10
was more strongly associated with premature mortality
and severe morbidity. Current PM NAAQS (PM
10
and
PM
2.5
NAAQS established in 1997) are under review
and may be revised again by EPA.
The ground-level concentrations found in §111.155 were originally
included in the Texas SIP adopted in 1972 and in subsequent revisions adopted
in 1973, 1974, 1975, and 1976 under predecessor rules, Regulation I and Rule
105.2. All areas of the state were required to comply with all sections of
the prior rules by December 31, 1973. Subsequent SIP revisions in 1979 and
1980 required implementation of revised sections of Chapter 111 in individual
areas not meeting the PM NAAQS. Following the PM NAAQS change from TSP to
PM
10
, in 1987, new PM SIP revisions were adopted.
PM
10
SIP revisions were adopted in 1988, 1989,
and 1991 that cited Chapter 111 as a control strategy for El Paso County,
the one area in Texas not meeting the PM
10
NAAQS.
On May 14, 2004, Baker Botts L.L.P. (Baker Botts) submitted a petition
for rulemaking to repeal §111.155. Baker Botts requested that the rule
be repealed because the rule is inconsistent with the direction of modern
air quality regulation, results in unnecessarily long delays in air permit
issuance, imposes PM controls without evidence of nuisance conditions, and
reflects a burdensome and unnecessary regulatory tool to address PM. On July
28, 2004, the commission initiated rulemaking for §111.155 in response
to the petition filed by Baker Botts. The commission stated that rulemaking
would include an evaluation of §111.155, with stakeholder involvement,
to determine if the current rule is adequate, needs to be amended, or repealed.
As part of this evaluation, a stakeholder meeting was held on April 5, 2005,
at commission headquarters in Austin, Texas, to receive formal stakeholder
comments.
Section 111.155 is primarily used in the air permitting, field operations,
and enforcement divisions to address nuisance PM. The technical details for
establishing the specific net PM concentrations listed in §111.155 are
not known. Little documentation exists that describes the rationale or the
science used in selecting these concentrations. The background information
that does exist comes from Dr. Herbert McKee, former TACB chairman, during
the establishment of the 1967 and 1972 PM standards. Based on published literature
he authored as well as his written comments to the commission, the 1972 PM
standards were based primarily on the professional judgment of air quality
regulators at the time. Dr. McKee emphasized that the 1972 PM standards were
established to address nuisance PM, not health concerns. According to Dr.
McKee, the TACB deferred to the PM NAAQS to address health issues.
In terms of health effects of PM, research overwhelmingly supports respirable
PM (PM that can enter the lungs, generally regarded as ten micrometers or
smaller in diameter) as the primary causative agent of PM-related health effects,
particularly premature mortality and severe morbidity. PM fractions larger
than ten micrometers, which are often the dominant PM size fractions, on a
per mass basis, collected in TSP samples, are poor indicators of potential
health effects. Therefore, the current PM NAAQS using PM
10
and PM
2.5
as indicators are better
suited to address health concerns than standards based on TSP, such as §111.155
or its predecessor, Rule 105.2. Additionally, the commission has developed
effects screening levels (ESLs) to address health and welfare concerns for
specific air pollutants occurring as PM (e.g., arsenic, chromium, silica,
carbon black). ESLs are used to evaluate air concentrations for air permits
and ambient air monitoring data, as well as set remediation clean-up levels.
ESLs, in addition to the PM NAAQS, provide a means to assess health concerns
from ambient PM and ultimately a basis for taking regulatory action when deemed
necessary.
The use of §111.155 as a tool to address nuisance PM has historically
occurred in the areas of enforcement, through the use of ambient air monitoring
to determine net PM source contributions, and air permitting, generally with
the use of air dispersion modeling. The PM standard is used infrequently as
an enforcement tool for nuisance PM, due to the monitoring requirements to
determine compliance. On the few occasions when monitoring is conducted, complexities
such as accessibility of monitoring locations, weather, wind patterns, confounding
PM sources (e.g., traffic on unpaved roads), facility operations, etc. can
make meaningful sampling results difficult to obtain and interpret. Other
enforcement tools available to address nuisance PM include, but are not limited
to, tape lifts, still photographs, videotape, field observations by commission
staff, the opacity limits described in §111.111 and §111.113, and
the general nuisance rule in 30 TAC §101.4. In terms of air permitting,
modeled ambient levels of TSP can be compared to the concentrations listed
in §111.155 to evaluate the potential for nuisance PM. In addition to
comparing modeled TSP levels to the standards, the commission can incorporate
preventative measures against nuisance PM such as best available control technology
(BACT) and special permit conditions. The inherent complexities and uncertainties
of modeling emissions from PM sources that generate TSP have raised concern
about the accuracy of these modeled estimates. Inaccurate modeled estimates
may result in imposing PM controls without evidence of nuisance conditions
(aside from modeling results) and can delay issuance of air permits. BACT
and special permit conditions may serve as more reliable preventative tools
for air permitting to address nuisance PM without being unduly burdensome
to the regulated community.
To obtain a perspective of other state approaches to PM, specifically nuisance
PM, the commission surveyed all 50 states. Based on this survey, the commission
determined that §111.155 is generally inconsistent with approaches used
by the vast majority of states, with 40 out of 50 states not having ambient
standards for nuisance PM. In lieu of ambient air standards, the states generally
use other rules and procedures such as opacity standards, best management
practices to address nuisance PM (i.e., BACT), and comparison of modeled PM
concentrations to the PM NAAQS. Many of these rules and procedures are currently
available and used by the commission. As discussed previously, examples of
tools and procedures used by the commission include BACT, special permit conditions,
the opacity limits in §111.113 and §111.111, and the general nuisance
rule in §101.4.
As previously stated, the science underlying the basis of §111.155
and its predecessor, Rule 105.2, is largely unknown due to the lack of documentation.
However, the evidence that is available points to professional judgment and
policy playing a significant role in the derivation of the standards listed
in the rule. In addition, the rule was intended to address nuisance PM rather
than health concerns. The PM NAAQS addresses health issues related to PM.
In addition, the commission has ESLs that address the health concerns of specific
PM constituents (e.g., metals, carbon compounds, silica). The size fraction
that §111.155 has historically addressed is TSP. Regulation of TSP was
prominent at both the state and federal levels during, and immediately following,
the promulgation of 111.155. However, the federal and majority of state regulatory
authorities have since replaced TSP ambient standards with PM standards of
a smaller PM size (i.e., PM
10
, PM
2.5
). These changes were dictated by advances in the science of PM
that highlighted the importance of PM size fractions smaller than TSP. TSP
has since been relegated to nuisance PM concerns. It is generally understood
that determining nuisance is highly subjective and is dependent on the PM
size, composition, and concentration, as well as the tolerance of individuals
for PM depending on the use of their property. This subjectivity prevents
the establishment of technically- defensible ambient standards to address
nuisance PM. Tools and procedures already available to the commission, and
consistent with other state environmental regulatory agencies, are used to
address nuisance PM.
Repealing §111.155 will not weaken the Texas SIP because EPA has not
taken final action to approve it into the SIP. EPA is currently reviewing
a pending action related to the reorganization of Regulation I, Board Order
67-1, which includes a proposal to include §111.155 in the Texas SIP.
The commission requests that EPA remove from consideration in the pending
request §111.155 for inclusion into the SIP. As discussed previously,
there are other rules in place that the commission will still implement to
assure compliance with the PM NAAQS.
Based on the commission's evaluation, as well as stakeholder input, the
commission adopts the repeal of §111.155 given that it is not current
or necessary based on good science. The commission determined that it has
sufficient tools and procedures currently available to address nuisance PM.
DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIR ACT, SECTION 110(l)
Issue
The commission provides the following information to clarify why the repeal
of §111.155, Control of Air Pollution from Visible Emissions and Particulate
Matter, (previously Rule 105.2) from TAC and the Texas SIP will not negatively
impact the attainment status of the state's PM attainment areas.
The requirement for reasonable notice and public hearing is satisfied through
the hearing held on December 15, 2005, and the public comment period, which
was held from November 25, 2005, to January 13, 2006. EPA also issued draft
guidance on June 8, 2005, "Demonstrating noninterference Under Section 110(l)
of the Clean Air Act When Revising a State Implementation Plan." The guidance
states (page 6) that ". . .areas have two options available to demonstrate
noninterference for the affected pollutant(s)." This document provides detail
of the identified existing measures in the rule preamble to show compliance
with option (1) of EPA's guidance: Substitution of one measure by another
with equivalent or greater emissions reduction/air quality benefits.
Background
TCEQ's predecessor agency, the Texas Air Control Board (TACB), adopted
Rule 105.2 on January 26, 1972, by Board Order 72-2. On May 31, 1972, EPA
approved Rule 105.2 with the original Texas SIP. In 1975, the agency switched
to a ten-digit numbering system, and Rule 105.2 was renumbered as Rule 131.03.05.002.
In October 1980, Rule 131.03.05.002 was renumbered as §111.52 to become
part of Chapter 111 of 31 TAC. Section 111.52 was repealed on July 4, 1989,
along with the rest of Chapter 111. An entirely new Chapter 111 along with §111.155,
was adopted on July 4, 1989, in a concurrent action as the repeal of §111.52.
On August 21, 1989, TACB submitted a SIP revision to EPA to remove Rule 105.2
from the SIP and replace it with §111.155, which is in place today. EPA
is currently reviewing a pending action related to the reorganization of Regulation
I, Board Order 72-2, which includes a proposal to include §111.155 in
the Texas SIP. Since the commission is considering the repeal of §111.155,
the agency is asking EPA not to continue with the inclusion of §111.155
into the Texas SIP, and to continue with the removal of Rule 105.2 from the
SIP.
TSP in the 1970s was replaced by PM standards in the 1980s. In terms of
health and welfare effects of PM, research overwhelmingly supports respirable
PM (PM that can enter the lungs, generally regarded as ten micrometers or
smaller in diameter) as the primary causative agent of PM- related health
effects. The primary (health) and secondary (welfare) standards for PM are
identical. Therefore, the current PM NAAQS using PM
10
and PM
2.5
as indicators are better
suited to address health concerns than standards based on general PM, such
as §111.155 or its predecessor, Rule 105.2. The state does not rely on §111.155
in attainment demonstration SIPs as a control strategy. For the one PM nonattainment
area, there are specific rules in place, such as §§111.111(c)(1),
111.141, 111.143, 111.145, 111.147, and 111.149.
In 2004, TCEQ received a petition to repeal §111.155 from the TAC.
The regulatory history does not provide any explanation for how the limits
in §111.155 were established. It is clear, however, that the limits were
intended to address nuisance conditions, not health effects. The TACB's TSP
standard was established to eliminate nuisance conditions while the PM10
standard was designed to protect health.
Since the promulgation of the original rule, the federal national ambient
air quality standards for total suspended particulates has been repealed,
in favor of the more meaningful particulate matter (PM
10
) standard. Section 111.155 is an artifact that is no longer consistent
with the direction in which modern air quality regulation is headed, which
is based on science. There are sufficient tools and procedures described in
the following section that are currently available to address nuisance PM,
in addition to health and welfare.
Description of current regulations and requirements
Other rules such as §§101.4, 101.20, 101.21, 111.111, 111.113,
111.141, 111.143, 111.145, 111.147, and 111.149 make the general PM rule superfluous
and redundant. The current rule has been one of the tools used in the permitting
process to help determine an appropriate ambient concentration, but not to
establish control strategies that protect the NAAQS. The other rules help
establish the limits that ensure the NAAQS will not be violated. The same
rules and permit conditions contained in the permit are relied upon by the
field operations staff in determining compliance with the standards.
a) 30 TAC §101.21, The National Primary and Secondary Air Quality
Standards
1) The TSP standard established in the 1970s was based on research done
in the 1960s. At that point in time it wasn't known what type of particulate
matter actually caused health effects. PM was based on what could be measured
at the time, which was TSP, specifically, particles 50 microns and less. Since
that time, it was discovered that the smaller particles actually cause negative
health effects. Since then, the focus has been primarily on PM
10
, particles 10 microns and smaller because those are the particles
that can actually pass the upper respiratory system into the lungs. The PM10
NAAQS regulations were passed to regulate this particle
size fraction. Additional scientific research prompted EPA to further revise
the particulate matter standard to focus on particles less than 2.5 µgm
in diameter, (PM
2.5
) in addition to the PM10
standard to provide the most effective protection
from potential adverse health effects.
2) There are mechanisms in the agency's permitting program to address particulate
matter emissions. Where the potential exists for emissions of particulate
matter for a point source, the permit conditions will require BACT for the
control of the emissions. Furthermore, there is a health effects review conducted,
which will review the expected emissions against the NAAQS for PM
10
and the specific compounds, which make up the particulate matter,
will be reviewed to ensure that off-site receptors are not adversely affected.
To limit the potential for a nuisance condition from particulate matter, permit
language does require continuous compliance with all rules and regulations
passed by the TCEQ. This includes the agency's rules prohibiting nuisance
conditions and excess visible emissions. Best Management Practices are also
placed into the permits, required as part of a Permit by Rule, and also required
in the agency's Standard Permits. These practices could include watering of
roads within the plant site, covering or watering of stock piles, limiting
the size and location of the piles, and covering and/or watering of transfer
point on conveyor belts, all which will help in the control of fugitive particulate
matter emissions. Finally, due to the differing types of particulate matter
and the properties that each one has, it is not technically feasible to determine
a nuisance condition based on a single TSP standard. For example, when determining
if a nuisance condition has occurred, a pound of carbon black, which has a
greater rate of coverage, is not the same as a pound of limestone dust.
b) Enforcement of the current rule for compliance purposes consisted of
17 notices of violation and five notices of enforcement issued from 1998 2005.
One explanation for the seemingly low use in enforcement today is that
other controls, such as special permit conditions and Best Management Practices,
now serve the same purpose.
c) In addition to specific permitting and compliance policies, the following
rules are in place:
1) 30 TAC §101.4, General Nuisance Rule, 40 Code of Federal Regulations
(CFR) §52.2299(c)(7)
Provides for case by case determination of whether an air contaminant release
is a nuisance;
2) 30 TAC §111.111, Requirements for Specified Sources, 40 CFR §52.2299(c)(94)
Restricts visible emissions and opacity levels for stationary sources and,
in some instances, requires the use of continuous emissions monitoring;
3) 30 TAC §111.113, Alternative Opacity Limitations, 40 CFR §52.2299(c)(94)
Requires alternative opacity limitation requests to go through the public
hearing process and the applicant must submit a "preponderance of evidence"
to show no exceedance will occur;
4) 30 TAC §101.20, Compliance with Environmental Protection Agency
Standards, 23 CFR §52.2299(c)(10)
Requires applicants to comply with all applicable federal permitting requirements;
5) 30 TAC §111.141, Geographic Areas of Application and Date of Compliance,
40 CFR §52.2299(c)(79); 30 TAC §111.143, Materials Handling, 40
CFR §52.2299(c)(79); 30 TAC §111.145, Construction and Demolition,
40 CFR §2299(c)(79); 30 TAC §111.147, Roads, Streets, and Alleys,
40 CFR §52.2299(c)(79); 30 TAC §111.149, Parking Lots, 40 CFR §52.2299(c)(79).
These rules are specific to activities such as materials handling; construction
and demolition; roads, streets, and alleys; and parking lots.
d) Regulations specific to El Paso, the state's only nonattainment area
for PM.
1) §111.111(c)(1) includes operating restrictions for solid fuel heating
devices during stagnation periods.
2) §§111.141, 111.143, 111.145, 111.147, and 111.149 prescribe
certain types of controls to be applied to the identified categories.
All of the rules identified previously are approved as part of the Texas
SIP.
Conclusion
The commission determined that there are sufficient rules and procedures
in place to assure compliance with the PM NAAQS and to address nuisance PM.
SECTION DISCUSSION
Section 111.155 establishes one-hour and three-hour ground level concentration
levels for particulate matter. The commission adopts the repeal of §111.155.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the adopted repeal does not meet the definition of a "major environmental
rule" as defined in the statute. Therefore, Texas Government Code, §2001.0225
does not apply to this rulemaking. "Major environmental rule" is defined in
Texas Government Code, §2001.0225(g)(3), as 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. The specific purpose of
the adopted repeal is to delete a rule that is no longer necessary, effective,
current, or based on good science, as described in the BACKGROUND AND SUMMARY
OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL section of this preamble. This
adopted repeal will not have an adverse material impact because the commission
determined that the currently existing NAAQS for PM adequately protects human
health and welfare, and the remaining prohibition against nuisance conditions
remains in effect.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this adopted rulemaking and performed a preliminary
assessment of whether this action would constitute a taking under Texas Government
Code, Chapter 2007. Promulgation and enforcement of this proposed repeal would
be neither a statutory nor a constitutional taking of private real property.
The adopted repeal of §111.155 does not affect private property in a
manner that restricts or limits an owner's right to the property that would
otherwise exist in the absence of a government action. Consequently, this
adoption does not meet the definition of a taking under Texas Government Code, §2007.002(5).
This rulemaking is adopted to repeal §111.155, since the commission determined
that the currently existing NAAQS for PM adequately protects human health
and welfare, and the remaining prohibition against nuisance conditions remains
in effect. Therefore, this adopted repeal will not constitute a taking under
Texas Government Code, Chapter 2007.
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 Texas Coastal Management Program. As required by §281.45(a)(3),
Actions Subject to Consistency with the Goals and Policies of the Texas Coastal
Management Program (CMP), 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(l)).
No new sources of air contaminants will be authorized and the proposed 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 to
protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 Code of Federal Regulations Part 51,
Requirements for Preparation, Adoption, and Submittal of Implementation Plans.
Therefore, in accordance with 31 TAC §505.22(e), the commission affirms
that this rulemaking action is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Because §111.155 is an applicable requirement under 30 TAC Chapter
122, Federal Operating Permits Program, owners or operators subject to the
Federal Operating Permit Program must, consistent with the revision process
in Chapter 122, revise their operating permit to delete requirements relating
to §111.155.
PUBLIC COMMENT
A public hearing for this rulemaking was held on December 15, 2005, in
Austin, and the comment period closed on January 13, 2006. The commission
received comments from Baker Botts L.L.P., Southern Crushed Concrete, Inc.
(SCC), Temple-Inland Forest Products Corp. (Temple- Inland), Texas Pipeline
Association (TPA), The Association of Electric Companies of Texas (AECT),
City of Houston Bureau of Air Quality Control (BAQC), Environmental Defense,
Harris County Public Health & Environmental Services Pollution Control &
Environmental Health Division (HCPHESPCEHD), Houston Regional Group of the
Sierra Club (HSC), Lowerre & Frederick, and the U.S. Environmental Protection
Agency (EPA).
RESPONSE TO COMMENTS
Baker Botts L.L.P., Southern Crushed Concrete, Inc. (SCC), Temple-Inland
Forest Products Corp. (Temple-Inland), Texas Pipeline Association (TPA), and
The Association of Electric Companies of Texas (AECT) supported the proposed
repeal of 30 TAC §111.155.
The commission appreciates this support.
BAQC and HCPHESPCEHD commented on the key role of §111.155 in predicting
nuisance impacts of particulate matter (PM) during the permitting process
and believe that other available enforcement tools are inadequate to assess
potential PM nuisance. Additionally, these groups do not believe that the
current rule is overly burdensome on the regulated community. Environmental
Defense supported these comments.
The commission disagrees with the comment because some significant sources
of particulate matter, such as roads, are difficult, if not impossible, to
accurately model during the permitting process. These emissions are hard to
accurately quantify through emission factors and the sources are hard to accurately
characterize. Consequently, §111.155 does not accurately predict potential
nuisance impacts. While the agency agrees that the modeling process itself
is not burdensome to the regulated community, the inability to adequately
model some sources does present an unnecessary burden on the regulated community
to comply with §111.155. Instead of quantifying these emissions, permit
provisions, such as road watering, are added to reduce and control these emissions.
In addition, opacity limits set by §111.111 and §111.113 and the
general nuisance rule in §101.4 are utilized and result in issuance of
Notices of Violations. The agency therefore asserts that these enforcement
tools, in addition to secondary PM
10
and PM2.5
standards required by the National Ambient Air
Quality Standards (NAAQS), are adequate to address PM nuisance concerns.
Environmental Defense further provided scientific documentation of adverse
health effects from short-term exposure to PM and commented that §111.155
provides protection against short-term exposures to respirable fractions of
PM that the 24-hour and annual PM NAAQS do not. HSC is also concerned that
TSP contains a range of particles that can cause welfare and health effects.
In addition, one of the provided studies suggested that particle composition
may differentially affect toxicity.
The agency agrees that TSP contains a fraction of respirable PM less than
10 µgm in diameter. However, as Environmental Defense mentioned, the
exact proportion of the respirable fraction varies from source to source.
More importantly, there is no scientific basis for the established one-hour
value of 400 µg/m
3
and three-hour value
of 200 µg/m
3
and no evidence that these
values provide health protection. In addition, the net measurement used to
determine these values can result in underestimation of actual particle concentrations.
For example, if concentrations both upwind and downwind of a facility are
high, the net concentration may be well below the one- or three-hour TSP values
but may not be protective of health and/or nuisance conditions. Therefore,
the agency disagrees that §111.155 provides short-term health protection
not afforded by the PM NAAQS.
Regarding the toxicity of individual particle components, the agency agrees
that the toxicity of PM can be influenced by the particle composition. Therefore,
Effects Screening Levels (ESLs) have been established for particles, such
as metals. These ESLs are used during the permitting and enforcement processes
to assess potential adverse health effects and provide health protection not
afforded by §111.155 or its predecessor, Rule 105.2.
HSC commented that TSP High-Volume Air Sampling is simple and straightforward
to perform and more scientifically precise than field operations.
The agency disagrees with this comment, due to the difficulty to access
sample collection areas precisely upwind and downwind of a facility and potential
underestimation of the net measurement mentioned previously. It is possible
that conditions clearly presenting a nuisance to field operations personnel
may not violate the net standard. Furthermore, as stated previously, no documentation
exists for a scientific basis for the levels set by §111.155 or its predecessor,
Rule 105.2. While sample analysis may be performed quickly, sample collection
is often restricted by road access and obstructions at the property line.
For these reasons, the agency does not agree that High-Volume Air Sampling
is straightforward and more scientifically precise than field operations.
HSC also commented that use of the term "ambient air" is inappropriate
in describing property- line samples.
The agency disagrees with this comment. Section 101.1(4) defines "ambient
air" as "That portion of the atmosphere, external to buildings, to which the
general public has access." The property line includes an area outside of
the company's property and an area where the general public could potentially
have legal access. The term "source" is also defined in §101.1 as: "(97)
Source--A point of origin of air contaminants, whether privately or publicly
owned or operated. . .." Therefore, under commission definitions the property
line of a site would not be considered a source since it is not the point
of origin of an air contaminant.
HSC recommended the addition of standards for particulate matter 10 µgm
and 2.5 µgm in diameter. HSC also commented that information on pollutants
other than nuisance dust can be gained from property-line TSP monitoring.
The agency agrees that particles 10 µgm (PM
10
) and 2.5 µgm (PM
2.5
) in diameter
should be monitored. Section 101.21 allows primary and secondary national
ambient air quality standards to be enforced throughout all parts of Texas.
This provision allows fence-line monitoring of PM
10
and PM
2.5
that is more stringent than
net property line measurements. In addition, speciation of fence-line PM10
can provide important information on respirable
air pollutants.
Lowerre & Frederick commented that during the 1989 amendment process
the agency stated that "the standards have proven to be effective enforcement
tools during the 15 years they have been used." Lowerre & Frederick then
referenced three specific enforcement cases using §111.155. In addition,
the commenters noted the previous agency statement that "Removal of the ground
level standards would leave no particulate controls in place, which would
aggravate nuisance conditions." Finally, Lowerre and Frederick commented that
the property line standard provides a quantitative measure for anticipating
nuisance conditions.
Although this statement was applicable at the time, the agency disagrees
that the rule continues to be an effective enforcement tool today. Between
1998 and 2005, property line monitoring for total suspended particles occurred
45 times. Of these, only 11 Notices of Violation and five Notices of Enforcement
were issued to a total of nine separate entities. The reason this rule is
rarely used in enforcement today is that controls, such as special permit
conditions requiring Best Management Practices, now serve the same purpose.
Enforcement of these permit conditions, including requirements to water roads
and facilities, eliminates the need for TSP modeling and monitoring while
preventing nuisance conditions. Therefore, the agency disagrees that the repeal
of §111.155 would leave no particulate controls in place or would aggravate
nuisance conditions. Finally, although the property line standard does provide
a numerical value, the net measurement may not provide evidence of nuisance
conditions, and the standards against which these values are compared are
not scientifically based.
EPA commented that §111.155 is currently not in the Texas SIP.
The commission's predecessor agency, the Texas Air Control Board, submitted
a SIP revision to replace Rule 105.2 with §111.155 on August 21, 1989.
EPA is currently reviewing a pending action related to the reorganization
of Regulation I, Board Order 67-1, which includes a proposal to include §111.155
in the Texas SIP. The commission requests that EPA remove §111.155 from
consideration in the pending request at EPA for inclusion into the SIP.
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code (TWC), §5.103, concerning
Rules, and TWC, §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 Texas Health and Safety Code (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 repeal is also adopted
under THSC, §382.002, concerning Policy and Purpose, which establishes
the commission purpose to safeguard the state air resources, consistent with
the protection of public health, general welfare, and physical property; THSC, §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; and THSC, §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.
The adopted repeal implements THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
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 May 22, 2006.
TRD-200602856
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: June 11, 2006
Proposal publication date: November 25, 2005
For further information, please call: (512) 239-5017