Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 80. CONTESTED CASE HEARINGS
Subchapter C. HEARING PROCEDURES
The Texas Commission on Environmental Quality (commission) adopts an amendment to §80.108 without changes to the proposed text in the February 23, 2007 issue of the Texas Register (32 TexReg 711) and therefore will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The amendment will provide the commission with the express authority to direct the executive director to participate as a party in contested case hearings regarding certain permit applications. The amendment would add subsection (m) which provides the commission with an option to direct the executive director to participate as a party in the types of hearings listed in subsections (a) and (c). Subsection (a) provides that the executive director shall not participate as a party in contested case hearings regarding permit applications for seven types of applications. Subsection (c) applies to applications not included in subsections (a) or (b) and provides that the executive director shall consider certain criteria in determining whether to participate as a party. This change will afford the commission the opportunity to benefit from the executive director's specialized knowledge by his participation in selected contested case hearings. The types of hearings in subsection (a) were included in the initial rulemaking because they were identified as less complex or not having unique conditions. However, experience has shown that technical and policy issues in these types of cases may warrant participation by the executive director as a party. It will also ensure that the administrative record is complete.
Prior to September 1, 2001, Texas Water Code, §5.228 required the executive director of the commission to participate as a party in all contested case hearings. As a result of public testimony received during its comprehensive review of the commission, the Sunset Advisory Commission recommended that the statute be changed to allow, rather than require, the executive director to participate in contested case permit hearings. The Sunset Advisory Commission also recommended that: 1) the role of the executive director be more clearly defined; 2) that the executive director be expressly prohibited from rehabilitating non-agency witnesses in permit hearings; and (3) that the commission adopt rules specifying the factors the executive director must take into account when considering whether to be a party in a permit hearing.
This recommendation was adopted in House Bill (HB) 2912, (77th Legislature, 2001) the Sunset Bill for the commission. Under HB 2912, Texas Water Code, §5.228 was amended to provide that the executive director is required to be a party in a contested case hearing only in a matter where the executive director bears the burden of proof (e.g., an enforcement proceeding). For permit hearings, the executive director may be a party only for the purpose of providing information to complete the administrative record. The commission is required to specify, by rule, the factors the executive director must consider in determining, on a case-by-case basis, whether to participate in a hearing as a party. Factors the commission must consider in developing these rules include: 1) the technical, legal, and financial capacities of the parties; 2) whether the parties have previously participated in a hearing; 3) the complexity of the issues; and 4) the available resources of commission staff. The executive director is expressly prohibited from rehabilitating the testimony of non-agency witnesses or from assisting an applicant in meeting its burden of proof unless that applicant fits a category of permit applicants that under commission rule are eligible for such assistance. The amendments to Texas Water Code, §5.228 took effect September 1, 2001, and apply only to hearings in which the executive director is named as a party on or after that date. Section 80.108 was one of the new rules adopted by the commission, effective November 15, 2001, implementing the revisions to Texas Water Code, §5.228.
SECTION DISCUSSION
Section 80.108 is amended by adding subsection (m) which provides an option for the commission to direct the executive director to participate as a party in the types of hearings listed in subsections (a) and (c).
In addition, cross-references in subsection (a)(4) and (5) are updated.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. Furthermore, it does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(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, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Because the specific intent of the adopted rulemaking is procedural in nature and establishes procedures for the executive director's participation as a party in contested case hearings on permitting matters, the rulemaking does not meet the definition of a major environmental rule.
In addition, even if the adopted rule is a major environmental rule, a draft regulatory impact assessment is not required because the rule does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, or adopts a rule solely under the general powers of the agency. This amended rule does not exceed a standard set by federal law. This amended rule does not exceed an express requirement of state law because it is authorized by Texas Government Code, §2001.004, which requires state agencies to adopt rules of practice; and Texas Water Code, §5.228, as well as the other statutory authorities cited in the STATUTORY AUTHORITY section of this preamble. This amended rule does not 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 because the rule is consistent with, and does not exceed, federal requirements, and is in accordance with Texas Water Code, §5.228, which expressly requires the commission to adopt rules necessary to specify the factors the executive director must consider in determining whether to participate as a party in a contested case permit hearing. This amended rule does not adopt a rule solely under the general powers of the agency, but rather under specific state law. Finally, this rulemaking is not adopted on an emergency basis to protect the environment or to reduce risks to human health from environmental exposure.
No comments were received regarding the Draft Regulatory Impact Analysis Determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rule and performed an analysis of whether Texas Government Code, Chapter 2007 is applicable. The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to the adopted rule. Nevertheless, the commission further evaluated the adopted rule as to whether the rule constitutes a taking under Texas Government Code, Chapter 2007. The specific primary purpose of the adopted rule is to revise a commission rule to establish procedures for executive director party participation in certain contested case hearings as required by Texas Water Code, §5.228. The amended rule relates to when the executive director will participate as a party as directed to do so by the commission. The adopted rule will substantially advance this purpose by providing the commission the express authority to direct the executive director to participate as a party. Promulgation and enforcement of this rule will not affect private real property which is the subject of the rules because the adopted language relates to procedural matters relating to executive director party status rather than any substantive requirements.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rule and found that it is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rule is not subject to the Texas Coastal Management Program. No comments were received regarding the consistency of the rule with the CMP.
PUBLIC COMMENT
No comments were received.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.013, concerning General Jurisdiction of the commission, which establishes the commission's general authority to carry out its jurisdiction; §5.102, concerning the commission's General Powers, including calling and holding hearings and issuing orders; §5.103, concerning Rules, which requires the commission to adopt rules when amending any agency statement of general applicability that describes the procedures or practice requirements of an agency; 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; and §5.228, which establishes the executive director's authority to participate in contested case hearings. Additionally, the amendment is adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules, Orders and Decisions, which requires state agencies to adopt rules of practice and procedure.
The amendment implements Texas Water Code, §5.228.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702755
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: February 23, 2007
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) adopts amendments to 30 TAC §114.1 and §114.270, and the repeal of §§114.4, 114.201, 114.202, and 114.618. Section 114.270 is adopted with changes to the text as published in the March 9, 2007, issue of the Texas Register (32 TexReg 1197). Sections 114.1, 114.4, 114.201, 114.202 and 114.618 are adopted without changes to the proposal and, therefore, will not be republished. The adopted revisions 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 ADOPTED RULES
This rulemaking aligns certain transportation-air quality rules and definitions with state and federal statutes by repealing the following rules: the Mobile Emission Reduction Credit (MERC) program and associated fund and definitions, the Light-Duty Motor Vehicle Purchase or Lease Incentive Program Vehicle Emissions Information Brochure, and the Transportation Control Measures (TCM) Substitution Process. These provisions were either repealed by state statute or superseded by federal statute.
The 1990 Federal Clean Air Act (FCAA) Amendments, §182(c)(4), required states to either adopt the Federal Clean Fuel Fleet (FCFF) program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions in ozone-producing and toxic air emissions equal to those achieved under the FCFF program. The FCFF program requires federal, state, and local governments, and private fleets to purchase low-emission vehicles (LEVs) in areas classified by the EPA as being in serious, severe, or extreme nonattainment of the national ambient air quality standards (NAAQS) for ozone and carbon monoxide (CO).
The State of Texas, in a committal SIP revision submitted to the EPA on November 15, 1992, opted out of the FCFF program in order to implement a fleet emission control program designed by the state. In 1994 the commission submitted the state's opt-out program in a SIP revision to the EPA and adopted rules to implement the Texas Alternative Fuel Fleet (TAFF) program as a substitute to the FCFF program in the areas of Texas classified by EPA as being in serious, severe, or extreme nonattainment of the NAAQS for ozone or CO.
In 1995 the 74th Texas Legislature modified the state's alternative fuels program (Texas Health and Safety Code, Chapter 382, Subchapter F) through the passage of Senate Bill 200 (SB 200). The legislature facilitated fuel neutrality through the incorporation of the federal low emission vehicle (LEV) standards regardless of fuel type for certain affected fleets. The legislation required the commission to adopt regulations to implement the revised program. The commission adopted regulations that established the Texas Clean Fleet (TCF) program. In 1997 the 75th Texas Legislature further modified the state's alternative fuels program through the passage of Senate Bill 681 (SB 681). SB 681 removed the commission's authority to require the program in moderate nonattainment areas, limited the commission's authority to the serious and above ozone nonattainment areas, and modified the state's alternative fuels program. The basic requirement of LEV purchases was retained, but the implementation schedule was modified. SB 681 required the commission to adopt regulations to implement the program as modified by the legislation.
MERCs were part of the commission's TCF economic incentive program to help reduce vehicle emissions of volatile organic compounds (VOC) and nitrogen oxides (NOx). The program was intended to provide additional flexibility for business, develop innovative strategies to control mobile source emissions, and reduce the cost of compliance with the FCAA. MERCs were enforceable, permanent, and quantifiable emission reductions generated by a mobile source through the TCF program. Emission reductions that remain after an entity satisfied their requirements could be banked as credits.
In 2005 the 79th Texas Legislature passed Senate Bill 1032 (SB 1032), which repealed TCF in its entirety. This action also repealed the MERC program, MERC fund, and corresponding definitions. On April 26, 2006, the commission adopted the repeal of the TCF program as directed by SB 1032. This rulemaking repeals the remaining program elements, including the MERC program.
In 2001 the 77th Texas Legislature (2001) passed Senate Bill 5 (SB 5) establishing the Texas Emission Reduction Plan (TERP), which provided financial incentives for reducing emissions of on-road and non-road motor vehicles and equipment, grants for the development of new emission control technology, new building energy efficiency standards, and research and development programs. SB 5 programs were estimated to achieve reductions in excess of the reductions expected from the rules that were being repealed. In accordance with SB 5, the state implementation plan (SIP) was revised to replace certain rules with TERP. The adopted TERP rules established a state-wide incentive program for the purchase of new on-road diesel vehicles and light-duty motor vehicles that met emission standards more stringent than those required by federal requirements.
As a result of these new rules, a new §114.618 was adopted in August 2001, which required vehicle manufacturers to publish a brochure of eligible incentive vehicles by September 1 of each year. This brochure is also required to be submitted to the executive director, or his designee, by the same date.
House Bill 1365 (HB 1365) by the 78th Legislature (2003) repealed the requirement for vehicle manufacturers to publish and distribute a brochure annually. This adopted rulemaking repeals the rule implementing this requirement.
The federal surface transportation reauthorization act, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), established a transportation control measure substitution process, eliminating the requirement for an EPA-approved state process as found in 30 TAC §114.270(f), relating to the TCM Substitution Process. The federal SAFETEA-LU transportation control measure substitution process replaces and supersedes the state process. This adoption repeals the state section because it is no longer necessary. Because the federal process is largely based on the Texas process, no change is expected to occur in the state as a result of this revision.
SECTION BY SECTION DISCUSSION
The adoption amends, without changes from proposal, §114.1 in Subchapter A; and repeals §114.4 in Subchapter A; §114.201 and §114.202 in Subchapter F; and §114.618 in Subchapter K.
Subchapter A. Definitions
§114.1(13) and §114.4
The adoption amends §114.1 by repealing the definition of MERC in §114.1(13) and repeals the MERC definitions found in §114.4. These sections were elements of the TCF program, which was repealed by the commission on April 26, 2006, in accordance with SB 1032 following a repeal by the legislature in 2005, SB 1032. The legislative repeal made these program definitions no longer necessary. Current definitions in §114.1(14) - (18) will be renumbered (13) - (17).
Subchapter F. Vehicle Retirement and Mobile Emission Reduction Credits
Division 1. Mobile Emission Reduction Credit Program
§114.201 and §114.202
The adoption repeals the MERC program found in §114.201 and the MERC fund found in §114.202. Both of these sections were program elements of the TCF program, which was repealed by the commission on April 26, 2006, following enactment of SB 1032 in 2005, which repealed the TCF program. The legislative repeal made this program no longer necessary.
Subchapter G. Transportation Planning
§114.270
The adoption amends §114.270 by deleting §114.270(f), the TCM substitution process. The re-authorization of the SAFETEA-LU eliminated the requirement for an EPA-approved state process for approving TCM substitutions. The provisions of the SAFETEA-LU establish that if there is a conflict between an approved state process and the approval process contained in the SAFETEA-LU, the state must follow the requirements found in the SAFETEA-LU. This adoption also strikes language in subsection (a). Subsequent to the close of the public comment period, the commission determined that language in subsection (a), referring to the now-deleted TCM substitution process in subsection (f), should be stricken in order to provide consistency in the rule and avoid confusion.
Subchapter K. Mobile Source Incentive Programs
Division 2. Light-Duty Motor Vehicle Purchase or Lease Incentive Program
§114.618
The adopted rulemaking repeals the requirement of §114.618 that requires automobile manufacturers to publish a brochure annually and submit it to the commission by September 1st of every year. The adoption repeals this requirement at the directive of HB 1365, 78th Legislature (2003).
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined the rules do not meet the definition of a "major environmental rule." Under Texas Government Code, §2001.0225, "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. Furthermore, it does not meet any of the four applicability requirements listed in §2001.0225(a). Section 2001.0225 applies only to a major environmental rule which 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds 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) adopts a rule solely under the general powers of the agency instead of under a specific state law. The adopted rulemaking removes various outdated requirements and aligns state rules with federal and state statutes as described in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES and SECTION BY SECTION DISCUSSION sections above. Because the adopted rules are not specifically intended to protect the environment or reduce risks to human health from environmental exposure but to remove outdated rules making state rules consistent with state and federal statutes, this adopted rulemaking is not a major environmental rule and does not meet any of the four applicability requirements. Because these adopted rules remove requirements, they do not result in any new requirements and should not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs. The commission solicited public comment regarding this draft regulatory impact analysis determination. No comments were received on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these rules and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates Texas Government Code, Chapter 2007 does not apply to these adopted amendments because this action discontinues requirements as described in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES and SECTION BY SECTION DISCUSSION sections of this preamble. Also, the adopted rules remove various outdated requirements and align state rules with federal and state statutes. Promulgation and enforcement of these amendments will be neither a statutory or constitutional taking of private real property. Specifically, the adopted amendments do not affect a landowner's rights in private real property, because this rulemaking action does not burden, restrict, nor limit the owner's rights to property or reduce its value by 25% or more beyond which would otherwise exist in the absence of the adopted regulations.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), concerning rules subject to the Texas Coastal Management Program (CMP), and , therefore, required that goals and policies of the CMP be considered during the rulemaking process. The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is editorial and procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies. The commission invited public comment regarding the consistency of the rules with the CMP. No comments were received regarding the consistency of the rules with the CMP.
PUBLIC COMMENT
The proposal was published in the March 9, 2007, issue of the Texas Register (32 TexReg 1197). The commission held a public hearing on April 3, 2007, in Austin. The comment period closed on April 9, 2007. The commission received comments from only the Environmental Protection Agency (EPA).
RESPONSE TO COMMENTS
EPA supported the commission's proposed repeals in response to implementation of federal and state legislation. EPA commented that statutory language now in the Clean Air Act as a result of SAFETEA-LU rendered the commission's TCM rule obsolete and therefore, supported the repeal of 30 TAC §114.270(f). EPA commented that they did not oppose the repeal of the MERCs program or the requirement that automobile manufacturers publish annually a brochure listing vehicles' emissions standards since both actions were implementation of state legislation.
The commission did not make any changes to the rule in response to this comment. The rulemaking aligns certain transportation-air quality requirements with federal and state legislation and statutes. The commission appreciates EPA's support in this action.
Subchapter A. DEFINITIONS
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The amendment is adopted under THSC, §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; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.
The adopted amendment implements THSC, §§382.002, 382.011, 382.012, and 382.019.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702749
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: March 9, 2007
For further information, please call: (512) 239-2461
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.
The adopted repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702750
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: March 9, 2007
For further information, please call: (512) 239-2461
Division 1. MOBILE EMISSION REDUCTION CREDITS
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeals are adopted under THSC, §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; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.
The adopted repeals implement THSC, §§382.002, 382.011, 382.012, and 382.019.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702751
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: March 9, 2007
For further information, please call: (512) 239-2461
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §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, which provides for general powers and duties under the TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of national ambient air quality standards. The amendment is also adopted under the statutory requirement for transportation conformity found in §176(c) of the 1990 Federal Clean Air Act Amendments. In addition, 40 Code of Federal Regulations (CFR) Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whether transportation plans, programs, and projects in nonattainment and maintenance areas conform with the state implementation plan.
The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, and 382.019.
§114.270.Transportation Control Measures.
(a) Purpose. The purpose of this section is to implement requirements relating to transportation control measures (TCMs). These requirements address the roles and responsibilities of the metropolitan planning organizations (MPOs) and implementing transportation agencies in nonattainment and maintenance areas.
(b) Applicability. This section applies to MPOs and agencies that implement TCMs in designated nonattainment or maintenance areas. The affected nonattainment and maintenance areas are listed in §101.1 of this title (relating to Definitions).
(c) General. All TCMs shall be developed, coordinated, funded, approved, implemented, tracked, evaluated, and monitored in accordance with §114.260 of this title (relating to Transportation Conformity); Title 40 Code of Federal Regulations, Part 93 (Conformity to State or Federal Implementation Plans of Transportation Plans, Programs and Projects Developed, Funded or Approved Under Title 23 USC or the Federal Transit Laws, as amended); the Federal Clean Air Act, 42 United States Code, 1970, as amended; and the EPA TCM SIP approval criteria listed in the EPA guidance document "Transportation Control Measures: State Implementation Plan Guidance," EPA 450/2-89-020, September 1990.
(d) MPO responsibilities. The MPO shall:
(1) ensure that all responsibilities required by subsection (c) of this section are fulfilled;
(2) maintain, on a rolling basis, complete and accurate records of all TCMs for at least five years. TCM records shall be sufficient to accurately reflect the effectiveness of the TCM program and shall include the following:
(A) the annual status of the implementation of the TCM, including quantification of progress;
(B) an annual estimate of the funding and other resources expended toward implementing the TCM, and a comparison of the actual and projected expenditures;
(C) an annual estimate of the emission reductions achieved from implementation of the TCM, and a comparison of the actual and projected reductions; and
(D) any modifications to the TCM since the last annual report and/or projected modifications for the next reporting period to compensate for a shortfall in the implementation of the TCM or in the associated emissions reductions; and
(3) make such records available to representatives of the commission, the EPA, the Federal Highway Administration, the Federal Transit Administration, the Texas Department of Transportation, local air pollution agencies having jurisdiction in the area, and the public, upon request;
(e) Implementing agency responsibilities. The implementing agency shall have the responsibility to:
(1) ensure that all responsibilities required by subsection (c) of this section are fulfilled; and
(2) provide to the MPO upon request:
(A) a complete description of the TCMs and their associated estimated emission reduction benefits;
(B) evidence that the TCMs were properly adopted by a jurisdiction with legal authority to commit to and execute the program;
(C) evidence that funding has been, or will be, obligated to implement the TCMs; and
(D) a description of the monitoring program to assess the TCM effectiveness.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702753
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: March 9, 2007
For further information, please call: (512) 239-2461
Division 2. LIGHT-DUTY MOTOR VEHICLE PURCHASE OR LEASE INCENTIVE PROGRAM
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code (TWC), §5.102, concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is adopted under THSC, §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; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.
The adopted repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702754
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: March 9, 2007
For further information, please call: (512) 239-2461
The Texas Commission on Environmental Quality (commission) adopts an amendment to §114.260 and corresponding revisions to the Transportation Conformity State Implementation Plan (SIP). Section 114.260 is adopted with changes to the proposed text as published in the February 9, 2007, issue of the Texas Register (32 TexReg 499).
The adopted revisions will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the SIP.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The Federal Clean Air Act (FCAA) Amendments of 1990 as codified in 42 United States Code (USC), §§7401 et seq . required each state to submit a revision to its SIP by November 25, 1994, establishing enforceable criteria and procedures for making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects funded by the Federal Highway Administration (FHWA) or the Federal Transit Administration (FTA). Final rules regarding conformity requirements were published by EPA on November 24, 1993. The Texas SIP revision that incorporated conformity requirements was adopted October 19, 1994, and approved by EPA November 8, 1995. EPA has amended the federal transportation conformity rule eight times: August 7, 1995; November 14, 1995; August 15, 1997; April 10, 2000; August 6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The commission previously incorporated the federal changes up to, and including, the 2004 amendments. The commission is now updating its SIP and rule to incorporate the May 6, 2005, and March 10, 2006, federal amendments. In addition to the 2005 and 2006 federal amendments, changes to the transportation conformity federal rule were enacted with passage of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which was signed into law August 10, 2005. Furthermore, EPA issued guidance in May 1999, that a state should include in its SIP when a regionally significant, non-federal project is considered adopted or approved by a non-federal entity. The addition of these changes to the existing state rules would align the state rule with the current federal requirements and would address when a non-federal, regionally significant project is considered adopted or approved by a non-federal entity. Lastly, this adopted rulemaking makes administrative and grammatical changes and corrections to the existing rule language.
Transportation conformity is required under FCAA, §176(c) to ensure that federally supported highway and transit project activities are consistent with the purpose of the state's SIP. Conformity applies to areas designated nonattainment and those redesignated to attainment after 1990 with a maintenance plan developed under the FCAA. Conformity to the purpose of the SIP means that transportation activities would not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant National Ambient Air Quality Standards (NAAQS). EPA's transportation conformity rule establishes the criteria and procedures for determining whether transportation activities conform to the SIP.
EPA amended the transportation conformity rule on May 6, 2005. The Transportation Conformity Rule Amendments for the New PM 2.5 NAAQS: PM2.5 Precursors (70 FR 24280) specifies the transportation-related PM 2.5 precursors and when they apply in transportation conformity determinations in PM 2.5 (particulate matter) nonattainment and maintenance areas. The adoption would incorporate PM2.5 precursors in the state rule and make a technical correction to a United States Department of Transportation (U.S. DOT) planning regulation cross-reference. EPA's 2005 revisions were codified in 40 Code of Federal Regulations (CFR) Part 93. Sections revised were §§93.102, 93.105, and 93.119.
EPA also amended the transportation conformity rule on March 10, 2006: the PM 2.5 and PM 10 Hot-Spot Analysis in Project Level Transportation Conformity Determinations for the New PM2.5 and Existing PM 10 National Ambient Air Quality Standards Final Rule (71 FR 12468). The adoption would delete the current quantitative PM 10 and PM 2.5 hot-spot analysis requirement from the state's conformity consultation requirements. The federal amendments were codified in 40 CFR Part 93. Sections revised were §§93.101, 93.105, 93.109, 93.116, 93.123, 93.125, 93.126, and 93.127.
The transportation conformity provisions in the SAFETEA-LU streamlined the requirements for state conformity SIPs. Prior to enactment of SAFETEA-LU, states were required to address all of the federal conformity rule's provisions in their conformity SIPs. Most of the sections of the federal rule were required to be copied verbatim from the federal rule into a state's SIP, as previously required under 40 CFR §51.390(d). Now, under SAFETEA-LU, states are required to address and tailor only the following three sections of the conformity rule in their conformity SIPs: 1.) 40 CFR §93.105, which addresses consultation procedures; 2.) 40 CFR §93.122(a)(4)(ii), which requires that written commitments to control measures that are not included in a Metropolitan Planning Organization's transportation plans must be obtained prior to a conformity determination and that such commitments must be fulfilled; and 3.) 40 CFR §93.125(c), which requires that written commitments to mitigation measures must be obtained prior to a project-level conformity determination and that project sponsors must comply with such commitments.
In May 1999, EPA issued guidance titled Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision addressing which projects could move forward during a conformity lapse. EPA recommended that states decide through the interagency consultation process when a regionally significant, non-federal project is considered adopted or approved by a non-federal entity that routinely receives funds from the FHWA or FTA. The interagency consultation group for Texas, the Technical Work Group (TWG), has agreed on language that is included in this adopted rulemaking. The commission adopts administrative and grammatical changes and corrections to the existing rule language in order to be consistent with current agency style and format. The commission also adopts the renumbering of certain parts of §114.260 to make adjustments for the adopted deletions and additions throughout the rule.
SECTION BY SECTION DISCUSSION
§114.260. Transportation Conformity.
The adopted change to §114.260(a) modifies the phrase in the requirements and replaces it with certain requirements . The last sentence in this subsection, It includes policy, criteria, and procedures to demonstrate and assure conformity of transportation planning activities with the state implementation plan (SIP) is replaced with, This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used to demonstrate and assure conformity of transportation planning activities to the state implementation plan (SIP) to more clearly describe the transportation conformity streamlining provisions in SAFETEA-LU.
Additionally, §114.260(a) is adopted with changes to the proposed text. The statutory reference for the implementation of conformity in section §114.260(a) has been changed from §176(c) to §176(c)(4)(e) to more specifically reflect the location in the FCAA.
The adopted change to §114.260(b) adds the term criteria in the first sentence to change the phrase transportation-related pollutants to transportation-related criteria pollutants. This change clarifies that the applicable pollutants are criteria pollutants. The second sentence adds transportation-related criteria to form the phrase transportation-related criteria pollutants . The word include is replaced with are and the precursor pollutants are listed in a separate sentence, which is then amended by adding PM 2.5 as a precursor and referring to 40 CFR §93.102. The addition of PM 2.5 to the sentence reflects the substantive change in EPA's May 6, 2005, final rule, the Transportation Conformity Rule Amendments for the New PM 2.5 National Ambient Air Quality Standard: PM 2.5 Precursors (70 FR 24280). The purpose of referring to 40 CFR §93.102 is to indicate the applicable precursors to be analyzed depending on the characteristics of the nonattainment area. Finally, the last sentence is deleted because its reference to nonattainment area boundaries is not needed in the rule language.
The adopted change to §114.260(c) deletes the reference to 40 CFR Part 93, Subpart A, (62 FR 43780), and adds the replacement reference 40 CFR §93.122(a)(4)(ii) and 40 CFR §93.125(c). The SAFETEA-LU amendments at 42 USC, §7506(c)(4)(E) directs that only these two sections plus CFR §93.105 need to be in the state conformity rule. The addition of these three sections streamlines the requirements for state conformity SIPs.
The adopted change revises §114.260(d)(2)(A)(i) by deleting the rule language Air Quality Planning and Implementation Division and replacing it with executive director . The adoption revises §114.260(d)(2)(A)(ii) by deleting the word involvement and replacing it with participation and changes the 23 CFR reference §450.316(b)(1) to Part 450 . The adoption revises §114.260(d)(2)(A)(iii) by deleting by the Metropolitan Planning Rule and changing the 23 CFR reference §450.316(b)(1) to Part 450 . The adoption revises §114.260(d)(2)(A)(v) by deleting the word involvement and replacing it with participation , and deleting §114.260(d)(2)(A)(vii). The adoption revises §114.260(d)(2)(B)(v) by correcting the reference to 40 CFR §93.109(g)(2)(iii) with a reference to 40 CFR §93.109(l)(2)(iii). The adoption revises §114.260(d)(3)(A) by deleting the word involvement and replacing it with participation . The adoption revises §114.260(d)(3)(C) by deleting the words identified as the Technical Working Group for Mobile Emissions and deleting the last sentence, The function of this working group may be delegated to an existing group with similar composition and purpose . The adoption revises §114.260(d)(5) by deleting the word involvement and replacing it with participation and renumbering the CFR reference for the fee schedule for public inspection and copying. These adopted revisions align the state rule with the federal rule; allow the executive director to delegate authority to staff without explicitly naming the designee; provide flexibility to the Technical Work Group; and bring existing rule language into agreement with Texas Register requirements, agency format guidelines, and guidance provided in the Texas Legislative Council Drafting Manual, August 2006.
The adopted change to §114.260(e) addresses when a regionally significant, non-federal project is considered adopted or approved by a non-federal agency. This section was added to clarify the approval and adoption process of a non-federal, regionally significant project. In the event of a transportation conformity lapse, the provision may allow certain project phases to continue.
The adopted change to §114.260(f) deletes the words begins on and replaces them with for transportation conformity determinations that begin the interagency consultation process after. The purpose of this change is to make clear that compliance with this rule revision applies at the beginning of the interagency consultation process.
The adopted revision makes administrative and grammatical changes and corrections to the existing rule language in order to be consistent with current agency style and format guidelines. The adoption also renumbers certain parts of §114.260 to make adjustments for the adopted deletions and additions throughout the rule.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking considering the regulatory impact analysis requirements of the Texas Government Code, §2001.0225, and determined that the adopted rulemaking meets the definition of a major environmental rule as defined in that statute. 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 adopted rulemaking meets the definition of a major environmental rule because the transportation conformity requirements are specifically intended to protect the environment and/or reduce risks to human health, and may have material affects on 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. Federal transportation conformity requirements subject all nonattainment and maintenance areas to demonstrate conformity with specific emissions budgets, or be subject to loss of highway or other transportation funding. The adopted change to §114.260 will incorporate recent federal transportation conformity revisions into the state's SIP, including those from the surface transportation reauthorization act of 2005, SAFETEA-LU. Transportation conformity is an FCAA requirement ensuring that federally supported highway and transit projects conform to each state's SIP. Additionally, the adopted change to §114.260 will reflect existing language in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance.
The adopted rulemaking does not, however, meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §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 adopted rulemaking implements requirements of the FCAA and SAFETEA-LU. Under 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcement and enforceability in accordance with the EPA's criteria and procedures for consultation, enforcement, and enforceability.
The requirement to provide a fiscal analysis of adopted 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 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 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 adopted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.
The FCAA does not always require specific programs, methods, or reductions in order to meet the goals of the FCAA; thus, states must develop programs and strategies to help ensure that those goals are met. However, in this instance, the FCAA is clear in requiring that states comply with EPA's criteria and procedures for consultation, enforcement, and enforceability. EPA's transportation conformity rule and SAFETEA-LU provide specific requirements and limited flexibility that must be met by states. Because of the ongoing need to address the requirements of 42 USC, §§7401, et seq ., the commission routinely proposes and adopts SIP rules. As discussed elsewhere in this preamble, states are required to incorporate requirements for transportation conformity in compliance with EPA's transportation conformity rule and SAFETEA-LU. 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 (LBB) in its fiscal notes. Since 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 SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the adopted rule may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are required by federal law.
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. 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 . Central Power & Light Co. v. Sharp , 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue , 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co. , 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ ); Cf. Humble Oil & Refining Co. v. Calvert , 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co. , 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor , 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied ); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div. , 563 S.W.2d 916 (Tex. 1978).
The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of substantial compliance . The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225.
The specific intent of the adopted rulemaking is to incorporate recent federal transportation conformity revisions into the state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirement of a delegation agreement. 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 (THSC), Chapter 382 (also known as the Texas Clean Air Act (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.012, 382.017, and 382.208. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because although the adopted rulemaking meets the definition of a major environmental rule , it does not meet any of the four applicability requirements.
The commission solicited comments on the Regulatory Impact Analysis Determination during the public comment period, but did not receive any comments during the public comment period.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific purpose of the adopted rulemaking is to incorporate recent federal transportation conformity revisions into the state's SIP, including those from SAFETEA-LU, in addition to reflecting already existing changes in the federal transportation conformity rule and other federal transportation conformity-related rules and guidance, as discussed elsewhere in this preamble. Under FCAA, 42 USC, §7506, each SIP must contain criteria and procedures for consultation, and enforcement and enforceability in accordance with the EPA's criteria and procedures for consultation, enforcement and enforceability.
The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, as explained elsewhere in this preamble, which is exempt under Texas Government Code, §2007.003(b)(4). For this reason, Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action 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 §281.45(a)(3) and 31 TAC §505.11(b)(2), concerning Actions and Rules Subject to the Coastal Management Program, 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 rules of the Coastal Coordination Council, and determined that the 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)). This rulemaking action complies with 40 CFR Part 51, concerning Requirements for Preparation, Adoption, and Submittal of Implementation Plans, and Title 40 generally. Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.
The commission solicited comment on the consistency of the adopted rulemaking with the CMP during the public comment period, but received no comments on this issue.
PUBLIC COMMENT
The public hearing for this rulemaking was held on March 5, 2007, 10:00 a.m., Texas Commission on Environmental Quality, Building B, Room 201A, 12100 Park 35 Circle, Austin.
The EPA submitted written comment in general support of the rule with suggested changes to the proposal.
RESPONSE TO COMMENTS
Statutory Reference
The EPA commented that the appropriate statutory reference for the implementation of conformity in §114.260(a) is §176(c)(4)(e) of the FCAA. The EPA also commented that the new language to "help demonstrate conformity" is not appropriate and recommended removing the word "help."
The commission appreciates the comment and has included the more specific reference to §176(c)(4)(e), instead of the more broad reference to §176(c) of the FCAA. The commission also agrees that the word "help" is not necessary and has removed it.
Applicability Section
The EPA commented that §114.260(b) is not necessary and should be deleted.
The commission agrees that the section is not necessary, but has decided to leave the section in the rule as additional information to help the public understand the conformity process.
CFR Incorporation
The EPA commented that the approach taken in §114.260(c) to incorporate the federal provisions found at 40 CFR §93.102(a)(4)(ii) and §93.125(c) is adequate, but commented that added clarity can be provided by customizing these provisions.
The commission agrees and will work with interagency consultation partners to develop customized language to include during a future SIP and rule revision.
STATUTORY AUTHORITY
The amendment is adopted under TWC, §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and §5.105, concerning General Policy; and under THSC, TCAA, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA; §382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state's air; and §382.208, which authorizes the commission to work with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment of NAAQS. The rule is also adopted under the statutory requirement for transportation conformity found in §176(c) of the 1990 FCAA Amendments, 40 CFR Part 51, Subpart T and Part 93, Subpart A established criteria and procedures for determining whether transportation plans, programs, and projects in nonattainment and maintenance areas conform with the SIP.
The adopted revisions implement Texas Water Code, §5.103 and §5.103, and Texas Health and Safety Code, §§382.011, 382.012, and 382.208.
§114.260.Transportation Conformity.
(a) Purpose. The purpose of this section is to implement certain requirements set forth in 40 Code of Federal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded, or Approved Under Title 23 United States Code (USC) or the Federal Transit Laws), which are the regulations developed by the United States Environmental Protection Agency (EPA) under the Federal Clean Air Act Amendments of 1990, §176(c)(4)(e). This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used to demonstrate and assure conformity of transportation planning activities with the state implementation plan (SIP).
(b) Applicability. This section applies to transportation-related criteria pollutants for which an area is designated nonattainment or is subject to a maintenance plan. The transportation-related criteria pollutants are ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic diameter of ten micrometers (PM 10 ) and smaller, and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM 2.5 ). This section also applies to the precursors of ozone, nitrogen dioxide, PM 10 , and PM2.5 as required in 40 CFR §93.102.
(c) CFR incorporation. The written commitment requirements as specified in 40 CFR §93.122(a)(4)(ii) and §93.125(c) are adopted by reference.
(d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures must be undertaken in nonattainment and maintenance areas before making conformity determinations and before adopting applicable SIP revisions.
(1) General factors.
(A) For the purposes of this subsection, concerning consultation, the affected agencies include:
(i) EPA;
(ii) Federal Highway Administration (FHWA);
(iii) Federal Transit Administration (FTA);
(iv) Texas Department of Transportation (TxDOT);
(v) metropolitan planning organizations (MPOs) in nonattainment or maintenance areas;
(vi) local publicly owned transit services in nonattainment or maintenance areas (the designated recipient of FTA §5307 funds);
(vii) Texas Commission on Environmental Quality (commission);
(viii) local air quality agencies in nonattainment or maintenance areas (recipients of 42 USC, §7405 funds).
(B) All correspondence with the affected agencies in subparagraph (A) of this paragraph must be addressed to the following designated points of contact:
(i) MPO: executive director or designee;
(ii) commission: executive director or designee;
(iii) TxDOT: director of Transportation Planning and Programming or designee;
(iv) TxDOT: director of Environmental Affairs Division or designee;
(v) FHWA: administrator of Texas Division or designee;
(vi) FTA: director of Office of Program Development or designee - FTA Region 6;
(vii) EPA: regional administrator or designee - EPA Region 6;
(viii) TxDOT District: district engineer or designee;
(ix) local publicly owned transit services (the designated recipient of FTA §5307 funds): general manager or designee;
(x) local air quality agencies (recipients of 42 USC, §7405 funds): director or designee; and
(xi) commission regions in nonattainment or maintenance areas: regional director or designee.
(2) Roles and responsibilities of affected agencies.
(A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (1)(A) of this subsection in the development of Metropolitan Transportation Plans (MTPs), Transportation Improvement Programs (TIPs), projects, technical analyses, travel demand or other modeling, and data collection. Specifically, the MPOs shall:
(i) allow the commission's executive director or a designated representative, to be a voting member of technical committees on surface transportation and air quality in each nonattainment and maintenance area in order to consult directly with the particular committee during the development of the transportation plans, programs, and projects;
(ii) send information on time and location, an agenda, and supporting materials (including preliminary versions of MTPs and TIPs) for all regularly scheduled meetings on surface transportation or air quality to each of the contacts specified in paragraph (1)(B) of this subsection. This information must be provided in accordance with the locally adopted public participation process as required in 23 CFR Part 450;
(iii) after preparation of final draft versions of MTPs and TIPs, and before adoption and approval by the affected governing body, ensure that the contacts specified in paragraph (1)(B) of this subsection receive a copy, and that they are included in the local area's public participation process as required in 23 CFR Part 450. Upon approval of MTPs and TIPs, MPOs shall distribute final approved copies of the documents to the contacts specified in paragraph (1)(B) of this subsection;
(iv) for the purposes of regional emissions analysis, initiate a consultation process with the affected agencies specified in paragraph (1)(A) of this subsection during the development stage of new or revised MTPs and TIPs to determine which transportation projects should be considered regionally significant and which projects should be considered to have a significant change in design concept and scope from the effective MTP and TIP. Regionally significant projects will include, at a minimum, all facilities classified as principal arterial or higher, or fixed guideway systems or extensions that offer an alternative to regional highway travel. Also, these include minor arterials included in the travel demand modeling process that serve significant interregional and intraregional travel, and connect rural population centers not already served by a principal arterial, or connect with intermodal transportation terminals not already served by a principal arterial. A significant change in design concept and scope is defined as a revision of a project in the MTP or TIP that would significantly affect model speeds, vehicle miles traveled, or network connections. In addition to new facilities, examples include changes in the number of through lanes or length of project (more than one mile), access control, addition of major intermodal terminal facilities (such as new international bridges, park-and-ride lots, and transfer terminals), addition/deletion of interchanges, or changing between free and toll facilities. When a significant change in the design and scope of a project is proposed, the MPO shall document the rationale for the change and give the affected agencies specified in paragraph (1)(A) of this subsection a 30-day opportunity to comment on the rationale. The MPO shall consider the views of each agency that comments, and respond in writing before any final action on these issues. If the MPO receives no comments within 30 days, the MPO may assume concurrence by the agencies specified in paragraph (1)(A) of this subsection;
(v) include in the TIP a list of projects exempted from the requirements of a conformity determination under 40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (1)(A) of this subsection in determining if a project on the list has potentially adverse emissions for any reason, including whether or not the exempt project will interfere with implementation of an adopted transportation control measure (TCM). The MPO shall respond in writing to all comments within 30 days on final MTP and TIP documents. In addition, if no comments are received as part of the subsequent public participation process for the TIP, the MPO may proceed with implementation of the exempt project;
(vi) notify the affected agencies specified in paragraph (1)(A) of this subsection in writing of any MTP or TIP revisions or amendments that add or delete the exempt projects identified in 40 CFR §93.126;
(vii) before adoption of any new or substantially different methods or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified in paragraph (1)(A) of this subsection to review and comment;
(viii) in coordination with TxDOT and the local transit agencies, disclose all known, regionally significant, non-federal projects, even if the sponsor has not made a final decision on its implementation; include all disclosed, or otherwise known, regionally significant, non-federal projects in the regional emissions analysis for the nonattainment area; respond in writing to any comments that known plans for a regionally significant, non-federal project have not been properly reflected in the regional emissions analysis; and have recipients of federal funds determine annually that their regionally significant, non-federal projects are included in a conforming MTP or TIP, or are included in a regional emissions analysis of the MTP and TIP. The MPO shall consult with project sponsors to determine the non-federal projects' location and design concept and scope to be used in the regional emissions analysis, particularly for projects that the sponsor does not report a single intent because the sponsor's alternatives selection process is not yet complete. If the MPO assumes a design concept and scope that is different from the sponsor's ultimate choice, the next regional emissions analysis for a conformity determination must reflect the most recent information regarding the project's design concept and scope;
(ix) ensure timely TCM implementation and report on the implementation and emissions reductions status of adopted TCMs annually to the commission;
(x) cooperatively share the responsibility for conducting conformity determinations on transportation activities that cross the borders of MPOs or nonattainment and maintenance areas. The affected MPOs will enter into a Memorandum of Agreement (MOA) that will define the effective boundary and the respective responsibilities of each MPO for regional emissions analysis. The MPOs will be responsible within their respective metropolitan area boundaries and, at their option, beyond to the boundaries of the nonattainment/maintenance areas, for regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas or basins will share information concerning air quality modeling assumptions and emission rates that affect both areas; and
(xi) for the purpose of determining the conformity of all projects outside the metropolitan planning area, but within the nonattainment or maintenance area, enter into an MOA involving the MPO and TxDOT for cooperative planning and analysis of projects.
(B) The commission, as the lead air quality planning agency, shall work in consultation with the agencies specified in paragraph (1)(A) of this subsection in developing applicable transportation-related SIP revisions, air quality modeling, general emissions analysis, emissions inventory, and all related activities. Specifically, the commission shall:
(i) set agendas and schedule meetings to seek advice and comments from all agencies specified in paragraph (1)(A) of this subsection during preparation of applicable transportation-related SIP revisions;
(ii) schedule public hearings in order to gather public input on the applicable transportation-related SIP revisions in accordance with 40 CFR §51.102 and notify the agencies specified in paragraph (1)(B) of this subsection of the hearings;
(iii) provide copies of final documents, including applicable adopted or approved transportation-related SIP revisions and supporting information, to all agencies specified in paragraph (1)(B) of this subsection;
(iv) after consultation with the MPO regarding TCMs, distribute to all agencies specified in paragraph (1)(B) of this subsection and other interested persons the list of TCMs proposed for inclusion in the SIP. In consultation with the agencies specified in paragraph (1)(A) of this subsection, the commission shall determine whether past obstacles to implementation of TCMs have been identified and are being overcome, and determine whether the MPOs and the implementing agencies are giving maximum priority to approval or funding for TCMs. Also, the commission shall consider, in consultation with the affected agencies, whether delays in TCM implementation necessitate a SIP revision to remove TCMs or to substitute TCMs or other emission reduction measures; and
(v) consult with the applicable agencies specified in paragraph (1)(A) of this subsection, in order to cooperatively choose conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR §93.109(l)(2)(iii).
(C) Any group, entity, or individual planning to construct a regionally significant transportation project that is not an FHWA-FTA project (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered) shall disclose project plans to the MPO on a regular basis and disclose any changes to those plans immediately. This requirement also applies to recipients of funds designated under 23 USC or the federal transit laws.
(3) General procedures.
(A) The MPO, TxDOT, or the commission, as applicable, shall respond to comments of affected agencies on MTPs, TIPs, projects, or SIP revisions in accordance with the public participation procedures that govern the involved action. The MPO, TxDOT, or the commission, as applicable, shall include all comments and the replies to those comments with final documents when they are submitted for adoption by the agency's governing board. In the event that comments are not adequately resolved, the procedures outlined in paragraph (4) of this subsection regarding conflict resolution apply.
(B) Because the validity of the regional emissions analysis depends on transportation modeling assumptions that need periodic updates, the MPO, with the assistance of TxDOT and local publicly owned transit agencies, will conduct meetings with the agencies specified in paragraph (1)(A) of this subsection to cooperatively establish research and data collection efforts and regional model development (e.g., household/transportation surveys).
(C) For the purposes of evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot spot and regional emissions analyses, agencies specified in paragraph (1)(A) of this subsection shall participate in a working group. The frequency of meetings and agendas for them will be cooperatively determined by the agencies specified in paragraph (1)(A) of this subsection.
(D) The commission, affected MPOs, affected local air quality agencies, and TxDOT shall cooperatively evaluate events that will trigger the need for new conformity determinations. New conformity determinations may be triggered by events established in 40 CFR §93.104 as well as other events, including emergency relief projects that require substantial functional, locational, and capacity changes, or in the event of any other unforeseeable circumstances.
(E) The MPO and its governing body, or TxDOT if applicable, shall make conformity determinations for all MTPs, TIPs, regionally significant projects, and all other events as required by 40 CFR Part 93, Subpart A and this section. Upon completion of the transportation conformity determination review process (including consultation, public participation, and all other requirements of this section), FHWA and FTA will issue a joint conformity finding, indicating the transportation conformity status of the document(s) under review. The effective date of the conformity determination for an area is the date of the joint conformity finding made by FHWA-FTA.
(4) Conflict resolution.
(A) The commission and the MPO (or TxDOT where appropriate) shall make a good-faith effort to address the major concerns of the other party in the event they are unable to reach agreement on the conformity determination of a proposed MTP or TIP. The efforts must include meetings of the agency executive directors, if necessary.
(B) In the event that the MPO or TxDOT determines that every effort has been made to address the commission's concerns, and that no further progress is possible, the MPO or TxDOT shall notify the commission's executive director in writing to this effect. This subparagraph must be cited by the MPO or TxDOT in any notification of a conflict that may require action by the governor, or his or her delegate under subparagraph (C) of this paragraph.
(C) The commission has 14 calendar days from date of receipt of notification, as required in subparagraph (B) of this paragraph, to appeal to the governor. If the commission appeals to the governor, the final conformity determination must then have the concurrence of the governor. The governor may delegate his or her role in this process, but not to the commission or commission staff, a local air quality agency, the Texas Transportation Commission or TxDOT staff, or an MPO. This subparagraph must be cited by the commission in any notification of a conflict that may require action by the governor or his or her delegate. If the commission does not appeal to the governor within 14 calendar days from receipt of written notification, the MPO or TxDOT may proceed with the final conformity determination.
(5) Public comment on conformity determinations. Consistent with the requirements of 23 CFR Part 450, concerning public participation, the agencies making conformity determinations on transportation plans, programs, and projects must establish a proactive public participation process that provides opportunity for public review and comment. Any charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR §7.43. In addition, these agencies shall address in writing any public comment claiming that a non-FHWA/FTA funded, regionally significant project has not been properly represented in the conformity determination for an MTP or TIP. Finally, these agencies shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.
(6) Good-faith effort made by the consulting agencies. In formulating an enforcement policy regarding a violation of this subsection (relating to the consultation process) the commission may consider any good-faith effort made by the consulting agencies to comply.
(e) Regionally significant, non-federal projects. For the purposes of 40 CFR §93.121, adoption or approval of a regionally significant, non-federal project (a regionally significant project that does not require FHWA or FTA approval or funding) occurs when affected agencies that are recipients of federal funds designated under 23 USC or the federal transit laws take one of the following actions:
(1) board approval, action, or resolution (such approval, action, or resolution does not include MPO approval for the purposes of approving a project in a currently conforming MTP or TIP);
(2) issuance of administrative permits for the regionally significant project;
(3) action of official authorizing the regionally significant project to proceed;
(4) providing grants or loans for the construction of a regionally significant project; or
(5) contract execution for the regionally significant project.
(f) Compliance date. Compliance with this section is required for transportation conformity determinations that begin the interagency consultation process after the date of EPA approval of the transportation conformity SIP associated with this rule.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702756
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: February 9, 2007
For further information, please call: (512) 239-0177
Subchapter C. VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS
Division 4. CONTROL OF VEHICLE REFUELING EMISSIONS (STAGE II) AT MOTOR VEHICLE FUEL DISPENSING FACILITIES
The Texas Commission on Environmental Quality (commission) adopts the amendment to §115.247. Section 115.247 is adopted with changes to the proposed text as published in the January 26, 2007, issue of the Texas Register (32 TexReg 282).
The adopted amendment will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the State Implementation Plan.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
For facilities where 95% or more of the motor vehicle fleet being fueled onsite is equipped with onboard refueling vapor recovery (ORVR) equipment, Stage II vapor recovery equipment is an unnecessary expense because refueling emissions are captured via the vehicle's ORVR equipment instead of the Stage II dispenser. The EPA estimates it costs about $40,000 to install a Stage II vacuum-assist system and $4,100 per year to maintain it. ORVR systems capture vapors otherwise vented to the atmosphere. ORVR systems are passive systems that force gasoline vapors displaced from a vehicle's fuel tank during refueling to be directed to a carbon-canister holding system and ultimately to the engine where they are consumed. EPA phased in ORVR systems for automobiles starting with model year 1998. All automobiles manufactured after 2000 must be equipped with ORVR. Phase-in of ORVR for light-duty trucks began in model year 2001, and by model year 2003, all new light-duty trucks were required to have ORVR systems.
SECTION DISCUSSION
The adopted amendment to §115.247, Exemptions, would add paragraph (3) any motor vehicle dispensing facility where 95% or more of the motor vehicle fleet being fueled onsite is equipped with onboard refueling vapor recovery equipment. To maintain a facility's exempt status under this paragraph, the owner or operator must submit documentation showing the fleet meets the requirements under this paragraph on an annual basis no later than January 31 of each year to the executive director or designated representative.
ANTI-BACKSLIDING DEMONSTRATION
The Stage II program is a Federal Clean Air Act (FCAA) specified volatile organic compound (VOC) control strategy for certain ozone nonattainment areas. Stage II vapor recovery equipment must be certified by EPA to achieve a minimum 95% control efficiency for VOC emissions, as detailed in their Stage II Vapor Recovery Systems-Options Paper dated February 7, 2006. ORVR systems capture VOC emissions inside the vehicle thus making Stage II vapor recovery equipment unnecessary. Therefore, exempting facilities that refuel only ORVR-equipped vehicles from the Stage II program will not result in increased VOC emissions because the fugitive emissions will be captured via the vehicle's ORVR system.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act. A "major environmental rule" is a rule which is specifically intended 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 intent of this rulemaking action is to provide an exemption from Stage II vapor recovery requirements for facilities where 95% or more of the motor vehicle fleet being fueled onsite is equipped with ORVR equipment because use of both provides no net environmental benefit. The commission solicited public comment on the draft regulatory impact analysis determination. No comments were received on the draft regulatory impact analysis determination. Also, the amendment is adopted to continue to meet the requirements of 42 United States Code, §7511a(b)(3) and Texas Health and Safety Code (THSC), §382.019 and §382.208, but in a less financially burdensome manner on owners and operators of gasoline dispensing facilities.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the rulemaking and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply to the adopted amendment because this action discontinues Stage II vapor recovery requirements for specific regulated activities. Promulgation and enforcement of the proposed amendment would be neither a statutory or constitutional taking of private real property. Specifically, the proposed amendment does not affect a landowner's rights in private real property, because this rulemaking action does not burden, restrict, nor limit the owner's rights to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of the proposed regulations.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action 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 CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, 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 rules of the Coastal Coordination Council, and determined that the 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 the adopted revisions will maintain the same level of emissions control as the existing rules. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 Code of Federal Regulations (CFR), to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in compliance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CPM goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Chapter 115 contains applicable requirements under 30 TAC Chapter 122, Federal Operating Permits; 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 at their sites affected by the revisions to Chapter 115.
PUBLIC COMMENT
The proposal was published in the January 26, 2007, issue of the Texas Register (32 TexReg 282). The commission held a public hearing on February 27, 2007, and on February 28, 2007. The comment period closed on March 15, 2007. The commission received comments from the Environmental Protection Agency (EPA), Harris County Public Health & Environmental Services, Kelly Hart & Hallman LLP, on behalf of General Motors, and Sierra Club.
RESPONSE TO COMMENTS
The Sierra Club commented that there are no record-keeping requirements to document that only ORVR equipped vehicles are fueled at a pump with no Stage II equipment and that there are no procedures that would ensure that a non-ORVR equipped vehicle would be fueled at a pump with no Stage II equipment. The Sierra Club also asks where the description of TCEQ compliance and enforcement programs required to implement this proposed exemption are.
RESPONSE
The commission appreciates the comment. This exemption is targeted toward those facilities with fleets. When the facilities are inspected by TCEQ Compliance and Enforcement staff, they will be required to provide documentation showing what vehicles are in their fleet. At that time, TCEQ staff will review the documentation to ensure that all vehicles in the fleet are ORVR equipped. Facilities will also have to apply for an exemption every year.
The Sierra Club asks how the TCEQ will verify that the ORVR systems are working so that volatile organic compound emissions are not escaping into the air when fueled at pumps with no Stage II equipment.
RESPONSE
The vehicle's On Board Diagnostic system identifies any malfunctions via the Malfunction Indicator Light with the vapor recovery system and alerts the vehicle operator that repairs are necessary. In Inspection and Maintenance (I/M) program areas the On Board Diagnostic system is tested annually during the vehicle's On Board Diagnostic test. Vehicles with an identified problem are not allowed to receive the annual safety and emissions certificate unless and until the problem is corrected.
Harris County Public Health & Environmental Services (HCPHES) was generally in support of the rule. HCPHES expressed a concern regarding the ability of a facility to demonstrate and the record keeping necessary for inspectors to verify that the dispensing facility is indeed used exclusively for the fueling and/or refueling of vehicles equipped with ORVR.
RESPONSE
The commission appreciates the comment. This exemption is targeted toward those facilities with fleets. When the facilities are inspected by TCEQ Compliance and Enforcement staff, they will be required to provide documentation showing what vehicles are in their fleet. At that time, TCEQ staff will review the documentation to ensure that all vehicles in the fleet are ORVR equipped. Facilities will also be required to submit a Stage II Vapor Recovery Exemption Confirmation Form to the TCEQ on a yearly basis.
The EPA commented that in general, they were in support of this rulemaking. EPA did request clarification on the types of fleets affected in this rule and revision of the language to be clear that only fueling of new vehicles at automobile assembly plants and refueling of rental cars at rental car facilities are exempt. The EPA commented that the TCEQ may consider changing the rule language to "where 95% or more of the motor vehicle fleet being fueled onsite is equipped with ORVR" rather than "where more than 95% of the motor vehicle fleet being fueled onsite is equipped with ORVR."
RESPONSE
The commission appreciates the comment and has clarified the types of fleets this rule will affect. The commission also agrees that the language should be changed and has done so.
The EPA commented that in order for them to approve an exemption from Stage II into the Texas SIP for the fueling of new vehicles at an automobile assembly plant or rental car facility, the State must include its technical evaluation that the widespread use benchmark has been achieved for these types of facilities. TCEQ must also provide assurance that any facility wishing to remove Stage II equipment maintains its eligibility for its motor vehicle fleet to operate under the exemption.
RESPONSE
The commission contends that EPA's December 12, 2006, Memorandum entitled "Removal of Stage II Vapor Recovery in situations Where Widespread Use of Onboard Refueling Vapor Recovery is Demonstrated" provides the technical evaluation that the widespread use benchmark has been achieved for automobile assembly plants. The memo states that "EPA believes that if 95 percent of the vehicles in a fleet have ORVR, then widespread use will likely have been demonstrated." The TCEQ will provide the assurance that that any automobile assembly plant wishing to remove Stage II equipment maintains its eligibility for its motor vehicle fleet to operate under the exemption by continuing to inspect the facilities. When the facilities are inspected by TCEQ Compliance and Enforcement staff, they will be required to provide documentation showing what vehicles are in their fleet. At that time TCEQ staff will review the documentation to ensure that all vehicles in the fleet are ORVR equipped. Facilities will also be required to submit a Stage II Vapor Recovery Exemption Confirmation Form to the TCEQ on a yearly basis.
The EPA commented that in order for them to approve any of these exemptions from Stage II into the Texas SIP, the State must include in its rulemaking process how the exemption meets the requirements of Section 110(l) of the FCAA.
RESPONSE
The commission appreciates the comment and has addressed this in the anti-backsliding demonstration.
The EPA commented that in order for them to approve an exemption from Stage II into the Texas SIP for the fueling of flexible fuel vehicles at E85 facilities, the State must include in its rulemaking process its technical evaluation that any increase in emissions caused by operating E85 fueling facilities without Stage II controls is so small as to clearly not interfere with attainment of the ozone standard or reasonable further progress or any other applicable CAA requirement.
RESPONSE
The commission appreciates the comment concerning the fueling of flexible fuel vehicles at E85 facilities, however this is beyond the scope of this rulemaking. This rulemaking will remove requirements for fleet refueling facilities only. This will not affect requirements for facilities open to the public. In order to be exempt under this rule, the facility will have to provide documentation proving 95% or more of the vehicles in the fleet are equipped with ORVR. No increase in emissions are expected, and therefore this rulemaking will not interfere with attainment of the ozone standard or reasonable progress toward meeting that standard.
Kelly Hart & Hallman LLP Attorneys at Law commented on behalf of General Motors Corporation in support of this rulemaking.
RESPONSE
The commission appreciates the comment in support of the rulemaking.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §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 TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendment is also adopted under THSC, §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; and §382.208, concerning Attainment Program, which authorizes the commission to develop and implement transportation programs and other measures necessary to demonstrate attainment and protect the public from exposure to hazardous air contaminants from motor vehicles.
The adopted amendment implements THSC, §§382.002, 382.011, 382.012, and 382.208.
§115.247.Exemptions.
The following are exempt from the requirements of this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities):
(1) gasoline dispensing equipment used exclusively for the fueling of aircraft, watercraft, or implements of agriculture;
(2) any motor vehicle fuel dispensing facility for which construction began prior to November 15, 1992, and which has a monthly throughput of less than 10,000 gallons of gasoline. For the purposes of this paragraph, the monthly throughput shall be based on the maximum monthly gasoline throughput for any calendar month after January 1, 1991. To maintain a facility's exempt status under this paragraph, the owner or operator must submit the facility's monthly gasoline throughput on an annual basis no later than January 31 of each year to the executive director or designated representative; and
(3) any motor vehicle dispensing facility where 95% or more of the motor vehicle fleet being fueled onsite is equipped with onboard refueling vapor recovery equipment. To maintain a facility's exempt status under this paragraph, the owner or operator must submit documentation showing the fleet meets the requirements under this paragraph on an annual basis no later than January 31 of each year to the executive director or designated representative.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702757
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2007
Proposal publication date: January 26, 2007
For further information, please call: (512) 239-6087