Control of Volatile Organic Compounds from the use of Cutback
Asphalt,
EPA- 450/2-77-037), significant progress has been made by
state agencies and the industry to more clearly identify and define the emissions
from these mixes, as well as develop new mixes with less VOC emissions (e.g.,
emulsified cold mixes with little or no added solvents).
Over the past decades, the industry has been developing new cold mixes
to meet market demands for alternative mixes with equal or less VOC emissions
but equivalent road strengths. Most recent EPA memoranda and industry correspondence
show that several new alternative cold mixes have been developed which have
the same, or less, VOC emissions than traditional cutback asphalt cold mixes.
These alternative mixtures use heavier petroleum agents in lieu of the lighter
solvents. However, the existing rule language does not allow for these materials
to be used as a substitute for cutback asphaltic concrete, and no language
either in the state rule or in EPA control technology guidelines adequately
defines "emulsified asphalt" to be inclusive of all compliant alternative
mixes.
Cutback asphalt is any asphaltic concrete that has a significant amount
of light petroleum distillate (usually diesel, kerosene, or naphtha) added
at either the refinery or at the asphalt concrete plant, and is used principally
for patching or emergency repairs. Emulsified asphaltic concrete, also used
for such repairs, contains some proportion of the light petroleum distillates
combined with a non-volatile emulsifying agent (e.g., water or soap) to dilute
the VOC emissions. These mixes are commonly referred to as "cold mixes" as
the mix temperatures are lower than those used for standard hot mix asphalt
pavements. The emissions from these cold mixes occur in equal proportion during
the manufacture and storage, although over different time periods, as the
VOCs flash off quickly during mixing and evaporate over time into the ambient
air during storage in outdoor piles.
Cold mixes are categorized by the amount of solvents added to the liquid
asphalt and include rapid-cure, medium-cure, and slow-cure cutbacks and emulsions,
containing average added solvents of 20%, 14%, 16%, and 7.0%, respectively.
The amount of VOC emissions from cold mixes are higher than VOC emissions
from hot mixes (up to seven pounds VOC/ton cold mix as compared to an average
of 0.2 pounds VOC/ton hot mix).
Currently, Chapter 115, Subchapter F regulates the manufacture, use, and
sale of cutback asphaltic mixes in the designated nonattainment areas for
ozone (Dallas, Denton, Collin, Tarrant, El Paso, Brazoria, Chambers, Fort
Bend, Galveston, Harris, Liberty, Montgomery, Waller, Jefferson, Orange, Hardin
Counties) and Nueces County. According to §115.512(3), no one in the
nonattainment areas may use, apply, sell, or buy "cutback asphalt containing
VOC solvents for paving roadways, driveways, or parking lots during the peak
ozone generating period from April 16 to September 15 of any year." Section
115.512(3) allows the use of "emulsified asphalt," with certain VOC restrictions,
to comply with §115.512(2). To be produced in a nonattainment area during
the peak ozone generating period, the emulsified mixes must conform with American
Society of Testing and Materials (ASTM) Test Method D 244 as referenced in
§115.515(1).
A proposed new section, §115.510, concerning Cutback Asphalt Definitions,
includes a definition of "Alternative asphalt." In addition, the commission
is proposing to relocate the existing definition of "Cutback asphalt" from
§115.10, concerning Definitions, to §115.510. The proposed new §115.510
includes all definitions used exclusively within the Chapter 115 cutback asphalt
rules. In separate rulemaking, the commission expects to delete the definition
of "Cutback asphalt" from §115.10.
The proposed revisions to §§115.512(3), 115.515(1), and 515.516
remove the reference to "emulsified asphalt" in Subchapter F and substitute
the phrase "alternative asphalt." These changes will allow companies the flexibility
to use any available substitute material which meets the project's specifications,
but maintains the VOC emissions compliance demonstration criteria specified
in §115.515 and §115.516 involving the ASTM Test Method. These changes
will give flexibility to industry, update the rule to match current scientific
knowledge, and still insure VOC emission reductions in nonattainment areas.
Cutback use in nonattainment areas is limited to 7.0% of total annual volume
averaged over a two-year period. Nueces County has a present limit of 8.0%,
and the commission proposes to change this limit to 7.0%. As average annual
use in nonattainment areas in recent years has been in the range of 3.5% to
4.0%, the proposal would not create any operational change, but would add
to uniformity to have the same standard for all regulated areas. The agency
is soliciting comments on this change.
The amendment to §115.512(3) regulating emulsified asphalt use is
now being proposed to apply to alternative asphalts. Historically, this section
has been interpreted to apply to both use and production of the applicable
asphalt. The inclusion of the words "or produced" would add clarity to the
existing intent.
In §115.513, concerning Alternate Control Requirements, the term "section"
is replaced by the word "division" in response to revised
Texas Register
rules (23 TexReg 1289, February 13, 1998).
FISCAL NOTE
Jeffrey Grymkoski, Strategic Planning and Appropriations Division, has
determined that for the first five-year period the proposed revisions are
in effect there will be no significant fiscal implications for state or local
government as a result of administration or enforcement of the rules.
PUBLIC BENEFIT
Mr. Grymkoski also has determined that for each year of the first five
years the proposed sections are in effect, the public benefit anticipated
from enforcement of and compliance with these sections will be a continued
reduction in the emission of VOCs and more cost-effective implementation and
enforcement of air quality standards. All asphalt concrete plant operators
in the designated nonattainment areas and Nueces County will be affected by
this rule change, including small businesses. The economic impact of complying
with the changes most likely will be positive in that it will alleviate the
need for the asphalt industry to produce excess stockpiles of asphalt and
store such reserves prior to the peak ozone generation period. It also can
reduce the need for transporting cutback asphalt produced and stored outside
the nonattainment area. There are no additional anticipated economic costs
to persons who are required to comply with the amendments as proposed, as
cost estimates by the Texas Department of Transportation and the asphalt industry
indicate that the new alternative options will be equal to or less than the
existing emulsified asphalt option.
SMALL BUSINESS ANALYSIS
There are no additional anticipated economic costs to small businesses
that are required to comply with the amendments as proposed. Cost estimates
by the Texas Department of Transportation and the asphalt industry indicate
that the new alternative options will be equal to or less than the existing
emulsified option. As the new alternative mixes are just another option, a
small business is not precluded from continuing to use the existing emulsified
mixes if there should be a cost differential in a particular location.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code (the 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 the Code, and it does not meet any of the four applicability requirements
listed in §2001.0225(a). The substitution of the term "alternative asphalt"
for the existing "emulsified asphalt" will not change the current level of
protection of the environment. The proposed rule amendments continue to protect
the environment and reduce risks to human health from environmental exposure,
but do not meet the definition of a major environmental rule because the VOC
emission obligations have already been established by federal law and state
law and, thus, are not new requirements. The proposed amendments should not
adversely affect the economy in a material way because the affected facilities
are currently required to meet emission criteria identical to that existing.
Therefore, this does not meet the definition of a "major" environmental rule.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this proposal
under the Code, §2007.043. The specific purpose of this rulemaking is
to give flexibility to industry, update the rule to reflect current scientific
knowledge, and still insure VOC emission reductions in nonattainment areas.
Promulgation and enforcement of this rulemaking will not affect private real
property because the rule changes being proposed do not materially change
the existing test methods or emission criteria that are currently enforced.
COASTAL MANAGEMENT PLAN
The commission has determined that the proposed rulemaking concerning Chapter
115, Subchapter F 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's rules in 30 TAC Chapter 281, Subchapter B, concerning
consistency with the Texas CMP. As required by 31 TAC §505.11(b)(2) and
30 TAC §281.45(a)(3), relating to actions and rules subject to the CMP,
commission rules governing air pollutant emissions must be consistent with
the applicable goals and policies of the CMP. The commission has reviewed
this proposed action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council and has determined that
the proposed action is consistent with the applicable CMP goals and policies,
specifically §501.12(1), which is to protect, restore, and enhance the
diversity, quality, functions, and values of coastal natural resource areas
and §501.14(q), regarding compliance with 40 Code of Federal Regulations
(CFR), Protection of Environment. The rule changes proposed here do not relax
the VOC emission obligations established by federal and state law, thus the
proposed rule complies with regulations in 40 CFR, Part 51 and therefore is
consistent with this policy. Interested persons may submit comments on the
consistency of the proposed rules with the CMP during the public comment period.
PUBLIC HEARING
A public hearing on the proposal will be held in Austin on May 19, 1999
at 10:00 a.m. in Building F, Room 5108 of the Texas Natural Resource Conservation
Commission complex, located at 12100 North IH-35, Park 35 Technology Center,
Austin. The hearing is structured for the receipt of oral or written comments
by interested persons. Individuals may present oral statements when called
upon in order of registration. Open discussion will not occur during the hearing;
however, an agency staff member will be available to discuss the proposal
30 minutes prior to the hearing and answer questions before and after the
hearing.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Lisa Martin, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Log No. 98082-115-AI.
Comments must be received by 5:00 p.m., May 24, 1999. For further information,
please contact Terry Leifeste, Office of Environmental Policy, Analysis, and
Assessment, (512) 239-1873.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the agency at
(512) 239-4900. Requests should be made as far in advance as possible.
STATUTORY AUTHORITY
The new section and amendments are proposed under Texas Health and Safety
Code, Texas Clean Air Act (TCAA), §382.017, which provides the commission
with the authority to adopt rules consistent with the policy and purpose of
the TCAA. The new section and amendments also are proposed under the TCAA,
§382.011, which provides the commission with the authority to control
the quality of the state's air; §382.012, which provides for the commission
to prepare and develop a general, comprehensive plan for the proper control
of the state's air; and §382.016, concerning monitoring requirements
and examination of records.
The proposed new section and amendments do not implement any new state
or federal requirement.
§115.510.Cutback Asphalt Definitions.
The following words and terms, when used in this division (relating
to Cutback Asphalt), shall have the following meanings, unless the context
clearly indicates otherwise. Additional definitions for terms used in this
division are found in §115.10 of this title (relating to Definitions),
§101.1 of this title (relating to Definitions), and §3.2 of this
title (relating to Definitions).
(1)
Alternative asphalt-An asphaltic substance that is used
in lieu of conventional cutback asphalt and that complies with the emissions
criteria in American Society of Testing and Materials (ASTM) Test Method D
244 as reapproved in 1980 and recognized in subsequent ASTM publications.
(2)
Cutback asphalt-Any asphaltic cement which has been
liquified by blending with petroleum solvents (diluents).
§115.512.Control Requirements.
For persons in Nueces County and the Beaumont/Port Arthur, Dallas/Fort
Worth, El Paso, and Houston/Galveston areas as defined in §115.10 of
this title (relating to Definitions), the following control requirements shall
apply.
[(1)
In Nueces County, the use of cutback
asphalt containing volatile organic compound (VOC) solvents for the paving
of roadways, driveways, or parking lots is restricted to no more than 8.0%
of the total annual volume averaged over a two-year period of asphalt used
or specified for use by any state, municipal, or county agency who uses or
specifies the type of asphalt application.]
(1)
[
(2)
]
In Nueces County
and
in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston
areas, the use of cutback asphalt containing VOC solvents for the paving of
roadways, driveways, or parking lots is restricted to no more than 7.0% of
the total annual volume averaged over a two-year period of asphalt used or
specified for use by any state, municipal, or county agency who uses or specifies
the type of asphalt application.
(2)
[
(3)
] In the Beaumont/Port
Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, no person
shall allow the use, application, sale, or offering for sale of cutback asphalt
containing VOC solvents for paving roadways, driveways, or parking lots during
the period from April 16 to September 15 of any year.
(3)
[
(4)
] When
alternative
asphalt
[
emulsified asphalt
] is utilized
or produced
to comply with paragraph
(2)
[(3)]
of this section,
the maximum VOC content shall not exceed 12% by weight or the following limitations,
whichever is more stringent:
(A)-(D)
(No change.)
§115.513.Alternate Control Requirements.
For all affected persons in Nueces County and the Beaumont/Port Arthur,
Dallas/Fort Worth, El Paso, and Houston/Galveston areas, alternate methods
of demonstrating and documenting continuous compliance with the applicable
control requirements or exemption criteria in this
division
[
section
] may be approved by the executive director in accordance with
§115.910 of this title (relating to Availability of Alternate Means of
Control) if emission reductions are demonstrated to be substantially equivalent.
§115.515.Testing Requirements.
For Nueces County and the Beaumont/Port Arthur, Dallas/Fort Worth,
El Paso, and Houston/Galveston areas, compliance with §115.512(4) of
this title (relating to Control Requirements) shall be determined by applying
the following test methods, as appropriate:
(1)
American Society of Testing and Materials
(ASTM)
Test Method D 244 for determining volatile organic compound content of
alternative asphalt
[
asphalt emulsions
]; or
(2)
(No change.)
§115.516.Recordkeeping Requirements.
For Nueces County and the Beaumont/Port Arthur, Dallas/Fort Worth,
El Paso, and Houston/Galveston areas, any state, municipal, or county agency
who uses or specifies the use of the type of asphalt or
alternative asphalt
[
asphalt emulsion
] affected by §115.512 of this title
(relating to Control Requirements) shall maintain records sufficient to document
compliance with applicable restrictions and shall make such records available
upon request to representatives of the
executive director
[
Texas Air Control Board
], United States Environmental Protection Agency,
or the local air pollution control agency having jurisdiction in the area.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
April 9, 1999.
TRD-9902122
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: July 28, 1999
For further information, please call: (512) 239-1966