### BryanW. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner MarkR. Vickery, P.G., 

### ExecutiveDirector 

# RECEIVED

- 

# 6PDL AIR PLANNING SEC. 12 HAR 

# 14 PH 3: 55
TEXAS COMMISSION ON ENVIRONMENTAL QUALIlY Protecting Texas by

### Redllcing andPreventing Pollution 

## March 7,2012

DocketNos. 2010-1862-RUL, 2011-o899-MIS, 2011-0707-SIP

Alfredo Armendariz, Ph.D. RegionalAdministrator U.S. Environmental ProtectionAgency

- Region 6 1445 

## Ross Avenue Dallas, Texas 75202-2733


## Dear Dr. Armendariz:
On January 25, 2012, 

## the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP).
The Commission adopted amendments to §111.147 

## in 30 

## Texas Administrative Code Chapter 111, 

## concerning Control of

## Air Pollution from Visible Emissions and Particulate Matter, SubchapterA, 

## Division 4, Materials Handling, Construction, Roads, Streets, Alleys, and Parking Lots; a revised Memorandum ofAgreement (MOA) between the CityofEl Paso (the City) and the Commission; and corresponding revisions to the SIP. The adopted rule amendments update the particles with an aerodynamic diameterless than or equal to a nominal 10 

## micrometers (PMlO) 

## controls requiredto attain and maintain the PM lO 

## NationalAmbientAir Quality Standards (NAAQS) and provide the City greaterflexibility in the implementation ofthe PMlO 

## control requirements in §111.147. 

## The MOAhas been revised to reflect the changes to §111.147. 

## The adopted SIP revision will incorporate the revised MOAinto the El Paso PMlO 

## SIP.
Enclosed are the proposed revisions to the SIP, a public hearing certification, complete records ofthe public hearing, and the accompanying order. l'

## lookforward to your expeditious approval ofthese SIP revisions. Sincerely,

# :::;j::,~~ Chairman BWSjers
Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. 

## Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 • Austin, Texas**78711~3087** 

### • 512-239-1000 • www.tceq.texas.gov How is om customerservice? www.tceq.texas.gov!goto!customersurvey

## Docket Nos. 2010-1862-RUL, 2011-o899-MIS, 2011-0707-SIP



## THE STATE OF TEXAS
COUNTY OF TRAVIS

This is to certifythat the attached electronic file is included andthatthe electronicfile is a
true and correct copy ofdocuments for a revision to the Texas State Implementation Plan, adopted on January 25, 2012, 

## pursuantto 40 

## Code ofFederal Regulations § 51.104. 

## I amthe
records administratorfor the Air Quality Division ofthe Texas Commission on Environmental Quality (Commission).



# L

# ~,,\**Di~""'~~-'-""-~'----------** U Air Quality Division Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality Public Hearing September 27, 2011 Concerning Revisions to 30 TAC Chapter 111 

### Control of Air Pollution from Visible Emissions and Particulate Matter Project No. 2010-046-111-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in EI Paso on September 27,2011, to receive testimony regarding 30 TAC Chapter 111, Control ofAir Pollution
from Visible Emissions and Particulate Matter and corresponding revisions to the state implementation plan.

The rulemaking amends §111.147(1 )(E) by removing the requirementto pave alleys atthe rate of 15
miles peryear, and replacing itwith the following requirements: 1) all new alleys must be paved; 2) alleys may not be used for trash pickup; and 3) the use of recycled asphalt product as defined in §111.145 and §111.147(1) may be used as an alternate means of particulate matter control for alleys. The rulemaking also amends §111.147(2) to change the sweeping frequency requirement
from fourtimes peryearto three times peryear in the city limits and from six times perweek to four
times per week in the central business district.

The comment period closed on October 3, 2011. All testimony and comments have been reviewed
and seriously considered. This hearing record contains a complete record of the public hearings
and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations/Order

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle, Austin, Texas 78753. Forfurther information, please contact PeterA. Ogbeide at (512) 239-
1937.

# NOTICE 

# & PROPOSAL

### PUBLIC NOTIFICATION

Notification to the public ofthe proposed revisions was conducted by the following procedures:

1. Publication of notice of public hearing in the following newspaper on the date listed:
£1 Paso Times: 

### August 22,2011

2. Publication of the proposed rules in the September 2, 2011, issue of the Texas Register(36 

### TexReg 5640).

3. Publication of the Notice of Public Hearings in the September 2, 2011, issue of the Texas Register

### (36 TexReg 5725).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker of the House
Lieutenant Governor
Alamo Area Council of Governments Capital Area Planning Council City of Dallas, Department of Environmental Quality City of Dallas, Department ofAviation City of El Paso, Environmental Services City of EI Paso, Mayor's Office City of Fort Worth, Environmental Management Department City of Houston, Department of Health and Human Services
East Texas Council of Governments
EI Paso County Judge

### EI Paso Metropolitan Planning Organization
Federal Highway Administration
Galveston County Health District
Harris County Public Health and Environmental Services
Houston-Galveston Area Council
North Central Texas Council of Governments
South East Texas Regional Planning Commission
Texas Department of Transportation
Victoria Metropolitan Planning Organization
Arkansas Department of Pollution Control and Ecology
Louisiana Department of Environmental Quality
New Mexico Environmental Department
Oklahoma Department of Environmental Quality
United States Environmental Protection Agency

### Example of Newspaper Classified Ad
EI Paso Times, August 22, 2011

PUblic Hearing on P1"Opos"d Revisions to JO TAe Chopfer III ana R""isions 10 th. Stale**Implem~n** _ lation Plan The Texas Commis_ sion on Environmen- tal Quality (commi

... sion or TCEQ) wi!! conduct a public hearing to rlKei

...E!'**f~5tjmony** regarding**5~Off1~d c'h~v~:~~n~**  1**~~** Control of All" Pollu- tion Irom Vlsibllf Emi:uiom and Par- ticulate Motter. !iHl.l..1.7; and to the- sto!Q implementafion plon.{SIPJ, under**th~ r~Ulremenrs**  of Tuct$ Health and Sc:fe-ry Code, §382.011;**T~X(l5** Go

.... ernment Code, Chop-**,~,.** 20{)I, Subchapler 8; and 10 Code of Fe(jerol Rl!9uloliolls §5U01 of the Unlled Slolt's Enviromnen_ fal Protection Agen- cy (EPA) regulalions Ccocerning SIPs. The proposlH1 rulemO,l(;ng would amend §lJUd7(l)(E) to remove the re- quirement 10 pove 01-**t~NOtk"j.si,** iey50 01**;n~' ro;~**  '0" 

### ti miles per Yllor, and rep'lacl!' it With lhe lotlowir\!)**reQuin~.** manb: 1) oil new al- leys musf be paved; 2} oBeys moy not be used for trosh pick,. up; and JJ the use of recycled ospno,lt product**O~** def:ned In**iPU~(1),** moy**o~~** used as on alternafe**m~{lns** at Particulate Motter conlrol f()r al- leys, The**propo~l** wilt olso amend §1l1.1J7(2} 1,0 chcr.9! Ina**S'N~EtPH'l9 fn~.**  quency reQUiremenl from four times

-p'u year to three time, ft:;ilretta'nd in**fi~::n c~t~**  times per**~J'l** 10 'Dur times n'1r week !n fhe central busj.**nu~** ol:;;'rict. CRule**Projl~d** Number 2010.- 04&-111-EH} The Mernorondum 01 Agre-emenl (MOA) between the TCEa and the City o-f EI Po· so**i-~ ~ing**  revised 10**refl~ t~**  otti!rno- livii conlrol measures In ,he**propo~d** rult'moking and the**r'"I~sPe-ctive** re-spons-i- bilitie'S of the City ot EI Paso and the TCEQ. (Prl)ject Number 2011_o2&- MfS-NR) The propcsed EI Pa. so SIP revision would incorporate fhe revi· siom to JO TAe §lJl.IJ7 and the-**r~­ vi~d**  MOA lnlo fhe PM SIP. {ProilCI Number**2011~10-SIP** NRl The commission will**~~11h~S ~~~5~le~~i~1**  Po**~plember** 27, 2:00 p.rn In Paso Ri!- 

## ton**e'A~~n~~** Sulle

_**Th~** heor- ing is slruc1ured for Iha receipt at oral or writlen commenls by inlerltsfed persons. Individuals may present oral stole- menls When coiled upon in order of**r~_** islrafion. OPE," di:o;.- cus.sion will nof be permitted during the hearing; howevir, comrnlSSlon stoff**mem~rs** will be ovoiJobh: 10 discu'Ss tha proposol JO mi- nufes prior 10 The hearing. Person'S who hove special COlnfnunico

_ tion or other occam. modolion nee-ds Who are planning to at- lend lhe hearing should confoct Sandy Wong, OffiCI! ot Ll!'IJol ServICes of (512) 239- 1802, Ri<>QUeSfS should be mocie as for in advance as P<ls5oible. Written cornmenf5o may be SUbmitted 10 c,'1orlorte Horn, Me 205. Office of L!'9ol**Servfc~,** Texas Com- m,s.slon on Environ_ menfal Quality, P.O, Box 13087, Austin, Texas 78711-3087, or 'axe<! fa (5121 m- J8(18. Electronic comments may be submitted ot: http://wWW5,tc.q.lex**oS·90vJrule~ecomm.** ntsl. File Size re**r~ri~b~~e7;~y g~F~~**  sUbmirted via Ihe eComml!'nts sYStem. All commenl5 'hould reference the project number that the cam- mltnf Pertoins fo: Rule Proied Number 2010-a!0-111-EN for HlP.**proPO~** rule amendments; Pro;- eel Number 1011-lJ26- MIS-NR lor the era- POsed MOA; alld Pro,ect Numb>!r :roll· 1J1a-S1P·NR lor Ihe proposed £1 Paso SIP rl1v;sion. Th", comment period closes Ocrober J, 2011. Copies of thil proPOS-i.>d rulE.'lTloking con be obtained from the commission's Web sitt of**http://W"Nw_tc~Q.** taXOS. If0vln a vIrules!**~~~-~:sSI!-o~doF~a ht:~.** 

# • Theproposedrulemakingwouldre ise §106.352torestoretherequirement t"hat allY facility handling sou gas shall be located at least onequartermile from any recreational rcaorresidence or other structure not occupied 01' used solely by th OWnel' or operator ofthe facility or the owner ofthe property upon hlch the facility is located, as the requirementexisted in §106.352 pi orto the 'anuary 26, 2011 amendment. This requirement would be dded 1n proposed §106.352(1)(3). The subsequent paragraphs ofsub ection (I) would be re-numbered. The proposed rulemaking would a so correct typographical errors in §106.352 andthe non-ruleAirQual ty StandardPermitfor Oil and Gas Handling and Production Facilities PUBLIC I-IEARING



# • • • The commission will hold apublic earing on this proposal in Austin on October3,2011 at2:00 p.m. in uilding E,Room201S at the commission's central office located at 2100 Park 35 Circle. The hearing is structured for the receipt oforal I' written comments by interested persons. Individuals may present 0 'al statements when called upon in order ofregistration. Open discussi n will notbe permitted during the hearing; however, commission sta members will be available to discuss the proposal 30 minutes prior 0 the hearing. Persons who have special comm 'cation or other accommodation needs who are planning to attend he hearing should contact Sandy Wong, Office ofLegal Services, a (512) 239-1802. Requests should be made as far in advance as possi 1e. PUBLIC CON1MENT AND INFO Written comments may be submi ed to Mi.chael Parrish, MC 205, Office of Legal Services, Texa Commission on Environmenta! Quality, P.O. Box 13087, Aust , Texas 78711-3087, or faxed to (512) 239·4808. Electronic omments may be submitted at: http://www5.tceq.state.tx.us/ru1esl omments/. File size restrictions may apply to comments being sub itted via ilie eCo1l11llents system. All comments shouldreferencethe vision to 30rAe §106.352andlor ilie Standard Permit under Rule roject Number 2011-014-1 Q6-PR. The comment period closes Octo er 3, 201L Copies of thc proposed rulemaldng can be obtained fi'om the commission's website at http://www.tceq.te.:r:as.gov/nav/rule/proposeadopt.htm!.Toinoulre about the submittal ofcomments r for fU1ilIer information, c011tact Blake Stewart, Air Permits Divisio , (512) 239-6931. TRD-2011 03309 Robert Martinez Director, Environmental Law Dlvislo Texas Commission on Environment I Quality Filed: Augus! 19, 2011

Notice 

### ofa Public Hearing on ProposedRevisions to 30 TAC Chapter 

### III and Revisions to the State Implementation Plan The Texas Commission on Environmental Quality (commission or TCEQ) will conduct a public hearing to rcceive testimony regarding proposed revisions to 30 TAC Chapter Ill, Control ofAir Pollution from Visible Emissions and Particulate Matter, §111.147; and to the state in1plementation plan (SIP), under the requirements of Texas Health and Safety Code §382.017; Texas Government Code Chapter 2001, SubchapterB; and 40 Code ofFedel'al Regulations §51.102 of theUnited StatesEnvironmental Protection Agency (EPA) regulations conceming SIPs. The proposed rulemaking would amend §1l1.I47(l)(E) to remove the requirementto pave alleys atthe rate of15 miles peryem; and replace it with the following requirements: 1) all new alleys must be paved; 2) alleys may not be used for trash pickup; and 3) the usc ofrecycled Notice ofa Public Hearing on roposed Revisions to 30 TAC Chapter 106 The Texas Commission on Enviro mental Quality (TCEQ) is providing an opportunity for public comn ent and wilt conductapublic hearing to receive testimony concernin the proposed amendment ofTitle 30 Texas Administrative Code (30 C) §106.352, Oil and Gas Production Facilities. The hearing w 1 also provide an opportunity for public commenton aproposed arne Idmentto the non-ruleAil' Quality Standard Permit for Oil and Gas H ndling and Production Facilities. PROPOSED PERMIT BY RULE ND STANDARD PERMIT a frequency of at least once eery month (not to exceed 35 days between each monitoring); PE ALTY: $5,200; ENFORCEMENT COORDINATOR: Rlliesll Ach rya, (512) 239-0577; REGIONAL OFFICE: 5425 Polk Avenue, Site H, Houston, Texas 77023-1486, (713) 767-3500. (21) COMPANY: TCA IN RNATIONAL Il'iV'ESlMENTS, INCORPORATED dba AI's od Mart; DOCKET NUMBER: 2011-0668-PST-E; IDENTIF : RNI01431567; LOCATION: La Grange, Fayette County; YPE OF FACILITY: convenience store with retails sales of gas ine; RULE VIOLATED: 30 TAC §334.49(a)(l) and TWC §26.34 5(d), by failing to provide proper corrosion protection for the und 'ground storage tank (UST) system; 30 TAC §334.50(b)(I)(A) and WC §26.3475(c)(I), by failing to monitor the USTs for releases a a frequency of at least once every month (not to exceed 35 days etweeneach monitoring); 30 TAC §334.72, byfailingto report asus ectedrelease to the TCEQ within 24 hours ofthe discovery; and 30 T C §334.74, by failing to investigate a suspected release within 30 day ofdiscovery; PENALTY: $13,600; ENFORCEMENT COORDINA: R: Cara Windle, (512) 239-2581; REGIONAL OFFICE; 2800 So h IH 35, Suite 100, Austin, Texas 78704-5712, (512) 339-2929. (22) COMPANY: UHS of Tex ma, Incorporated dba Behavioral Health Center; DOCKET N 1 ER: 2011-0676-PST-Ej IDENTIFIER: RNI01567055; LOCATIO : Sherman, GraysonCounly; TYPE OFFACILITY: healthcare; RULE VIOLATED: 30TAC §334.50(b)(2) and TWC §26.3475(b), by failin to provide release detection for the suction piping associated with tll underground storage tank (08T); and 30 TAC §37.815(a) and (0), y failing to demonstrate acceptable financial assurance for taking cor ective action and for compensating thirdparties forbodily iqjury and ropertydamage caused by accidental releases arising from the opera'on ofpetroleumUSTs; PENALTY: $3,000; ENFORCEMENT CO INATOR: Andrea Pal'k, (512) 239-4575; REGIONAL OFFICE 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-58 (23) CONIPANY: Vinod Nagi db Park N Sal< II; DOCKET NUMBER: 201l-0994-PST-E; IDENTI IER: RNI02462660; LOCATION: Cedar Park, Williamson County; YPE OF FACILITY: convenience store with retail sales of gasoli e; RULE VIOLATED: 30 rAC §334.50(b)(I)(A) and TWC §26 475(c)(I), by failing to monitor underground storage tanks for r leases at a frequency of at least once per month (not to exceed 3 days. between each monitoring); PENALTY: $4,500; ENFORCE NT COORDINATOR: Raymond Marlow, P.G., (409) 899-8785; R lONAL OFFICE: 2800 South ill 35, Suite 100, Austin, Texas 7870 5712, (512) 339-2929. TRD-2011034i2 Kathleen C. Decl<er Director, Litigation Division Texas Commission on Environmen Filed: August 23, 2011 

# •

INADDITION September 2, 

## 2011 36 

## TexReg 5725

# + asphaltproduct as defined in §111.145 and §111.147(1), may be used as an alternate means ofParticulateMattercontrolfor alleys. Theproposal will also amend §1ll.147(2) to change the sweeping frequency**req~ljremcll,t** fromfour times peryearto thrcetimes peryearinthe city limits andfromshe timespel'weekto foUl' timesperweekinthe central business district. (Rule ProjectNumber 2010-046-111-EN) The Memorandum ofAgreement (MOA) between the TCEQ andthe City of**~l** Paso is beingrevised to reflcctthe alternative control measures in theproposedrulemaking andtherespective responsibilities of the City ofEll'aso and the TCEQ. (projectNumber 2011-026-1\'118- NR) The proposed EI Paso SIP revision would incorporate the revisions to 30 TAC §111.147 and the revised MOA into the PMSU'. (Project Nnmber 2011-010-SIP-NR) The commission will hold apublic hearingonthis proposal inEl Paso 011 September27,2011 at2:00 p.m. inthe El Paso Regional·Office, at 401 E. Franklin Avenue, Suite 560. The hearing is structured for the receiptoforal or writtencomments by interestedpersons. Individuals may presentoral statements whencalledupon in orderofregistration. Open discussion will not be permitted during the hearing; however, commission staffmembers willbe availableto discuss the proposal 30 minutes prior to the hearlng, l'ersons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, OfficeofLegalServices at (512) 239-1802. Requests should be made as far in advance as possible. Written comments may be submitted to Charlotte Hom, MC 205, OfHce of Legal Services, Texas Comlll,issionon Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.texas.gov/ruleslecommentsl. File size restrictions may apply tocornments'being s"\lbmitted via the eComments system. All comments should reference the project number 

### that the comment pertains to: Rule Project Number 2010-046-1l1-EN for the proposed rule amendments; Project Number 2011-026-MlS-NR for the proposed MOA; and Project Number 2Q11-010-SIP-NR for the proposed El Paso SU' revision. The comment period closes October 3, 2011. Copies ofthe proposed rulemaking can be obtained from the commission's website at http://www.tceq.tems.gov/navlrules/propose_adopt.hlml; Copies of the proposed SIP revision, MOA, and appendices can be obtained from the commission's website at http://wwlIl,lceq.texas.gov/airquality/sip/elp/elp-latest-pm. Forfhrther information, please contact Peter A. Ogbeide, Air Quality Division, (512) 239-1937. ' TRD-2011 03305 Robert Martinez Director. E;nvironmental Law Division Texas Commission on Environmental Quality Filed: August 19, 2011 

# + Notice of

### Opportunity to Com ent on Agreed 

### Orders of Administrative Enforcement A tions The Texas CommiSBion onEnviro entalQuality (TCEQ orcommissiou) staffis providing an opportu ity for written public commenton the listed Agreed Orders (AOs) in ccordance withTexas Water Code (TIVC), §7.075. TWe, §7.075 Ie uires that before the commission may approve the AOs, the commi ion shall allow the public an opportunity 

### to submit written comm nts on the proposed AOs. TWC, §7.075 requires thatnoticeofths op ortunitytocommentmustbepublished in the Texas Registerno lat rthan the JOth day before the date onwhichthepublicconunentperi dcloses,which inthis caseis October3, 2011. TWC,§7,075 also re. uires thatthe commissionpromptly considerany written comments re ived andthatthe commissiollmay withdraw 01' withhold approval of nAO ifacomment discloses facts orconsiderations that indicatetha consentis inappropriate, improper, inadequate, or inconsistent with t e requirements ofthe statutes and rules withinthe cOinmission'sjuri diction or the commission's orders and permitsissuedin aceordanclO ththe commission'sregulatory authority. Additional notice ofchang s to aproposed AO is notrequirlOd to be published ifthose changes made inresponse to written comments. A copy ofeach proposedAo is av Uable·forpubllc inspection atboth thecommission's centraloffice, loe ted at 12100Park35 Circle,Building A, 3rdFloor, Austin, Texas 78 53, (512) 239-3400 and atthe applicable regional office listed as fo ows. Written comments about an AO should be sentto the attorney esignated for the AO at the commission's central office at P.O. Bo 13087, MC 175, Austin, Texas 78711-3087 and must be receivcdy 5:00 

### p.m. on October 3, 2011. Comments may also be sent by fa simile machine to the atto1'lley at (512) 239-3434. The designated a orney is available to discuss the AO and/or the comment procedure at the l.isted phone number; however,TWC, §7.075providesthatco ments on anAO shaU be submitted to the commission in writing. (1) COMPANY: COllocoPhiHips 2011-0326-AIR-E; TCEQ ID TION: State Spm 119 North ncar orgel', Hutchison County; TYPE OF FACll,ITY; petroleum refinery RULES VIOLATED: 30 TAC §101.20(3} and §116.715(a), Flexi Ie Permit Numbers 9868A and PSDTXI02M7, Special Conditions umber 

### i, and Texas Health and Safety Code (THSC), §382.085(b), yfailing to preventunauthorized

. emissions; 30 TAe §116.615(4) an THSC, §382.085(b), by failing

to submit notification for the start of construction and completion ofconstruction within 15 days of currence ofthe event; 30 TAC §116.615(5) and TI-ISC, §382.085( ), by failing to submit notification prior to commencement of op ration; 30 TAe §113.1090 and §122.143(4), Federal Operating Pel it (FOP) Number 01440, General Terms and Conditions, 40 Cod ofFederal Regulations (CFR), §63.6640(a) and THSC, §382.085 ), by failing to maintain the temperature ofthestationaryrecipro ling internal combustion engine exhaustso the·catalystinlettemperat re is greaterthan orequal to 750 degrees Fahrenheit; 30 TAC §§lO1.2 (3), 116.715(a), and 122.143(4), Flexible Permit Numbers 9868A an PSDTX102M7, Special ConditionsNumber2.B., FOPNltmber014 0, SpecialTerms andConditions Number 17.A, 40 

### CPR §60.18(f)(2, and THSC, §382.085(b), by failing to mOllitor the pilot f1llUle w th a thermocouple, an infrared monitor, or equivalent.device; 301: C §§ 101.20(3), 116.715(a), and 122.143(4), Flexible Permit Numb s 9868A and PSDTXI02M7, Special Conditions Number 27, FOP Number 01440, Special Terms and Conditions Number 17.A., 40 FR §60.l04(a)(I), and THSC, §382.085(b), by failing to maintain th hydrogen sulfide concentration in the fuel gas used to fire all heaters, oilers, and tail gas incinerators below 162 parts per million by vol!J e; 30 TAC §122.I43(4), FOP Number01440, GeneralTerms andC ditions, 40 CFR, §63.427(a)(3) and§63.650(a), and THSC, §382.08 (b), by failing to operate and maintain a continuous monitoring sy tem capable ofmeasuring the tempemture ofthe thermal oxidizer; and 30 TAC §101.20(3) and §116.715(a), Flexible Permit Num s 9868A and PSDTXI02M7, Speciai Conditions Number 1, and C, §382.085(b), by failing to preventunauthorized emissions; PEN, LTY: $141,925, Supplemental Environmental Project (SEP) offset mount of $70,962 applied to Texas Congress of Parents and Tea hers

- Texas Parent Teachers Association Clean School Bus Progl' m; STAFF ATTORNEY: Jeff



## 36 TexReg 5726 

## September2,2011 Texas RegisterBryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. Vickery, P.G., 

### Executive Director



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducing andPreventingPollution 

## Public Hearing on Proposed Revisions to 30 TAC Chapter 111 and Revisions to the State Implementation Plan

The Texas Commission on Environmental Quality (commission orTCEQ) will conduct a public hearing to receive testimony regarding proposedrevisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter, §111.147; and to the state implementation plan (SIP), underthe requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 ofthe United States Environmental Protection Agency (EPA) regulations concerning SIPs.
The proposedrulemaking would amend §111.147(1)(E) to remove the requirement to pave alleys at the rate of 15 miles peryear, and replace it with the following requirements: 1) all new alleys mustbe paved; 2) alleys may notbe usedfor trash pickup; and 3) the use ofrecycled asphalt product as defined in §111.145 and §111.147(1), maybe used as an alternate means ofParticulate Matter control for alleys. The proposal will also amend §111.147(2) to change the sweeping frequency requirement from four times peryear to three times peryear in the citylimits andfrom six times perweekto four times perweekin the central business district. 

## (Rule Project Number 2010- °46-111-EN)
The Memorandum ofAgreement (MOA) between the TCEQ and the City ofEl Paso is being revised to reflect the alternative control measures inthe proposed rulemaking and the respective responsibilities ofthe City ofEl Paso and the TCEQ. 

## (Project Number 2011-026-MIS-NR)
The proposed El Paso SIP revision would incorporate the revisions to 30 TAC §111.147 andthe revised MOAinto the PM SIP. 

## (Project Number 2011-010-SIP-NR)
The commission will hold a public hearing on this proposal in El Paso on September 27, 2011 at 2:00 p.m. in the El Paso Regional Office, at 401 E. FranklinAvenue, Suite 560. The hearing is structuredfor the receipt oforal or written comments byinterested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will notbe permitted during the hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes priorto the hearing.
Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact SandyWong, Office ofLegal Services at (512) 239-1802. Requests shouldbe made as far in advance as possible.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is our customer service? tceq.texas.gov 

### jgotojcustomersurvey printed on recycled paper

## Written comments maybe submittedto Charlotte Horn, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

## http://www5.tceq.texas.gov/rules/ecommentsj. File size restrictions may applyto comments being submittedviathe 

## eComments system. All comments should reference the project numberthat the commentpertains to: Rule ProjectNumber 2010-046-111- EN for the proposed rule amendments; Project Number 2011-026-MIS-NRfor the proposed MOA; and Project Number 2011-01O-SIP-NRfor the proposed El Paso SIP revision. The commentperiod closes October 3, 2011. Copies ofthe proposed rulemaking canbe obtained from the commission's Web site at 

## http://www.tceq.texas.gov/nav/rules/propose_adopt.html. Copies ofthe proposed SIP revision, MOA, and appendices canbe obtainedfrom the commission's Web site at 

## http://www.tceq.texas.gov/airquality/sip/elp/ elp-latest-pm. Forfurther information, please contact PeterA. 

## Ogbeide, Air Quality Division, (512) 239-1937.

### ill**[~]** Total emissio s ofsulfur compounds, excluding sulfuroxides, from all ventsshall n exceed4.0poundsperhour(lblhr) and the height ofeach vent emitti sulfur compounds shall meetthe following requirements, except in 0 case shall the height be less than 20 feet, where the total emission I' eas H,S, Ib/IH', and minimum vent height (feet), and othervalues may be interpolated: (A) 0.27 Iblbr at 20 eet; (B) 0.60 Iblhr at 30 eet; (C) 1.94 Ib/hr at 50 eet; (0) 3.00 Iblhr at 60 eet; and (E) 4.00 Ib/hr at 68 eet. 

## ill [(4)] Before opera n begins, facilities handling sour gas shall be registered with the co mission's Office ofPermitting and Registration in Austin using Form P1-7 along with supporting documentation that all requirements of is subsection will be met. For facilities constructed under §106.353 ofthis title (relating to Temporary Oil and Gas Facilities), theregistl1l on isrequired before operationunder tbis subsection canbegin. Ifth facilities cannotmeetthis subsection, apermit underChapter 116 a his title (relating to ControlofAir PollutionbyPermitsforNewCons etionorModification) isrequired prior to continuing operation ofth facilities. (m) The following tables s all be used as required in this section. Figure: 30 TAC §106,352(m) [.J.1.igare+**~:rAG t1-G~]**  Thisagency hereby certifies that he proposal has been reviewed by legal counsel and found to be ithin the agency's legal authority to adopt. Filed with the Officeofthe Secre aryofState on August 19, 2011. TRD-2011 03308 Robert Martinez Director, Environmental Law Divisi Texas Commission on Environment I Quality Earliest possible dale of adoption: ctober 2, 2011 For further information, please call: 512) 239-2548 

# • • CHAPTER 111. CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER SUBCHAPTER

## A. VISIBLE EMISSIONS AND PARTICULATE MATTER DIVISION 4. MATERIALS HANDLING, CONSTRUCTION, ROADS, STREETS, ALLEYS, AND PARKING LOTS 30 TAe §111.147 The Texas Commission on Environmenta[Quality (TCEQ or commission) proposes an amendment to §111.147. If adopted, the revision would be submitted to the United States Environmental Protection Agency (EPA) as a revision tothe state implementation plan (SIP).



## 36TexReg 5640 September2,2011 Texas Register Background and Summary ofthe Factuai Basisforthe Proposed RUle Under the 1990 Federal Clean Air Act (FCAA) Amendments, the City of EI Paso (EI Paso area) was designated nonattainment under FCAA, §107(d)(4)(B) for particulate matter (PM) with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM,,) National Ambient Air Quality Standard (NAAQS) and subsequently classified as a moderate PM" nonattainment area. In November 1991, the Texas Air Control Board (TACS), 

### a predecessor agency of th'e TCEQ, submitted the EI Paso PM" Attainment Demonstration SIP revision. The SIP revision included PM controi measures in §111.147. The control measures adopted In §111.147 required paving as a method ofdust control in the City for specified r9ads and added a requIrement that alleys be paved at the rate of 15 miles per year. Section 111.147 also set frequencies for street sweeping in designated sections of the City. in 1991, a Memorandum of Understanding (MOUl between the City of 

### EI Paso (the City) and the TACB was approved to outlinethe responsibilities and regulatory requirements for both parties. This MOUwas replaced with a Memorandum ofAgreement (MOA) with the City in 2001 with the same requirements. On November 21, 2003, the E[ Paso Metropolitan Planning Organization SUbmitted a letter requesting that the TCEQ develop a PM" redesignation requestand maintenance plan. On December 28, 2009, the TCEQ requested information from the City to ascertain what efforts EI Paso has taken to supporta request for redesignation. In a response letter dated January 29, 2010, the City indicated the following: the City has programs funded annually in the City's capital improvement budget and in the Street Department operations budget in an effort to comply with environmenta[ regulations: the City has committed to an alley paving program ata level in alignment with its own internal budgetary capacities, not at the rate of 15 miles per year as required under§111,147; the City maintains an inventory ofstreet and alley paving efforts to documentthe current status and projections for future paving activities; and the City's Air Quality Program conducts surveillance and investigations to ensure compliance with, and enforcement of, the Chapter 111 rules. The EI Paso area is monitoring attainment with the 1997 PM,. NAAQS. Forthe site reporting regulatory PM;. data for all three years from 2007

- 2009 (Socorro AQS iD 481410057), there were no exceedances ofthe PM" 24-hour NAAQS. Subsequent data from the City indicates that from 1991

- 2010, the percentage of unpaved alleys has significantly decreased from 66% to 16% of the total alleys in the City, with approximately 23 miles of unpaved alleys remaining. Any new alleys mList be paved by developers in accordance with a city ordinance. Furthermore, the City discontinued garbage collection in alleys in 1997, so the traffic in alleys has been dramatically reduced, and reclaimed asphalt pavement (RAP) has been used to coversome unpaved aileys, which has proven to be as effective as paving, [n addition, the City has also been performing PM control measures that are not required by§111.147orthe MOA. Forthe site reporting regulatory PM,. data for all three years from 2007

- 2009 (Socorro AQS ID 481410057), there were no exceedances of the PM" 24-hour NAAQS,and with the minlma[ amount of unpaved alleys remaining in the El Paso area, the paving rate requirement in §111.147 should no longer be considered necessary for attainment ofthe 1997 PM" NAAQS. The proposed rulemaking is necessary to revise §111.147 to provide the Citywith alternative methods of PM control consistentwith maintenance ofthe stan-dard. The proposed rulemaklng would also revise §111.147 to allowthe Cityto sweep streets at reduced frequencies, sincethe progress made bythe City's alleyand road paving programs has reduced the overall amount of fugitive dust in the EI Paso area. Finally, the City indicated that itwill continue to Include streetand alley paving and sweeping in its annual budget for maintenance ofthestandard. Based on these sUbstitute and supplemental aotions, compliance with the anti-backsliding provisions In FCAA, §110(1) can be demonstrated. Although the MQAis not specifically part of this proposed rulemaking project, if adopted, the 2001 MOA with the City will be revised to be consistent With the amendments to §111. 147. Demonstrating Noninterference Under FCAA, §110(1) The commission provides the following Information to clarifywhy the proposed amendment to §111.147(1 )(E) and (2)wUlnotnegatively impact the status of the state's attainment with the PM•• NAAQS. The requirementfor reasonable notice and public hearing will be satisfied through a public hearing scheduled for September27, 2011. The public comment period will begin September 2, 2011, and end October 3, 2011. According to the EPA draft guidance issued on June 8, 2005, DemonstratingNoninterferenc(J Under Section 110(1) ofthe Clean AirAct When Revising a State'lmplementation Plan, areas have two options available to demonstrate noninterference for affected pollutant(s). This preamble provides details ofthe identified existing measures thatthe commission will use to establish compliance With option one of the EPA's draft guidance: substitution of one measure by another with equivalent or greater emissions reduction/air quality benefits. Background in accordance with the FCAA and EPA guidance, the TACS was reqUired to demonstrate either attainmentofthestandard by December 31,1994, or demonstrate that attainment by that date was Impracticable. FCAA, §179B provided that moderate nonattainment areas would not be redesignated as serious ifthe state could demonstrate that such areaswould achieve attainment by the deadline if it were not for air quality impacts caused by another country. In response to the §179B provision, the TACS demonstrated attainmentofthe PM j • NAAQS through dispersion modeling of United States emissions alone. Furthermore, the EPA guidance contained in the 

### PM

.. Moderate Area SIP Guidance: Final Staff 

### Work Product, April 2, 1991, prescribed that SIPs for moderate PM j • nonattainment areas contain quantitative milestones to be achieved every three years, and that the SIP revisions demonstrate reasonable further progress (RFP) towards attainment. However, the TACB submitted information establishing that an RFP demonstration was not strictly applicable. Specifically, based on the international impacts provision in FCAA, §179B, the TACS demonstrated that the EI Paso nonattainmentarea would attain the PM,. NAAQS both at the time of the SIP revision In 1991 and at the time compliance would be required under the SIP in 1994, based on modeling of United States emissions alone. Therefore, there are currently no more requirements for a demonstration of reductions to United States emissions. However, to help minimize PM,. impacts from EI Paso sources, the TACB adopted several new or enhanced control measures in its 1991 SIP revision. These measures included revisions to §§111.111, 111.141, 111.145, and 111.147. The control measures adopted in §111.147 required paving as a method ofdustcontrol in the EI Paso areaforspecified roads and added a requirement that aileys be paveq atthe rate of 15 miles peryear. Section 111.147 also setfrequencies forstreet sweeping in designated sections of the EI Paso area. The EPA-approved 1991 EI Paso PM,. Attainment Demonstration SIP revision includes the PM control measures in Chapter 111. Conclusion The City has decreased the unpaved alleys from 66% to 16% between 1991 and 2010. Also, for the monitoring site reporting regulatory PM,. data forall threeyears from 2007

- 2009 (Socorro AQS 10481410057), there were no exceedances of the PM,. 24-hour NAAQS. The City also put in place provisions that the unpaved alley inventory will not increase because a city ordinance requires developers to pave any new alleys. Furthermore, the City discontlnuedgarbage collection in alleys in 1997, so the traffic in aileys has been dramatically reduced. City action to reduce airborne PM,. has also reduced the need to sweep streets at the frequencies specified under the current rule, and RAP, which has been proven to be as effectiveas paving, has been used to coversome unpaved alleys. In addition, the City also continues to include alley paving and maintenance In Its annual budget. Because the EI Paso area is monitoring attainment of the PM j • NAAQS based on the monitoring site reporting regulatory PM•• data for all three years from 2007

- 2009 (Socorro AQS ID 481410057), with the City's current practices in place, revising §111.147 to reflect these current practices would not interfere with the EI Paso area's ability to attain and maintain the PM,. NAAQS. Section Discussion The proposed revisions to §111.147. Roads, Streets, and Alleys would amend §111.147(1)(E) to remove the requirementto pave alleys at the rate of 15 miles peryear and replace [t with the following requirements: 1) all new alleys ml,.lst be paved; 2) alleys may not be used for garbage and recycling collection; and 3) the use of RAP may be used as an alternate means of PM control for alleys. The proposed revision would also amend §111.147(2) to change the sweeping frequency requirementfrom four times per year to three times per year in the city limits and from six times perweekto fourtimes perweek in the central business district. The commission invites comment on the proposed changes to §111.147 discussed in this Sedion Discussion portion ofthis preamble. Additionally, comments on other portions of §111.147 unrelated to the proposed changes will not be considered bythe commission, and no changes wili be made on such comments.

. Fiscal Note: Costs to State and Local Government

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first**flve~year** period the proposed rule Is In effect, no significant fiscal implications are anticipated for the agency or other units of state or local government as a result ofadministration or enforcement ofthe proposed rule. The proposed rule would amend Chapter 111 to allow more fiexibility for the City to continue to comply with the 1997 PM,. NAAQS. The current rules require the Cityto pave alleys to con" trol dust and specify that 15 miles of alieys per year be paved. The current rules also require the removal of soli by mechanical sweepers or their equivalent on public thoroughfares within the city limits at the rate of four times per year and six times per week for public thoroughfares within the central business district. The City has used a variety of methods to comply with



### PROPOSED RULES September 2, 

### 2011 36 

### Te.\;Reg 5641the required levels for PM,. including alternative methods of control not required by the Chapter 111 rules. However, due to budgetary constraints Ifmiting the paving and sweeping capacity for the City, it is necessary to substitute the alternative control strategies in the rules to provide flexibility forthe Cityand ensure continued compliance with the PM" NAAQS, For example, the City has eliminated garbage and recycling collection in alleys. This change has decreased traffic in alleys and reduced airborne PM,•. The City has also required developers to pave new alleys and has used RAP to cover some existing unpaved alleys. RAP has proved as effective as other paving materials at reducing PM,.. As a result ofthis action, the EI Paso area is in compliance for PM,., for the monitoring site reporting regulatory PM,. data for all three years from 2007

_2009 (Socorro AQS ID 481410057), there were no exceedances of the PM", 24-hour NMQS, and the inventory of unpaved alleys has aecreased from 66% in 1991, to 16% In 2010, with approximately 23 miles of unpaved alleys remaining. The City action to reduce airborne PM,. has also reduced the need to sweep streets at the frequencies specified under current rules. The proposed rule would remove specific requirements for the number of miles of alleys to be paved per year, will allow the use of RAP as an alternate means of PM control for pre-existing unpaved alleys, and will decrease the numberof days for streetsweeping publ1c thoroughfares from four to three times per year for those previously specified areas within the city limits. and from six to four times per weekwithin the central business district. The proposed rule will not have a fiscal impact on other local governments orthe City. The proposed rule reflects current practices in EI Paso for PM,. control on roads, streets, and alleys. Public Benefits and Costs Nina Chamness also determined that for each year of the first five years the proposed rule is in effect, the pUblic benefit anticipated from the changes seen in the proposed rule will be continued attainment with PM,. NMQS, and continued protection of pUblic health and safety in EI Paso. For the monitoring site reporting regulatory PM" data forall three years from 2007

- 2009 (Socorro AQS 

### 10 481410057), there were no exceedances of the PM,. 24-hour NMQS.

_ The proposed rule will not have afiscal impact on individuals or large businesses in EI Paso since it gives the City moreflexibility than current rules and reflects current practices in EI Paso for PM,. control on roads, streets, and alleys. Smali Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or microbusinesses in EI Paso. The proposed rule revision gives the City more flexibility than current rules and reflects current practices in EI Paso for PM,. control on roads, streets, and alleys. Small Business Regulatory FlexibllityAnalysis The commission has reviewed this proposed rulemaking and determined that asmall business regUlatoryflexibility analysis is not required, because the proposed rule does notadversely affect a small or micro-business in a material way for the first five years that the proposed rule is in effect.

- local Employment Impact Statement The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required, because the proposed rule does not adversely affect a



## 36 TexReg 5642 

## September 2,2011 Texas Register local economy in a material way for the first five years that the proposed rule is in effect. Draft Regulatory impact Analysis Determination The commission reviewed the proposed rulemaking In light of the regUlatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that this proposal is not SUbject to Texas Government Code, §2001.0225 because it does not meetthe definition ofa majorenvironmental 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, productivity, competition, jobs, the environment, orthe public health and safety of the state or a sector of the state. The proposed rulemaking is not a major environmental rule because the revisions to Chapter 111 will allow more flexibility forthe Cityto continue to comply with the 1997 PM,. NAAQS. Forthe monitoring site reporting regulatory PM,. data forali three Yfilars from 2007

- 2009 (Socorro AQS ID 48141 0057). there were no exceedances ofthe PM,. 24-hour NAAQS. The proposed rule revision 

### will remove specific requirements for the number of miles of alieys to be paved per year, will allow the use of RAP as an alternate means of PM control for pre-existing unpaved alleys, and will decrease the number of times that soil is to be removed from public thoroughfares from four to three times per year for those previously specified areas within the city limits, and from six to fourtimes perweekwithin the central business district. The public benefit anticipated from the changes In the proposed rule will be continued attainment with PM,. NMQS, and continued protection of public health and safety in EI Paso, Forthe monitoring site reporting regUlatory PM" data forall three years from 2007

- 2009 (Socorro AQS ID 48141 0057). there were no exceedances of the PM,. 24-hour NMQS. The proposed amendment will not adversely affect in a material waythe economy, asectorofthe economy, productivity, competition, jobs, the environment, orthe public health and safetyofthe state or a sector of the state. The proposed rule will not have a fiscal impact on individuals or large businesses in EI Paso since it gives the City more flexibility than current rules and reflects current practices in EJ Paso for PM,. control at') roads, streets, and alleys. In addition, a draft regulatory impact analysis is not required because the rule does not meet any of the four applicability criteria for requiring a regUlatory impact analysis of a majorenvironmental rule as defined in the Texas Government Code. Texas Government Code, §2001.0225 applies only to a major environmental rule, the result ofwhich is to: 1) exceed astandard set by federal law, unless the rule is specificaliy 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 agreementor contract between the state and an agencyorrepresentative ofthefederal governmentto 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. This rulemaking does not exceed a standard set byfederal law. This rulemaking does not exceed an express requirement of state law and is not proposed solely under the general powers ofthe agency, but is specifically authorized bythe provisions cited in the StatutoryAuthority section ofthis preamble. Finally, this rulemaking does not exceed a requirement of a delegation agreementorcontractto implementastate and federal program.The commission invites public comment on the draft regulatory Impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person .at the address listed under the Submittal of Comments secti.onof this preamble. Takings Impact Assessment The commission evaluated this rulemakingaction and performed an analysis ofwhetherthe proposed rule constitutes ataking under Texas Government Code, Chapter 2007. The primary purpose of the rulemaking is to allow more flexibility for the City to continue to comply with the 1997 PM,. NAAQS. This rulemakingdoes not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exIst in the absenceofthe governmental action. Promulgatlon and enforcement ofthis proposed rulemaking is neithera statutory nora constitutional taking because It does not affect private real property. Specifically, the subject proposed regulations do not affect a landowner's rights In real property because this rulemaking does not burden (constitutionally); nor restrict or limitthe landowner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in absence ofthe regUlations. Therefore, this rule does not constitute alaking underTexas Government Code, Chapter 2007. Consistency with the Coastal Management Program The commission reviewed the proposed rulemakingand found the proposal is a rulemaklng identified in the Coastal Coordination Act Implementation RUles, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal Management Program, and Will, therefore, require that goals and policies of the Texas Coastal Management Program (GMP)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 will not affect any coastal natural reSOUrce areas because the rules only affect counties outside the CMP area and is, therefore, consistent with CMPgoals and policies. Written comments on the consistency ofthis rulemaking may be submitted to the·contact person at the address listed under the Submittal of Comments section of this preamble. Effect on Sites Subject to the Federal Operating Permits Program The commission has reviewed this proposed fulemaklng and determined that, although §111.147 is an applicable requirement of 30 TAC Chapter 122, the proposed changes would only affect paving and ptreet sweeping requirements for the City of Ei Paso, not Individual emission units at sites. Therefore, the proposed changes do not affect sites subject to the Federal Operating Permits Program. Announcement of Hearing The commission wili hold a public hearing on this proposal in EI Paso on September 27,2011, at 2:00 p.m. Mountain Standard Time in the EI Paso State Office Building, 401 East Franklin, Room 570, El Paso, Texas 79901. The hearing is structured for the receiptoforal orwritten comments by interested persons. individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff memberswill be availableto discuss the proposal 30 minutes priorto the hearing. Persons who have special communication orotheraccommodation needswho are planning to attend the hearing should contact Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Submittal of Comments Written commer,its may be submitted to Charlotte Horn, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electroniccolllments may be submitled at: http://www5.tceq.texas.govlruleslecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2010-046-111-EN. The comment period closes October 3, 2011. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.texas.gov/navlru/es/propose_adopt.html. For further Information, please contact Peter Ogbeide, Air Quality Division, (512) 239-1937. Statutory Authority The amendment Is proposed under Texas Water Code (TWC), §5.103, ccncernlng 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. The amendment is also proposed under Texas Health and Safety Code (THSC), Texas Clean Air Act, §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; THSC, §382.011, concerning General Power and Duties, which authorizes the commission to control the quality ofthe state's air; THSC, §382.012, concerning Stale Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; §382.0172, concerning international border areas; and THSC, §382.0173 concerning Adoption of Rules Regarding Certain State Implementation Plan Requirements and Standards of Performance for Certain Sources. The proposed amendment implements THSC, §§382.002, 382.011,382.012,382.017,382.0172, and 382.0173. §1l1.147. Roads, Streets, andAlleys. No person may cause, suffer, allow, or permit any public, industrial, commercial, or private road, street, 01'.alley to be used without taking at leastthe following precautions to achieve controlofdustemissions: (l)applicationofasphalt, water, 01' suitable 

### oil or chemicals on the following unpaved surfaces, except in the City ofEi Paso

. and the Fort Bliss Military Reservation, except as noted in §111.141 ofthis title (relating to Geographic Areas ofApplication and Date of Compliance), where the use ofpaving materials is the only acceptable method ofdust control, unless otherwise specified: (A) il1dustrial facility roadways--all major in-plant roads and all truck or other heavy-duty vehicle pathways. Major in-plant roads shall be defined as those which are designed to aCC0111- modate two-way traffic and are at least 30 feet wide at [at] least one point, measuring the distance from the edge ofthe undisturbed earth on either side ofthe established roadway. The executive director, with the concurrence ofthe United States Environmental Protection Agency, may grantawaiverfrom thel'equiremenltopave an industrial



## PROPOSED RULES September

## 2, 2011 

## 36 TexReg 5643collection; and



# + FETY AND CORREC37 TAC §35.33

Safety (the department) proning Certificate of Installation, larm Installers arising from the the statutory provision giving and the rule now serves no**(Editor~** note: The text of thefolio ing section proposedfor repeal 

### will not bepublished. The section ay be examined in the offices of the Texas Department of Public Safi or in the Texas Register office, Room 245, James Earl RudderBull ing, 1019Brazos Street, Austin. Texas.) The Texas Department of Publi poses the repeal of§35.33, cone This rule clarified an obligation of Texas Insurance Code. Howeve rise to this rule has been repeal purpose. Denise Hudson, Assistant Direc or, Finance, has determined that for each year of the first five- ear period the repeal is in effect, there will be no fiscal impact or state and local government or local economies. Ms. Hudson also has determine that there will be no adverse economic effect on small busin ses or micro-businesses required to comply with the repeal. here are no anticipated economic costs to Individuals who a e required to comply with the repeal. There is no anticipated ne ative impact on local employment. In addition, Ms, Hudson has dete ihed thatfor each yearofthe first five-year period the repeal is in effect, the public wm benefit from greater coherence and si pliclty In the private Security Board'sadministrative rules, Ther should be no economiccosts resulting from the repeal of this r Ie. The department has determined at this proposal is not a "major enVironmental rule" as define by Texas Government Code, §2001.0225. "Major envlronmen I rule" is defined to mean a rUle the specific intent of which is to protect the environment or reduce risks to human health fro environmental exposure and that may adversely affect in a ma rial way the economy, a sector of the economy, productivity, mpetition, jobs, the environment, or the pUblic health and sa ety of the state or a sector of the state. This proposal is notspe ificaliy intended to protect the environment or reduce risks to hu an health from environmental exposure. The department has determined t at Chapter 2007 ofthe Texas Government Code does not appl to this proposal. Accordingly, the department is not required to omplete a takings impact assessment regarding this rule. Comments on the proposed re eal may be sent to Steve Moninger, Office of Regulatory Co nsel, Regulatory Services DiVision, Department of Public Safe ,P,O. Box 4087, MSC-0246, Austin, Texas 

### 78752-0246, (512) 424-5842. Comments must be received no later than thirty (30) days from the date of pUblication of thIs proposal. This repeal Is proposed pursuan to Texas Government Code, §411.004(3), which authorizes th Public Safety Commission to adopt ruies considered necessar for carrying out the department's work and Texas Occupatio s Code, §1702.061 (b), which authorizes the departmentto adop rules to administerthis chapter. Texas Government Code, §411.0 4(3) and Texas Occupations Code, §1702.061(b) are affected y lhls proposal. §35.33, Certificate of Installation. 

# • TITLE 37. PUBLIC S TIONS 

## PART 1. TEXAS D PARTMENT OF PUBLIC SAFETY @l the use ofreclaimed asphalt pavement may be used as an alternate means ofparticulate matter control foralleys; and (F) levee roads--in the City ofEI Paso, all levee mads and access to such roads IUust [-shall] be contmlledwiththe application ofasphalt, or suitable oil or chemicals; (2) removal from public thoroughfares, as necessary, of soil or othermaterials,except for sand applied for the specificpurpose ofsnow or ice control. In the City ofEI Paso, removal ofsoil .J:!1.l!§! [ffil:frl.l] be by mechanical sweepers or their equivalent at the rate of three [feuf] times per year for all public thoroughfares within the city limits and four [fillf.] times per week 01' as necessary for public thol'Oughfares within the central business district. For the purpose of this section, the central business district [-s1J.iltl-be] defined as that area bordered by Loop 375 to the south, Santa Fe Street to the west, Missouri Street to the north, lind Kansas Street to the cast. The City ofEI Paso shall spot clean dirty roadways, and shall maintain street sweeping records for two years. Sand applied for the specific purpose ofsnow or ice control must [shalt] bc removed as soon as such control is no longer necessary-.
- This agencyhereby certifies thatthe proposal has been reviewed by legal counsel and found to bewithin the agency's legal authority to adopt.
Filed with the Office ofthe SecrelaryofState on August 19, 2011. TRD-2011 03304 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: October 2,2011 For further Information. please call: (512J 239-0779 fJl all new alieys mustbe paved; {jjl alleys may notbe used for garbage andrecycling



### CHAPTER 35. PRlVAT SECURITY SUBCHAPTER C, STA DARDS facility roadway iftheowner oftheroadway demonstratesthatthe cost ofpaving is economically unreasonable compared to othermethods of dust control specified in this pamgraph; (B) publicthol'Oughf'ares--allroads and streetsto which the public has general access; (C) commercial roads--ali roads which servl) as access for mOI'e than 50 employees OJ' as access to more than 10 heavy-duty truck parking spaces; (D) residential roads--all roads which serve as access for more tlllln 20 residence and/or apartment units; (E) alleys--in the City ofEI Paso, alleys must meet the foliowing requirements:**[flhalLbe~** litilwfate eflitleast.g.ffii.!e& 13e1' yellP,}



## 36 TexReg 5644 

## September 2,2011 Texas Register

# TESTIMONY

### Reference Number


### W-l INDEX OF WRITTEN TESTIMONY

Submitted by
Ellen Smyth, P.E., the City ofEl Paso

### DearMs. Horn: 

## SERVICE SOLUTIONS SUCCESS Dedicated to Outstanding CustomerService fora Better Community

Environmental Services Department 7968 San Paulo Drive, EI Paso, TX 79907 0 (915) 621-6700 0 Fax (915) 621-6711 www.elpasotexas.gov 

### • 30 TAC § 111.147(l)(F). Please add the wording "which are under thejurisdiction ofthe City of

## EI Paso and which have been designated as public thoroughfares" to 30 TAC 

## § 111.147(l)(F),
as indicated in Exhibit A. 

### There are many levee and/or ditch banks within the city limits in which the City ofEl Paso does not have jurisdiction. These include access banks controlled by International Boundary and Water Commission, Department • 30 TAC § 111.147(l)(E). Please add the words "unpaved" and "residential" to 30 TAC § 111.147(1)CE), as reflected 

## in Exhibit A, attached hereto

.. This change is needed because
some trash pick-up routes do occur in alleys. There are situations in which it is not possible to place the residential trash receptacle on city streets for pickup due to the elevation difference ofthe residential home foundation to the city street. In addition, future incorporation of"Smart Growth Community Development" will require trash receptacles to be located 

## in alleys for newly developed residential areas. The City of El Paso will prioritize placing Recycled Asphalt Product (RAP)


### on any unpaved alleys that will be used for trash pickup where the resident cannot haul trash to the street. The City ofEl Paso submits its comments and changes for your consideration to the proposed rulemaking (Rule Project Number 2010-046-111-EN) that is to amend 30 TAC § 111.147(1)(E) (alleys). The City also submits a proposed amendmentto § 111.147(1)(F) (levee roads). We understand thatthe comment period on this project closes on October 3, 2011. RE: Rule ProjectNumber 2010-046-111-EN 

# W-1

September 28,2011

Ms. Charlotte Horn Texas Commission on Environmental Quality

-.--- Office ofLegal Services MC205 P.O. Box 13087 Austin, Texas 78711-3087



## EIPaso 

# bc,.
A11·AmericaCIIV


# ,III'.'

2010

## The following changes are consistent with city policies and are in the best interest of the citizens of the City of El Paso, Texas. If you have any questions, please contactme at 915-621-6700. 

## SERVICE SOLUTIONS SUCCESS Dedicated to Outstanding CustomerService fora BetterCommunity

Environmental Services Department 7968 San Paulo Drive, EI Paso, TX 79907 0 (915) 621-6700 0 Fax (915) 621-6711 www.elpasotexas.gov 

## Sincerely,

# C((z~" Ellen Smyth, P.E. Director
Attachment: Exhibit A (revised/proposed 30 TAC § 111.147) ofHomeland Security and El Paso County Water Improvement District#1.

EIPaso 

# hOd 

# ifijP

2010

# EXHIBIT A

### §Ul.147. 

## Roads, Streets, andAlleys.

No person may cause, suffer, allow, or permit any public, industrial, commercial, or private road, street, or alley to be used without taking at least the following precautions to achieve control ofdustemissions:

(1) 

## application of asphalt, water, or suitable oil or chemicals on the following unpaved surfaces, except in the City ofEI Paso and the Fort Bliss Military Reservation, except as noted in §1l1.141 

## ofthis title (relating to Geographic Areas of Application and Date ofCompliance), where the use ofpaving materials is the only acceptable methodofdustcontrol, unless otherwise specified:

(A) industrial facility roadways--all major in-plantroads and all
truck or otherheavy-dutyvehicle pathways. Major in-plantroads shall
be defined as those which are designed to accommodate two-way traffic and are at least 30 

## feet wide at [at] least one point, measuring
the distance from the edge ofthe undisturbed earth on either side of
the established roadway. The executive director, with the concurrence ofthe United States Environmental Protection Agency, may grant a waiver from the requirement to pave an industrial facility roadway if
the owner of the roadway demonstrates that the cost of paving is economicallyunreasonable comparedto other methods ofdust control specifiedinthis paragraph;
(B) public thoroughfares--all roads and streets to which the publichas general access;

## (C) commercial roads--all roads which serve as access for more than 50 

## employees or as access to more than 10 

## heavy-duty truck parking spaces; (D) residential roads--all roads which serve as access for more than 20 

## residence andlor apartmentunits; (E) alleys--in the City ofEl Paso, alleys must meetthe following requirements: [shallbe paved atthe rate ofatleast 15 

## miles peryear;] 

# en all new alleys mustbepaved; (ii) 

## unpaved alleys may not be used for residential garbage andrecycling collection; and (iii) 

## the use ofreclaimed asphalt pavement maybe used

as an alternate means ofparticulate matter control for alleys.

(F) leveeroads--inthe City ofEl Paso, alllevee roads and access
to such roads, which are under thejurisdiction ofthe City ofEl Paso and which have
been designated as public thoroughfares, shall be controlledwith the application of asphalt, orsuitable oil orchemicals;

(2) 

## removal from public thoroughfares, as necessary, of soil or other materials, except for sand applied for the specific purpose ofsnow or ice control. In the City ofEl Paso, removal ofsoil must [shall] be by mechanical sweepers or their equivalent at the rate of three [four] times per year for all public thoroughfares
within the city limits and four [six] times per week or as necessary for public thoroughfares withinthe centralbusiness district. Forthepurpose ofthis section, the

## centralbusiness districtis [shallbe] defined as that areaborderedbyLoop 375 to the south, Santa Fe Street to the west, Missouri Streetto the north, and Kansas Street to the east. The City ofEl Paso shall spotclean dirtyroadways, and shall maintain street sweeping records for two years. Sand applied for the specific purpose ofsnow or ice
controlmust [shall] be removed as soon as such controlis no longer necessary.

### INDEX OF ORALTESTIMONY



## NO ORAL TESTIMONYWAS RECEIVED PERTAININGTO THIS RULE REVISION.

## Page 1 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY PUBLIC HEARING REGISTRATION
Location: EI Paso State Office Building, Room 570 Date: September 27, 2011, 2:00 p.m. Concerning: Proposed Chapter 111 Rule Amendments, EI Paso PM 10 

## SIP Revision, and Revised Memorandum of Agreement with the City of EI Paso

NAME REPRESENTING PRESENTING ORAL TESTIMONY? (CIRCLE ONE)



### Yes

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### ..-----.----____1



### Yes 

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## Page 2**,------~------------------_._----------~~~----------_.-** 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY PUBLIC HEARING REGISTRATION 

## Location: EI Paso State Office Building, Room 570 Date: September 27, 2011, 2:00 p.m. Concerning: Proposed Chapter 111 Rule Amendments, EI Paso PM 10 

## SIP Revision, and Revised Memorandum of Agreement with the City of EI Paso

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

HEARING OFFICER REPORT



## I am the hearing officer assigned to conduct the public hearing regarding the proposed revisions to 30 Texas Administrative Code, Chapter 111, Subchapter A, §111.147, relating to roads, streets, and alleys (Rule Project Number 2010-046-111-EN), the proposed revised Memorandum ofAgreement between the TCEQ and the City ofEI Paso (Project Number 2011-026-MIS-NR), and the proposed revision to the State Implementation Plan for the EI Paso nonattainrnent area for particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PMlO) 

## (Project Number 2011-010-SIP-NR).
A public hearing was scheduled for September 27, 2011, at 2:00 p.m., at the EI Paso Regional Office, at 401 E. Franklin Avenue, Suite 560.
At 2:00 p.m., the room was open, TCEQ staff and a court reporter were present and ready to open the hearing for public comment. After waiting for 15 minutes, no one had arrived to make comments on the record. Therefore, the public hearing was not formally opened for comment and no transcript was prepared.

He ring\Officer

Date signed

# EVALUATION

# Texas Commission on Environmental Quality Interoffice Memorandum
To: Commissioners 

## Date: January 6, 2012 

## Thru: Bridget Bohac, ChiefClerk Mark R. Vickery, P.G., Executive Director

# oJ)("

From: Susana M. Hildebrand, P.E.,**ChiefEngin~'** 

## DocketNo.: 2010-1862-RUL 

## Subject: CommissionApproval for RulemakingAdoption Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter Revision ofEl Paso Particulate Matter of10 Micrometers andLess (PMlO) 

## Controls for Roads, Streets, andAlleys Rule ProjectNo. 201O-046-111-EN


## Background and reason(s) for the rulemaking: Underthe 1990 Federal CleanAirAct (FCAA) Amendments, the City ofEl Paso (EI Paso area) was designated nonattainment under FCAA, §107(d)(4)(B) for PMlO 

## National AmbientAir Quality Standard (NAAQS) and subsequentlyclassified as a moderate PMlO 

## nonattainment area. In November 1991, the Texas Air Control Board (TACB), a predecessoragency ofthe Texas Commission on Environmental Quality (TCEQ), submittedthe EI Paso PMlO

## AttainmentDemonstration StateImplementation Plan (SIP) revision. The SIP revision includedparticulate matter (PM) control measures in 30 Texas Administrative Code (TAC) Chapter 111, Control ofAir Pollutionfrom Visible Emissions and Particulate Matter, SubchapterA, Visible Emissions and Particulate Matter, Division 4, Materials Handling, Construction, Roads, Streets, Alleys, and Parking Lots, §111.147. The control measures previously adoptedin §111.147 requiredpaving as a method ofdust control inthe El Paso area for specifiedroads andadded a requirementthat alleys be paved atthe rate of15 miles peryear. Section 111.147 also setfrequencies for street sweeping in designated sections ofthe El Paso area. In 1991, a Memorandum ofUnderstanding (MOD) between the City ofEI Paso (the City) andthe TACB was approvedto outlinethe responsibilities andregulatoryrequirements for bothparties. This MOD was replacedwith a Memorandum ofAgreement (MOA) withthe City in 2001, with the same requirements.
On November 21, 2003, the EI Paso Metropolitan Planning Organization submitted aletter requesting thatthe TCEQ develop a PMlO 

## redesignationrequest and maintenance plan. On December 28, 2009, theTCEQ requested information from the Cityto ascertainwhat efforts EI Paso has taken to support a requestfor redesignation. In aresponse letterdated January 29, 2010, the Cityindicatedthe following:

• the Cityhas programs funded annuallyin boththe City's capital improvementbudget andin the DepartmentofTransportation operations budgetin an effortto complywith environmental regulations;

## Commissioners Page 2 January 6, 2012
Re: DocketNo. 2010-1862-RUL

• the Cityhas committedto an alley paving program at alevel in alignmentwith its own internal budgetarycapacities, but not atthe rate of15 miles peryear as requiredunder §111.147;

• the Citymaintains an inventory ofstreetand alleypaving efforts to document the current status and projections for future paving activities; 

# and

• the City's Air Quality Program conducts surveillance andinvestigations to ensure compliance with, andenforcementof, Chapter 111 rules.

. Forthe site reporting Federal Reference Method PMlO 

## datafor all three years from 2007 through 2009 (SocorroAQS 

## ID481410057), there were noexceedances ofthe PMlO 

## 24- hourNMQS. The inventoryofunpaved alleys has decreasedfrom 66% in 1991, to 16% in 2010, with approximately 23 miles ofunpavedalleys remaining. The City actionto reduce airborne PMlO 

## has also reducedthe needto sweep streets atthe frequencies specifiedunder the currentrule. The adopted rulemaldng is necessaryto providethe Citywith alternative methods ofPM control. The adoptedrules would remove specific requirements for the number ofmiles ofalleys tobe pavedperyear andallowthe use ofreclaimed asphalt pavement (RAP) as an alternate means ofPM controlfor pre-existing unpavedalleys. The adoptedrule revisions would also decrease the numberoftimes that soil is tobe removed by mechanical sweepers from publicthoroughfares from four to threetimes per yearfor those previously specified areas withinthe citylimits andfrom sixto four times perweek within the centralbusiness district. 

## Scope 

## ofthe rulemaldng: The adoptedrule revisionwill amend §

## 111.147 to provide the Citywith additional flexibility in PM control measures. A.) 

## Summary 

## ofwhatthe rulemakingwill do: The adoptedrule revisionwill amend §111.147(1)(E) to removethe requirementto pave alleys atthe rate of15 miles peryear andreplace itwiththefollowing requirements: 1) all new alleys mustbe paved; 2) unpaved alleys may notbe used for residential garbage and recycling collection; and 3) the use ofRAP maybe used as an alternate means ofPM control for alleys. The adoptedrulewill also amend §111.147(2) to changethe sweeping frequency requirement from four times peryearto threetimes peryearinthe citylimits andfrom sixtimes per weekto four times per weekin the centralbusiness district. 

## B.) Scope required

# byfederal regulations or state statutes: None 

# c.) Additional 

## staffrecommendations that arenotrequired

# byfederal rule or state statute: None

## Commissioners Page 3 January 6,2012


## Re: pocketNo. 201O-1862-RUL


## Statutoryauthority:

_

The amendment is adoptedunderTexasWater Code (TWC), §S.103, concerning Rules, and TWC, §S.lOS, concerning General Policy, which authorizethe commissionto adoptrules necessaryto carryoutits powers and duties under theTWC. The amendment is also proposedunderTexas Health and Safety Code (THSC), Texas CleanAirAct, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's airresources, consistentwith theprotection ofpublichealth, general welfare, andphysicalproperty; THSC, §382.011, concerning General Power and Duties, which authorizes the commissionto control the quality ofthe state's air; THSC, §382.012, 

## concerning StateAir Control Plan, which authorizes the commissionto prepare and develop a general, comprehensive planfor the control ofthe state's air; THSC, §382.017, concerning Rules, which authorizes the commissionto adopt rules consistentwith the policy andpurposes ofthe Texas CleanAirAct; THSC, §382.0172, 

## concerning international borderareas; andTHSC, §382.0173 concerning Adoption ofRules Regarding Certain State Implementation Plan Requirements and Standards ofPerformancefor Certain Sources. 

## Effect on the: A.) 

## Regulated community: The adoptedrule revision will updatethe PMlO 

## controls required to attain and maintainthe PMlO 

## NAAQS and provide the City greaterflexibility inthe implementation ofthe PMlO 

## control requirements in §111.147. 

## B.) Public: Implementation ofthe revisednlle will continueprotection ofpublichealth through continuedcontrol ofPMlO 

## inthe EI Paso area. 

# c.) Agencyprograms: There are no anticipatedimpacts on agencyprograms. 

## Stakeholder meetings: No stakeholdermeetings wereheld.


## Public comment: The commissionheld apublic hearing onthe proposal in EI Paso on September 27, 2011. The publichearing was not officially openedbecause no partyindicated a desire to give comment. The commentperiodopened September 2, 

## 2011, and closed October 3, 2011. Two written comments were receivedfrom the City.
The Cityrecommended adding theterms "unpaved" and "residential" to proposed §111.147(1)(E)(ii) because some trash pick-up routes do occurin alleys. In addition, future incorporation ofSmart Growth Community Development

# win require trashreceptacles to be locatedin alleys for newly developed residential areas. 

## Theproposalwas changedin response to the comment.

## Commissioners Page 4 January 

## 6, 2012
Re: DocketNo. 2010-1862-RUL

The City also recommended adding the phrase "which areunderthejurisdiction ofthe City

. afEl

## Paso**~nd** 

## which havebeen designated as publicthoroughfares" to §111.147(1)(F). No 

## change was made in response to this comment. 

## Significantchanges from proposal: In response to comments from the City,proposed §111.147(1)(E)(ii) was revisedto limitthe restrictionto unpaved alleys usedforresidential garbage andrecycling collection. 

## Potential controversial concerns andlegislative interest: Ademonstration is requiredto showthat changes to §111.147 win notinterfere with attainment ofthe PMlO

## NAAQSin orderto complywiththe United States Environmental ProtectionAgency anti-backslidingprovisions in FCAA, §110(1). It

## includedthe substitution ofthe alleypaving and street sweeping measures as statedin §111.147(1)(E) and (2) with alternate control measures currentlyinplace in the

## EI Paso area thathave resultedin PMlO 

## emissionsreductions equivalentto 

## or greaterthan whatwouldhavebeen achieved ifthe Cityhad continuedto implementthepriorversion of §111.147(1)(E) and (2). These control measures include reduced alleytraffic, city ordinances requiring developers 

## to pave anynew alleys they create, andtheuse ofRAP on existing aneys. 

## Will 

## this rulemaking affect anycurrentpolicies or require development of newpolicies? No. 

## What aloe the consequences 

## ifthis rulemaking does notgo forward? Are there alternatives to rulemaking? The commission coulddecide notto adoptthe proposedamendmentto Chapter 111,·and the revised MOAwould notbe needed. The Citywouldbe obligatedto complywith existing rules and MOArequirements limitingthe City's fiscal andtechnicalflexibility to control PMlO 

## in the El Paso area andcomply'withthe SIP. 

## Keypoints inthe adoption rulemakingschedule: Texas Register proposalpublication date: September2, 2011 

## AnticipatedTexas Registerpublication date: February 10, 

## 2012 

## Anticipated effective date: February 16, 2012 

## Six-month Texas Registerfiling deadline: March 2, 2012 

## Agency contacts: PeterA. 

## Ogbeide, Rule Project Manager, 239-1937, Air QualityDivision TerrySalem, StaffAttorneY,239-0469 Charlotte**Horn~** 

## Texas Register Coordinator, 239-0779

## Commissioners Pages January 6,2012


## Re: DocketNo. 2010-1862-RUL



## Attachments None cc: ChiefClerk, 2 

## copies Executive Director's Office SusanaM. 

## Hildebrand, P.E. 

## Anne Idsal Curtis Seaton AshleyMorgan Office ofGeneral Counsel PeterA. 

## Ogbeide Charlotte Horn

## EVALUATION OF TESTIMONY



## The Texas Commission on Environmental Quality (TCEQ or commission) adopts an amendment

to §111.147.

Section 111.147 is adopted 

## with change to the proposed text as publishedin the September 2, 2011, issue ofthe 

## TexasRegister (36 

## TexReg 5640) and the text willbe republished.

The adopted amendmentto §111.147 will be submitted to the United States Environmental
ProtectionAgency (EPA) as a revision to the state implementationplan (SIP).



## Background and Summaryofthe Factual Basis for theAdopted Rule
Underthe 1990 Federal CleanAirAct (FCAA) Amendments, the City ofEI Paso (EI Paso area)

was designated nonattainment under FCAA, §107(d)(4)(B) for particulate matter (PM) with an aerodynamic diameterless than or equal to a nominal ten micrometers (PM lO) 

## National
AmbientAir Quality Standard (NAAQS) and subsequently classified as a moderate PMlO 

## nonattainment area. In November 1991, the Texas Air Control Board (TACB), a predecessor
agency ofthe TCEQ, submittedthe EI Paso PMlO

## Attainment Demonstration SIP revision. The
SIP revision included PM control measures in §111.147. The control measures adopted in §111.147 required paving as a method ofdust control in the EI Paso area for specifiedroads and
added a requirementthat alleys be paved at the rate of15 miles peryear. Section 111.147 also set frequencies for street sweeping in designated sections ofthe EI Paso area.

In 1991, a Memorandum ofUnderstanding (MOU) between the City ofEI Paso (the City) and the
TACB was approved to outline the responsibilities and regulatory requirements for both parties.

1

## This MOD was replacedwith a Memorandum ofAgreement (MOA) with the Cityin 2001 with
the same requirements.

On November 21,2003, the El Paso Metropolitan Planning Organization submitted a letter requesting that the TCEQ develop a PMlO 

## redesignation request and maintenance plan. On
December 28, 2009, the TCEQ requested information from the Cityto ascertain what efforts the Cityhas taken to support a request for redesignation. In a response letter dated January 29, 2010, the Cityindicatedthe following: the Cityhas programs funded annually in the City's capital improvementbudget and in the Street Department operations budgetin an effortto complyvvith environmental regulations; the Cityhas committedto an alleypavingprogram at a level in alignmentwith its own internalbudgetary capacities, not at the rate of15 miles peryear

as required under §111.147; the City maintains an inventory ofstreet and alleypaving efforts to documentthe current status and projections for future paving activities; and the City's Air Quality Program conducts surveillance and investigations to ensure compliance with, and
enforcementof, the Chapter 111 rules.

Forthe site reporting Federal Reference Method (FRM) PMlO 

## data for all three years from 2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances ofthe PMlO 

## 24-hour NAAQS. Subsequent data from the City indicates thatfrom 1991 through 2010, the percentage of unpaved alleys has significantly decreasedfrom 66% to 16% ofthe total alleys in the EI Paso

area, vvith approximately 23 miles ofunpaved alleys remaining. Any new alleys mustbe paved by developers in accordance with a city ordinance. Furthermore, the City discontinued garbage
collection in alleys in 1997, so the traffic in alleys has been dramatically reduced, and reclaimed asphaltpavement (RAP) has been used to cover some unpaved alleys, which has proven to be as effective as paving. In addition, the Cityhas also been performing PM control measures that are
not requiredby §111.147 orthe MOA. Forthe site reporting FRM PMlO 

## data for all three years

2

## from 2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances ofthe PMlO 24-hourNAAQS, andwith the minimal amount ofunpaved alleys remaining in the El Paso area, the paving rate requirement in §111.147 should no longerbe considered necessary for attainment
ofthe 1997 PMlO NAAQS. The adopted rulemaking will revise §111.147 to provide the Citywith
alternative methods ofPM control consistentwith maintenance ofthe standard. The adopted rulemaking also revises §111.147 to allowthe Cityto sweep streets atreduced frequencies, since
the progress made bythe City's alley and road paving programs has reduced the overall amount offugitive dustin the El Paso area. Finally, the Cityindicatedthat it 

## "vill continue to include

street and alleypaving and sweeping in its annual budgetfor maintenance ofthe standard.
Based on these substitute and supplemental actions, compliance with the anti-backsliding provisions in FCAA, §110(l) is demonstrated.

Consistentwith the amendments to §111.147 in this adoption package, revisions to the 2001
MOA are proposedfor adoption concurrentwith this rulemaking adoption.

Demonstrating Noninterference Under FCAA, §110(l) 

## The commission provides the following information to clarifywhy the amendmentto §l11.147(1)(E) and (2) will not negatively impactthe status ofthe state's attainment with the PMlONAAQS.

The requirementfor reasonable notice and public hearing was satisfiedthrough a public hearing
held on September 27, 2011. The public commentperiodbegan on September 2, 2011, and
ended October 3, 2011. According to the EPAdraft guidance issued on June 8, 2005, 

## DemonstratingNoninterference UnderSection 110(l) 

## of the CleanAirAct When Revising 

## a State Implementation Plan, areas have two options available to demonstrate noninterference
for affected pollutant(s). This preamble provides details ofthe identified existing measures that

3

## the commission will use to establish compliance ""ith option one ofthe EPA's draft guidance:
substitution ofone measure by anotherwith equivalent orgreater emissions reduction/air qualitybenefits.

Background
In accordance with the FCAA and EPAguidance, the TACB was required to demonstrate either
attainment ofthe standardby December 31, 1994, ordemonstrate that attainmentbythat date

was impracticable. FCAA, §179B providedthat moderate nonattainment areas would notbe redesignated as serious ifthe state could demonstrate that such areas would achieve attainment bythe deadline ifitwere notfor air quality impacts causedby another country. In response to the FCAA §179B provision, the TACB demonstrated attainment ofthe PMlO 

## NAAQS through dispersion modeling ofUnited States emissions alone. Furthermore, the EPAguidance
contained in thePM lO

## ModerateArea SIP Guidance: FinalStaffWorkProduct, April 2, 

## 1991, prescribedthat SIPs for moderate PMlO

## nonattainment areas contain quantitative milestones to be achieved everythree years, and thatthe SIP revisions demonstrate reasonable further
progress (RFP) towards attainment. However, the TACB submittedinformation establishing
that an RFP demonstration was not strictly applicable. Specifically, based on the international impacts provision in FCAA, §179B, the TACB demonstrated thatthe EI Paso nonattainment area would attain the PMlO 

## NAAQS both atthe time ofthe SIP revision in 1991 and atthe time compliance wouldbe required underthe SIP in 1994, based on modeling ofUnited States
emissions alone. Therefore, there are currentlyno more requirements for a demonstration of
reductions to United States emissions.

However, to help minimize PMlO 

## impacts from EI Paso sources, the TACB adopted several new

or enhanced control measures in its 1991 SIP revision. These measures included revisions to §§111.111, 111.141, 111.145, and 111.147.

4

## The control measures adopted in §111.147 required paving as a method ofdust control in the El
Paso areafor specifiedroads and added a requirementthat alleys be paved atthe rate of15 miles
peryear. Section 111.147 also setfrequencies for street sweeping in designated sections ofthe El


## Paso area. The EPA-approved 1991 El 

## Paso PMlOAttainment Demonstration SIP 

## revision
includes the PM 

## control measures in Chapter 111.

Conclusion


## The Cityhas decreasedthe percentage ofunpaved alleys from 66% to 16% between 1991 and
2010. Also, for the monitoring site reporting FRM PMlO datafor all three years from 2007 through 2009 (Socorro AQS ID 

## 481410057), there were no exceedances ofthe PMlO 24-hour NAAQS.

The City also putin place provisions thatthe unpaved alley inventory will notincrease because a city ordinance requires developers to pave any new alleys. Furthermore, the City discontinued garbage collection in alleys in 1997, so the traffic in alleys has been dramatically reduced. City
action to reduce airborne PMlO 

## has also reducedthe need to sweep streets atthe frequencies specifiedunderthe current rule, and RAP, which has been proven to be as effective as paving,
has been used to cover some unpaved alleys. In 

## addition, the City also continues to include alley paving and maintenance in its annualbudget. Because the El Paso area is monitoring
attainment ofthe PMlO NAAQS based on the monitoring site reporting FRM PMlO data for all
three years from 2007 through 2009 (Socorro AQS ID 

## 481410057), with the City's current practices in place, revising §111.147 to reflect these current practices would not interfere
with the El 

## Paso area's ability to attain and maintain the PM lO 

## NAAQS.

5

## Section Discussion


## The adoption amends §111.147(1)(E) 

## to remove the requirementto pave alleys atthe rate of15 

## miles peryear and replace itwith the following requirements: 1) 

## all new alleys mustbe paved; 2) 

## unpaved alleys may notbe usedfor residential garbage and recycling collection; and 3) RAP may be used as an alternate means ofPM control for alleys. Based on comments received, the
commission revised §111.147(1)(E) 

## by adding the terms "unpaved" and "residential" to clarify
that some commercial trash collectionroutes may still occurin paved alleys, andfuture growth
may require trash receptacles to be located in paved alleys for newly developed residential areas. The adoption also amends §111.147(2) 

## to change the sweeping frequency requirementfrom four
times peryearto three times peryearin the citylimits andfrom six times perweekto four times
perweekin the centralbusiness district.

Final Regulatory ImpactAnalysis Determination


## The commission reviewedthe adopted rulemaking in light ofthe regulatory impact analysis requirements ofTexas Government Code, §2001.0225, 

## and determined thatthis rulemaking is

not subjectto Texas Government Code, §2001.0225 

## because itdoes not meetthe definition ofa major environmental rule as defined in that statute. Amajor environmental rule means arule,
the specificintent ofwhich is to protectthe environment orreduce risks to human health from
environmental exposure and that may adversely affect in a material way the economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state or a
sector ofthe state. The adopted rulemaking is not a major environmental rule because the
revisions to Chapter 111 

## will allow more flexibility for the Cityto continue to comply withthe
1997 

## PM lO 

## NAAQS. Forthe monitoring site reporting FRM PM lO 

## data for all three years from
2007 

## through 2009 

## (Socorro AQS ID 481410057), 

## there were no exceedances ofthe PM lO 

### 24- 

## hourNAAQS. The adopted rule revision will remove specific requirements for the number of
miles ofalleys to be pavedperyear, will allow the use ofRAP as an alternate means ofPM
6

## control for preexisting unpaved alleys, andwill decrease the number oftimes that soil is to be
removedfrom public thoroughfares from four to three times peryearfor those previously specified areas within the citylimits, and from sixto four times perweekwithin the central
business district. The publicbenefit anticipated from the changes in the adopted rule willbe
continued attainment with PM lO 

## NAAQS, and continued protection ofpublic health and safetyin
El Paso. Forthe monitoring site reporting FRM PMlO 

## datafor all three years from 2007 through
2009 (Socorro AQS ID 

## 481410°57), there were no exceedances ofthe PMlO 

## 24-hourNAAQS.

The adopted revisions will not adversely affect in a material way the economy, a sector ofthe
economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe

state or a sectorofthe state. The adopted rule revision -will nothave afiscal impacton individuals orlarge businesses in El Paso since it gives the City more flexibility than current rules and reflects currentpractices in El Paso for PM lO 

## control on roads, streets, and alleys. The
commission invitedpublic commentregarding the draftregulatory impact analysis
determination during the public commentperiod. No comments were received on the draft regulatory impact analysis determination.

Takings ImpactAssessment


## The commission evaluatedthis rulemaking action and performed an analysis ofwhetherthe adopted rule constitutes ataking underTexas Government Code, Chapter 2007. The primary
purpose ofthe rulemaking is to provide more flexibility for the Cityto continue to comply 'with
the 1997 PM lO 

## NAAQS. This rulemaking does not affectprivate property in a mannerthat
restricts orlimits an owner's rightto the propertythatwould otherwise exist in the absence of
the governmental action. Promulgation and enforcement ofthis adopted rulemaking is neither a statutorynor a constitutional taking because it does not affectprivate real property. Specifically,
the subject adopted regulations do not affect a landowner's rights in real propertybecause this

7

## rulemaking does notburden (constitutionally); nor restrict orlimitthe landovvner's rightto property and reduce its valueby 25% 

## or morebeyond thatwhich would otherwise existin
absence ofthe regulations. Therefore, this rule does not constitute a taking underTexas
Government Code, Chapter 2007.



## Consistencywith the Coastal Management Program
The commission reviewedthe adopted rulemaking andfound the adoption is a rulemaking
identified in the Coastal CoordinationAct Implementation Rules, 31 

## TAC §505.11(b)(2), 

## relating

to rules subjectto the Coastal Management Program, and will, therefore, require that goals and policies ofthe Texas Coastal Management Program (CMP) be considered during the rulemaking
process.

The commission reviewed this rulemaking for consistency ,,\liththe CMP goals and policies in
accordance with the regulations ofthe Coastal Coordination Council and determined that the rulemaking will not affect any coastal natural resource areas because the rules only affect
counties outside the CMP area and is, therefore, consistentwith CMP goals and policies.

The commission invitedpublic comment regarding the consistencywith the CMP during the public commentperiod. No comments were received concerning the Texas CMP.

Effect on Sites Subjectto the Federal Operating Permits Program
The commission has reviewedthis adopted rulemaking and determined that, although §111.147


## is an applicable requirement of30 

## TAC Chapter 122, 

## the adopted changes would only affect paving and street sweeping requirements for the City, notindividual emission units at sites. Therefore, the adopted changes do not affect sites subjectto the Federal Operating Permits Program.



## 8

## Public Comment
Apublic hearing was offered on September 27, 2011. The hearing was not officially opened
because no partyindicated a desire to give comment. The public commentperiod opened on September 2,2011, and closed on October3,2011. Two written comments were receivedfrom
the City.



## Response to Comments
Comment
The Cityrecommended adding the terms "unpaved" and "residential" to proposed §l11.147(1)(E)(ii) because some trash pick-up routes do occurin alleys. In addition, future incorporation ofSmart GroV\1:h Community Developmentwill require trash receptacles to be
locatedin alleys for newly developed residential areas.



## Response The commission agrees with the City's addition oflanguage to §111.147(1)(E) 

## and
has made the suggested changes. The additionalterms clarifythe commission's
intentthat garbage collectionbe conducted inpaved alleys. Furthermore, the

terms give the Cityflexibility to continue to allowfor smartgrowth in residential

areas and maintain compliance withthe PMlO 

## standard.

Comment
The City also recommended adding the phrase "which are underthejurisdiction ofthe City ofEI
Paso andwhich havebeen designated as public thoroughfares" to §l11.147(1)(F).

9

## Response The City's suggested change to §111.147(1)(F) 

## is beyondthe scope ofthis rulemaking. No change has been made to the rule based on this comment.

10

# RECOMMENDATION

## SUBCHAPTERA: 

## VISIBLE EMISSIONS AND PARTICULATE MATTER
DIVISION 4: MATERIALS HANDLING, CONSTRUCTION, ROADS, STREETS, ALLEYS, AND PARKING LOTS
§111.147



## StatutoryAuthority


## The amendment is adopted underTexas Water Code (TWC), §S.103, 

## concerning Rules, and TWC, §S.lOS, 

## concerning General Policy, which authorize the commission to adoptrules
necessaryto carry outits powers and duties underthe TWC. The amendmentis also adopted
underTexas Health and Safety Code (THSC), Texas CleanAir

## Act, §382.002, 

## concerning Policy
and Purpose, which establishes the commission's purpose to safeguardthe state's airresources, consistentwith the protection ofpublic health, general welfare, and physical property; THSC, §382.011, 

## concerning General Power and Duties, which authorizes the commission to control
the quality ofthe state's air; THSC, §382.012, 

## concerning StateAir

## Control Plan, which
authorizes the commission to prepare and develop a general, comprehensive plan for the control
ofthe state's air; THSC, §382.017, 

## concerning Rules, which authorizes the commission to adopt
rules consistentwith the policy and purposes ofthe Texas CleanAir

## Act; THSC, §382.0172, 

## concerning internationalborder areas; andTHSC, §382.0173 

## concerningAdoption ofRules Regarding Certain State Implementation Plan Requirements and Standards ofPerformance for
Certain Sources.

The adopted amendmentimplements THSC, §§382.002, 382.011, 382.012, 382.017, 382.0172, 

## and 382.0173.

1

### §111.147. 

## Roads, Streets, 

## andAlleys.

No person may cause, suffer, allow, orpermit any public, industrial, commercial, or private road, street, or alley to be used withouttaking at leastthe following precautions to achieve control ofdust emissions:

(1) 

## application ofasphalt, water, or suitable oil or chemicals on the following unpaved surfaces, exceptin the City ofEI Paso and the Fort Bliss Military Reservation, except as noted in §111.141 

## ofthis title (relating to GeographicAreas ofApplication and Date of Compliance), where the use ofpaving materials is the only acceptable method ofdust control,
unless otherwise specified:

(A) industrial facility roadways--all majorin-plant roads and all truckor otherheavy-dutyvehicle pathways. Majorin-plantroads shallbe defined as those which are designedto accommodate two-waytraffic and are at least 30 

## feet wide at at least one point, measuring the distance from the edge ofthe undisturbed earth on either side ofthe established roadway. The executive director, with the concurrence ofthe United States Environmental
ProtectionAgency, maygrant a waiverfrom the requirementto pave an industrial facility roadway ifthe owner ofthe roadway demonstrates thatthe cost ofpaving is economically
unreasonable comparedto othermethods ofdust control specifiedinthis paragraph;

(B) public thoroughfares--all roads and streets to which the public has general access;

(C) commercial roads--all roads that serve as access for more than 50 

## employees or as access to more than 10 

## heavy-duty truckparking spaces;

2

## (D) residential roads--all roads that serve as access for more than 20 

## residence and/or apartment units;

(E) alleys--in the City ofEl Paso, alleys must meetthe following requirements:

(i) all new alleys mustbe paved;

(ii) unpaved alleys may notbe usedfor residential garbage and recycling collection; and

(iii) reclaimed asphaltpavement (RAP) maybe used as an alternate means ofparticulate matter control for alleys; and

(F) levee roads--in the City ofEl Paso, all levee roads and access to such
roads mustbe controlledwiththe application ofasphalt, or suitable oil or chemicals;

(2) 

## removal from public thoroughfares, as necessary, ofsoil orother materials, exceptfor sand applied for the specific purpose ofsnow orice control. In the City ofEl Paso,
removal ofsoil mustbe bymechanical sweepers ortheir equivalent atthe rate ofthree times per
yearfor all public thoroughfares V\i.thin the citylimits andfour times perweekor as necessary for public thoroughfares within the central business district. Forthe purpose ofthis section, the
central business districtis defined as that areaborderedbyLoop 375 to the south, Santa Fe
Streetto the west, Missouri Streetto the north, and Kansas Streetto the east. The City ofEl Paso
shall spot clean dirty roadways, and shall maintain street sweeping records for two years. Sand

3

## appliedfor the specific purpose ofsnow orice control mustbe removed as soon as such control
is no longer necessary.

4

### THE STATE OF TEXAS COUNTY OF TRAVIS .'. I 

### hereby certify thatthis is atrue and correct 

### copy ofa 

### Texas Commission on Environmental Quality document, 

## TEXAS COMMISSION ON**ENVI~~){U~~~records** 

## ofthe Commission.**/~. ~"**  

### Given**u~r** 

### my hand and the 

### seal ofoffice on

, !

..::: .•.•.• .•.

# ~.p-P<~~ .... ,. 

# 6#11£.&10.-. FEB

# a1 2Q 

# 12- i:;':!!&;:! 

### Bridget C. , ChiefClerk



### ...... / Texas Commission on**EnVi~ntal** 

### Quality

'--",,//! 

## ORDERADOPTINGAMENDED RULES, REVISED MEMORANDUM OF AGREEMENT, AND REVISIONS TO THE STATE IMPLEMENTATION PLAN

Docket Nos. 2010-1862-RUL, 2011-0899-MIS, 2011-0707-SIP


## OnJanuary 25, 2012, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamended § 111.147. The Commission adopts this amended rule in 30 TAC Chapter 111, concerning Control ofAir Pollution from Visible Emissions and Particulate Matter, SubchapterA, Division 4, Materials Handling, Construction, Roads, Streets, Alleys, and Parking Lots; a revised Memorandum ofAgreement (MOA) between the City ofEI Paso andthe Commission; and corresponding revisions to the state implementation plan (SIP). The adopted rule amendments update the PMlO 

## controls requiredto attain and maintain the PMlO 

## NAAQS and providethe City greaterflexibility in the implementation ofthe PMlO 

## control requirements in §111.147. The MOAhas beenrevised to reflectthe changes to §111.147.UnderTex. Health & 

## Safety CodeAnn. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the authorityto control the quality ofthe state's air andto issue orders consistentwith the policies and purposes ofthe Texas CleanAir Act, Chapter 382 ofthe Tex. Health & 

## Safety Code. The proposed rules were publishedfor commentin the September 2, 2011, issue ofthe Texas Register (36 TexReg 5640).


## Pursuantto Tex. Health 

## &Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 (Vernon 2008), and 40 Code ofFederal Regulations § 51.102, and afterproper notice, the Commission conducted a publichearing to considerthe amended rules, revised MOA and revisions to the SIP. Proper notice includedprominent advertisementin the areas affected atleast 30 days priorto the date ofthe hearing. Apublichearing was held on September 27, 2011, at 2:00 p.m. atthe El Paso State Office Building in El Paso. The hearing was not officiallyopened, because no party indicated a desire to give comment. The Commission circulatedhearing notices ofits intended action to the public, including interestedpersons, the Regional Administrator ofthe EPA, and all applicable local airpollution control agencies. The public was invitedto submit data, views, and recommendations on the proposed amended rules, revised MOA, and SIP revisions, either orally or in writing, atthe hearing or during the commentperiod. Priorto the scheduled hearing, copies ofthe proposed amendedrules, revised MOA, and SIP revisions were available for public inspection atthe Commission's central office and onthe Commission's Web site. Data, views, and recommendations ofinterestedpersons regarding the proposed amended rules, revised MOA, and SIP revisions were submittedto the Commission during the comment period, and were consideredbythe Commission as reflected in the analysis of testimony incorporatedby reference to this Order. The Commissionfinds thatthe analysis of testimony includes the names ofall interested groups or associations offering comment on**s~** 

### ! nol,leifTiftJ(JIO UX!&1

## ,im,e?t1ie~t8Wd~~a,,~~tWft:sr~Slr'fPl~~,o.~€ftse~M(4)A, 

## and SIP revisions andtheirposition concerning the**sait~;Yltl ~,j**  ii,,,,, i),

# :;;;;11 ¥fI1 7L*00v

### ne~

__**>_"'~-=~** ..;.,,_.

. ..**y_.,_~_ e>_.··~_,,,.··._,""'_>~"""".>._"""'._.**  _**"'.~** ..**"'._._~** __.>

__ ._.""'.""._ 

## IT**~~ THE~~O,**  

## '.'

. .,M 

## THE COMMISSION thatthe amendedrules,**revise<f~9Jr!rmrcrtWt;M19n§¥t5tmE?'5~~corporated** 

## byreference to this Order are hereby adopted. The Commissionfurther authorizes staffto make any non-substantive revisions to the rules necessary to complywith 

## Texas Registerrequirements. The adoptedrules andthe preamble to the adoptedrules, revisedMOA, andthe revisions to the SIP are incorporatedby reference in this Order as ifsetforth atlengthverbatim in this Order.
IT IS FURTHERORDERED BYTHE COMMISSION that onbehalfofthe Commission, the Chairman shouldtransmit a copy ofthis Order, together withthe adopted rules, revised MOA, andrevisions to the SIP, to the Regional Administrator ofEPA as a proposedrevision to the Texas SIP pursuantto the Federal CleanAirAct, codified at42 U.S. CodeAnn.§§ 7401

- 7671q, as amended.
This Orderconstitutes the Orderofthe Commission requiredbythe Administrative ProcedureAct, Tex. Gov't Code, § 2001.033 (Vernon 2008).
If

## anyportion ofthis Orderis for anyreason heldto be invalidby a court of competentjurisdiction, the invalidityofany portion shall not affectthevalidity ofthe remaining portions.

Date issued: 

# JAN 302012

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

# • 

# • MED CAL BENEFIT (e) Agreements to hold th hearing at a later date must be in writing. The person who is advers ly affected by the issuance ofthe ex parte emergency cease and desi t order and who desires a hearing regarding such order must file any uch agreement with the division's chiefclerk ofproceedings before t e expiration ofthe 10th day after the date the request for hearing is r ceived. (f) Following receipt ofthe proposal for decision from SOAH regarding the hearing the commissi ershallreviewtheproposeddecision ofthe administrative lawjudg and wholly orpartly affirm, mod

### iry, or set aside the order. Ifthe c mmissioner modifies, amends, or changes a recommended finding of act or conclusion oflaw, or order ofthe administrative lawjudge, th commissioner's final order shall state the legal basis and the specific reasons for the change. (g) Pending a hearing, the rder continues in effect unless the order is stayed by the commissione

. (h) Ifthe person against w m the order was entered submits a motion for stay ofthe ex parte em rgency cease and desist order, the motionmaybe grantedbythe comm ssionerbeforethe date ofthe show cause hearing. Ifthe paIiies agree a later show cause hearing date pursuant to subsection (d) ofthis s tion, the motion for stay may be grantedby the commissionerbefore he date ofthe show cause hearing upon written motion by any party to the hearing. Ifthe motion for stay is granted, notice shall be sentto the equesting party thatthe orderhas been stayed in whole or in part and 'hat part ofthe order continues to be in effect. Ifthe motion is not gr nted before the date ofthe show cause hearing the motion is denied and notice is not required ofthe denial. This agency hereby certifies that e adoption has been reviewed by legal counsel and found to be valid exercise ofthe agency's legal authority.
Filed with the Office of the Sec tary of State on January 25, 2012. TRD-201200345 Dirk Johnson General Counsel Texas Department of Insurance, Divi ion ofWorkers' Compensation Effective date: February 14, 2012 Proposal publication date: Septemb 23.2011 For further information, please call: ( 12) 804-4703 

# • SUBCHAPTER B. 

### REGULATION 28 TAC §180.27 The amendments are adopted u der Labor Code §§402.00111, 402.00116(a) and (b), 402.0012 b), and 402.061. Labor Code §402.00111 provides that except as otherwise prOVided by Labor Code, Title 5, the Commissio er of Workers' Compensation shall exercise all executive auth rity, including rUlemaking authority, under Labor Code, Title

. Labor Code §402.00116(a) provides that the Commissioner i the Division's chief executive and administrative officer and sh II administer and enforce Labor Code, Title 5, otherworkers' c mpensation laws ofthis state, and other laws granting jurisdicti n to or applicable to the Division or the Commissioner. Labor Code §402.00116(b) provides that the Commissioner has the p wers and duties vested in the Division by Labor Code, Title 5 nd other workers' compensation laws of this state. Labor Cod §402.00128(b) provides that



## 37TexReg 704 February 10, 2012 Texas Register the Commissioner or the Com issioner's designee may investigate misconduct; hold hearin s; issue subpoenas to compel the attendance of witnesses an the production of documents; administer oaths; take testimon directly or by deposition or interrogatory; assess and enforce enalties established underthis title; enter appropriate orders a authorized by this title; institute an action in the Division's.nam to enjoin the violation of Labor Code, Title 5; initiate an action nder Labor Code §410.254 to intervene in a judicial proceedi g; prescribe the form, manner, and procedure forthe transmiss n of information to the Division; correct clerical errors in the ent of orders; and exercise other powers and perform other dutie as necessary to implement and enforce Labor Code, Title 5. La or Code §402.061 provides that the Commissioner shall adopt r les as necessary for the implementation and enforcement of t e Act. This agency hereby certifies tha the adoption has been reviewed by legal counsel and found to b a valid exercise ofthe agency's legal authority.
Filed with the Office of the Se retary of State on January 25, 2012. TRD-201200346 Dirk Johnson General Counsel Texas Department of Insurance, Di sion ofWorkers' Compensation Effective date: February 14. 2012 Proposal publication date: Septem er 23,2011 For further information, please call: (512) 804-4703 

# • • TITLE 30. ENVIRONMENTAL QUALITY 

## PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 111. CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER SUBCHAPTER 

## A. VISIBLE EMISSIONS AND PARTICULATE MATTER DIVISION 4. MATERIALS HANDLING, CONSTRUCTION, ROADS, STREETS, ALLEYS, AND PARKING LOTS 30 TAC §111.147 The Texas Commission on Environmental Quality (TCEQ or commission) adopts an amendment to §111.147. Section 111.147 is adopted with change to the proposed text as published in the September 2, 2011, issue ofthe Texas Register (36 TexReg 5640) and the text will be republished. The adopted amendment to §111.147 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 RuleUnder the 1990 Federal Clean Air Act (FCAA) Amendments, the City of EI Paso (EI Paso area) was designated nonattainment under FCAA, §107(d)(4)(B) for particulate matter (PM) with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM,,) National Ambient Air Ouality Standard (NAAOS) and subsequently classified as a moderate PM" nonattainment area. In November 1991, the Texas Air Control Soard (TACS), a predecessor agency of the TCEO, submitted the EI Paso PM" Attainment Demonstration SIP revision. The SIP revision included PM control measures in §111.147. The control measures adopted in §111.147 required paving as a method of dust control in the El Paso area for specified roads and added a requirement that alleys be paved at the rate of 15 miles per year. Section 111.147 also set frequencies for street sweeping in designated sections of the EI Paso area. In 1991, a Memorandum of Understanding (MOU) between the City of El Paso (the City) and the TACS was approved to outline the responsibilities and regulatory requirements for both parties. This MOU was replaced with a Memorandum ofAgreement (MOA) with the City in 2001 with the same requirements. On November 21, 2003, the El Paso Metropolitan Planning Organization submitted a letter requesting that the TCEO develop a PM" redesignation request and maintenance plan. On December 28, 2009, the TCEO requested information from the City to ascertain what efforts the City has taken to support a request for redesignation. In a response letter dated January 29, 2010, the City indicated the following: the City has programs funded annually in the City's capital improvement bUdget and in the Street Department operations budget in 'an effort to comply with environmental regulations; the City has committed to an alley paving program at a level in alignment with its own internal budgetary capacities, not at the rate of 15 miles per year as required under §111.147; the City maintains an inventory of street and alley paving efforts to document the current status and projections for future paving activities; and the City's Air Ouality Program conducts surveillance and investigations to ensure compliance with, and enforcement of, the Chapter 111 rules. For the site reporting Federal Reference Method (FRM) PM" data for all three years from 2007 through 2009 (Socorro AOS ID 481410057), there were no exceedances ofthe PM" 24-hour NAAOS. Subsequent data from the City indicates that from 1991 through 2010, the percentage of unpaved alleys has significantly decreased from 66% to 16% of the total alleys in the EI Paso area, with approximately 23 miles of unpaved alleys remaining. Any new alleys must be paved by developers in accordance with a city ordinance. Furthermore, the City discontinued garbage collection in alleys in 1997, so the traffic in alleys has been dramatically reduced, and reclaimed asphalt pavement (RAP) has been used to cover some unpaved alleys, which has proven to be as effective as paving. In addition, the City has also been performing PM control measures that are not required by §111.147 or the MOA. For the site reporting FRM PM" data for all three years from 2007 through 2009 (Socorro AOS ID 481410057), there were no exceedances of the PM" 24-hour NAAOS, and with the minimal amount of unpaved alleys remaining in the El Paso area, the paving rate requirement in §111.147 should no longer be considered necessary for attainment of the 1997 PM" NAAOS. The adopted rulemaking will revise §111.147 to provide the City with alternative methods of PM control consistent with maintenance of the standard. The adopted rulemaking also revises §111.147 to allow the City to sweep streets at reduced frequencies, since the progress made by the City's alley and road paving programs has reduced the overall amount offugitive dust in the EI Paso area. Finally, the City indicated that itwill continue to include street and alley paving and sweeping in its annual budget for maintenance of the standard. Based on these substitute and supplemental actions, compliance with the anti-backsliding provisions in FCAA, §11 0(1) is demonstrated. Consistent with the amendments to §111.147 in this adoption package, revisions to the 2001 MOA are proposed for adoption concurrent with this rulemaking adoption. Demonstrating Noninterference Under FCAA, §110(1) The commission provides the following information to clarify Why the amendment to §111.147(1 )(E) and (2) will not negatively impact the status of the state's attainment with the PM" NAAOS. The requirement for reasonable notice and public hearing was satisfied through a public hearing held on September 27,2011. The public comment period began on September 2, 2011, and ended October 3, 2011. According to the EPA draft guidance issued on June 8, 2005, Demonstrating Noninterference Under Section 110(1) of the Clean AirAct When Revising a State Implementation Plan, areas have two options available to demonstrate noninterference for affected pollutant(s). This preamble provides details ofthe identified existing measures that the commission will use to establish compliance with option one of the EPA's draft guidance: substitution of one measure by another with equivalent or greater emissions reduction/air quality benefits. Background In accordance with the FCAA and EPA guidance, the TACB was required to demonstrate either attainment ofthe standard by December 31, 1994, or demonstrate that attainment by that date was impracticable. FCAA, §179B provided that moderate nonattainment areas would not be redesignated as serious ifthe state could demonstrate that such areas would achieve attainment by the deadline if it were not for air quality impacts caused by another country. In response to the FCAA §179B provision, the TACB demonstrated attainment ofthe PM" NAAOS through dispersion modeling of United States emissions alone. Furthermore, the EPA guidance contained in the PM" Moderate Area SIP Guidance: Final Staff Work Product, April 2, 1991, prescribed that SIPs for moderate PM" nonattainmentareas contain quantitative milestones to be achieved every three years, and that the SIP revisions demonstrate reasonable further progress (RFP) towards attainment. However, the TACS submitted information establishing that an RFP demonstration was not strictly applicable. Specifically, based on the international impacts provision in FCAA, §179B, the TACS demonstrated that the EI Paso nonattainment area would attain the PM" NAAOS both at the time ofthe SIP revision in 1991 and atthe time compliance would be required under the SIP in 1994, based on modeling of United States emissions alone. Therefore, there are currently no more requirements for a demonstration of reductions to United States emissions. However, to help minimize PM" impacts from El Paso sources, the TACB adopted several new or enhanced control measures in its 1991 SIP revision. These measures included revisions to §§111.111, 111.141, 111.145, and 111.147. The control measures adopted in §111.147 required paving as a method ofdust control in the El Paso area for specified roads and added a requirement that alleys be paved at the rate of 15 miles per year. Section 111.147 also set frequencies for street sweeping in designated sections of the EI Paso area. The EPA-ap

## ADOPTED RULES February 10, 2012 37 

## TexReg 705proved 1991 El Paso PM,o Attainment Demonstration SIP revision includes the PM control measures in Chapter 111. Conclusion The City has decreased the percentage of unpaved alleys from 66% to 16% between 1991 and 2010. Also, for the monitoring site reporting FRM PM,o data for all three years from 2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances of the PM,o 24-hour NAAQS. The City also put in place provisions that the unpaved alley inventory will not increase because a city ordinance requires developers to pave any new alleys. Furthermore, the City discontinued garbage collection in alleys in 1997, so the traffic in alleys has been dramatically reduced. City action to reduce airborne PM,o has also reduced the need to sweep streets at the frequencies specified under the current rule, and RAP, which has been proven to be as effective as paving, has been used to coversome unpaved alleys. In addition, the City also continues to include alley paving and maintenance in its annual budget. Because the EI Paso area is monitoring attainment of the PM,o NAAQS based on the monitoring site reporting FRM PM,o data forall three years from 2007 through 2009 (Socorro AQS ID 481410057), with the City's current practices in place, revising §111.147 to reflect these current practices would not interfere with the El Paso area's ability to attain and maintain the PM" NAAQS. Section Discussion The adoption amends §111.147(1 )(E) to remove the requirement to pave alleys at the rate of 15 miles per year and replace it with the following requirements: 1) all new alleys must be paved; 2) unpaved alleys may not be used for residential garbage and recycling collection; and 3) RAP may be used as an alternate means of PM control for alleys. Based on comments received, the commission revised §111.147(1)(E) by adding the terms "unpaved" and "residential" to clarify that some commercial trash collection routes may still occur in paved alleys, and future growth may require trash receptacles to be located in paved alleys for newly developed residential areas. The adoption also amends §111.147(2) to change the sweeping frequency requirement from four times per year to three times per year in the city limits and from six times per week to four times per week in the central business district. Final Regulatory Impact Analysis Determination The commission reviewed the adopted rulemaking in light ofthe regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that this rulemaking is not subjectto Texas Government Code, §2001.0225 because itdoes not meet the definition of a major environmental rule as defined in that statute. A majorenvironmental rule means a rule, the specific intent ofwhich 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, orthe public health and safety of the state or a sector ofthe state. The adopted rulemaking is not a major environmental rule because the revisions to Chapter 111 will allow more flexibility for the City to continue to comply with the 1997 PM,o NAAQS. For the monitoring site reporting FRM PM,o data for all three years from 2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances of the PM,o 24-hour NAAQS. The adopted rule revision will remove specific requirements for the number of miles of alleys to be paved per year, will allow the use of RAP as an alternate means of PM control for preexisting unpaved alleys, and will decrease the num

## 37TexReg 706 February 10, 2012 Texas Register ber oftimes that soil is to be removed from public thoroughfares from four to three times per year for those previously specified areas within the city limits, and from six to four times per week within the central business district. The public benefit anticipated from the changes in the adopted rule will be continued attainment with PM,o NAAQS, and continued protection of public health and safety in EI Paso. For the monitoring site reporting FRM PM,o data for all three years from 2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances ofthe PM" 24-hour NAAQS. The adopted revisions will not adversely affect in a material way the economy, a sector ofthe economy, productiVity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. The adopted rule revision will not have a fiscal impact on individuals or large businesses in EI Paso since it gives the City more flexibility than current rules and reflects current practices in El Paso for PM,o control on roads, streets, and alleys. The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. No comments were received on the draft regUlatory impact analysis determination. Takings Impact Assessment The commission evaluated this rulemaking action and performed an analysis of whether the adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The primary purpose of the rulemaking is to provide more flexibility for the City to continue to comply with the 1997 PM,o NAAQS. This rulemaking 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 the governmental action. Promulgation and enforcement of this adopted rulemaking is neither a statutory nor a constitutional taking because it does not affect private real property. Specifically, the subject adopted regulations do not affect a landowner's rights in real property because this rulemaking does not burden (constitutionally); nor restrict or limit the landowner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in absence ofthe regulations. Therefore, this rule does not constitute a taking un-

. der Texas Government Code, Chapter 2007. 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)(2), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (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 will not affect any coastal natural resource areas because the rules only affect counties outside the CMP area and is, therefore, consistent with CMP goals and policies. The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received concerning the Texas CMP. Effect on Sites Subject to the Federal Operating Permits Program The commission has reviewed this adopted rulemaking and determined that, although §111.147 is an applicable requirementof 30 TAC Chapter 122, the adopted changes would only affect paving and street sweeping requirements for the City, not individual emission units at sites. Therefore, the adopted changes do not affect sites subject to the Federal Operating Permits Program. Public Comment A public hearing was offered on September 27, 2011. The hearing was not officially opened because no party indicated a desire to give comment. The public comment period opened on September 2, 2011, and closed on October 3, 2011. Two written comments were received from the City. Response to Comments Comment The City recommended adding the terms "unpaved" and "residential" to proposed §111.147(1)(E)(ii) because some trash pick-up routes do occur in alleys. In addition, future incorporation of Smart Growth Community Development will require trash receptacles to be located in alleys for newly developed residential areas. Response The commission agrees with the City's addition of language to §111.147(1 )(E) and has made the suggested changes. The additional terms clarify the commission's intentthat garbage collection be conducted in paved alleys. Furthermore, the terms give the City flexibility to continue to allow for smart growth in residential areas and maintain compliance with the PM,o standard. Comment The City also recommended adding the phrase "which are under the jurisdiction of the City of EI Paso and which have been designated as public thoroughfares" to §111.147(1 )(F). Response The City's suggested change to §111.147(1 )(F) is beyond the scope ofthis rulemaking. No change has been made to the rule based on this comment. Statutory Authority The amendment 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. The amendment is also adopted under Texas Health and Safety Code (THSC), Texas Clean AirAct, §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; THSC, §382.011, concerning General Power and Duties, which authorizes the commission to control the quality of the state's air; 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; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.0172, concerning international border areas; and THSC, §382.0173 concerning Adoption of Rules Regarding Certain State Implementation Plan Requirements and Standards of Performance for Certain Sources. The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.0172, and 382.0173. §1l1.147. Roads, Streets, andAlleys. No person may cause, suffer, allow, or permit any public, industrial, commercial, or private road, street, or alley to be used without taking at leastthe following precautions to achieve control ofdust emissions: (1) application ofasphalt, water, or suitable oil or chemicals on the following unpaved surfaces, except in the City ofEI Paso and the Fort Bliss Military Reservation, except as noted in §1l1.141 ofthis title (relating to Geographic Areas ofApplication and Date of Compliance), where the use ofpaving materials is the only acceptable method ofdust control, unless otherwise specified: (A) industrial facility roadways--all major in-plant roads and all truck or other heavy-duty vehicle pathways. Major in-plant roads shall be defined as those which are designed to accommodate two-way traffic and are at least 30 feet wide at at least one point, measuring the distance from the edge ofthe undisturbed earth on either side of the established roadway. The executive director, with the concurrence ofthe United States Environmental Protection Agency, may grant awaiver from the requirementto pave an industrial facility roadway ifthe owner ofthe roadway demonstrates thatthe cost ofpaving is economically unreasonable compared to other methods of dust control specified in this paragraph; (B) public thoroughfares--all roads and streets to which the public has general access; (C) commercial roads--all roads that serve as access for more than 50 employees or as access to more than 10 heavy-duty truck parking spaces; (D) residential roads--all roads that serve as access for more than 20 residence and/or apartment units; (E) alleys--in the City ofEl Paso, alleys must meet the following requirements:

. (i) all new alleys must be paved; (ii) unpaved alleys may not be used for residential garbage and recycling collection; and (iii) reclaimed asphaltpavement (RAP) maybe used as an alternate means ofparticulate matter control for alleys; and (F) levee roads--in the City ofEl Paso, all levee roads and access to such roads must be controlled with the application of asphalt, or suitable oil or chemicals; (2) removal from public thoroughfares, as necessary, of soil or othermaterials, exceptfor sand applied for the specific purpose ofsnow or ice control. In the City ofEl Paso, removal ofsoil must be by mechanical sweepers or their equivalent at the rate ofthree times per year for all public thoroughfares within the city limits and four times per week or as necessary for public thoroughfares within the central business district. For the purpose ofthis section, the central business district is defined as that area bordered by Loop 375 to the south, Santa Fe Street to the west, Missouri Street to the north, and Kansas Street to the east. The City ofEl Paso shall spot clean dirty roadways, and shall maintain street sweeping records for two years. Sand applied for the specific purpose ofsnow or ice control must be removed as soon as such control is no longer necessary. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority.
Filed with the Office of the Secretary of State on January 27, 2012.



## ADOPTEDRULES 

## February 10, 

## 2012 37TexReg 707TRD-201200403 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: February 16, 2012 Proposal publication date: September 2,2011 For further information, please call: (512) 239-0779



# • • • Texas Water Code §16.0121. RetaillUb,iC utilities that received financial assistance from the TWDS rior to September 1, 2011, and that have an outstanding loan fr m the TWDS or active loan forgiveness or grant agreement wit the TWDS shall submit a water loss audit to the executive ad inistrator by May 1, 2013, and by May 1st annually thereafter uring the term of the loan or the loan forgiveness or grant agr ment. This deadline is required in Section 2 of House Bill 30

. Retail public utilities that receive financial assistance from th TWDS after September 1, 2011, shall submit a water loss audi no later than the next May 1st that is at least one year after th receipt of financial assistance and by every May 1st thereaft during the term ofthe loan orthe loan forgiveness orgrant agre ment. This deadline allows each retail public utility at least one ear after it commences receiving financial assistance to collect ata necessary for its water loss audit. Entities that do not recei e financial assistance from the TWDB will continue to be requir d to perform and file a water loss audit everyfive years, begin ing May 1,2016, and every five years thereafter. The adopted a endment also clarified that the methodology for the water loss udits will be developed by the Executive Administrator, rather an the Soard members of the TWDB. The adopted amendment of §358.6( ) adds references to Texas Water Code, Chapter 15, Subchapt rs Q and R(the Water Infrastructure Fund and the Rural Wa er Assistance Fund) to the list of TWDB financial assistance p grams for which an entity is ineligible if it has not submitted a complete water loss audit, because under Texas Water Code 16.0530), an applicant for financial assistance from either ofth se two programs for a water supply project is required to sub it a water loss audit. The adopted amendment also deletes t e reference to Subchapter P (the Colonia Self Help Program) ecause an applicant for financial assistance from this progra is not required to submit a water loss audit under Texas Water ode §16.0530). The adopted amendment of §358.6 Iso deletes the word "form" from the phrase "water loss audit fa m," as it is unnecessary. PUSLIC COMMENTS. No comments were received on the proposed amendment. STATUTORY AUTHORITY. The amendment is adopted under t e authority of Texas Water Code §6.1 01, which authorizes the DS to adopt rules necessary to carry out the powers and du ies ofthe TWDB. This rulemaking affects Texas Water Code, Chapters 15, 16, and 17. This agency hereby certifies thatthe doption has been reviewed by legal counsel and found to be a

### v lid exercise ofthe agency's legal authority.
Filed with the Office of the Secret ry of State on January 26, 2012. TRD-201200354 Kenneth L. Petersen General Counsel Texas Water Development Board Effective date: February 15, 2012 Proposal publication date: December 9,2011 For further information, please call: (51 ) 463-8061 

## COLLECTION 

# • L RESOURCES AND 

# • TITLE 31. NATU CONSERVATION 

## PART 10. TEXAS DEVELOPMENT BO CHAPTER 358. GUIDELINES SUBCHAPTER B. 31 TAC §358.6 The Texas Water Developmen Board ("TWDB") adopts an amendment to 31 TAC §358.6, regarding Water Loss Audits. Related amendments to §363. 2, regarding General, Legal, and Fiscal Information; §371. ,regarding Required Water Conservation Plan; and §375. 3, regarding Required Water Conservation Plan, are adopte elsewhere in this issue. The amendment is adopted without c anges to the proposed text as published in the December 9, 20 1, issue of the Texas Register (36 TexReg 8341). BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS FOR THE ADOPTED AMENDM NT. In 2011, the 82nd Texas Legisl ture passed House Bill 3090, amending Texas Water Code § 6.0121, which affects entities receiving financial assistance fro the TWDS. Priorto HB 3090, retail public utilities that provided otable water were required to perform and submit to the TWD a water loss audit every five years computing the utility's mo t recent annual system water loss. According to HS 3090, a such retail public utility that receives TWDS funding is requi ed to perform and submit an annual water loss audit. Any re ail public utility that does not receive financial assistance from the TWDS will continue to be required to perform and file a wat r loss audit every five years. DISCUSSION OF ADOPTED A ENDMENT. §358.6. Water Loss Audits. Under §358.6, all retail public utili ies that provide potable water service were required to perform nd submit to the TWDB'a water loss audit every five years, b each March 31 st, computing the utility's most recent annual sy em water loss under methods developed bythe TWDB. Also, an such utilitythat fails to submit the required water loss audit is in ligible for financial assistance for a water supply project from all ofthe TWDB's loan programs except the Rural WaterAssistanc Fund (RWAF) and the Water Infrastructure Fund (WIF). Under he adopted amendment, both RWAF and WIF will be included. The adopted amendment of§358. (a) will provide that retail public utilities that provide potable w er and that receive TWDS financial assistance will be requir d to perform and provide an annual water loss audit in accord nce with the requirements of



## 37 TexReg 708 February 10, 2012 Texas Register