Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

June 9, 2006 

Docket No. 2005-1606-RUL 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross A venue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

On May 17, 2006, the Texas Commission on Environmental Quality (Commission) adopted the repeal of 

§ 111.155 in 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, and 

a corresponding request to remove from consideration a currently pending request for the inclusion of 30 TAC 

§ 111.155 to the SIP. This action repeals § 111.155 in its entirety. 

As noted in the rule preamble, a prior version of 30 TAC §111.155 is currently approved in the SIP (30 TAC 

§105.2). EPA is currently reviewing the removal of 30 TAC §105.2 from the SIP, with 30 TAC §111.155 

replacing 30 TAC §105.2. In accord with the Commission's decision to repeal 30 TAC §111.155, the 

Commission also determined to request that EPA not consider 30 T AC § 111.155 for inclusion into the SIP. 

Enclosed are a public hearing certification, a complete record of the public hearing, and the accompanying q~.er. 

I look forward to your expeditious approval of these SIP revisions. g 30~ 

~ -on 

Sincerely, :;~: ,-!:! - )>..C:::: 

~/ uJ Ad£ ; il¥ 'ff G')O") 

~ (.1)-,;j 

Chairman ~ f'T\ ?2 

.....: ("""") 

KHW/js 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.us 
TExAs CoMMISSION oN ENVIRONMENTAL QuALITY 

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THE STATE OF TEXAS § "' :z:m 

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:X x' C)(j') COUNTY OF TRAVIS § -::1 (/)-o 

&"' 1""10 . C")r- - This is to certify that the attached are true and correct copies of documents for revisions to the Texas 

State Implementation Plan, adopted on May 17, 2006, pursuant to 40 Code of Federal Regulations (CFR) 

§ 51.104. I am the records administrator for the General Law Division of the Texas Commission on 

Environmental Quality (Commission). 

Kevin McCalla 

Director, General Law Division 

Texas Commission on Environmental Quality 
RECEIVED- 6POL 

AIR PLANNING SEC. 

06 JUH 16 AH 7: 48 

Texas Commission on 

Environmental Quality 

Public Hearing 

December 15, 2005 

Concerning Revisions to 30 TAG Chapter 111 , 

Control of Air Pollution from Visible Emissions and Particulate Matter 

and Revisions to the State Implementation Plan 

Rule Project Number 2005-013-111-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on December 

15, 2005, to consider revisions to 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and 

Particulate Matter and revisions to the state implementation plan (SIP). 

This rulemaking makes the commission's approach to particulate matter regulation consistent with federal and 

other state approaches. 

The comment period closed on January 13, 2006. All comments have been reviewed and seriously 

considered. This hearing record contains a complete record of the public hearing 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 (including Order) 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle, 

Austin, Texas 78753. For further information, please contact Kathy Singleton at (512) 239-6098. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

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

1. Publication of notice of public hearings in the following newspapers on the date listed: 

Austin American Statesman; November 11 , 2005 

El Paso Times, November 11, 2005 

Fort Worth Star-Telegram; November 12, 2005 

Houston Chronicle; November 14, 2005 

2. Publication of the proposed rules in the November 25, 2005, issue of the Texas Register 

(30 T exReg 7821 ) . 

3. Publication of the Notice of Public Hearing in the November 25, 2005, issue of the Texas 

Register (30 TexReg 7922). 

4. Correspondence forwarding the notice of public hearings to the following officials and 

agencies: 

Speaker of the House 

Lieutenant Governor 

City of Victoria Planning Department 

Dallas Department of Environmental and Health Services 

Dallas Department of Aviation 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Fort Worth Environmental Management Department 
Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

U.S. Environmental Protection Agency 
Example of Newspaper Classified Ad 

Houston Chronicle, November 14, 2005 

NOllCE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL OUAUTY 

ON PROPOSED REVISIONS 

TO 30 TAC CHAPTER 111 

AND TO THESTATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) wilr con- duct a public hearing to 

receive testimony re- garding proposed revisions to 30 TAC chapter 111. Control of Air Pollution from Visible Emissions and Particulate 

Matter, and the state 

implementation plan (SIP), under the requirements ot Texas Health 

and satety Code, 

§382.017; Texas Government Code, Subchapter B. 

Chapter 2001: and 40 

Code ot Federal Regula- tions §51.102. ot the 

United States Environmental Protection Agency (EPA) regulations con- cerning SIPs. 

This rulemaking would 

eliminate air standards 

that cannot be scientifically defended. In addition, this rulemaking will 

make the commlss1on's 

approach to particulate matter regulation consistent with federal and 

other state ap preaches. A public hearmg on this 

groposal will be held on ecember 15 2005, at2:00 

p.m., in Building E, Room 

2545, Texas Commission on Environmental Quality, 12100 Park 35 Circle, m Austin1 Texas. The hearing wil be structured for 

the receipt of oral or written comments by interested persons. Registra- tion will begin 30 m1nutes 

prior to the hearing. Individuals may present oral 

statements when called 

upon in order of registra- tion. There will 15e no open discussion during the hearing; however, commission ·staff mem- bers will be available to 

discuss the proposal 30 

minutes before the hearing and will answer ques- tions before and after the 

hearing. 

Persons planning to attend the hearing who 

have special communication or other accommo- dation needs, should con- tact Joyce Spencer. Office 

of Legal Services at (512) 

239-5017. Requests should be made as tar in 

advance as possible. Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Office of legal Services, Texas CommiSsion on Environmental 

Quality, P.O. Box 13087_, Austin, Texas 78711-308t or faxed to (512) 239-4808. 

All comments should ret6~~nce R~b1l!~~j~l~~E"N~ Comments must be re- ceived by 5:00 p.m .• January 13, 2006. Copies otthe 

proposed rules can be obtained from the commission's Web site at http:/ /www.tceq.state.tx.us/ 

nav/rul es/propose a dopt.html. For furtfier information, pi ease contact 

Kathy Singleton, Air Quality Planmng ~IJd. Imple- mentation DIVISion. at 

(512) 239-6098. 

Issued in Austin, Texas. on November 9, 2005. 
and public participation process n t affected by HB 220 I but still applicable to FutureGen projects. 

A public hearing for the propose rulemaking and SIP revision will 

be held in Austin on December 2 , 2005, at 10:00 a.m., in Building 

B, Room 201A, at the Texas Co ission on Environmental Quality, 

located at 12100 Park 35 Circle. e hearing will be structured for the 

receipt of oral or written commen by interested persons. Registration 

will begin 30 minutes prior to th hearing. Individuals may present 

oral statements when called upon ·n order of registration. There will 

be no open discussion during the earing; however, commission staff 

members will be available to disc ss the proposal 30 minutes before 

the hearing and will answer questi ns before and after the hearing. 

Persons planning to attend the he · g who have special communication or other accommodation need , should contact Joyce Spencer, Office of Legal Services at (512) 239 5017. Requests should be made as 

far in advance as possible. 

Comments may be submitted to Jo ce Spencer, MC 205, Texas Register Team, Office of Legal Services, exas Commission on Environmental Quality, P. 0. Box 13087, Aus ·n, Texas 78711-3087, or by fax to 

(512) 239-4808. All comments sh uld reference Rule Project Number 

2005-053-091-PR. Comments m t be received by 5:00p.m. on December 27, 2005. Copies of the p oposed rules can be obtained from 

the commission's web site at http:/, .tceq.state.tx.uslnav/ruleslpropose_adopt.html. For further info ation, please contact Michael Wilhoit, Air Permits Division at {512) 239-1222. 

TRD-200505200 

Stephanie Bergeron Perdue 

Director, Environmental Law Divisi 

Texas Commission on Environmen 

Filed: November 10, 2005 

• • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 111 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, and the state implementation 

plan (SIP) under the requirements of Texas Health and Safety Code, 

§382.017; Texas Government Code, Subchapter B, Chapter 2001; and 

40 Code of Federal Regulations §51.1 02, ofthe United States Environmental Protection Agency (EPA) regulations concerning SIPs. 

This rulemaking would eliminate air standards that cannot be scientifically defended. In addition, this rulemaking will make the commission's approach to particulate matter regulation consistent with federal 

and other state approaches. 

A public hearing on this proposal will be held on December 15, 2005, at 

2:00p.m., in Building E, Room 254S, Texas Commission on Environmental Quality, 12100 Park 35 Circle, in Austin, Texas. The hearing 

will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order 

of registration. There will be no open discussion during the hearing; 

however, commission staff members will be available to discuss the 

proposal 30 minutes before the hearing and will answer questions before and after the hearing. 

Persons planning to attend the hearing who have special communication or other accommodation needs, should contact Joyce Spencer, Office of Legal Services at (512) 239-5017. Requests should be made as 

far in advance as possible. 

Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Office of Legal Services, Texas Commission on Environmental Quality, P. 0. Box 13087, Austin, Texas 78711-3087 or faxed 

to (512) 239-4808. All comments should reference Rule Project Number 2005-013-111-EN. Comments must be received by 5:00p.m., January 13, 2006. Copies of the proposed rules can be obtained from 

the commission's web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Kathy Singleton, Air Quality Planning and Implementation Division, at (512) 

239-6098. 

TRD-200505199 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: November 10, 2005 

• 

Notice ofWater Quality Appli 

• 

The following notices were issue for the period of November 15, 

2005. 

The following require the applic ts to publish notice in the newspaper. The public comment perio , requests for public meetings, or 

requests for a contested case heari g may be submitted to the Office 

of the Chief Clerk, Mail Code 1 0 , P. 0. Box 13087, Austin Texas 

78711-3087, WITHIN 30 DAYS F THE DATE OF NEWSPAPER 

PUBLICATION OF TIDS NOTIC 

CITY OF AUSTIN which opera s the City of Austin Municipal 

Separate Storm Sewer System ( S4), has applied for a renewal 

of NPDES Permit No. TXS0004 1, which authorizes storm water 

point source discharges to surfac water in the state from the City 

of Austin MS4. The permit will e renewed as TPDES Permit No . 

WQ0004705000. The MS4 is loca d in the City of Austin, in Travis, 

Hays, and Williamson Counties, ~ 

CITY OF DALLAS which operates e City of Dallas Municipal Separate Storm Sewer System (MS4 ), h applied to the Texas Commission 

on Environmental Quality (TCEQ) for a renewal of existing NPDES 

Permit No. TXS00070 1. The draft ermit would authorize storm water point source discharges to surfac water in the state from the City of 

Dallas Municipal Separate StormS er System. The permit will be renewed as TPDES Permit No. WQOO 4396000. The municipal separate 

storm sewer system (MS4) is locate within the corporate boundary of 

the City of Dallas, in Dallas, Collin Denton, Rockwall, and Kaufman 

Counties, Texas. 

CITY OF DELL CITY has applied r a renewal of Permit No. 14256-

001, which authorizes the disposal [treated domestic wastewater at 

a daily average flow not to exceed 2,000 gallons per day via surface 

irrigation of 74.6 acres of non-publi access land. This permit will not 

authorize a discharge of pollutants i to waters in the state. The facility 

and disposal site are located approx mately 0. 75 mile northeast ofthe 

intersection of Farm-to-Market Ro 1437 and Farm-to-Market Road 

2249 in Hudspeth County, Texas. 

CITY OF ELECTRA has applied fo a renewal ofTPDES Permit No. 

I 0020-00 I, which authorizes the dis barge of treated domestic wastewater at a daily average flow not to exceed 640,000 gallons per day. 

The facility is located approximate! 2 miles southeast of the intersection of Farm-to-Market Road 1739 nd State Highway Loop 477 in 

Wichita County, Texas. 

GRIMES COUNTY MUNICIPAL U ILITY DISTRICT NO. I has applied for a renewal ofTPDES Perrni No. WQ0011437001, which authorizes the discharge of treated do estic wastewater at a daily aver30 TexReg 7922 November 25, 2005 Texas Register 
iect to the public meetin2 and pub I c comment ~rocessing requirements 

of Chapter 55 of this title (relatin to Public Notice and Requests for 

Reconsideration and Contested Case Hearings· Public Comment) or 

elsewhere under this title that is a IPlicable to the !Ytl_e of authorization 

sought. 

This agency hereby certifies tha 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 Sec etary of State on November 10, 

2005. 

TRD-200505204 

Stephanie Bergeron Perdue 

Director, Environmental Law Divisi( n 

Texas Commission on Environmen al Quality 

Earliest possible date of adoption: ecember 25, 2005 

For further infonmation, please call: (512) 239-5017 

• • 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER A. VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

DIVISION 5. EMISSIONS LIMITS ON 

NONAGRICULTURAL PROCESSES 

30 TAC §111.155 

(Editors note: The text of the following section proposed for repeal 

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

Texas Commission on Environmental Quality or in the Texas Register 

office, Room 245, James Earl Rudder Building, 1019 Brazos Street, 

Austin.) 

The Texas Commission on Environmental Quality (commission) 

proposes the repeal of§ 111.155 and a corresponding revision to 

the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED REPEAL 

The Texas Air Control Board (TACB) first developed and adopted 

ambient air standards for particulate matter (PM) in 1967. These 

standards were described in Regulation I, Board Order 67-1. 

The impetus for the standards was the results from field sampling surveys conducted in several regions of the state that suggested that PM control was necessary. At the time, the sampling 

method typically used for ambient PM was high-volume sampling. High-volume samplers collected the PM size fraction generally referred to as total suspended particulate matter (TSP). 

TSP does not have a clearly defined upper PM size cutoff, but 

is commonly recognized as PM that is 25 - 40 micrometers in 

diameter and smaller. It is important to note that in 1967 there 

were no national ambient air quality standards (NAAQS) for PM. 

In 1971, primary (human health-based) and secondary (welfarebased) NAAQS were promulgated for PM, with TSP serving as 

the PM indicator. Following the establishment of the PM NAAQS, 

the TACB significantly revised the state ambient air standards for 

PM in 1972. The revised standards established net ground-level 

concentrations in ambient air for PM of 100, 200, and 400 micrograms per cubic meter (1Jg/m3) (averaged over any five-, three-, 

and one-hour periods). Though not explicitly stated, the PM indicator for the standards was TSP, given the existing sampling 

technology at that time. 

The 1972 Texas PM standards were reviewed and slightly modified in 1989, with the five-hour standard removed and the oneand three-hour standards readopted, resulting in the current PM 

standards listed in §111.155. Section 111.155 establishes net 

ground-level concentrations in ambient air for PM of 200 and 

400 1Jg/m3, averaged over any three- and one- hour periods, respectively. These concentrations were originally adopted by the 

commission in 1972. As noted previously, the PM indicator for 

§111.155 effectively remained TSP. On the national level, the 

1971 PM NAAQS were modified in 1987, with particulate matter 

ten micrometers or smaller in diameter (PM,.) replacing TSP as 

the PM indicator and new primary and secondary NAAQS established. The rationale for replacing TSP with PM,. relates to the 

significant amount of scientific progress made since the promulgation on the 1971 PM NAAQS. This progress occurred in numerous facets of PM research, ranging from monitoring technology (sampling and analysis), atmospheric chemistry, emissions 

sources, and health effects. 

The PM NAAQS were revised again in 1997, with the retention 

of PM,. serving as an indicator for coarse PM, and the establishment of a new, additional PM indicator, particulate matter 2.5 micrometers or smaller in diameter (PM,..). This new indicator was 

selected to address fine PM based on the emerging science that 

PM smaller than PM,. was more strongly associated with premature mortality and severe morbidity. Current PM NAAQS (PM,. 

and PM .. , NAAQS established in 1997) are under review and may 

be revised. 

Section 111.155 was originally cited in the Texas SIP adopted in 

1972 and in subsequent revisions adopted in 1973, 1974, 1975, 

and 1976. All areas of the state were required to comply with all 

sections of Chapter 111 by December31, 1973. Subsequent SIP 

revisions in 1979 and 1980 required implementation of revised 

sections of Chapter 111 in individual areas not meeting the PM 

NAAQS. When the PM indicator for the PM NAAQS changed 

from TSP to PM, •• new PM SIP revisions were adopted. PM, 

SIP revisions adopted in 1988, 1989, and 1991 cited Chapter 

111 as a control strategy for El Paso County, the one area in 

Texas not meeting the PM,. NAAQS. 

On May 14, 2004, Baker Botts l.LP. (Baker Botts) submitted 

a petition for rulemaking to repeal §111.155. Baker Botts requested that the rule be repealed because the rule is inconsistent with the direction of modern air quality regulation, results in 

unnecessarily long delays in air permit issuance, imposes PM 

controls without evidence of nuisance conditions, and reflects a 

burdensome and unnecessary regulatory tool to address PM. On 

July 28, 2004, the commission initiated rulemaking for§ 111.155 

in response to the petition filed by Baker Botts. The commission 

stated that rulemaking would include an evaluation of §111.155, 

with stakeholder involvement, to determine if the current rule is 

adequate, needs to be amended, or repealed. As part of this 

evaluation, a stakeholder meeting was held on April 5, 2005, 

at commission headquarters in Austin, Texas, to receive formal 

stakeholder comments. 

Section 111.155 is primarily used in air permitting, field operations, and the enforcement division to address nuisance PM. 

The technical details for establishing the specific net PM concentrations listed in §111.155 are not known. little documentation 

exists that describes the rationale or the science used in selectPROPOSED RULES November 25, 2005 30 TexReg 7821 
ing these concentrations. The background information that does 

exist comes from Dr. Herbert McKee, former TACB chairman 

during the establishment of the 1967 and 1972 PM standards. 

Based on published literature he authored as well as his written comments to the commission, the 1972 PM standards were 

based primarily on the professional judgment of air quality regulators at the time. Dr. McKee emphasized that the 1972 PM 

standards were established to address nuisance PM, not health 

concerns. According to Dr. McKee, the TACB deferred to the 

PM NAAQS to address health issues. 

In terms of health effects of PM, research overwhelmingly supports respirable PM (PM that can enter the lungs, generally regarded as ten micrometers or smaller in diameter) as the primary 

causative agent of PM-related health effects, particularly premature mortality and severe morbidity. PM fractions larger than ten 

micrometers, which are often the dominant PM size fractions, 

on a per mass basis, collected in TSP samples, are poor indicators of potential health effects. Therefore, the current PM 

NAAQS using PM,. and PM, .• as indicators are better suited to 

address health concerns than standards based on TSP, such 

as § 111.155. Additionally, the commission has developed effects screening levels (ESLs) to address health and welfare concerns for specific air pollutants occurring as PM (e.g., arsenic, 

chromium, silica, carbon black). ESLs are used to evaluate air 

concentrations for air permits and ambient air monitoring data, 

as well as set remediation clean-up levels. ESLs, in addition 

to the PM NAAQS, provide a means to assess health concerns 

from ambient PM and ultimately a basis for taking regulatory action when deemed necessary. 

The use of § 111.155 as a tool to address nuisance PM has historically occurred in the areas of enforcement, through the use 

of ambient air monitoring to determine net PM source contributions, and air permitting, generally with the use of air dispersion 

modeling. The PM standard is used infrequently as an enforcement tool for nuisance PM, due to the monitoring requirements 

to determine compliance. On the few occasions when monitoring is conducted, complexities such as accessibility of monitoring locations, weather, wind patterns, confounding PM sources 

(e.g., traffic on unpaved roads}, facility operations, etc. can 

make meaningful sampling results difficult to obtain and interpret. Other enforcement tools available to address nuisance PM 

include, but are not limited to, tape lifts, still photographs, videotape, field observations of commission staff, the opacity limits 

described in §111.111 and §111.113, and the general nuisance 

rule in 30 TAC §1 01.4. In terms of air permitting, modeled ambient levels of TSP can be compared to the concentrations listed 

in §111.155 to evaluate the potential for nuisance PM. In addition to comparing modeled TSP levels to the standards, the 

commission can incorporate preventative measures against nuisance PM such as best available control technology (BACT) and 

special permit conditions. The inherent complexities and uncertainties of modeling emissions from PM sources that generate 

TSP has raised concern about the accuracy of these modeled 

estimates. This may result in imposing PM controls without evidence of nuisance conditions (aside from modeling results) and 

can delay issuance of air permits. BACT and special permit conditions may serve as more reliable preventative tools for air permitting to address nuisance PM without being unduly burdensome to the regulated community. 

To obtain a perspective of other state approaches to PM, specifically nuisance PM, the commission surveyed all 50 states. 

Based on this survey, the commission determined that § 111.155 

is generally inconsistent with approaches used by the vast 

majority of states, with 40 out of 50 states not having ambient 

standards for nuisance PM. In lieu of ambient air standards, the 

states generally use other rules and procedures such as opacity 

standards, best management practices to address nuisance 

PM (i.e., BACT), and comparing modeled PM concentrations to 

the PM NAAQS. Many of these rules and procedures are currently available and utilized by the commission. As discussed 

previously, examples of tools and procedures used by the commission include BACT, special permit conditions, the opacity 

limits in § 111.113 and § 111.111, and the general nuisance rule 

in §101.4. 

As previously stated, the science underlying the basis of 

§111.155 is largely unknown due to the lack of documentation. 

However, the evidence that is available points to professional 

judgment and policy playing a significant role in the derivation of 

thf!l standards listed in the rule. In addition, the rule was intended 

to address nuisance PM rather than health concerns. The PM 

NAAQS addresses health issues of PM. In addition, the commission has ESLs that address the health concerns of specific 

PM constituents (e.g., metals, carbon compounds, silica). The 

size fraction that § 111.155 has historically addressed is TSP. 

Regulation of TSP was prominent at both the state and federal 

levels during, and immediately following, the promulgation of 

§111.155. However, the majority of federal and state regulatory 

authorities have since replaced TSP ambient standards with 

PM standards of a smaller PM size (i.e., PM, •• PM,.,). These 

changes were dictated by advances in the science of PM that 

highlighted the importance of PM size fractions smaller than. 

TSP. TSP has since been relegated to nuisance PM concerns. 

It is generally understood that determining nuisance is highly 

subjective and is dependent .on the PM size, composition, 

and concentration, as well as the tolerance of individuals for 

PM depending on the use of their property. This subjectivity 

prevents the establishment of technically-defensible ambient 

standards to address nuisance PM. Tools and procedures 

already available to the commission, and consistent with other 

state environmental regulatory agencies, are used to address 

nuisance PM. 

Repealing §111.155 will not weaken the Texas SIP. As discussed 

previously, the commission has adequate tools to enforce the 

PM NAAQS, such as BACT, special permit conditions, and the 

opacity limits in §111.111 and §111.113. Additionally, since TSP 

is no longer used as an indicator for a criteria pollutant, it is not ari 

appropriate component of the Texas SIP and should be removed. 

Based on the commission's evaluation, as well as stakeholder input, the commission proposes the repeal of §111.155 given that 

it is not based on good science nor is it current and necessary. 

The commission determined that it has sufficient tools and procedures currently available to address nuisance PM. 

SECTION DISCUSSION 

Section 111.155 establishes one-hour and three-hour ground 

level concentration levels for particulate matter. The commission proposes to repeal §111.155. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Nina Chamness, Analyst, Strategic Planning and Grants Management Section, determined that, for the first five-year period 

that the proposed repeal is in effect, no fiscal implications are 

anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the pro30 TexReg 7822 November 25, 2005 Texas Register 
posed repeal. The proposal would repeal §111.155, regarding 

the state standards for ground level concentrations of PM. 

The commission evaluated §111.155 to determine if the current 

rule was adequate, needed to be amended, or should be repealed. The current rule established standards for permissible 

levels of PM affecting enjoyment of property rather than human 

health. Upon evaluation, which included consideration of stakeholder input, the commission is proposing to repeal the rule. The 

commission determined that required compliance with NAAQS 

for PM adequately protects human health and welfare, and the 

use of other tools at its disposal, such as the general prohibition, 

will provide the same or better enforcement for PM nuisances 

than the current rule. Various tools like videotaping, requiring 

the use of best management practices, and requiring engineering controls on the emitters of PM that constitute, a nuisance will 

effectively and more defensibly enforce compliance for PM emissions. Compliance with the current rule may require the review 

of modeling data that regulated entities submit as part of their air 

permit applications. Under the proposed rule making, this type of 

data would no longer be necessary. However, agency staff may 

be required to review other information in lieu of modeling data 

to ensure that nuisance levels of PM are prevented. Therefore, 

the commission does not anticipate any cost savings to result 

from this rulemaking. 

PUBLIC BENEFITS AND COSTS 

Ms. Chamness also determined that for each year of the first 

five years that the repeal is in effect, the public benefit anticipated from the changes seen in the proposal will be more effective prevention of nuisances through reliance on the health and 

welfare protection provided by the NAAQS, the nuisance prohibition, and other tools at the commission's disposal. 

Businesses emitting PM would no longer be required to meet the 

standards of the current rule and may be able to save money 

currently spent on modeling data submitted when requesting an 

air permit. However, compliance with other agency conditions 

such as the use of best practices or more stringent engineering 

controls to reduce the emission of PM may offset the savings 

generated by not having to do modeling analysis. Whether a 

business would experience cost savings or increased costs depends on the facility to be regulated and the tools employed by 

the agency in ensuring that particulate emissions remain in compliance with NAAQS. Therefore, the proposed repeal may affect 

the regulated community's compliance burden for PM and may 

translate into cost savings. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micro-businesses. Section 111.155 applies to all entities, including 

small or micro-businesses, and they would experience the same 

cost savings or cost increases as a large business. The amount 

of any savings or increase would vary widely among regulated 

entities and would depend on the facility regulated and the tools 

employed by the agency in ensuring acceptable emission levels 

of PM. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required 

because the proposal does not adversely affect a local economy 

in a material way for the first five years that the proposed repeal 

is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the proposed repeal does not 

meet the definition of a "major environmental rule" as defined in 

the statute. Therefore, Texas Government Code, §2001.0225 

does not apply to this rulemaking. "Major environmental rule" 

is defined in Texas Government Code, §2001.0225(g)(3), as a 

rule, the specific intent of which, is to protect the environment or 

reduce risks to human health from environmental exposure and 

that may adversely affect in a material way the economy, prod uctivity, competition, jobs, the environment, or the public health and 

safety of the state or a sector of the state. The specific purpose 

of the proposed repeal is to delete a rule that is no longer necessary, effective, current, or based on good science, as described 

in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEAL section of this preamble. 

This proposed repeal will not have an adverse material impact 

because the commission determined that the currently existing 

NAAQS for PM adequately protects human health and welfare, 

and the remaining prohibition against nuisance conditions remains in effect. The commission invites public comment on the 

draft regulatory impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated this proposed rulemaking and performed a preliminary assessment of whether this action would 

constitute a taking under Texas Government Code, Chapter 

2007. Promulgation and enforcement of this proposed repeal 

would be neither a statutory nor a constitutional taking of private 

real property. The proposed repeal of §111.155 does not affect 

private property in a manner that restricts or limits an owner's 

right to the property that would otherwise exist in the absence 

of a government action.. Consequently, this proposal does 

not meet the definition of a taking under Texas Government 

Code, §2007.002(5). This rulemaking is proposed to repeal 

§111.155, since the commission determined that the currently 

existing NAAQS for PM adequately protects human health 

and welfare, and the remaining prohibition against nuisance 

conditions remains in effect. Therefore, this proposed repeal 

will not constitute a taking under Texas Government Code, 

Chapter 2007. The commission invites public comment on this 

preliminary takings impact assessment. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject 

to Consistency with the Goals and Policies of the Texas Coastal 

Management Program (CMP), and 31 TAC §505.11 (b)(2), relating to Actions and Rules Subject to the Coastal Management 

Program, commission rules governing air pollutant emissions 

must be consistent with the applicable goals and policies of the 

CMP. The commission reviewed this action for consistency with 

the CMP goals and policies in accordance with the rules of the 

Coastal Coordination Council, and determined that the action 

is consistent with the applicable CMP goals and policies. The 

CMP goal applicable to this rulemaking action is the goal to 

protect, preserve, and enhance the diversity, quality, quantity, 

functions, and values of coastal natural resource areas (31 TAC 

PROPOSED RULES November 25,2005 30 TexReg 7823 
§501.12(1)). No new sources of air contaminants will be authorized and the proposed revisions will maintain the same level of 

emissions control as the existing rules. The CMP policy applicable to this rulemaking action is the policy that commission rules 

comply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 

TAC §50 1.14(q)). This rule making action complies with 40 Code 

of Federal Regulations Part 51, Requirements for Preparation, 

Adoption, and Submittal of Implementation Plans. Therefore, in 

accordance with 31 TAC §505.22(e ), the commission affirms that 

this rulemaking action is consistent with CMP goals and policies. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Because § 111.155 is an applicable requirement under 30 TAC 

Chapter 122, Federal Operating Permits Program, owners or operators subject to the Federal Operating Permit Program must, 

consistent with the revision process in Chapter 122, revise their 

operating permit to delete requirements relating to § 111.155. 

ANNOUNCEMENT OF HEARING 

The commission will hold a public hearing on this proposal in 

Austin on December 15, 2005, at 2:00p.m. in Building E, Room 

254S, at the commission's central office located at 12100 Park 

35 Circle. 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. before the hearing and will answer questions 

before and after the hearing. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact Joyce Spencer, Office of Legal Services, 

at (512) 239-5017. Requests should be made as far in advance 

as possible. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Joyce Spencer, MC 205, Texas 

Register Team, Office of Legal Services, P.O. Box 13087, Austin, 

Texas 78711-3087 or faxed to (512) 239-4808, Comments must 

be received by 5:00 p.m., January 13, 2006, and should reference Rule Project Number 2005-013-111- EN. Copies of the 

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

http://www.tceq.state.tx.us/nav/ruleslpropose_adopt.html. For 

further information, please contact Kathy Singleton, Air Quality 

Planning and Implementation Division, at (512) 239-6098. 

STATUTORY AUTHORITY 

The repeal is proposed under Texas Water Code (TWC), §5.103, 

concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary 

to carry out its powers and duties under the TWC; and under 

Texas Health and Safety Code (THSC), §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The 

repeal is also proposed underTHSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to 

safeguard the state air resources, consistent with the protection 

of public health, general welfare, and physical property; THSC, 

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state air; and 

THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state air. 

The proposed repeal implements THSC, §§382.002, 382.011, 

382.012, 382.016, and 382.017. 

§111.155. Ground Level Conce11trations. 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's legal authority to a do pt. 

Filed with the Office of the Secretary of State on November 10, 

2005. 

TRD-200505198 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: December 25, 2005 

For further information, please call: (512) 239-5017 

• 

CHAPTER 114. 

• 

POLLUTION FROM MO OR VEHICLES 

The Texas Commission on E vironmental Quality (TCEQ or 

commission) proposes the repe I of §§114.3, 114.150, 114.151, 

and 114.153- 114.157. 

The commission also proposes to submit to the United States 

Environmental Protection Agen y (EPA) revisions to the state 

implementation plan (SIP) addr ssing the repeal of these rules. 

BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

The Federal Clean Air Act A endments of 1990 (FCAA), 

§182(c)(4), required states to ther adopt the Federal Clean 

Fuel Fleet (FCFF) Program o lined in FCAA, §246, or implement a program that demo strates long-term reductions 

in ozone-producing and toxic ir emissions equal to those 

achieved under the FCFF Progr m. 

The FCFF Program requires fe eral, state, and local governments, and private fleets to pu chase low emission vehicles 

(LEVs) in areas classified by t e EPA as being in serious, 

severe, or extreme nonattainme t of the National Ambient Air 

Quality Standards (NAAQS) for ozone and carbon monoxide 

(CO). The federal program mand tes increasing percentages of 

LEV purchases by the affected f ets in the covered nonattainment areas in vehicle model yea 1999, 2000, and 2001. 

The State of Texas, in a com mitt I SIP revision submitted to the 

EPA on November 15, 1992, opt d out of the FCFF Program in 

order to implement a fleet emissio control program designed by 

the state. 

In 1994, the commission submitt d the state's opt-out program 

in a SIP revision to the EPA an adopted rules to implement 

the Texas Alternative Fuel Fleet rogram as a substitute to the 

FCFF Program in the areas of Te as classified by EPA as being 

in serious, severe, or extreme no attainment of the NAAQS for 

ozone or CO. 

In 1995, the 74th Legislature mo "fied the state's alternative fuels program through the passage of Senate Bill (SB) 200. The 

legislature facilitated fuel neutralit through the incorporation of 

the federal LEV standards for ce ain affected fleets regardless 

30 TexReg 7824 November 25, 2005 Texas Register 
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 111 

AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive 

testimony regarding proposed revisions to 30 TAC Chapter 111, Control of Air Pollution from Visible 

Emissions and Particulate Matter, and the state implementation plan (SIP), under the requirements of Texas 

Health and Safety Code, §382.017; Texas Government Code, Subchapter B, Chapter 2001; and 40 Code 

of Federal Regulations §51.1 02, of the United States Environmental Protection Agency (EPA) regulations 

concerning SIPs. 

This rulemaking would eliminate air standards that cannot be scientifically defended. In addition, this 

rulemaking will make the commission's approach to particulate matter regulation consistent with federal 

and other state approaches. 

A public hearing on this proposal will be held on December 15, 2005, at 2:00p.m., in Building E, Room 

254S, Texas Commission on Environmental Quality, 12100 Park 35 Circle, in Austin, Texas. The hearing 

will be structured for the receipt of oral or written comments by interested persons. Registration will begin 

30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of 

registration. There will be no open discussion during the hearing; however, commission staff members 

will be available to discuss the proposal 30 minutes before the hearing and will answer questions before . 

and after the hearing. 

Persons planning to attend the hearing who have special communication or other accommodation needs, 

should contactJoyce Spencer, Office of Legal Services at (512) 239-5017. Requests should be made as 

far in advance as possible. 

Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Office of Legal Services, 

Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to 

(512) 239-4808. All comments should reference Rule Project Number 2005-013-111-EN. Comments 

must be received by 5:00p.m., January 13, 2006. Copies of the proposed rules can be obtained from the 

commission's Web site at http://www.tceq.state.tx.us/navlrules/propose_adopt.html. For further 

information, please contact Kathy Singleton, Air Quality Plaiming and Implementation Division, at (512) 

239-6098. 

Issued in Austin, Texas, on November 9, 2005. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.us 

j•'::.'•··l(l' •.. , \.' 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

W-2 

W-3 

W-4 

W-5 

W-6 

W-7 

W-8 

W-9 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

John W. Fainter, Jr., Association of Electric Companies of 

Texas, Inc. 

Jennifer Keane, Baker Botts L.L.P. 

Ramon Alvarez, Ph.D., Environmental Defense 

Bob Allen and Arturo Blanco, Harris County Public Health 

and Environmental Services and the City of Houston, 

Bureau of Air Quality Control 

David Frederick, Lowerre & Frederick, Attorneys at Law 

Brandt Mannchen, Sierra Club, Houston Regional Group 

James R. Miller, Jr., Southern Crushed Concrete, Inc. 

John T. Orynawka, Temple-Inland Forest Products, 

Corporation 

Patrick J. Nugent, Texas Pipeline Association 
American Electric: Pmver 

CenterPoint Energy 

El IJaso Electric Company 

Entergy Texas 

Reliant Energy 

Soutlnvestern Pu/Jiic Serl'ice 

Texas-Nell' 1\t/exico Power Company 

TXU 

Ms. Joyce Spencer 

IWAECT 

ASSOCIATION OF ELECTRIC 

COMPANIES OF TEXAS, INC 

January 12,2006 

Texas Commission on Enviromnental Quality 

MC-205 

in~c·r::·'"';··· .... [,1"\.~ c f }. t: ~.) 

Texas Register Team 

Office of Legal Services 

P.O. Box 13087 

Austin, TX 78711-3087 

SECliDN 

Scott E. Ro::::::e/1 

Chairman 

Charles !'atlou 

Vice-Ciwirman 

.John W Fainte1; .h: 

President and CEO 

Walton Baum 

Board Secrellll~' 

Re: The Association of Electric Companies of Texas' comments to the proposed repeal 

of30 TAC § 111.155; Ru1e Prqject No. 2005-013-111-EN 

Dear Ms. Spencer: 

The Association of Electric Companies of Texas (AECT) appreciates the opportunity to 

submit these comments to the proposed repeal of30 TAC § 111.155. AECT is a trade association 

representing electric companies in Texas. Organized in 1978~ AECT provides a forum for 

member company representatives to exchange information on their industry, and to communicate 

with state and federal governmental officials. 

AECT strongly concurs with the proposed repeal of§ 111.155 (the particu1ate matter (PM) 

state property line standard) and with the TCEQ's rationale for proposing its repeal, as stated in the 

preamble to the proposed rule that would repeal it The TCEQ has done a significant amount of 

research relative to the history of, past and current use of, and health and scientific bases for, 

§ 111.15 5 (and predecessor versions of it). The TCEQ has properly concluded, among other things, 

that § 111.155 is not needed in order to protect human health, is not based on good science, and its 

repeal will not weaken the Texas SIP or the TCEQ's ability to enforce the PM national ambient air 

quality standard or nuisance PM conditions. 

AECT appreciates the opportunity to submit these comments. Please call Keith Courtney at 

(512)499-3865 if you have any questions regarding these comments or would like to discuss them. 

JF/pjp 

1005 Congress, Suite 6110, Austin, Texas 78701 • Phone: (512) 474-6725 • Fax (512) 474-9760• www.aect.net • info@aect.net 
V.J../ ~\J/ ..:::OVVU .L't. UU rl1.-~:l.. U.J..~ \J&..~ ~UV&.. 

BAKER BOTTS LLP 

January 23, 2006 

VIA FACSIMILE 239-4808 

Ms. Joyce Spencer. 

MC205 

Texas Register Team 

Office of Legal Services 

P.O. Box 13087 

Austin, Texas 78711-3087 

.Ul1..l.\.01\. .uv ~ ~ t.,) 

Re: Rule Project No. 2005-013-111-EN 

Proposed Repeal of30 TAC § 111.155 

Dear Ms Spencer: 

1500 SAN JACINTO CENTER 

98 SAN JACINTO BLVD. 

AUSTIN, TEXAS 

78701-4078 

TEL +1 512.322.2500 

fAX + 1 512.322.2501 

www. bakerbolls.com 

Jennifer Keene 

l.i!:J vv .... 

AUSTIN 

DALlAS 

DUBAI 

HONG KONG 

HOUSTON 

LONDON 

MOSCOW 

NEW YORK 

RIYADH 

WASHINGTON 

jennifer.kecne@bakerbotts.co W-2 

512.322.2594 

FAX 512.322.8394 8 

Thank you for the opportunity to provide comments on the proposed repeal of 30 

T.A.C. § 111.155. As you are aware, Baker Botts L.L.P. filed a petition with the Texas 

Commission on Environmental Quality ("TCEQ") in May 2004 requesting that the rule be 

repealed. After participating in the stakeholders' session held by the agency on April 1, 2005 

and reviewing the November 25, 2005 proposed repeal in the Texas Register, we remain 

convinced that the current rule is an anachronism that should be repealed. 

As pointed out in the proposed rule, there is no known scientific basis for the 

specific net particulate matter ("PM") concentrations set forth in§ 111.155. 30 Tex. Reg. 7821, 

7822 (Nov. 25, 2005). The TCEQ correctly concludes in the preamble to the proposed rule that 

§ 111.155 "is not based on good science nor is it current and necessary." 30 Tex. Reg. at 7822. 

TCEQ has sufficient tools in place to enforce the National Ambient Air Quality Standards 

("NAAQS") for PM and to prevent nuisance PM, including establishing appropriate permit 

conditions and utilizing the existing opacity limits in § 111.111 and § 111.113, as well as the 

general prohibition on nuisance found in§ 101.4. Baker Botts supports the proposed repeal of 

30 T.A.C. § 111.155. 

We appreciate the opportunity to submit comments on this matter. If you have 

any questions, please do not hesitate to contact me at (512) 322-2594. 

Very truly yours, 

Jennifer Keane 

AUSOl :407921.1 
t'HJ\ NU. r. uc:: 

e 

eNVIRONMeNTAL DeFeNSe 

finc!ir1g lhc ways thrd wu~k 

Janwtry 13, 2006 

.Ms. Joyce Spc.:uccr 

Onicx of I .t!p;nl Services, MC 20.~ 

'I' l~xn.c; c"" - • I' . 1 r). 1· .• omn·ll.SslOn 011 ~.nvtmnmc.:nt::l '--!.,\Bl 1ty 

P. 0. Box j 308'1 8 

1\u::;ti.n, 'I'X 78711-3037 

Vi;t f.·r;:: 2:59--4 808 

n~:·: Rule Px-ojcct Numbet· 2005-0:13··111-EN, Pmposcd "f~epcal of30 TAC 111.155 

Dear J\.1s. Spencer: 

Thank you for the opportunity to commc.:nt on the p1'oposcd repeal of30 TAC 111.155. 

Envjronmcntul Dde.nsc: opposes this propos:-~1 to 1·cpcal the TSP standards because they provide 

'l\::xans an adU.itioua[ health safeguard from f;hort-term PM exposures that' the PM NA.i\.(2;1 do 

not. 

Wt'. concur with the 'T'CE(lth~t PM25 anU. PM10, the respirable component of particulate: 

mattl::r) arc bl'ttc.:r imlil'iltOI't> ofPM-rel-atcd henlth effects than TSP. On the other hand, it docs 

nnt folJow that a limit on TSP dol~S not, by itself, offer some level ofhealth protection. This is 

b1:<~an!-:t~ TSP, hy definition, conrains some amount ofPM2•

5 or PM10• The exact proportion that 

is n·sp1r:~h1c will vary from source to source; and for some sources it rnay be a significant or 

pn.:domin:lnt fraction . 

.Accordingly, we disagree with the rom mission's conclusion that if the 'T'SP smndards were 

rq1eak·d, 1hcn the PM N.AAQS would adequately address health issues associated with PM. 

\iVbitc rhe }JM NAAC.1S prorcct public health from certain PM exposures, the Texas TSP 

standard c:~plur<:.'i potential short-·L~nn impacts of particulate emissions that the NAAQS do not. 

ThL' T':xa.s TSP standards address 1-hour and 3-hour time frames, whereas the PM NAAQS 

addrc.c;s 24-hnur :mel anm1al time fmrru.~s. Also, the mcasmc of compliance with the PM 

N!u\(1.S am"Jtlrll sranda.rd is rtally a 3-year average, ;tn~l the 24-hour st:tndard is violated only if 

the 3 · ycM :wemp;c of the arln\l:d 981h percentile values exceeds the sta nd;ncl.. Ac; a result there 

CI)Hld br. as m:my as 21. <lays over a thn.:t.: year. period during which the 24-hour PM2.S or PMw 

~tanrlard is e.xceedr:d hcfore an offtcial vioht:ion would be registered. 

Then: is healt-h -b:1sed support for retaining a short-term PM stanchrd. The atlachcd summn.ty 

llsts '1 n.:c:l-111 studies that providt: evidence linkinp; short~tcr.rn, even hourly, PM2_5 .leve1s to 

advt\TS\~ hc:a1th outcomes. One st.ndy found an association hcnvccn cxh\lccl NO, a marker of 

kr,.l :. Olh,-r, <\ 4 E:1·;l l'.v:.;n,,·. · A\!!.lin, I X "?Cl'lO 1 · To I 51 2 47fl 5161 · far. 512 -'1-78 81 ~0 · www.cnviron~rwnHtldL'Ion~.c.o• g 

N"w Yuk, l'lY · W:,:•hiJ:~jlOn, LJC · O..tl.!a11u. CA · 8oulrl<lr, CO ·Raleigh, NC · ~nt.ton, MA P1D1t:CI Oll"lct': Los Ancl·~I'-'H, CA 
I' Hl\ IIIU, 

n.itway iuilmnmalion in asdunatks, with hourly averages ofPM2,

5. Another study found thn.t 

"[rn J;:r."ima of hourly cbta from outdoor monitors may capture a.dversc dTccts of outdoor 

parricubtc matter (PM) e,"'{posurcs in n.st.hmatic children better tban do 24-hr PM averages." 

r. uJ 

I u condu~ion, l":nv(ronmenta[ Ddcm;c recommends the TCEQretain the TSP standards 

mnt~tincd itl 30 TAC 111.155. Because TSP c:ontains a respirable fraction tl1ar is Jess than10 

microns, the. TSP srnndards pt'oviclc a level of protection }lg~1nst short-tenn PM exposures that 

the 2,Hwnr :md 1lTltHtU1 PM NAt\(1c..; do not. If the TCEQncvcrlbclc~s elects to repeal its TSP 

t'('gui:Jtioll, lhc~n we stmny,ly em·ourugc you to replace it with cnlorceahlc short~term PM .~ and 

PMlll stnnchrcls that ar<..~ s<..~t at appropriate levels. 

l•:nvironim:nutl Dd:Cm:c ~tlso supports the comments filed by Ihrris County anrl the City of 

I IouslOIJ, wl1ir.h present compelling opcraticm~l.rca.sons for rct'Dining the.: TS.P stn.ndards. Thank 

yo·u :)gnin :l-or the opponunity to provitlc ti·lc:se comments. 

S i nc:crdy, 

....... ) A .. I ~- .. f.'·\/1,_ ·- ___ -... ~l 

R:uni)n i\lvarcz1 lJh.1'f. 

Scll.lor Sd <:Mist 
rHA l'lU. 

At t'ild11nent 1 

Sd~ct'-~d p~lpcrs reg~mHng adverse heah·h effects of sh011Acrm PM '-':Xposurcs 

(t~mpha.ris t~dded in hold italic.1·) 

1: Environ H c.:;~ 11 h P(:rspect. 2005 Dec; 113(12):179:1-4. 

Exhab.l nitric oxide in children with asthma and short-terrn PM2.5 cxpOS\.ltC in Seattle. 

M·.uTF,]ttns~~n K> Shepherd K, LurnlcyT, Larson TV, KoenigJQ 

Dcp:lltmcnt <>fEnvironmcntal Health and Occupational Sciences, University ofWashington> 

Scnttk, W2~ltingt'on 98195-723.tJ., US/\. 

Tlw obj~riivc of this Stlldy W<1S lo evaluate ll.ssociations bcLwe:cn short-term 

(hcnu·Iy) C..'<posurcr; to p;1t'ticulatc m:tttGr with acrodymun1c diru.11etcrs < 2.5 microm 

(PI\1.2.5) nnd t'l"tc fractional cunc.c:ntration of nitric oxide in exhaled brearh 

r. U'-1 

(FE(NO) in c.·hildrcn with ~1sthma parlicipaling in an intensive panel study in Scatt1c, 

WashinEtou. The exposure da.ta w~~re collected wjth tapered element oscillation micrubalnnce 

(TEOM) l )M2.5 monitors operated by th<.: loc<11 air agency at three sires jn the Seattle area. 

J.i'E(NO) is a mark~r of t~irway inflammntion llncl is clcvat<.:d in imlividuals with ilsthma. 

Prc:vionsly, vt.:. reported that offline mt:asMcmc.11ts ofFE(NO) are associated with 24-hr average 

PM2.S in a panel of 19 d1ildn:.n with asrhma in Seattle. ln the present study using the same 

rhilclrcn, Wt:. med a polynonlial d1~11'ibated lag model to assess the.: association betwcc.n hourly 

bgs in Pl\1:>..S c:x.'Posurt: and FE( NO) k"Vcls. Our model controllccl for age, ambient NO leveLc;, 

I cmpct·ature1 rl'b t1vc humidity, and rnodification by usc of jnhalcd corticosteroids_ Jl/le found that 

F'l~(NO) <wns fmor.ir.rtal 'lLlitb hourly a"l.Jeragt!.r oJPM2.J up to 10·12/;rajtcrexpo.wre. The sum of 

the cod'Iicieuts for Lhe lag times assot~~ttcd wlth PM2.5 in d1e distributed lr1g model was 7.0 ppm 

FE(NO). The: si.nr;lc-lag-moc.ld FE(NO) effect was 6.9 [95o/o con.Gdeuc:e inte1val (CI), 3.4 to 

·to.6 pph] foro. 1-hr lap;, (,.3 (95% C{, 2.6 to 9.9 ppb) for a 4-hr lag, and 0.5 (95% CI, -1-1 to 

2.1 ppb) for ~tn 8· hr lag. Thesl~ dat~ pl.'ov.ic.h.: new infonnation concerning the lag stntcturc 

hdwceH PM2_S cxpoS\.I!'C and a respiratory hc:e1lth outcome in children with asthma. 

2: Environ I Icalth Perspc-t:t·. 2002 Oct;110(10):A607-17. 

AssG<.':iation of asthma l:lymptoms with peak particulate air poilu tion and ~fleet moc.lilicarion hy 

anti-itt!hrnrn;lf:ory medication usc. 

[)(!Hi no RJ, Zcigc.:r RS, Sdru:r JM, S1reet DII, McLaren CE. 

Epldt:ll)\o\ogy Divi:;ion, Department of Medici n.e, Un.i.vt:rsity or C;1lifornia, Irvine, I rv:ine, 

Coliforni::t 9/,(,9'/·.'1.550, USA. rdclfino@uci.edu 

fi.·Ja~:ima c{bourly datajl·oJ11 ouidoor mo11itors may capture adverse effects of outdoor f'articulate 

md'f/.,?r (Jill j) CJt/'O.I'JJrc.r in asthmutic r.hildren better tbtm do 24-hr J>)\1 a<Verages, which form the basis 

clmn·cnt re,gultllionr in tbe United Stuft~S. Also, asthmatir. children on ar1 ti · infhmmatmy 

mcdicatiom; !1l.ay be protected against the proint1amma1ory crf'~~cts of ai.r po.llnmors and 
r Mfl l~U. r, u:..~ 

ru::m.1lkrgcns. Vo/c c:x~unincd strengths of pollutant associations with asthma symptorns between 

sul.1~?;toops of ~tst:hmatic child rcn who were on versus not on rc~1la rly scheduled antiin!.brurn:n.l'ory medications, and tested as~odfltions for different particle averaging times. This is a 

d:·dly fKl nel stll< ly of 2:~ :l.)';thmatic ch.il.dnm (9-19 years of ag~~) followed M <1rch. through April 

19% (1,2t1S person -dnys). ThL:y Lived in nonsmoking households in a scmirural area of Southern 

Californi~t within. the ::~.ir inversion mixing zorw (range, 1,200-2,100 feet) with transported air 

pollution i'l"om urban an . .:rts of Southern California, The dependent variable derived from diary 

01dinal scon~s is cpi~o(kfi nf asthma symptotns that intL:rfcnxi with daily activities. Minim.um to · 

90th-p<~nx·nti1e kvds of cxposurc!s n.t the outdoor monitoring sjtc w~rc 12-63 microg/rn(3) for 1-

br PM< 10 micrcnn in :J.crodynamic diamet.cr (PM(lO)); 8--16 microg/m(3) for 8-hr PM(10); 7-. 

~2 microg/m(3) (or 24-hr Piv1(10); 45··88 ppb for 1-h.r 0(3); 6-26 ppb for 8-hr N0(2); 70·· 

4,714 p:u~tidc:s/rn(:3) for 12-hr dayrirnc fung-i; ancl12-744 partides/m(3) for 24-hr pollen. Dal'::t 

'\Yl'n.: Hn:.lly7.ecl with gcnc..:mlil",ecl t~stirnating t:tJllcttions controlllng for auroc::orrdation. There wa!5 

no conroul.ldlng by wenlhcr, dny of week, or linc<lr. time trend. Associations were notably srronr;cr 

in 12 astl'Hnat·ic ddldrcn who were not taking anti-inflammatory rnedica.tions versus 10 su~jccts 

"''ho w<:re. Odds t'ilt.ios (959/cl confidcnct'! intervals) for asthm.a episodes in relation to lag 0 

mininmm to 90ih-pcrccnt.ik pollutant chan,p;cs were) respectively, 1-hr rn~ximum PM(10), 1.92 

(.1.2.2-3 .02) v(:rsus 0.9() (0.25-3.69); 8-hr maximum P:M(10), 1.68 (0.91-3.09) versus 0. 75 (0.18-

3.0·1); 2<1-hr nwrn.gc P1Y1(10), 1.3.~ (0.82-2.22) versus 0.80 (0.24-2.69); 1-hr m:DCimum 0(3), 

1.28 (0:75-2.17) versus 0.76 (0.24-2.44); 8-·b.r maximum N0(2), :1..91 (1..07-3.39) versus 

l.OH (0.30 -3.<J3); 12-hr fungj, 1.89 (1.24··2.89) versus 0.90 (0.35-2.30); 24-hr pollen, 1.90 (0.99-

3.67) vcr:m::i 0.85 (0.18-3.91). Poliutant associations were stronger during n.:spiratory infections 

in :~ubjcct:; not nn ::mt.l-inGmnmatory medications. Although lag 0 1-hr rmtximurn PM(lO) 

~·ho\.v~:d t.hl~ strong~.:st \li'Sod<l.lion, the most robust associations were for J:Lg 0 and 3-day moving 

nvcra~~es (la~~s 0-2) of B -hr maximllmHrHl 2tHlr mean PM(10) in sensitivity analyses testing for 

thresholds.. Most pollutant cffcc.t.s were la.r!~ely driven by concentrations in the upper quintilc. 

The divergence of expos11n~·rcsponsc relationships by anti-infb.mrnatoty rnedication usc: is 

r:onsist<:nt with c:~pr:rimental data on in.flammatory mechanisms ofnhhome pollutants nnd 

all.crvet1s .. , . 

3: J .Air Waste M~11ag Assm:. 2005 Jul;55(7):B93-902. 

'fcmporal analysi~ of airbomc p;Hticuhtc matter reveals a dnse-ratc effect on mortality in El 

[>,:~.so: 1ndi c::H ion~ of' di ffi.'!rential toxicity for difTcrcnt particle mixttl<CS. 

St~ni~w.lli~' JO) Parks NJ, Bader JO, .Maldonado YM. 

DL'pal'lment ofNhthcm:n'ical Sciences, 'University of1\~xas atE\ Paso, El Paso, TX 79902, 

USA .. joan@xnat:h.utep.cdu 

·One of two topi~::~ explorl'd is the limitalions of the daily average in summarizing pollutant 

hourly prnnk~.r;. The daily average ofhollrly mc<\suremcnts of air pollutant c:onstitucnts provides 

contim1i1.y with pt'c;v.ions studies using rn.oniLoring tcchnolo!~Y that. only provided the d;lily 

avcragl:. l1ovv\~vc:r, Ol'h.er summary stalistics arc nr.:L:<.lc:d that m;tkc better usc of all available 

lllfonnatir.m in 24- hr pmfiks. The da.ily average rdlccts the total daily dose, obscuring hourly 

re:wlt~Li.on ofthe cl.mw rate. Air pollutant exposures with comparable total daily doses may h:tvc 
t'Ht'\ l'IU, r. uo 

very d\ffc:rcnt effects wllCT\ occurring at hiKh h.:v-cls over a few hours as opposed to low k:vcls over 

:1longcr time. Allc:rnativc data-based cbojcc:s for summary s1'~tisLics are pmvidcd using principal 

componenl HIH11ys1s ro capture the exposurL! close rate, while preserving ease ofintcrprctation. 

This is lkrnonstratcd ming the earliest hourly particle concentration data available for El Paso 

(rom a.rchivcd record:; of particulate rna ttcr (PM) 10~ In this way, a significant r.maciation het•wecn 

e·w•;ling PJ\.110 t:.'t'posureJ' aud nonart.i.deutal daily rnortaHty is found in Bl Paso from 1992 lo 1995, 

otbl'l'w.ise.wirsed u.rin.g the daily a·vangc. Secondly, the nature and., hence, effects of pa.rtic:les in the 

~~rnhlcnt aerosol U.uring El P<lSO sandstorms is believed different from that of particles present 

durinp; t;tilJ-;lir c:onditions resulting frorn atmospheric tcmpcrarure inversions. To investigate this, 

wjod spctd (ws) ls ust:d C\f; n. Sllr.rogatc variable to label PM10 exposures as r ,ow-ws (primarily 

Cim: partides)J Jligh-ws (plimar.ily coarse patticles), or Mid-ws (a m.ixrure offme and coarst~ 

p:uticlcs). A High -w~ evening is signific~ntly ~tssociatcd wilh a 10% lower risk of mortality on 

the suL:te(:ding third dny, as cornp;nc:d with compar~tblc exposures at Low- or Mid-ws. Although 

thiB annlysis cannot b(: usc<'llo forrn firm conclusions because it uses a VCl"Y small data set, it 

&mrmslmta.r tile limilations oftb(! daily twcrnge and S\1ggt~sts differential to.xicity for different 

particle compositions. 

-1:] Air Waf.tc M'n.nng Assoc. 2005 May;5'5(5):559-73. 

'I 'he Stl.!ub~.;nville Coinprchensivc Air Mon] Loring Program (SCAMP): analysis of sbort-terrn 

:.1nd t:f>isodic V<l riations in PM2.5 com.:cnlrations using hourly air monitoring data. 

Connell DP, Withurn].A, Winter SE, Statnick RM, Bilonick.RA. 

CONSOf, Energy Inc. Research & Development, 4000 Brownsville Road, South Park, PA 

1.5129, USA. danickonm·lWPc:onsolencrr,y.corn 

On~-hour avo..·r:lg<.: ~rnbient ~:onc:rntrations of pali·iculate mauer (PM) with an aerodynamic 

cii~ti!ICit~r < 2.5 rnicmm (PM2.5) were determined in Steubcnvillc1 Oil, bctwccn]LlllC 2000 and 

Nl ay 2002 with a tapered ckrncnt osdllatin~~ microbalance (TEOM). Hourly average gaseous 

copoiluta.nt [carbon monoxide (CO), sulli.zr dioxide (502), nitro~cn oxide (NOx), and ozone 

(03)] nmrcntnuions and rnetcorologic.al C'ondirions alc;o were measured. Although 75% of the:. 

l'1,6RI. bonrly PM2.5 C'Ol1Cenlrations measured during this period we.rc < or= 17 microg/m\ 

concentrations :- 65 mkrog/m3 were observed 76 Limes. On average, PM2.5 concentrations at 

SH~ubcDvilk C:'lt:hihircd ~diurnal patlern of higher early morning concentrations and lower 

af'tcrnonn con~entrations, ~imilar to the diurnal profiles of CO and NO(x). This paucrn was 

highly variable; howc.:vt:r, PM2 . .5 concentrations > 65 microg/m3 were never observed during the 

mid-a ltnnoon hctvtcc11 1.:00 p.m. aiJd 5:00p.m. EST. Twenty-two episodes centered on one or 

more ofth<~.r.c elevated conccnlral.ions were identified. Five episodes occurred during the monlhs 

.Jun~ thnm~!;h Aug1.1st; the nHiximum PIVI2.5 conccntnnion during thc.:se c.:pisodc:s was 76.6 

mlcwglrn.'.l. Episodes occurring ch.1ring clirnatologim1ly cooler rnonlhs often fc:lturcd higher peak 

<'OtlC:l.~ntrations (five hrld rn:Pdmurn concentrations between 9.5.0 and 139.6 microg/m3), ;mr:l 

many c:JJi.biled slrong c.ovariation between P.M25 ~nd CO, NO(x), or S02. Ca::;c studies 

SU[~gcstt:d thar nocturnal surftcc-bascd temperature inversions wen~ influential in driving high 

nigh ni me mnc:cntrations of tllc1ic spc:c:i.es durinR scwra 1 coo 1 sc as on eplsodcs, which typically had 

dr·,,,mat·ic:\·lly lowc.:t· aflcmoon r.nncentrations. 'Thc::;c flnding;s provide insights that may be useful 
r HI\ I~U. 

i u t.ltc dcvcJI)pn tent n 1: PM2.5 reduct ion strategies for Steubenville, and sngg~-:.st that studies 

m.,~~r.~·i~tg po.>.fibh~ hea.!th d.Ji:ct.1· ofPM2.5 should r.ariful!y comider e'-posurc is.wes related to the 

intmdrry timlngc!.fPM?.S c_fdsorles, as wdl as the potcmlal for toxicologkal3nterac:6ons among 

Pi\12.5, and pdm~llY gaseous polh1tanrs. 

r. u 1 
Han'" County 

HCPHE . , .•.. · ., , .. , ·:, 'S .. '"• 

Public Health & Environmental Services 

Herminia Palacio M.D., M.P.H. 

Executive Director 

2223 West Loop South 

Houston, TX 77027 

Tele: (713) 439 

Fax: (713) 439-6080 

www.harriscountyhealth.com 

Via Facsimile and Regular Mail 

Ms. Joyce Spencer 

Office of Legal Services, MC 205 

RECEIVED 

!JAN 17 2006 

REGUlATIONS DEVElOPMENT SECTIOn 

January 13, 2006 

Texas Commission on Environmental Quality 

P. 0. Box 13087 

Austin, TX 78711-3087 

Re: Rule Project Number 2005-013-111-EN, 

Stephen L. Williams, M.Ed., M.P.A. 

Director 

Health and Human Services 

Department 

8000 N. Stadium Drive 

Houston, Texas 77054-1823 

T.713.640.4200 

F. 713.640.4343 

www.houstonhealth.org 8 

Revisions to 30 Texas Administrative Code (TAC) Chapter 111, Control of Air Pollution 

from Vzsible Emissions and Particulate Matter, Comments Opposing Repeal of 30 TAC § 

111.155 

Dear Ms. Spencer, 

Thank you for the opportunity to submit comments on the referenced proposed rule revisions. 

For the reasons explained below, Harris County Public Health & Environmental Services 

Pollution Control & Environmental Health Division (HCPHESPCEHD) and the City of Houston 

Bureau of Air Quality Control (BAQC) oppose the repeal of 3 0 TAC § 111.155 because it serves 

a useful function and is not overly burdensome on the regulated community. 

HCPHESPCEHD and BAQC do not support the repeal of30 TAC 111.155 Ground Level 

Concentrations as they relate to Total Suspended Particulate (TSP) for one-hour and three-hour 

averaging periods. These standards play a key role in predicting potential nuisance impacts at 

the property-line during the permitting process. 1 Without this standard, which applies to 

particulate matter of all sizes, there would be no nuisance impacts assessment conducted for 

particulate matter that is larger than 10 microns in size during the permitting process. 

1 Under 30 T AC § 116.111 (a)(2)(A)(i), emissions from a proposed facility must comply with all rules and 

regulations ofthe commission and with the intent ofthe TCAA, including protection of the health and property of 

the public. This includes nuisance impacts as included in the definition of"air pollution" in the Texas Clean Air Act 

which means the presence in the atmosphere of one or more contaminants or combinations of air contaminants in 

such concentration and of such duration that: are or may tend to be injurious to or to adversely affect human health 

or welfare, animal life, vegetation, or property; or interfere with the normal use or enjoyment of animal life, 

vegetation, or property. Tex. Health and Safety Code§ 382.003(3)(A) and (B). 
Ms. Joyce Spencer 

TCEQ 

Rule Project Number 200. . 3-111-EN 

Page 2 of2 

The TCEQ states that there are other enforcement tools including opacity limits described in 30 

TAC §§ 111.111 and 111.113 and the general Nuisance rule in 30 TAC § 101.4 which may 

address nuisance concerns. However, HCPHESPCEHD and BAQC do not agree that these tools 

are adequate to address potential PM nuisance since they do not perform the same function as 30 

TAC § 111.155. Currently, 30 TAC § 111.155 is used as the standard to compare modeled 

ambient levels ofTSP to, as part ofthe air permitting process and is critical to the evaluation of 

the potential PM nuisance at the property-line prior to the issuance of an air quality permit. 

It is the position ofHCPHESPCEHD and BAQC that air dispersion modeling is not unduly 

burdensome for the regulated community nor does it unnecessarily delay the issuance of air 

permits. Rather, it provides for a proactive approach for evaluating a potential nuisance 

condition when reviewing a permit application so that any potential nuisance conditions can be 

fully assessed. It should also be noted that, in Harris County, utilization of the other previously 

listed enforcement tools, specifically the general nuisance rule, often results in the issuance of 

Notices of Violations or in civil action taken against the non-compliant party through the Harris 

County Attorney's Office. Any economic benefit gained by the regulated entity from not 

conducting the modeling to assess compliance with 30 TAC § 111.155 is far outweighed by 

these potential civil penalties and injunctive relief levied in a nuisance action which could easily 

been avoided if the emissions had been considered in the permitting process. Also, air quality 

permits that are issued without consideration to potential nuisance impacts also unfairly put the 

onus of ensuring compliance with nuisance laws and rules on enforcement agencies. 

The continued use of 30 TAC § 111.155 as a basis for air permitting modeling for TSP allows 

for a win-win situation because it will help limit potential nuisance conditions that have 

potentially adverse impacts and reduce a facility's regulatory liability. For the reasons explained 

above, the repeal of 30 TAC § 111.155 is ill-advised and not supported by HCPHESPCEHD and 

BAQC. 

If you have any questions or need additional information regarding this matter please contact 

Paul Newman at 713/920-2831. 

Sincerely, 

{J~4L- Bob Allen 

Technical Manager 

HCPHES Pollution Control 

& Environmental Health Division 

Cc: Herminia Palacio, Executive Director, Harris County Public Health and Environmental 

Services 

Cathy Sisk, Harris County Attorney's Office 

Elena Marks, Health Policy Director, City of Houston Mayor's Office 
01/13/06 FRI 16:20 FAX 5124690743 LOWERRE&FREDERICK 

LOWERRE & FREDERICK 

A".I.'TORNEYS AT LAW 

44 East Avenue, Suite 100 

Austin, Texa,; 78701 

(512) 469-6000' · (512) 482~9346 (facalmile) 

Mail@LF-LawF.i.rm.com 

~ 002 

Joyce Spencer 

MC 205 · 

January· B. 2006 G 

Texas Register Team 

. OHice of Legal Serv_ices 

PO Box 13087 

Austin., TX 78711-3087 

Regarding: Proposed repc;:al of the property-line particulate standard 

Dear Ms. Spencer: 

These comments are submitted on behalf ofLoweue & Frederick. 

I urge you not·tG repeal the p'roperty line standards (i.e., 30 T AC § 111: 155). This 

is a valuable reglilation with which to control emissions from various facilities, but it is 

particularly valuabJe for controlling emissions from rock and concrete crushers. ~s you 

are likely aware, enforcement is a difficult task where rock and concrete crushers are 

concerned. The sites are numerous and are often remote from TCEQ regional offices 

(e.g .• they are often in rural areas). Agency en(orcement resources are limited. So a tool 

like the prope11y line standards that helps pre-empt some of the need for enforcement and 

streamlines enforcement, when enforcement must occur, should not be abandoned. 

At the time of the 1989 amendment to the rule, industry advocates also sought to 

have the rule repealed. The agency withstood this effort. It noted, then, that "the 

standards have proven to be effective enforcement tools during the 15 years they have 

been used. * * * [R]emoval of the ground level standards would leave no pa11iculate 

controls in place, which would aggravate nuisance .conditions." 14 Tex. Reg. 3296 (July 

4, 1989). Frol:l1 the context of the quoted language, it is clear the agency was contrasting 

"particulate cm1tmls" with the contro1s afforded by the PM10 standard; "particulate 

controls" meant contTols for particles larger than 10 microns. 'What the agency said in 

1989 is still true: the property line standards can be an effective enforcement tool, and, 

were they repealed, there would be no control- no qu~ntitative control, at least- on the 

larger particle emissions that·cause nuisance conditions~ 
01/13/06 FRI 16:20 FAX 5124690743 LOWERRE&FREDERICK 

One need only review a few nuisance enforcement investigations involving rock 

crushing and like operations to confhm the benefit of the property .line stangards. 

Consider the January 1 Ot11 , 2002, investigation at the Texas Lime Company site in 

Cleburne. Your staff from the Arlington office reported feeling particulates impacting 

their faces, and they recorded two complaints of health effects that included stinging ~nd 

'irritation: of the eyes. Your staff reported "noticeable haze" surrounding the site. Upwind 

and downwind monitoring revealed four of four 1-hour samples violated the property line 

standard, and it r.evealed t\.vo of four 3-hour samples violated the property line· standard. 

So, clearly, the property line standard provided some quantitative support for the 

observed and reported nuisance conditions. 

A similar co1tfim1ation can be found in the March 22, 2001, investigation of the 

Galvanizing Services facility in Houston, across from the police substation. Burning 

eyes, among other conditions, had been repmied, and those reports prompted the 

investigation. Again, all tests (one 3-hour and three 1-hour tests) revealed exceedanccs 

of the respective property line standards. At an investigation of the Capitol Aggregates 

site in San Antonio (October 29, 1998), your central office Source Sampling Team 

experienced "the gritty fee 1 of particulate when facing in the general direction of the 

plant, which req-qired sampling personnel to clean their safety glasses several times." 

Sure enough, upwind and downwind sampling revealed violations ofboth the 1- and 3-

hour standards. 

The existence of the prope1iy 1ine standards gives permit engineers a quantitat1ve 

measure by which to anticipate probable nuisance conditions- or the lack thereof- at 

facilities seeking permits. Dispersion modeling, while not a perfect predictor of future 

conditions, is very widely used in pcm1itting, .and'it, when applied to particulate 

emissions from a facility, can give the permit writer considerable objective insight into 

whether a permit w[th this or·that safeguard required will or will not likely oper~te 

without causing nuisance conditions- at least, nuisance conditions caused by particulate 

emissions. Though pe1mit applicants have apparently complained of the overhead 

associated with conducting property line dispersion modeling as an element of the 

pe1mitting process, the practical benefits of identifying and, presumably, preventing 

nuisance conditions before facilities begin operations justify that overhead. 

In conclusion, the agency properly analyzed this issne in its 1989 mlemaking. The 

property line st~ndards ·serve both an enforcement and a pelmitting function and, 

therefore, overhead costs for permittees notwithstanding, should be retained. 

Sincerely, /. 

l2~A/u/ 17~?~ W/(UfMtMt'en- A!3 

David Frederick 

!41003 
SIERRA 

CLUB 

F 0 UN DE D 18 9 2 NO/l~i~ l,tr:t:·~,)I\]:1:\JO C'![Ji'J"]~''Jr v. v -11J,."~' .l1 •• 1 vh .I' lti:i.:W 

December 6, 2005 

sooz [? 0 330 

03/\1383CJ 

Ms. Joyce Spencer 

Texas Commission on Environmental Quality 

Texas Register Team 

Office of Legal Services 

MC205 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Ms. Spencer, 

Houston Regional Group 

P. 0. Box 3021 

Houston, Texas 77253-3021 

713-895-9309 

http:/ /texas.sierraclub.org/houston/ 

Rr-c,..." c C:l\. 'r-0 t::. 

8 

Enclosed are the comments of the Houston Regional Group of the Sierra Club 

(HSC) regarding the Texas Commission on Environmental Commission (TCEQ) 

proposal to repeal standards for net ground-level concentrations of particulate 

matter (total suspended particulates - TSP) in 30 TAC 111.155. 

The HSC is opposed to the repeal of these TSP property-line standards. These 

TSP standards are the only ones that TCEQ has that allow for the sampling of 

nuisance dust and the determination whether a particulate matter property-line 

standard has been exceeded. 

TCEQ, in its analysis of this repeal proposal, states that TSP deals with nuisance 

dust and not health effects. This is not true. The range of particulate matter that 

is collected by TSP sampling can cause welfare and health effects as verified 

over 35 years by the people of Texas who have made numerous nuisance 

complaints based on the health effects that dust had on them or their family 

members and had these effects verified by TSP sampling. 

The TCEQ analysis calls the standards "net ground-level concentrations in 

ambient air". This is not true. The air that these standards measures is from 

property-line sampling of sources so the air is "source" air as it directly comes off 

the source property and not "ambient" air as defined by U.S. Environmental 

Protection Agency for its National Ambient Air Quality Standards. 

The TCEQ analysis suggests that the TSP standards are "subjective". However, 

TCEQ ironically supports other subjective data gathering in place of the TSP 

standards including "field observations of commission staff''. Certainly collection 

of TSP by High-Volume Air Samplers is much more scientifically precise than 

field observations. 

"When we try to pick out anything by itself, we find it hitched to everything else in the universe." jolm Mttir 

Printed on 100% Kenaf tree free paper 
As a former air quality investigator at the Bureau of Air Quality Control of the City 

of Houston for almost 26 years l can testify to the importance of these rules. On 

a number of occasions we were able to determine whether the alleged source of 

a nuisance complaint was violating TSP property-line standards. Oftentimes it is 

not possible to verify a nuisance dust complaint but it is possible to verify whether 

these reasonable TSP property-line standards have been exceeded. This offers 

the complainant some real hope for resolving the problem and the alleged source 

some hope of determining whether there is a problem. 

Sampling for property-line TSP can also provide information on air pollutants 

other than nuisance dust. For example, different analyses in the laboratory can 

determine whether some air toxic compounds, including heavy metals and some 

toxic volatile organic compounds, are being emitted and in what quantity. 

Another important reason to retain these rules is that, in a relative sense, TSP 

property-line sampling is simple and straight forward. It can be accomplished in 

a relatively short time and the analysis can be performed quickly (within a day or 

two). Therefore results can be provided to the complainant and the source soon 

after the sampling. The quality assurance required for TSP property-line 

sampling and laboratory analysis is well understood and can also be 

accomplished in a relatively straight forward manner. 

If TCEQ believes that these TSP rules should be changed because they do not 

have the scientific documentation that is required then the HSC recommends that 

TCEQ revise the standards to set a new TSP standard based on original 

research. 

We also recommend adding to the type of property-line sampling for particulate 

matter that is allowed. Standards for particulate matter 10 microns in diameter 

and 2.5 microns in diameter should be added. Then the TCEQ would have 

standards for coarse, heavy, nuisance dust; for smaller particulate matter that 

affects the upper respiratory airways; and for the finest particulate matter that 

lodges deep in the lower respiratory system and causes the greatest potential 

health effects. 

If these changes were made then the TCEQ and local air pollution agencies 

would have the flexibility and choice of what to sample. 

If the concern is that little TSP property-line sampling has occurred in recent 

years this is not because these rules are difficult to understand or the sampling is 

difficult to undertake. TSP property-line sampling has fallen off because both 

TCEQ and local air pollution agencies do little sampling in the process of 

handling most complaints and investigations. It is time that both the TCEQ and 

local air pollution agencies get back into the business of sampling so that this 

important compliance/enforcement tool is actively used to protect the public's 

health, welfare, safety, and environment. 

2 
The HSC urges TCEQ to reject this attempt to repeal an effective 

compliance/enforcement tool. TCEQ should strengthen these particulate matter 

property-line rules as mentioned above and implement an aggressive program of 

property-line sampling to protect the public health and welfare. 

The HSC appreciates this opportunity to comment. Thank you. 

Sincerely, 

Brandt Mannchen 

Chair, Air Quality Committee 

Houston Regional Group of the Sierra Club 

5431 Carew 

Houston, Texas 77096 

713-664-5962 

brandtshnfbt@juno.com 

3 
JAN. 23. 2006 4:15PM sec 2819878789 -NO. 5197 --P. 2/2-· 

SOUTHERN CRUSHE.D 

CONCRETE INC. 

January 23, 2006 

VIA F ACSlMILE 239~4808 

Ms. Joyce Spencer 

MC205 

Texas Register Team 

Office of Legal Seniices 

P.O. Box 13087 

Austin, Texas 78711-3087 

Re: Rule Project No. 2005-0 13~ 111-EN 

Proposed Repeal of 30 T.A. C. § 111.155 

Dear Ms Spencer: I 

8 

Thank you for the opportunity to provide comments on the proposed repeal of 30 

T.A.C. § 111.155. Southern Crushed Concrete, Inc. ("SCC") supports the Texas Commission on 

Environmental Quality's ("TCEQ's") proposed repeal of 30 T.A.C. § 111.155. 

As pointed out in the preamble to the November 25, 2005 proposed rule, there is 

no known scientific basis for the specific net particulate matter ("PM") concentrations currently 

set forth in § 111.155. 30 Te;r. Reg. 7821, 7822 (Nov. 25, 2005). The TCEQ states in the 

preamble that § 111.155 "is not based on good science nor is it current and necessary." 30 Tex. 

Reg. at 7822. TCEQ has sufficient tools in place to enforce the National Ambient Air Quality 

Standards ("NAAQS") for PM and to prevent nuisance PM, including the requirement to employ 

Best Available Control Technology ("BACT") in permits, utilizing the existing opacity limits in 

§ 111.111 and§ 111.113, and the general prohibition on nuisance found in § 101.4. 

Current § J.ll.l55 also presents an Ullllecessary impediment to permittmg 

facilities in Texas. The practice of requiring permit applicants to demonstrate compliance with 

the § 111.155 net PM concentration standards through modeling should not provide a tool for 

challenging the issuance of a permit when in-fact there is no real basis for those standards. The 

repeal of§ 111.155 would eliminate this baseless hurdle in the permitting process. 

We appreciate the opportunity to submit comments on the proposed repeal of§ 

111.155. Ifyou have any questions, please do not hesitate to contact me at (281) 987-8789. 

Very truly yours, 

c~I.li. 14329 Chrisman Road· Houston, Texas 77039 

(281) 987-8789 • FAX (281) 987-8791 

Equal Opportunity Employer 
JAN-23-06 15:50 From:ENVI~QNI.!ENTAL AFFAIR 

Templelnland 

J nnuary 23. 2006 

VIA F ACSJMlLE 

Ms. Joyce Spencer 

MC205 

Texas Register Team 

Office of Legal Services 

P .0. Box 13087 

Austin, Texas 78711-3087 

Re: Rule Project No. 2005-013-111-EN 

Proposed Repeal of 30 T.A. C. § 111.155 

Dear Ms. Spencer: 

936R?91394 T-254 P.02/02 Job-650 

John T. Orynawka 

Environmental Manager. Air 

Environmental Health and Safety 

P.O. Drawer N 

Diboll, TX 75941 

936/829-- 1439 

Fax: 936/829·1394 

8 

Thank you for the opportunity to provide comments on the proposed 

repeal of 30 T.A.C. § 111.155. Temple-Inland Forest Products Corp. ("Temple-Inland") 

supports the Texas Commission on Environmental Quality's ('7CEQ's,) proposed repeal 

of30T.A.C. § 111.155. 

As pointed out in the proposed rule, there is no known scientific basis for 

the specific net particulate matter ("PM") concentration~ set forth in § 11 L 155. 30 Tex. 

Reg. 7821, 7822 (Nov. 25, 2005). The TCEQ correctly concludes in the preamble to the 

proposed rule that § 111.1 ~~ "is not based on good science nor is it current and 

necessary." 30 Tex. Reg. at 7822. TCEQ has sufficient tools in place to enforce the 

National Ambient Air Quality Standards ("NAAQS") for PM and to prevent nuisance 

PM, including establishing appropriate permit conditions and utilizing the existing 

opacity limits in § 111.111 and § 111. I J 3, as well as the general prohibition on nuisance 

found in§ 1 01.4. Temple-Inland suppons the proposed repeal of30 T.A.C. § 111.155. 

We appreciate the opportunity to submit comments on the proposed repeal 

of § I 11,155. If you have any questions, please do not hesitate to contact me at (836) 

829-1439. 

Very truly yours, 

')L\-0 

·\) T. Orynawk 
01-1Z-ZOOB 1Z:5Zpm From-oc 51Z473P'~~ T-057 P.OOl/001 F-Z68 

Texas Pipeline Association 

Via Telecopy at (512) 239-4808 

Ms. Joyce Spencer 

MC205 

Texas Register Team 

Office of Legal Services 

P.O. Box 13087 

Austin~ Texas 78711-3087 

Re: Project Rule Number 2005-013-111-EN 

January 12,2006 

Proposed TCEQ Repeal of§ 111.155 and Corresponding Revision to the State 

Implementation Plan 

Dear Ms. Spencer: 

8 

These comments are filed by the Texas Pipeline Association (TP A) on the above-styled 

rule which proposes to repeal 30 TEX. ADMIN. CODE § 111.155 from the regulations of the Texas 

Commission on Environmental Quality (TCEQ). The TP A consists of members who gather, 

transport, and process natural gas and liquids through intrastate pipelines in Texas. 

The TP A supports the TCEQ' s proposal to repeal § 111.155. Section 111.155 established 

a nuisance standard for total suspended particulate matter (TSP) that is now based on outdated 

science, is highly subjective and no longer useful in applying environmental standards 

concerning particulate matter (PM). We agree with TCEQ's assessment that the use of other 

currently existing too)s in the enforcement of PM NAAQS is preferable both as a public health 

standard and to provide more certain compliance standards to regulated industry. The TPA 

supports the proposed repeal in that it will reduce the need for modeling data that CutTently must 

be submitted when requesting an air permit and will reduce delays in permit issuance. 

This concludes our comments on the TCEQ' s repeal of repeal of § 111.15 5. We appreciate 

the opportunity to make these comments and we are available to answer any questions that you 

might have on our comments. 

Executive Director 

604 West 14th Street, Austin. Texas 78701 

phone: (512) 478·28/1 tax: (512) 473·8476 Email: rexaspipelineassociatlon@yanoo.com 
INDEX OF ORAL TESTIMONY 

December 15, 2005, Austin, Texas, Texas Commission on Environmental Quality 

No oral testimony was received pertaining to this proposal. 
Texas Commission on Environmental Quality 

Public Hearing Registration 

Rule Project No. 2005-013-111-EN 

Location: Austin-2:00p.m. Date: December 15, 2005 

Concerning: Oral and/or written comments on proposed revisions to 30 TAC Chapter 111, Control of Air 

Pollution from Visible Emissions and Particulate Matter; and corresponding revisions to the state implementation 

plan. 

Name Representing Presenting Oral Testimony? 

(Circle One) 

(Please Print) 

Vjt=vc /(-.f./'4//Cr~'/£ ;JtJ& Yes 6) 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM . 

To: 

Thru: 

From: 

Commissioners 

LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

David C. Schanbacher, P.E"(..) 

Chief Engineer 

Date: April 7, 2006 

Docket No.: 2005-1606-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter 

TSP Rule Evaluation 

Rule Project No. 2005-013-111-EN 

Reasons for the rule package: 

On July 28, 2004, the commission initiated rulemaking for §111.155 in response to a petition filed by 

Baker Botts L.L.P. The commission stated that rulemaking would include an evaluation of § 111.155, with 

stakeholder involvement, to determine if the current rule is adequate, needs to be amended, or needs to 

be repealed. TCEQ staff evaluated the basis underlying the ambient parti~ate matter (PM) standards· 

listed in §111.155 and reviewed the current PM science, history of PM national ambient air quality 

standards (NAAQS), and state approaches to addressing nuisance PM. Stakeholder corrunents received 

as part of a public meeting held on AprilS, 2005, were included in the staff evaluation of the rule. Based 

on the staffs evaluation and stakeholder input, staff recommends the repeal of § 111.155. 

• Under what authority are we adopting these changes? 

The repeal is authorized under Texas Health and Safety Code, §382. 017, concerning Rules, which 

authorizes the commission to adopt rules consistent with the policy and purposes of the Texas 

Clean Air Act. This repeal is also authorized under Texas Health and Safety Code, §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; §382.011, concerning General Powers and Duties, which authorizes the commission to 

control the quality of the state's air; §382.012, concerning State Air Control Plan, which 

authorizes the commission to prepare and develop a general, comprehensive plan for the proper 

control ofthe state's air; and §382.016, concerning Monitoring Requirement; Examination of 

Records, which authorizes the commission to prescribe reasonable requirements for measuring and 

monitoring the emissions of air contaminants. 

• Is this rulemaking required by federal rule or state statute? Which ones? 

No. 

• Are there any legal deadlines by which these rules must be proposed, adopted, or effective? 

No. 
Commissioners 

Page 2 

April 7, 2006 

Re: Docket No. 2005-1606-RUL 

• What issue(s) or problem(s) are we trying to solve? 

It is the TCEQ's stated philosophy to have current and necessary rules based on good science. 

The science underlying the basis of § 111.155 is largely unlmown due to the lack of documentation. 

However, the limited evidence that is. available points to professional judgment and policy playing 

a significant role in the derivation of the standards listed in the rule. In addition, the rule was 

intended to address nuisance PM rather than health concerns. The PM NAAQS address health 

issues of PM. In addition, the commission has effects screening levels (ESLs) that address the 

health concerns of specific PM constituents (e.g., metals, carbon compounds, silica). The size 

fraction that § 111.155 has historically addressed is total suspended particulate matter (TSP). 

Regulation of TSP was prominent at both the state and federal levels during, and hmnecliately 

following, the promulgation of §111.155. However, the majority of federal and state regulatory 

authorities have since replaced TSP ambient standards with PM standards of a smaller PM size 

(i.e., PM10, PM2.

5). These changes were dictated by advances in the science of PM that 

highlighted the importance of PM size fractions smaller than TSP. TSP has since been relegated 

to nuisance PM concerns. It is generally understood that determining nuisance is highly subjective 

and is dependent on the PM size, composition, and concentration, as well as . the tolerance of 

indi·viduals for PM, depending on the use of their property. This subjectivity prevents 

establishment of technically-defensible ambient standards to address nuisance PM. Tools and 

procedures already available to the commission, and consistent with other state environmental 

regulatory agencies, are used to address nuisance PM. 

Based on staff evaluation, as well as stakeholder input, staff recommends the repeal of § 111.155 

given that it is not based on good science nor is it current and necessary. Staff has determined that 

the TCEQ has sufficient tools and procedures currently available to address nuisance PM. 

Therefore, the repeal of §111.155 will not adversely affect the Texas State Implementation Plan 

(SIP) or prevent the agency from achieving its mission of protecting human and natural resources, 

in particular the goal of clean air. 

• Why is it important that we do this rule package? 

Rulemaking will remove air standards that the TCEQ cannot technically defend. In addition, this 

rule package will update the TCEQ's approach to PM regulation and make it consistent with 

federal and other state approaches. 

• Other important background or historical information. 

The State of Texas adopted-the provisions of §111.155 with an effective date of July 18, 1989. 

The provisions established net ground-level concentrations in ambient air for PM of 200 

micrograms per cubic meter (jJ.g/m3

) (averaged over any three consecutive hours) and 400 jJ.g/m3 

(averaged over any one-hour period). These concentrations were originally adopted in 1972 and 

then reviewed and re-adopted in 1989. The intent of § 111.155 is to address nuisance PM in the 

State of Texas. 

Scope of th~ rulemaking: 

On July.28, 2004, the commission initiated rulemaking for §11 J. .155 in response to a petition filed 

by Baker Botts L.L. P. The commission stated tl1at rulemaking would include an evaluation of 

§ 111.155, with stakeholder involvement, to determine if the current rule is adequate, needs to be 
Commissioners 

Page 3 

April 7, 2006 

Re: Docket No. 2005-1606-RUL 

amended, or needs to be repealed. TCEQ staff has completed their evaluation of the rule, with 

stakeholder input, and determined that §111.155 needs to be repealed. 

• Changes required by federal rule: 

None. 

• Changes required by state statute: 

None. 

• Staff recommendations that are not expressly required by federal rule or state statute: 

• Ambient PM standards listed in § 111.155 are not scientifically defensible; 

• TCEQ has adequate tools and procedures to address PM from a human health and welfare 

perspective; and 

• § 111.155 should be repealed. 

Impact on the regulated community: 

• Who will be affected? 

All businesses that must demonstrate compliance with § 111.155, particularly aggregate industries 

such as rock crushers, cement kilns, asphalt batch plants, etc. Keeping the current rule in place 

may unnecessarily burden the regulated community for those industries that have difficulty 

demonstrating compliance. Repealing the current rule would affect the regulated community's 

regulatory compliance burden regarding PM. 

• Does it create a group of affected persons who were not affected previously? How? 

No. 

• Will there be a fiscal impact? H so, estimate. 

No. 

Impact on the public: 

• Who will be affected? 

Repealing the rule should not affect the general public. This is based on staffs determination that 

the TCEQ has adequate tools and procedures in place to address nuisance PM from an air 

permitting and enforcement perSpective. However, repealing the rule could create the perception 

that the agency is relaxing air quality standards. 

• Does it create a group of affected persons who were not affected previously? How? 

No. 

• Will there be a fiscal impact? If so, estimate. 

No. 

Impact on agency programs: The Office of Compliance and Enforcement (Field Operations Division 

and Enforcement Division) and the Office of Permitting, Remediation, and Registration (Air Permits 

Division) have historically been the two program areas most reliant on § 111. 155. A review of current 

agency tools and procedures determined that the repeal of the rule will not adversely affect the ability of 

either program to address nuisance PM. 

Stakeholder meetings: 

• Have any stakeholder meetings been held? Yes, AprilS, 2005, in Austin. 

• With whom? General public invited (25 attendees) 

• What were the general sentiments? Oral and written comments generally either supported the 

repeal of §111.155 or retainment of the rule, 
Connni~sioners 

Page 4 

April 7, 20Cl6 

Re: Dot:ket No. 2005-1606-RUL 

• Wen any changes made in response to stakeholder concerns? Stakeholder comments were 

taken into consideration in the rule evaluation. 

Policy issues: 

e What policy issues are affected? N/ A 

at Are any policies that are not currently based ou rule being made into a rule? No. 

e What are the consequences if this rulemaking is not approved to go forward? 

The TCEQ will retain a rule that is not based on current science and is not scientifically defensible. 

In addition, the rule is not necessary for the agency to address PM. 

• Are there alternatives? No. 

Potentially controversial matters: Repealing the rule could create the perception that the agency is 

relaxing air quality standards, particularly in regard to aggregate industries such as rock crushers. 

Key points in adoption rulemaking schedule: 

• Texas Register proposal publication date: November 25, 2005 

• Anticipated effective date: May 18, 2006 

• Six-month Texas Register filing deadline: May 25, 2006 

Public comment: 

• Baker Botts L.L.P., Southern Crushed Concrete, Inc. (SCC), Temple-Inland Forest Products 

Corp. (Temple-Inland), Texas Pipeline Association (TPA), and The Association of Electric 

Companies of Texas (AECT) supported the proposed repeal of 30 TAC § 111.155. 

• City of Houston Bureau of Air Quality Control (BAQC), Environmental Defense, Harris 

County Public Health & Environmental Services Pollution Control & Environmental Health 

Division (HCPHESPCEHD), Houston Regional Group of the Sierra Club (HSC), and Lowerre 

& Frederick opposed the proposed repeal. 

• EPA cmmnented that 111.155 is currently not in the Texas SIP. 

• No comments were received at the public hearing on December 15, 2005. 

Significant changes from proposal: 

TCEQ's predecessor agency, the Texas Air Control Board (TACB), first adopted Rule 105.2 on 

January 26, 1972, by Board Order 72-2. In 1975, the agency switched to a ten-digit numbering 

system, and Rule 105.2 was renumbered as Rule 131.03.05.002. In October 1980, Rule 

131.03.05. 002 was renumbered as § 111.52 to become part of Chapter l.l1 of Title 31 of the Texas 

Administrative Code. Section 111.52 was repealed on July 4, 1989, along with the rest of Chapter 

111. An entirely new Chapter 111 along with §111.155, was adopted on July 4, 1989, in a concurrent 

action as the repeal of § 111.52. TACB submitted a SIP revision to EPA to remove Rule 105.2 from 

the SIP and replace it with §111..155, what is in place today, on August 21, 1989. EPA is currently 

reviewing a pending action related to the reorganization of Regulation I, Board Order 72-2, which 
Commissioners 

Page 5 

April 7, 2006 

Re: Docket No. 2005-1606-RUL 

includes a proposal to include § 111.155 to the Texas SIP. Since the commission has decided to repeal 

§111.155, the agency will ask EPA not to continue with the inclusion of §111.155 into the Texas SIP, 

and to continue with the removal of Rule 105.2 from the SIP. 

Agency contacts: 

Kathy Singleton, Rule Project Manager, 239-6098, Air Quality Planning and Implementation 

Division, Chief Engineer's Office 

Alicia Lee, Staff Attorney, 239-0133 

Jqyce Spencer, Texas Register Coordinator, 239-5017 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Brent Wade 

Office of General Counsel 

Kathy Singleton 

Joyce Spencer 

cc (without attachments): 

Alicia Lee, Staff Attorney 

Kerry Howard, Office Liaison 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the repeal of 

§111.155 without change as published in the November 25, 2005, issue of the Texas Register (30 

TexReg 7821). 

Since the original submission of § 111.155 as a revision to the state implementation plan (SIP) is still 

pending before United States Environmental Protection Agency (EPA), the commission requests that 

EPA remove from consideration the pending request for inclusion of § 111.155 as a revision to the SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL 

The Texas Air Control Board (TACB) first developed and adopted ambient air standards for particulate 

matter (PM) in 1967. These standards were described in Regulation I, Board Order 67-1. The 

impetus for the standards was the results from field sampling surveys conducted in several regions of 

the state that suggested that PM control was necessary. At the time, the sampling method typically 

used for ambient PM was high-volume sampling. High-volume samplers collected the PM size fraction 

generally referred to as total suspended particulate matter (TSP). TSP does not have a clearly defmed 

upper PM size cutoff, but is commonly recognized as PM that is 25 - 40 micrometers in diameter and 

smaller. It is important to note that in 1967 there were no national ambient air quality standards 

(NAAQS) for PM. 

In 1971, primary (human health-based) and secondary (welfare-based) NAAQS were promulgated for 

PM, with TSP serving as the PM indicator. Following the establishment of the PM NAAQS, the 

1 
TACB significantly revised the state ambient air standards for PM in 1972. The revised standards 

established net ground-level concentrations in ambient air for PM of 100, 200, and 400 micrograms 

per cubic meter (j.J.g/m3

) (averaged over any five-, three-, and one-hour periods). Though not 

explicitly stated, the PM indicator for the standards was TSP, given the existing sampling technology at 

that time. 

The 1972 Texas PM standards were reviewed and slightly modified in 1989, with the five-hour 

standard removed and the one- and three-hour standards readopted, resulting in the current PM 

standards listed in § 111.155. Section 111.155 establishes net ground~ level concentrations in ambient 

air for PM of 200 and 400 j.J.g/m3

, averaged over any three- and one-hour periods, respectively. The 

PM indicator for §111.155 effectively remained TSP. On the national level, the 1971 PM NAAQS 

were modified in 1987, with particulate matter ten micrometers or smaller in diameter (PM10) replacing 

TSP as the PM indicator and new primary and secondary NAAQS established. The rationale for 

replacing TSP with PM10 relates to the significant amount of scientific progress made since the 

promulgation on the 1971 PM NAAQS. This progress occurred in numerous facets of PM research, 

ranging from monitoring technology (sampling and analysis), atmospheric chemistry, emissions 

sources, and health effects. 

The PM NAAQS were revised again in 1997, with the retention of PM10 serving as an indicator for 

coarse PM, and the establishment of a new, additional PM indicator, particulate matter 2.5 

micrometers or smaller in diameter (PM2.

5). This new indicator was selected to address fine PM based 

on the emerging science that PM smaller than PM10 was more strongly associated with premature 

2 
mortality and severe morbidity. Current PM NAAQS (PM10 and PM2.

5 NAAQS established in 1997) 

are under review and may be revised again by EPA. 

The ground-level concentrations found in § 111.155 were originally included in the Texas SIP adopted 

in 1972 and in subsequent revisions adopted in 1973, 1974, 1975, and 1976 under predecessor rules, 

Regulation I and Rule 105.2. All areas of the state were required to comply with all sections of the 

prior rules by December 31, 1973. Subsequent SIP revisions in 1979 and 1980 required 

implementation of revised sections of Chapter 111 in individual areas not meeting the PM NAAQS. 

Following the PM NAAQS change from TSP to PM10, in 1987, new PM SIP revisions were adopted. 

PM10 SIP revisions were adopted in 1988, 1989, and 1991 that cited Chapter 111 as a control strategy 

for El Paso County, the one area in Texas not meeting the PM10 NAAQS. 

On May 14, 2004, Baker Botts L.L.P. (Baker Botts) submitted a petition for rulemaking to repeal 

§111.155. Baker Botts requested that the rule be repealed because the rule is inconsistent with the 

direction of modem air quality regulation, results in unnecessarily long delays in air permit issuance, 

imposes PM controls without evidence of nuisance conditions, and reflects a burdensome and 

unnecessary regulatory tool to address PM. On July 28, 2004, the commission initiated rulemaking for 

§ 111.155 in response to the petition filed by Baker Botts. The commission stated that rulemaking 

would include an evaluation of§ 111.155, with stakeholder involvement, to determine if the current 

rule is adequate, needs to be amended, or repealed. As part of this evaluation, a stakeholder meeting 

was held on April5, 2005, at commission headquarters in Austin, Texas, to receive formal stakeholder 

comments. 

3 
Section 111.155 is primarily used in the air permitting, field operations, and enforcement divisions to 

address nuisance PM. The technical details for establishing the specific net PM concentrations listed in 

§ 111.155 are not known. Little documentation exists that describes the rationale or the science used in 

selecting these concentrations. The background information that does exist comes from Dr. Herbert 

McKee, former TACB chairman, during the establishment of the 1967 and 1972 PM standards. Based 

on published literature he authored as well as his written comments to the commission, the 1972 PM 

standards were based primarily on the professional judgment of air quality regulators at the time. Dr. 

McKee emphasized that the 1972 PM standards were established to address nuisance PM, not health 

concerns. According to Dr. McKee, the TACB deferred to the PM NAAQS to address health issues. 

In terms of health effects of PM, research overwhelmingly supports respirable PM (PM that can enter 

the lungs, generally regarded as ten micrometers or smaller in diameter) as the primary causative agent 

of PM-related health effects, particularly premature mortality and severe morbidity. PM fractions 

larger than ten micrometers, which are often the dominant PM size fractions, on a per mass basis, 

collected in TSP samples, are poor indicators of potential health effects. Therefore, the current PM 

NAAQS using PM10 and PM2.

5 as indicators are better suited to address health concerns than standards 

based on TSP, such as § 111.155 or its predecessor, Rule 105 .2. Additionally, the commission has 

developed effects screening levels (ESLs) to address health and welfare concerns for specific air 

pollutants occurring as PM (e.g., arsenic, chromium, silica, carbon black). ESLs are used to evaluate 

air concentrations for air permits and ambient air monitoring data, as well as set remediation clean-up 

levels. ESLs, in addition to the PM NAAQS, provide a means to assess health concerns from ambient 

PM and ultimately a basis for taking regulatory action when deemed necessary. 

4 
The use of § 111.155 as a tool to address nuisance PM has historically occurred in the areas of 

enforcement, through the use of ambient air monitoring to determine net PM source contributions, and 

air permitting, generally with the use of air dispersion modeling. The PM standard is used 

infrequently as an enforcement tool for nuisance PM, due to the monitoring requirements to determine 

compliance. On the few occasions when monitoring is conducted, complexities such as accessibility of 

monitoring locations, weather, wind patterns, confounding PM sources (e.g., traffic on unpaved 

roads), facility operations, etc. can make meaningful sampling results difficult to obtain and interpret. 

Other enforcement tools available to address nuisance PM include, but are not limited to, tape lifts, still 

photographs, videotape, field observations by commission staff, the opacity limits described in 

§111.111 and §111.113, and the general nuisance rule in 30 TAC §101.4. In terms of air permitting, 

modeled ambient levels of TSP can be compared to the concentrations listed in § 111.155 to evaluate 

the potential for nuisance PM. In addition to comparing modeled TSP levels to the standards, the 

commission can incorporate preventative measures against nuisance PM such as best available control 

technology (BACT) and special permit conditions. The inherent complexities and uncertainties of 

modeling emissions from PM sources that generate TSP have raised concern about the accuracy of 

these modeled estimates. Inaccurate modeled estimates may result in imposing PM controls without 

evidence of nuisance conditions (aside from modeling results) and can delay issuance of air permits. 

BACT and special permit conditions may serve as more reliable preventative tools for air permitting to 

address nuisance PM without being unduly burdensome to the regulated community. 

To obtain a perspective of other state approaches to PM, specifically nuisance PM, the commission 

surveyed all 50 states. Based on this survey, the commission determined that §111.155 is generally 

inconsistent with approaches used by the vast majority of states, with 40 out of 50 states not having 

5 
ambient standards for nuisance PM. In lieu of ambient air standards, the states generally use other 

rules and procedures such as opacity standards, best management practices to address nuisance PM 

(i.e., BACT), and comparison of modeled PM concentrations to the PM NAAQS. Many of these rules 

and procedures are currently available and used by the commission. As discussed previously, 

examples of tools and procedures used by the commission include BACT, special permit conditions, 

the opacity limits in § 111.113 and § 111.111, and the general nuisance rule in § 101.4. 

As previously stated, the science underlying the basis of §111.155 and its predecessor, Rule 105.2, is 

largely unknown due to the lack of documentation. However, the evidence that is available points to 

professional judgment and policy playing a significant role in the derivation of the standards listed in 

the rule. In addition, the rule was intended to address nuisance PM rather than health concerns. The 

PM NAAQS addresses health issues related to PM. In addition, the commission has ESLs that address 

the health concerns of specific PM constituents (e.g., metals, carbon compounds, silica). The size 

fraction that § 111.155 has historically addressed is TSP. Regulation of TSP was prominent at both the 

state and federal levels during, and immediately following, the promulgation of §111.155. However, 

the federal and majority of state regulatory authorities have since replaced TSP ambient standards with 

PM standards of a smaller PM size (i.e., PM10, PM2•

5). These changes were dictated by advances in 

the science of PM that highlighted the importance of PM size fractions smaller than TSP. TSP has 

since been relegated to nuisance PM concerns. It is generally understood that determining nuisance is 

highly subjective and is dependent on the PM size, composition, and concentration, as well as the 

tolerance of individuals for PM depending on the use of their property. This subjectivity prevents the 

establishment of technically-defensible ambient standards to address nuisance PM. Tools and 

6 
procedures already available to the commission, and consistent with other state environmental 

regulatory agencies, are used to address nuisance PM. 

Repealing §111.155 will not weaken the Texas SIP because EPA has not taken final action to approve 

it into the SIP. EPA is currently reviewing a pending action related to the reorganization of Regulation 

I, Board Order 67-1, which includes a proposal to include §111.155 in the Texas SIP. The 

commission requests that EPA remove from consideration in the pending request § 111.155 for 

inclusion into the SIP. As discussed previously, there are other rules in place that the commission will 

still implement to assure compliance with the PM NAAQS. 

Based on the commission's evaluation, as well as stakeholder input, the commission adopts the repeal 

of §111.155 given that it is not current or necessary based on good science. The commission 

determined that it has sufficient tools and procedures currently available to address nuisance PM. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIR ACT, SECTION 

110(1) 

Issue 

The commission provides the following information to clarify why the repeal of § 111.155, Control of 

Air Pollution from Visible Emissions and Particulate Matter, (previously Rule 105.2) from TAC and 

the Texas SIP will not negatively impact the attainment status of the state's PM attainment areas. 

The requirement for reasonable notice and public hearing is satisfied through the hearing held on 

December 15, 2005, and the public comment period, which was held from November 25, 2005, to 

7 
January 13, 2006. EPA also issued draft guidance on June 8, 2005, "Demonstrating noninterference 

Under Section 110(1) of the Clean Air Act When Revising a State Implementation Plan." The guidance 

states (page 6) that " ... areas have two options available to demonstrate noninterference for the 

affected pollutant(s)." This document provides detail of the identified existing measures in the rule 

preamble to show compliance with option (1) of EPA's guidance: Substitution of one measure by 

another with equivalent or greater emissions reduction/air quality benefits. 

Background 

TCEQ's predecessor agency, the Texas Air Control Board (TACB), adopted Rule 105.2 on January 

26, 1972, by Board Order 72-2. On May 31, 1972, EPA approved Rule 105.2 with the original Texas 

SIP. In 1975, the agency switched to a ten-digit numbering system, and Rule 105.2 was renumbered 

as Rule 131.03.05.002. In October 1980, Rule 131.03.05.002 was renumbered as §111.52 to become 

part of Chapter 111 of 31 TAC. Section 111.52 was repealed on July 4, 1989, along with the rest of 

Chapter 111. An entirely new Chapter 111 along with §111.155, was adopted on July 4, 1989, in a 

concurrent action as the repeal of §111.52. On August 21, 1989, TACB submitted a SIP revision to 

EPA to remove Rule 105.2 from the SIP and replace it with §111.155, which is in place today. EPA 

is currently reviewing a pending action related to the reorganization of Regulation I, Board Order 72-2, 

which includes a proposal to include §111.155 in the Texas SIP. Since the commission is considering 

the repeal of § 111.155, the agency is asking EPA not to continue with the inclusion of § 111.155 into 

the Texas SIP, and to continue with the removal of Rule 105.2 from the SIP. 

TSP in the 1970s was replaced by PM standards in the 1980s. In terms of health and welfare effects of 

PM, research overwhelmingly supports respirable PM (PM that can enter the lungs, generally regarded 

8 
as ten micrometers or smaller in diameter) as the primary causative agent of PM-related health effects. 

The primary (health) and secondary (welfare) standards for PM are identical. Therefore, the current 

PM NAAQS using PM10 and PM2.

5 as indicators are better suited to address health concerns than 

standards based on general PM, such as §111.155 or its predecessor, Rule 105.2. The state does not 

rely on § 111.155 in attainment demonstration SIPs as a control strategy. For the one PM 

nonattainment area, there are specific rules in place, such as §§111.111(c)(1), 111.141, 111.143, 

111.145, 111.147, and 111.149. 

In 2004, TCEQ received a petition to repeal §111.155 from the TAC. The regulatory history does not 

provide any explanation for how the limits in § 111.155 were established. It is clear, however, that the 

limits were intended to address nuisance conditions, not health effects. The TACB's TSP standard was 

established to eliminate nuisance conditions while the PM10 standard was designed to protect health. 

Since the promulgation of the original rule, the federal national ambient air quality standards for total 

suspended particulates has been repealed, in favor of the more meaningful particulate matter (PM10) 

standard. Section 111.155 is an artifact that is no longer consistent with the direction in which modem 

air quality regulation is headed, which is based on science. There are sufficient tools and procedures 

described in the following section that are currently available to address nuisance PM, in addition to 

health and welfare. 

Description of current regulations and requirements 

Other rules such as §§101.4, 101.20, 101.21, 111.111, 111.113, 111.141, 111.143, 111.145, 

111.14 7, and 111.149 make the general PM rule superfluous and redundant. The current rule has been 

9 
one of the tools used in the permitting process to help determine an appropriate ambient concentration, 

but not to establish control strategies that protect the NAAQS. The other rules help establish the limits 

that ensure the NAAQS will not be violated. The same rules and permit conditions contained in the 

permit are relied upon by the field operations staff in determining compliance with the standards. 

a) 30 TAC §101.21, The National Primary and Secondary Air Quality Standards 

1) The TSP standard established in the 1970s was based on research done in the 1960s. At that point 

in time it wasn't known what type of particulate matter actually caused health effects. PM was based 

on what could be measured at the time, which was TSP, specifically, particles 50 microns and less. 

Since that time, it was discovered that the smaller particles actually cause negative health effects. 

Since then, the focus has been primarily on PM10, particles 10 microns and smaller because those are 

the particles that can actually pass the upper respiratory system into the lungs. The PM10 NAAQS 

regulations were passed to regulate this particle size fraction. Additional scientific research prompted 

EPA to further revise the particulate matter standard to focus on particles less than 2.5 f.J.m in diameter, 

(PM2.

5) in addition to the PM10 standard to provide the most effective protection from potential adverse 

health effects. 

2) There are mechanisms in the agency's permitting program to address particulate matter emissions. 

Where the potential exists for emissions of particulate matter for a point source, the permit conditions 

will require BACT for the control of the emissions. Furthermore, there is a health effects review 

conducted, which will review the expected emissions against the NAAQS for PM10 and the specific 

compounds, which make up the particulate matter, will be reviewed to ensure that off-site receptors are 

10 
not adversely affected. To limit the potential for a nuisance condition from particulate matter, permit 

language does require continuous compliance with all rules and regulations passed by the TCEQ. This 

includes the agency's rules prohibiting nuisance conditions and excess visible emissions. Best 

Management Practices are also placed into the permits, required as part of a Permit by Rule, and also 

required in the agency's Standard Permits. These practices could include watering of roads within the 

plant site, covering or watering of stock piles, limiting the size and location of the piles, and covering 

and/or watering of transfer point on conveyor belts, all which will help in the control of fugitive 

particulate matter emissions. Finally, due to the differing types of particulate matter and the properties 

that each one has, it is not technically feasible to determine a nuisance condition based on a single TSP 

standard. For example, when determining if a nuisance condition has occurred, a pound of carbon 

black, which has a greater rate of coverage, is not the same as a pound of limestone dust. 

b) Enforcement of the current rule for compliance purposes consisted of 17 notices of violation and 

five notices of enforcement issued from 1998- 2005. 

One explanation for the seemingly low use in enforcement today is that other controls, such as special 

permit conditions and Best Management Practices, now serve the same purpose. 

c) In addition to specific permitting and compliance policies, the following rules are in place: 

1) 30 TAC §101.4, General Nuisance Rule, 40 Code of Federal Regulations (CPR) §52.2299(c)(7) 

Provides for case by case determination of whether an air contaminant release is a nuisance; 

11 
2) 30 TAC §111.111, Requirements for Specified Sources, 40 CFR §52.2299(c)(94) 

Restricts visible emissions and opacity levels for stationary sources and, in some instances, requires the 

use of continuous emissions monitoring; 

3) 30 TAC §111.113, Alternative Opacity Limitations, 40 CFR §52.2299(c)(94) 

Requires alternative opacity limitation requests to go through the public hearing process and the 

applicant must submit a "preponderance of evidence" to show no exceedance will occur; 

4) 30 TAC §101.20, Compliance with Environmental Protection Agency Standards, 23 CFR 

§52.2299(c)(10) 

Requires applicants to comply with all applicable federal permitting requirements; 

5) 30 TAC § 111.141, Geographic Areas of Application and Date of Compliance, 40 CFR 

§52.2299(c)(79); 30 TAC §111.143, Materials Handling, 40 CFR §52.2299(c)(79); 30 TAC §111.145, 

Construction and Demolition, 40 CFR §2299(c)(79); 30 TAC §111.147, Roads, Streets, and Alleys, 

40 CFR §52.2299(c)(79); 30 TAC §111.149, Parking Lots, 40 CFR §52.2299(c)(79). 

These rules are specific to activities such as materials handling; construction and demolition; roads, 

streets, and alleys; and parking lots. 

d) Regulations specific to El Paso, the state's only nonattainment area for PM. 

12 
1) § 111.111(c)(1) - includes operating restrictions for solid fuel heating devices during stagnation 

periods. 

2) §§111.141, 111.143, 111.145, 111.147, and 111.149- prescribe certain types of controls to be 

applied to the identified categories. 

All of the rules identified previously are approved as part of the Texas SIP. 

Conclusion 

The commission determined that there are sufficient rules and procedures in place to assure compliance 

with the PM NAAQS and to address nuisance PM. 

SECTION DISCUSSION 

Section 111.155 establishes one-hour and three-hour ground level concentration levels for particulate 

matter. The commission adopts the repeal of § 111.155. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and determined that the adopted repeal does not meet the 

definition of a "major environmental rule" as defined in the statute. Therefore, Texas Government 

Code, §2001.0225 does not apply to this rulemaking. "Major environmental rule" is defined in Texas 

Government Code, §2001.0225(g)(3), as a rule, the specific intent of which, is to protect the 

environment or reduce risks to human health from environmental exposure and that may adversely 

13 
affect in a material way the economy, productivity, competition, jobs, the environment, or the public 

health and safety of the state or a sector of the state. The specific purpose of the adopted repeal is to 

delete a rule that is no longer necessary, effective, current, or based on good science, as described in 

the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL 

section of this preamble. This adopted repeal will not have an adverse material impact because the 

commission determined that the currently existing NAAQS for PM adequately protects human health 

and welfare, and the remaining prohibition against nuisance conditions remains in effect. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated this adopted rulemaking and performed a preliminary assessment of whether 

this action would constitute a taking under Texas Government Code, Chapter 2007. Promulgation and 

enforcement of this proposed repeal would be neither a statutory nor a constitutional taking of private 

real property. The adopted repeal of § 111.155 does not affect private property in a manner that 

restricts or limits an owner's right to the property that would otherwise exist in the absence of a 

government action. Consequently, this adoption does not meet the definition of a taking under Texas 

Government Code, §2007.002(5). This rulemaking is adopted to repeal §111.155, since the 

commission determined that the currently existing NAAQS for PM adequately protects human health 

and welfare, and the remaining prohibition against nuisance conditions remains in effect. Therefore, 

this adopted repeal will not constitute a taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates to an action or actions subject to the 

Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, 

14 
as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC 

Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As 

required by §281.45(a)(3), Actions Subject to Consistency with the Goals and Policies of the Texas 

Coastal Management Program (CMP), and 31 TAC §505.11(b)(2), relating to Actions and Rules 

Subject to the Coastal Management Program, commission rules governing air pollutant emissions must 

be consistent with the applicable goals and policies of the CMP. The commission reviewed this action 

for consistency with the CMP goals and policies in accordance with the rules of the Coastal 

Coordination Council, and determined that the action is consistent with the applicable CMP goals and 

policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and 

enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 

TAC §501.12(1)). No new sources of air contaminants will be authorized and the proposed revisions 

will maintain the same level of emissions control as the existing rules. The CMP policy applicable to 

this rulemaking action is the policy that commission rules comply with federal regulations in 40 Code 

of Federal Regulations to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). 

This rulemaking action complies with 40 Code of Federal Regulations Part 51, Requirements for 

Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31 TAC 

§505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and 

policies. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Because §111.155 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits 

Program, owners or operators subject to the Federal Operating Permit Program must, consistent with 

15 
the revision process in Chapter 122, revise their operating permit to delete requirements relating to 

§111.155. 

PUBLIC COMMENT 

A public hearing for this rulemaking was held on December 15, 2005, in Austin, and the comment 

period closed on January 13, 2006. The commission received comments from Baker Botts L.L.P., 

Southern Crushed Concrete, Inc. (SCC), Temple-Inland Forest Products Corp. (Temple-Inland), Texas 

Pipeline Association (TPA), The Association of Electric Companies of Texas (AECT), City of 

Houston Bureau of Air Quality Control (BAQC), Environmental Defense, Harris County Public Health 

& Environmental Services Pollution Control & Environmental Health Division (HCPHESPCEHD), 

Houston Regional Group of the Sierra Club (HSC), Lowerre & Frederick, and the U.S. Environmental 

Protection Agency (EPA). 

RESPONSE TO COMMENTS 

Baker Botts L.L.P., Southern Crushed Concrete, Inc. (SCC), Temple-Inland Forest Products Corp. 

(Temple-Inland), Texas Pipeline Association (TPA), and The Association of Electric Companies of 

Texas (AECT) supported the proposed repeal of 30 TAC §111.155. 

The commission appreciates this support. 

BAQC and HCPHESPCEHD commented on the key role of §111.155 in predicting nuisance impacts 

of particulate matter (PM) during the permitting process and believe that other available enforcement 

tools are inadequate to assess potential PM nuisance. Additionally, these groups do not believe that the 

16 
current rule is overly burdensome on the regulated community. Environmental Defense supported 

these comments. 

The commission disagrees with the comment because some significant sources of particulate 

matter, such as roads, are difficult, if not impossible, to accurately model during the permitting 

process. These emissions are hard to accurately quantify through emission factors and the 

sources are hard to accurately characterize. Consequently, §111.155 does not accurately predict 

potential nuisance impacts. While the agency agrees that the modeling process itself is not 

burdensome to the regulated community, the inability to adequately model some sources does 

present an unnecessary burden on the regulated community to comply with §111.155. Instead of 

quantifying these emissions, permit provisions, such as road watering, are added to reduce and 

control these emissions. In addition, opacity limits set by §111.111 and §111.113 and the general 

nuisance rule in §101.4 are utilized and result in issuance of Notices of Violations. The agency 

therefore asserts that these enforcement tools, in addition to secondary PM10 and PM2•

5 standards 

required by the National Ambient Air Quality Standards (NAAQS), are adequate to address PM 

nuisance concerns. 

Environmental Defense further provided scientific documentation of adverse health effects from shortterm exposure to PM and commented that §111.155 provides protection against short-term exposures 

to respirable fractions of PM that the 24-hour and annual PM NAAQS do not. HSC is also concerned 

that TSP contains a range of particles that can cause welfare and health effects. In addition, one of the 

provided studies suggested that particle composition may differentially affect toxicity. 

17 
The agency agrees that TSP contains a fraction of respirable PM less than 10 IJ.m in diameter. 

However, as Environmental Defense mentioned, the exact proportion of the respirable fraction 

varies from source to source. More importantly, there is no scientific basis for the established 

one-hour value of 400 j.lg/m3 and three-hour value of 200 j.lg/m3 and no evidence that these values 

provide health protection. In addition, the net measurement used to determine these values can 

result in underestimation of actual particle concentrations. For example, if concentrations both 

upwind and downwind of a facility are high, the net concentration may be well below the one- or 

three-hour TSP values but may not be protective of health and/or nuisance conditions. 

Therefore, the agency disagrees that §111.155 provides short-term health protection not afforded 

by the PM NAAQS. 

Regarding the toxicity of individual particle components, the agency agrees that the toxicity of 

PM can be influenced by the particle composition. Therefore, Effects Screening Levels (ESLs) 

have been established for particles, such as metals. These ESLs are used during the permitting 

and enforcement processes to assess potential adverse health effects and provide health protection 

not afforded by §111.155 or its predecessor, Rule 105.2. 

HSC commented that TSP High-Volume Air Sampling is simple and straightforward to perform and 

more scientifically precise than field operations. 

The agency disagrees with this comment, due to the difficulty to access sample collection areas 

precisely upwind and downwind of a facility and potential underestimation of the net 

measurement mentioned previously. It is possible that conditions clearly presenting a nuisance to 

18 
field operations personnel may not violate the net standard. Furthermore, as stated previously, 

no documentation exists for a scientific basis for the levels set by §111.155 or its predecessor, 

Rule 105.2. While sample analysis may be performed quickly, sample collection is often 

restricted by road access and obstructions at the property line. For these reasons, the agency 

does not agree that High-Volume Air Sampling is straightforward and more scientifically precise 

than field operations. 

HSC also commented that use of the term "ambient air" is inappropriate in describing property-line 

samples. 

The agency disagrees with this comment. Section 101.1(4) defmes "ambient air" as "That portion 

of the atmosphere, external to buildings, to which the general public has access." The property 

line includes an area outside of the company's property and an area where the general public 

could potentially have legal access. The term "source" is also defined in §101.1 as: "(97) SourceA point of origin of air contaminants, whether privately or publicly owned or operated •••• " 

Therefore, under commission defmitions the property line of a site would not be considered a 

source since it is not the point of origin of an air contaminant. 

HSC recommended the addition of standards for particulate matter 10 IJ.m and 2.5 IJ.m in diameter. 

HSC also commented that information on pollutants other than nuisance dust can be gained from 

property-line TSP monitoring. 

19 
The agency agrees that particles 10 IJ.m (PM11J and 2.5 IJ.m (PM2•

5) in diameter should be 

monitored. Section 101.21 allows primary and secondary national ambient air quality standards 

to be enforced throughout all parts of Texas. This provision allows fence-line monitoring of PM10 

and PM2.

5 that is more stringent than net property line measurements. In addition, speciation of 

fence-line PM10 can provide important information on respirable air pollutants. 

Lowerre & Frederick commented that during the 1989 amendment process the agency stated that "the 

standards have proven to be effective enforcement tools during the 15 years they have been used." 

Lowerre & Frederick then referenced three specific enforcement cases using § 111. 155. In addition, 

the commenters noted the previous agency statement that "Removal of the ground level standards 

would leave no particulate controls in place, which would aggravate nuisance conditions." Finally, 

Lowerre and Frederick commented that the property line standard provides a quantitative measure for 

anticipating nuisance conditions. 

Although this statement was applicable at the time, the agency disagrees that the rule continues to 

be an effective enforcement tool today. Between 1998 and 2005, property line monitoring for 

total suspended particles occurred 45 times. Of these, only 11 Notices of Violation and five 

Notices of Enforcement were issued to a total of nine separate entities. The reason this rule is 

rarely used in enforcement today is that controls, such as special permit conditions requiring Best 

Management Practices, now serve the same purpose. Enforcement of these permit conditions, 

including requirements to water roads and facilities, eliminates the need for TSP modeling and 

monitoring while preventing nuisance conditions. Therefore, the agency disagrees that the repeal 

of §111.155 would leave no particulate controls in place or would aggravate nuisance conditions. 

20 
Finally, although the property line standard does provide a numerical value, the net 

measurement may not provide evidence of nuisance conditions, and the standards against which 

these values are compared are not scientifically based. 

EPA commented that §111.155 is currently not in the Texas SIP. 

The commission's predecessor agency, the Texas Air Control Board, submitted a SIP revision to 

replace Rule 105.2 with §111.155 on August 21, 1989. EPA is currently reviewing a pending 

action related to the reorganization of Regulation I, Board Order 67-1, which includes a proposal 

to include §111.155 in the Texas SIP. The commission requests that EPA remove §111.155 from 

consideration in the pending request at EPA for inclusion into the SIP. 

21 
STAFF 

RECOMMENDATIONS 
CHAPTER 111: CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS 

AND PARTICULATE MATTER 

SUBCHAPTER A: VISIBLE EMISSIONS AND PARTICULATE MATTER 

DIVISION 5: EMISSIONS LIMITS ON NONAGRICULTURAL PROCESSES 

[§111.155] 

STATUTORY AUTHORITY 

The repeal is adopted under Texas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, 

concerning General Policy, which authorize the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; and under Texas Health and Safety Code (THSC), §382.017, 

concerning Rules, which authorizes the commission to adopt rules consistent with the policy and 

purposes of the Texas Clean Air Act. The repeal is also adopted under THSC, §382.002, concerning 

Policy and Purpose, which establishes the commission purpose to safeguard the state air resources, 

consistent with the protection of public health, general welfare, and physical property; THSC, 

§382.011, concerning General Powers and Duties, which authorizes the commission to control the 

quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes 

the commission to prepare and develop a general, comprehensive plan for the control of the state's air. 

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, 382.016, and 382.017. 

§111.155. Ground Level Concentrations. 
TEXAS COMMISSION ON ENVIRONM~~~t QU.ALlt:i I he.-eby certilY m:t this L; .~ ~nk emu correct copy at a 

Texas Commiss1on on Environmental Quality document 

which is filed in the permansn! records of the Commission. 

Given un my nand and :1e seal of office on 

JUN 0 6 2006 

La ' ' e~~~' Oft!llf C:lefl\ 

ORDER ADOPTING REPEALED RDI9~ion on Environmental Quality 

REVISION TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2005-1606-RUL 

On May 17, 2006, the Texas Commission on Environmental Quality (Commission), during a 

public meeting, considered adoption of the repeal of § 111.155. The Commission adopts this repeal, in 

Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, Visible Emissions 

and Particulate Matter, and a corresponding request to remove from EPA consideration a currently 

pending request for the inclusion of30 TAC § 111.155 in the state implementation plan (SIP). Under Tex. 

Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the 

authority to control the quality of the state's air and to issue orders consistent with the policies and 

purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed repeal 

was published for comment in the November 25, 2005 issue of the Texas Register (30 TexReg 7821). 

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

2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations § 51.102 and after proper 

notice, the Commission conducted a public hearing to consider the proposed repeal and request to remove 

30 TAC § 111.155 from consideration as a SIP revision. Proper notice included prominent advertisement 

in the areas affected at least 30 days prior to the date of the hearing. A public hearing was held in Austin, 

Texas on December 15, 2005. 

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

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. 

The public was invited to submit data, views, and recommendations on the proposed repeal and SIP 

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

hearing, copies of the proposed repeal and request to remove 30 TAC § 111.155 from consideration as 

a SIP revision 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 repeal and request 

to remove 30 TAC § 111.155 from consideration as a SIP revision 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 the proposed repeal and 

request to remove 30 TAC § 111.155 from consideration as a SIP revision and their position concerning 

the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the proposed repeal and request 

to remove 30 TAC § 111.155 from consideration as a revision to the SIP incorporated by reference to this 

Order are hereby adopted. The Commission further authorizes staff to make any non-substantive revisions 

to the rule necessary to comply with Texas Register requirements. The repealed rule and the preamble to 
the repealed rule and the request to remove 30 T A C § 111.155 from consideration as a revision to the SIP 

are incorporated by reference in this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted repeal and request to remove 

30 TAC § 111.155 from consideration as a revision to the SIP, to the Regional Administrator of EPA 

pursuant to the Federal Clean Air Act, § 110, codified at 42 U.S. Code Ann. §§ 7410 - 7671q, as 

amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Tex. Gov't Code, § 2001.033 (Vernon 2000 & Vernon Supp. 2005). 

If any portion of this 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 of the remaining portions. 

Date issued: JUN Q 5 2006 . TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

~W.vJkdv Kathleen Hartnett White, Chairman 
• • • 

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 5. EMISSIONS LIMITS ON 

NONAGRICULTURAL PROCESSES 

30 TAC §111.155 

The Texas Commission on Environmental Quality (TCEQ or 

commission) adopts the repeal of §111.155 without change 

as published in the November 25, 2005, issue of the Texas 

Register (30 TexReg 7821 ). 

Since the original submission of § 111.155 as a revision to the 

state implementation plan (SIP) is still pending before United 

States Environmental Protection Agency (EPA), the commission 

requests that EPA remove from consideration the pending request for inclusion of §111.155 as a revision to the SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED REPEAL 

The Texas Air Control Board (TACB) first developed and adopted 

ambient air standards for particulate matter (PM) in 1967. These 

standards were described in Regulation I, Board Order 67-1. 

The impetus for the standards was the results from field sampling surveys conducted in several regions of the state that suggested that PM control was necessary. At the time, the sampling 

method typically used for ambient PM was high-volume sampling. High-volume samplers collected the PM size fraction generally referred to as total suspended particulate matter (TSP). 

TSP does not have a clearly defined upper PM size cutoff, but 

is commonly recognized as PM that is 25 - 40 micrometers in 

diameter and smaller. It is important to note that in 1967 there 

were no national ambient air quality standards (NMQS) for PM. 

In 1971, primary (human health-based) and secondary (welfarebased) NMQS were promulgated for PM, with TSP serving as 

the PM indicator. Following the establishment of the PM NMQS, 

the TACB significantly revised the state ambient air standards for 

PM in 1972. The revised standards established net ground-level 

concentrations in ambient air for PM of 1 00, 200, and 400 micrograms per cubic meter (~Jg/m ) (averaged over any five-, three-, 

and one-hour periods). Though not explicitly stated, the PM indicator for the standards was TSP, given the existing sampling 

technology at that time. 

The 1972 Texas PM standards were reviewed and slightly modified in 1989, with the five-hour standard removed and the oneand three-hour standards readopted, resulting in the current PM 

standards listed in § 111.155. Section 111.155 establishes net 

ground-level concentrations in ambient air for PM of 200 and 

400 ~Jg/m , averaged over any three- and one- hour periods, respectively. The PM indicator for § 111.155 effectively remained 

TSP. On the national level, the 1971 PM NAAQS were modifled in 1987, with particulate matter ten micrometers or smaller 

in diameter (PM10) replacing TSP as the PM indicator and new 

primary and secondary NAAQS established. The rationale for 

replacing TSP with PM,. relates to the significant amount of scientific progress made since the promulgation on the 1971 PM 

NMQS. This progress occurred in numerous facets of PM research, ranging from monitoring technology (sampling and analysis), atmospheric chemistry, emissions sources, and health effects. 

The PM NAAQS were revised again in 1997, with the retention 

of PM,. serving as an indicator for coarse PM, and the establishment of a new, additional PM indicator, particulate matter 2.5 micrometers or smaller in diameter (PM._,). This new indicator was 

selected to address fine PM based on the emerging science that 

PM smaller than PM,. was more strongly associated with premature mortality and severe morbidity. Current PM NAAQS (PM 

and PM ... NAAQS established in 1997) are under review and may 

be revised again by EPA. 

The ground-level concentrations found in §111.155 were originally included in the Texas SIP adopted in 1972 and in subsequent revisions adopted in 1973, 1974, 1975, and 1976 under 

predecessor rules, Regulation I and Rule 105.2. All areas of 

the state were required to comply with all sections of the prior 

rules by December 31, 1973. Subsequent SIP revisions in 1979 

and 1980 required implementation of revised sections of Chapter 111 in individual areas not meeting the PM NMQS. Following the PM NMQS change from TSP to PM , in 1987, new PM 

SIP revisions were adopted. PM,. SIP revisi~~s were adopted in 

1988, 1989, and 1991 that cited Chapter 111 as a control strategy for El Paso County, the one area in Texas not meeting the 

PM,.NMQS. 

On May 14, 2004, Baker Botts L.L.P. (Baker Botts) submitted 

a petition for rulemaking to repeal § 111.155. Baker Botts requested that the rule be repealed because the rule is inconsistent with the direction of modem air quality regulation, results in 

unnecessarily long delays in air permit issuance, imposes PM 

controls without evidence of nuisance conditions, and reflects a 

burdensome and unnecessary regulatory tool to address PM. On 

July 28, 2004, the commission initiated rulemaking for § 111.155 

in response to the petition filed by Baker Botts. The commission 

stated that rulemaking would include an evaluation of §111.155, 

with stakeholder involvement, to determine if the current rule is 

adequate, needs to be amended, or repealed. As part of this 

evaluation, a stakeholder meeting was held on April 5, 2005, 

at commission headquarters in Austin, Texas, to receive formal 

stakeholder comments. 

Section 111.155 is primarily used in the air permitting, field operations, and enforcement divisions to address nuisance PM. The 

technical details for establishing the specific net PM concentrations listed in §111.155 are not known. Little documentation exists that describes the rationale or the science used in selecting these concentrations. The background information that does 

exist comes from Dr. Herbert McKee, former TACB chairman, 

during the establishment of the 1967 and 1972 PM standards. 

Based on published literature he authored as well as his written comments to the commission, the 1972 PM standards were 

based primarily on the professional judgment of air quality regulators at the time. Dr. McKee emphasized that the 1972 PM 

standards were established to address nuisance PM, not health 

concerns. According to Dr. McKee, the TACB deferred to the 

PM NMOS to address health issues. 

ADOPTED RULES June 2, 2006 31 TexReg 4651 
In terms of health effects of PM, research overwhelmingly supports respirable PM (PM that can enter the lungs, generally regarded as ten micrometers or smaller in diameter) as the primary 

causative agent of PM-related health effects, particularly premature mortality and severe morbidity. PM fractions larger than ten 

micrometers, which are often the dominant PM size fractions, on 

a per mass basis, collected in TSP samples, are poor indicators 

of potential health effects. Therefore, the current PM NAAQS 

using PM,. and PM, .• as indicators are better suited to address 

health concerns than standards based on TSP, such as§ 111.155 

or its predecessor, Rule 105.2. Additionally, the commission has 

developed effects screening levels (ESLs) to address health and 

welfare concerns for specific air pollutants occurring as PM (e.g., 

arsenic, chromium, silica, carbon black). ESLs are used to evaluate air concentrations for air permits and ambient air monitoring data, as well as set remediation clean-up levels. ESLs, in 

addition to the PM NAAQS, provide a means to assess health 

concerns from ambient PM and ultimately a basis for taking regulatory action when deemed necessary. 

The use of § 111.155 as a tool to address nuisance PM has historically occurred in the areas of enforcement, through the use 

of ambient air monitoring to determine net PM source contributions, and air permitting, generally with the use of air dispersion modeling. The PM standard is used infrequently as an enforcement tool for nuisance PM, due to the monitoring requirements to determine compliance. On the few occasions when 

monitoring is conducted, complexities such as accessibility of 

monitoring locations, weather, wind patterns, confounding PM 

sources (e.g., traffic on unpaved roads), facility operations, etc. 

can make meaningful sampling results difficult to obtain and interpret. Other enforcement tools available to address nuisance 

PM include, but are not limited to, tape lifts, still photographs, 

videotape, field observations by commission staff, the opacity 

limits described in §111.111 and §111.113, and the general nuisance rule in 30 TAG §101.4. In terms of air permitting, modeled 

ambient levels of TSP can be compared to the concentrations 

listed in §111.155 to evaluate the potential for nuisance PM. In 

addition to comparing modeled TSP levels to the standards, the 

commission can incorporate preventative measures against nuisance PM such as best available control technology (BACT) and 

special permit conditions. The inherent complexities and uncertainties of modeling emissions from PM sources that generate 

TSP have raised concern about the accuracy of these modeled 

estimates. Inaccurate modeled estimates may result in imposing 

PM controls without evidence of nuisance conditions (aside from 

modeling results) and can delay issuance of air permits. BACT 

and special permit conditions may serve as more reliable preventative tools for air permitting to address nuisance PM without 

being unduly burdensome to the regulated community. 

To obtain a perspective of other state approaches to PM, specifically nuisance PM, the commission surveyed all 50 states. 

Based on this survey, the commission determined that §111.155 

is generally inconsistent with approaches used by the vast 

majority of states, with 40 out of 50 states not having ambient 

standards for nuisance PM. In lieu of ambient air standards, the 

states generally use other rules and procedures such as opacity 

standards, best management practices to address nuisance PM 

(i.e., BACT), and comparison of modeled PM concentrations 

to the PM NAAQS. Many of these rules and procedures are 

currently available and used by the commission. As discussed 

previously, examples of tools and procedures used by the commission include BACT, special permit conditions, the opacity 

31 TexReg 4652 June 2, 2006 Texas Register 

limits in §111.113 and §111.111, and the general nuisance rule 

in§101.4. 

As previously stated, the science underlying the basis of 

§111.155 and its predecessor, Rule 105.2, is largely unknown 

due to the lack of documentation. However, the evidence that 

is available points to professional judgment and policy playing 

a significant role in the derivation of the standards listed in the 

rule. In addition, the rule was intended to address nuisance PM 

rather than health concerns. The PM NAAQS addresses health 

issues related to PM. In addition, the commission has ESLs 

that address the health concerns of specific PM constituents 

(e.g., metals, carbon compounds, silica). The size fraction that 

§111.155 has historically addressed is TSP. Regulation ofTSP 

was prominent at both the state and federal levels during, and 

immediately following, the promulgation of 111.155. However, 

the federal and majority of state regulatory authorities have 

since replaced TSP ambient standards with PM standards of 

a smaller PM size (i.e., PM10 , PM,.). These changes were 

dictated by advances in the science of PM that highlighted the 

importance of PM size fractions smaller than TSP. TSP has 

since been relegated to nuisance PM concerns. It is generally 

understood that determining nuisance is highly subjective and is 

dependent on the PM size, composition, and concentration, as 

well as the tolerance of individuals for PM depending on the use 

of their property. This subjectivity prevents the establishment of 

technically- defensible ambient standards to address nuisance 

PM. Tools and procedures already available to the commission, 

and consistent with other state environmental regulatory agencies, are used to address nuisance PM. 

Repealing §111.155 will not weaken the Texas SIP because EPA 

has not taken final action to approve it into the SIP. EPA is currently reviewing a pending action related to the reorganization of 

Regulation I, Board Order 67-1, which includes a proposal to include §111.155 in the Texas SIP. The commission requests that 

EPA remove from consideration in the pending request §111.155 

for inclusion into the Sl P. As discussed previously, there are other 

rules in place that the commission will still implement to assure 

compliance with the PM NAAQS. 

Based on the commission's evaluation, as well as stakeholder 

input, the commission adopts the repeal of §111.155 given that 

it is not current or necessary based on good science. The commission determined that it has sufficient tools and procedures 

currently available to address nuisance PM. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL 

CLEAN AIR ACT, SECTION 110(1) 

Issue 

The commission provides the following information to clarify why 

the repeal of §111.155, Control of Air Pollution from Visible Emissions and Particulate Matter, (previously Rule 105.2) from TAC 

and the Texas SIP will not negatively impact the attainment status of the state's PM attainment areas. 

The requirement for reasonable notice and public hearing is 

satisfied through the hearing held on December 15, 2005, and 

the public comment period, which was held from November 25, 

2005, to January 13, 2006. EPA also issued draft guidance on 

June 8, 2005, "Demonstrating noninterference Under Section 

110(1) of the Clean Air Act When Revising a State Implementation Plan." The guidance states (page 6) that ". . .areas 

have two options available to demonstrate noninterference 

for the affected pollutant(s)." This document provides detail of 

the identified existing measures in the rule preamble to show 
compliance with option (1) of EPA's guidance: Substitution of 

one measure by another with equivalent or greater emissions 

reduction/air quality benefits. 

Background 

TCEQ's predecessor agency, the Texas Air Control Board 

(TACB), adopted Rule 105.2 on January 26, 1972, by Board 

Order 72-2. On May 31, 1972, EPA approved Rule 105.2 

with the original Texas SIP. In 1975, the agency switched to a 

ten-digit numbering system, and Rule 105.2 was renumbered as 

Rule 131.03.05.002. In October 1980, Rule 131.03.05.002 was 

renumbered as §111.52 to become part of Chapter 111 of 31 

TAC. Section 111.52 was repealed on July 4, 1989, along with 

the rest of Chapter 111. An entirely new Chapter 111 along with 

§111.155, was adopted on July 4, 1989, in a concurrent action 

as the repeal of §111.52. On August 21, 1989, TACB submitted 

a SIP revision to EPA to remove Rule 105.2 from the SIP and 

replace It with §111.155, which is in place today. EPA is currently reviewing a pending action related to the reorganization 

of Regulation I, Board Order 72-2, which includes a proposal 

to include §111.155 in the Texas SIP. Since the commission is 

considering the repeal of § 111.155, the agency is asking EPA 

notto continue with the inclusion of§111.155 into the Texas SIP, 

and to continue with the removal of Rule 105.2 from the SIP. 

TSP in the 1970s was replaced by PM standards in the 1980s. In 

terms of health and welfare effects of PM, research overwhelmingly supports respirable PM (PM that can enter the lungs, generally regarded as ten micrometers or smaller in diameter) as 

the primary causative agent of PM- related health effects. The 

primary (health) and secondary (welfare) standards for PM are 

identical. Therefore, the current PM NMOS using PM,. and 

PM._. as indicators are better suited to address health concerns 

than standards based on general PM, such as §111.155 or its 

predecessor, Rule 1 05.2. The state does not rely on §111.155 

in attainment demonstration SIPs as a control strategy. For the 

one PM nonattainment area, there are specific rules in place, 

such as §§111.111(c)(1), 111.141, 111.143, 111.145, 111.147, 

and 111.149. 

In 2004, TCEQ received a petition to repeal §111.155 from the 

TAC. The regulatory history does not provide any explanation for 

how the limits in § 111.155 were established. It is clear, however, 

· that the limits were intended to address nuisance conditions, not 

health effects. The TACB's TSP standard was established to 

eliminate nuisance conditions while the PM,. standard was designed to protect health. 

Since the promulgation of the original rule, the federal national 

ambient air quality standards for total suspended particulates 

has been repealed, in favor of the more meaningful particulate 

matter (PM,.) standard. Section 111.155 is an artifact that is no 

longer consistent with the direction in which modern air quality 

regulation is headed, which is based on science. There are sufficient tools and procedures described in the following section 

that are currently available to address nuisance PM, in addition 

to health and welfare. 

Description of current regulations and requirements 

other rules such as §§101.4, 101.20, 101.21, 111.111, 111.113, 

111.141,111.143,111.145,111.147, and 111.149makethegeneral PM rule superfluous and redundant. The current rule has 

been one of the tools used in the permitting process to help determine an appropriate ambient concentration, but not to establish control strategies that protect the NAAQS. The other rules 

help establish the limits that ensure the NAAQS will not be vialated. The same rules and permit conditions contained in the 

permit are relied upon by the field operations staff in determining 

compliance with the standards. 

a) 30 TAC §101.21, The National Primary and Secondary Air 

Quality Standards 

1) The TSP standard established in the 1970s was based on 

research done in the 1960s. At that point in time it wasn't known 

what type of particulate matter actually caused health effects. 

PM was based on what could be measured at the time, which 

was TSP, specifically, particles 50 microns and less. Since that 

time, it was discovered that the smaller particles actually cause 

negative health effects. Since then, the focus has been primarily 

on PM, •• particles 10 microns and smaller because those are the 

particles that can actually pass the upper respiratory system into 

the lungs. The PM,.NMQS regulations were passed to regulate 

this particle size fraction. Additional scientific research prompted 

EPA to further revise the particulate matter standard to focus 

on particles less than 2.5 )Jgm in diameter, (PM._.) in addition to 

the PM,. standard to provide the most effective protection from 

potential adverse health effects. 

2) There are mechanisms in the agency's permitting program to 

address particulate matter emissions. Where the potential exists for emissions of particulate matter for a point source, the 

permit conditions will require BACT for the control of the emissions. Furthermore, there is a health effects review conducted, 

which will review the expected emissions against the NMOS for 

PM,. and the specific compounds, which make up the particulate 

matter, will be reviewed to ensure that off-site receptors are not 

adversely affected. To limit the potential for a nuisance condition 

from particulate matter, permit language does require continuous 

compliance with all rules and regulations passed by the TCEO. 

This includes the agency's rules prohibiting nuisance conditions 

and excess visible emissions. Best Management Practices are 

also placed into the permits, required as part of a Permit by Rule, 

and also required in the agency's Standard Permits. These practices could include watering of roads within the plant site, covering or watering of stock piles, limiting the size and location ofthe 

piles, and covering and/or watering of transfer point on conveyor 

belts, all which will help in the control offugitive particulate matter 

emissions. Finally, due to the differing types of particulate matter 

and the properties that each one has, it is not technically feasible to determine a nuisance condition based on a single TSP 

standard. For example, when determining if a nuisance condition has occurred, a pound of carbon black, which has a greater 

rate of coverage, is not the same as a pound of limestone dust. 

b) Enforcement of the current rule for compliance purposes consisted of 17 notices of violation and five notices of enforcement 

issued from 1998 2005. 

One explanation for the seemingly low use in enforcement today 

is that other controls, such as special permit conditions and Best 

Management Practices, now serve the same purpose. 

c) In addition to specific permitting and compliance policies, the 

following rules are in place: 

1) 30 TAC §1 01.4, General Nuisance Rule, 40 Code of Federal 

Regulations (CFR) §52.2299(c)(7) 

Provides for case by case determination of whether an air contaminant release is a nuisance; 

2) 30 TAC §111.111, Requirements for Specified Sources, 40 

CFR §52.2299(c)(94) 

ADOPTED RULES June 2, 2006 31 TexReg 4653 
Restricts visible emissions and opacity levels for stationary 

sources and, in some instances, requires the use of continuous 

emissions monitoring; 

3) 30 TAG §111.113, Alternative Opacity Limitations, 40 CFR 

§52.2299(c)(94) 

Requires alternative opacity limitation requests to go through the 

public hearing process and the applicant must submit a "preponderance of evidence" to show no exceedance will occur; 

4) 30 TAG §101.20, Compliance with Environmental Protection 

Agency Standards, 23 CFR §52.2299(c)(10) 

Requires applicants to comply with all applicable federal permitting requirements; 

5) 30 TAG §111.141, Geographic Areas of Application and Date 

of Compliance, 40 CFR §52.2299(c)(79); 30 TAG §111.143, 

Materials Handling, 40 CFR §52.2299(c)(79); 30 TAG §111.145, 

Construction and Demolition, 40 CFR §2299(c)(79); 30 TAG 

§111.147, Roads, Streets, and Alleys, 40 CFR §52.2299(c)(79); 

30 TAG §111.149, Parking Lots, 40 CFR §52.2299(c)(79). 

These rules are specific to activities such as materials handling; 

construction and demolition; roads, streets, and alleys; and parking lots. 

d) Regulations specific to El Paso, the state's only non attainment 

area for PM. 

1) §111.111(c)(1) includes operating restrictions for solid fuel 

heating devices during stagnation periods. 

2) §§111.141, 111.143,111.145,111.147, and 111.149 prescribe 

certain types of contra Is to be applied to the identified categories. 

All of the rules identified previously are approved as part of the 

Texas SIP. 

Conclusion 

The commission determined that there are sufficient rules and 

procedures in place to assure compliance with the PM NAAQS 

and to address nuisance PM. 

SECTION DISCUSSION 

Section 111.155 establishes one-hour and three-hour ground 

level concentration levels for particulate matter. The commission adopts the repeal of §111.155. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rule making in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the adopted repeal does not 

meet the definition of a "major environmental rule" as defined in 

the statute. Therefore, Texas Government Code, §2001.0225 

does not apply to this rulemaking. "Major environmental rule" 

is defined in Texas Government Code, §2001.0225(g)(3), as a 

rule, the specific intent of which, is to protect the environment or 

reduce risks to human health from environmental exposure and 

that may adversely affect in a material way the economy, productivity, competition, jobs. the environment, or the public health 

and safety of the state or a sector of the state. The specific purpose of the adopted repeal is to delete a rule that is no longer 

necessary, effective, current, or based on good science, as described in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL section of this preamble. This adopted repeal will not have an adverse material 

impact because the commission determined that the currently 

31 TexR.eg 4654 June 2, 2006 Texas Register 

existing NAAQS for PM adequately protects human health and 

welfare, and the remaining prohibition against nuisance conditions remains in effect. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated this adopted rulemaking and performed a preliminary assessment of whether this action would 

constitute a taking under Texas Government Code, Chapter 

2007. Promulgation and enforcement of this proposed repeal 

would be neither a statutory nor a constitutional taking of private 

real property. The adopted repeal of § 111.155 does not affect 

private property in a manner that restricts or limits an owner's 

right to the property that would otherwise exist in the absence 

of a government action. Consequently, this adoption does not 

meet the definition of a taking under Texas Government Code, 

§2007.002(5). This rulemaking is adopted to repeal §111.155, 

since the commission determined that the currently existing 

NMQS for PM adequately protects human health and welfare, 

and the remaining prohibition against nuisance conditions remains in effect. Therefore, this adopted repeal will not constitute 

a taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject 

to Consistency with the Goals and Policies of the Texas Coastal 

Management Program (CMP), and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management 

Program, commission rules governing air pollutant emissions 

must be consistent with the applicable goals and policies of the 

CMP. The commission reviewed this action for consistency with 

the CMP goals and policies in accordance with the rules of the 

Coastal Coordination Council, and determined that the action 

is consistent with the applicable CMP goals and policies. The 

CMP goal applicable to this rulemaking action is the goal to 

protect, preserve, and enhance the diversity, quality, quantity, 

functions, and values of coastal natural resource areas (31 TAG 

§501.12(1)). No new sources of air contaminants will be authorized and the proposed revisions will maintain the same level of 

emissions control as the existing rules. The CMP policy applicable to this rule making action is the policy that commission rules 

comply with federal regulations in 40 Code of Federal Regulations to protect and enhance air quality in the coastal areas (31 

TAG §501.14(q)). This rulemaking action complies with 40 Code 

of Federal Regulations Part 51, Requirements for Preparation, 

Adoption, and Submittal of Implementation Plans. Therefore, in 

accordance with 31 TAG §505.22(e), the commission affirms that 

this rule making action is consistent with CMP goals and policies. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Because §111.155 is an applicable requirement under 30 TAG 

Chapter 122, Federal Operating Permits Program, owners or operators subject to the Federal Operating Permit Program must, 

consistent with the revision process in Chapter 122, revise their 

operating permit to delete requirements relating to §111.155. 

PUBLIC COMMENT 
A public hearing for this rulemaking was held on December 15, 

2005, in Austin, and the comment period closed on January 13, 

2006. The commission received comments from Baker Botts 

L.L.P., Southern Crushed Concrete, Inc. (SCC), Temple-Inland 

Forest Products Corp. (Temple- Inland), Texas Pipeline Ass~ 

ciation (TPA), The Association of Electric Companies of Texas 

(AECT), City of Houston Bureau of Air Quality Control (BAQC), 

Environmental Defense, Harris County Public Health & Environmental Services Pollution Control & Environmental Health Division (HCPHESPCEHD), Houston Regional Group of the Sierra 

Club (HSC), Lowerre & Frederick, and the U.S. Environmental 

Protection Agency (EPA). 

RESPONSE TO COMMENTS 

Baker Botts L.L.P., Southern Crushed Concrete, Inc. (SCC), 

Temple-Inland Forest Products Corp. (Temple-Inland), Texas 

Pipeline Association (TPA), and The Association of Electric 

Companies of Texas (AECT) supported the proposed repeal of 

30 TAC §111.155. 

The commission appreciates this support. 

BAQC and HCPHESPCEHD commented on the key role of 

§111.155 in predicting nuisance impacts of particulate matter 

(PM) during the permitting process and believe that other 

available enforcement tools are inadequate to assess potential 

PM nuisance. Additionally, these groups do not believe that the 

current rule is overly burdensome on the regulated community. 

Environmental Defense supported these comments. 

The commission disagrees with the comment because some significant sources of particulate matter, such as roads, are difficult, if not impossible, to accurately model during the permitting process. These emissions are hard to accurately quantify 

through emission factors and the sources are hard to accurately 

characterize. Consequently, § 111.155 does not accurately predict potential nuisance impacts. While the agency agrees that 

the modeling process itself is not burdensome to the regulated 

community, the inability to adequately model some sources does 

present an unnecessary burden on the regulated community to 

comply with § 111.155. Instead of quantifying these emissions, 

permit provisions, such as road watering, are added to reduce 

and control these emissions. In addition, opacity limits set by 

§111.111 and §111.113 and the general nuisance rule in §101.4 

are utilized and result in issuance of Notices of Violations. The 

agency therefore asserts that these enforcement tools, in addition to secondary PM,. and PM •.• standards required by the National Ambient Air Quality Standards (NAAQS), are adequate to 

address PM nuisance concerns. 

Environmental Defense further provided scientific documentation of adverse health effects from short-term exposure to PM 

and commented that §111.155 provides protection against shortterm exposures to respirable fractions of PM that the 24-hour and 

annual PM NAAQS do not. HSC is also concerned that TSP 

contains a range of particles that can cause welfare and health 

effects. In addition, one of the provided studies suggested that 

particle composition may differentially affect toxicity. 

The agency agrees that TSP contains a fraction of respirable PM 

less than 10 ~gm in diameter. However, as Environmental Defense mentioned, the exact proportion of the respirable fraction 

varies from source to source. More importantly, there is no scientific basis for the established one-hour value of 400 1Jg/m3 and 

three-hour value of 200 ~g/m3 and no evidence that these values 

provide health protection. In addition, the net measurement used 

to determine these values can result in underestimation of actual 

particle concentrations. For example, if concentrations both upwind and downwind of a facility are high, the net concentration 

may be well below the one- or three-hour TSP values but may not 

be protective of health and/or nuisance conditions. Therefore, 

the agency disagrees that §111.155 provides short-term health 

protection not afforded by the PM NAAQS. 

Regarding the toxicity of individual particle components, the 

agency agrees that the toxicity of PM can be influenced by 

the particle composition. Therefore, Effects Screening Levels 

(ESLs) have been established for particles, such as metals. 

These ESLs are used during the permitting and enforcement 

processes to assess potential adverse health effects and 

provide health protection not afforded by §111.155 or its predecessor, Rule 105.2. 

HSC commented that TSP High-Volume Air Sampling is simple 

and straightforward to perform and more scientifically precise 

than field operations. 

The agency disagrees with this comment, due to the difficulty to 

access sample collection areas precisely upwind and downwind 

of a facility and potential underestimation of the net measurement mentioned previously. It is possible that conditions clearly 

presenting a nuisance to field operations personnel may not violate the net standard. Furthermore, as stated previously, no 

documentation exists for a scientific basis for the levels set by 

§111.155 or its predecessor, Rule 105.2. While sample analysis 

may be performed quickly, sample collection is often restricted 

by road access and obstructions at the property line. For these 

reasons, the agency does not agree that High-Volume Air Sampling is straightforward and more scientifically precise than field 

operations. 

HSC also commented that use of the term "ambient air" is inappropriate in describing property- line samples. 

The agency disagrees with this comment. Section 101.1 (4) defines "ambient air" as "That portion of the atmosphere, external 

to buildings, to which the general public has access. • The property line includes an area outside of the company's property and 

an area where the general public could potentially have legal 

access. The term "source" is also defined in §101.1 as: "(97) 

Source-A point of origin of air contaminants, whether privately 

or publicly owned or operated .... "Therefore, under commission 

definitions the property line of a site would not be considered a 

source since it is not the point of origin of an air contaminant. 

HSC recommended the addition of standards for particulate matter 10 IJgm and 2.51Jgm in diameter. HSC also commented that 

information on pollutants other than nuisance dust can be gained 

from property-line TSP monitoring. 

The agency agrees that particles 10 IJgm (PM,.) and 2.5 IJgm 

(PM •. ,) in diameter should be monitored. Section 101.21 allows 

primary and secondary national ambient air quality standards to 

be enforced throughout all parts of Texas. This provision allows 

fence-line monitoring of PM,. and PM~, that is more stringent 

than net property line measurements. In addition, speciation of 

fence-line PM,. can provide important information on respirable 

air pollutants. 

Lowerre & Frederick commented that during the 1989 amendment process the agency stated that "the standards have proven 

to be effective enforcement tools during the 15 years they have 

been used." Lowerre & Frederick then referenced three specific enforcement cases using §111.155. In addition, the commenters noted the previous agency statement that "Removal of 

ADOPTED RULES June 2, 2006 31 TexReg 4655 
the ground level standards would leave no particulate controls 

in place, which would aggravate nuisance conditions." Finally, 

Lowerre and Frederick commented that the property line standard provides a quantitative measure for anticipating nuisance 

conditions. 

Although this statement was applicable at the time, the agency 

disagrees that the rule continues to be an effective enforcement 

tool today. Between 1998 and 2005, property line monitoring for 

total suspended particles occurred 45 times. Of these, only 11 

Notices of Violation and five Notices of Enforcement were issued 

to a total of nine separate entities. The reason this rule is rarely 

used in enforcement today is that controls, such as special permit conditions requiring Best Management Practices, now serve 

the same purpose. Enforcement of these permit conditions, including requirements to water roads and facilities, eliminates 

the need for TSP modeling and monitoring while preventing nuisance conditions. Therefore, the agency disagrees that the repeal of §111.155 would leave no particulate controls in place or 

would aggravate nuisance conditions. Finally, although the property line standard does provide a numerical value, the net measurement may not provide evidence of nuisance conditions, and 

the standards against which these values are compared are not 

scientifically based. 

EPA commented that §111.155 is currently not in the Texas SIP. 

The commission's predecessor agency, the Texas Air Control 

Board, submitted a SIP revision to replace Rule 105.2 with 

§111.155 on August 21, 1989. EPA is currently reviewing a 

pending action related to the reorganization of Regulation I, 

Board Order 67-1, which includes a proposal to include §111.155 

in the Texas SIP. The commission requests that EPA remove 

§111.155 from consideration in the pending request at EPA for 

inclusion into the SIP. 

STATUTORY AUTHORITY 

The repeal is adopted under Texas Water Code (TWC), §5.103, 

concerning Rules, and TWC, §5.1 05, concerning General Policy, which authorize the commission to adopt rules necessary 

to carry out its powers and duties under the TWC; and under 

Texas Health and Safety Code (THSC), §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The 

repeal is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to 

safeguard the state air resources, consistent with the protection 

of public health, general welfare, and physical property; THSC, 

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and 

THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. 

The adopted repeal implements THSC, §§382.002, 382.011, 

382.D12, 382.016, and 382.017. 

This agency hereby certifies that the adoption has been reviewed 

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

legal authority. 

Filed with the Office of the Secretary of State on May 22, 2006. 

TRD-200602856 

31 TexReg 4656 June 2, 2006 Texas Register 

Stephanie Bergeron Perdue 

Acting Deputy Director, Of ce of Legal Services 

Texas Commission on Environmental Quality 

Effective date: June 11, 2006 

Proposal publication date: November 25, 2005 

For further information, please call: (512) 239-5017 

• • • 

TITLE 31. NATU L RESOURCES AND 

CONSERVATION 

PART 2. TEXAS P RKS AND 

WILDLIFE DEPART ENT 

CHAPTER 59. PARKS 

SUBCHAPTER H. SEA 

HUNTING, FISHING, 

PROCLAMATION 

31 TAC §§59.201 - 59.215 

IM STATE PARK 

D TRAPPING 

The Texas Parks and Wildlife C mmission adopts the repeal of 

§§59.201 - 59.215, concerning t e Sea Rim State Park Hunting, 

Fishing, and Trapping Proclama 'on, without changes to the proposed text as published in the ebruary 24, 2006, issue of the 

Texas Register (31 TexReg 119 ). 

Under Parks and Wildlife Code, 62.0631, the Texas Parks and 

Wildlife Commission (the Com ·ssion) may provide an open 

season for recreational hunting in ea Rim State Park that is not 

inconsistent with sound biologica management practices normally exercised to protect or utiliz. the wildlife resources occurring therein. In 1976, the Commis ion promulgated the Sea Rim 

State Park Hunting, Fishing, and rapping Proclamation. The 

department has determined that t e rules are no longer necessary, because Sea Rim State P rk is a unit of public hunting 

lands. All hunting, fishing, and tra ping activity within the park is 

regulated under the provisions of 1 TAC Chapter 65, Subchapter H, which governs hunting on I nds owned, leased, or administered by the department. The p posed repeals are necessary 

to eliminate unnecessary and su rfluous regulations. 

The repeals will function by elimin ting unnecessary rules. 

The department received one com ent opposing adoption of the 

proposed repeals. The comment r stated that Sea Rim State 

Park was· not part of the public hu ting system and that hunting 

in the park was not covered under either the Statewide Hunting 

and Fishing Proclamation or the P lie Hunting Lands Proclamation. The department agrees that h nting on Sea Rim State Park 

is not governed by the Statewide Hunting and Fishing Proclamation; however, the department ·sagrees that Sea Rim State 

Park is not a part of the public hunti g system and responds that 

under the provisions of Parks and Wildlife Code, §62.063, the 

commission may prescribe the nu ber, size, kind, and sex and 

the means and methods of taking any wildlife during an open 

season in a state park, fort, or hist ic site. Each year the commission approves the specific hunt g opportunities that are to 

take place each year on those state arks where hunting opportunity is offered, including the presc ibing of the number, size, 

kind, and sex of wildlife to be taken a the means and methods 

of take.