessary to comply with Texas 

### Register requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are incorporated by reference in this Order as if set forth at length verbatim in this Order.
IT IS FURTHER ORDERED 

### BY THE COMMISSION that on behalf of the Commission, the Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator ofEPA as aproposed revision tothe Texas SIP pursuant to the Federal Clean Air Act, 

## 5 110, as amended.
This Order constitutesthe Order ofthe Commission required by the Administrative Procedure Act, Government Code, 

## 5 2001.033.
If any portion ofthis Order isfor any reason held to be invalidby a court of competent jurisdiction, the invalidity of any portion shall not affect the validity of the remaining portions.

Date issued: 

# HAY 03 2006 TEXAS COMMISSION ON ENVIRONMENTAL QUALITYtion and, as appropriate, the sulfur properties and volumes of the gasoline that isbeing used to generate credit in accordance with subsection @)(3) or (4) of this section. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 27, 2006. TRD-200602361 Stephanie Bergeron Perdue Acting Deputy Director, Of ce of Legal Services Texas Commission on Environmental Quality Effective date: May 17,2006 Proposal publication date: December 16,2005 For further information,please call: (512)239-0348 

# + + + SUBCHAPTER

### J. OPERATIONAL CONTROLS FOR MOTOR VEHICLES 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 5114.512 and 5114.517 without changestothe proposedtext as published inthe November 25,2005, issue ofthe Texas Register (30TexReg 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 inits EACagreement to maintain attainment with the federal eight-hour ozone national ambient air quality standards. The rule packagealso provided local governments in other areas of the state the option of applying these rules intheir 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 rulewas part of that attainment demonstration. While the Austin Metropolitan Statistical Area (MSA) was monitoring attainment with the eight-hour ozone standard, future monitoring could have shown nonattainment. Therefore, members of the Austin MSA worked to ratify a memorandum of agreement (MOA)with the TCEQ that would allow themtoenforce 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. Membersof the Austin EAC area signing the MOA included the counties of Bastrop, Caldwell, Hays, Travis, and Williamson and the cities of Austin, Bastrop, Elgin, Lockhart, Luling, Round Rock, and San Marcos. In meetings with officials of the Austin EAC to develop the idling rule MOA, concerns arose regarding language in the locally enforced idling restrictions. Austin EAC members voiced concern that parts of 5114.517, Exemptions, were ambiguous and needed revision. Members of the Austin EAC felt that 5114.517(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 vehiclesto 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 of these concerns. At the request of the Austin EAC members, the commission adopts revisionsto 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 berthfor a government-mandated rest period." In addition, the bill states that, "no driver usingthe vehicle's sleeper berth may idlethe vehicle ina school zone or within 1,000 feet of a public school during its hours of operation," or else be subject to a fine not to exceed $500. This rulemaking amends the rule on idling limits for gasoline and diesel-powered engines in motor vehicles within the jurisdiction of any local government in the state that has signed an MOA with the commission to delegate enforcement to that local government. Local enforcement is crucial to the effective implementation of rules to reduce the extended idling of gasoline and diesel-powered heavy-duty vehicles and will help to ensure the reduction in nitrogen oxides (NO")and volatile organic compound (VOC)emissions, which is needed by local governments to achieve or maintain attainment of thefederal eight-hour ozone standard. These idling limits will lower NOxemissions and other



### 31 TexReg3900 May 12, 2006 TexasRegisterpollutants from fuel combustion. Because NOxis a precursorto ground-level ozone formation, reduced emissions of NO*will result in ground-level ozone reductions. Currently,there are no federal regulationsgoverning idle timefor motor vehicles. Therefore, the state has the authorityto control motor vehicle idling. The requirements developed by the commission for this NOx emission reduction strategy will result in restrictions on the time allowed for motor vehicle idling. EPA methodology assessing the benefits of this NOxemission 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 rulewill not reduce the amountof reductions demonstrated. SECTION BY SECTION DISCUSSION The amendment to S114.512, Control Requirementsfor Motor Vehicle Idling, amends the existing paragraphas subsection (a). The amendmentto S114.512 alsoadds subsection(b),which establishes that, "no driver of a motor vehicle may use the vehicle's sleeper berth for a government-mandated rest period ifthe vehicle is within a schoolzone or within 1,000 feet of a public school during its hours of operation." Any offense under subsection (b) is punishable by a fine not to exceed $500. 'The requirements under subsection (b)expire on September I, 2007, just as in HB 1540. Adopted §114.517(1) provides an exemptionfor 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 I, 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 (a), thereby clarifying the intent of the rule. The amendmentto §114.517(8) eliminates languageexempting 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 vehiclewhen it is necessaryfor the driver to power a heater or air conditioner while helshe is using the vehicle's sleeper berth for a government-mandated rest period

### ." Section 11 4.517(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: I)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 requiredby 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 jurisdictionof any local government in the state that has signed an MOA with the commission to delegate enforcement to that local government. The amendments clarify current rule requirements and implement the new requirements of HB 1540. Currently, there are no federal regulations governing idle time for motor vehicles. This rulemaking action therefore does not exceed a standard set by federal law. The amendments are needed to implement state law, and the rulemaking therefore does not exceed an express requirement of state law. The amendments do involve a compact, which is an agreement or contract between the state and an agency or representative of federal government to implement a state and federal program, however, the amendments do not exceed the requirements of that compact. This rulemaking helps the Austin EAC area continue to meet the milestones of the compact and demonstrate continuing attainment of the eight-hour ozone standard. Finally, this rulemaking was not developed solely under the general powers of the agency. Because this rulemaking does not meet any of the four applicability requirements, Texas Government Code, §2001.0225 does not apply, and a regulatory impact analysis is not required. TAKINGS IMPACTASSESSMENT UnderTexas GovernmentCode, §2007.002(5), "taking"means: I)a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requiresthe governmental entityto compensate the private real property owner as provided by the Fifth and Fourteenth Amendmentsto the United States Constitution or §I7or §19, Article I, Texas Constitution; or 2) a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist inthe absenceof the governmental action; and is the producing cause of a reduction of at least 25% in the marketvalue of the affected private realproperty,determined by comparingthe marketvalue of the propertyas if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The commissioncompleted a taking impact analysisforthis 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 Constitutionor the Texas Constitution. The adopted rules



### !DOPTED RULES May 

### 12,2006 31 TexReg3901are 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 under Texas Government Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission reviewed the rulemaking and found that this rulemakingisan action identified in Coastal CoordinationAct ImplementationRules, 31 TAC s505.11, or will affect an actionlauthorization identified in s505.11, and therefore, requiresthat ap plicable goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process. The commission determined that under 31 TAC s505.22, this rulemaking action is consistentwith the applicable CMP goals and policies. The CMP goal applicableto this rulemaking action is the goal to protect, preserve,and enhance the diversity, quality, quantity, functions, and values of coastalnatural resource areas (31TAC §501.12(1)). Nonewsourcesof aircontaminantswill be authorizedand ozone levels will be reducedas a result of this rulemaking action. The CMP policyapplicableto this rulemaking action is the policy that commission rulescomplywith regulations in 40 Code of Federal Regulations, to protect and enhance air quality inthe coastalarea (31TAC §501.14(q)). This rulemaking action complieswith 40 Codeof Federal Regulations. Therefore, in compliancewith 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:OO a.m. at the Texas Commission on Environmental Quality, 12100 North 1-35, Building E, Room 201S, inAustin, 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 (CapitalArea 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 languagein the currentexemptionsand addressed concerns related to TxDOT's employee idling policy. RESPONSE The commission appreciates the support for the locally enforced motor vehicle idling limitations and the proposed amendments. The commission agrees that the amendments will clarify idling requirements and providefor 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 berthsand the additionof paragraph (11) which exempts a motor vehicle 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 itwill 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 without the credits affected bythese changes. EPA comments further that programs in an approved SIP must still be enforced unless EPA approves a SIP revision. RESPONSE The commission disagreeswith the comment that these amendments weaken the idling requirements and thus the SIP. The commission is committed to implementing idling restrictions contained in the EPA-approvedSIP. The purposeof the adopted amendments is to clarify idling restrictions for affected vehicle owners and operators and provide local jurisdictionswith 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. Inthe SIP, the commission used EPA's Guidance for Qualifyingand UsingLong Duration Truck IdlingEmission Reductions in State Implementation Plans and TransportationConformity to determinethat the maximum benefit from idling restrictions placed on diesel-powered "18-wheeler" vehicles would be a 0.67 tons per day reduction of NOx for the five-county Austin EAC area. Based upon the fact that the Austin EAC includes the Texas 

### mission Reduction Programasa backup measurefor any idling reductionshortfall. and the expiration dateof Se~tember 1.2007. for the amendments addedfrom HB 1540, the'commissibn disagrees that new substitute reductions or modeling need to be developed to monitor continued attainment as a result of this rulemaking. 'This is especiallythe case for the Austin EAC area since the five-county area is currently designatedan attainment area, and if monitored nonattainmentin the future could not be designated nonattainment until December 31, 2007, at the earliest. The commissiondid not revise the rule in responseto this comment. STATUTORY AUTHORITY The amendments are adopted under Texas Water Code (TWC), s5.103, which authoriies 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, 5382.011, which authorizes the commission to control the quality of the state's air; 5382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; 5382.019,which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles; 5382.0191, 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 necessaryto demonstrate attainment and protectthe public from exposureto hazardous air contaminantsfrom motor vehicles. The adopted amendments implement TCAA, §§382.002, 382.011, 382.012, 382.019, 382.0191, and 382.039.



### 31 TexReg 3902 May 12, 2006 TexasRegisterThis agency hereby certifiesthatthe adoption has beenreviewed 

# + + + by legal coinsel andfoundto be a valid exercise of the agency's legal authority. 

### CHAPTER 425. 

### FIRE SERVICE INSTRUCTORS
Filed with the Office of the Secretary of State on April 27, 2006. 37 TAC 8425.13
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 5421.3, 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 inthe March 10, 2006, issue of the Texas Register (31 TexReg 1623) and will not be republished. The adopted amendment adds functional position descriptions for Fire Service lnstructor I, II, and Ill,which had not previously existed in 5421.3. The TCFP hasdetermined 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, 5419.008, which providesthe TCFP with the authority to adopt rules for the administration of its powers and duties; and Texas Government Code, 5419.032, which provides the TCFP withthe authority to prescribe the means of presenting evidence of the fulfillment of the qualifications for appointment as fire protection personnel. Cross referenceto statute: Texas Government Code, 5419.008 and 5419.032. This agency hereby certifies that the 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-200602416 Gary L. Warren, Sr. Executive Director Texas Commission on Fire Protection Effective date: May 21,2006 Proposal publication date: March 10, 2006 For further information, please call: (512) 936-3821 The Texas Commission on Fire Protection (TCFP) adopts new s25.13, 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 proposedtext published in the March 10, 2006, issue of the Texas Register (31 TexReg 1624) and will not be republished. The purpose of the adopted new rule is to provide, for a limited period of time, a qualifying path to advance to Fire Service lnstructor Ill certification for those individuals serving as facility coordinators prior to March 1, 2006. The adopted new rule providesthat for oneyear only from March 1,2006, individuals who possess a Fire Service lnstructor I1 certification will be eligible to be certifiedfor Fire Service lnstructor Illafter 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 organizationthat the individual: 1) has been assigned or is currently assigned as a chief training officeror coordinatorof record; and2) has demonstratedthe minimum job performance requirementsof National Fire Protection Association (NFPA) Standards 1041, entitled Standard for Fire Service lnstructor Professional Qualifications. TheTCFP has determinedthis new ruleto be incompliance 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, 5419.008, which provides the TCFP with the authority to adopt rules for the administration of its powers and duties; Texas Government Code, 5419.022, which provides the TCFP with authority to establish minimum educational, training, physical, and mental standards; and Texas Government Code. 5419.028(3), which provides the TCFP with the authority to certify persons as qualified fire protection personnel instructors under conditions which the TCFP prescribes. Texas Government Code, ~~419.008,419.022,and 419.028 are affected by this rulemaking. This agency hereby certifiesthatthe adoption has beenreviewed by legal counsel and foundto be a valid exercise ofthe agency's legal authority. Filedwith 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 5431.I1 and S431.201, concerning minimum



### ADOPTED RULES May 

### 12,2006 31 TaaReg3903