JOHN ELIAS BALDACCI GOVERNOR MEMORANDUM TO : FROM : DATE: August 20, 2009 

### RE: Adoption: Chapter 131 Cutback Asphalt and Emulsified Asphalt Statutory andRegulatory Reference: A . Statutory authority. 38 MRSA Section 585-Aprovides that the Board of Environmental Protection "may establish and amend regulations to implement ambient air quality standards and emission standards. These regulations shall be designed to achieve andmaintain ambient air quality standards and emission standards within any region and prevent air pollution." B. Specific legal mandates requiring adoption. Section 184of theClean Air Act requires states to implement or update reasonably available control technology (RACT) controls on all major VOCand NOx emission sources and on source categories covered by a control technique guideline document . EPAdeveloped a control technique guideline (CTG), Control ofVolatile Organic Compoundsfromthe Use ofCutbackAsphalt (1977), covering cutback and emulsified asphaltpaving operations. Location/Applicability: The regulationwill apply statewide. Description: Background: Section 184ofthe Clean Air Act requires states to implement or update reasonably available control technology (RACT) controls on all majorVOCand NOx emission sources and on source categories covered by a Control Technique Guideline (CTG) document . EPAdefines RACT as the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. In December 1977, EPApublished a CTGfor the use of cutback asphalt AUGUSTA 17 STATE HOUSE STATION AUGUSTA, MAINE 04333-0017 (207) 287-7688 FAX

: (207) 287-7826 RAY BLDG., HOSPITAL ST. STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION

DAVID P . LITTELL COMMISSIONER

BANGOR PORTLAND PRESQUE ISLE 106 HOGAN ROAD 312 CANCO ROAD 1235 CENTRAL DRIVE, SKYWAY PARK BANGOR, MAINE 04401 PORTLAND, MAINE 04103 PRESQUE ISLE, MAINE 04769 .Z094 (Z07) 941" 4i70 FAY : (207) 941-4584 (Z07) 822-6300 FAX : (207) 81-2-6303 (207) 764-0477 FAX: (207) 760-3143 wab s,te : www

.ma- .gpv,idep printed on recycled paperwhich recommended replacing cutback asphalt binders with emulsified asphalt during the ozone

season. Since asphalt paving operations occur predominantly during warmweather, when formation of ozone is most prevalent, the decreased use of cutback asphalt greatly reduces the VOCemissions frompaving operations. Asphaltused for paving is grouped into three general categories: hot-mix, cutback and emulsified. Hot-mix asphalt, the most commonly used asphalt, produces minimal VOC emissions becauseits organic components have high molecular weights and low vapor pressures. Cutback asphalt has traditionally been used as a tack coat between old and new layers ofhot-mix asphalt, in seal operations, in priming new roadbed for hot-mix applications and cold-mix applications for pavement repair. In preparing cutback asphalt, asphalt cement is blended or "cut back" with a diluent, typically from25 to 45 percent by volume of petroleumdistillates, dependingon the desired viscosity. Emulsified asphalt is now used in most of the same applications as cutback asphalt, butis a lower VOCalternative to cutback asphalt. Instead of blending asphalt cement with petroleumdistillates, emulsified asphalts use a blend of asphalt cement, water and an emulsifying agent. Discussion: The Department is proposing these amendments as part of its effort to satisfy the RACT requirements mandated under the CAAand regulations related to the 1997 8-hour ozone NAAQS. According to the EPA's Final Rule to Implement the 8-Hour Ozone NAAQS (70 FR 71612, November 29, 2005), areas classified as "moderate" nonattainment or higherl must submit a demonstration, as a revision to the SIP, that their current rules fulfill 8-hour ozone RACT requirements for all CTGcategories and all major, non-CTGsources. This demonstration can be made with either a new RACT determination or a certification that previously-required RACT controls represent RACT for the 8-hour ozone NAAQS . Forthose cases in which states have new

stationary sources not covered by existing RACT regulations, or when new data or technical information indicates that a previously adopted RACT measure does not represent a newly-available RACT control level, states are required to update their rules. Maine has determined that its previous asphalt paving regulations no longer constituted RACT under the 8-hour ozone standard. Chapter 131 was originally adopted in 1993, and was based on 1977 and 1979 CTGs published by EPA . Maine's regulation, Chapter 131 Cutback Asphalt and Emulsified Asphalt, prohibited the use of cutback asphalt on public roads during the ozone season, but allowed for a number of exemptions. As part of the regional effort to address the Federal 1997 8-hour NAAQS for ozone, the OTC commissioned a study (MACTECReport February 2007) to quantify the emission reduction benefits frompotential new controls, which they deemed to be reasonable. The Department's proposed amendments arebased on the OTCcontrol measure summary (which serves as guidance to OTCmember states to use to develop rules), included in the MACTECReport and RACT regulations in other northeast states. Maine is proposing to amend its Chapter 131 Cutbackand Emulsified Asphalt rule to prohibit the use ofcutback asphalt during the ozone season and limit the use of emulsified asphalt to that which contains not more than 6 .0 ml of oil distillate (as determined using the American Society for Testing and Materials Methods or American Association of State Highway and Transportation Officials Methods) for all asphalt paving activities. ' Because Maine is included in the OTCunder section 184 ofthe CAA, the PACT requirements applystatewide.Chang

es: The Department made two changes to the proposed rule based on comments received at theJune 18, 2009 public hearing and during the comment period. First, the Department agrees that cutback asphalt should be allowed for use during the May 1 through September 15 time period _ifit meets the same standards as emulsified asphalt, i .e. the asphalt contains no greater than 0 .1 percent VOCby weight or produces no greater than 6 .0 milliliters ofoil distillate. (The ASTM and AASHTOtest methods for cutback asphalt have been included in Section 3) . Second, the Department removed the requirement to store asphalt that does not meet the standards, in a sealed container during the May 1 through September 15 time period due to concerns of pressure build-up. Environmental Issues : Volatile organic compounds contribute to ground-level ozone formation or smog which aggravates respiratory ailments such as asthma, bronchitis, and emphysema. The presence of ozone impedes the breathing of even healthy people. Departmental Recommendation : The Department recommends that the Board adopt the rule as presented. Estimated Time of Presentation : 10 minutes