Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
Subchapter H. LOW EMISSION FUELS
2.
LOW EMISSION DIESEL
30 TAC §114.318
The Texas Commission on Environmental Quality (commission
or TCEQ) proposes an amendment to §114.318.
The amendment will be submitted to the United States Environmental Protection
Agency (EPA) as a revision to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
In April 2000, the commission adopted rules establishing requirements for
low emission diesel (LED), and requiring that only LED be sold for on-road
and off-road use in the Dallas/Fort Worth (DFW) nonattainment counties as
part of that area's ozone attainment demonstration SIP. These new diesel fuel
standards were to go into effect May 1, 2002. In December 2000, the commission
adopted amendments to the LED rules expanding their coverage to the entire
state and made the diesel fuel content limits for sulfur more stringent than
federal diesel fuel regulations for on-road vehicles. The commission submitted,
as part of that SIP revision, a waiver in accordance with 42 United States
Code (USC), §7545(C)(4)(c) for the on-road portion of the rules. The
EPA granted the waiver on November 14, 2001 (66 FR 57197), as part of EPA's
approval of the SIP revision. Subsequent to this adoption, the 77th Legislature,
2001, passed House Bill (HB) 2912, Article 15, which amended the Texas Clean
Air Act (TCAA), §382.039(g) - (i) to restrict the commission from requiring
distribution of LED as described in the revised SIP prior to January 1, 2005,
and to allow the commission to consider, as an alternative method of compliance
with LED standards, fuels to achieve equivalent emission reductions. In September
2001, the commission adopted amendments to the LED rules implementing the
changes required by HB 2912, Article 15, and included new rules allowing the
use of alternative emission reduction plans (AERPs) to demonstrate compliance
with the LED control requirements. At the direction of the EPA and in order
to reduce nitrogen oxide (NO
x
) emissions necessary
for the Houston/Galveston/Brazoria (HGB) area to demonstrate attainment with
the one hour ozone national ambient air quality standards (NAAQS), these amendments
also limited the coverage area of the LED rules from statewide to those counties
previously included in the regional air pollution control strategy for the
HGB nonattainment area. On March 9, 2005, the commission adopted revisions
to the LED rules, extending the initial compliance date for LED from April
1, 2005, to October 1, 2005, and also strengthening registration requirements
and improving the rules' enforceability, and submitted them as a SIP revision
to the EPA on March 23, 2005. This action was in response to an August 2004
petition by the Texas Petroleum Marketers and Convenience Store Association
for rulemaking to extend the compliance date for LED to October 1, 2006, and
to June 1, 2007, for the ultra low sulfur requirement. Subsequently, the EPA
raised concerns with certain provisions of the revised rules that were problematic
in regard to EPA's approval of the rule and SIP revision. Under the LED rules
adopted in March 2005, the AERPs were required to be approved by both the
executive director and the EPA. The EPA had determined that the commission
must submit the AERPs in the form of a SIP revision in order to obtain EPA
approval, requiring public review of each AERP. However, many of the diesel
fuel producers considered their AERPs to be confidential business information.
Furthermore, the commission would also be required to submit a new SIP revision
any time a producer amended its AERP. On April 26, 2006, the commission adopted
revisions to the LED rules to address the EPA's issues with the rules adopted
in March 2005, including the issues raised by EPA regarding its consideration
of AERPs as allowed under §114.318. The April 2006 revisions amended §114.318
to establish a method by which all AERPs could be approved by the executive
director and the EPA without a SIP revision and specified that all previously
approved AERPs would expire December 31, 2006. Producers wishing to use an
AERP for compliance with the LED rules were required to submit an AERP under
the new protocol by no later than November 15, 2006, to be approved before
December 31, 2006. In February 2006, the executive director also approved
an AERP for biodiesel producers allowing them to blend biodiesel with LED
compliant diesel fuel in the 110 central and eastern Texas counties affected
by the LED regulation until December 31, 2006. The AERP for biodiesel producers
was issued to provide biodiesel producers sufficient time to complete the
testing of their biodiesel blended formations that is necessary to be approved
by the executive director in accordance with §114.315 as alternative
diesel formulations for LED. Under the current LED regulations, only those
biodiesel blended formulations that were approved by the executive director
as an alternative diesel formulation for LED in accordance with the testing
provisions specified under §114.315 could be used for compliance with
the LED regulations after the December 31, 2006, expiration date. As of December
8, 2006, the executive director has not yet received testing documentation
sufficient to approve a biodiesel blended alternative diesel formulation for
compliance with the LED regulations.
The commission is proposing in this rulemaking a revision to Chapter 114:
Control of Air Pollution from Motor Vehicles, Subchapter H: Low Emission Fuels,
Division 2: Low Emission Diesel, §114.318. Specifically, the commission
is revising §114.318(c) to extend the December 31, 2006, expiration date
for all AERPs approved by the executive director prior to December 16, 2005.
This proposed revision will extend the expiration date by one year to December
31, 2007, in order to provide biodiesel producers additional time to complete
testing necessary to ensure compliance with the LED regulations under Chapter
114, Subchapter H, Division 2. The commission is not soliciting comments on
other subsections of §114.318, unless otherwise specified in the SECTION
DISCUSSION section of this preamble.
SECTION DISCUSSION
The proposed change to §114.318(c) amends the expiration date of all
AERPs approved by the executive director prior to December 16, 2005, by extending
the expiration date by one year from December 31, 2006, to December 31, 2007,
and applies this new expiration date to all AERPs approved by the executive
director prior to May 17, 2006. The May 17, 2006, date is the effective date
of the LED regulations adopted by the commission on April 26, 2006. This proposed
change will provide biodiesel producers additional time to complete the necessary
testing to ensure compliance with the LED regulations. In addition, the proposed
change will also provide diesel producers additional time to finalize AERPs
as well. The proposed change to §114.318(c) will also remove the exception
that allowed a producer operating under an AERP that was attempting to obtain
verification under the EPA's Environment Technology Verification Program and
EPA's Office of Transportation and Air Quality's Voluntary Diesel Retrofit
Program to continue to operate under their AERP for a limited time beyond
December 31, 2006. The proposed one year extension should provide sufficient
time for producers that had met the exception conditions specified under §114.318(c)(1)
- (4) to complete the EPA verification process.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined
that, for the first five-year period the proposed rule is in effect, no fiscal
implications are anticipated for the agency or other units of state or local
governments as a result of administration or enforcement of the proposed rule.
The proposed rulemaking would amend the LED rules by extending, to December
31, 2007, the expiration date of AERPs approved by the executive director
prior to May 17, 2006.
The proposed rulemaking would amend §114.318 by extending the expiration
date for AERPs approved by the executive director prior to December 16, 2005.
This proposed rule will extend the current expiration date of December 31,
2006 by one year to December 31, 2007 in order to provide biodiesel producers
an additional year to complete testing necessary to ensure compliance with
the LED regulations under Chapter 114, Subchapter H, Division 2. Extending
the expiration date will not have fiscal implications on any producer or supplier
of biodiesel or diesel fuel who may choose to change fuel formulations to
meet LED standards for NO
x
emissions.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed rule is in effect, the public benefit anticipated from the changes
seen in the proposed rule will be support for further development of methods
by which biodiesel fuel producers can continue to provide alternate fuels
to a tight fuel market and ensure that they meet required emission standards.
Public health and environmental safety will be safeguarded by the development
of AERPs that result in equivalent reductions in NO
x
emissions. This proposed action will also provide citizens with economic
flexibility to utilize non petroleum based fuels when it is cost effective.
Extending the expiration date of AERPs is not anticipated to have any fiscal
implications for producers or suppliers of biodiesel, but the proposed extension
should give these producers and suppliers more time to comply with LED regulations.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. The proposed rule, which extends a
deadline, is not anticipated to have a fiscal impact on those producers, but
it will give these entities more time to comply with LED regulations.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking considering the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking does not meet the definition of a "major environmental
rule." A major environmental rule means a rule, the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure, and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The specific purpose
of the proposed amendment to §114.318 is to provide biodiesel producers
additional time to complete the necessary testing to ensure compliance with
the LED regulations. In addition, the proposed change will provide diesel
producers additional time to finalize alternative emission reduction plans
as well. The amendment does not specifically protect human health or the environment.
Therefore, the proposed rulemaking does not constitute a major environmental
rule, and thus is not subject to a formal regulatory analysis.
In addition, the proposed amendment to Chapter 114 is not subject to the
regulatory analysis provisions of Texas Government Code, §2001.0225(b),
because the proposed rulemaking does not meet any of the four applicability
requirements. 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; 2) exceed an express requirement of state law, unless the rule
is specifically required by federal law; 3) exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program; or 4) adopt
a rule solely under the general powers of the agency instead of under a specific
state law.
Specifically, this rulemaking action, which is designed to extend the expiration
date of approved alternative emission reduction plans, does not exceed an
express requirement under state or federal law. Furthermore, there is no contract
or delegation agreement that covers the topic that is the subject of this
action. Finally, this rulemaking action was not developed solely under the
general powers of the agency, but is authorized by specific sections of Texas
Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act),
and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section
of this preamble, including Texas Health and Safety Code, §§382.012,
382.017, 382.019, and 382.202. Therefore, the proposed rulemaking does not
exceed a standard set by federal law, exceed an express requirement of state
law, exceed a requirement of a delegation agreement, nor is adopted solely
under the general powers of the agency.
Based on the foregoing, this rulemaking action is not subject to the regulatory
analysis provisions of Texas Government Code, §2001.0225(b). The commission
invites public comment on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
Under Texas Government Code, §2007.002(5), "taking" means a governmental
action that affects private real property, in whole or in part or temporarily
or permanently, in a manner that requires the governmental entity to compensate
the private real property owner as provided by the Fifth and Fourteenth Amendments
to the United States Constitution or §17 or §19, Article I, Texas
Constitution; or a governmental action that affects an owner's private real
property that is the subject of the governmental action, in whole or in part
or temporarily or permanently, in a manner that restricts or limits the owner's
right to the property that would otherwise exist in the absence of the governmental
action; and is the producing cause of a reduction of at least 25% in the market
value of the affected private real property, determined by comparing the market
value of the property as if the governmental action is not in effect and the
market value of the property determined as if the governmental action is in
effect.
The commission completed a takings impact assessment for the proposed rulemaking
action under Texas Government Code, §2007.043. The specific purpose of
these revisions is to extend the December 31, 2006, expiration date for all
AERPs approved by the executive director before May 17, 2006, by one year
to December 31, 2007, to allow biodiesel producers additional time to complete
the necessary testing to ensure compliance with LED regulations and thus help
bring this area into compliance with the air quality standards established
under federal law as NAAQS for ozone. The proposed amendment will not place
a burden on private, real property in a manner that would require compensation
to private real property owners under the United States Constitution or the
Texas Constitution. The proposal also will not affect private real property
in a manner that restricts or limits an owner's right to the property that
would otherwise exist in the absence of the governmental action. Therefore,
the proposed amendment will not cause a taking under Texas Government Code,
Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined 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 amendment is 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. The
proposed rulemaking will ensure that the amendment complies with 40 Code of
Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality
Standards, and 40 CFR Part 51, Requirements for Preparation, Adoption, and
Submittal of Implementation Plans. This rulemaking action is consistent with
CMP goals and policies, in compliance with 31 TAC §505.22(e).
ANNOUNCEMENT OF HEARINGS
The commission will hold public hearings on this proposal at the following
times and locations: February 15, 2007, 2:00 p.m., Arlington City Hall Council
Chambers, 101 W. Abrams Street, Arlington; February 20, 2007, 2:30 p.m., Council
Chambers, City Hall Annex, First Floor, 900 Bagby Street, Houston; and February
22, 2007, 10:00 a.m., Texas Commission on Environmental Quality, Building
E, Room 201S, 12100 Park 35 Circle, Austin. The hearings will be structured
for the receipt of oral or written comments by interested persons. Registration
will begin 30 minutes prior to the hearings. Individuals may present oral
statements when called upon in order of registration. A time limit may be
established at each hearing to assure that enough time is allowed for every
interested person to speak. There will be no open discussion during the hearings;
however, commission staff members will be available to informally discuss
the proposal 30 minutes before the hearings.
Persons planning to attend the hearings, who have special communication
or other accommodation needs, should contact Jennifer Stifflemire, Air Quality
Division, at (512) 239-0573. Requests should be made as far in advance as
possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, MC 205, Texas Commission
on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087; or faxed
to (512) 239-4808. Electronic comments may be submitted at
http://www5.tceq.state.tx.us/rules/ecomments/
. All comments should
reference Rule Project Number 2007-007-114-EN. The comment period closes March
2, 2007. Copies of the proposed rule can be obtained from the commission's
Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further information, please contact Morris Brown of the Air Quality
Division at (512) 239-1438.
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code. The amendment is also proposed under Texas Health and Safety Code, §382.002,
concerning Policy and Purpose, which establishes the commission's purpose
to safeguard the state's air resources, consistent with the protection of
public health, general welfare, and physical property; §382.011, concerning
General Powers and Duties, which authorizes the commission to control the
quality of the state's air; §382.012, concerning State Air Control Plan,
which authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air; §382.017, concerning Rules,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the Texas Clean Air Act; §382.019, concerning Methods
Used to Control and Reduce Emissions from Land Vehicles, which authorizes
the commission to adopt rules to control and reduce emissions from engines
used to propel land vehicles; and §382.202, concerning Vehicle Emissions
Inspection and Maintenance Program, which authorizes the commission to establish
vehicle fuel content standards after January 1, 2004, as long as distribution
of LED as described in the SIP is not required prior to February 1, 2005.
The proposed amendment implements Texas Water Code, §5.103 and §5.105,
and Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.017,
382.019, and 382.202.
§114.318.Alternative Emission Reduction Plan.
(a) - (b)
(No change.)
(c)
All alternative emission reduction plans approved by the
executive director prior to
May 17, 2006
[
[
[
[
[
(d) - (f)
(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 January 11, 2007.
TRD-200700103
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: February 25, 2007
For further information, please call: (512) 239-6087
Subchapter C. VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS
4.
CONTROL OF VEHICLE REFUELING EMISSIONS (STAGE II) AT MOTOR VEHICLE FUEL DISPENSING FACILITIES
December 16, 2005
], will expire on
December 31, 2007.
[
December 31, 2006,
with the following exception. The executive director may allow a producer
operating under an alternative emission reduction plan approved by the executive
director prior to December 16, 2005, to continue to operate under that plan
for a limited time beyond December 31, 2006, if all the following conditions
are demonstrated to the satisfaction of the executive director:
]
(1)
the producer's alternative emission reduction
plan relied on the use of an alternative diesel formulation that has not been
approved by the executive director under §114.315(c) of this title (relating
to Approved Test Methods);
]
(2)
the producer has submitted an application
to the Air Pollution Control Technologies (APCT) Center, a center under the
EPA's Environmental Technology Verification (ETV) Program, and the EPA's Office
of Transportation and Air Quality's Voluntary Diesel Retrofit Program to pursue
verification of this alternative diesel fuel formulation to demonstrate that
it will achieve at least a 5.78% reduction in NOx emissions when compared
against a base diesel fuel with fuel properties within the ranges as described
for nationwide average fuel in EPA's Verification Protocol for Determination
of Emissions Reductions Obtained by Use of Alternative or Reformulated Liquid
Fuels, Fuel Additives, Fuel Emulsions, and Lubricants for Highway and Nonroad
Use Diesel Engines and Light Duty Gasoline Engines and Vehicles (Revision
No. 03, September 2003);
]
(3)
the producer has a contract with the APCT
Center to perform the verification testing that is signed by both parties
and paid in full by September 1, 2006; and
]
(4)
the emissions testing as specified under
an ETV test plan approved by both the APCT Center and EPA is completed before
December 1, 2006.
]
Chapter 115.
CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS