November
17,
2005
MEMORANDUM
SUBJECT:
Technical
Support
Document:
Proposed
Memoranda
of
Understanding
(
MOU)
between
Texas
Commission
on
Environmental
Quality
(
TCEQ)
and
Texas
Department
of
Transportation
(
TxDOT).

FROM:
Alima
Patterson
(
6PD­
O)
/
s/

TO:
Files
THROUGH:
Thomas
Diggs,
chief
/
s/
Air
Planning
Section,
6PD­
L
I.
Background:

The
Texas
Commission
on
Environmental
Quality
(
TCEQ)
adopted
a
Memoranda
of
Understanding
(
MOU)
between
Texas
Department
of
Transportation
(
TxDOT)
and
TCEQ
and
submitted
it
to
EPA
for
approval
on
August
15,
2002.
The
State
of
Texas
adopted
the
MOU
and
a
new
Section
7.119
and
submitted
the
revision
to
EPA
for
approval
into
the
SIP
on
August
22,
2002.
The
rule
and
MOU
streamlines
coordination
between
the
TCEQ
and
TxDOT
by
consolidating
separate
MOUs
currently
in
the
air
regulations
(
30
TAC
Section114.250)
and
in
water
regulations
(
30
TAC
Section
305.521).
The
rule
adopts
by
reference
a
TxDOT
MOU
by
consolidating
these
separate
MOUs.
The
TCEQ
repealed
30
TAC
Section
114.250
which
previously
contained
the
MOU
in
the
air
regulations.
Section
114.250
is
not
part
of
the
SIP
so
no
action
on
its
repeal
is
necessary
by
EPA.

TECQ
originally
proposed
for
this
rule
on
September
12,
2000
and
public
hearing
was
held
on
October
24,
2000.
The
hearing
was
to
receive
testimony
regarding
revisions
to
30
TAC
Chapters
7,
114,
and
305,
and
to
the
Texas
implementation
plan
(
SIP)
under
the
requirements
of
the
Texas
Health
and
Safety
Code,
§
382.017;
Texas
Government
Code,
Subchapter
B,
Chapter
2001;
and
40
Code
of
Federal
Regulations,
part
51.102
concerning
SIPs.
The
comment
period
closed
on
November
13,
2000.
TECQ
proposed
this
rule
again
on
October
26,
2001.
Comments
from
the
public
were
addressed
during
the
rule
adoption
of
the
second
proposal
period.
The
MOU
addresses
only
those
reviews
required
by
Transportation
Code
§
201.607,
and
does
not
affect
coordination
or
permits
required
by
other
State
or
Federal
regulations.
The
provisions
of
§
7.119
were
adopted
on
April
10,
2002
and
became
effective
on
May
2,
2002
(
See
27
TexReg
3560).

The
MOU
establishes
periods
for
review
of
documents
and
ensures
coordination
between
the
agencies
on
road
projects
that
could
have
environmental
impacts.
The
proposed
rule
does
not
represent
a
change
from
current
practices
but
with
concurrent
rulemaking
intended
to
streamline
coordination
between
the
two
agencies
by
consolidating
separate
MOU
provisions
currently
in
the
air
regulations
and
the
water
regulations.
There
are
no
fiscal
implications
anticipated
to
State
or
Local
units
of
government.

The
following
consists
of
the
agreement
outlined
by
TXDOT
and
TCEQ
in
30
Texas
Administrative
Code
(
TAC)
Chapter
7,
Section
7.119
and
Title
43
Part
1,
Chapter
2,
Subchapter
B
Section
2.23
of
the
MOU
between
the
agencies:

The
TxDOT
(
A)
will
investigate
fully
the
environmental
impacts
of
departmental
transportation
projects,
coordinate
these
projects
with
applicable
State
and
Federal
agencies,
and
reflect
these
investigations
and
coordination
in
the
environmental
documentation
for
each
project;

(
B)
Base
projects
decisions
on
a
balanced
consideration
of
the
need
for
a
safe,
efficient,
economical
and
environmentally
sound
transportation
system;

(
C)
Receive
input
from
the
public
through
the
public
involvement
process;

(
D)
Utilize
a
systematic
interdisciplinary
approach
as
essential
parts
of
the
development
process
for
transportation
projects;
and
(
E)
Strive
for
environmental
soundness
of
transportation
activities
through
appropriate
mitigation,
where
feasible
and
prudent,
in
coordination
with
appropriate
resource
agencies.

The
TCEQ
(
A)
Promote
and
foster
voluntary
compliance
with
environmental
laws;

(
B)
Ensure
that
the
regulations
promote
flexibility
in
achieving
environmental
goals
and
are
applied
clearly
and
consistently;

(
C)
Base
decisions
on
the
law,
common
sense,
good
science,
and
fiscal
responsibility;

(
D)
ensure
that
regulations
are
necessary,
effective,
and
current;

(
E)
Ensure
meaningful
public
participation
in
the
decision
making
process;
and
(
F)
ensure
consistent,
just,
and
timely
enforcement
when
environmental
laws
are
violated.

Regulatory
Analysis
of
the
MOU
40
CFR
Part
51.102
requires
that
public
hearing
must
be
conducted
prior
to
adoption
and
submission
to
EPA
any
revision
under
40
CFR
Part
51.104(
a).
This
regulatory
analysis
is
also
subject
to
requirements
of
40
CFR
part
51.851(
a)
and
(
b).
40
CFR
part
51.851
(
a)
indicates
that
the
State
must
submit
the
conformity
provisions
within
12
months
after
November
30,
1993
or
within
12
months
of
an
area's
designation
to
non­
attainment
which
ever
date
is
later.
Part
51.851
(
b)
states
that
the
Federal
conformity
rules
under
subpart
(
b)
and
40
CFR
part
93,
in
addition
to
any
existing
applicable
State
requirements,
establish
the
conformity
criteria
and
procedures
necessary
to
meet
the
Act
requirements
until
such
time
as
the
required
conformity
SIP
revision
is
approved
by
EPA.
This
rule
establishes
improved
procedures
necessary
to
meet
requirements
of
the
Act
by
consolidating
two
separate
MOUs.
The
TECQ
and
TxDOT
MOU
addresses
only
those
reviews
required
by
Transportation
Code
Section
201.607,
and
does
not
affect
coordination
or
permits
required
by
other
State
or
Federal
regulations.

This
rule
incorporates
an
MOU
into
the
SIP.
The
MOU
provides
for
a
streamlined
coordination
of
environmental
reviews
associated
with
transportation
projects
between
TxDOT
and
TCEQ.
As
such
this
rule
is
procedural
in
nature
and
does
not
interfere
with
any
applicable
requirement
concerning
attainment
and/
or
reasonable
further
progress
or
any
other
applicable
requirement.

Statutory
Authority
This
rule
was
proposed
under
Texas
Water
Code
(
TWC),
§
5.104,
which
required
the
Commission
to
enter
into
an
MOU
with
any
other
State
agency
to
clarify
and
provide
for
their
respective
duties,
responsibilities,
or
functions
on
any
matter
within
their
jurisdictions
that
is
not
expressly
assigned
to
either
agency.
Texas
Health
and
Safety
Code
(
THSC),
§
382.017,
and
TWC,
§
5.103,
both
of
which
established
the
Commission's
authority
to
adopt
rules,
THSC,
§
382.035,
required
the
Commission
to
adopt
MOUs
with
State
agencies
by
rule;
and
TWC,
§
5.105,
provided
the
Commission
the
authority
to
set
policies.

The
rules
for
coordination
of
State­
assisted
transportation
projects
developed
by
TxDOT,
codified
as
43
TAC
§
2.40­
2.51,
underline
the
need
for
and
importance
of
comprehensive
environmental
coordination
for
all
transportation
projects.

The
Transportation
Code
Section
201.607,
directs
TxDOT
to
adopt
memoranda
of
understanding
with
each
agency
that
has
responsibilities
for
protection
of
the
natural
environment.

By
statute,
TECQ
may
enter
into
memoranda
of
understanding
with
any
other
State
agency
and
shall
adopt
by
rule
any
memorandum
of
understanding
between
TECQ
and
other
State
agency
(
Water
Code,
Section
5.104,
and
Health
and
Safety
Code,
Section
382.035)

Conclusions
and
Recommendations
Since
the
MOU
between
TCEQ
and
TxDOT
are
in
compliance
with
40
CFR
Part
51.102
and
51.104(
a)
requirements,
and
40
CFR
part
51.851(
a)
and
(
b),
it
is
recommended
that
approval
of
the
MOU
will
streamline
coordination
between
the
two
agencies
by
consolidating
separate
MOU
provisions
currently
in
the
air
regulations
and
the
water
regulations.
