Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§114.1, 114.2, 114.50, 114.52, and 114.53; and corresponding
revisions to the Texas Inspection and Maintenance State Implementation Plan
(SIP).
The amendments and revised SIP narrative 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 Houston/Galveston (HGA) ozone nonattainment area is classified as Severe-17
under the Federal Clean Air Act Amendments of 1990 (as codified in 42 United
States Code (USC), §§7401
et seq
.),
and therefore, is required to attain the one-hour ozone standard of 0.12 parts
per million (125 parts per billion) by November 15, 2007. The HGA area is
defined as Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,
and Waller Counties, and has been working to develop a demonstration of attainment
in accordance with 42 USC, §7410. The most relevant HGA SIP revisions
to date are the December 2000 one-hour ozone standard attainment demonstration,
the September 2001 follow-up revision, and the December 2002 nitrogen oxides
(NO
x
)/highly-reactive volatile organic compound
(HRVOC) revision.
The emission reduction requirements included as part of the December 2000
SIP revision represent substantial, intensive efforts on the part of stakeholder
coalitions in the HGA area, in partnership with the commission, to address
ozone. These coalitions include local governmental entities, elected officials,
environmental groups, industry, consultants, and the public, as well as EPA
and the commission, and worked diligently to identify and quantify control
strategy measures for the HGA attainment demonstration area.
Recent photochemical modeling indicates that a combination of point source
HRVOC controls and NO
x
reductions appear to be
the most effective means of reducing ozone in the HGA area. As a result, the
commission evaluated a number of the existing control strategies that were
put in place in the December 2000 revision. The photochemical modeling shows
that some of these strategies are no longer necessary to attain the one-hour
ozone standard.
On December 6, 2000, the commission adopted both the HGA Attainment Demonstration
SIP and the associated amendments to Chapter 114 to assist with demonstrating
attainment and maintenance of the one-hour ozone standard in the HGA area.
The amendments to Chapter 114 included an air control strategy for NO
In a prior I/M rulemaking that was effective October 30, 2003, the commission
delayed the implementation of the I/M program in Chambers, Liberty, and Waller
Counties from May 1, 2004 to May 1, 2005 in order to have sufficient time
for needed additional assessment of the alternative plans.
Based on the most recent photochemical modeling for the HGA area that indicates
the I/M program, scheduled to begin in these three counties on May 1, 2005,
will have little effect on ozone concentration in the HGA area, and that attainment
of the one-hour ozone standard can be reached without this control measure,
the commission is proposing amendments to the I/M rules to remove the vehicle
emissions testing requirements from Chambers, Liberty, and Waller Counties.
SECTION BY SECTION DISCUSSION
Revisions to Subchapters A and C incorporate editorial changes to ensure
the language is consistent with the guiding principles and policies of the
commission and the language is consistent in format, style, and tone per commission
guidelines; to correct the name of the commission; and to correct citations
to other laws, codes, and rules. Revisions to specific sections are discussed
in the following paragraphs.
SUBCHAPTER A, DEFINITIONS
Section 114.1, Definitions
The proposed amendment to the opening paragraph would change the citation
to Texas Health and Safety Code, Chapter 382; state that Chapter 382 is known
as the Texas Clean Air Act; and delete "shall" in the last sentence.
The proposed amendment to the definition of "First safety inspection certificate"
would add "Texas" to correctly reference the Texas Department of Public Safety.
The proposed amendment to the definition of "Gross vehicle weight rating (GVWR)"
would delete the acronym GVWR because it is not used again in the definition.
The proposed amendment to the definitions of "Heavy-duty vehicle" and "Light-duty
vehicle" would spell out the acronyms "GVWR," "lbs.," and "MERC;" delete "the"
in front of Texas Transportation Code; and lowercase "mobile emission reduction
credit." The proposed amendment to the definition of "Inherently low emission
vehicle" would delete the acronym "CFR" because it is not used again in the
definition. The proposed amendment to the definition of "Loaded mode inspection
and maintenance (I/M) test" would delete the acronym "I/M" because it is not
used again in the definition; lowercase "acceleration simulation mode"; and
spell out the acronym "EPA" because it is not used again in the definition.
The proposed amendment to the definition of "Low emission vehicle (LEV)" would
spell out the acronym "EPA" because it is not used again in the definition,
and correct the citations to 42 USC and 40 Code of Federal Regulations, Part
88. The proposed amendment to the definition of "Mass transit authority" would
add a comma and correct the title of Chapter 453 of the Texas Transportation
Code to "Municipal Transit Departments." The proposed amendment to the definition
of "Reformulated gasoline" would correct the citation to 42 USC. The proposed
amendment to the definition of "Revised Texas I/M State Implementation Plan
(SIP)" would change the title to "Texas Inspection and Maintenance State Implementation
Plan" to correspond with the correct title of the SIP document; delete the
acronym "SIP"; spell out the acronym "EPA" because it is not used again in
the definition; and change the name of the commission to "Texas Commission
on Environmental Quality." The proposed amendment to the definition of "Tier
I federal emission standards" would correct the citation to 42 USC and spell
out the acronym "CFR." The proposed amendment to the definitions of "Ultra
low emission vehicle" and "Zero emission vehicle" would spell out the acronym
"CFR."
Section 114.2, Inspection and Maintenance Definitions
The proposed amendment to the opening paragraph would change the citation
to the Texas Health and Safety Code, Chapter 382; state that Chapter 382 is
known as the Texas Clean Air Act; correct the title of Subchapter C by adding
"and Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle
Retirement Program"; and delete the word "shall" in the last sentence.
The proposed amendment to the definition of "Acceleration simulation mode
(ASM-2 test)" would remove the word "test" from the acronym. The proposed
amendment to the definition of "Consumer Price Index" would lowercase the
term in all places because it is not a proper noun. The definition of "Program
areas" specifies the county or counties in which the Texas Department of Public
Safety, in coordination with the commission, administers the vehicle emissions
inspection and maintenance program contained in the Texas Inspection and Maintenance
State Implementation Plan.
The proposed amendment to the definition of "Program area" would delete
Chambers, Liberty, and Waller Counties from the HGA program area.
SUBCHAPTER C, VEHICLE INSPECTION AND MAINTENANCE
AND LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE
RETIREMENT PROGRAM
Section 114.50, Vehicle Emissions Inspection Requirements
The proposed amendment to §114.50 would revise program requirements
for the state I/M program for vehicle emissions testing and inspection. The
proposed amendment to the program concerns the applicability requirements
of §114.50.
The proposed amendment to subsection (a)(2)(A) would spell out the acronym
for "EPA."
Subsection (a)(4)(F) and (G) currently define model year vehicles to be
tested using on-board diagnostics (OBD) and acceleration simulation mode (ASM-2)
in Chambers, Liberty, and Waller Counties beginning May 1, 2005. Subsection
(a)(4)(H) allows Chambers, Liberty, and Waller Counties, and their respective
largest municipality to submit by May 1, 2002, individually or collectively,
resolutions to implement an alternative control strategy. The proposed amendment
to subsection (a)(4)(F) - (H) would repeal the vehicle emissions testing program
scheduled to begin in Chambers, Liberty, and Waller Counties on May 1, 2005,
by deleting §114.50(a)(4)(F) - (H).
The proposed amendment to subsection (b)(2) would correct the citation
to 42 USC, §§7401
et seq
.
The proposed amendment to subsection (b)(7) would correct the citation
to Texas Occupations Code, §2301.002.
Section 114.52, Early Participation Incentive
Program
Section 114.52 established the Early Participation Incentive Program (EPIP).
This program encouraged owners and operators of emissions inspection stations
in Chambers, Liberty, and Waller Counties, to participate in the early purchase
of ASM-2 equipment to ensure an adequate number of emissions inspection stations
are available by the program start date of May 1, 2005. The proposed amendment
would repeal the implementation of the state's EPIP program in Chambers, Liberty,
and Waller Counties, and thus, eliminate the incentive for stations in these
counties, by deleting §114.52(f). The proposed amendment would also reletter
subsection (g) to (f) and change the corresponding reference in §114.52(b)
from subsection (g) to subsection (f).
The proposed editorial amendment to subsection (b)(4) would delete the
acronym "DPS" because it is not used again in the section; add the word "the"
before the word "program" in subsection (b)(5) and (6); and change the word
"which" to "that" in relettered subsection (f).
Section 114.53, Inspection and Maintenance Fees
Section 114.53 currently establishes a fee schedule for the different counties.
This fee must be paid to the inspection station at the time of the vehicle
emissions inspection. Subsection (a)(4) explains that among other counties
in the HGA program area, beginning May 1, 2005, in Chambers, Liberty, and
Waller Counties any emissions inspection station conducting an ASM-2 or OBD
emissions test shall collect a test fee not to exceed $27. The proposed amendment
to subsection (a)(4) would remove the fee requirement in Chambers, Liberty,
and Waller Counties by deleting the clause "and beginning May 1, 2005, any
emissions inspection station in chambers, Liberty, and Waller Counties required
to conduct an emissions test in accordance with §114.50(a)(4)(E) and
(F) of this title."
The proposed editorial amendment to §114.53 would lowercase the words
"Vehicle Repair Form" in subsection (a); delete the acronym "TSI"; and add
the word "Texas" to the term "Department of Public Safety" in subsection (a)(1).
The proposed editorial amendment in subsection (a)(2) would delete the phrase
"(relating to Vehicle Emissions Inspection Requirements)" because it is unnecessary;
delete the hyphen from the term "low-income"; and delete the acronym "LIRAP"
because it in not used again in the section. The proposed editorial amendment
in subsection (a)(3) would delete the acronyms "DFW," "EDFW," "ASM- 2," and
"OBD"; add the words "of this title" after the reference to §114.50(a)(2)(A)
or (B); and spell out the acronym "DFW." Finally, the proposed editorial amendment
in subsection (a)(4) would add the word "and" after the first "of this title,
and spell out the acronyms "ASM-2" and "OBD."
SIP narrative changes
In addition to the proposed changes, the proposed revisions to the SIP
narrative change the title to "Texas Inspection and Maintenance State Implementation
Plan," and clarify the revised program elements such as commonly used terms;
applicability changes; emissions testing network type; emissions testing;
affected vehicle populations; test procedures, standards, and test equipment;
waivers and time extensions; motorist enforcement; on- road vehicle emissions
testing; and the implementation schedule.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Analyst, Strategic Planning and Grants Management Section,
determined that for the first five-year period the proposed amendments are
in effect, no significant fiscal implications are expected for the commission
or other units of state and local government as a result of administration
or enforcement of the proposed amendments. The commission determined that
the amount of pollution coming from vehicles in Chambers, Liberty, and Waller
Counties is not sufficient to warrant the implementation of an I/M vehicle
emissions testing program in these counties.
This rulemaking action would remove the requirement for Chambers, Liberty,
and Waller Counties to implement an I/M vehicle emissions testing program
that was due to begin on May 1, 2005. Currently, vehicles in these counties
are only required to pass an annual safety inspection. The I/M requirement
would have added an emissions inspection for all gasoline-powered motor vehicles
that are two to 24 years old.
The removal of the I/M program requirements in these three counties will
likely result in cost savings for units of state and local government that
operate vehicles that would have received an emissions inspection. Additionally,
units of government in the affected counties that currently conduct their
own safety inspections would have had to purchase vehicle emissions test analyzers
in order to continue testing vehicles. For those units of government that
rely on outside businesses to test their vehicles, the annual savings would
be $27 per vehicle. The cost for vehicle emissions testing analyzers range
from $8,000 for OBD-only analyzers, to $40,000 for ASM-2 test analyzers. There
are a total of approximately 84,700 vehicles in the affected counties that
would have been subject to the vehicle emissions test, a small percentage
of which are owned and operated by units of state or local government. There
are 64 identified testing stations in the three counties, all of which would
have had to purchase vehicle emissions test analyzers in order to continue
performing vehicle inspections. The commission estimates that very few of
these stations, if any, are owned and operated by units of state or local
government.
Although the proposed amendments would decrease revenues collected, the
commission does not anticipate that the loss of revenue will be significant.
The commission would have received $.50 for each vehicle emissions test conducted
in the three affected counties. Assuming 84,700 tests per year, the revenues
to the commission would have been approximately $14,000 in Fiscal Year 2005
(May - August 2005), and approximately $42,000 for Fiscal Year 2006 and each
year thereafter.
PUBLIC BENEFITS AND COSTS
Mr. Davis determined that for each year of the first five years the proposed
amendments are in effect, the anticipated public benefit from the enforcement
of and compliance with the proposed amendments would be the deletion of the
requirement for vehicles operating in the affected counties to undergo vehicle
emissions tests. The commission determined that an I/M program in these counties
would have had little effect on the overall ozone concentration in the HGA
ozone nonattainment area. Vehicles in these counties will still have to undergo
an annual safety check, which incorporates visual checks to ensure that vehicle
emissions controls are not removed or tampered with.
The removal of the I/M program requirements in these three counties will
likely result in cost savings for individuals and businesses that operate
vehicles that would have received an emissions inspection. Additionally, businesses
in the affected counties that currently conduct safety inspections would have
had to purchase vehicle emissions test analyzers in order to continue testing
vehicles. Individuals and businesses that would have had to have their vehicles
undergo an emissions test would have had to pay an additional $27 per vehicle
per year. The cost for vehicle emissions testing analyzers range from $8,000
for OBD only analyzers to $40,000 for ASM-2 test analyzers.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
The commission anticipates no adverse fiscal implications as a result of
implementation of the proposed amendments for small or micro-businesses. There
are 64 identified testing stations in the three counties, all of which would
have had to purchase vehicle emissions test analyzers in order to continue
performing vehicle inspections. The majority of these businesses are probably
small and micro-businesses. The removal of the I/M program requirements for
vehicles operating in Chambers, Liberty, and Waller Counties would result
in cost savings for small and micro-businesses as discussed in the PUBLIC
BENEFITS AND COSTS section of this preamble. These businesses would be able
to continue performing annual safety inspections without having to purchase
vehicle test analyzers that would have been required to conduct vehicle emissions
tests.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking action 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 action does not meet the definition of a "major environmental
rule" as defined in that statute. A "major environmental rule" is 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, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state.
While the I/M program taken as a whole is intended to protect the environment
and reduce risks to human health from environmental exposure, the proposed
amendments are intended to rescind the requirements for emissions testing
during annual state inspections of motor vehicles registered in Chambers,
Liberty, and Waller Counties. The most recent photochemical modeling for the
HGA area indicates that the I/M program scheduled to begin in these three
counties on May 1, 2005 will have little effect on ozone concentration in
the HGA area, and that attainment of the one-hour ozone standard can be modeled
without this control measure. Therefore, these proposed amendments to Chapter
114 are not specifically intended to protect the environment or reduce risks
to human health from environmental exposure. Additionally, rescinding the
I/M program for Chambers, Liberty, and Waller Counties will not adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, or jobs.
Texas Government Code, §2001.0225 only applies 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. This rulemaking does
not meet any of the four applicability requirements.
The amendments implement requirements of 42 USC. Under 42 USC, §7410,
states are required to adopt a SIP which provides for "implementation, maintenance,
and enforcement" of the primary national ambient air quality standard in each
air quality control region of the state. While §7410, does not require
specific programs, methods, or reductions in order to meet the standard, SIPs
must include "enforceable emission limitations and other control measures,
means or techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and timetables
for compliance as may be necessary or appropriate to meet the applicable requirements
of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control).
It is true that 42 USC does require some specific measures for SIP purposes,
such as the I/M program, but those programs are the exception, not the rule,
in the SIP structure of 42 USC. The provisions of 42 USC recognize that states
are in the best position to determine what programs and controls are necessary
or appropriate in order to meet the ozone standard. This flexibility allows
states, affected industry, and the public to collaborate on the best methods
for attaining the ozone standard for the specific regions in the state. Even
though 42 USC allows states to develop their own programs, this flexibility
does not relieve a state from developing a program that meets the requirements
of §7410. Thus, while specific measures are not generally required, the
emission reductions are required. States are not free to ignore the requirements
of §7410, and must develop programs to assure that the nonattainment
areas of the state will be brought into attainment on schedule.
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th
Legislature, 1997. The intent of SB 633 was to require agencies to conduct
an regulatory impact analysis of extraordinary rules. These are identified
in the statutory language as major environmental rules that will have a material
adverse impact and will exceed a requirement of state law, federal law, or
a delegated federal program, or are adopted solely under the general powers
of the agency. With the understanding that this requirement would seldom apply,
the commission provided a cost estimate for SB 633 that concluded "based on
an assessment of rules adopted by the agency in the past, it is not anticipated
that the bill would not have significant fiscal implications for the agency
due to its limited application." The commission also noted that the number
of rules that would require assessment under the provisions of the bill was
not large. This conclusion was based, in part, on the criteria set forth in
the bill that exempted proposed rules from the full analysis unless the rule
was a major environmental rule that exceeds a federal law. As discussed earlier
in this preamble, 42 USC does not require specific programs, methods, or reductions
in order to meet the ozone standard; thus, states must develop programs for
each nonattainment area to ensure that area will meet the attainment deadlines.
Because of the ongoing need to address nonattainment issues, the commission
routinely proposes and adopts SIP rules. The legislature is presumed to understand
this federal scheme. If each rule proposed for inclusion in the SIP was considered
to be a major environmental rule that exceeds federal law, then every SIP
rule would require the full regulatory impact analysis contemplated by SB
633. This conclusion is inconsistent with the conclusions reached by the commission
in its cost estimate and by the Legislative Budget Board in its fiscal notes.
Because the legislature is presumed to understand the fiscal impacts of the
bills it passes, and that presumption is based on information provided by
state agencies and the Legislative Budget Board, the commission believes that
the intent of SB 633 was only to require the full regulatory impact analysis
for rules that are extraordinary in nature. While the SIP rules will have
a broad impact, that impact is no greater than is necessary or appropriate
to meet the requirements of 42 USC. For these reasons, rules adopted for inclusion
in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are specifically required by federal law.
In addition, 42 USC, §7502(a)(2), requires attainment as expeditiously
as practicable, and §7511a(d), requires states to submit ozone attainment
demonstration SIPs for severe ozone nonattainment areas such as HGA area.
While the I/M program taken as a whole is intended to protect the environment
and reduce risks to human health from environmental exposure, the proposed
amendments to rescind the requirements for emissions testing during annual
state inspections of motor vehicles registered in Chambers, Liberty, and Waller
Counties will not adversely impact the I/M program for the HGA area. Therefore,
the proposed amendments are necessary components of and consistent with the
ozone attainment demonstration SIP for HGA area, required by 42 USC, §7410.
The commission has consistently applied this construction to its rules
since this statute was enacted in 1997. Since that time, the legislature has
revised the Texas Government Code but left this provision substantially unamended.
The commission presumes that "when an agency interpretation is in effect at
the time the legislature amends the laws without making substantial change
in the statute, the legislature is deemed to have accepted the agency's interpretation."
As discussed earlier in this preamble, this rulemaking implements requirements
of 42 USC. There is no contract or delegation agreement that covers the topic
that is the subject of this rulemaking action. Therefore, the proposed amendments
do not exceed a standard set by federal law, exceed an express requirement
of state law, exceed a requirement of a delegation agreement, nor are adopted
solely under the general powers of the agency. In addition, the amendments
are proposed under Texas Health and Safety Code, §§382.002, 382.011,
382.012, 382.019, 382.037, and 382.201 - 382.216. The commission invites public
comment on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact assessment for the proposed rulemaking
action under Texas Government Code, §2007.043. Texas Government Code, §2007.003(b)(4),
provides that Chapter 2007 does not apply to this proposed rulemaking action,
because it is reasonably taken to fulfill an obligation mandated by federal
law. States are primarily responsible for ensuring attainment and maintenance
of the national ambient air quality standards once the EPA has established
them. Under 42 USC, §7410, and related provisions, states must submit
for EPA approval, SIPs that provide for the attainment and maintenance of
the ozone standard through control programs directed to sources of ozone.
Therefore, one purpose of this rulemaking action is to meet the ozone standard
established under federal law. Therefore, the proposed amendments are necessary
components of and consistent with the ozone attainment demonstration SIP for
the HGA area, required by 42 USC, §7410.
In addition, Texas Government Code, §2007.003(b)(13), states that
Chapter 2007 does not apply to an action that: 1) is taken in response to
a real and substantial threat to public health and safety; 2) is designed
to significantly advance the health and safety purpose; and 3) does not impose
a greater burden than is necessary to achieve the health and safety purpose.
Although the proposed amendments do not directly prevent a nuisance or prevent
an immediate threat to life or property, they do prevent a real and substantial
threat to public health and safety and significantly advance the health and
safety purpose. This action is taken in response to the HGA area exceeding
the federal ozone standard, and that exceedance adversely affects public health,
primarily through irritation of the lungs. While the I/M program taken as
a whole is intended to protect the environment and reduce risks to human health
from environmental exposure, the proposed amendments to rescind the requirements
for emissions testing during annual state inspections of motor vehicles registered
in Chambers, Liberty, and Waller Counties will not adversely impact the I/M
program for the HGA area. The action significantly advances the health and
safety purpose by reducing ozone levels in the HGA nonattainment area. Consequently,
these proposed rules meet the exemption in §2007.003(b)(13). This rulemaking
action therefore meets the requirements of Texas Government Code, §2007.003(b)(4)
and (13). Additionally, the proposed amendments would be neither a statutory
nor a constitutional taking because they do not impact private real property.
Specifically, the proposed amendments do not affect private property in a
manner which restricts or limits an owner's right to the property that would
otherwise exist in the absence of a governmental action. For all these reasons,
the proposed amendments do not constitute a takings under Texas Government
Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that the proposed 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, concerning Consistency
with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3)
and 31 TAC §505.11(b)(2), relating to actions and rules subject to the
CMP, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission reviewed
this action for consistency with the CMP goals and policies in accordance
with the regulations of the Coastal Coordination Council and determined that
the proposed amendments are consistent with the applicable CMP goal expressed
in 31 TAC §501.12(1) of protecting and preserving the quality and values
of coastal natural resource areas, and the policy in 31 TAC §501.14(q),
which requires that the commission protect air quality in coastal areas. If
adopted, the amendments will rescind the requirements for emissions testing
during annual state inspections of motor vehicles registered in Chambers,
Liberty, and Waller Counties. While the I/M program taken as a whole is intended
to protect the environment and reduce risks to human health from environmental
exposure, the proposed amendments to rescind the requirements for emissions
testing during annual state inspections of motor vehicles registered in Chambers,
Liberty, and Waller Counties will not adversely impact the I/M program for
the HGA area. No new contaminants will be authorized by these proposed amendments.
Interested persons may submit comments on the consistency of the proposed
amendments with the CMP during the public comment period.
ANNOUNCEMENT OF HEARINGS
Public hearings for this proposed rulemaking have been scheduled for: August
2, 2004, 1:30 p.m. and 5:30 p.m., City of Houston, City Council Chambers,
2nd Floor, 901 Bagby, Houston; August 3, 2004, 10:30 a.m., John Gray Institute,
855 Florida Avenue, Beaumont; and August 5, 2004, 9:30 a.m., Texas Commission
on Environmental Quality, 12100 North I-35, Building F, Room 2210, Austin.
The hearings will be structured for the receipt of oral or written comments
by interested persons. Registration will begin 30 minutes prior to the hearings.
Individuals may present oral statements when called upon in order of registration.
A time limit may be established at the hearings 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 the hearings and will answer questions
before and after the hearings.
Persons planning to attend the hearings who have special communication
or other accommodation needs, should contact the Office of Environmental Policy,
Analysis, and Assessment at (512) 239-4900. Requests should be made as far
in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Patricia Durón, MC 205, Office
of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental
Quality, P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-4808;
or emailed to
siprules@tceq.state.tx.us
. All
comments should reference Rule Project Number 2004-035-114-AI. Comments must
be received by 5:00 p.m. on August 9, 2004. For further information, please
contact Ray Schubert, Technical Analysis Division, at (512) 239-6615 or Alan
Henderson, Policy and Regulations Division, at (512) 239-1510.
Subchapter A. DEFINITIONS
30 TAC §114.1, §114.2
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code, §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 Texas Water Code; and under Texas Health
and Safety Code, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes of Texas Health and
Safety Code, Chapter 382 (also known as the Texas Clean Air Act). The amendments
are also proposed under Texas Health and Safety Code, §382.002, concerning
Policy and Purpose, which establishes the commission purpose to safeguard
the state air resources, consistent with the protection of public health,
general welfare, and physical property; §382.011, concerning General
Powers and Duties, which authorizes the commission to control the quality
of the state's air; §382.012, concerning State Air Control Plan, which
authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air; §382.019, which authorizes the
commission to adopt rules to control and reduce emissions from engines used
to propel land vehicles; and Texas Health and Safety Code, Subchapter G, §§382.201
- 382.216, which authorizes the commission by rule to establish, implement,
and administer a program requiring emissions-related inspections of motor
vehicles to be performed at inspection facilities consistent with the requirements
of 42 USC, §§7401
et seq
.
The proposed amendments implement Texas Health and Safety Code, §§382.002,
382.011, 382.012, 382.019, and 382.201 - 382.216.
§114.1.Definitions.
Unless specifically defined in
Texas Health and Safety Code, Chapter
382, also known as
the
Texas Clean Air Act (TCAA)
[
(1) - (3)
(No change.)
(4)
First safety inspection certificate--Initial
Texas
Department of Public Safety (DPS) certificates issued through DPS certified
inspection stations for every new vehicle found to be in compliance with the
rules and regulations governing safety inspections.
(5)
Gross vehicle weight rating [
(6)
Heavy-duty vehicle--Any passenger vehicle or truck capable
of transporting people, equipment, or cargo, that has a
gross vehicle
weight rating (GVWR)
[
(A)
Light heavy-duty vehicle--Any passenger vehicle or truck
capable of transporting people, equipment, or cargo that has a GVWR greater
than 8,500
pounds
[
(B)
Medium heavy-duty vehicle--Any passenger vehicle or truck
capable of transporting people, equipment, or cargo that has a GVWR greater
than 10,000
pounds,
[
(C)
Heavy heavy-duty vehicle--Any passenger vehicle or truck
capable of transporting people, equipment, or cargo that has a GVWR greater
than 19,500
pounds
[
(7)
Inherently low emission vehicle--A vehicle as defined by
40
[
(8)
(No change.)
(9)
Light-duty vehicle--Any passenger vehicle or truck capable
of transporting people, equipment, or cargo, that has a
gross vehicle
weight rating (GVWR)
[
(A)
Light-duty vehicle--Any passenger vehicle capable of seating
12 or fewer passengers that has a GVWR less than or equal to 6,000
pounds
[
(B)
Light-duty truck 1--Any passenger truck capable of transporting
people, equipment, or cargo, that has a GVWR less than or equal to 6,000
pounds
[
(C)
Light-duty truck 2--Any passenger truck capable of transporting
people, equipment, or cargo, that has a GVWR greater than 6,000
pounds,
[
(10)
Loaded mode inspection and maintenance [
(11)
Low emission vehicle (LEV)--A vehicle in a class or category
of vehicles that has been certified by the
United States Environmental
Protection Agency
[
(A)
the LEV standards applicable under
42 United States
Code,
[
(B)
emission limits at least as stringent as the applicable
LEV standards for the Federal Clean Fuel Fleet program under
40 Code
of Federal Regulations §§88.104-94, 88.105-94, and 88.311-93,
[
(12)
Mass transit authority--A transportation or transit authority
or department established under Chapter 141, 63rd Legislature, 1973
,
as defined in [
(13)
(No change.)
(14)
Reformulated gasoline--Gasoline that has been certified
as a reformulated gasoline under the federal certification regulations adopted
in accordance with
42 United States Code, §7545(k)
[
(15)
[
(16)
Tier I federal emission standards--The standards are defined
in
42 United States Code, §7521
[
(17)
Ultra low emission vehicle--A vehicle as defined by 40
Code of Federal Regulations
[
(18)
Zero emission vehicle--A vehicle as defined by 40
Code of Federal Regulations
[
§114.2.Inspection and Maintenance [
Unless specifically defined in
Texas Health and Safety Code, Chapter
382, also known as
the
Texas Clean Air Act (TCAA),
[
(1)
Acceleration simulation mode (ASM-2 [
(A) - (B)
(No change.)
(2)
Consumer
price index
[
(3) - (8)
(No change.)
(9)
Program area--County or counties in which the Texas Department
of Public Safety, in coordination with the commission, administers the vehicle
emissions inspection and maintenance program contained in the [
(A)
the Dallas/Fort Worth [
(B)
the El Paso program area
, consisting of
[
(C)
the Houston/Galveston program area
, consisting of
[
(D)
the extended
Dallas/Fort Worth
[
(10) - (13)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 28, 2004.
TRD-200403610
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: July 11, 2004
For further information, please call: (512) 239-6087
1.
VEHICLE INSPECTION AND MAINTENANCE
30 TAC §§114.50, 114.52, 114.53
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code, §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 Texas Water Code; and under Texas Health
and Safety Code, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes of Texas Health and
Safety Code, Chapter 382 (also known as the Texas Clean Air Act). The amendments
are also proposed under Texas Health and Safety Code, §382.002, concerning
Policy and Purpose, which establishes the commission purpose to safeguard
the state air resources, consistent with the protection of public health,
general welfare, and physical property; §382.011, concerning General
Powers and Duties, which authorizes the commission to control the quality
of the state's air; §382.012, concerning State Air Control Plan, which
authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air; §382.019, which authorizes the
commission to adopt rules to control and reduce emissions from engines used
to propel land vehicles; and Texas Health and Safety Code, Subchapter G, §§382.201
- 382.216, which authorizes the commission by rule to establish, implement,
and administer a program requiring emissions-related inspections of motor
vehicles to be performed at inspection facilities consistent with the requirements
of 42 USC, §§7401
et seq
.
The proposed amendments implement Texas Health and Safety Code, §§382.002,
382.011, 382.012, 382.019, and 382.201 - 382.216.
§114.50.Vehicle Emissions Inspection Requirements.
(a)
Applicability. The requirements of this section and those
contained in the revised Texas Inspection and Maintenance (I/M) State Implementation
Plan (SIP) shall be applied to all gasoline- powered motor vehicles
two
[
(1)
(No change.)
(2)
This paragraph applies to all vehicles registered and primarily
operated in the Dallas/Fort Worth (DFW) program area.
(A)
Beginning May 1, 2002, all 1996 and newer model year vehicles
registered and primarily operated in Collin, Dallas, Denton, and Tarrant Counties
equipped with on-board diagnostic (OBD) systems shall be tested using
United States Environmental Protection Agency (EPA)-approved
[
(B) - (C)
(No change.)
(3)
(No change.)
(4)
This paragraph applies to all vehicles registered and primarily
operated in the Houston/Galveston (HGA) program area.
(A) - (E)
(No change.)
[
[
[
(5)
(No change.)
(b)
Control requirements.
(1)
(No change.)
(2)
All federal government agencies shall require a motor vehicle
operated by any federal government agency employee on any property or facility
under the jurisdiction of the agency and located in a program area to comply
with all vehicle emissions I/M requirements contained in the revised Texas
I/M SIP. Commanding officers or directors of federal facilities shall certify
annually to the executive director, or appointed designee, that all subject
vehicles have been tested and are in compliance with the
Federal Clean
Air Act
[
(3)
Any motorist in the DFW, EDFW, HGA, or El Paso program
areas who has received a notice from an emissions inspection station that
there are recall items unresolved on
his or her
[
(4) - (6)
(No change.)
(7)
A subject vehicle registered in a county without an I/M
program which meets the applicability criteria of subsection (a) of this section
and the ownership of which has changed through a retail sale as defined by
[
(8)
(No change.)
(c) - (d)
(No change.)
§114.52.Early Participation Incentive Program.
(a)
(No change.)
(b)
Eligibility. In order to be eligible to receive the incentive
described in subsection
(f)
[
(1) - (3)
(No change.)
(4)
The emissions inspection station must be a Texas Department
of Public Safety [
(5)
The ASM-2 testing equipment at the emissions inspection
station must be operational by
the
program start date in order
to be covered by this incentive program.
(6)
The ASM-2 equipment must be certified for use in the Texas
Inspection/Maintenance Program by
the
program start date in accordance
with §114.51 of this title (relating to Equipment Evaluation Procedures
for Vehicle Exhaust Gas Analyzers).
(c) - (e)
(No change.)
[
(f)
[
§114.53.Inspection and Maintenance Fees.
(a)
The following fees must be paid for an emissions inspection
of a vehicle at an inspection station. This fee shall include one free retest
should the vehicle fail the emissions inspection, provided that the motorist
has the retest performed at the same station where the vehicle originally
failed and submits, prior to the retest, a properly completed
vehicle
repair form
[
(1)
Through April 30, 2002, any emissions inspection station
required to conduct a two-speed idle [
(2)
In El Paso County beginning May 1, 2002, any emissions
inspection station required to conduct an emissions test in accordance with §114.50(a)(1)
or (5)(A), (B), or (C) of this title [
(3)
In the Dallas/Fort Worth [
(4)
In the Houston/Galveston program area beginning May 1,
2002, any emissions inspection station in Harris County required to conduct
an emissions test in accordance with §114.50(a)(4)(A) or (B) of this
title;
and
beginning May 1, 2003, any emissions inspection station
in Brazoria, Fort Bend, Galveston, and Montgomery Counties required to conduct
an emissions test in accordance with §114.50(a)(4)(C) or (D) of this
title; [
(b) - (c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on May 28, 2004.
TRD-200403611
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: July 11, 2004
For further information, please call: (512) 239-6087
2.
LAWN SERVICE EQUIPMENT OPERATING RESTRICTIONS
30 TAC §114.452, §114.459
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Commission on Environmental Quality or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Commission on Environmental Quality (commission)
proposes the repeal of §114.452 and §114.459; and corresponding
revisions to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEALS
The Houston/Galveston (HGA) ozone nonattainment area is classified as Severe-17
under the Federal Clean Air Act Amendments of 1990 (as codified in 42 United
States Code (USC), §§7401
et seq
.),
and therefore, is required to attain the one-hour ozone standard of 0.12 parts
per million (125 parts per billion) by November 15, 2007. The HGA area consists
of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,
and Waller Counties, and has been working to develop a demonstration of attainment
in accordance with 42 USC, §7410
et seq
.
The most relevant HGA SIP revisions to date are the December 2000 one-hour
ozone standard attainment demonstration, the September 2001 follow-up revision,
and the December 2002 nitrogen oxides (NO
x
)/highly-reactive
volatile organic compound (HRVOC) revision.
This process has proven to be extremely challenging due to the magnitude
of reductions needed for attainment. The emission reduction requirements included
as part of the December 2000 SIP revision represent substantial, intensive
efforts on the part of stakeholder coalitions in the HGA area, in partnership
with the commission, to address ozone. These coalitions, which include local
governmental entities, elected officials, environmental groups, industry,
consultants, and the public, as well as the United States Environmental Protection
Agency (EPA) and the commission, worked diligently to identify and quantify
control strategy measures for the HGA attainment demonstration area.
December 2000
The December 2000 SIP revision contained rules and photochemical modeling
analyses in support of the HGA ozone attainment demonstration area. The majority
of the emissions reductions identified in this revision were from a 90% reduction
in point source NO
x
. The modeling analysis also
indicated a shortfall in necessary NO
x
emission
reductions, such that an additional 91 tons per day (tpd) of NO
x
reductions were necessary for an approvable attainment demonstration.
In addition, the revision contained post-1999 rate-of-progress (ROP) plans
for the milestone years 2002 and 2005 and for the attainment year 2007, and
transportation conformity motor vehicle emissions budgets (MVEB) for NO
September 2001
The September 2001 SIP revision for the HGA ozone nonattainment area included
the following elements: 1) corrections to the ROP table/budget for the years
2002, 2005, and 2007 due to a mathematical inconsistency; 2) incorporation
of a change to the idling restriction control strategy to clarify that the
operator of a rented or leased vehicle is responsible for compliance with
the requirements in situations where the operator of a leased or rented vehicle
is not employed by the owner of the vehicle (The commission committed to making
this change when the rule was adopted in December 2000.); 3) incorporation
of revisions to the clean diesel fuel rules to provide greater flexibility
for compliance with the requirements of the rule while preserving the emission
reductions necessary to demonstrate attainment in the HGA area; 4) incorporation
of a stationary diesel engine rule that was developed as a result of the state's
analysis of EPA's reasonably available control measures; 5) incorporation
of revisions to the point source NO
x
rules; 6)
incorporation of revisions to the emissions cap and trade rules; 7) the removal
of the construction equipment operating restriction and the accelerated purchase
requirement for Tier 2/3 heavy-duty equipment; 8) the replacement of these
rules with the Texas Emission Reduction Plan (TERP) program; 9) the layout
of the midcourse review process that details how the state will fulfill the
commitment to obtain the additional emission reductions necessary to demonstrate
attainment of the one-hour ozone standard in the HGA area; and 10) replacement
of 2007 ROP MVEBs to be consistent with the attainment MVEBs.
As was discussed in the December 2000 revision, the modeling resulted in
a 141 parts per billion peak ozone level which correlated to a shortfall calculation
of 91 tpd NO
x
equivalent. An additional five
tpd was added to the shortfall, because the state could not take credit for
the NO
x
reductions associated with the diesel
pull-ahead strategy. The excess emissions from this strategy were not included
in the original emissions inventory. The gap control measures adopted in December
2000, along with the stationary diesel engine rules included in the September
2001 revision, resulted in NO
x
reductions of
40 tpd, which left a total remaining shortfall of 56 tpd. The state committed
to address this shortfall through the midcourse review process.
December 2002
In January 2001, the Business Coalition for Clean Air - Appeal Group (BCCA-AG)
and several regulated companies challenged the December 2000 HGA SIP and some
of the associated rules. Specifically, the BCCA-AG challenged the 90% NO
In compliance with the consent order, the commission conducted a scientific
evaluation based in large part on aircraft data collected by the Texas 2000
Air Quality Study (TexAQS). The TexAQS, a comprehensive research project conducted
in August and September 2000 involving more than 40 research organizations
and over 200 scientists, studied ground-level ozone air pollution in the HGA
area and East Texas regions. The study revealed that while industrial source
NO
x
emissions were generally correctly accounted
for, industrial source VOC emissions were likely significantly understated
in earlier emissions inventories. The study also showed that surface monitors
were insufficient to capture the phenomenon of ozone plumes downwind of industrial
facilities. On four separate days, aircraft instruments recorded ozone levels
exceeding 125 parts per billion that were missed by surface monitoring equipment.
The findings from the study are constantly evolving and have raised questions
about the formation of high ozone levels in the HGA area.
To address these findings and to fulfill obligations in the consent order,
the commission adopted a SIP revision in December 2002 that focused on replacing
the most stringent 10% industrial NO
x
reductions
with VOC controls. In light of the TexAQS study, the commission conducted
further modeling analysis of ambient VOC data. The results of photochemical
grid modeling and analysis indicated that the same level of air quality benefits
achieved with a 90% industrial NO
x
emissions
reduction could be achieved with an overall 80% industrial NO
x
emissions reduction when combined with an industrial VOC emissions
reduction. This conclusion was based on results from several studies, including
photochemical grid modeling of the August - September 2000 episode using a
top-down emissions inventory adjustment to point source HRVOC emissions, and
analyses of ambient HRVOC measurements made by commission automated gas chromatographs
and airborne canisters using the maximum incremental reactivity and hydroxyl
reactivity scales. Four HRVOCs (ethylene, propylene, 1,3-butadiene, and butenes)
clearly play important roles in the HGA ozone formation area, and these four
seemed to be the best candidates for the first round of HRVOC controls.
In order to address these scientific findings, the commission adopted revisions
to the industrial source control requirements, one of the control strategies
within the existing federally approved SIP. The December 2002 revision contains
new rules to reduce HRVOC emissions from four key industrial sources: fugitives,
flares, process vents, and cooling towers. The adopted rules target HRVOCs
while maintaining the integrity of the SIP. Analysis showed that limiting
emissions of ethylene, propylene, 1,3-butadiene, and butenes in conjunction
with an 80% reduction in NO
x
is equivalent in
terms of air quality benefit to that resulting from a 90% point source NO
The technical support documentation accompanying the revision contains
the supporting analysis for early results from ongoing analysis examining
whether reductions in HRVOC emissions could replace the last 10% of industrial
NO
x
controls with a reduction of approximately
64% in industrial HRVOC emissions, while ensuring that the air quality specified
in the approved December 2000 HGA SIP is met.
Current SIP Revision
As mentioned previously, the commission committed to perform a midcourse
review to ensure attainment of the one-hour ozone standard. The midcourse
review process provides the ability to update emissions inventory data, utilize
current modeling tools, such as MOBILE6, and enhance the photochemical grid
modeling. The data gathered from the TexAQS continues to improve photochemical
modeling of the HGA area. The collection of these technical improvements give
a more comprehensive understanding of the ozone challenge in the HGA area
that is necessary to develop an attainment plan. In the early part of 2003,
the commission was preparing to move forward with the midcourse review; however,
during the same time period EPA announced its plans to begin implementation
of the eight-hour ozone standard. The EPA published proposed rules for implementation
of the eight-hour ozone standard in the June 2, 2003 issue of the
Federal Register
(68 FR 32802). In the same time frame, EPA also formalized
its intentions to designate areas for the eight-hour ozone standard by April
15, 2004, meaning states would need to reassess their efforts and control
strategies to address this new standard by 2007. Recognizing that existing
one-hour nonattainment areas would soon be subject to the eight-hour ozone
standard, and in an effort to efficiently manage the state's limited resources,
the commission decided to develop an approach that addresses the outstanding
obligations under the one-hour ozone standard while beginning to analyze eight-hour
ozone issues.
The commission's one-hour ozone SIP commitments include: 1) completing
a one-hour ozone midcourse review; 2) performing modeling; 3) adopting measures
sufficient to fill the NO
x
shortfall; 4) adopting
measures sufficient to demonstrate attainment; and 5) revising the MVEB using
MOBILE6.
Results from the TexAQS and recent photochemical modeling indicate that
additional HRVOC reductions will be the most beneficial measure in reducing
ozone in the HGA area. The commission is proposing to reduce HRVOC emissions
to reach attainment of the one-hour ozone standard. The photochemical modeling
of the August - September 2000 episode coupled with a weight-of-evidence argument
demonstrates attainment of the one-hour ozone standard. To achieve the necessary
HRVOC reductions, the commission is proposing a two-pronged approach that
would address short-term emission events through a not-to-exceed limit, and
would address steady state and routine emissions through an annual cap. The
annual HRVOC cap would be reduced from the existing HRVOC cap in order to
support the attainment demonstration modeling.
The HGA SIP no longer relies as heavily on NO
x
based
strategies. A combination of point source HRVOC controls and NO
x
reductions appear to be the most effective means of reducing ozone
in the HGA area, and there is no longer a NO
x
shortfall
in the HGA SIP. The commission also evaluated a number of the existing control
strategies that were put in place in the December 2000 revision. The photochemical
modeling shows that some of these strategies are no longer necessary to attain
the one-hour ozone standard. This SIP revision is proposing the repeal of
the commercial lawn and garden equipment operating restrictions, the repeal
of the heavy-duty vehicle idling restrictions, and the removal of the motor
vehicle inspection and maintenance (I/M) program requirements from Chambers,
Liberty, and Waller Counties. In addition, this SIP proposal includes revisions
to the environmental speed limit strategy. In September 2002, the commission
revised the existing speed limit strategy to suspend the 55 mile per hour
(mph) speed limit until May 1, 2005, and, where posted speeds were 65 mph
or higher before May 1, 2002, to increase speeds to five mph below what was
posted. The 78th Legislature, 2003, removed the commission's authority to
determine speed limits for environmental purposes; therefore, this proposal
would remove the reinstatement of the 55 mph speed limit on May 1, 2005, and
would maintain the currently posted speed limits at five mph below the posted
limit before May 1, 2002. Also, as part of this SIP revision, the commission
is proposing new statewide portable fuel container rules. Historically, the
commission has expressed a preference to implement technology-based strategies
over behavior-altering strategies, and these proposed changes embody that
philosophy.
Through this revision, the commission is fulfilling its outstanding one-hour
ozone SIP obligations and beginning to plan for the upcoming eight-hour ozone
standard. This proposal demonstrates attainment of the one-hour ozone standard
in HGA in 2007 and provides a preliminary analysis of the HGA area in terms
of the eight-hour ozone standard in 2007 and 2010. EPA's proposed eight-hour
implementation rules provide flexibility to the states in transitioning from
the one-hour to the eight-hour ozone standard, and the commission believes
the steps taken in this proposal and the technical work performed to date
will be invaluable through the transition period. Upon EPA's finalization
of the eight-hour implementation and the transportation conformity rules,
the commission expects to begin developing eight-hour ozone SIPs.
Sections 114.452 and 114.459 were originally adopted on December 6, 2000,
as part of the SIP control strategy for the HGA ozone nonattainment area to
achieve attainment with the national ambient air quality standard (NAAQS)
for ozone. The purpose of the rules was to establish a restriction on the
use of commercial lawn and garden equipment (non-road, spark-ignition equipment
rated at 25 horsepower (hp) and less) as an air pollution control strategy
to delay the emissions of nitrogen oxides (NO
x
),
a key ozone precursor, until later in the day, thus limiting ozone formation.
By delaying the hours of operation during the effective time period, the NO
Historically, the commission expressed a preference to implement technology-based
strategies over behavior-altering strategies such as the lawn and garden equipment
operating restrictions. The commission delayed the implementation of these
rules until 2005 in order to research other methods of achieving the same
amount of NO
x
and VOC reductions. The commission
reevaluated a number of the existing control strategies, including lawn and
garden equipment operating restrictions, that were put in place in the December
2000 revision. Results from the Texas 2000 AQS and recent photochemical modeling
indicate that additional HRVOC reductions will be the most beneficial measure
in reducing ozone in the HGA area and that this strategy is no longer necessary
to attain the one-hour ozone standard. Therefore, the commission is proposing
the repeal of Chapter 114, Subchapter I, Division 6.
SECTION BY SECTION DISCUSSION
Sections 114.452 and 114.459 are proposed to be repealed because the commission
determined that this strategy is no longer necessary to attain the one-hour
ozone standard.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Analyst, Strategic Planning and Appropriations Section, determined
that for the first five-year period the proposed repeals are in effect, no
fiscal implications are expected for the agency or other units of state and
local government as a result of administration or enforcement of the proposed
repeals.
This proposed rulemaking would repeal the commission rules in Subchapter
I, Non-Road Engines; Division 6, Lawn Service Equipment Operating Restrictions,
and make corresponding changes to the SIP. The lawn service equipment operating
restriction rules were intended to establish a restriction on the use of commercial
lawn and garden equipment as an air pollution control strategy. However, implementation
of the rules was delayed until 2005 in order to research alternative pollution
reduction methods. Implementation of the proposed repeals is not expected
to result in any fiscal implications for units of state and local government
because the original rules were never implemented.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed repeals are in effect, the public benefit anticipated from the enforcement
of and compliance with the proposed repeals would be the elimination of a
pollution control strategy that the agency determined is no longer necessary
to attain the one-hour ozone standard.
The proposed repeals are not expected to result in any fiscal implications
for individuals or businesses because the original rules were never implemented.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated as a result of implementation
of the proposed repeals for small or micro-businesses. The proposed repeals
are not expected to result in any fiscal implications for small or micro-businesses
because the original rules were never implemented.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed repeals
do not adversely affect a local economy in a material way for the first five
years that the proposed repeals 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 rulemaking action does not meet the definition of
a "major environmental rule" as defined in that statute. A "major environmental
rule" is 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, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state.
The proposed amendments to Chapter 114 and revisions to the SIP would repeal
operating restrictions on commercial lawn and garden equipment operators.
The amendments are not expected to adversely affect in a material way the
economy, productivity, competition, jobs, the environment, or the public health
and safety of the state or a sector of the state.
The proposed amendments do not meet any of the four applicability criteria
of a "major environmental rule" as defined in the Texas Government Code. Section
2001.0225 applies only 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.
The amendments implement requirements of 42 USC. Under 42 USC, §7410,
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code were amended by Senate Bill 633 during the 75th
legislative session. The intent of Senate Bill 633 was to require agencies
to conduct an regulatory impact analysis (RIA) of extraordinary rules. These
are identified in the statutory language as major environmental rules that
will have a material adverse impact and will exceed a requirement of state
law, federal law, or a delegated federal program, or are adopted solely under
the general powers of the agency. With the understanding that this requirement
would seldom apply, the commission provided a cost estimate for Senate Bill
633 that concluded "based on an assessment of rules adopted by the agency
in the past, it is not anticipated that the bill will have significant fiscal
implications for the agency due to its limited application." The commission
also noted that the number of rules that would require assessment under the
provisions of the bill was not large. This conclusion was based, in part,
on the criteria set forth in the bill that exempted proposed rules from the
full analysis unless the rule was a major environmental rule that exceeds
a federal law. As discussed earlier in this preamble, 42 USC does not require
specific programs, methods, or reductions in order to meet the NAAQS; thus,
states must develop programs for each nonattainment area to ensure that the
area will meet the attainment deadlines. Because of the ongoing need to address
nonattainment issues, the commission routinely proposes and adopts SIP rules.
The legislature is presumed to understand this federal scheme. If each rule
proposed for inclusion in the SIP was considered to be a major environmental
rule that exceeds federal law, then every SIP rule would require the full
RIA contemplated by Senate Bill 633. This conclusion is inconsistent with
the conclusions reached by the commission in its cost estimate and by the
Legislative Budget Board (LBB) in its fiscal notes. Because the legislature
is presumed to understand the fiscal impacts of the bills it passes, and that
presumption is based on information provided by state agencies and the LBB,
the commission believes that the intent of Senate Bill 633 was only to require
the full RIA for rules that are extraordinary in nature. While the SIP rules
will have a broad impact, that impact is no greater than is necessary or appropriate
to meet the requirements of 42 USC. For these reasons, rules adopted for inclusion
in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are specifically required by federal law.
In addition, 42 USC, §7502(a)(2), requires attainment as expeditiously
as practicable, and §7511(a)(d), requires states to submit ozone attainment
demonstration SIPs for severe ozone nonattainment areas such as HGA area.
The proposed repeal will remove operating restrictions on commercial lawn
and garden equipment operators in the Houston nonattainment area. Historically,
the commission expressed a preference to implement technology-based strategies
over behavior-altering strategies and the proposed repeal embodies that philosophy.
The commission also evaluated a number of the existing control strategies,
including lawn and garden equipment operating restrictions, that were put
in place in the December 2000 revision. The photochemical modeling shows that
this strategy is no longer necessary to attain the one-hour ozone standard
and therefore, the commission is proposing repeal the of Chapter 114, Control
of Air Pollution from Motor Vehicles, Subchapter I, Non-road Engines, Division
6, Lawn Service Equipment Operating Restrictions Lawn Service Equipment. Therefore,
the proposed repeal is consistent with the ozone attainment demonstration
SIP for HGA area, required by 42 USC, §7410,
et seq
.
The commission consistently applied this construction to its rules since
this statute was enacted in 1997. Since that time, the legislature revised
the Texas Government Code but left this provision substantially unamended.
It is presumed that "when an agency interpretation is in effect at the time
the legislature amends the laws without making substantial change in the statute,
the legislature is deemed to have accepted the agency's interpretation."
As discussed earlier in this preamble, this rulemaking implements requirements
of 42 USC. There is no contract or delegation agreement that covers the topic
that is the subject of this rulemaking. Therefore, the proposed rules do not
exceed a standard set by federal law, exceed an express requirement of state
law, exceed a requirement of a delegation agreement, nor are adopted solely
under the general powers of the agency. In addition, the rules are proposed
under Texas Health and Safety Code (also known as the Texas Clean Air Act), §§382.011,
382.012, 382.017, 382.019, and 382.208. The commission invites public comment
on the draft RIA.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed rulemaking
action under Texas Government Code, §2007.043. The specific purposes
of these amendments are to repeal operating restrictions on commercial lawn
and garden equipment operators.
Texas Government Code, §2007.003(b)(4), provides that Chapter 2007
does not apply to this proposed rulemaking action, because it is reasonably
taken to fulfill an obligation mandated by federal law. States are primarily
responsible for ensuring attainment and maintenance of NAAQS once the EPA
has established them. Under 42 USC, §7410,
et seq
., and related provisions, states must submit, for approval by
the EPA, SIPs that provide for the attainment and maintenance of NAAQS through
control programs directed to sources of the pollutants involved. The commercial
lawn and garden operating restriction was submitted in the HGA December 2000
SIP revision as a control strategy to reduce Nox in order to meet the ozone
NAAQS set by the EPA under 42 USC, §7409. The commission expressed a
preference for technology-based strategies over behavior-altering strategies.
The commission proposes the repeal of commercial lawn and garden operating
restrictions because photochemical modeling shows that this strategy is no
longer necessary to attain the one-hour ozone standard and combination of
point source HRVOC controls and NO
x
reductions
appear to be the most effective means of reducing ozone in the HGA area. Therefore,
the overall goal of this rulemaking action is to meet the air quality standards
established under federal law as NAAQS.
In addition, Texas Government Code, §2007.003(b)(13), states that
Chapter 2007 does not apply to an action that: 1) is taken in response to
a real and substantial threat to public health and safety; 2) is designed
to significantly advance the health and safety purpose; and 3) does not impose
a greater burden than is necessary to achieve the health and safety purpose.
Although the rule amendments do not directly prevent a nuisance or prevent
an immediate threat to life or property, they do prevent a real and substantial
threat to public health and safety and significantly advance the health and
safety purpose. This action is taken in response to the HGA area exceeding
the federal ozone NAAQS, which adversely affects public health, primarily
through irritation of the lungs. The commercial lawn and garden operating
restriction was submitted as a control strategy in the HGA December 2000 revision.
Historically, the commission expressed a preference to implement technology-based
strategies over behavior-altering strategies such as the lawn/garden operating
restrictions and the proposed repeal embodies that philosophy. The commission
reexamined this strategy and photochemical modeling shows that this strategy
is no longer necessary to attain the one-hour ozone standard and therefore,
the commission is proposing the repeal of Chapter 114, Control of Air Pollution
from Motor Vehicles, Subchapter I, Non-road Engines, Division 6, Lawn Service
Equipment Operating Restrictions Lawn Service Equipment. The action does not
specifically advance the health and safety purpose by reducing ozone levels
in the HGA nonattainment area. However, the repeal of this control strategy
is part of a larger scheme to reduce ozone in the HGA area through the most
effective means and strategies determined by the commission. Consequently,
these proposed rules meet the exemption in §2007.003(b)(13). This rulemaking
action therefore meets the requirements of Texas Government Code, §2007.003(b)(4)
and (13). For these reasons, the proposed rules do not constitute a takings
under 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 Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and
therefore will require that applicable goals and policies of the Texas Coastal
Management Program (CMP) be considered during the rulemaking process.
The commission prepared a consistency determination for the proposed rules
under 31 TAC §505.22 and found that 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)). The CMP policy applicable to this rulemaking
action is the policy that commission rules comply with regulations in 40 Code
of Federal Regulations, to protect and enhance air quality in the coastal
area (31 TAC §501.14(q)). This rulemaking action complies with 40 Code
of Federal Regulations. Therefore, in compliance with 31 TAC §505.22(e),
this rulemaking action is consistent with CMP goals and policies. Interested
persons may submit comments on the consistency of the proposed rules with
the CMP during the public comment period.
ANNOUNCEMENT OF HEARINGS
Public hearings for this proposed rulemaking have been scheduled for the
following times: August 2, 2004, 1:30 p.m. and 5:30 p.m., City of Houston,
City Council Chambers, 2nd Floor, 901 Bagby, Houston; and August 3, 2004,
10:30 a.m., John Gray Institute, 855 Florida Avenue, Beaumont; and August
5, 2004, 9:30 a.m., Texas Commission on Environmental Quality, 12100 North
I-35, Building F, Room 2210, Austin. The hearings will be structured for the
receipt of oral or written comments by interested persons. Registration will
begin 30 minutes prior to each hearing. Individuals may present oral statements
when called upon in order of registration. A time limit may be established
at the hearings to assure that enough time is allowed for every interested
person to speak. There will be no open discussion during the hearings; however,
commission staff members will be available to discuss the proposal 30 minutes
before each hearing and will answer questions before and after each hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend a hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Patricia Durón, MC 205, Office
of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental
Quality, P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-4808;
or emailed to
siprules@tceq.state.tx.us.
Comments
must be received by 5:00 p.m., August 9, 2004, and should reference Rule Project
Number 2004-034-114-AI. For further information, please contact Kelly Keel
of the Environmental Planning and Implementation Division at (512) 239-3607
or Debra Barber, Policy and Regulations Division at (512) 239-0412.
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.102, which
provides the commission with the general powers to carry out its duties under
TWC; §5.103, which authorizes the commission to adopt any rules necessary
to carry out the powers and the duties under the provisions of TWC and other
laws of this state; and §5.105, which authorizes the commission by rule
to establish and approve all general policy of the commission. These repeals
are also proposed under Texas Health and Safety Code, Texas Clean Air Act
(TCAA), §382.017, which authorizes the commission to adopt rules consistent
with the policy and purposes of TCAA; §382.011, which authorizes the
commission to establish the level of quality to be maintained in the state's
air and to control the quality of the state's air; §382.012, which authorizes
the commission to prepare and develop a general, comprehensive plan for the
control of the state's air; and §382.019, which provides the commission
the authority to adopt rules to control and reduce emissions from engines
used to propel land vehicles.
The proposed repeals implement Texas Health and Safety Code, §§382.017,
382.011, 382.012, and 382.019.
§114.452.Control Requirements.
§114.459.Affected Counties and Compliance Dates.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 28, 2004.
TRD-200403612
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: July 11, 2004
For further information, please call: (512) 239-5017
1.
MOTOR VEHICLE IDLING LIMITATIONS
30 TAC §114.500, 114.502, 114.507, 114.509
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Commission on Environmental Quality or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Commission on Environmental Quality (commission)
proposes the repeal of §§114.500, 114.502, 114.507, and 114.509;
and corresponding revisions to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEALS
The Houston/Galveston (HGA) ozone nonattainment area is classified as Severe-17
under the Federal Clean Air Act Amendments of 1990 (as codified in 42 United
States Code (USC), §§7401
et seq
.),
and therefore, is required to attain the one-hour ozone standard of 0.12 parts
per million (125 parts per billion) by November 15, 2007. The HGA area consists
of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,
and Waller Counties, and has been working to develop a demonstration of attainment
in accordance with 42 USC, §7410,
et seq
.
The most relevant HGA SIP revisions to date are the December 2000 one-hour
ozone standard attainment demonstration, the September 2001 follow-up revision,
and the December 2002 nitrogen oxides (NO
x
)/highly-reactive
volatile organic compound (HRVOC) revision.
This process has proven to be extremely challenging due to the magnitude
of reductions needed for attainment. The emission reduction requirements included
as part of the December 2000 SIP revision represent substantial, intensive
efforts on the part of stakeholder coalitions in the HGA area, in partnership
with the commission, to address ozone. These coalitions, which include local
governmental entities, elected officials, environmental groups, industry,
consultants, and the public, as well as the United States Environmental Protection
Agency (EPA) and the commission, worked diligently to identify and quantify
control strategy measures for the HGA attainment demonstration area.
December 2000
The December 2000 SIP revision contained rules and photochemical modeling
analyses in support of the HGA ozone attainment demonstration area. The majority
of the emissions reductions identified in this revision were from a 90% reduction
in point source NO
x
. The modeling analysis also
indicated a shortfall in necessary NO
x
emission
reductions, such that an additional 91 tons per day (tpd) of NO
x
reductions were necessary for an approvable attainment demonstration.
In addition, the revision contained post-1999 rate-of-progress (ROP) plans
for the milestone years 2002 and 2005 and for the attainment year 2007, and
transportation conformity motor vehicle emissions budgets (MVEB) for NO
September 2001
The September 2001 SIP revision for the HGA ozone nonattainment area included
the following elements: 1) corrections to the ROP table/budget for the years
2002, 2005, and 2007 due to a mathematical inconsistency; 2) incorporation
of a change to the idling restriction control strategy to clarify that the
operator of a rented or leased vehicle is responsible for compliance with
the requirements in situations where the operator of a leased or rented vehicle
is not employed by the owner of the vehicle (The commission committed to making
this change when the rule was adopted in December 2000.); 3) incorporation
of revisions to the clean diesel fuel rules to provide greater flexibility
for compliance with the requirements of the rule while preserving the emission
reductions necessary to demonstrate attainment in the HGA area; 4) incorporation
of a stationary diesel engine rule that was developed as a result of the state's
analysis of EPA's reasonably available control measures; 5) incorporation
of revisions to the point source NO
x
rules; 6)
incorporation of revisions to the emissions cap and trade rules; 7) the removal
of the construction equipment operating restriction and the accelerated purchase
requirement for Tier 2/3 heavy-duty equipment; 8) the replacement of these
rules with the Texas Emission Reduction Plan (TERP) program; 9) the layout
of the midcourse review process that details how the state will fulfill the
commitment to obtain the additional emission reductions necessary to demonstrate
attainment of the one-hour ozone standard in the HGA area; and 10) replacement
of 2007 ROP MVEBs to be consistent with the attainment MVEBs.
As was discussed in the December 2000 revision, the modeling resulted in
a 141 parts per billion peak ozone level which correlated to a shortfall calculation
of 91 tpd NO
x
equivalent. An additional five
tpd was added to the shortfall, because the state could not take credit for
the NO
x
reductions associated with the diesel
pull-ahead strategy. The excess emissions from this strategy were not included
in the original emissions inventory. The gap control measures adopted in December
2000, along with the stationary diesel engine rules included in the September
2001 revision, resulted in NO
x
reductions of
40 tpd, which left a total remaining shortfall of 56 tpd. The state committed
to address this shortfall through the midcourse review process.
December 2002
In January 2001, the Business Coalition for Clean Air - Appeal Group (BCCA-AG)
and several regulated companies challenged the December 2000 HGA SIP and some
of the associated rules. Specifically, the BCCA-AG challenged the 90% NO
In compliance with the consent order, the commission conducted a scientific
evaluation based in large part on aircraft data collected by the Texas 2000
Air Quality Study (TexAQS). The TexAQS, a comprehensive research project conducted
in August and September 2000 involving more than 40 research organizations
and over 200 scientists, studied ground-level ozone air pollution in the HGA
area and East Texas regions. The study revealed that while industrial source
NO
x
emissions were generally correctly accounted
for, industrial source VOC emissions were likely significantly understated
in earlier emissions inventories. The study also showed that surface monitors
were insufficient to capture the phenomenon of ozone plumes downwind of industrial
facilities. On four separate days, aircraft instruments recorded ozone levels
exceeding 125 parts per billion that were missed by surface monitoring equipment.
The findings from the study are constantly evolving and have raised questions
about the formation of high ozone levels in the HGA area.
To address these findings and to fulfill obligations in the consent order,
the commission adopted a SIP revision in December 2002 that focused on replacing
the most stringent 10% industrial NO
x
reductions
with VOC controls. In light of the TexAQS study, the commission conducted
further modeling analysis of ambient VOC data. The results of photochemical
grid modeling and analysis indicated that the same level of air quality benefits
achieved with a 90% industrial NO
x
emissions
reduction could be achieved with an overall 80% industrial NO
x
emissions reduction when combined with an industrial VOC emissions
reduction. This conclusion was based on results from several studies, including
photochemical grid modeling of the August - September 2000 episode using a
top-down emissions inventory adjustment to point source HRVOC emissions, and
analyses of ambient HRVOC measurements made by commission automated gas chromatographs
and airborne canisters using the maximum incremental reactivity and hydroxyl
reactivity scales. Four HRVOCs (ethylene, propylene, 1,3-butadiene, and butenes)
clearly play important roles in the HGA ozone formation area, and these four
seemed to be the best candidates for the first round of HRVOC controls.
In order to address these scientific findings, the commission adopted revisions
to the industrial source control requirements, one of the control strategies
within the existing federally approved SIP. The December 2002 revision contains
new rules to reduce HRVOC emissions from four key industrial sources: fugitives,
flares, process vents, and cooling towers. The adopted rules target HRVOCs
while maintaining the integrity of the SIP. Analysis showed that limiting
emissions of ethylene, propylene, 1,3-butadiene, and butenes in conjunction
with an 80% reduction in NO
x
is equivalent in
terms of air quality benefit to that resulting from a 90% point source NO
The technical support documentation accompanying the revision contains
the supporting analysis for early results from ongoing analysis examining
whether reductions in HRVOC emissions could replace the last 10% of industrial
NO
x
controls with a reduction of approximately
64% in industrial HRVOC emissions, while ensuring that the air quality specified
in the approved December 2000 HGA SIP is met.
Current SIP Revision
As mentioned previously, the commission committed to perform a midcourse
review to ensure attainment of the one-hour ozone standard. The midcourse
review process provides the ability to update emissions inventory data, utilize
current modeling tools, such as MOBILE6, and enhance the photochemical grid
modeling. The data gathered from the TexAQS continues to improve photochemical
modeling of the HGA area. The collection of these technical improvements give
a more comprehensive understanding of the ozone challenge in the HGA area
that is necessary to develop an attainment plan. In the early part of 2003,
the commission was preparing to move forward with the midcourse review; however,
during the same time period EPA announced its plans to begin implementation
of the eight-hour ozone standard. The EPA published proposed rules for implementation
of the eight-hour ozone standard in the June 2, 2003 issue of the
Federal Register
(68 FR 32802). In the same time frame, EPA also formalized
its intentions to designate areas for the eight-hour ozone standard by April
15, 2004, meaning states would need to reassess their efforts and control
strategies to address this new standard by 2007. Recognizing that existing
one-hour nonattainment areas would soon be subject to the eight-hour ozone
standard, and in an effort to efficiently manage the state's limited resources,
the commission decided to develop an approach that addresses the outstanding
obligations under the one-hour ozone standard while beginning to analyze eight-hour
ozone issues.
The commission's one-hour ozone SIP commitments include: 1) completing
a one-hour ozone midcourse review; 2) performing modeling; 3) adopting measures
sufficient to fill the NO
x
shortfall; 4) adopting
measures sufficient to demonstrate attainment; and 5) revising the MVEB using
MOBILE6.
Results from the TexAQS and recent photochemical modeling indicate that
additional HRVOC reductions will be the most beneficial measure in reducing
ozone in the HGA area. The commission is proposing to reduce HRVOC emissions
to reach attainment of the one-hour ozone standard. The photochemical modeling
of the August - September 2000 episode coupled with a weight-of-evidence argument
demonstrates attainment of the one-hour ozone standard. To achieve the necessary
HRVOC reductions, the commission is proposing a two-pronged approach that
would address short-term emission events through a not-to-exceed limit, and
would address steady state and routine emissions through an annual cap. The
annual HRVOC cap would be reduced from the existing HRVOC cap in order to
support the attainment demonstration modeling.
The HGA SIP no longer relies as heavily on NO
x
based
strategies. A combination of point source HRVOC controls and NO
x
reductions appear to be the most effective means of reducing ozone
in the HGA area and there is no longer a NO
x
shortfall
in the HGA SIP. The commission also evaluated a number of the existing control
strategies that were put in place in the December 2000 revision. The photochemical
modeling shows that some of these strategies are no longer necessary to attain
the one-hour ozone standard. This SIP revision is proposing the repeal of
the commercial lawn and garden equipment restrictions, the repeal of the heavy-duty
vehicle idling restrictions, and the removal of the motor vehicle inspection
and maintenance (I/M) program requirements from Chambers, Liberty, and Waller
Counties. In addition, this SIP proposal includes revisions to the environmental
speed limit strategy. In September 2002, the commission revised the existing
speed limit strategy to suspend the 55 mile per hour (mph) speed limit until
May 1, 2005, and, where posted speeds were 65 mph or higher before May 1,
2002, to increase speeds to five mph below what was posted. The 78th Legislature,
2003, removed the commission's authority to determine speed limits for environmental
purposes; therefore, this proposal would remove the reinstatement of the 55
mph speed limit on May 1, 2005, and would maintain the currently posted speed
limits at five mph below the posted limit before May 1, 2002. Also, as part
of this SIP revision, the commission is proposing new statewide portable fuel
container rules. Historically, the commission has expressed a preference to
implement technology-based strategies over behavior-altering strategies, and
these proposed changes embody that philosophy.
Through this revision, the commission is fulfilling its outstanding one-hour
ozone SIP obligations and beginning to plan for the upcoming eight-hour ozone
standard. This proposal demonstrates attainment of the one-hour ozone standard
in HGA area in 2007 and provides a preliminary analysis of the HGA area in
terms of the eight-hour ozone standard in 2007 and 2010. EPA's proposed eight-hour
implementation rules provide flexibility to the states in transitioning from
the one-hour to the eight-hour ozone standard, and the commission believes
the steps taken in this proposal and the technical work performed to date
will be invaluable through the transition period. Upon EPA's finalization
of the eight-hour implementation and the transportation conformity rules,
the commission expects to begin developing eight-hour ozone SIPs.
The commission originally adopted rules in §§114.500, 114.502,
114.507, and 114.509 on December 6, 2000 as a control strategy to reduce NO
The idling restriction rules were expected to lower NO
x
emissions from both gasoline-powered and diesel-powered motor vehicles
in the affected areas. Because NO
x
emissions
are precursors to ground-level ozone formation, reduced emissions of NO
The commission has reevaluated a number of the existing control strategies,
including motor vehicle idling restrictions, that were put in place in the
December 2000 revision. As stated above, results from the TexAQS and recent
photochemical modeling indicate that additional HRVOC reductions will be the
most beneficial measure in reducing ozone in the HGA area and that this strategy
is no longer necessary to attain the one-hour ozone standard. Therefore, the
commission is proposing the repeal of Chapter 114, Subchapter J, Division
1, concerning Motor Vehicle Idling Limitations. Historically, the commission
has expressed a preference to implement technology-based strategies over behavior-altering
strategies such as the lawn and garden equipment operating restrictions. The
repeal of this rule is consistent with that philosophy.
Additionally, this repeal will allow for funding under TERP for idling
projects to reduce NO
x
emissions. The 77th Legislature,
2001, passed Senate Bill 5 establishing the TERP to provide financial incentives
for the voluntary reduction of NO
x
emissions
from diesel vehicles and equipment in 38 counties, which included the HGA
ozone nonattainment area counties affected by the idling restriction rules.
The 78th Legislature, 2003, passed House Bill 1365 to revise the TERP and
expand the coverage area to 41 counties.
Projects for on-vehicle idle reduction technologies and truck stop electrification
infrastructure may be considered by the commission for incentive grant funding
through the TERP. However, the commission is prohibited under Texas Health
and Safety Code, §386.102 from using TERP funding for technology and
projects that are required by federal or state regulations. Since the current
idling restriction rules limit the engine idling time of motor vehicles with
a gross vehicle weight rating of greater than 14,000 pounds to five consecutive
minutes while the vehicle is operating in the HGA ozone nonattainment area
counties, the commission cannot use TERP funds for any idle reduction projects
in these areas. Therefore, the repeals will allow the commission to make TERP
grant funding available for idle reduction projects within the HGA nonattainment
area counties.
SECTION-BY-SECTION DISCUSSION
The proposed repeal of §§114.500, 114.502, 114.507, and 114.509
allow the commission to achieve NO
x
emission
reductions more effectively through the use of TERP grant funding made available
for idle reduction projects within the HGA
nonattainment
area counties.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Analyst, Strategic Planning and Appropriations Section, determined
that for the first five-year period the proposed repeals are in effect, no
significant fiscal implications are expected for the agency or other units
of state and local government as a result of administration or enforcement
of the proposed repeals.
This rulemaking would repeal the rules in Subchapter J, which were implemented
on April 1, 2001. The current rules imposed idling limits for gasoline and
diesel powered engines in heavy-duty motor vehicles with a gross vehicle weight
rating greater than 14,000 pounds in the HGA ozone nonattainment area. To
comply with the idling regulations, an affected vehicle could not idle for
more than five consecutive minutes when the vehicle was not in motion during
the period of April 1 through October 31 of each calendar year.
The commission has reevaluated a number of the existing control strategies,
including motor vehicle idling restriction, that were put in the December
2000 SIP Revision, and it has been determined that this control strategy is
no longer necessary for one-hour ozone attainment. Additionally, this repeal
will allow for funding under TERP for idling projects to reduce NO
x
emissions. Currently, TERP funding is prohibited from being used
for projects or technologies that are already required by local, state, or
federal rules.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed repeals are in effect, the public benefit anticipated from the enforcement
of and compliance with the proposed repeals would be the potential for documented
emission reductions from idle reduction initiatives. The repeal of the existing
idle regulations would allow the commission to utilize other regulatory options,
including TERP program funding, to fund idle reduction technology and strategies.
In order to qualify for TERP funding, any initiative would have to demonstrate
and quantify actual emission reductions prior to being approved.
This rulemaking would repeal commission motor vehicle idling limitation
rules. The commission does not anticipate significant fiscal implications
for individuals and businesses due to the implementation of the proposed repeals.
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 repeals.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed repeals
do not adversely affect a local economy in a material way for the first five
years that the proposed repeals 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 rulemaking action does not meet the definition of
a "major environmental rule" as defined in that statute. A "major environmental
rule" is 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, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state.
The proposed amendments to Chapter 114 and revisions to the SIP repeal
idling restrictions within the HGA nonattainment area counties. The amendments
are not expected to adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state.
The proposed amendments do not meet any of the four applicability criteria
of a "major environmental rule" as defined in the Texas Government Code. Section
2001.0225 applies only 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.
The amendments implement requirements of 42 USC. Under 42 USC, §7410,
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code were amended by Senate Bill 633 during the 75th
legislative session. The intent of Senate Bill 633 was to require agencies
to conduct an regulatory impact analysis (RIA) of extraordinary rules. These
are identified in the statutory language as major environmental rules that
will have a material adverse impact and will exceed a requirement of state
law, federal law, or a delegated federal program, or are adopted solely under
the general powers of the agency. With the understanding that this requirement
would seldom apply, the commission provided a cost estimate for Senate Bill
633 that concluded "based on an assessment of rules adopted by the agency
in the past, it is not anticipated that the bill will have significant fiscal
implications for the agency due to its limited application." The commission
also noted that the number of rules that would require assessment under the
provisions of the bill was not large. This conclusion was based, in part,
on the criteria set forth in the bill that exempted proposed rules from the
full analysis unless the rule was a major environmental rule that exceeds
a federal law. As discussed earlier in this preamble, 42 USC does not require
specific programs, methods, or reductions in order to meet the NAAQS; thus,
states must develop programs for each nonattainment area to ensure that the
area will meet the attainment deadlines. Because of the ongoing need to address
nonattainment issues, the commission routinely proposes and adopts SIP rules.
The legislature is presumed to understand this federal scheme. If each rule
proposed for inclusion in the SIP was considered to be a major environmental
rule that exceeds federal law, then every SIP rule would require the full
RIA contemplated by Senate Bill 633. This conclusion is inconsistent with
the conclusions reached by the commission in its cost estimate and by the
Legislative Budget Board (LBB) in its fiscal notes. Because the legislature
is presumed to understand the fiscal impacts of the bills it passes, and that
presumption is based on information provided by state agencies and the LBB,
the commission believes that the intent of Senate Bill 633 was only to require
the full RIA for rules that are extraordinary in nature. While the SIP rules
will have a broad impact, that impact is no greater than is necessary or appropriate
to meet the requirements of 42 USC. For these reasons, rules adopted for inclusion
in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are specifically required by federal law.
In addition, 42 USC, §7502(a)(2), requires attainment as expeditiously
as practicable, and §7511(a)(d), requires states to submit ozone attainment
demonstration SIPs for severe ozone nonattainment areas such as HGA area.
The proposed repeal will remove Chapter 114, Control of Air Pollution from
Motor Vehicles, Subchapter J, Operational Controls for Motor Vehicles, Division
1, Motor Vehicle Idling Limitations, which imposes idling restrictions on
certain vehicles in the HGA ozone nonattainment area. Historically, the commission
expressed a preference to implement technology- based strategies over behavior-altering
strategies and the proposed repeal embodies that philosophy. A combination
of point source HRVOC controls and NO
x
reductions
appear to be the most effective means of reducing ozone in the HGA area. Consequently,
the commission reevaluated a number of the existing control strategies, including
motor vehicle idling restrictions, that were put in place in the December
2000 revision. The photochemical modeling shows that this strategy is no longer
necessary to attain the one-hour ozone standard and therefore, the commission
is proposing repeal of this control strategy. Therefore, the proposed repeal
is consistent with the ozone attainment demonstration SIP for HGA area, required
by 42 USC, §7410,
et seq
.
The commission consistently applied this construction to its rules since
this statute was enacted in 1997. Since that time, the legislature revised
the Texas Government Code but left this provision substantially unamended.
It is presumed that "when an agency interpretation is in effect at the time
the legislature amends the laws without making substantial change in the statute,
the legislature is deemed to have accepted the agency's interpretation."
As discussed earlier in this preamble, this rulemaking implements requirements
of 42 USC. There is no contract or delegation agreement that covers the topic
that is the subject of this rulemaking. Therefore, the proposed rules do not
exceed a standard set by federal law, exceed an express requirement of state
law, exceed a requirement of a delegation agreement, nor are adopted solely
under the general powers of the agency. In addition, the rules are proposed
under Texas Health and Safety Code (also known as the Texas Clean Air Act), §§382.011,
382.012, 382.017, 382.019, and 382.208. The commission invites public comment
on the draft RIA.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed rulemaking
action under Texas Government Code, §2007.043. The specific purpose of
these amendments is to repeal idling restrictions in the HGA nonattainment
counties.
Texas Government Code, §2007.003(b)(4), provides that Chapter 2007
does not apply to this proposed rulemaking action because it is reasonably
taken to fulfill an obligation mandated by federal law. States are primarily
responsible for ensuring attainment and maintenance of NAAQS once the EPA
has established them. Under 42 USC, §7410,
et seq
. and related provisions, states must submit, for approval by
the EPA, SIPs that provide for the attainment and maintenance of NAAQS through
control programs directed to sources of the pollutants involved. The motor
vehicle idling restriction was submitted in the HGA December 2000 SIP revision
as a control strategy to reduce NO
x
in order
to meet the ozone NAAQS set by the EPA under 42 USC, §7409. The commission
has expressed a preference for technology-based strategies over behavior-altering
strategies such as the idling restriction. The commission proposes the repeal
of the motor vehicle idling restriction because photochemical modeling shows
that this strategy is no longer necessary to attain the one-hour ozone standard
and combination of point source HRVOC controls and NO
x
reductions appear to be the most effective means of reducing ozone
in the HGA area. Therefore, the overall goal of this rulemaking action is
to meet the air quality standards established under federal law as NAAQS.
In addition, Texas Government Code, §2007.003(b)(13), states that
Chapter 2007 does not apply to an action that: 1) is taken in response to
a real and substantial threat to public health and safety; 2) is designed
to significantly advance the health and safety purpose; and 3) does not impose
a greater burden than is necessary to achieve the health and safety purpose.
Although the rule amendments do not directly prevent a nuisance or prevent
an immediate threat to life or property, they do prevent a real and substantial
threat to public health and safety and significantly advance the health and
safety purpose. This action is taken in response to the HGA area exceeding
the federal ozone NAAQS, which adversely affects public health, primarily
through irritation of the lungs. The motor vehicle idling restriction was
submitted as a control strategy in the HGA December 2000 revision. A combination
of point source HRVOC controls and NO
x
reductions
appear to be the most effective means of reducing ozone in the HGA area. Consequently,
the commission reexamined this strategy and photochemical modeling shows that
this strategy is no longer necessary to attain the one-hour ozone standard
and therefore, the commission is proposing the repeal of Chapter 114, Control
of Air Pollution from Motor Vehicles, Subchapter J, Operational Controls for
Motor Vehicles, Division 1, Motor Vehicle Idling Limitations. The action does
not specifically advance the health and safety purpose by reducing ozone levels
in the HGA nonattainment area. However, the repeal of this control strategy
is part of a larger scheme to reduce ozone in the HGA area through the most
effective means and strategies determined by the commission. Consequently,
these proposed rules meet the exemption in §2007.003(b)(13). This rulemaking
action therefore meets the requirements of Texas Government Code, §2007.003(b)(4)
and (13). For these reasons, the proposed rules do not constitute a takings
under Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking action and found that the
proposal is an action identified in Coastal Coordination Act Implementation
Rules, 31 TAC §505.11, or will affect an action/authorization identified
in §505.11, and therefore will require that applicable goals and policies
of the Texas Coastal Management Program (CMP) be considered during the rulemaking
process.
The commission prepared a consistency determination for the proposed repeals
under 31 TAC §505.22 and found that 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)). The CMP policy applicable to this rulemaking
action is the policy that commission rules comply with regulations in 40 Code
of Federal Regulations, adopted in accordance with the Federal Clean Air Act,
42 USC, §7401,
et seq
., to protect and
enhance air quality in the coastal area so as to protect coastal natural resource
areas and promote public health, safety, and welfare (31 TAC §501.14(q)).
This rulemaking action complies with 40 Code of Federal Regulations, adopted
in accordance with the Federal Clean Air Act. Therefore, in compliance with
31 TAC §505.22(e), this rulemaking action is consistent with CMP goals
and policies. Interested persons may submit comments on the consistency of
the proposed rules with the CMP during the public comment period.
ANNOUNCEMENT OF HEARINGS
Public hearings for this proposed rulemaking have been scheduled for the
following times: August 2, 2004, 1:30 p.m. and 5:30 p.m., City of Houston,
City Council Chambers, 2nd Floor, 901 Bagby, Houston; and August 3, 2004,
10:30 a.m., John Gray Institute, 855 Florida Avenue, Beaumont; and August
5, 2004, 9:30 a.m., Texas Commission on Environmental Quality, 12100 North
I-35, Building F, Room 2210, Austin. The hearings will be structured for the
receipt of oral or written comments by interested persons. Registration will
begin 30 minutes prior to each hearing. Individuals may present oral statements
when called upon in order of registration. A time limit may be established
at the hearings to assure that enough time is allowed for every interested
person to speak. There will be no open discussion during the hearings; however,
commission staff members will be available to discuss the proposal 30 minutes
before each hearing and will answer questions before and after each hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend a hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087;
faxed to (512) 239-4808; or e- mailed to
siprules@tceq.state.tx.us
. Comments must be received by 5:00 p.m., August 9, 2004, and should
reference Rule Project Number 2004-043-114-AI. For further information, please
contact Debra Barber, Policy and Regulations Division at (512) 239-0412.
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code, §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 Texas Water Code; and under Texas Health
and Safety Code, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes of Texas Health and
Safety Code, Chapter 382 (also known as the Texas Clean Air Act). The repeals
are also proposed under Texas Health and Safety Code, §382.002, concerning
Policy and Purpose, which establishes the commission purpose to safeguard
the state air resources, consistent with the protection of public health,
general welfare, and physical property; §382.011, concerning General
Powers and Duties, which authorizes the commission to control the quality
of the state's air; §382.012, concerning State Air Control Plan, which
authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air; §382.019, which authorizes the
commission to adopt rules to control and reduce emissions from engines used
to propel land vehicles; §382.037, which authorizes the commission by
rule to establish, implement, and administer a program requiring emissions-related
inspections of motor vehicles to be performed at inspection facilities consistent
with the requirements of the 42 United States Code, §§7401
The proposed repeals implement Texas Health and Safety Code, §§382.002,
382.011, 382.012, and 382.019.
§114.500.Definitions.
§114.502.Control Requirements for Motor Vehicle Idling.
§114.507.Exemptions.
§114.509.Affected Counties and Compliance Dates.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 28, 2004.
TRD-200403613
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: July 11, 2004
For further information, please call: (512) 239-5017
Subchapter G. CONSUMER-RELATED SOURCES
2.
PORTABLE FUEL CONTAINERS
30 TAC §§115.620 - 115.622, 115.626, 115.627, 115.629
The Texas Commission on Environmental Quality (commission)
proposes new §§115.620 - 115.622, 115.626, 115.627, and 115.629;
and corresponding revisions to the state implementation plan (SIP).
The new rules and revised SIP narrative 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 Houston/Galveston (HGA) ozone nonattainment area is classified as Severe-17
under the Federal Clean Air Act Amendments of 1990 (as codified in 42 United
States Code (USC), §§7401
et seq
.),
and therefore, is required to attain the one-hour ozone standard of 0.12 parts
per million (125 parts per billion) by November 15, 2007. The HGA area consists
of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,
and Waller Counties, and has been working to develop a demonstration of attainment
in accordance with 42 USC, §7410. The most relevant HGA SIP revisions
to date are the December 2000 one-hour ozone standard attainment demonstration,
the September 2001 follow-up revision, and the December 2002 nitrogen oxides
(NO
x
)/highly-reactive volatile organic compound
(HRVOC) revision.
This process has proven to be extremely challenging due to the magnitude
of reductions needed for attainment. The emission reduction requirements included
as part of the December 2000 SIP revision represent substantial, intensive
efforts on the part of stakeholder coalitions in the HGA area, in partnership
with the commission, to address ozone. These coalitions include local governmental
entities, elected officials, environmental groups, industry, consultants,
and the public, as well as EPA and the commission. Each of these groups has
worked diligently to identify and quantify control strategy measures for the
HGA attainment demonstration.
December 2000
The December 2000 SIP revision contained rules and photochemical modeling
analyses in support of the HGA ozone attainment demonstration. The majority
of the emissions reductions identified in this revision were from a 90% reduction
in point source NO
x
. The modeling analysis also
indicated a shortfall in necessary NO
x
emissions,
such that an additional 91 tons per day (tpd) of NO
x
reductions were necessary for an approvable attainment demonstration.
In addition, the revision contained post-1999 rate-of-progress (ROP) plans
for the milestone years 2002 and 2005 and for the attainment year 2007, and
transportation conformity motor vehicle emissions budgets (MVEB) for NO
September 2001
The September 2001 SIP revision for the HGA ozone nonattainment area included
the following elements: 1) corrections to the ROP table/budget for the years
2002, 2005, and 2007 due to a mathematical inconsistency; 2) incorporation
of a change to the idling restriction control strategy to clarify that the
operator of a rented or leased vehicle is responsible for compliance with
the requirements in situations where the operator of a leased or rented vehicle
is not employed by the owner of the vehicle (the commission committed to making
this change when the rule was adopted in December 2000); 3) incorporation
of revisions to the clean diesel fuel rules to provide greater flexibility
for compliance with the requirements of the rule while preserving the emission
reductions necessary to demonstrate attainment in the HGA area; 4) incorporation
of a stationary diesel engine rule that was developed as a result of the state's
analysis of EPA's reasonably available control measures; 5) incorporation
of revisions to the point source NO
x
rules; 6)
incorporation of revisions to the emissions cap and trade rules; 7) the removal
of the construction equipment operating restriction and the accelerated purchase
requirement for Tier 2/3 heavy-duty equipment; 8) the replacement of these
rules with the Texas Emission Reduction Plan program; 9) the layout of the
midcourse review process which details how the state will fulfill the commitment
to obtain the additional emission reductions necessary to demonstrate attainment
of the one-hour ozone standard in the HGA area; and 10) replacement of 2007
ROP MVEBs to be consistent with the attainment MVEBs.
As was discussed in the December 2000 revision, the modeling resulted in
a 141 parts per billion peak ozone level which correlated to a shortfall calculation
of 91 tpd NO
x
equivalent. An additional five
tpd was added to the shortfall, because the state could not take credit for
the NO
x
reductions associated with the diesel
pull-ahead strategy. The excess emissions from this strategy were not included
in the original emissions inventory. The gap control measures adopted in December
2000, along with the stationary diesel engine rules included in the September
2001 revision, resulted in NO
x
reductions of
40 tpd, which left a total remaining shortfall of 56 tpd. The state committed
to address this shortfall through the midcourse review process.
December 2002
In January 2001, the Business Coalition for Clean Air - Appeal Group (BCCA-AG)
and several regulated companies challenged the December 2000 HGA SIP and some
of the associated rules. Specifically, the BCCA-AG challenged the 90% NO
In compliance with the consent order, the commission conducted a scientific
evaluation based in large part on aircraft data collected by the Texas 2000
Air Quality Study (TexAQS). The TexAQS, a comprehensive research project conducted
in August and September 2000 involving more than 40 research organizations
and over 200 scientists, studied ground-level ozone air pollution in the HGA
and east Texas regions. The study revealed that while industrial source NO
To address these findings and to fulfill obligations in the consent order,
the commission adopted a SIP revision in December 2002 that focused on replacing
the most stringent 10% industrial NO
x
reductions
with VOC controls. In light of the TexAQS, the commission conducted further
modeling analysis of ambient VOC data. The results of photochemical grid modeling
and analysis indicated that the same level of air quality benefits achieved
with a 90% industrial NO
x
emissions reduction
could be achieved with an overall 80% industrial NO
x
emissions reduction when combined with an industrial VOC emissions
reduction. This conclusion was based on results from several studies, including
photochemical grid modeling of the August-September 2000 episode using a top-down
emissions inventory adjustment to point source HRVOC emissions, and analyses
of ambient HRVOC measurements made by commission automated gas chromatographs
and airborne canisters using the maximum incremental reactivity and hydroxyl
reactivity scales. Four HRVOCs (ethylene, propylene, 1,3-butadiene, and butenes)
clearly play important roles in the HGA ozone formation, and these four seemed
to be the best candidates for the first round of HRVOC controls.
In order to address these scientific findings, the commission adopted revisions
to the industrial source control requirements, one of the control strategies
within the existing federally approved SIP. The December 2002 revision contains
new rules to reduce HRVOC emissions from four key industrial sources: fugitives,
flares, process vents, and cooling towers. The adopted rules target HRVOCs
while maintaining the integrity of the SIP. Analysis showed that limiting
emissions of ethylene, propylene, 1,3-butadiene, and butenes in conjunction
with an 80% reduction in NO
x
is equivalent in
terms of air quality benefit to that resulting from a 90% point source NO
The technical support documentation accompanying the revision contains
the supporting analysis for early results from ongoing analysis examining
whether reductions in HRVOC emissions could replace the last 10% of industrial
NO
x
controls with a reduction of approximately
36% in industrial HRVOC emissions, while ensuring that the air quality specified
in the approved December 2000 HGA SIP is met.
Current SIP Revision
As mentioned previously, the commission committed to perform a midcourse
review to ensure attainment of the one-hour ozone standard. The midcourse
review process provides the ability to update emissions inventory data, utilize
current modeling tools, such as MOBILE6, and enhance the photochemical grid
modeling. The data gathered from the TexAQS continues to improve photochemical
modeling of the HGA area. The collection of these technical improvements give
a more comprehensive understanding of the ozone challenge in the HGA that
is necessary to develop an attainment plan. In the early part of 2003, the
commission was preparing to move forward with the midcourse review; however,
during the same time period EPA announced its plans to begin implementation
of the eight-hour ozone standard. The EPA published proposed rules for implementation
of the eight-hour ozone standard in the June 2, 2003 issue of the
Federal Register
(68 FR 32802). In the same time frame, EPA also formalized
its intentions to designate areas for the eight-hour ozone standard by April
15, 2004, meaning states would need to reassess their efforts and control
strategies to address this new standard by 2007. Recognizing that existing
one-hour nonattainment areas would soon be subject to the eight-hour ozone
standard, and in an effort to efficiently manage the state's limited resources,
the commission decided to develop an approach that addresses the outstanding
obligations under the one-hour ozone standard while beginning to analyze eight-hour
ozone issues.
The commission's one-hour ozone SIP commitments include: 1) completing
a one-hour ozone midcourse review, 2) performing modeling, 3) adopting measures
sufficient to fill the NO
x
shortfall, 4) adopting
measures sufficient to demonstrate attainment, and 5) revising the MVEB using
MOBILE6.
Results from the TexAQS and recent photochemical modeling indicate that
additional HRVOC reductions will be the most beneficial measure in reducing
ozone in the HGA area. The commission is proposing to reduce HRVOC emissions
to reach attainment of the one-hour ozone standard. The photochemical modeling
of the August-September 2000 episode coupled with a weight-of-evidence argument
demonstrates attainment of the one-hour ozone standard. To achieve the necessary
HRVOC reductions, the commission is proposing a two-pronged approach that
would address short-term emission events through a not-to- exceed limit, and
would address steady state and routine emissions through an annual cap. The
annual HRVOC cap would be reduced from the existing HRVOC cap in order to
support the attainment demonstration modeling.
The HGA SIP no longer relies solely on NO
x
based
strategies. A combination of point source HRVOC controls and NO
x
reductions appear to be the most effective means of reducing ozone
in the HGA area and there is no longer a NO
x
shortfall
in the HGA SIP. As a result, the commission also evaluated a number of the
existing control strategies that were put in place in the December 2000 revision.
The photochemical modeling shows that some of these strategies are no longer
necessary to attain the one-hour ozone standard. This SIP revision is proposing
the repeal of the commercial lawn and garden equipment restrictions, the repeal
of the heavy-duty vehicle idling restrictions, and the removal of the motor
vehicle inspection and maintenance program requirements from Chambers, Liberty,
and Waller Counties. In addition, this SIP proposal includes revisions to
the environmental speed limit strategy. In September 2002, the commission
revised the existing speed limit strategy to suspend the 55 mile per hour
(mph) speed limit until May 1, 2005, and, where posted speeds were 65 mph
or higher before May 1, 2002, to increase speeds to five mph below what was
posted. The 78th Legislature, 2003, removed the commission's authority to
determine speed limits for environmental purposes; therefore, this proposal
would remove the reinstatement of the 55 mph speed limit on May 1, 2005, and
would maintain the currently posted speed limits at five mph below the posted
limit before May 1, 2002. Also, as part of this SIP revision, the commission
is proposing new statewide portable fuel container rules. Historically, the
commission has expressed a preference to implement technology-based strategies
over behavior-altering strategies, and these proposed changes embody that
philosophy.
Through this revision, the commission is fulfilling its outstanding one-hour
ozone SIP obligations and beginning to plan for the upcoming eight-hour ozone
standard. This proposal demonstrates attainment of the one-hour ozone standard
in HGA in 2007 and provides a preliminary analysis of the HGA area in terms
of the eight-hour ozone standard in 2007 and 2010. EPA's proposed eight-hour
implementation rules provide flexibility to the states in transitioning from
the one-hour to the eight-hour ozone standard, and the commission believes
the steps taken in this proposal and the technical work performed to date
will be invaluable through the transition period. Upon EPA's finalization
of the eight-hour implementation and the transportation conformity rules,
the commission expects to begin developing eight-hour ozone SIPs.
Proposed new Division 2 establishes new requirements relating to the design
criteria for portable fuel containers and portable fuel container spouts.
The proposal is made in response to an October 13, 2001 petition for rulemaking
from Fluoro-Seal and to the directive from the commission on December 5, 2001,
to initiate rulemaking on these issues. The proposed new rules will establish
design criteria for "no-spill" portable gas cans based in large part on the
California Air Resources Board (CARB) standards. The most significant difference
with the CARB standards is that these regulations do not require the control
of permeations rates through the walls of portable fuel containers. This provision
is not included in the Texas regulations because the cost of compliance is
expected to be large and the reduction in emissions small, relative to other
provisions.
Effective January 1, 2006, these new rules will limit the type of portable
fuel containers and portable fuel container spouts sold, offered for sale,
manufactured, and/or distributed in the State of Texas. Fuel released into
the environment leads to the contamination of both the state's air and water.
These rules will ensure that portable fuel containers manufactured under these
standards will release fewer amounts of fuel as the result of spillage and
evaporation. According to the most conservative estimates by commission staff,
the reduction in spills and evaporation will reduce emissions from portable
fuel containers by 45%. Staff estimates that the reductions statewide will
amount to at least 12.5 tpd. The great majority of these reductions would
be to air emissions, but contamination of surface water and groundwater is
also expected to be reduced. Staff does not have adequate studies to estimate
the reduction to water contamination. Factors such as distance from surface
water in which spills occur and the time after a spill before rain occurs
would impact the spread of contamination of surface water. One situation that
will directly reduce releases to surface water will be the reduction of spills
when refueling powered water craft with portable fuel containers. Contamination
reaching groundwater would be affected by the type of surface or soil on which
a spill occurs, the depth to groundwater, and annual average rainfall amounts
in the area. The small size of spills that could occur from a portable fuel
container would generally lead to greater evaporation of the fuel rather than
transport to water.
SECTION BY SECTION DISCUSSION
Proposed new §115.620, Definitions, establishes the meaning of the
terms "Nominal capacity," "Portable fuel container," "Portable fuel container
spout," and "Target fuel tank."
Proposed new §115.621, Applicability, establishes the persons that
this rule applies to. That is, unless exempted under §115.627, anyone
who sells, offers for sale, supplies, distributes, or manufactures portable
fuel containers and portable fuel container spouts in Texas is subject to
these rules.
Proposed new §115.622, Performance Standards and Testing Requirements,
establishes that, notwithstanding the exemptions provided in §115.627,
no person shall sell, supply, offer for sale, distribute, or manufacture in
Texas any portable fuel container or portable fuel container spout that was
manufactured after January 1, 2006, unless it complies with the standards
described in this section.
Proposed new §115.622(1) explains that each portable fuel container
may only have one hole in the vessel. This standard has been included in the
rule as a means of reducing emissions that occur when vent holes (a small
second hole in the vessel that is used to expedite the flow of fuel out of
the portable fuel container) are left open, leading to evaporative emissions
and possibly spillage of fuel.
Proposed new §115.622(2) describes the standards required for portable
fuel container spouts. Each portable fuel container spout will be required
to have an automatic shutoff device to prevent over filling in accordance
with CARB Test Method 510; automatically close and seal when removed from
the fuel tank in accordance with CARB Test Method 511; seal without leakage
when affixed to the portable fuel container vessel; and meet fuel flow rate
and cut off level standards. The portable fuel container spout must provide
a fuel flow rate in accordance with CARB Test Method 512, which specifies
a flow rate of not less than 1/2 gallon per minute when attached to a portable
fuel container that holds 1.5 gallons or less; one gallon per minute when
attached to a portable fuel container that holds more than 1.5 gallons but
less than or equal to 2.5 gallons; or two gallons per minute when attached
to a portable fuel container that holds more than 2.5 gallons. Cut off fuel
flow levels are set so as to eliminate the overfilling of a target fuel tank.
Cut off fuel flow levels are one inch from the top of the target fuel tank
for tanks that have a nominal capacity of 1.5 gallons or less. If the target
fuel tank can hold more than 1.5 gallons, the cut off level is 1.25 inches
from the top of the fuel tank.
Proposed new §115.626, Labeling, states that portable fuel containers
and portable fuel container spouts subject to this rule must display a label
indicating that the system was designed in accordance with the rule specified
herein. Labels must also list the date when the device was manufactured and
show prominently the word "spill-proof." Finally, the label must specify with
which portable fuel containers the portable fuel container spout must be used.
This final requirement will ensure that consumers match the proper spout to
their vessel (or vice versa) in those cases when the devices are purchased
separately.
Proposed new §115.627, Exemptions, states that all portable fuel containers
and portable fuel container spouts manufactured prior to January 1, 2006,
and all portable fuel containers with a nominal capacity of less than or equal
to one quart, or greater than ten gallons are exempted from the requirements
of this proposed new rule. The exemption allowing persons to sell, supply,
offer for sale, or distribute portable fuel containers and portable fuel container
spouts manufactured prior to January 1, 2006 has been added so as to allow
companies to liquidize any stock of noncompliant portable fuel containers
that otherwise would have become unsaleable in the state after the implementation
date of this proposed new rule. This proposed section exempts from the rule
any portable fuel container or portable fuel container spout that is sold,
supplied, or offered for sale outside of Texas. This proposed section also
exempts portable fuel containers and portable fuel container spouts used in
officially sanctioned racing competitions if the spill-proof spouts would
cause problems with the race by increasing time needed to refuel during the
race and if the spout and receiving tank are equipped with a spill-proof mechanism.
Proposed new §115.629, Affected Counties and Compliance Schedules,
states that all affected persons in all counties within the State of Texas
must comply with this rulemaking action as soon as practicable, but not later
than January 1, 2006.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Analyst, Strategic Planning and Appropriations Section, determined
that for the first five-year period that the proposed new rules are in effect,
there will be no significant fiscal implications for the commission or other
units of state and local government as a result of administration or enforcement
of the proposed new rules. Units of government that purchase portable fuel
containers and portable fuel container spouts after January 1, 2006 will likely
pay between $6.00 and $11 more per container and $2.00 to $4.00 more per individual
spout due to implementation of the proposed new rules.
This rulemaking would establish new requirements relating to the design
criteria for all portable fuel containers sold, offered for sale, manufactured,
and/or distributed throughout Texas. Effective January 1, 2006, except as
exempted in §115.627, all portable fuel containers bought by units of
state and local government will have to meet the updated design criteria proposed
by this rulemaking. Portable fuel containers with a nominal capacity of less
than or equal to one quart, or greater than ten gallons would be exempted
from the new requirements. Additionally, the new requirements would not affect
portable fuel containers manufactured prior to January 1, 2006. This was included
in the rules to allow companies to liquidize any stock of noncompliant portable
fuel containers. A third exemption specifies that noncompliant portable fuel
containers and portable fuel container spouts which were intended for transport
and use outside of Texas are not subject to the requirements of the proposed
rulemaking. The overall fiscal impact to units of state and local government
would depend on the number of new portable fuel containers purchased after
the effective date of the proposed new rules. The commission does not anticipate
significant fiscal implications due to implementation of the proposed new
rules.
PUBLIC BENEFITS AND COSTS
Mr. Davis determined that for each year of the first five years the proposed
new rules are in effect, the public benefit anticipated from the enforcement
of and compliance with the proposed new rules would be a reduction in evaporative
emissions from poorly sealed gas cans and/or spillage during refueling operations,
resulting in a decrease in VOCs released into the air. Reductions in VOCs
will help to reduce smog, increase air quality, and help the nonattainment
areas meet federal clean air requirements. Water quality will also likely
improve by the reduction of fuel spillage during refueling.
This rulemaking would establish new requirements relating to the design
criteria for all portable fuel containers sold, offered for sale, manufactured,
and/or distributed in Texas. Effective January 1, 2006, except as exempted
by §115.627, all portable fuel containers bought by individuals and businesses
will have to meet the updated design criteria proposed by this rulemaking.
Individuals and businesses would not have to immediately replace existing
portable fuel containers following the effective date of this rulemaking action.
This fiscal note assumes replacement of existing portable fuel containers
due to attrition based on an average useful life of five years for each portable
fuel container.
The analysis in this fiscal note is based on a CARB report (CARB, Hearing
Notice and Staff Report: Initial Statement of Reasons for Proposed Rulemaking,
Public Hearing to Consider the Adoption of Portable Fuel Container Spillage
Control Regulations, August 6, 1999). Additionally, data was taken from a
report developed by ERG, Inc. (Emissions from Portable Gasoline Containers
in Texas, Draft Final Report, August 30, 2002).
The commission does not anticipate significant fiscal implications for
manufacturers of portable fuel containers due to implementation of the proposed
new rules. There are no known manufacturers in Texas that would be directly
affected by the new requirements. CARB estimated that any manufacturing costs
required to produce the upgraded portable fuel containers would likely be
passed along to consumers buying and businesses selling the new portable fuel
containers.
Retailers who sell portable fuel containers may be impacted if the potential
increase in costs of the products reduces demand; however, the commission
does not anticipate this will occur. The price increase, estimated at between
$6.00 to $11 per portable fuel container, is not anticipated to drastically
alter consumer/business purchases of these products.
The total fiscal impact to consumers and businesses in Texas that purchase
affected portable fuel containers after January 1, 2006 is based on the model
developed by CARB in 1999. The study estimated that 94% of portable fuel containers
purchased annually were bought by individuals for residential use. The commission
estimates the remaining 6% are purchased for commercial use by businesses,
such as lawn and garden, tree-trimming, agricultural, forestry, construction,
automotive service, and gasoline service stations. According to the Texas
State Data Center, there were 7,392,054 households in Texas in 2000. Based
on surveys conducted for ERG, Inc., 72% of households in Texas have at least
one portable fuel container, with the average being 1.35 gas cans per household.
Based on the CARB model, the commission estimates there are approximately
7.1 million portable fuel containers (Residential/94%) owned by individuals,
and an additional 460,000 portable fuel containers (Commercial/6%) owned by
businesses. The total portable fuel container population in Texas is estimated
at approximately 7.6 million. Assuming an average useful life of five years
for each portable fuel container, the commission estimates that approximately
1.5 million containers will be replaced annually following the January 1,
2006 effective date of the new regulations.
Table 1 provides the estimated cost of compliance for both individuals
and businesses that purchase portable fuel containers after January 1, 2006.
The total annual incremental compliance cost increase is estimated at $12.8
million statewide. A 2% annual rate of inflation was applied to estimated
compliance costs for 2004 to arrive at the 2006 compliance costs listed in
Table 1. Based on staff's conservative estimate of a reduction of 12.5 tpd,
the annual reduction is estimated to be at least 4,500 tons per year. Therefore,
the cost of each ton per year of emission reductions will be approximately
$2,800.
Figure: 30 TAC Chapter 115--Preamble
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No significant adverse fiscal implications are anticipated as a result
of implementation of the proposed new rules for small or micro-businesses.
The majority of businesses in Texas affected by the proposed new rules are
anticipated to be small and micro-businesses, including lawn and garden, tree-trimming,
agricultural, forestry, construction, automotive service, and gasoline service
stations. Based on the ERG, Inc. report, larger small and micro-businesses
would replace up to approximately ten portable fuel containers annually following
implementation of the proposed rules on January 1, 2006. The cost to replace
these portable fuel containers would be approximately $60 to $110 more per
business due to implementation of the proposed new rules. The increased cost
could be higher or lower, depending on the number of portable fuel containers
purchased following implementation of the proposed new rules.
The following is an analysis of the costs per employee for small and micro-businesses
that replace ten portable fuel containers annually over the five-year period
following implementation of the proposed new rules. Small and micro-businesses
are defined as having fewer than 100 or 20 employees, respectively. A small
business would have to pay up to an additional $1.10 per employee to comply
with the proposed new rules. A micro- business would have to pay up to an
additional $5.50 per employee to comply with the proposed new rules.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed new
rules do not adversely affect a local economy in a material way for the first
five years that the proposed new rules 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 rulemaking action does not meet the definition of
a "major environmental rule" as defined in that statute. A "major environmental
rule" is 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, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state.
The proposed new rules to Chapter 115 and revisions to the SIP would reduce
emissions of VOCs throughout Texas by regulating the type of portable fuel
containers that can be manufactured or imported for sale in Texas after January
1, 2006. Specifically, the proposed new rules will require that new portable
fuel containers have devices to prevent spills and overfilling of the receiving
tanks. The proposed new rules are not expected to adversely affect in a material
way the economy, productivity, competition, jobs, the environment, or the
public health and safety of the state or a sector of the state.
The proposed new rules do not meet any of the four applicability criteria
of a "major environmental rule" as defined in the Texas Government Code. Section
2001.0225 applies only 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.
The proposed new rules implement requirements of 42 USC. Under 42 USC, §7410,
states are required to adopt a SIP which provides for "implementation, maintenance,
and enforcement" of the primary national ambient air quality standards (NAAQS)
in each air quality control region of the state. While §7410 does not
require specific programs, methods, or reductions in order to meet the standard,
SIPs must include "enforceable emission limitations and other control measures,
means or techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and timetables
for compliance as may be necessary or appropriate to meet the applicable requirements
of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control).
It is true that 42 USC does require some specific measures for SIP purposes,
such as the inspection and maintenance program, but those programs are the
exception, not the rule, in the SIP structure of 42 USC. The provisions of
42 USC recognize that states are in the best position to determine what programs
and controls are necessary or appropriate in order to meet the ozone standard.
This flexibility allows states, affected industry, and the public to collaborate
on the best methods for attaining the NAAQS for the specific regions in the
state. Even though 42 USC allows states to develop their own programs, this
flexibility does not relieve a state from developing a program that meets
the requirements of §7410. Thus, while specific measures are not generally
required, the emission reductions are required. States are not free to ignore
the requirements of §7410, and must develop programs to assure that the
nonattainment areas of the state will be brought into attainment on schedule.
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th
Legislature, 1997. The intent of SB 633 was to require agencies to conduct
a regulatory impact analysis (RIA) of extraordinary rules. These are identified
in the statutory language as major environmental rules that will have a material
adverse impact and will exceed a requirement of state law, federal law, or
a delegated federal program, or are adopted solely under the general powers
of the agency. With the understanding that this requirement would seldom apply,
the commission provided a cost estimate for SB 633 that concluded "based on
an assessment of rules adopted by the commission in the past, it is not anticipated
that the bill would not have significant fiscal implications for the agency
due to its limited application." The commission also noted that the number
of rules that would require assessment under the provisions of the bill was
not large. This conclusion was based, in part, on the criteria set forth in
the bill that exempted proposed rules from the full analysis unless the rule
was a major environmental rule that exceeds a federal law. As discussed earlier
in this preamble, 42 USC does not require specific programs, methods, or reductions
in order to meet the NAAQs for ozone; thus, states must develop programs for
each nonattainment area to ensure that each area will meet the attainment
deadlines. Because of the ongoing need to address nonattainment issues, the
commission routinely proposes and adopts SIP rules. The legislature is presumed
to understand this federal scheme. If each rule proposed for inclusion in
the SIP was considered to be a major environmental rule that exceeds federal
law, then every SIP rule would require the full RIA contemplated by SB 633.
This conclusion is inconsistent with the conclusions reached by the commission
in its cost estimate and by the Legislative Budget Board in its fiscal notes.
Because the legislature is presumed to understand the fiscal impacts of the
bills it passes, and that presumption is based on information provided by
state agencies and the Legislative Budget Board, the commission believes that
the intent of SB 633 was only to require the full regulatory impact analysis
for rules that are extraordinary in nature. While the SIP rules will have
a broad impact, that impact is no greater than is necessary or appropriate
to meet the requirements of 42 USC. For these reasons, rules adopted for inclusion
in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are specifically required by federal law.
In addition, 42 USC, §7502(a)(2), requires attainment as expeditiously
as practicable, and §7511a(d) requires states to submit ozone attainment
demonstration SIPs for severe ozone nonattainment areas such as HGA. The proposed
rules will reduce VOC emissions statewide, including in the HGA. The control
of VOCs in the HGA will assist with achieving attainment of the NAAQS for
ozone for that area. Therefore, the proposed new rules are necessary components
of and consistent with the ozone attainment demonstration SIP for HGA, required
by 42 USC, §7410.
The commission has consistently applied this construction to its rules
since this statute was enacted in 1997. Since that time, the legislature has
revised the Texas Government Code, but left this provision substantially unamended.
The commission presumes that "when an agency interpretation is in effect at
the time the legislature amends the laws without making substantial change
in the statute, the legislature is deemed to have accepted the agency's interpretation."
As discussed earlier in this preamble, this rulemaking implements requirements
of 42 USC. There is no contract or delegation agreement that covers the topic
that is the subject of this rulemaking action. Therefore, the proposed new
rules do not exceed a standard set by federal law, exceed an express requirement
of state law, exceed a requirement of a delegation agreement, or are adopted
solely under the general powers of the agency. In addition, the rules are
proposed under Texas Health and Safety Code, §§382.002, 382.011,
382.012, and 382.017. The commission invites public comment on the draft regulatory
impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed rulemaking
action under Texas Government Code, §2007.043. The specific purpose of
these proposed new rules is to reduce the emissions of VOCs caused by leaks
and spills from portable fuel containers.
Texas Government Code, §2007.003(b)(4), provides that Chapter 2007
does not apply to this proposed rulemaking action, because it is reasonably
taken to fulfill an obligation mandated by federal law. The control requirements
within this rulemaking action were developed in order to meet the ozone NAAQS
set by the EPA under 42 USC, §7409. States are primarily responsible
for ensuring attainment and maintenance of NAAQS once the EPA has established
them. Under 42 USC, §7410, and related provisions, states must submit
for EPA approval SIPs that provide for the attainment and maintenance of the
applicable ozone standard through control programs directed to sources of
the ozone. Therefore, one purpose of this rulemaking action is to meet the
air quality standards established under federal law, identifiable as the NAAQS.
Any VOC reductions resulting from the current rulemaking are no greater than
what scientific research indicates is necessary to achieve the desired ozone
levels. However, this rulemaking is only one step among many necessary for
attaining the ozone standard.
In addition, Texas Government Code, §2007.003(b)(13), states that
Chapter 2007 does not apply to an action that: 1) is taken in response to
a real and substantial threat to public health and safety; 2) is designed
to significantly advance the health and safety purpose; and 3) does not impose
a greater burden than is necessary to achieve the health and safety purpose.
Although the proposed new rules do not directly prevent a nuisance or prevent
an immediate threat to life or property, they do prevent a real and substantial
threat to public health and safety and significantly advance the health and
safety purpose. This action is taken in response to the finding that the HGA
area exceeds the federal ozone standard, and may consequently affect public
health in an adverse manner, primarily through irritation of the lungs. The
action significantly advances the health and safety purpose by reducing ozone
levels in the HGA nonattainment area. Consequently, these proposed rules meet
the exemption in §2007.003(b)(13). This rulemaking action therefore meets
the requirements of Texas Government Code, §2007.003(b)(4) and (13).
For these reasons, the proposed new rules do not constitute a takings 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 Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and
therefore will require that applicable goals and policies of the Coastal Management
Program be considered during the rulemaking process.
The commission prepared a preliminary consistency determination for the
proposed rules under 31 TAC §505.22 and found that 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 these proposed
new rules. The CMP policy applicable to this rulemaking action is the policy
that commission rules comply with regulations in 40 CFR, to protect and enhance
air quality in the coastal area (31 TAC §501.14(q)). This rulemaking
action complies with 40 CFR. Therefore, in compliance with 31 TAC §505.22(e),
this rulemaking action is consistent with CMP goals and policies. Interested
persons may submit comments on the consistency of the proposed rules with
the CMP during the public comment period.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMIT PROGRAM
Chapter 115 is an applicable requirement under 30 TAC Chapter 122; therefore,
owners or operators subject to the federal operating permit program must,
consistent with the revision process in Chapter 122, revise their operating
permits to include the revised Chapter 115 requirements for each emission
unit affected by the revisions to Chapter 115 at their sites.
ANNOUNCEMENT OF HEARINGS
Public hearings for this proposed rulemaking have been scheduled for the
following times: August 2, 2004, 1:30 p.m. and 5:30 p.m., City of Houston,
City Council Chambers, 2nd Floor, 901 Bagby, Houston; and August 3, 2004,
10:30 a.m., John Gray Institute, 855 Florida Avenue, Beaumont; and August
5, 2004, 9:30 a.m., Texas Commission on Environmental Quality, 12100 North
I-35, Building F, Room 2210, Austin. The hearings will be structured for the
receipt of oral or written comments by interested persons. Registration will
begin 30 minutes prior to each hearing. Individuals may present oral statements
when called upon in order of registration. A time limit may be established
at the hearings to assure that enough time is allowed for every interested
person to speak. There will be no open discussion during the hearings; however,
commission staff members will be available to discuss the proposal 30 minutes
before each hearing and will answer questions before and after each hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend a hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Patricia Durón, MC 205, Office
of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental
Quality, P.O. Box 13087, Austin, Texas 78711-3087; faxed to (512) 239-4808;
or emailed to
siprules@tceq.state.tx.us
. All
comments should reference Rule Project Number 2004-033-115-AI. Comments must
be received by 5:00 p.m., August 9, 2004. For further information, please
contact Roland Castañeda of the Environmental Planning and Implementation
Division at (512) 239-0774 or Joe Thomas, of the Policy and Regulations Division,
at (512) 239-4580.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
STATUTORY AUTHORITY
The new rules are proposed under Texas Water Code, §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 Texas Water Code; §26.003, concerning
Policy; §26.011, concerning In General, which provide the commission
with authority to maintain and control the quality of water in the state;
and under Texas Health and Safety Code, §382.017, concerning Rules, which
authorizes the commission to adopt rules consistent with the policy and purposes
of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean
Air Act). The new rules are also proposed under Texas Health and Safety Code, §382.002,
concerning Policy and Purpose, which establishes the commission purpose to
safeguard the state air resources, consistent with the protection of public
health, general welfare, and physical property; §382.011, concerning
General Powers and Duties, which authorizes the commission to control the
quality of the state's air; and §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air. The new rules are proposed under
federal mandates contained in 42 United States Code, §7410, that requires
states to introduce pollution control measures in order to reach specific
air quality standards in particular areas of the state.
The proposed new rules implement Texas Health and Safety Code, §§382.002,
382.011, and 382.012.
§115.620.Definitions.
The following words and terms, when used in this division, have the
following meanings, unless the context clearly indicates otherwise. Additional
definitions for terms used in this division are found in §§3.2,
101.1, and 115.10 of this title (relating to Definitions).
(1)
Nominal capacity--The volume indicated by a portable fuel
container manufacturer that represents the maximum recommended filling level.
(2)
Portable fuel container--Any vessel that is designed to
be used in combination with a portable fuel container spout and that is designed
or used primarily to receive, transport, store, or dispense fuel for use in
internal combustion engines, and that is subject to 16 Code of Federal Regulations, §1500.83(a)(14).
(3)
Portable fuel container spout--Any device that is designed
or manufactured to be attached to a portable fuel container for the purpose
of dispensing fuel into a target fuel tank leading to an internal combustion
engine.
(4)
Target fuel tank--Any receptacle that receives fuel from
a portable fuel container.
§115.621.Applicability.
Except as provided in §115.627 of this title (relating to Exemptions),
this division shall apply to any person who sells, offers for sale, supplies,
distributes, or manufactures portable fuel containers and portable fuel container
spouts in the State of Texas.
§115.622.Performance Standards and Testing Requirements.
Except as provided in §115.627 of this title (relating to Exemptions),
no person shall sell, supply, offer for sale, distribute, or manufacture any
portable fuel container or portable fuel container spout which was manufactured
after January 1, 2006, that does not comply with the following performance
standards.
(1)
Portable fuel containers must have only one opening in
the vessel.
(2)
Portable fuel container spouts must:
(A)
contain an automatic shutoff device that stops the flow
of fuel before the target fuel tank overflows, in accordance with California
Air Resources Board (CARB) Test Method 510 (July 6, 2000);
(B)
automatically close and seal when removed from the target
fuel tank, and remain completely closed when not dispensing fuel, in accordance
with CARB Test Method 511 (July 6, 2000);
(C)
seal without leakage to the portable fuel container to
which it is affixed;
(D)
provide a fuel flow rate, in accordance with CARB Test
Method 512 (July 6, 2000), of not less than:
(i)
1/2 gallon per minute when attached to a portable fuel
container with a nominal capacity of 1.5 gallons or less;
(ii)
one gallon per minute when attached to a portable fuel
container with a nominal capacity greater than 1.5 gallons but less than or
equal to 2.5 gallons; or
(iii)
two gallons per minute when attached to a portable fuel
container with a nominal capacity of greater than 2.5 gallons; and
(E)
cut off fuel flow when the fuel level in the target fuel
tank reaches:
(i)
one inch from the top of a target fuel tank with a nominal
capacity of 1.5 gallons or less; or
(ii)
1.25 inches from the top of a target fuel tank with a
nominal capacity greater than 1.5 gallons.
§115.626.Labeling.
Portable fuel containers and portable fuel container spouts subject
to the requirements of §115.622 of this title (relating to Performance
Standards and Testing Requirements) must be labeled so as to indicate compliance
with the requirements of §115.622 of this title. The label must also
list the date the device was manufactured and must prominently include the
word "spill-proof." The label must also specify with which portable fuel containers
the portable fuel container spout must be used.
§115.627.Exemptions.
This division (relating to Portable Fuel Containers) does not apply
to:
(1)
portable fuel containers or portable fuel container spouts
manufactured prior to January 1, 2006;
(2)
portable fuel containers with a nominal capacity less than
or equal to one quart, or greater than ten gallons;
(3)
portable fuel containers or portable fuel container spouts
that are sold, supplied, or offered for sale outside of Texas; and
(4)
portable fuel containers and portable fuel container spouts
used in officially sanctioned racing competitions when the minimum flow rates
provided in §115.622(2)(D) of this title (relating to Performance Standards
and Testing Requirements) would interfere with the competition by requiring
too long to refuel vehicles during the race, if both the portable fuel container
spout and the receiving tank have compatible spill-proof mechanisms to avoid
spills when transferring fuel.
§115.629.Affected Counties and Compliance Schedules.
All affected persons in all counties within the State of Texas shall
be in compliance with the provisions of this division as soon as practicable,
but no later than January 1, 2006.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 28, 2004.
TRD-200403609
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: July 11, 2004
For further information, please call: (512) 239-6087
TCAA
] or in the rules of the commission, the terms used by the commission
have the meanings commonly ascribed to them in the field of air pollution
control. In addition to the terms which are defined by the TCAA, the following
words and terms, when used in this chapter, [
shall
] have the following
meanings, unless the context clearly indicates otherwise.
(GVWR)
]--The value
specified by the manufacturer as the maximum design loaded weight of a vehicle.
This is the weight as expressed on the vehicle's registration, and includes
the weight the vehicle can carry or draw.
GVWR
] greater than 8,500
pounds
[
lbs.
], and is required to be registered under [
the
] Texas Transportation Code, §502.002. For purposes of the
mobile emission reduction credit
[
Mobile Emission Reduction Credit
(MERC)
] trading program the heavy-duty class is divided into the following
subclasses:
lbs.
], but less than or equal to
10,000
pounds
[
lbs
].
lbs.
] but less than or equal to
19,500
pounds
[
lbs
].
lbs
].
Title 40,
] Code of Federal Regulations [
(40 CFR)
], Part 88.
GVWR
] less than or equal to 8,500
pounds
[
lbs.
], and registered or required to be registered
under Texas Transportation Code, §502.002. For purposes of the
mobile emission reduction credit
[
MERC
] trading program the
light-duty class is divided into the following subclasses:
lbs
].
lbs
].
lbs.
] but less than 8,500
pounds
[
lbs
].
(I/M)
]
test--A measurement of the tailpipe exhaust emissions of a vehicle while the
drive wheel rotates on a dynamometer, which simulates the full weight of the
vehicle driving down a level roadway. Loaded test equipment specifications
shall meet
United States Environmental Protection Agency
[
EPA
] requirements for
acceleration simulation mode
[
Acceleration Simulation Mode
] equipment.
EPA
] for any model year to meet:
the Federal Clean Air Act as amended
] Part C, Subchapter
II,
§§7581
et seq.
[
(U.S.C. 42 Section 7581 et seq.)
]; or
40 CFR, Parts 88.104-94, 88.105-94, and 88.311-93
] as published in the
the
] Texas Transportation Code, Chapters
451- 453 (relating to Metropolitan Rapid Transit Authorities, Regional Transportation
Authorities, and Municipal
Transit Departments
[
Transportation
Authorities
]), that operates a mass transit system under any of those
laws.
the Federal Clean Air Act, §211(k)(42 United States Code, §7545(k))
].
Revised
] Texas
Inspection and Maintenance
[
I/M
] State Implementation Plan [
(SIP)
]--The
portion of the Texas
state implementation plan that
[
SIP which
] includes the procedures and requirements of the vehicle emissions
inspection and maintenance program as adopted by the commission May 29, 1996,
in accordance with [
the
] 40
Code of Federal Regulations
[
CFR
] Part 51, Subpart S, issued November 5, 1992; the
United States
Environmental Protection Agency
[
EPA
] flexibility amendments
dated September 18, 1995; and the National Highway Systems Designation Act
of 1995. A copy of the [
revised
] Texas
Inspection and Maintenance
State Implementation Plan
[
I/M SIP
] is available at the
Texas Commission on Environmental Quality
[
Texas Natural Resource
Conservation Commission
], 12100 Park 35 Circle, Austin, Texas, 78753;
mailing address: P.O. Box 13087, MC 166, Austin, Texas 78711-3087.
the FCAA as amended
in §202, USC Title 42 §7521
], and in 40
Code of Federal
Regulations
[
CFR
], Part 86. The phase-in of these standards
began in model year 1994.
CFR
], Part 88.
CFR
], Part 88.
(I/M) ] Definitions.
TCAA
] or in the rules of the commission, the terms used by the commission
have the meanings commonly ascribed to them in the field of air pollution
control. In addition to the terms which are defined by the TCAA, the following
words and terms, when used in Subchapter C of this chapter (relating to Vehicle
Inspection and Maintenance
and Low Income Vehicle Repair Assistance,
Retrofit, and Accelerated Vehicle Retirement Program
), [
shall
]
have the following meanings, unless the context clearly indicates otherwise.
test
])
test
--An emissions test using a dynamometer (a set of rollers on which
a test vehicle's tires rest) which applies an increasing load or resistance
to the drive train of a vehicle, thereby simulating actual tailpipe emissions
of a vehicle as it is moving and accelerating. The ASM-2 vehicle emissions
test is comprised of two phases:
Price Index
]--The
consumer price index
[
Consumer Price Index
] for any calendar
year is the average of the
consumer price index
[
Consumer
Price Index
] for all-urban consumers published by the Department of
Labor, as of the close of the 12-month period ending on August 31 of the calendar
year.
revised
] Texas Inspection and Maintenance [
(I/M)
] State Implementation
Plan. These program areas include:
(DFW)
] program area
, consisting of
[
which consists of
] the following counties:
Dallas, Denton, Collin, and Tarrant;
which consists of
] El Paso County;
which consists of
] Brazoria, [
Chambers,
] Fort
Bend, Galveston, Harris, [
Liberty, Montgomery,
] and
Montgomery
[
Waller
] Counties; and
DFW (EDFW)
] program area
, consisting of
[
which consists of
]
Ellis, Johnson, Kaufman, Parker, and Rockwall Counties. These counties will
become part of the program area as of May 1, 2003.
Subchapter C. VEHICLE INSPECTION AND MAINTENANCE AND LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM
2
] - 24 years old and subject to an annual emissions
inspection, beginning with the first safety inspection. Currently, military
tactical vehicles, motorcycles, diesel-powered vehicles, dual-fueled vehicles
which cannot operate using gasoline, and antique vehicles registered with
the Texas Department of Transportation are excluded from the program. Safety
inspection facilities and inspectors certified by the Texas Department of
Public Safety (DPS) shall inspect all subject vehicles, in the following program
areas, as defined in §114.2 of this title (relating to Inspection and
Maintenance (I/M) Definitions), in accordance with the following schedule.
EPA-approved
] OBD test procedures.
(F)
Beginning May 1, 2005, all 1996 and newer
model year vehicles equipped with OBD systems and registered and primarily
operated in Chambers, Liberty, and Waller Counties shall be tested using EPA-approved
OBD test procedures.
]
(G)
Beginning May 1, 2005, all pre-1996 model
year vehicles registered and primarily operated in Chambers, Liberty, and
Waller Counties shall be tested using an ASM-2 test, or a vehicle emissions
test that meets SIP emissions reduction requirements and is approved by the
EPA.
]
(H)
If Chambers, Liberty, and Waller Counties
and their respective largest municipality submit by May 1, 2002, individually
or collectively, a resolution that is approved by the commission and EPA as
an alternative air control plan, then subparagraphs (F) and (G) of this paragraph
are not required. The resolution should provide a control plan that will provide
modeled reductions of volatile organic compounds and nitrogen oxides equivalent
to the reductions that have been modeled for these counties through the implementation
of the I/M program. In determining approvability of a plan, the commission
will consider federal I/M program requirements.
]
FCAA
] (42 United States Code, §§7401
their
]
motor vehicle, should furnish proof of compliance with the recall notice prior
to the next vehicle emissions inspection. The motorist may present a written
statement from the dealership or leasing agency indicating that emissions
repairs have been completed as proof of compliance.
Texas Motor Vehicle Commission Code, Article 4413(36), §1.03, (moved
to
] Texas Occupations Code, §2301.002, [
effective June 1,
2003)
] is not eligible for title receipt or registration in a county
with an I/M program unless proof is presented that the vehicle has passed
an approved vehicle emissions inspection within 90 days before the title transfer.
The evidence of proof required may be in the form of the vehicle inspection
report (VIR) or another proof of the program compliance as authorized by DPS.
All 1996 and newer model year vehicles with less than 50,000 miles are exempt
from the test-on-resale requirements of this paragraph.
(g)
] of this section, an
emissions inspection station owner or operator must meet the following requirements.
(DPS)
] certified official vehicle inspection
station from the program start date and must continue ASM-2 emissions testing
for five years following the program start date or until ASM-2 testing is
terminated by the state.
(f)
Program areas beginning May 2005. For
program areas that begin ASM-2 testing in May 2005 (Chambers, Liberty, and
Waller Counties), the same incentive is offered subject to the requirements
listed in this section. The enrollment period for these counties is October
15, 2004 through December 31, 2004. The executive director will accept the
first 30 eligible emissions inspection stations into the program. At the discretion
of the executive director, additional stations may be accepted into the program
to ensure adequate distribution of stations throughout the program area.
]
(g)
] Incentive payment plan. Emissions
inspection station owners or operators who are accepted into the program and
who maintain their eligibility are eligible to receive a payment of $675 per
month to cover the remainder of the five-year period following the program
start date if the ASM-2 testing requirement is terminated by state rule or
statute during the first five years following the program start date. Participating
emissions inspection stations
that
[
which
] have conducted
more than 12,000 emissions tests at program termination are not eligible for
payment.
Vehicle Repair Form
] showing that emissions-related
repairs were performed and the retest is conducted within 15 days of the initial
emissions test.
(TSI)
] test in accordance
with §114.50(a)(1) of this title (relating to Vehicle Emissions Inspection
Requirements) shall collect a fee of $13 and shall remit $1.75 to the
Texas
Department of Public Safety (DPS).
(relating to Vehicle Emissions
Inspection Requirements)
] shall collect a fee of $14 and shall remit
$2.50 to the DPS. If the El Paso County Commissioners Court adopts a resolution
that is approved by the commission to participate in the "
Low Income
[
Low-Income
] Repair Assistance Program [
(LIRAP)
],"
the emissions inspection station shall collect a fee of $17 and shall remit
to DPS $5.50 beginning upon the date specified by the commission upon approval
of the resolution.
(DFW)
] program area
beginning May 1, 2002, any emissions inspection station required to conduct
an emissions test in accordance with §114.50(a)(2)(A) or (B)
of
this title
, and in the extended
Dallas/Fort Worth
[
DFW (EDFW)
] program area beginning May 1, 2003, any emissions inspection
station required to conduct an emissions test in accordance with §114.50(a)(3)(A)
or (B) of this title shall collect a fee not to exceed $27. The emissions
inspection station shall remit to the DPS $2.50 for each acceleration simulation
mode [
(ASM-2)
] test and $8.50 for each on-board diagnostics [
(OBD)
] test.
and beginning May 1, 2005, any emissions inspection station in
Chambers, Liberty, and Waller Counties required to conduct an emissions test
in accordance with §114.50(a)(4)(E) or (F) of this title
] shall
collect a fee not to exceed $27. The emissions inspection station shall remit
to the DPS $2.50 for each
acceleration simulation mode
[
ASM-2
] test and $8.50 for each
on-board diagnostics
[
OBD
] test.
Subchapter I. NON-ROAD ENGINES
Subchapter J. OPERATIONAL CONTROLS FOR MOTOR VEHICLES
Chapter 115.
CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS