Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
The Texas Natural Resource Conservation Commission (commission or
TNRCC) adopts amendments to §114.5 (Transportation Planning Definitions);
the repeal of existing §114.270 (Transportation Control Measures); and
new §114.270 (Transportation Control Measures). The commission also adopts
corresponding revisions to the state implementation plan (SIP) sections concerning
transportation control measures (TCMs). The commission adopts these actions
to §114.5, §114.270, and the associated SIP in order to revise the
rule to meet the United States Environmental Protection Agency (EPA) guidance
requirements and allow nonattainment area metropolitan planning organizations
(MPOs) to substitute TCMs without a SIP revision. Section 114.270 is adopted
with changes to the proposed text as published in the November 26, 1999 issue
of the
Texas Register
(24 TexReg 10508). Section
114.5 and the repeal of existing §114.270 are adopted without changes
to the proposed text and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
TCMs are transportation projects and related activities that are designed
to achieve on-road mobile source emissions reductions and are included as
control measures in the SIP. Allowable types of TCMs are listed in §108
(Air Quality Criteria and Control Techniques) of the Federal Clean Air Act
(FCAA), 1970, as amended, (42 United States Code (USC), §7408) and defined
in the federal transportation conformity rule found in Title 40 Code of Federal
Regulations (40 CFR), Part 93 (Determining Conformity of Federal Actions
to State or Federal Implementation Plans). In general, a TCM is a transportation
related project that reduces vehicle use or changes traffic flow and/or congestion
conditions. A project that adds single-occupancy-vehicle roadway capacity
or is based on improvements in vehicle technology or fuels is not eligible
as a TCM. Nonattainment area MPOs work in conjunction with the commission
to develop TCMs for inclusion in the SIP. The MPOs are responsible for ensuring
the TCM emission reduction targets and time lines are met.
The current TCM rule allows TCMs to be grouped and quantified by categories,
without project specific descriptions and associated estimated emissions reductions.
Nonattainment area MPOs can substitute TCMs within, but not between, categories
without a SIP revision. The EPA objected to the current TCM rule because it
does not require the listing of specific TCM projects or allow for public
comment on TCM substitutions. The EPA SIP guidance for TCMs requires states
to provide EPA with a complete description of the TCM and its estimated emission
reduction benefits. MPOs are often reluctant to list specific TCMs in the
SIP because specific project locations and emission reductions are often subject
to change. Under the current rule, a SIP revision is required to substitute
TCMs between categories, and a SIP revision triggers a transportation conformity
determination which may not have been necessary otherwise. There are also
adverse transportation conformity consequences if TCMs are not completed on
schedule.
The adopted rule will require TCM project specific descriptions and estimated
emissions reductions to be included in the SIP. The adopted TCM rule will
also allow nonattainment area MPOs to substitute TCMs without a SIP revision
if the substitution results in equal or greater emission reductions. The TCM
substitution process explained in this rule is the only way in which a TCM
may be substituted without constituting a SIP revision for transportation
conformity purposes. The TCM substitution process will require interagency
consultation and a public comment period. The commission is responsible for
conducting the public participation process and approving the substitute TCM.
The TCM substitution process parallels the rulemaking and SIP revision processes
for the purpose of public participation. The adopted rule will meet EPA TCM
requirements and will allow the MPOs, after interagency consultation, to substitute
TCMs without SIP revisions. This flexibility may also encourage MPOs to list
more TCMs in the SIP and facilitate reaching SIP emission reduction requirements.
SECTION BY SECTION RULE DISCUSSION
The amendment to the definition of TCM in §114.5 will mirror the federal
definition found in 40 CFR §93.101 (Definitions).
The existing rule in §114.270 is repealed and a new §114.270
is adopted because of the extensive changes to the section. The new section
states the purpose of the rule in §114.270(a), and specifies that the
rule applies to nonattainment or maintenance areas in §114.270(b). The
purpose of the rule is to implement TCM requirements, address the roles and
responsibilities of the MPOs and implementing transportation agencies in nonattainment
and maintenance areas, and provide a method for TCM substitution of without
a SIP revision. The rule applies to MPOs and agencies that implement TCMs
in designated nonattainment or maintenance areas, as defined in 30 TAC §101.1
(Definitions).
General requirements are addressed in §114.270(c). These requirements
indicate that all TCMs shall be developed, coordinated, funded, approved,
implemented, tracked, evaluated, and monitored in accordance with §114.260,
Transportation Conformity; 40 CFR 93, Conformity to State or Federal Implementation
Plans of Transportation Plans, Programs and Projects Developed, Funded or
Approved Under Title 23 USC or the Federal Transit Laws, as amended; the FCAA;
and the EPA TCM SIP approval criteria listed in the EPA guidance document
"Transportation Control Measures: State Implementation Plan Guidance," EPA
450/2-89-020, September 1990. This section was added in response to a comment
from the EPA indicating that these documents are the regulatory criteria for
TCMs.
Nonattainment and maintenance area MPO responsibilities are addressed in §114.270(d).
The MPOs are responsible for ensuring that all responsibilities required by §114.270(c)
are fulfilled. Paragraphs (1) - (5) and (8) of the proposed subsection (c)
have been deleted because they reiterate the requirements of new §114.270(c).
New §114.270(d)(1) was added to specify that the MPO responsibilities
are stated in subsection (c). Section 114.270(c)(6) has been renumbered to §114.270(d)(2)
and requires MPOs to maintain complete and accurate records on TCMs for five
years and make these records available to appropriate agencies. Section 114.270(d)(2)
has been revised to indicate that the records must be maintained for all TCMs
and be maintained on a rolling basis. Section 114.270(c)(7) has been renumbered
to §114.270(d)(3), which has been revised to indicate that the records
will also be made available to the public. The proposed §114.270(c)(8)
has been deleted because it reiterated the requirements of §114.270(c)
and (f).
Responsibilities for an implementing agency are addressed in §114.270(e).
Paragraph (1) has been added to indicate that implementing agencies are responsible
to ensure that all responsibilities required by §114.270(c) are fulfilled.
Paragraph (2) has been revised to indicate that implementing agencies will
have the responsibility to provide to the MPO the following information upon
request: 1) a complete description of the TCMs and their associated emission
reduction benefits; 2) evidence that the TCMs were properly adopted by a jurisdiction
with legal authority to commit to and execute the program(s); 3) evidence
that funding has been, or will be, obligated to implement the TCMs; and 4)
a description of the monitoring program to assess the TCM's effectiveness.
The proposed paragraph (4) was renumbered to paragraph (2)(D) and was revised
in response to an EPA comment by removing the phrase "and to allow for necessary
in-place corrections or alterations."
The TCM substitution process is outlined in §114.270(f). The adopted
rule provides a TCM substitution process that allows nonattainment area MPOs
to change the TCMs used as SIP control strategies without a SIP revision if
the substitution results in equal or greater emission reductions. Substitute
TCM(s) must be implemented in the same time frame as the original TCM(s).
If the implementation date has already passed, measures that require funding
must be included in the first year of the next transportation improvement
program plan and metropolitan transportation plan adopted by the MPO. The
substitute measures must be fully implemented within two years of the original
implementation date in order to meet the requirement for timely TCM implementation
under 114.260. In order for the commission to approve substitute measures,
MPOs must provide evidence of adequate personnel, funding, and authority under
state or local law to implement, monitor, and enforce the measures. Commitments
to implement the substitute measures must be made by the agency with legal
authority for implementation. Section 114.270(f) was revised for clarification
purposes in response to comments from the EPA. Subsection (f) was also revised
in several places to indicate that the commission will approve, rather than
adopt, substitute measures and that the commission approval shall not constitute
a SIP revision for the purpose of transportation conformity.
The analysis of the substitute measures is addressed in §114.270(f)(2),
which indicates that the analysis must be consistent with the methodology
used for evaluating measures in the SIP. If emissions models and/or transportation
models have changed since measures in the SIP were evaluated, the TCM to be
replaced and the substitute TCM must be evaluated using the latest modeling
techniques. Key methodologies and assumptions that must be consistent are
EPA approved regional and hot-spot models, the area transportation model,
and population and employment growth projections.
Section 114.270(f)(3) indicates that the MPO will convene a committee (or
working group) to identify and evaluate possible substitute measures. The
committee shall include members from all affected jurisdictions, the commission,
and state and local transportation agencies. Subparagraph (3)(A) was revised
in response to the EPA comment to include local air agencies as members of
the working group. The working group will also consult with EPA Region 6.
This consultation may be accomplished by sending copies of all draft and final
documents, agendas, and reports to EPA Region 6. The MPO, commission, and
EPA Region 6 must concur with the appropriateness and equivalency of the substitute
TCM.
Section 114.270(f)(4) was revised in response to EPA's comment to clarify
the parties which must concur.
Section 114.270(f)(5) was revised in response to comments to clarify that
the commission will approve the substitute measures and conduct the public
hearing and comment process. A public comment period with reasonable (30-days)
notice must be held on the substitute TCMs before they can be approved by
the commission and included in the SIP. After the comment period closes, the
commission will submit to EPA Region 6 a summary of comments received, along
with the response to comments. EPA will notify the commission within 14 days
if its concurrence with the substitution has changed as a result of public
comments. Paragraph (5) has also been revised to indicate that the TCM substitution
process parallels the rulemaking and SIP processes for the purpose of public
participation; however, commission approval of a substitute TCM shall not
constitute a SIP revision for the purpose of transportation conformity. Subparagraphs
(C) - (F) of paragraph (5) have been deleted, because they do not reflect
the public participation requirements associated with the rulemaking and SIP
processes.
Section 114.270(f)(7) was revised in response to comments to clarify that
EPA will notify the commission within 14 days of receipt summary of comments
and responses from the commission. If EPA fails to notify the commission within
14 days, EPA is deemed to concur.
Section 114.270(f)(9) states that the commission will maintain documentation
of approved TCM substitutions. The documentation will provide a description
of the substitute and original TCMs, including requirements and schedules.
The documentation will also include a description of the substitution process,
including committee or working group members, the public hearing and comment
period, EPA's concurrence, and approval by the commission. The documentation
will be submitted to EPA following approval by the commission of the substitute
measure and will be made available to the public as an attachment to the SIP.
Section 114.270(f)(10) was deleted in response to comments that it limited
the commission enforcement authority. Section 114.270(f)(10) had indicated
that the commission would seek a financial penalty against the MPO or implementing
agency only in the case of an egregious or knowing violation of the provisions
of this section.
SECTION BY SECTION SIP ANALYSIS
The existing Vehicle Miles Traveled (VMT) Offset section (VI. B. 8. b.)
was revised to update the date and section reference to the transportation
control measure rule found in 30 TAC 114.270. No change to the technical portion
of the VMT Offset SIP is being adopted in this revision. The section was also
administratively reformatted to conform to the new SIP format being used by
the commission.
The adopted new Transportation Control Measure section (VI. B. 8. c.) states
the requirements relating to TCMs, addresses the roles and responsibilities
of the MPOs and implementing transportation agencies in nonattainment and
maintenance areas, and provides a method for the substitution of TCMs without
a SIP revision. The SIP applies to MPOs and agencies that implement TCMs in
designated nonattainment or maintenance areas.
FINAL REGULATORY IMPACT ANALYSIS
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
"Major environmental rule" means a rule the specific intent of which is to
protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The amendments to
Chapter 114 are not anticipated to adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state because
the amendments are procedural in nature, are intended to conform state TCM
rules to EPA guidance, and allow nonattainment area MPOs to substitute TCMs
without a SIP revision. In addition, the rulemaking action does not meet the
applicability requirements of a "major environmental rule." The rulemaking
action does not exceed a standard set by federal law, and has been completed
to satisfy the federal requirement set out in 40 CFR §93.113 which requires
timely implementation of TCMs in order for serious and above ozone nonattainment
areas to demonstrate transportation conformity. In addition, the rulemaking
action neither exceeds an express requirement of state law, nor exceeds a
requirement of a delegation agreement. Finally, the rule conforms to EPA rules
and guidance regarding TCM requirements.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for these rules in
accordance with Texas Government Code, §2007.043. The following is a
summary of that assessment. The specific purpose of the rulemaking action
is to implement requirements relating to TCMs as required by 42 USC, §7482(c)(5).
TCMs are transportation-related projects that are designed to reduce on-road
mobile source emissions and are included in the area's SIP. These requirements
address the roles and responsibilities of the MPOs and implementing transportation
agencies in nonattainment and maintenance areas and provide a method for the
substitution of TCMs without a SIP revision. The adopted rule will require
TCM project specific descriptions and estimated emissions reductions to be
included in the SIP. The adopted rule will also allow nonattainment area MPOs
to substitute TCMs without a SIP revision if the substitution(s) result(s)
in equal or greater emissions reductions. The TCM substitution process will
require interagency consultation and a public comment period.
The adopted rule change will meet EPA TCM requirements and will allow the
MPOs to substitute TCMs without SIP revisions. This flexibility may also encourage
MPOs to list more TCMs in the SIP and may facilitate achievement of SIP emissions
reduction requirements.
Therefore, this revision does not constitute a takings under Chapter 2007
of the Texas Government Code.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission determined that the adopted rulemaking relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter
281, Subchapter B, (Consistency with the CMP). The commission reviewed this
adopted action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council, and determined that the
adopted action is consistent with the applicable CMP goals and policies. The
CMP policy applicable to this rulemaking action is the policy that commission
rules comply with regulations at 40 CFR to protect and enhance air quality
in the coastal area. This rule is implementing, within the state, a portion
of 40 CFR 93 which is protective of the air quality in the coastal area because
it requires transportation plans to conform to the SIP. Therefore, the rule
is in agreement with the CMP policy governing air pollutant emissions.
There were no comments regarding the consistency of the proposed rule with
the CMP during the public comment period.
HEARING AND COMMENTERS
A public hearing on this proposal was held in Austin on December 21, 1999.
There were no attendees at the public hearing. The comment period was originally
scheduled to close on December 27, 1999, but at the request of EPA, the comment
period was extended (24 TexReg 12146, dated December 31, 1999) until January
28, 2000. Two comment letters were received from the Texas Department of Transportation
(TxDOT), one comment letter was received from EPA, and one comment letter
was received from an individual. Both TxDOT letters generally supported the
proposal and welcomed the increased flexibility in the rules. EPA did not
express support or opposition to the proposal, however, it submitted several
changes that must be made to the rule language in order for the proposal to
be approvable.
ANALYSIS OF TESTIMONY
TxDOT commented in support of the proposal and stated that the proposed
amendments would simplify TCM substitution procedures.
The commission appreciates TxDOT's support.
EPA noted that EPA has not promulgated a TCM rule and its criteria for
review of the proposal came from the FCAA, the federal transportation conformity
rule, and EPA policies relating to SIPs, TCMs, and nonattainment areas.
The commission revised §114.270 by adding a new subsection (c) and
renumbering the remaining subsections. This section indicates that all TCMs
shall be developed, coordinated, funded, approved, implemented, tracked, evaluated,
and monitored in accordance with 30 TAC §114.260, Transportation Conformity;
40 CFR 93, Conformity to State or Federal Implementation Plans of Transportation
Plans, Programs and Projects Developed, Funded or Approved Under Title 23
U.S.C. or the Federal Transit Laws, as amended; the FCAA; and the EPA TCM
SIP approval criteria listed in the EPA guidance document "Transportation
Control Measures: State Implementation Plan Guidance," EPA 450/2-89-020, September
1990. The intent of this section is to clarify MPO and implementing agency
responsibilities and ensure that TCMs will be approvable by EPA. The remaining
subsections have been renumbered and several paragraphs have been deleted
because they reiterate the requirements of the new §114.270(c). The commission
does not believe that it is appropriate to establish TCM requirements based
on EPA SIP, TCM, and nonattainment area policies because these EPA policies
are subject to various interpretations and changes.
An individual commented that the proposed changes allow local MPOs, rather
than the commission, to hold public hearings regarding changes to TCMs. The
individual noted that changing the TCMs in the SIP should be a state responsibility.
The individual also mentioned that MPOs do not have the responsibility under
the FCAA to ensure that the SIP has workable TCMs that get implemented.
The commission agrees that changing the TCMs in the SIP should be a state
responsibility. The commission renumbered §114.270(e)(5) as §114.270(f)(5)
and revised the language to clarify that public hearings regarding changes
to TCMs will be conducted by the commission. The commission agrees that MPOs
do not have the responsibility under the FCAA to ensure that the SIP has workable
TCMs; however, §176(c)(2)(C) of the FCAA does give MPOs the responsibility
of ensuring the timely implementation of TCMs.
An individual commented that allowing the withdrawal of TCMs by MPOs will
allow MPOs to weaken or modify TCMs that work and substitute or dismantle
TCMs with less commission oversight. The individual gave examples of high-occupancy
vehicle (HOV) lanes being converted to congestion pricing, single occupancy
vehicle lanes and toll roads being selected instead of rail lines or HOV lanes
and also stated that the proposal encouraged the wrong type of transportation
option.
The commission notes that §114.270(e), renumbered as §114.270(f),
allows TCMs to be withdrawn only if they are substituted with another TCM
of equal or greater emissions reductions that will be implemented in the same
time period as the original TCM. MPOs, therefore, are not allowed to weaken,
dismantle, or modify TCMs that work without guaranteeing that the substitute
TCM will achieve the emissions reduction target. The commission's oversight
has not been lessened; the commission must approve the TCM substitution. The
commission does not have the authority to select transportation projects or
determine transportation options as referenced in the commenter's examples.
However, the commission notes that §114.270(f) would not allow the MPOs
to select and substitute an alternative TCM unless the project's SIP emissions
reductions target is met by the substitute TCM. The rule changes should encourage
transportation options that are beneficial to air quality.
An individual commented that citizens need to be able to appeal to EPA
if TNRCC continues to abdicate its responsibilities in the realm of TCMs.
The individual noted that a formal process that includes changing TCMs through
the SIP makes citizen input a more powerful tool. The individual referred
to the following statements in the SIP: "Nonattainment area MPOs objected
to the current TCM rule because it does not provide a method of substituting
TCMs between categories without a SIP revision. SIP revisions trigger transportation
conformity determinations that may not have been necessary otherwise. There
are also adverse transportation conformity consequences if all TCMs are not
completed on schedule." The individual referred to these statements as evidence
of TNRCC's avoidance of its responsibilities. The individual also noted that
TCM substitutions through SIP revisions give EPA and TNRCC a hammer to force
more complete and periodic conformity determinations so that mid-course corrections,
monitoring, and auditing of MPO progress can be done.
The commission notes that the rule includes a formal public comment period
which allows citizens to have the same opportunities for input as that for
a SIP revision. As part of its TCM responsibilities, the commission will conduct
the public hearing and comment period. The statements referred to as evidence
of the commission's avoidance of its responsibilities were included to explain
why MPOs are often reluctant to include TCMs in the SIP. Frequently, TCMs
are planned transportation projects that will be implemented regardless of
whether they are included as TCMs in the SIP, so it is not necessary to include
them in the SIP to ensure implementation. Transportation projects are also
often subject to change; for example, the planned project limits or implementation
dates may be changed before implementation due to new information or delays
in the process. Requiring SIP revisions to accommodate project changes discourages
MPOs from committing to SIP TCMs, since the SIP revision triggers a transportation
conformity determination. Transportation conformity determinations are resource
intensive, so MPOs often do not want to include transportation projects as
SIP TCM commitments. The commission believes that the required frequency of
conformity determinations is sufficient to allow for mid-course corrections
and monitoring of MPO progress and that increased frequency of conformity
determinations triggered by TCM related SIP revisions only discourages the
inclusion of TCMs as SIP commitments.
An individual stated that the idea that the rule change is predicated by
EPA is false, because all the EPA wants is a listing of specific TCM projects
and allowance of public comment on TCM substitutions. The individual stated
that this could be accomplished by changing the SIP and holding an official
TNRCC public hearing.
The commission notes that the current §114.270 allows TCMs to be grouped
and quantified by category. A rule revision was needed to require the listing
and quantification of specific TCM projects in the SIP. The commission agrees
that public comment on TCM substitutions could be accomplished through the
SIP revision process; however, SIP revisions trigger transportation conformity
determinations that may not otherwise be required. The transportation conformity
process is very resource intensive and time consuming, which discourages MPOs
from making TCM SIP commitments. The commission believes that it is detrimental
to air quality efforts to discourage MPOs from making TCM SIP commitments,
and therefore believes it in the best interest of the state to allow TCM substitutions
without a SIP revision.
EPA objected to the wording of the preamble, SIP narrative, and §114.270(c)(1).
EPA stated that the wording implied that the MPOs will identify a list of
TCMs and their emissions reductions for inclusion in the SIP, but the SIP
commitment would only be for a specified number of those TCMs and a specified
amount of emissions reductions. EPA also stated that this approach is not
acceptable or consistent with the TCM substitution process specified in §114.270(e)
and would be confusing in the future. EPA also suggested modifying the language
in §114.270(c)(1) by deleting "from which a specified number of TCMs
will be implemented and a specified amount of emissions reduction will be
achieved." EPA further suggested that the section be modified to include "TCM
implementation schedule and completion date" instead of "TCM completion date."
The intent of this wording was to provide additional flexibility to MPOs
to facilitate the inclusion of TCMs in the SIP. The commission notes that
the EPA had previously agreed to this concept; however, the commission agrees
that the concept could be confusing in the future. The commission believes
that TCM requirements can be best addressed by the new §114.270(c) as
stated previously. The commission has deleted §114.270(c)(1) accordingly.
The preamble and SIP narrative have also been revised.
EPA stated that the last sentence in the bracket in §145.5(3) {sic}
must be deleted since it is not an appropriate definition for TCMs.
The commission notes that brackets define deleted text; therefore all text
within the brackets in §114.5(3) is deleted.
EPA stated that §145.5 {sic} does not define the terms MPO and implementing
agency and that these terms must either be defined in this section or cross
references given to the definitions elsewhere in TNRCC rules.
The commission notes that §114.5 of the proposal contains definitions
(1) and (2), with the notation of (No Change), which means that these definitions
have not changed as a result of this proposal. Definition (1) is the term
"implementing agency" and definition (2) is the term "MPO." Listing the definitions
as (No Change) is
Texas Register
practice
for the proposal. The actual language for these definitions may be found on
the commission web site or the Secretary of State web site, on the page where
the current rules are located.
An individual recommended revising §114.270(a) to add TNRCC as a responsible
party to ensure that TCMs are looked at via the substitution mechanism.
The commission disagrees that it is not a responsible party to ensure TCMs
are reviewed via the substitution mechanism. The commission renumbered §114.270(e)
as §114.270(f) and revised §114.270(f)(5) to indicate that the public
comment period will be conducted by the commission. Section 114.270(f)(1)(D)
indicates that the commission is responsible for approving the substitute
TCM. The commission is also included in the working group required by §114.270(f)(3)
and must concur with the TCM substitution as indicated by the current §114.270(f)(4).
These provisions ensure that the commission will look at and allow TCMs only
via the substitution mechanism described herein and that no further revisions
to the SIP will be necessary as a result of the TCM substitution.
An individual noted that nothing in §114.270(c) deals with MPOs failing
to carry out their responsibilities or subverting TCMs. The commmenter also
stated that monitoring, tracking, auditing, and enforcement must be built
in by TNRCC to ensure compliance.
The commission has added a new §114.270(c), which indicates that all
TCMs shall be developed, coordinated, funded, approved, implemented, tracked,
evaluated, and monitored in accordance with §114.260, Transportation
Conformity; Title 40 Code of Federal Regulations, Part 93 (40 CFR 93), Conformity
to State or Federal Implementation Plans of Transportation Plans, Programs
and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Laws, as amended; the FCAA, 42 USC 1970, as amended; and the EPA guidance
document "Transportation Control Measures: State Implementation Plan Guidance,"
EPA 450/2- 89-020, September 1990. The commission believes that the new section
will ensure adequate monitoring, tracking, auditing, and enforcement of TCMs
and no further revisions are necessary.
EPA indicated that the commission needs to re-examine §114.270(c)(2)
to determine whether the paragraph covers all aspects of TCM evaluation and
tracking, because 40 CFR 93.113 addresses timely implementation of TCMs and
may not be inclusive of TCM evaluation and tracking as a general requirement
for the MPO.
The commission deleted the language in §114.270(c)(2) as proposed
and replaced it with the new §114.270(c) language. The commission believes
the new language will ensure adequate TCM evaluation and tracking.
EPA commented that §114.270(c)(3) should indicate that both the commitments
from implementing agencies and evidence of these commitments will be a part
of the control strategy SIPs and will be submitted to EPA for approval.
The commission has deleted §114.270(c)(3) and replaced it with the
new §114.270(c). The commission believes that the new section will ensure
that adequate evidence of commitments from implementing agencies is included
in the SIP. The commission also notes that the EPA TCM SIP guidance document
referenced in subsection (c) does not require implementing agencies' commitments
to be included in the SIP; it merely requires evidence that the TCM was properly
approved by a jurisdiction with legal authority to commit to and execute the
measure to be included in the SIP.
EPA requested that §114.270(c)(6) be revised to clarify that the MPO
is required to keep a continuous record of the TCMs and suggested adding the
phrase "on a rolling basis" to the phrase "maintain complete and accurate
records for at least five years."
The commission agrees that the clarifying language should be added to §114.270(c)(6)
to indicate that the MPO is required to keep a continuous record of the TCMs
and has added the phrase "on a rolling basis" accordingly. The commission
has also renumbered §114.270(c)(6) as §114.270(d)(2).
An individual stated that §114.270(c)(6) needs to define effectiveness.
The individual also commented that, under §114.270(c)(6)(A), TNRCC must
show the TCM is working as envisioned and emissions are being reduced. The
individual further noted that there are currently no specific emissions targets
for individual transportation projects and indicated that this needs to be
changed so that individual projects' emissions characteristics are known.
The individual also stated that each TCM should be evaluated at buildout,
capacity, or maximum operating levels.
The commission notes that §114.270(c)(6) has been renumbered as §114.270(d)(1)
and believes that §114.270(d)(2)(A) - (D) adequately defines TCM effectiveness.
The commission also notes that §114.270(d)(2)(C) requires an annual estimate
of the emission reductions achieved from implementation of the TCM and a comparison
of the actual and projected reductions. This requirement ensures examination
of the TCM to determine that it is working as envisioned and emissions are
reduced. The commission agrees that there are currently no specific emissions
targets for individual transportation projects and notes that this was one
of the reasons for the rule change. The new §114.270(c) requires project-specific
emissions estimations. The commission agrees that TCMs should be evaluated
at buildout, capacity, or maximum operation levels, if these levels are reflective
of real or expected conditions.
EPA commented that §114.270(c)(6)(D) is in conflict with §114.270(e),
the TCM substitution process, and indicated that the rule should clarify that
any modification or replacement of a SIP TCM must comply with the provisions
of §114.270(e), since the MPO does not have any unilateral authority
to make modifications to the SIP TCMs.
The commission notes that §114.270(c)(6) requires the MPOs to maintain
records of TCMs and indicates what must be included in those records. Accordingly, §114.270(c)(6)(D)
(renumbered as §114.270(d)(2)(D)), merely indicates that MPOs must keep
records of any modifications to the TCM since the last annual report and/or
projected modifications for the next reporting period to compensate for a
shortfall in the implementation of the TCM or in the associated emissions
reductions. Section 114.270(d)(2)(D) does not allow the MPO to modify TCMs,
and therefore is not in conflict with §114.270(f).
Both EPA and an individual commented that §114.270(c)(7) should require
that the MPO's record on the TCMs be available to the public as well as local,
state, and federal agencies.
The commission agrees and has revised §114.270(c)(7) accordingly,
as well as renumbered §114.270(c)(7) as §114.270(d)(3).
EPA noted that §114.270(c)(8)(B) refers to coordination with the same
or other implementing agencies and indicated that the rule must clearly identify
the agencies so that the MPO can complete its coordination. EPA also noted
that §114.270(e) requires the MPO and other specifically named agencies
to consult and determine the TCM equivalency.
The commission has deleted §114.270(c)(8)(B) because the requirements
of the TCM substitution process found in §114.270(f) define TCM substitution
procedures.
An individual commented that the term "equivalent" must be defined in §114.270(c)(8)(B)
and suggested using "equal or greater in emissions reductions" instead of
"equivalent to."
The commission has deleted §114.270(c)(8)(B) because the requirements
of the TCM substitution process found in §114.270(f) define TCM substitution
procedures.
EPA commented that if local implementing agencies referred to in §114.270(d)(1)
- (4) means City Councils or County Commissioners, then EPA questioned the
availability of technical experts at this level to address evaluation and
determine the effectiveness of the TCMs. EPA commented that the TCM evaluation
and effectiveness determination should be the responsibility of the MPOs.
Implementing agency is defined in §114.5 as an entity, transportation
provider, organization, agency, or individual responsible for the design,
procurement of funds, construction, operation, maintenance, management, monitoring,
and, in conjunction with the metropolitan planning organization, compliance
with transportation control measures. City councils or county commissioners
are not explicitly defined as implementing agencies. The commission renumbered §114.270(d)
as §114.270(e) and revised the language to clarify that implementing
agencies are responsible for providing information to the MPO. In addition,
under §114.260, the MPO is responsible for reporting TCM implementation
and emission reduction status to the commission. The MPO, therefore, is also
responsible for TCM evaluation and effectiveness determination.
EPA stated that §114.270(d)(4) is not consistent with §114.270(e)
and must be revised, since implementing agencies do not have any authority
to allow for necessary in-place corrections or alterations of TCMs.
The commission agrees with the EPA. The commission renumbered §114.270(d)(4)
as §114.270(e)(4) and deleted the phrase "and to allow for necessary
in-place corrections or alterations."
EPA stated that the first full sentence of §114.270(e) must be modified
and suggested the wording be revised to read, "if a TCM is included in the
SIP and infeasible to be implemented in the time frame specified in the applicable
SIP."
The commission renumbered §114.270(e) as §114.270(f) and in response
to the EPA suggestion, modified the first full sentence to read "if a TCM
cannot be implemented by the implementation date specified in the SIP." TCMs
are, by definition, included in the SIP.
An individual stated that TNRCC should be responsible for the interagency
consultation process referenced in §114.270(e), since TNRCC is responsible
for the SIP and its contents.
The current §114.270(f) requires the parties in the interagency consultation
process established under §114.260 to determine whether a TCM continues
to be appropriate. The commission is an active participant in the interagency
consultation process specified in §114.260, as is the EPA, the Federal
Highways Administration, the TxDOT, the MPO, the local transit agency, and
the local air quality agency. The commission believes these parties to be
the appropriate mix of transportation and air quality stakeholders for the
working group. The commission also notes that the responsibility for final
concurrence that a TCM is no longer appropriate is assigned to the commission
and the MPO. The commission agrees that it is responsible for the SIP and
its contents, but notes that MPOs are primarily responsible for ensuring timely
TCM implementation, so MPO concurrence on a TCM's appropriateness is essential.
EPA suggested that §114.270(e)(1)(C) be revised to state "full implementation
not later than two years from the scheduled. . .."
The commission agrees with the EPA. The commission renumbered §114.270(e)(1)(C)
as §114.270(f)(1)(C) and revised the language accordingly.
An individual suggested adding "monitor" before "and enforce" in §114.270(e)(1)(D)
to ensure that adequate tracking is done. The individual also indicated that
the tracking should be done by TNRCC and not the MPOs.
The commission renumbered §114.270(e)(1)(D) as §114.270(f)(1)(D)
and added "monitor" before "and enforce." The commission does not have the
resources to adequately monitor all TCMs in the state's nonattainment areas,
and therefore believes that this function is best delegated to the MPOs.
An individual commented that "consistent" should be removed from §114.270(e)(2)
and be replaced by "equal to in results or better," since discretion needs
to be reduced, not increased.
The commission disagrees. The term "consistent" indicates that the same
methodology must be used for evaluating both the original and substitute TCM,
which ensures that an accurate comparison between the two is made. The term
"equal to in results or better" is subject to interpretation and does not
ensure that accurate comparisons will be made.
In reference to §114.270(e)(2)(A), EPA stated that the commission
must define inhalable particulate matter if it has not been defined elsewhere
in state rules. EPA also stated that they prefer the term particulate matter.
The commission notes that the term "inhalable particulate matter" is the
EPA definition of PM
10
and PM fine. The commission
defines the term "particulate matter" in 30 TAC §101.1, Item 71. The
commission renumbered §114.270(e) as §114.270(f) and revised §114.270(f)(2)(A)
to state "particulate matter" at the EPA's request.
An individual commented that the working group referenced in §114.270(e)(3)
must notify the public of its meeting, be open to the public, have meetings
in public, have the public participate in its deliberations, and have a public
input session required at each meeting.
The commission disagrees. The public has ample opportunity for involvement
in the TCM substitution process during the public comment period to be conducted
by the commission. The commission notes that §114.270(f)(3) (§114.270(e)
has been renumbered as §114.270(f)) does not prohibit public participation
in the working group, it merely does not require it.
EPA requested that the commission add local air agencies to §114.270(e)(3)(A).
The commission agrees with the EPA's request. The commission renumbered §114.270(e)(3)(A)
as §114.270(f)(3)(A) and revised the language accordingly.
EPA questioned whether the Federal Highway Administration (FHWA) should
be a part of the concurring agencies on the TCM substitution process as defined
by §114.270(e)(4). EPA recommended that the TCM substitution concurrence
be limited to the MPO, state, and EPA. EPA further stated that if the commission
retains the FHWA, then the Federal Transit Administration and the TxDOT should
also be added to the list of concurring agencies, which would increase the
time needed to complete the substitution process.
The commission agrees with EPA's recommendation. The commission renumbered §114.270(e)(4)
as §114.270(f)(4) and revised the language accordingly.
An individual commented that, under §114.270(e)(4) and (7), EPA must
have the final decision and not simply concur. The individual also stated
that 14 days is not long enough for EPA to analyze any changes and give a
reasoned judgement about such changes and suggested that EPA should have 45
to 60 days.
The commission does not agree that §114.270(f)(4) and (7) (renumbered
from §114.270(e) to §114.270(f)) need to be revised to give EPA
the final decision on TCM substitutions. Because the commission is responsible
for the contents of the SIP and the TCM substitution process is a method of
altering contents of the SIP, it is appropriate for the commission to be involved
in the final decision on TCM substitutions. It is also appropriate for the
MPO to be involved in the final decision because MPOs are primarily responsible
for ensuring timely TCM implementation. The commission also notes that §114.270(f)
requires EPA involvement in the substitution process long before the 14-day
concurrence period. The EPA therefore would already be familiar with the specific
TCMs involved in the substitution process and would only have to analyze any
changes made in response to public comments. The commission believes that
14 days is an adequate time period for this purpose.
EPA commented that §114.270(e)(5) does not identify the agency that
will approve the substitute measures and is thus responsible for conducting
the public participation. EPA stated that, as written, they can not determine
whose responsibility it is to do public participation and respond to public
comments.
The commission agrees with the EPA. The commission renumbered §114.270(e)(5)
as §114.270(f)(5) and revised the language to indicate that the commission
approves the substitute measures and is responsible for conducting public
participation.
EPA commented that, in reference to §114.270(e)(7), the commission
must respond to all comments submitted. EPA stated that §114.270(e)(7)
does not identify who will address and respond to public comments and requested
clarification. EPA also requested that the text be modified to indicate that
EPA shall notify the commission within 14 days of receipt of the commissions
summary of comments and responses to comments.
The commission agrees with the EPA's comments. The commission renumbered §114.270(e)(7)
as §114.270(f)(7) and revised the language to indicate that the commission
will address and respond to all comments submitted. The commission has also
revised §114.270(f)(7) to indicate that EPA shall notify the commission
within 14 days of receipt of the commissions summary of comments and responses
to comments.
EPA and an individual objected to §114.270(e)(10) because it limits
the commissions enforcement authority and states that the commission will
seek a financial penalty against the MPO or an implementing agency only in
the case of an egregious or knowing violation of the provisions of this section.
The commission agrees and has deleted §114.270(e)(10) accordingly.
Subchapter A. DEFINITIONS