Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

Mark R. Vickery, P.G., Executive Director

RECEIVED - 6PDL

AIR PLANNING SEC.

12 HAR 14 PH 3: 55

TEXAS COMMISSION ON ENVIRONMENTAL QUALIlY

Protecting Texas by Redllcing and Preventing Pollution

March 7,2012

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

Alfredo Armendariz, Ph.D.

Regional Administrator

U.S. Environmental Protection Agency - 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 ofAir Pollution from Visible Emissions and Particulate Matter, Subchapter A,

Division 4, Materials Handling, Construction, Roads, Streets, Alleys, and Parking Lots; a revised

Memorandum ofAgreement (MOA) between the City of El Paso (the City) and the Commission; and

corresponding revisions to the SIP. The adopted rule amendments update the particles with an

aerodynamic diameter less than or equal to a nominal 10 micrometers (PMlO) controls required to

attain and maintain the PMlO National Ambient Air Quality Standards (NAAQS) and provide the City

greater flexibility in the implementation of the PMlO control requirements in §111.147. The MOA has

been revised to reflect the changes to §111.147. The adopted SIP revision will incorporate the revised

MOA into the El Paso PMlO SIP.

Enclosed are the proposed revisions to the SIP, a public hearing certification, complete records of the

public hearing, and the accompanying order. l' look forward to your expeditious approval ofthese SIP

revisions.

Sincerely,

:::;j::,~~ Chairman

BWSjers

Enclosures

cc: The Honorable Rick Perry, Governor ofTexas

Mr. Toby Baker, Office of Budget, Planning and Policy, Office of the 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 customer service? 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 certify that the attached electronic file is included and that the electronic file is a

true and correct copy of documents for a revision to the Texas State Implementation Plan,

adopted on January 25, 2012, pursuant to 40 Code of Federal Regulations § 51.104. I am the

records administrator for 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 of Air 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 requirement to pave alleys at the rate of 15

miles per year, and replacing it with 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 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.

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 of this hearing record are maintained in the TCEQ central office at 12100 Park 35

Circle, Austin, Texas 78753. Forfurther information, please contact Peter A. Ogbeide at (512) 239-

1937.
NOTICE & PROPOSAL
PUBLIC NOTIFICATION

Notification to the public of the 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 of Aviation

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~dc'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'ndin 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-SIPNRl

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 rer~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.

ta XOS. If 0 vln a vIr u les!

~~~-~:sSI!-o~doF~aht:~.
•

The proposed rulemaking would re ise §106.352 to restore the requirement t"hat allY facility handling sou gas shall be located at least onequarter mile from any recreational rca or residence or other structure

not occupied 01' used solely by th OWnel' or operator of the facility

or the owner ofthe property upon hlch the facility is located, as the

requirement existed in §106.352 pi or to the 'anuary 26, 2011 amendment. This requirement would be dded 1n proposed §106.352(1)(3).

The subsequent paragraphs of sub ection (I) would be re-numbered.

The proposed rulemaking would a so correct typographical errors in

§106.352 and the non-rule Air Qual ty Standard Permit for Oil and Gas

Handling and Production Facilities

PUBLIC I-IEARING

• • •

The commission will hold a public earing on this proposal in Austin

on October 3,2011 at2:00 p.m. in uilding E, Room 201S at the commission's central office located at 2100 Park 35 Circle. The hearing

is structured for the receipt of oral I' written comments by interested

persons. Individuals may present 0 'al statements when called upon in

order ofregistration. Open discussi n will not be 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 of Legal 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 commentsshould reference the vision to 30 rAe §1 06.352 andlor

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 of comments 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 of a Public Hearing on Proposed Revisions 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 of Air 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, Subchapter B; and 40 Code of Fedel'al Regulations §51.102 of

the United States Environmental Protection Agency (EPA) regulations

conceming SIPs.

The proposed rulemaking would amend §1l1.I47(l)(E) to remove the

requirement to pave alleys at the rate of 15 miles per yem; 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 of recycled

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 conduct a public 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 comment on a proposed arne Idment to the non-rule Ail' 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, by failing to report a sus ected release to the TCEQ within 24

hours ofthe discovery; and 30 T C §334.74, by failing to investigate

a suspected release within 30 day of discovery; 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, Grayson Counly; TYPE

OF FACILITY: healthcare; RULE VIOLATED: 30 TAC §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

third parties for bodily iqjury and ropertydamage caused by accidental releases arising from the opera'on ofpetroleum USTs; 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
+

asphalt product as defined in §111.145 and §111.147(1), may be used

as an alternate means ofParticulate Matter control for alleys. The proposal will also amend §1ll.147(2) to change the sweeping frequency

req~ljremcll,t from four times per year to thrce times per year in the city

limits and from she times pel' week to foUl' times per week in the central

business district. (Rule Project Number 2010-046-111-EN)

The Memorandum of Agreement (MOA) between the TCEQ and the

City of ~l Paso is being revised to reflcct the alternative control measures in the proposed rulemaking and the respective responsibilities of

the City ofEll'aso and the TCEQ. (project Number 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 PM SU'. (Project

Nnmber 2011-010-SIP-NR)

The commission will hold a public hearing on this proposal inEl Paso

011 September 27,2011 at 2:00 p.m. in the El Paso Regional·Office, at

401 E. Franklin Avenue, Suite 560. The hearing is structured for the

receipt of oral or written comments by interested persons. Individuals

may present oral statements when called upon in order ofregistration.

Open discussion will not be permitted during the hearing; however,

commission staffmembers will be available to 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, Office ofLegalServices 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 of the 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. For fhrther

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 on Enviro ental Quality (TCEQ or commissiou) staff is providing an opportu ity for written public comment on

the listed Agreed Orders (AOs) in ccordance with Texas 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 that notice ofths op ortunity to commentmust be published in the Texas Register no lat r than the JOth day before the date

on which the public conunent peri d closes, which in this case is October3, 2011. TWC,§7,075 also re. uires that the commission promptly

consider any written comments re ived and that the commissioll may

withdraw 01' withhold approval of n AO if a comment discloses facts

or considerations that indicate tha consent is inappropriate, improper,

inadequate, or inconsistent with t e requirements of the statutes and

rules within the cOinmission'sjuri diction or the commission's orders

and permitsissued in aceordanclO th the commission's regulatory authority. Additional notice ofchang s to a proposed AO is not requirlOd

to be published ifthose changes made in response to written comments.

A copy of each proposed Ao is av Uable·for publlc inspection at both

the commission's central office, loe ted at 12100Park 35 Circle,Building A, 3rd Floor, Austin, Texas 78 53, (512) 239-3400 and at the applicable regional office listed as fo ows. Written comments about an

AO should be sent to 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, §7.075 providesthat co ments on an AO 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), y failing to prevent unauthorized

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

to submit notification for the start of construction and completion

of construction within 15 days of currence of the 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 of Federal Regulations (CFR),

§63.6640(a) and THSC, §382.085 ), by failing to maintain the

temperature ofthe stationary recipro ling internal combustion engine

exhaust so the ·catalyst inlet temperat re is greater than or equal 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., FOP Nltmber 014 0, Special Terms and Conditions

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

Number 01440, General Terms and C 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 of measuring the

tempemture of the 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

prevent unauthorized 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 September 2,2011 Texas Register
Bryan 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 by Reducing and Preventing Pollution

Public Hearing on Proposed Revisions to 30 TAC Chapter 111

and Revisions to the State Implementation Plan

The Texas Commission on Environmental Quality (commission or TCEQ) will conduct a

public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111,

Control ofAir Pollution from Visible Emissions and Particulate Matter, §111.147; and to

the state implementation plan (SIP), under the requirements of Texas 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 proposed rulemaking would amend §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) 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 proposal

will also amend §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. (Rule Project Number 2010-

°46-111-EN)

The Memorandum ofAgreement (MOA) between the TCEQ and the City of El Paso is

being revised to reflect the alternative control measures in the proposed rulemaking and

the respective responsibilities of the City of El 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

and the revised MOA into 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. Franklin Avenue, Suite 560.

The hearing is structured for the receipt of oral or written comments by interested

persons. Individuals may present oral statements when called upon in order of

registration. Open discussion will not be permitted during the hearing; however,

commission staff members will be available to discuss the proposal 30 minutes prior to

the hearing.

Persons who have special communication or other accommodation needs who 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.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov

How is our customer service? tceq.texas.govjgotojcustomersurvey

printed on recycled paper
Written comments 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. Electronic comments may be submitted at:

http://www5.tceq.texas.gov/rules/ecommentsj. File size restrictions may apply to

comments being submitted via the eComments system. All comments should reference

the project number that the comment pertains to: Rule Project Number 2010-046-111-

EN for the proposed rule amendments; Project Number 2011-026-MIS-NR for the

proposed MOA; and Project Number 2011-01O-SIP-NR for the proposed El Paso SIP

revision. The comment period closes October 3, 2011. Copies ofthe proposed

rulemaking can be 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 can be obtained from the commission's Web site at

http://www.tceq.texas.gov/airquality/sip/elp/elp-latest-pm. For further information,

please contact Peter A. Ogbeide, Air Quality Division, (512) 239-1937.
ill [~] Total emissio s ofsulfur compounds, excluding

sulfur oxides, from all ventsshall n exceed 4.0 pounds per hour (lblhr)

and the height of each vent emitti sulfur compounds shall meet the

following requirements, except in 0 case shall the height be less than

20 feet, where the total emission I' e as H,S, Ib/IH', and minimum vent

height (feet), and other values 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 of Permitting 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 of this title (relating to Temporary

Oil and Gas Facilities), the registl1l on is required before operation under tbis subsection can begin. Ifth facilities cannot meet this subsection, a permit under Chapter 116 a his title (relating to Control ofAir

Pollution by Permitsfor New Cons etion or Modification) 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~]

This agency 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 Office ofthe Secre ary of State 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 to the state

implementation plan (SIP).

36 TexReg 5640 September 2,2011 Texas Register

Background and Summary ofthe Factuai Basis for the 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 of dust 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 outline the 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 request and maintenance plan. On December 28, 2009, the TCEQ requested information from the City to

ascertain what efforts EI Paso 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 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 of street and alley

paving efforts to document the 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. For the 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. 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 cover some 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§111.147 or the MOA. For the 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 of the 1997 PM" NAAQS. The proposed rulemaking is

necessary to revise §111.147 to provide the City with alternative

methods of PM control consistent with maintenance of the stan-
dard. The proposed rulemaklng would also revise §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 of fugitive dust in the EI Paso area.

Finally, the City indicated that it will continue to Include street and

alley paving and sweeping in its annual budget for maintenance

ofthe standard. 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 clarify why

the proposed amendment to §111.147(1 )(E) and (2)wUlnotnegatively impact the status of the state's attainment with the PM••

NAAQS.

The requirement for reasonable notice and public hearing will be

satisfied through a public hearing scheduled for September 27,

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, Demonstrating Noninterferenc(J Under

Section 110(1) of the Clean Air Act When Revising a State'lmplementation Plan, areas have two options available to demonstrate noninterference for affected pollutant(s). This preamble

provides details of the 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 TACS was

reqUired to demonstrate either attainment of the 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 if the 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 §179B provision, the TACS

demonstrated attainment of the PMj

• 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 PMj • 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 of dust control in the EI Paso area for specified roads and

added a requirement that aileys be paveq at the rate of 15 miles

per year. Section 111.147 also setfrequencies for street 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 for all three years 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 cover some

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 PMj

• 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 requirement to pave

alleys at the rate of 15 miles per year 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 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.

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 by the

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 of administration or enforcement of the 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 City to 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 5641
the 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 for the City and 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 of this 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 number of days for street sweeping

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 week within 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 for all 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 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 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 Flexibllity Analysis

The commission has reviewed this proposed rulemaking and determined that asmall business regUlatory flexibility analysis is not

required, because the proposed rule does not adversely 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 meet the definition of a major environmental 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, or the 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 for the City to continue to comply with the 1997 PM,. NAAQS. For the monitoring

site reporting regulatory PM,. data for ali three Yfilars from 2007 -

2009 (Socorro AQS ID 48141 0057). there were no exceedances

of the 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

four times per week within 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, For the monitoring

site reporting regUlatory PM" data for all 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

way the economy, a sector of the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe

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 a standard 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 agreement or contract between the state and an

agency orrepresentative of the federal 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 by federal

law. This rulemaking does not exceed an express requirement

of state law and is not proposed solely under the general powers of the agency, but is specifically authorized by the provisions

cited in the Statutory Authority section of this preamble. Finally,

this rulemaking does not exceed a requirement of a delegation

agreement or contract to implement a state 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 of whetherthe proposed rule constitutes a taking 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 of this proposed rulemaking is neither a statutory nor a 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 limit the

landowner's right to property and reduce its value by 25% or

more beyond that which would otherwise exist in absence of the

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 of this 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 receipt of oral or written comments by interested persons. individuals may present oral statements when called upon in order

of registration. Open discussion will not be permitted during the

hearing; however, commission staff members will be available to

discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who 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

of the 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, and Alleys.

No person may cause, suffer, allow, or permit any public, industrial,

commercial, or private road, street, 01'.alley to be used without taking

at least the following precautions to achieve control ofdust emissions:

(l)applicationof asphalt, 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

of this title (relating to Geographic Areas ofApplication and Date of

Compliance), where the use of paving materials is the only acceptable

method of dust 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 of the undisturbed earth

on either side of the established roadway. The executive director,

with the concurrence of the United States Environmental Protection

Agency, may grant a waiver from the l'equiremenl to pave an industrial

PROPOSED RULES September 2, 2011 36 TexReg 5643
collection; 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 ofthe folio ing section proposed for repeal

will not be published. The section ay be examined in the offices of

the Texas Department ofPublic Safi or in the Texas Register office,

Room 245, James Earl Rudder Bull ing, 1019 Brazos 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 that for each year of the

first five-year period the repeal is in effect, the public wm benefit from greater coherence and si pliclty In the private Security

Board's administrative rules, Ther should be no economic costs

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 not spe ificaliy intended to protect the

environment or reduce risks to hu an health from environmental exposure.

The department has determined t at Chapter 2007 of the 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 department to 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 ofInstallation.

•

TITLE 37. PUBLIC S

TIONS

PART 1. TEXAS D PARTMENT OF

PUBLIC SAFETY

@l the use of reclaimed asphalt pavement may be

used as an alternate means of particulate matter control for alleys; and

(F) levee roads--in the City of EI Paso, all levee mads

and access to such roads IUust [-shall] be contmlled with the application

of asphalt, or suitable oil or chemicals;

(2) removal from public thoroughfares, as necessary, of

soil or other materials,except for sand applied for the specific purpose

of snow or ice control. In the City of EI Paso, removal of soil .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

of EI 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 agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the 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 must be paved;

{jjl alleys may not be used for garbage and recycling

CHAPTER 35. PRlVAT SECURITY

SUBCHAPTER C, STA DARDS

facility roadway ifthe owner ofthe roadway demonstratesthat the cost

ofpaving is economically unreasonable compared to other methods of

dust control specified in this pamgraph;

(B) public thol'Oughf'ares--all roads 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 of EI Paso, alleys must meet the

foliowing requirements: [flhalLbe~ lit ilwfate 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
Dear Ms. Horn:

SERVICE SOLUTIONS SUCCESS

Dedicated to Outstanding Customer Service for a 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 the jurisdiction of the City ofEI 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 of El 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

amendment to § 111.147(1)(F) (levee roads). We understand that the comment

period on this project closes on October 3, 2011.

RE: Rule Project Number 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

EI Paso bc,.

A11·America CIIV

,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 contact me at 915-621-6700.

SERVICE SOLUTIONS SUCCESS

Dedicated to Outstanding Customer Service for a 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

Sincerely,

C((z~"

Ellen Smyth, P.E.

Director

Attachment: Exhibit A (revised/proposed 30 TAC § 111.147)

of Homeland 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 of dust emissions:

(1) application of asphalt, water, or suitable oil or chemicals on the

following unpaved surfaces, except in the City of EI Paso and the Fort Bliss Military

Reservation, except as noted in §1l1.141 of this title (relating to Geographic Areas of

Application and Date of Compliance), where the use of paving materials is the only

acceptable method of dust 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 of the undisturbed earth on either side of

the established roadway. The executive director, with the concurrence

of the 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

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 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 apartment units;

(E) alleys--in the City of El Paso, alleys must meet the following

requirements: [shall be paved at the rate of at least 15 miles per year;]

en all new alleys must be paved;

(ii) unpaved alleys may not be used for residential

garbage and recycling collection; and

(iii) the use of reclaimed asphalt pavement may be used

as an alternate means of particulate matter control for

alleys.

(F) levee roads--in the City of El Paso, all levee roads and access

to such roads, which are under the jurisdiction ofthe City of El Paso and which have

been designated as public thoroughfares, shall be controlled with the application of

asphalt, or suitable oil or chemicals;

(2) removal from public thoroughfares, as necessary, of soil or other

materials, except for sand applied for the specific purpose of snow or ice control. In

the City of El Paso, removal of soil 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 within the central business district. For the purpose ofthis section, the
central business district is [shall be] 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 of snow or ice

control must [shall] be removed as soon as such control is no longer necessary.
INDEX OF ORAL TESTIMONY

NO ORAL TESTIMONY WAS RECEIVED PERTAINING TO 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 PM10 SIP Revision, and Revised

Memorandum of Agreement with the City of EI Paso

NAME REPRESENTING PRESENTING ORAL TESTIMONY?

(CIRCLE ONE)

Yes

1---...----------------.-~----------------_+- ..-----.----____1

Yes 0J ))/1 (5 L,~fkV /L

1

···---········---1--------------·-···-····-···----·----1-------..-...-

..,

, ,

'ji/ ---- l

t-\ ~'\ r<5'

( /

Yes /No/i

l~~

~_._------------_._------_._-'--------_._ _--_ _--_.._------------"--_ _-_.__.._----_ -
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 PM10 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 of Agreement between the TCEQ and the City of EI

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, Chief Clerk

Mark R. Vickery, P.G., Executive DirectoroJ)("

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

Docket No.: 2010-1862-RUL

Subject: Commission Approval for Rulemaking Adoption

Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate

Matter

Revision of El Paso Particulate Matter of 10 Micrometers and Less (PMlO)

Controls for Roads, Streets, and Alleys

Rule Project No. 201O-046-111-EN

Background and reason(s) for the rulemaking:

Under the 1990 Federal Clean Air Act (FCAA) Amendments, the City of El Paso (EI Paso

area) was designated nonattainment under FCAA, §107(d)(4)(B) for PMlO National

Ambient Air 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 Texas Commission on Environmental Quality (TCEQ),

submitted the EI Paso PMlO Attainment Demonstration State Implementation Plan (SIP)

revision. The SIP revision included particulate matter (PM) control measures in 30 Texas

Administrative Code (TAC) Chapter 111, Control ofAir 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, §111.147.

The control measures previously 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 ofthe El Paso area.

In 1991, a Memorandum of Understanding (MOD) between the City of EI Paso (the City)

and the TACB was approved to outline the responsibilities and regulatory requirements for

both parties. This MOD was replaced with a Memorandum ofAgreement (MOA) with the

City in 2001, with the same requirements.

On November 21, 2003, the EI 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 City to ascertain what

efforts EI Paso 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 both the City's capital improvement budget

and in the Department ofTransportation operations budget in an effort to comply with

environmental regulations;
Commissioners

Page 2

January 6, 2012

Re: Docket No. 2010-1862-RUL

• the City has committed to an alley paving program at a level in alignment with its own

internal budgetary capacities, but 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 document the

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, Chapter 111 rules. .

Forthe site reporting Federal Reference Method PMlO data for all three years from 2007

through 2009 (Socorro AQS ID 481410057), there were noexceedances ofthe PMlO 24-

hour NMQS. The inventory of unpaved alleys has decreased from 66% in 1991, to 16% in

2010, with approximately 23 miles of unpaved alleys remaining. The City action to reduce

airborne PMlO has also reduced the need to sweep streets at the frequencies specified under

the current rule. The adopted rulemaldng is necessary to provide the City with alternative

methods of PM control. The adopted rules would remove specific requirements for the

number of miles of alleys to be paved per year and allow the use ofreclaimed asphalt

pavement (RAP) as an alternate means of PM control for pre-existing unpaved alleys. The

adopted rule revisions would also decrease the number oftimes that soil is to be removed

by mechanical sweepers 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.

Scope ofthe rulemaldng:

The adopted rule revision will amend §111.147 to provide the City with additional flexibility

in PM control measures.

A.) Summary ofwhat the rulemaking will do:

The adopted rule revision will amend §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) the use of RAP may be used as an alternate means of PM

control for alleys. The adopted rule will also amend §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.

B.) Scope required by federal regulations or state statutes:

None

c.) Additional staffrecommendations that are not required by federal rule or

state statute:

None
Commissioners

Page 3

January 6,2012

Re: pocket No. 201O-1862-RUL

Statutory authority:

_The amendment is adopted under Texas Water Code (TWC), §S.103, concerning Rules, and

TWC, §S.lOS, 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 State Air 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 consistent with the

policy and purposes ofthe Texas Clean Air Act; THSC, §382.0172, concerning international

border areas; and THSC, §382.0173 concerning Adoption ofRules Regarding Certain State

Implementation Plan Requirements and Standards of Performance for Certain Sources.

Effect on the:

A.) Regulated community:

The adopted rule revision will update the PMlO controls required to attain and maintain the

PMlO NAAQS and provide the City greater flexibility in the implementation ofthe PMlO

control requirements in §111.147.

B.) Public:

Implementation ofthe revised nlle will continue protection of public health through

continued control of PMlO in the EI Paso area.

c.) Agencyprograms:

There are no anticipated impacts on agency programs.

Stakeholder meetings:

No stakeholder meetings were held.

Public comment:

The commission held a public hearing on the proposal in EI Paso on September 27, 2011.

The public hearing was not officially opened because no party indicated a desire to give

comment. The comment period opened September 2, 2011, and closed October 3, 2011.

Two written comments were received from the City.

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 win require trash receptacles to

be located in alleys for newly developed residential areas. The proposal was changed in

response to the comment.
Commissioners

Page 4

January 6, 2012

Re: Docket No. 2010-1862-RUL

The City also recommended adding the phrase "which are under the jurisdiction ofthe City .

afEl Paso ~nd which have been designated as public thoroughfares" to §111.147(1)(F). No

change was made in response to this comment.

Significant changes from proposal:

In response to comments from the City,proposed §111.147(1)(E)(ii) was revised to limit the

restriction to unpaved alleys used for residential garbage and recycling collection.

Potential controversial concerns and legislative interest:

A demonstration is required to show that changes to §111.147 win not interfere with

attainment ofthe PMlO NAAQSin order to comply with the United States Environmental

Protection Agency anti-backsliding provisions in FCAA, §110(1). It included the

substitution ofthe alley paving and street sweeping measures as stated in §111.147(1)(E)

and (2) with alternate control measures currently in place in the EI Paso area that have

resulted in PMlO emissions reductions equivalent to or greater than what would have been

achieved ifthe City had continued to implementthe prior version of §111.147(1)(E) and

(2). These control measures include reduced alley traffic, city ordinances requiring

developers to pave any new alleys they create, and the use of RAP on existing aneys.

Will this rulemaking affect any current policies or require development of

new policies?

No.

What aloe the consequences ifthis rulemaking does not go forward? Are there

alternatives to rulemaking?

The commission could decide not to adopt the proposed amendment to Chapter 111,·and

the revised MOA would not be needed. The City would be obligated to comply with

existing rules and MOA requirements limiting the City's fiscal and technical flexibility to

control PMlO in the El Paso area and comply'with the SIP.

Key points in the adoption rulemaking schedule:

Texas Register proposal publication date: September 2, 2011

Anticipated Texas Register publication date: February 10, 2012

Anticipated effective date: February 16, 2012

Six-month Texas Register filing deadline: March 2, 2012

Agency contacts:

Peter A. Ogbeide, Rule Project Manager, 239-1937, Air Quality Division

Terry Salem, StaffAttorneY,239-0469

Charlotte Horn~ Texas Register Coordinator, 239-0779
Commissioners

Pages

January 6,2012

Re: Docket No. 2010-1862-RUL

Attachments

None

cc: ChiefClerk, 2 copies

Executive Director's Office

Susana M. Hildebrand, P.E.

Anne Idsal

Curtis Seaton

Ashley Morgan

Office of General Counsel

Peter A. 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 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 ofthe Factual Basis for the Adopted 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 (PMlO) National

Ambient Air 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, submitted the 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 of dust control in the EI 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 ofthe EI Paso area.

In 1991, a Memorandum of Understanding (MOU) between the City of EI Paso (the City) and the

TACB was approved to outline the responsibilities and regulatory requirements for both parties.

1
This MOD 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 TCEQ develop a PMlO redesignation request and maintenance plan. On

December 28, 2009, the TCEQ 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 vvith 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 ofstreet and alley paving efforts to

document the 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.

For the 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 that from 1991 through 2010, the percentage of

unpaved alleys has significantly decreased from 66% to 16% ofthe total alleys in the EI Paso

area, vvith 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 PMlO data for all three years

2
from 2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances ofthe PMlO

24-hour NAAQS, 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

ofthe 1997 PMlO NAAQS. 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 El Paso area. Finally, the City indicated that it "vill continue to include

street and alley paving and sweeping in its annual budget for maintenance ofthe standard.

Based on these substitute and supplemental actions, compliance with the anti-backsliding

provisions in FCAA, §110(l) 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(l)

The commission provides the following information to clarify why the amendment to

§l11.147(1)(E) and (2) will not negatively impact the status ofthe state's attainment with the

PMlONAAQS.

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(l) ofthe 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

3
the commission will use to establish compliance ""ith option one ofthe 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 PMlO NAAQS through

dispersion modeling of United States emissions alone. Furthermore, the EPA guidance

contained in the PMlO Moderate Area SIP Guidance: Final StaffWork Product, April 2, 1991,

prescribed that SIPs for moderate PMlO 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 TACB demonstrated that the EI Paso nonattainment area

would attain the PMlO NAAQS both at the time ofthe 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 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 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 ofthe El

Paso area. The EPA-approved 1991 El Paso PMlOAttainment 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 PMlO data for all three years from 2007

through 2009 (Socorro AQS ID 481410057), there were no exceedances ofthe PMlO 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 PMlO 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 cover some unpaved alleys. In addition, the City also continues to include alley

paving and maintenance in its annual budget. 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 PMlO NAAQS.

5
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 ofTexas Government Code, §2001.0225, and determined that this rulemaking is

not subject to Texas Government Code, §2001.0225 because it does not meet the definition of a

major environmental rule as defined in that statute. A major environmental 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, or the 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 City to continue to comply with the

1997 PMlO NAAQS. For the monitoring site reporting FRM PMlO data for all three years from

2007 through 2009 (Socorro AQS ID 481410057), there were no exceedances ofthe PMlO 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

6
control for preexisting unpaved alleys, and will decrease the number 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 PMlO NAAQS, and continued protection of public health and safety in

El Paso. For the monitoring site reporting FRM PMlO data for all three years from 2007 through

2009 (Socorro AQS ID 481410°57), there were no exceedances of the PMlO 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, or the 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 El Paso since it gives the City more flexibility than current

rules and reflects current practices in El Paso for PMlO 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 ofwhether the

adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The primary

purpose ofthe rulemaking is to provide more flexibility for the City to continue to comply 'with

the 1997 PMlO 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 ofthis 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

7
rulemaking does not burden (constitutionally); nor restrict or limit the landovvner'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 under 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 ofthe Texas Coastal Management Program (CMP) be considered during the rulemaking

process.

The commission reviewed this rulemaking for consistency ,,\lith the 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, 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 requirement of 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.

8
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

§l11.147(1)(E)(ii) because some trash pick-up routes do occur in alleys. In addition, future

incorporation of Smart GroV\1:h 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 oflanguage to §111.147(1)(E) and

has made the suggested changes. The additional terms clarify the commission's

intent that 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 PMlO standard.

Comment

The City also recommended adding the phrase "which are under the jurisdiction ofthe City of EI

Paso and which have been designated as public thoroughfares" to §l11.147(1)(F).

9
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.

10
RECOMMENDATION
SUBCHAPTERA: VISIBLE EMISSIONS AND PARTICULATE MATTER

DIVISION 4: MATERIALS HANDLING, CONSTRUCTION, ROADS, STREETS,

ALLEYS, AND PARKING LOTS

§111.147

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §S.103, concerning Rules, and

TWC, §S.lOS, 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 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 State Air 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 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.

1
§111.147. Roads, Streets, and Alleys.

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 of dust emissions:

(1) application of asphalt, water, or suitable oil or chemicals on the following

unpaved surfaces, except in the City of EI 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 of paving materials is the only acceptable method of dust 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 ofthe 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 ofthe roadway demonstrates that the cost of paving 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;

2
(D) residential roads--all roads that serve as access for more than 20

residence and/or apartment units;

(E) alleys--in the City of El 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 asphalt pavement (RAP) may be used as an

alternate means of particulate matter control for alleys; and

(F) levee roads--in the City of El 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, ofsoil or other materials,

except for sand applied for the specific purpose ofsnow or ice control. In the City of El Paso,

removal ofsoil must be by mechanical sweepers or their equivalent at the rate ofthree times per

year for all public thoroughfares V\i.thin 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 of El Paso

shall spot clean dirty roadways, and shall maintain street sweeping records for two years. Sand

3
applied for the specific purpose ofsnow or ice control must be removed as soon as such control

is no longer necessary.

4
THE STATE OF TEXAS

COUNTY OF TRAVIS .'.

I hereby certify that this is a true and correct copy of a

Texas Commission on Environmental Quality document,

TEXAS COMMISSION ON ENVI~~){U~~~records of the Commission.

/~.~" Given u~r my hand and the seal of office on

, !..::: .•.•.• .•.~.p-P<~~ ....,. 6#11£.&10.-. FEB a12Q12-

i:;':!!&;:!Bridget C. , Chief Clerk

...... / Texas Commission on EnVi~ntal Quality

'--",,//!

ORDER ADOPTING AMENDED RULES, REVISED MEMORANDUM OF

AGREEMENT, AND REVISIONS TO THE STATE IMPLEMENTATION PLAN

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

On January 25, 2012, the Texas Commission on Environmental Quality (Commission),

during a public meeting, considered adoption of amended § 111.147. The Commission adopts

this amended rule in 30 TAC Chapter 111, concerning Control ofAir Pollution from Visible

Emissions and Particulate Matter, Subchapter A, Division 4, Materials Handling,

Construction, Roads, Streets, Alleys, and Parking Lots; a revised Memorandum ofAgreement

(MOA) between the City of EI Paso and the Commission; and corresponding revisions to the

state implementation plan (SIP). The adopted rule amendments update the PMlO controls

required to attain and maintain the PMlO NAAQS and provide the City greater flexibility in

the implementation ofthe PMlO control requirements in §111.147. The MOA has been revised

to reflect the changes to §111.147.Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012,

and 382.023 (Vernon 2001), the Commission has the authority to control the quality ofthe

state's air and to issue orders consistent with the policies and purposes ofthe Texas Clean Air

Act, Chapter 382 ofthe Tex. Health & Safety Code. The proposed rules were published for

comment in the September 2, 2011, issue ofthe Texas Register (36 TexReg 5640).

Pursuant to Tex. Health &Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code

Chapter 2001 (Vernon 2008), and 40 Code of Federal Regulations § 51.102, and after proper

notice, the Commission conducted a public hearing to consider the amended rules, revised

MOA and revisions to the SIP. Proper notice included prominent advertisement in the areas

affected at least 30 days prior to the date ofthe hearing. A public hearing was held on

September 27, 2011, at 2:00 p.m. at the El Paso State Office Building in El Paso. The hearing

was not officially opened, because no party indicated a desire to give comment.

The Commission circulated hearing notices of its intended action to the public,

including interested persons, the Regional Administrator ofthe EPA, and all applicable local

air pollution control agencies. The public was invited to submit data, views, and

recommendations on the proposed amended rules, revised MOA, and SIP revisions, either

orally or in writing, at the hearing or during the comment period. Prior to the scheduled

hearing, copies ofthe proposed amended rules, revised MOA, and SIP revisions were

available for public inspection at the Commission's central office and on the Commission's

Web site.

Data, views, and recommendations of interested persons regarding the proposed

amended rules, revised MOA, and SIP revisions were submitted to the Commission during

the comment period, and were considered by the Commission as reflected in the analysis of

testimony incorporated by reference to this Order. The Commission finds that the analysis of

testimony includes the names of all 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 and their position concerning the sait~;Yltl ~,j ii,,,,, i),:;;;;11¥fI1 7L*00v ne~

__>_"'~-=~..;.,,_.. .. y_.,_~_ e>_.··~_,,,.··._,""'_>~"""".>._"""'._. _"'.~ .. "'._._~ __.>__._.""'.""._

IT ~~ THE~~O, '.' . ., M THE COMMISSION that the amended rules, revise<f~9Jr!rmrcrtWt;M19n§¥t5tmE?'5~~corporated by reference to this Order are hereby

adopted. The Commission further authorizes staffto make any non-substantive revisions to

the rules necessary to comply with Texas Register requirements. The adopted rules and the

preamble to the adopted rules, revised MOA, and the revisions to the SIP are incorporated by

reference in this Order as ifset forth at length verbatim in this Order.

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf ofthe

Commission, the Chairman should transmit a copy ofthis Order, together with the adopted

rules, revised MOA, and revisions to the SIP, to the Regional Administrator of EPA as a

proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, codified at 42 U.S.

Code Ann.§§ 7401 - 7671q, as amended.

This Order constitutes the Order ofthe Commission required by the

Administrative Procedure Act, Tex. Gov't Code, § 2001.033 (Vernon 2008).

If any portion ofthis Order is for any reason held to be invalid by a court of

competent jurisdiction, the invalidity of any portion shall not affect the validity 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

chief clerk of proceedings before t e expiration of the 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 er shall review the proposed decision ofthe administrative law judg and wholly or partly affirm, modiry, or set aside the order. If the c mmissioner modifies, amends, or

changes a recommended finding of act or conclusion oflaw, or order

of the administrative law judge, 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

motion may be granted by the comm ssioner before the date ofthe show

cause hearing. If the paIiies agree a later show cause hearing date

pursuant to subsection (d) of this s tion, the motion for stay may be

granted by the commissioner before he date ofthe show cause hearing

upon written motion by any party to the hearing. Ifthe motion for stay

is granted, notice shall be sent to the equesting party that the order has

been stayed in whole or in part and 'hat part ofthe order continues to

be in effect. If the motion is not gr nted before the date of the show

cause hearing the motion is denied and notice is not required of the

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 of Workers' 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, other workers' c mpensation laws of this 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

37 TexReg 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 under this

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 for the 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 of the 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 of Workers' 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 of the 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

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 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 of the 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 of fugitive dust

in the EI Paso area. Finally, the City indicated that it will 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 Air Act When Revising a State Implementation Plan, areas have two options available to demonstrate noninterference for affected pollutant(s). This preamble

provides details of the 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 of the 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 if the 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 of the 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" 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 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 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 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 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. The EPA-apADOPTED RULES February 10, 2012 37 TexReg 705
proved 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 cover some

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 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" 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 of the

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and determined that this rulemaking is not

subject to Texas Government Code, §2001.0225 because it does

not meet the definition of a major environmental 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, or the public health and safety of

the state or a sector of the 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 num37 TexReg 706 February 10, 2012 Texas Register

ber 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 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 of the PM" 24-hour

NAAQS.

The adopted revisions will not adversely affect in a material way

the economy, a sector of the economy, productiVity, competition,

jobs, the environment, or the public health and safety of the state

or a sector of the state. 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 of the

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 requirement
of 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 intent that 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 of this 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 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 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 least the following precautions to achieve control of dust emissions:

(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

of this title (relating to Geographic Areas of Application and Date of

Compliance), where the use of paving materials is the only acceptable

method of dust 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 of the undisturbed earth

on either side of the established roadway. The executive director,

with the concurrence of the United States Environmental Protection

Agency, may grant a waiver from the requirement to pave an industrial

facility roadway ifthe owner ofthe roadway demonstrates that the cost

of paving 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 asphalt pavement (RAP) may be used

as an alternate means of particulate matter control for alleys; and

(F) levee roads--in the City of El 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 other materials, except for 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 of three 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 of this 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 of El Paso shall spot clean dirty

roadways, and shall maintain street sweeping records for two years.

Sand applied for the specific purpose of snow or ice control must be

removed as soon as such control is no longer necessary.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on January 27,

2012.

ADOPTED RULES February 10, 2012 37TexReg 707
TRD-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 of the loan

or the loan forgiveness or grant 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 every five 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 of th 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 of the TWDB.

This rulemaking affects Texas Water Code, Chapters 15, 16, and

17.

This agency hereby certifies that the doption has been reviewed

by legal counsel and found to be a v lid exercise of the 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. Prior to 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 by the TWDB. Also, an such utility that fails to submit

the required water loss audit is in ligible for financial assistance

for a water supply project from all of the TWDB's loan programs

except the Rural Water Assistanc 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