30 TAC §§115.510, 115.512, 115.513, 115.515, 115.516
The Texas Natural Resource Conservation Commission (commission)
adopts new §115.510, concerning Cutback Asphalt Definitions, and amendments
to §115.512, concerning Control Requirements; §115.513, concerning
Alternate Control Requirements; §115.515, concerning Testing Requirements;
and §115.516, concerning Recordkeeping Requirements, and a revision to
the state implementation plan concerning these amendments. Sections 115.510,
115.512, 115.513, 115.515, and 115.516 are adopted with changes to the proposed
text as published in the April 23, 1999, issue of the
Texas Register
(24 TexReg 3178).
The commission adopts the removal of references to "emulsified asphalt"
in §§115.512(3), 115.515(1), and 115.516 and the substitution in
the appropriate context of the terms "asphalt emulsion," "cutback asphalt,"
"exempt cutback asphalt," and "conventional cutback asphalt," as defined in
new §115.510. The commission adopts the amendment to §115.512(1)
to change the total annual volume of cutback use in Nueces County from 8.0%
to 7.0%, and the amendment to §115.512(3) to refer to both use and production
of asphalt emulsion. In §115.513, the word "section" is changed to "division."
EXPLANATION OF ADOPTED RULES
In the 1970's, the United States Environmental Protection Agency (EPA)
identified cutback mixes, commonly known as "cold mixes," as a significant
source of volatile organic compounds (VOCs) and urged states to promulgate
rules which limit their manufacture and use. Since EPA's 1977 Control Technique
Guideline (CTG) report (
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 fewer 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 fewer VOC emissions,
but with 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 fewer, 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 asphalt, and no
language either in the state rule or in EPA guidance documents adequately
defines "emulsified asphalt" to be inclusive of all compliant alternative
mixes.
Cutback asphalt has a significant amount of light petroleum distillate
(usually diesel, kerosene, or naphtha) added at either the refinery or at
the asphalt plant, and is used principally for patching or emergency repairs.
Emulsified asphalt, 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. The VOCs flash off quickly during manufacture and
evaporate over time into the ambient air during storage in outdoor piles and
after application.
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 ozone nonattainment counties
(Dallas, Denton, Collin, Tarrant, El Paso, Brazoria, Chambers, Fort Bend,
Galveston, Harris, Liberty, Montgomery, Waller, Jefferson, Orange, and Hardin
Counties); as well as a former ozone nonattainment county (Nueces County).
According to §115.512(2), 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 "asphalt
emulsions," 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 (1977) as referenced in §115.515(1).
A new section, §115.510, concerning Cutback Asphalt Definitions, includes
definitions of "asphalt emulsion," "cutback asphalt," "exempt cutback asphalt,"
and "conventional cutback asphalt." The adopted new §115.510 includes
all definitions used exclusively within the Chapter 115 cutback asphalt rules.
In separate rulemaking, the commission is deleting the definition of "cutback
asphalt" from §115.10, concerning Definitions (see the July 16, 1999
issue of the
Texas Register
). The definition
for "exempt cutback asphalt" requires testing criteria using ASTM Test Method
D 402 (1997) which is more suited for solvent-based mixes and has additional
laboratory safety considerations.
The revisions will allow companies the flexibility to use any available
substitute material which meets project specifications, but maintains the
VOC emissions compliance demonstration criteria specified in §115.515
and §115.516 involving the appropriate 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.
The use of cutback asphalt in ozone nonattainment areas is currently limited
to 7.0% of total annual volume averaged over a two-year period except in Nueces
County where the current limit is 8.0%. The amendments will change the limit
in Nueces County to 7.0% to conform with limits in nonattainment areas. The
average annual use of cutback asphalt in nonattainment areas has been in the
range of 3.5% to 4.0%. While no definitive records of cutback use in Nueces
County are readily available, Texas Department of Transportation (TxDOT) believes
that the use in Nueces County is comparable to that in nonattainment areas.
Therefore, this change is not anticipated to create any operational change,
but will add uniformity in standards for all regulated areas.
Historically, §115. 512(3) has been interpreted to apply to both use
and production of the applicable asphalt. The inclusion of the words "or produced"
will add clarity to the existing intent. Certain grammatical changes have
been made in §§115.512, 115.513, 115.515, and 115.516 to add clarity,
remove redundancies, and improve readability.
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the 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. "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. Specifically, the amendments to the rules are not anticipated to 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 in any new way because affected facilities
are required to meet the criteria contained in §115.512(3)(A)-(D), which
remain unchanged. These criteria limit VOC content to 12% by weight or the
following limitations, whichever is more stringent: 0.5% by weight for seal
coats; 3.0% by weight for chip seals when dusty or dirty aggregate is used;
8.0% by weight for mixing with open graded aggregate with less than 1.0% by
weight of dust or clay-like materials adhering to the coarse aggregate fraction
(1/4 inch in diameter or greater); and 12% by weight for mixing with dense
graded aggregate when used to produce a mix designed to have 10% or less voids
when fully compacted. At present, affected areas use only a fraction of the
allowable cutback volume, and the rule changes will not alter these areas'
obligations relative to the National Ambient Air Quality Standards (NAAQS).
The change from 8.0% to 7.0% in asphalt use in Nueces County will not have
an impact as current use is well below the limit. The changes are anticipated
to have the positive effect of providing increased flexibility to the industry
in their selection of paving materials while maintaining or lowering air emissions.
In addition, the amendments to the rules do not meet any of the four applicability
criteria of a "major environmental rule." Section 2001.0225 applies only to
a major environmental rule the result of which is to: 1. exceed a standard
set by a 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 new definitions and stipulations for test methods will not change the
current level of protection for the environment as the criteria contained
in §115.512(3)(A)-(D) remain unchanged, the affected areas use only a
fraction of the allowable cutback volume, and the rule changes will not alter
these areas' obligation relative to the NAAQS. The change from 8.0% to 7.0%
in asphalt use in Nueces County will not have an impact because current use
is well below the limit. The amendments to the rules do not exceed any express
requirement of state law, but were developed to provide additional flexibility
to the industry while complying with the requirements of federal law. There
is no contract or delegation agreement that covers the topic that is the subject
of rulemaking. Therefore, these amendments do not exceed a standard set by
federal law, exceed an express requirement of state law, or exceed a requirement
of a delegation agreement. In addition, the changes are not enacted solely
under the general rulemaking authority of the commission.
The EPA has concurred with the changes to Chapter 115. In addition, suggestions
from the industry have been incorporated into the amendments and are supported
by the industry and the agency staff. The amendments are considered to be
acceptable in terms of environmental impact and cost effectiveness.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this amendment
under the Texas Government 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 adopted do
not materially change the existing ASTM Test Method D 244 or criteria in §115.512(3)(A)-(D)
which remain unchanged and that are currently enforced. The change from 8.0%
to 7.0% asphalt use in Nueces County will not have an impact as current use
is well below the limit. The addition of ASTM Test Method D 402 only adds
a method for testing solvent-based cutback asphalt which must meet the same
emissions criteria.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that the 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 action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council and has determined that
the 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 do not relax the VOC obligations established
in §115.512(3), thus the proposed rule complies with regulations in 40
CFR, Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation
Plans, and therefore, is consistent with this policy.
HEARING AND COMMENTERS
A public hearing on the proposal was held in Austin on May 19, 1999. The
comment period closed May 24, 1999. Three commenters submitted written comments
on the proposal. One commenter also submitted oral testimony. The EPA supported
the proposed revisions. TxDOT and Environmental Resource Management on behalf
of Unique Paving Materials Corporation (UPM) supported the proposed revisions,
but suggested changes or clarifications. No commenters opposed the proposed
revisions.
ANALYSIS OF TESTIMONY
TxDOT stated that the ASTM Test Method D 244 should only be used for asphalt
emulsions, and that ASTM Test Method D 402 should be used for other cutback
mixes using solvent diluents. To clarify such concerns, TxDOT suggested that
there be four distinct mixes defined under §115.510 with appropriate
test method where appropriate (asphalt emulsion, cutback asphalt, exempt cutback
asphalt, and non-exempt cutback asphalt). The asphalt emulsions would be defined
to include an asphaltic base mixed with water or an emulsifying agent. A cutback
asphalt is any asphalt which has been liquified by blending with petroleum
solvents (diluents). An exempt cutback asphalt would have to comply with ASTM
Test Method D 402 criteria with the distillate fraction recovered up to 500
degrees Fahrenheit to be less than 5.0% by volume of the total distillate
recovered up to a temperature of 680 degrees Fahrenheit. A non-exempt cutback
would not meet this criteria.
The commission agrees with the TxDOT suggestions and has added the four
definitions to §115.510 with one alteration. For clarity, the defined
term "Non-exempt" has been changed to "Conventional." Sections 115.512(1)
and 115.512(2) have been changed to use the defined term "conventional cutback
asphalt." Section 115.512(3) has been changed to remove "alternative asphalt"
and substitute "asphalt emulsions." Sections 115.515(1) and 115.515(2) have
been changed to reflect ASTM Test Methods D 244 and D 402, respectively. The
previous §115.515(2) has been renumbered as §115.515(3) without
any changes.
UPM stated that the language might be clearer if emulsion asphalts (using
ASTM Test Method D 244) were kept separate in the definitions from other alternative
asphalts (using ASTM Test Method D 402). UPM suggested the clarification that
tests using ASTM Test Method D 402 be conducted at 500 degrees Fahrenheit,
the same temperature used in ASTM Test Method D 244 for emulsion asphalts.
UPM also suggested changing §115.512 to add a section allowing alternative
asphalt (exempt cutback) up to 7.0% maximum VOC content.
Regarding test methods, the commission feels the changes suggested by UPM
are basically parallel with those of TxDOT and that the changes incorporated
to address TxDOT's suggestions were adequate to address both. The commission
considered raising the VOC percentage of exempt cutback asphalt from 5.0%
to 7.0%. According to TxDOT, a material sampled by ASTM Test Method D 402
at 500 degrees Fahrenheit is considered to have no VOCs if less than 5.0%
by volume is measured during the test. Therefore, the commission rejects UPM's
7.0% recommendation as being too lenient. Using the approach of defining an
exempt cutback asphalt as containing less than 5.0% VOC by volume will maintain
the current level of controls on VOC emitting materials. This will insure
the state's and EPA's intent in controlling VOCs from cutback asphalt.
STATUTORY AUTHORITY
The new section and amendments are adopted 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 adopted 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.
§115.510.Cutback Asphalt Definitions.
The following 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)
Asphalt emulsion--An emulsion consisting of a continuous
and discontinuous phase, composed principally of a semisolid or liquid asphaltic
base, water, and an emulsifying agent.
(2)
Conventional cutback asphalt-Any cutback asphalt which
does not meet the definition of an exempt cutback asphalt.
(3)
Cutback asphalt--Any asphaltic cement which has been
liquified by blending with petroleum solvents (diluents).
(4)
Exempt cutback asphalt--Any cutback asphalt which,
when tested in accordance with American Society of Testing Materials Test
Method D 402, "Distillation of Cutback Asphalt Products," as published in
the 1997 edition of the
Annual Book of ASTM Standards
, shows the distillate fraction recovered up to 260 degrees Celsius
(500 degrees Fahrenheit) to be less than 5.0% by volume of the total distillate
recovered up to a temperature of 316 degrees Celsius (680 degrees Fahrenheit).
§115.512.Control Requirements.
The following control requirements shall apply 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).
(1)
The use of conventional cutback asphalt containing volatile
organic compounds (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)
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 conventional 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)
When asphalt emulsion is used or produced, 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.
Alternate methods of demonstrating and documenting continuous compliance
with the applicable control requirements or exemption criteria in this division
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.
Compliance with §115.510 and §115.512 of this title (relating
to Cutback Asphalt Definitions; and 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, "Standard Test Methods for Emulsified Asphalts, Sections 11 to 15,
Residue and Oil Distillate by Distillation," as published in the 1997 edition
of the
Annual Book of ASTM Standards
, for
determining volatile organic compound (VOC) content of asphalt emulsions;
(2)
ASTM Test Method D 402, "Standard Test Method for
Distillation of Cut-Back Asphaltic Products," as published in the 1997 edition
of the
Annual Book of ASTM Standards
, for
determining the VOC content of cutback asphalt; or
(3)
minor modifications to these test methods approved
by the executive director.
§115.516.Recordkeeping Requirements.
In 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 cutback asphalt or asphalt emulsion shall
maintain records sufficient to document compliance with applicable restrictions
and shall make such records available upon request to representatives of the
executive director, EPA, or the local air pollution control agency having
jurisdiction in the area.
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 July
29, 1999.
TRD-9904586
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: August 18, 1999
Proposal publication date: April 23, 1999
For further information, please call: (512) 239-0348