Kathleen HartnettWhite, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shankle, ExecutiveDirector 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducing andPreventingPollution


### June 9, 2006 Docket No. 2005-1606-RUL

Richard E. Greene, Regional Administrator U.S. Environmental Protection Agency- Region 6 

### 1445 Ross Avenue 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 ofAir Pollution from Visible Emissions and Particulate Matter, and a corresponding request to remove from consideration a currently pending request for the inclusion of30 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 TAC §111.155 for inclusion into the SIP. Enclosedare apublichearingcertification, acompleterecord ofthe publichearing, andthe accompanying**q~.er.** 

### I look forward to your expeditious approval ofthese SIP revisions. 

# g**30~ ~**  

### -on Sincerely,**:;~:** 

## ,-!:!

- )>..C::::

# ~/

# uJAd£ ; il¥ 'ff G')O")**~** (.1)-,;j 

### Chairman

### ~ f'T\

# ?2 .....: ("""") 

### KHW/js Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Zak Covar, Office ofBudget, Planning and Policy, Office ofthe 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

Q

### !::x~ 0) ::Ofl1 

### '- 

# -o'""**~ ~** 

# .. )>< 

### THE STATE OFTEXAS § 

# "' :z:m xo**~** 

# x' :X C)(j') 

### COUNTY OFTRAVIS § 

### -::1 (/)-o &"' 1""10



# . C")r-



# - This is to certify that the attached are true and correct copies ofdocuments 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 onEnvironmental 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 ofAir Pollution from Visible Emissions and Particulate Matter and Revisions to the State Implementation Plan Rule Project Number2005-013-111-ENINTRODUCTION

TheTexas Commission on Environmental Quality (commission) held a public hearing in Austin on December 15, 2005, to consider revisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter and revisions to the state implementation plan (SIP).

This rulemaking makesthe commission'sapproach to particulate matterregulation consistentwith 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 ofTestimony

o Staff Recommendations (including Order)

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle, Austin, Texas 78753. Forfurther information, please contact Kathy Singleton at (512) 239-6098.

# PUBLIC NOTIFICATION AND PROPOSAL

### PUBLIC NOTIFICATION

Notification to the public ofthe 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 ofthe proposed rules in the November 25, 2005, issue ofthe Texas Register 

### (30 TexReg 7821 ) .

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

### (30 TexReg 7922).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker ofthe House Lieutenant Governor City ofVictoria Planning Department Dallas Department of Environmental and Health Services Dallas Department ofAviation El Paso City-County Health and Environmental District El Paso Metropolitan Planning Organization Federal Highway Administration Fort Worth Environmental Management DepartmentGalveston County Health District Houston Department of Health and Human Services Harris County Pollution Control Department North Central Texas Council ofGovernments 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 AgencyExample 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 TOTHESTATE IMPLEMENTATION PLAN TheTexas Commissionon 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 GovernmentCode, SubchapterB. Chapter 2001: and 40 Code ot Federal Regula- tions §51.102. ot the United States Environmental ProtectionAgency (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 appreaches. A public hearmg on this 

### g roposal will be held on ecember 15 2005, at2:00 p.m., in Building E, Room 2545, Texas Commission on EnvironmentalQuality, 12100 Park 35 Circle, m Austin1 Texas. The hearing wil be structured for thereceipt oforal orwritten comments by interested persons. Registra- tion will begin 30 m1nutes priorto 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 andafterthe hearing. Persons planning to attend the hearing who have special communication or other accommo- dation needs, shouldcon- tactJoyce 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 orfaxedto (512) 239-4808. All comments should ret**6~~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/rules/propose a dopt.html. For furtfier information, piease 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 220I 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 receiptoforal orwritten commen byinterestedpersons. Registration will begin 30 minutes prior to th hearing. Individuals may present oral statements when called upon ·n order ofregistration. 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 nsbefore and after the hearing. Persons planning to attend the he · g who have special communication orotheraccommodationneed , should contactJoyce Spencer, Office ofLegal 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 RegisterTeam, Office ofLegal Services, exasCommissiononEnvironmental Quality, P. 0. Box 13087, Aus ·n, Texas 78711-3087, orby fax to (512) 239-4808. All comments sh uldreference Rule ProjectNumber 2005-053-091-PR. Comments m t be received by 5:00p.m. on December 27, 2005. Copies ofthe p oposedrules can be obtained from the commission'sweb site athttp:/, .tceq.state.tx.uslnav/ruleslpropose_adopt.html. Forfurtherinfo ation, please contactMichaelWilhoit, AirPermits Division at {512) 239-1222. TRD-200505200 Stephanie Bergeron Perdue Director, Environmental Law Divisi Texas Commission on Environmen Filed: November 10, 2005 

# • • Notice ofPublic Hearing on Proposed Revisions to 30TAC Chapter 111 andto the State ImplementationPlan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter, and the state implementation plan (SIP) under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, SubchapterB, Chapter 2001; and 40Code ofFederal Regulations §51.102, oftheUnited StatesEnvironmental Protection Agency (EPA) regulations concerning SIPs. Thisrulemaking would eliminate air standards that cannotbe scientifically defended. In addition, this rulemaking will make the commission's approach to particulate matter regulation consistentwith federal and other state approaches. Apublichearing on thisproposalwill beheldonDecember 15, 2005, at 2:00p.m., in BuildingE, 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 maypresentoral statementswhen calledupon in order ofregistration. There will be no open discussion during the hearing; however, commission staffmembers 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 orother accommodation needs, should contactJoyce Spencer, Office ofLegal 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 ofLegal Services, Texas Commission on Environmental Quality, P. 0. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference RuleProjectNumber 2005-013-111-EN. Comments mustbe received by5:00p.m.,January 13, 2006. Copies ofthe proposed rules can be obtained from the commission'sweb siteathttp://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 ofthe Chief Clerk, Mail Code 10 , 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 ofAustin MS4. The permit will e renewed as TPDES Permit No

. WQ0004705000. The MS4 is loca d in the City ofAustin, in Travis, Hays, andWilliamson Counties,**~** CITY OF DALLASwhich operates eCity ofDallasMunicipal Separate Storm Sewer System(MS4), h appliedtothe Texas Commission on Environmental Quality (TCEQ) for a renewal ofexisting NPDES PermitNo. TXS000701. The draft ermit would authorize storm water point sourcedischargesto surfac waterin the state from theCity of DallasMunicipal Separate StormS erSystem. Thepermitwill berenewedas TPDESPermitNo. WQOO 4396000. Themunicipal separate storm sewer system (MS4) is locate within the corporateboundary of the City ofDallas, in Dallas, Collin Denton, Rockwall, and Kaufman Counties, Texas. CITY OF DELLCITY has applied r arenewal ofPermitNo. 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 of74.6 acres ofnon-publi access land. Thispermitwill not authorize a discharge ofpollutants i to waters in the state. The facility and disposal site are located approx mately 0.75 mile northeast ofthe intersection ofFarm-to-Market Ro 1437 and Farm-to-Market Road 2249 in Hudspeth County, Texas. CITY OF ELECTRA has applied fo arenewal ofTPDES Permit No. I0020-00I, which authorizes the dis barge oftreated domestic wastewater at a daily average flow not to exceed 640,000 gallons per day. The facility is located approximate! 2miles southeast ofthe intersection ofFarm-to-Market Road 1739 nd State Highway Loop 477 in Wichita County, Texas. GRIMES COUNTYMUNICIPALU ILITYDISTRICTNO. Ihas applied for a renewal ofTPDES Perrni No. WQ0011437001, which authorizes the discharge oftreated do estic wastewater at a daily aver

### 30 TexReg 7922 November 25, 2005 Texas Registeriecttothepublicmeetin2 and pubI ccomment**~rocessing** requirements ofChapter 55 ofthis title (relatin to Public Notice and Requests for Reconsideration and Contested Case Hearings· Public Comment) or elsewhere underthis title that is a IPlicable to the !Ytl_e ofauthorization sought. This agencyherebycertifiestha the proposal has been reviewed by legalcounsel and found to be within the agency's legal authority to adopt. Filed with the Office ofthe 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 SUBCHAPTERA. 

### VISIBLE EMISSIONS AND PARTICULATE MATTER DIVISION 5. EMISSIONS LIMITS ON NONAGRICULTURALPROCESSES 30 TAC §111.155 (Editors note: The text ofthefollowing sectionproposed for repeal willnotbepublished. The sectionmaybeexaminedin the officesof the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James EarlRudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Environmental Quality (commission) proposes the repeal of§111.155and a corresponding revision to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEAL The TexasAir Control Board (TACB)firstdeveloped 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 ofthe state that suggested that PM control was necessary. Atthetime, 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 establishmentofthe PM NAAQS, the TACB significantly revised the state ambientair standardsfor PM in 1972. The revised standards established net ground-level concentrations in ambient airfor 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 1972Texas 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 bythe 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 indicatorand new primaryand secondary NAAQS established. The rationale for replacing TSP with PM,. relates to the significant amount ofscientific progress made since the promulgation on the 1971 PM NAAQS. This progress occurred in numerousfacets 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 indicatorfor coarse PM, and the establishmentofa new, additional PM indicator, particulate matter2.5 micrometers or smaller in diameter (PM,..). This new indicatorwas selected to addressfine PM based on the emerging science that PM smallerthan PM,.was more strongly associated with premature mortality and severe morbidity. Current PM NAAQS (PM,. and PM

.., NAAQS established in 1997)are underreviewand 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 ofthe state were required to comply with all sectionsofChapter 111 by December31, 1973. SubsequentSIP 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 regulatorytooltoaddress 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 ifthe 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. Thetechnical detailsfor establishingthe specific net PM concentrations listed in §111.155 are not known. little documentation exists that describes the rationale or the science used in select

### PROPOSEDRULES November25, 2005 30 TexReg 7821ing 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 micrometersor smaller in diameter) as the primary causative agent ofPM-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 atool 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 ofair 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 ofTSP 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 ofair 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 ofother 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 oftools 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 notweakenthe 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 longerused as an indicatorfora criteria pollutant, it is notari appropriate componentofthe Texas SIP and should be removed. Based on the commission's evaluation, as well as stakeholderinput, 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 ofstate or local governments as a result of administration or enforcement of the pro

### 30 TexReg 7822 November 25, 2005 Texas Registerposed repeal. The proposal would repeal §111.155, regarding the state standards for ground level concentrations of PM. The commission evaluated §111.155 to determine ifthe 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 ratherthan human health. Upon evaluation, which included consideration ofstakeholderinput, 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 ofothertools 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 defensiblyenforce compliancefor PM emissions. Compliance with the current rule may require the review ofmodeling datathat regulated entities submitas part oftheirair permit applications. Underthe proposed rulemaking, thistype 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 ofthe 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 othertools at the commission's disposal. Businesses emitting PM would no longerbe required to meetthe 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 ensuringthat 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 appliesto all entities, including small or micro-businesses, and theywould 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 lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed repeal does not meetthe definition ofa "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 ofwhich, is to protectthe environment or reduce risks to human health from environmental exposure and that mayadverselyaffect in a materialwaythe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. The specific purpose ofthe 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 ofthis 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 neithera statutory nora constitutionaltaking 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 toan action oractions subjectto the Texas Coastal Management Program (CMP) in accordancewiththe Coastal CoordinationAct of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter281, Subchapter B, concerning Consistencywith Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject to Consistencywith the Goals and Policies ofthe 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 ofthe 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



### PROPOSEDRULES 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 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 commissionaffirmsthat this rulemaking action is consistentwith CMP goals and policies. EFFECT ON SITES SUBJECTTO THE FEDERAL OPERATING PERMITS PROGRAM Because §111.155 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program, ownersoroperators 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 oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff 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 RegisterTeam, Office ofLegal Services, P.O. Box 13087,Austin, Texas 78711-3087 orfaxed 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 underTexas 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 consistentwith the policy and purposes oftheTexas Clean AirAct. 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 authorizesthe 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. GroundLevel Conce11trations. This agency hereby certifiesthatthe proposal has been reviewed by legal counsel and foundto be within the agency's legal authority to adopt. Filed with the Office ofthe 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 Forfurther 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 ofthese 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 committ I SIP revision submitted to the EPA on November 15, 1992, opt d out of the FCFF Program in orderto implement afleet 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 RegisterKathleen HartnettWhite, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shankle, ExecutiveDirector 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducing andPreventingPollution



### NOTICE OFPUBLIC HEARING BY THE TEXAS COMMISSION ONENVIRONMENTAL QUALITY

ON PROPOSEDREVISIONS TO 30 TAC CHAPTER 111 AND TO THE STATEIMPLEMENTATION PLAN
TheTexas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible EmissionsandParticulateMatter, andthestateimplementationplan(SIP), undertherequirementsofTexas Health and Safety Code, §382.017; Texas Government Code, Subchapter B, Chapter 2001; and 40 Code ofFederalRegulations §51.102, ofthe UnitedStatesEnvironmental ProtectionAgency (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 publichearing onthis proposal will beheld onDecember 15, 2005, at2:00p.m., in Building E, Room 254S, Texas CommissiononEnvironmentalQuality, 12100Park35 Circle, inAustin, Texas. Thehearing willbe structured for thereceiptoforal orwrittencommentsbyinterestedpersons. Registrationwillbegin 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 staffmembers 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 ofLegal 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 RegisterTeam, Office ofLegal 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 mustbe received by 5:00p.m., January 13, 2006. Copies ofthe proposed rules canbe 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 inAustin, 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 TESTIMONYReference 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 ofAir 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 AssociationAmerican 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 CommissiononEnviromnental Quality MC-205**in~c·r::·'"';···** 

### ....**[,1"\.~** 

### c f }. t:**~.)** 

### TexasRegisterTeam OfficeofLegal 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: TheAssociation ofElectric Companiesof Texas' commentsto theproposedrepeal of30TAC 

### § 111.155;Ru1e PrqjectNo. 2005-013-111-EN
DearMs. Spencer: The Association ofElectric Companies of Texas (AECT) appreciates the opportunity to submitthese comments to

### the proposedrepeal of30TAC § 

### 111.155. AECT is a trade association representing electric companies in Texas. Organized in**1978~** 

### AECT provides a forum for membercompanyrepresentatives to exchange information ontheirindustry, andto communicate with state and federal governmental officials. AECT strongly concurs with the proposedrepeal of§ 111.155 (theparticu1ate matter (PM) state property line standard) and with the TCEQ'srationale 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, § 111.155 (andpredecessorversions ofit). The TCEQhasproperly concluded, among otherthings, that § 111.155 is not needed in orderto protect humanhealth, is not based on good science, and its repeal will not weakenthe Texas SIP orthe TCEQ's abilityto enforce the PM national ambient air quality standardornuisance PMconditions. AECT appreciatesthe opportunityto submit these comments. Please call Keith Courtney at (512)499-3865 ifyou have any questions regardingthese comments orwouldlike 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.netV.J../**~\J/** ..:::OVVU .L't. UU**rl1.-~:l.. U.J..~** **\J&..~ ~UV&..** 


# BAKER BOTTS LLP



### January 23, 2006 VIA FACSIMILE239-4808 Ms. Joyce Spencer. MC205 Texas Register Team Office ofLegal Services P.O. Box 13087 Austin, Texas 78711-3087 .Ul1..l.\.01\. .uv**~ ~**  t.,)



### Re: Rule ProjectNo. 2005-013-111-EN 

### ProposedRepealof30 TAC § 

### 111.155 DearMs Spencer: 1500 SANJACINTO CENTER 98 SANJACINTO BLVD. AUSTIN, TEXAS 78701-4078
TEL +1 512.322.2500 fAX + 1512.322.2501 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 

# 8

FAX 512.322.8394



### Thank you for the opportunity to provide comments onthe proposed repeal of30 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 convincedthatthe currentrule

### is an anachronism that shouldberepealed. 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 thepreamble 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. Ifyou have any questions, please do nothesitate to contactme at (512) 322-2594. Very truly yours,

Jennifer Keane

AUSOl :407921.1t'HJ\ NU. 

## r. uc::


# e eNVIRONMeNTAL DeFeNSe finc!ir1g lhc ways thrd**wu~k**


### Janwtry 13, 2006 

### .Ms.Joyce Spc.:uccr 

### Onicx ofI

### .t!p;nl Services,

### MC**20.~** 

### 'I' 

### c""

- • I' . 1r). 

### 1·**l~xn.c;** .•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--4808**n~:·:** 

### RulePx-ojcct Numbet·2005-0:13··111-EN, Pmposcd**"f~epcal** 

### of30

### TAC 111.155
Dear

### J\.1s. Spencer: 

### Thankyou

### for the opportunity to commc.:nt 

### on thep1'oposcd repeal 

### of30

### TAC 111.155. Envjronmcntul 

### Dde.nsc: opposes this**propos:-~1** 

### to 1·cpcal

### theTSP standardsbecause 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'. concurwith the**'T'CE(lth~t** 

### PM25 

### anU. 

### PM10, 

### the 

### respirable componentofparticulate: 

### mattl::r) arc bl'ttc.:r 

### imlil'iltOI't> 

### ofPM-rel-atcd henlth effects 

### thanTSP. On the 

### otherhand, 

### it docs 

### nntfolJow 

### that a limit onTSP**dol~S** 

### not, by itself, 

### offer some

### level ofhealth 

### protection. 

### This is**b1:<~an!-:t~** 

### TSP, hy

### definition, conrains 

### some amount ofPM2• 5 

### orPM10• 

### The exact

### proportion that 

### is**n·sp1r:~h1c** 

### will 

### vary from source to source; and for some 

### sources 

### itrnay be a significant 

### or pn.:domin:lnt

### fraction

. 

### .Accordingly, we disagreewith the rom

### mission's conclusion that

### ifthe 

### 'T'SP smndardswere 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 ofparticulate 

### emissions that the NAAQS 

### do not. ThL' T':xa.s TSP standards address 1-hourand 3-hourtime 

### frames, whereas the PM NAAQS addrc.c;s 24-hnur 

### :mel anm1al time**fmrru.~s.** 

### Also, the mcasmc ofcompliancewith 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 ofthe arln\l:d 

### 98 1h percentile 

### values 

### exceeds the 

### stand;ncl.. Ac; 

### a 

### result there 

### CI)Hld br. as m:my as 21. 

### <lays over a thn.:t.: year. period during

### which 

### the24-hourPM2.S 

### or

### PMw**~tanrlard** 

### is e.xceedr:d hcfore an 

### offtcial vioht:ionwould be

### registered.
Then: 

### is healt-h -b:1sed 

### supportfor 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, IX "?Cl'lO 1 · ToI 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,** CAI'Hl\ IIIU,



### n.itway iuilmnmalion in 

### asdunatks, with hourly averages ofPM

### 2 , 5. Another studyfound thn.t "[rn

### J;:r."ima of

### hourly cbta from outdoor

### monitors may capture 

### a.dversc 

### dTccts ofoutdoor 

### 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;crecommends 

### theTCEQretain the

### TSP standards**mnt~tincd** 

### itl 

### 30 TAC 111.155. BecauseTSP c:ontains a respirable fraction 

### tl1ar is Jess than10 

### microns, the. TSP srnndards pt'oviclc a level ofprotection**}lg~1nst** 

### short-tenn 

### PM exposures that 

### the 2,Hwnr :md 1lTltHtU1 

### PM NAt\(1c..; do not. 

### Ifthe**TCEQncvcrlbclc~s** 

### elects to repeal its TSP t'('gui:Jtioll,**lhc~n** we 

### stmny,ly 

### em·ourugc you to replace 

### itwith 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. 

### Si

### nc:crdy,



# .......) A

..I**~-**

# .. f.'·\/1,_ ·- ___-...

### ~l R:uni)n i\lvarcz 1 

### lJh.1'f. Scll.lor Sd

### <:MistrHA l'lU.



### Att'ild11nent 

### 1**Sd~ct'-~d p~lpcrs** **reg~mHng** adverseheah·h effects

### ofsh011Acrm 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, 

### UniversityofWashington> Scnttk,**W2~ltingt'on** 

### 98195-723.tJ., US/\. 

### Tlw**obj~riivc** of

### this StlldyW<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 

### ofnitric oxide in exhaled 

### brearh r. U'-1

(FE(NO) 

### in c.·hildrcn 

### with**~1sthma** 

### parlicipaling in an intensivepanel 

### studyin 

### Scatt1c, WashinEtou. The exposure da.ta**w~~re** collected wjth tapered elementoscillation micrubalnnce 

### (TEOM) l

### )M2.5 monitors 

### operated

### by th<.: 

### loc<11 air agency at three 

### sires jnthe Seattle area. 

### J.i'E(NO) is a**mark~r** of**t~irway** inflammntion 

### llncl 

### is clcvat<.:d in 

### imlividualswith 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 asrhmain

### Seattle. ln the present 

### studyusing the same 

### rhilclrcn, Wt:. 

### med a polynonlial**d1~11'ibated** 

### lag 

### model to assess the.: association betwcc.n hourly 

### bgsin Pl\1:>..S c:x.'Posurt: 

### and FE(NO)k"Vcls. Ourmodel controllccl for age, 

### ambient NO leveLc;, Icmpct·ature1 rl'bt1vc humidity, and rnodification

### by usc ofjnhalcd corticosteroids_ 

### Jl/le foundthat**F'l~(NO)** 

### <wnsfmor.ir.rtal 

### 'lLlitb hourlya"l.Jeragt!.roJPM2.J

### up to 10·12/;rajtcrexpo.wre. 

### The sum of the 

### cod'Iicieuts for Lhe lagtimes**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·hrlag.**Thesl~ dat~**  

### pl.'ov.ic.h.: new infonnation 

### concerningthe lag 

### stntcturc hdwceH 

### PM2_S cxpoS\.I!'C 

### and a respiratory

### hc:e1lth outcome 

### in 

### children with asthma.



### 2: Environ IIcalth Perspc-t:t·. 

### 2002 Oct;110(10):A607-17. 

### AssG<.':iation ofasthma l:lymptoms with peak

### particulate 

### air

### poilution and

### ~fleet moc.lilicarion

### hy anti-itt!hrnrn;lf:ory medication

### usc. 

### [)(!Hino 

### RJ, Zcigc.:r RS, 

### Sdru:r

### JM, S1reet 

### DII, McLaren CE. Epldt:ll)\o\ogy

### Divi:;ion, Department

### ofMedicin.e, Un.i.vt:rsity orC;1lifornia, 

### Irvine, Irv:ine, Coliforni::t 9/,(,9'/·.'1.550, 

### USA. rdclfino@uci.edu**fi.·Ja~:ima** c{bourlydatajl·oJ11 ouidoormo11itors maycaptureadverseeffects of outdoor 

### f'articulate md'f/.,?r

### (Jillj) CJt/'O.I'JJrc.r in 

### asthmutic

### r.hildren bettertbtm 

### do 24-hrJ>)\1 a<Verages, which form thebasis 

### 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 andr Mfl**l~U.** r,**u:..~**



### ru::m.1lkrgcns. Vo/c**c:x~unincd** 

### strengths 

### ofpollutant 

### associations with 

### asthma symptorns between**sul.1~?;toops** of**~tst:hmatic** 

### childrcn 

### who were on 

### versus not on**rc~1la**

### rly scheduled anti

### in!.brurn:n.l'ory medications, and 

### tested**as~odfltions** 

### for differentparticle 

### 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. throughApril 19% (1,2t1S 

### person

### -dnys). ThL:y 

### Lived in nonsmoking 

### households in 

### a scmirural area ofSouthern**Californi~t** 

### within. the**::~.ir** 

### inversion mixingzorw (range, 

### 1,200-2,100 feet) with transported air pollution 

### i'l"om urban an . .:rts 

### ofSouthern California, 

### The dependent variable 

### derived from diary 

### 01dinal**scon~s** 

### is**cpi~o(kfi** nf

### asthma symptotns thatintL:rfcnxi 

### with daily 

### activities. Minim.um 

### to ·**90th-p<~nx·nti1e** 

### kvds ofcxposurc!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-hrPiv1(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. 

### Therewa!5 

### no conroul.ldlng by 

### wenlhcr, 

### dny 

### ofweek, 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 lag0 

### 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-hrmaximum

### 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-hrm: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-hrfungj, 

### 1.89 (1.24··2.89) 

### versus 0.90 (0.35-2.30); 24-hrpollen, 

### 1.90 (0.99- 3.67) 

### vcr:m::i 0.85 

### (0.18-3.91). Poliutantassociations 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

### mostrobust associations 

### were forJ:Lg 0 and 3-day

### moving**nvcra~~es (la~~s**  0-2) 

### ofB

### -hr

### maximllmHrHl 2tHlrmean 

### PM(10) in sensitivity 

### analyses testing for thresholds.. Mostpollutant 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 

### ofnhhomepollutants nnd all.crvet1s

. 

# ..,
3:

# J.Air Waste**M~11ag** Assm:. 

### 2005 Jul;55(7):B93-902. 'fcmporal**analysi~** 

### ofairbomc 

### p;Hticuhtc matterreveals a dnse-ratc effect on mortality in El**[>,:~.so:** 

### 1ndic::H**ion~** of'diffi.'!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 oftwo**topi~::~** 

### explorl'd is the

### limitalions ofthe daily average in summarizing

### pollutant hourly**prnnk~.r;.** 

### The 

### daily 

### average ofhollrlymc<\suremcnts ofairpollutant c:onstitucnts provides contim1i1.y 

### with pt'c;v.ions studies using

### rn.oniLoring**tcchnolo!~Y** 

### that. onlyprovided 

### the 

### d;lily avcragl:.**l1ovv\~vc:r,** 

### Ol'h.er summarystalistics 

### arc nr.:L:<.lc:d 

### that m;tkc betterusc ofall available 

### lllfonnatir.m 

### in 24-hrpmfiks. The 

### da.ily average rdlccts the 

### total 

### daily dose, obscuring

### hourly**re:wlt~Li.on** 

### ofthe 

### cl.mw rate. Airpollutant exposures with comparable 

### total 

### daily doses may h:tvct'Ht'\ l'IU, 

### r. uo



### very d\ffc:rcnt effects 

### wllCT\ occurring at

### hiKh h.:v-cls over 

### afew hours as opposed to

### low k:vcls over :1longcr time. 

### Allc:rnativc data-based cbojcc:s for summary**s1'~tisLics** 

### are pmvidcd usingprincipal componenl 

### HIH11ys1s ro capture the exposurL! close 

### rate, while preserving

### ease ofintcrprctation. 

### This is lkrnonstratcd 

### ming the earliest

### hourly particle concentration 

### data available for 

### ElPaso 

### (rom a.rchivcd record:; of

### particulate rna

### ttcr 

### (PM)**10~** 

### In this

### way, asignificant

### r.maciation het•wecn e·w•;ling

### PJ\.110 t:.'t'posureJ'audnonart.i.deutaldaily 

### rnortaHty is foundinBlPaso from 1992

### lo 

### 1995, otbl'l'w.ise.wirsedu.rin.g

### thedailya·vangc. 

### Secondly,

### the nature and., hence, effects ofpa.rtic:les in the**~~rnhlcnt** 

### aerosol U.uring El P<lSO 

### sandstormsis believed different from that ofparticles present durinp; t;tilJ-;lir c:onditions 

### resultingfrorn 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), 

### orMid-ws (a 

### m.ixrure offme and**coarst~** 

### p:uticlcs). A High**-w~** 

### eveningis**signific~ntly ~tssociatcd**  

### wilh a 10% lowerriskofmortality

### on the suL:te(:ding 

### third dny, as cornp;nc:d with**compar~tblc** exposures 

### atLow- orMid-ws. Although thiB 

### annlysis cannot b(: usc<'llo forrn 

### firm conclusionsbecause it

### uses a VCl"Y 

### small data set, 

### it &mrmslmta.r

### tilelimilations 

### oftb(!daily twcrnge

### and**S\1ggt~sts** 

### differential to.xicity 

### for different 

### particle compositions.



### -1:] 

### AirWaf.tc M'n.nng Assoc. 2005 May;5'5(5):559-73.
'I 'he**Stl.!ub~.;nville** 

### CoinprchensivcAirMon]

### Loring Program 

### (SCAMP): analysis of

### sbort-terrn :.1nd 

### t:f>isodic V<l

### riations 

### inPM2.5 com.:cnlrations using

### hourly air

### monitoring data. 

### Connell DP, Withurn].A,

### Winter SE, Statnick

### RM, Bilonick.RA. CONSOf, EnergyInc. 

### Research 

### & Development, 4000 Brownsville Road, 

### SouthPark, PA 1.5129, USA. danickonm·lWPc:onsolencrr,y.corn**On~-hour** 

### avo..·r:lg<.:**~rnbient ~:onc:rntrations**  ofpali·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% ofthe:. 

### l'1,6RI. bonrly PM2.5 C'Ol1Cenlrations measured during this periodwe.rc < 

### or= 17microg/m\ concentrations :- 

### 65 mkrog/m3 were observed 76 

### Limes. On average, PM2.5 concentrations at**SH~ubcDvilk** 

### C:'lt:hihircd**~diurnal** 

### patlern 

### ofhigherearly morning 

### concentrations and lower af'tcrnonn**con~entrations, ~imilar**  to 

### the diurnal profiles ofCO and NO(x). This

### paucrnwas 

### highlyvariable; howc.:vt:r, PM2

.

### .5 concentrations > 

### 65 microg/m3were never observed during the mid-altnnoonhctvtcc11 

### 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 

### coolerrnonlhs often fc:lturcd 

### higherpeak**<'OtlC:l.~ntrations** 

### (five 

### hrld rn:Pdmurn concentrationsbetween 9.5.0 and 139.6 microg/m3), ;mr:l many 

### c:JJi.biled slrong c.ovariationbetween P.M25**~nd** 

### CO, NO(x), or S02. Ca::;c studies**SU[~gcstt:d** 

### thar nocturnal surftcc-bascd temperature inversions**wen~** 

### influential in drivinghigh nigh

### nime mnc:cntrations 

### oftllc1ic spc:c:i.es 

### durinR scwra1coo1

### scason 

### eplsodcs, which typically had 

### dr·,,,mat·ic:\·lly lowc.:t· 

### aflcmoon r.nncentrations. 

### 'Thc::;c flnding;s 

### provide insights that 

### maybeuseful

### rHI\**I~U.**

iu t.ltc dcvcJI)pn tent n1:PM2.5 reduction 

### strategies for 

### Steubenville, and**sngg~-:.st** 

### thatstudies**m.,~~r.~·i~tg po.>.fibh~**  hea.!th 

### d.Ji:ct.1· ofPM2.5shouldr.ariful!ycomidere'-posurc is.wes relatedto 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 1Han'" 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



### ViaFacsimile andRegularMail Ms. Joyce Spencer Office ofLegal Services, MC 205 

## RECEIVED 

## !JAN 17 2006 REGUlATIONS DEVElOPMENTSECTIOn



### January 13, 2006

Texas Commission onEnvironmental Quality P. 

### 0. Box 13087 Austin, TX 78711-3087


### Re: RuleProjectNumber2005-013-111-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 TexasAdministrative Code (TAC) Chapter 111, Controlof AirPollution from Vzsible EmissionsandParticulateMatter, Comments OpposingRepealof 30 TAC§ 111.155 DearMs. Spencer, Thankyou for the opportunityto submit comments onthe referencedproposedrule revisions. Forthe reasons explained below, Harris CountyPublicHealth & 

### Environmental Services PollutionControl & 

### Environmental HealthDivision (HCPHESPCEHD) and the CityofHouston BureauofAir QualityControl (BAQC) oppose the repeal of30 TAC § 111.155 because it serves a useful function and is not overlyburdensome on theregulated community. HCPHESPCEHD andBAQC do not supportthe repeal of30TAC 111.155 Ground Level Concentrations as theyrelate to Total SuspendedParticulate (TSP) for one-hour and three-hour averagingperiods. These standards play a key role inpredictingpotential nuisance impacts at the property-line duringthe permittingprocess. 1 

### Without this standard, which applies to particulate matter ofall sizes, there would be no nuisance impacts assessment conducted for particulate matterthatis largerthan 10 microns in size duringthepermittingprocess.

1 Under 30 TAC § 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 ofthe health and property of the public. This includes nuisance impacts as included in the definition of"airpollution" in the Texas Clean Air Act which means the presence in the atmosphere ofone or more contaminants or combinations ofair contaminants in such concentration and ofsuch duration that: are or maytend to be injurious to orto adversely affect human health orwelfare, animal life, vegetation, or property; or interfere with the normal use or enjoyment ofanimal life, vegetation, orproperty. 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 thatthere are other enforcementtools including opacity limits described in 30 TAC 

### §§ 111.111 and 111.113 and the general Nuisance rule in 30 TAC 

### § 101.4 whichmay address nuisance concerns. However, HCPHESPCEHD and BAQC do not agree thatthesetools are adequateto address potential PM nuisance since they do notperform the same function as 30 TAC 

### § 111.155. Currently, 30 TAC 

### § 111.155 is used as the standardto compare modeled ambient levels ofTSP to, as part ofthe airpermittingprocess and is critical to the evaluation of thepotential PMnuisance atthe property-linepriorto theissuance ofan air quality permit. Itis theposition ofHCPHESPCEHD and BAQC that air dispersion modeling is notunduly burdensomefor the regulated community nor does itunnecessarily delay theissuance ofair permits. Rather, it provides for a proactive approachfor evaluating a potential nuisance condition whenreviewing a permitapplication so that any potential nuisance conditions canbe fully assessed. Itshould also benoted that, inHarris County, utilizationofthe other previously listed enforcementtools, specifically the general nuisancerule, oftenresults in the issuance of Notices ofViolations or in civil actiontakenagainstthe non-compliantpartythroughthe Harris CountyAttorney's Office. Any economic benefit gainedbythe regulated entity from not conducting the modelingto assess compliancewith 30 TAC 

### § 111.155 is far outweighedby thesepotential civil penalties and injunctiverelieflevied in a nuisance actionwhich could easily been avoidedifthe emissions had been considered inthe permitting process. Also, air quality permits thatare issuedwithout considerationto potential nuisance impacts also unfairlyputthe onus ofensuring compliance withnuisance laws and rules onenforcement agencies.
The continued use of30 TAC § 111.155 as a basis for airpermittingmodeling for TSP allows for a win-win situation because itwill help limitpotential nuisance conditions that have potentially adverse impacts and reduce a facility's regulatory liability. For thereasons explained above, therepeal of30 TAC 

### § 111.155 is ill-advised and not supportedby HCPHESPCEHD and BAQC. Ifyouhave any questions orneed additional informationregarding this matterplease contact Paul Newmanat 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 ElenaMarks, HealthPolicy Director, City ofHouston Mayor's Office01/13/06 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 RegisterTeam

.OHice ofLegal Serv_ices

PO Box 13087 Austin., 

### TX 78711-3087 

### Regarding: Proposedrepc;:al oftheproperty-lineparticulate standard
DearMs. Spencer: These comments are submitted onbehalfofLoweue & 

### Frederick.
I urge you not·tG repeal the p'roperty line standards (i.e., 

### 30TAC § 111:155). 

### This is a 

### valuable reglilation with whichto control emissions from various facilities, but

### itis particularly valuabJe for controlling emissions from rock and concrete crushers.**~s** 

### you are likely aware, enforcement

### is a difficult task whererock and concrete crushers are concerned. The sites are numerous and are oftenremote from TCEQ regional offices (e.g.• they are often

### in rural areas). Agency en(orcementresources arelimited. So 

### atool like

### theprope11y line standards that helps 

### pre-emptsome ofthe need for enforcementand streamlines enforcement, when enforcementmust occur, shouldnotbe 

### abandoned. Atthe time of

### the 

### 1989 amendmentto the rule, industry advocates also soughtto have therule repealed. The agency withstood

### this effort. 

### It noted, then, that "the standards have proven to be effective enforcementtools during the 15 years they have been 

### used. 

# * * * [R]emoval ofthe ground level standards would leavenopa11iculate controls inplace, which would aggravatenuisance .conditions." 14 

### Tex. Reg. 

### 3296 (July 4, 1989). 

### Frol:l1 the context ofthe 

### quoted language, it 

### is 

### clear the agency was 

### contrasting "particulate cm1tmls" with the contro1s afforded bythe PM 10 

### standard; "particulate controls" meant contTols for 

### particles largerthan 10 

### microns. 'What the 

### agency said in 1989 

### is still true: the property line standards can be an effective enforcementtool, and, were they repealed, there wouldbeno 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 confhmthe benefitofthe property.line stangards. Considerthe January 1 

### Ot11

, 

### 2002, investigationatthe 

### Texas Lime Company site in Cleburne. Your stafffrom the Arlington office reported feeling particulates impacting their faces, and they recorded two complaints ofhealth effects that included stinging**~nd** 

### 'irritation:ofthe eyes. Your staffreported "noticeablehaze" surrounding the site. Upwind anddownwind monitoring revealed four offour 1-hour samples violated the property line standard, and it r.evealed t\.vo offour 3-hoursamples violatedthe property line· standard. So, clearly, the property line standardprovided some quantitative support for the observed and reported nuisance conditions. A similar co1tfim1ation can be found inthe March 22, 2001, investigation ofthe Galvanizing Services facility in Houston, across from the police substation. Burning eyes, among other conditions, had beenrepmied, and those reports promptedthe investigation. Again, all tests (one 3-hour and three 1-hourtests) revealed exceedanccs ofthe respective propertyline standards. At an investigation ofthe CapitolAggregates site in San Antonio (October 29, 1998), your central office Source SamplingTeam experienced "the gritty fee1ofparticulate when facing in the general direction ofthe plant, which req-qired samplingpersonnel to clean their safety glasses several times." Sure enough, upwind and downwind sampling revealed violations ofboth the 1- and 3- hour standards. The existence ofthe prope1iy 1ine standards gives permit engineers a quantitat1ve measure by 

### whichto anticipateprobable nuisance conditions- orthe lack thereof- at facilities seekingpermits. Dispersion modeling, while not a perfectpredictor offuture conditions, is very widely used in pcm1itting, .and'it, when applied to particulate emissions from a facility, can give the permitwriter considerable objective insightinto 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 causedby

### particulate emissions. Thoughpe1mit applicants have apparently complained ofthe overhead associated with conducting property line dispersionmodeling as an element ofthe pe1mittingprocess, thepractical benefits ofidentifying and, presumably, preventing nuisance conditions before facilities begin operationsjustifythat overhead.
In conclusion, the agencyproperly analyzed this issne 

### in its 1989 mlemaking. The property line**st~ndards** 

### ·serveboth 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

F0 UN DED 189 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, 

## HoustonRegional Group P. 0.Box 3021 

### Houston, Texas 77253-3021 713-895-9309 http://texas.sierraclub.org/houston/



### Rr-c,..." 

### 'r-0

c C:l\. 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 ofthis repeal proposal, states thatTSP deals with nuisance dust and not health effects. This is not true. The range of particulate matterthat 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.

"Whenwetrytopickoutanything

### byitself, we find ithitchedto everything

### else in theuniverse."

### jolmMttir

Printed on 100% Kenaftree 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 ofthe 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 

### FACSlMILE**239~4808** 

### Ms. Joyce Spencer 

### MC205 TexasRegister

### Team 

### Office of

### Legal Seniices 

### P.O. Box 

### 13087 Austin,

### Texas 78711-3087 Re: 

### Rule ProjectNo. 2005-0**13~**

### 111-EN 

### ProposedRepeal

### of 30 T.A. C. 

### § 111.155 DearMs Spencer: I 

# 8

Thank you for the opportunity

### to provide comments on

### the proposedrepeal of30 T.A.C. 

### § 111.155. SouthernCrushed Concrete, Inc. ("SCC") supports

### the Texas Commissionon 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 andtopreventnuisance PM, including the requirementto employ BestAvailable Control Technology ("BACT") in permits, utilizing the existing opacity limits in 

### § 

### 111.111 and§ 111.113, and the generalprohibition

### on nuisance found in 

### § 

### 101.4. Current 

### § J.ll.l55 also presents 

## an Ullllecessary impediment to permittmg facilities 

### in Texas. 

### The practice ofrequiring permit applicants to demonstrate compliance 

### with 

### the § 

### 111.155 net 

### PM concentration standards through modeling should not provide a tool for challenging the issuance ofa permit when 

### in-fact there is 

### no real basis for those standards. 

### The repeal of§ 

### 111.155 would eliminate

### this baseless hurdle in

### the permittingprocess. We appreciate the opportunity to submit comments on the proposed repeal of§ 111.155. Ifyouhave any questions, please do not hesitate to 

### contactme 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 RegisterTeam Office ofLegal Services 

### P.0. Box 13087 Austin, Texas 78711-3087 Re: Rule ProjectNo. 2005-013-111-EN 

### ProposedRepealof 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 of30 T.A.C. § 

### 111.155. 

### Temple-Inland Forest Products Corp. 

### ("Temple-Inland") supportsthe Texas Commissionon 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§ 101.4. 

### Temple-Inland suppons the proposed repeal of30 T.A.C. § 111.155. 

### We appreciate the opportunity to submit comments on the proposed repeal of § I11,155. 

### 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



### ViaTelecopy at (512) 239-4808 Ms. Joyce Spencer MC205 TexasRegisterTeam OfficeofLegal Services 

### P.O. Box 13087**Austin~** 

### Texas 78711-3087 Re: ProjectRuleNumber

### 2005-013-111-EN January 

### 12,2006

Proposed

### TCEQ Repeal of§ 111.155 andCorrespondingRevisiontothe State ImplementationPlan Dear

### Ms. Spencer: 

# 8

These comments are filed by 

### the Texas Pipeline Association (TP 

### A) on the above-styled rulewhich

### proposesto repeal 30 TEX. ADMIN. CODE 

### § 

### 111.155 fromthe

### regulations oftheTexas Commission on 

### Environmental Quality 

### (TCEQ). The TPA 

### consists 

### ofmembers who gather, transport, 

### andprocess

### natural gas and liquids through intrastate pipelines

### inTexas. The TPA supports theTCEQ's proposal

### torepeal § 

### 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 ofother currently existingtoo)s 

### inthe enforcement ofPM

### NAAQS is

### preferable 

### both as a public health 

### standard and to provide 

### more 

### certain compliance 

### standards to 

### regulated industry. The TPA supportstheproposedrepeal 

### inthat 

### itwill reduce the need 

### for modeling

### data that CutTently must be submittedwhenrequesting

### an airpermitandwillreduce 

### delays inpermitissuance. 

### This concludes our comments onthe TCEQ's repeal ofrepeal 

### of

### § 111.155. We appreciate 

### the opportunity to make these comments 

### and we are available to answer 

### any questions that you might

### have on our comments.

ExecutiveDirector
604 West 14th Street, Austin. Texas 78701 phone: (512) 478·28/1 tax: (512) 473·8476 Email: rexaspipelineassociatlon@yanoo.comINDEX OF ORAL TESTIMONY December 15, 2005, Austin, Texas, Texas Commission on Environmental Quality



### No oral testimonywas 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 ofAir 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, ChiefClerk Glenn Shankle, Executive Director
David C. Schanbacher, P.E"(..) ChiefEngineer Date: April 7, 2006



### DocketNo.: 2005-1606-RUL 

### Subject: CommissionApproval for Rulemaking Adoption Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter TSP Rule Evaluation Rule Project No. 2005-013-111-EN


### Reasons for the rulepackage: On July 

### 28, 2004, the commission initiated rulemaking for §111.155 in response to 

### a petition filed by BakerBottsL.L.P. Thecommissionstatedthatrulemakingwouldinclude anevaluationof§111.155,with stakeholder involvement, to determine 

### ifthe currentrule is adequate, needs to be amended, orneeds to be repealed. TCEQ staffevaluated 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 ofapublic meeting held onAprilS, 2005, were included inthe staffevaluation ofthe rule. Based on the staffs evaluation and stakeholder input, staffrecommends the repeal of 

### §111.155.



### • Under what 

### authority are we adopting these changes? The repeal is authorizedunderTexasHealthandSafety Code, §382.017, concerningRules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe 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, consistentwith theprotection ofpublic health, general welfare, andphysical 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, whichauthorizesthe commissiontoprescribereasonable requirementsformeasuring and monitoring the emissions ofair contaminants.



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

### No.

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

### No.Commissioners Page 2 April 7, 2006
Re: Docket No. 2005-1606-RUL



### • Whatissue(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 scienceunderlying the basis of §111.155is largelyunlmown due to thelackofdocumentation. However, the limited evidencethat is.availablepoints to professionaljudgmentand policyplaying 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 ofPM. 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 ofTSP was prominent at both the state and federal levels during, and hmnecliately following, the promulgation of §111.155. However, the majority offederal 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 ofPM size fractions smallerthan TSP. TSP has since beenrelegated to nuisancePMconcerns. 

### Itis generallyunderstoodthatdetermining nuisance ishighly 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, areused to address nuisance PM.
Based on staffevaluation, as well as stakeholder input, staffrecommends the repeal of §111.155 giventhatitis notbased on good sciencenor is itcurrentand necessary. Staffhas determinedthat 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) orpreventthe agency from achieving its mission ofprotectinghuman and natural resources, in particular the goal ofclean air.



### • Why is it important that we do this rule package? Rulemaking will remove air standards thattheTCEQ 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 importantbackground or historical information. The State ofTexas adopted-the provisions of §111.155 with an effective date ofJuly 18, 1989. The provisions established net ground-level concentrations in ambient air for PM of 200 microgramsper cubic meter (jJ.g/m3) (averaged over any three consecutive hours) and400 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 ofTexas. 

### Scope of**th~** 

### rulemaking: OnJuly.28, 2004, the commission initiated rulemakingfor §11J. .155 in response to a petitionfiled by Baker Botts 

### L.L.P. The commission stated tl1at rulemaking would include an evaluation of §111.155, with stakeholder involvement, to determine ifthe currentrule is adequate, needs to be

### Commissioners Page 3 April 7, 

### 2006 Re: Docket No. 2005-1606-RUL amended, or needs to be repealed. TCEQ staffhas completed their evaluation ofthe rule, with stakeholder input, and determined that §111.155 needs to be repealed. • Changes requiredby federal rule: None. • Changes requiredby state statute: None. • Staffrecommendations that are not expressly required by federal rule or state statute: • Ambient PM standards listed in §111.155 are not scientifically defensible; • TCEQhas adequatetools andproceduresto address PMfrom ahumanhealth and welfare perspective; and • §111.155 should berepealed. Impact onthe regulated community: • Who will 

### be affected? 

### All businessesthatmustdemonstrate compliance with §111.155, particularly aggregate industries such 

### as rockcrushers, cement

### kilns, asphalt batch plants, etc. Keeping the currentrule 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 itcreate a group ofaffected persons who were not affected previously? How? No. • Willthere be a fiscal impact? 

### H so, estimate. No. Impact onthe public: • Who will be affected? Repealing the rule shouldnot affectthe generalpublic. 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 enforcementperSpective. However, repealingthe rule could create the perception that the agency is relaxing air quality standards. • Does it create a group ofaffected 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 ofthe 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 ofthe 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 

### Whatpolicy 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 ifthis rulemaking is not approvedto go forward? TheTCEQ will retainarule thatis notbased on currentscience and is notscientifically defensible. In addition, the rule is not necessary for the agency to address PM. • Arethere 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 Registerfiling 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 ofElectric Companies ofTexas (AECT) supported the proposed repeal of30 TAC § 

### 111.155.

• City ofHouston Bureau ofAir Quality Control (BAQC), Environmental Defense, Harris County Public Health & 

### Environmental Services Pollution Control & 

### Environmental Health Division (HCPHESPCEHD), Houston Regional Group ofthe 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 ofTitle 31 ofthe Texas Administrative Code. Section 111.52 was repealed on July 4, 1989, along with the rest ofChapter 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 ofRegulation I, Board Order 72-2, whichCommissioners Page 5 April 7, 2006
Re: DocketNo. 2005-1606-RUL includes aproposal to include §111.155 to the Texas SIP. Since the commissionhas 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 ofRule 105.2 from the SIP. 

### Agency contacts: Kathy Singleton, Rule Project Manager, 239-6098, Air Quality Planning and Implementation Division, ChiefEngineer's Office Alicia Lee, StaffAttorney, 239-0133 Jqyce Spencer, Texas Register Coordinator, 239-5017
Attachments

cc: ChiefClerk, 5 copies Executive Director's Office David C. Schanbacher, P.E. JasonSkaggs Ashley 

### K. Wadick Brent Wade Office ofGeneral Counsel Kathy Singleton Joyce Spencer

cc (without attachments): Alicia Lee, StaffAttorney 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 ofthe 

### Texas Register (30 TexReg 7821).

Since the original submission of §111.155 as a revision to the state implementationplan (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 OFTHE FACTUAL BASIS FORTHE 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 ofthe PM NAAQS, the



### 1TACB 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 of200 and 400 j.J.g/m3

, averaged over any three- and one-hour periods, respectively. The
PM indicator for §111.155 effectively remained TSP. Onthe national level, the 1971 PM NAAQS

were modified in 1987, with particulate matter ten micrometers or smaller in diameter (PM 10) 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 ofscientific progress made since the promulgation on the 1971 PM NAAQS. This progress occurred in numerous facets ofPM 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 ofPM10 serving as an indicator for

coarse PM, and the establishment ofa 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 (PM 10 

### 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 ofthe state were required to comply with all sections ofthe prior rules by December 31, 1973. Subsequent SIP revisions in 1979 and 1980 required implementation ofrevised sections ofChapter 111 in individual areas not meeting the PM NAAQS. Following the PM NAAQS change from TSP to PM 10, 

### in 1987, new PM SIP revisions were adopted.
PM 10 

### SIP revisions were adopted in 1988, 1989, and 1991 that cited Chapter 111 as a control strategy for El Paso County, the one area in Texas not meeting the 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 ofmodem air quality regulation, results in unnecessarily long delays in air permit issuance, imposes PM controls without evidence ofnuisance 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 ifthe current rule is adequate, needs to be amended, or repealed. As part ofthis 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 ofthe 1967 and 1972 PM standards. Based

onpublished literature he authored as well as his written comments to the commission, the 1972 PM standards were based primarily onthe professionaljudgment ofair 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 ofhealth effects ofPM, 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 ofPM-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 ofpotential health effects. Therefore, the currentPM 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.



### 4The use of §111.155 as a tool to address nuisance PM has historically occurred in the areas of enforcement, through the use ofambient air monitoring to determine net PM source contributions, and
air permitting, generally with the use ofair dispersion modeling. The PM standard is used infrequently as an enforcement tool for nuisance PM, due to the monitoring requirements to determine compliance. Onthe few occasions when monitoring is conducted, complexities such as accessibility of monitoring locations, weather, wind patterns, confounding PM sources (e.g., traffic onunpaved 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 30TAC §101.4. Interms ofairpermitting,
modeled ambient levels ofTSP 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 TSPhave raised concern about the accuracy of
these modeled estimates. Inaccurate modeled estimates may result in imposing PM controls without
evidence ofnuisance conditions (aside from modeling results) and candelay issuance ofairpermits.
BACT and special permit conditions may serve as more reliable preventative tools for airpermitting to address nuisance PM without being unduly burdensome to the regulated community.

To obtain a perspective ofother 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 ofstates, with 40 out of50 states nothaving



### 5

### ambient standards for nuisance PM. In lieu ofambient 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 ofmodeled PM concentrations to the PM NAAQS. Many ofthese rules and procedures are currently available and used by the commission. As discussed previously, examples oftools 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 ofdocumentation. However, the evidence that is available points to professionaljudgment and policy playing a significant role in the derivation ofthe 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 ofstate regulatory authorities have since replaced TSP ambient standards with
PM standards ofa smaller PM size (i.e., PM 10, 

### PM2• 5). 

### These changes were dictated by advances in the science ofPM that highlighted the importance ofPM 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 ofindividuals for PM depending on the use oftheir property. This subjectivity prevents the establishment oftechnically-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 ofRegulation 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 onthe 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 ofthe 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 onJune 8, 2005, "Demonstrating noninterference Under Section 110(1) ofthe 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 ofthe identified existing measures in the rule preamble to show compliance with option (1) ofEPA's guidance: Substitution ofone 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 onJanuary 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 ofChapter 111 of31 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 onJuly 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 apending action related to the reorganization ofRegulation 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 ofRule 105.2 from the SIP.

TSP in the 1970s was replaced by PM standards in the 1980s. In terms ofhealth 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 ofPM-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, nothealth effects. The TACB's TSP standard was established to eliminate nuisance conditions while the PM10 

### standard was designed to protect health.

Since the promulgation ofthe original rule, the federal national ambient air quality standards for total suspended particulates has been repealed, in favor ofthe 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,
111.147, and 111.149 make the general PM rule superfluous and redundant. The current rule has been



### 9

### one ofthe 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 staffin 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 ofparticulate matter actually caused health effects. PM was based

on what couldbe 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 beenprimarily on PM10, 

### particles 10 microns and smaller because those are the particles that can actually pass the upper respiratory system into the lungs. The PM 10

### NAAQS regulations were passed to regulate this particle size fraction. Additional scientific researchprompted
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 PM 10 

### 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 ofparticulate matter for a point source, the permit conditions will require BACT for the control ofthe 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. Tolimit 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 ofa Permitby Rule, and also required in the agency's Standard Permits. These practices could include watering ofroads within the plant site, covering or watering ofstock piles, limiting the size and location ofthe piles, and covering and/or watering oftransfer point on conveyor belts, all which will help in the control offugitive particulate matter emissions. Finally, due to the differing types ofparticulate 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 ifa nuisance condition has occurred, a pound ofcarbon black, which has a greater rate ofcoverage, is not the same as a pound oflimestone dust.

b) Enforcement ofthe current rule for compliance purposes consisted of 17 notices ofviolation and five notices ofenforcement 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 inplace:

1) 30TAC §101.4, General Nuisance Rule, 40 Code ofFederal Regulations (CPR) §52.2299(c)(7) Provides for case by case determination ofwhether an air contaminant release is a nuisance;



### 112) 30TAC §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 ofcontinuous 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 ofevidence" 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 ofApplication and Date ofCompliance, 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 ofcontrols to be applied to the identified categories.

All ofthe rules identified previously are approved as part ofthe 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 ofthe regulatory analysis requirements of
Texas Government Code, §2001.0225, and determined that the adopted repeal does not meet the definition ofa "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 ofwhich, 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 ofthe state or a sector ofthe state. The specific purpose ofthe 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 OFTHE FACTUAL BASIS FOR THE ADOPTED REPEAL section ofthis 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 ofwhether
this action would constitute a taking under Texas Government Code, Chapter 2007. Promulgation and
enforcementofthis proposed repeal would be neither a statutory nor a constitutional taking ofprivate
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 ofa government action. Consequently, this adoption does not meet the definition ofa 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 notconstitute 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,



### 14as 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 ofthe 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 ofthe CMP. The commission reviewed this action
for consistency with the CMP goals and policies in accordance with the rules ofthe 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 ofcoastal 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 ofemissions control as the existing rules. The CMPpolicy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 Code
ofFederal Regulations to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 Code ofFederal Regulations Part51, Requirements for Preparation, Adoption, and Submittal ofImplementation 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



### 15the 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 ofElectric Companies ofTexas (AECT), City of
Houston Bureau ofAir Quality Control (BAQC), Environmental Defense, Harris County Public Health 

### & Environmental Services Pollution Control 

### & Environmental Health Division (HCPHESPCEHD),
Houston Regional Group ofthe 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 ofElectric Companies of
Texas (AECT) supported the proposed repeal of30 TAC §111.155.



### The commission appreciates this support.

BAQC and HCPHESPCEHD commented on the key role of §111.155 in predicting nuisance impacts ofparticulate 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 ofparticulate matter, such as roads, are difficult, if

### not impossible, to accurately model during the permitting
process. These emissions are hardto accurately quantify through emission factors andthe

sources arehardto accurately characterize. Consequently, §111.155 does not accurately predict potential nuisance impacts. While the agency agrees thatthemodeling process itselfis not burdensometo the regulated community, the inability to adequately model some sources does present anunnecessary burden on the regulatedcommunity to comply with §111.155. Insteadof quantifyingthese emissions, permitprovisions, such as roadwatering, are addedto reduce and controlthese emissions. In addition, opacity limits 

### setby §111.111 and §111.113 andthe general nuisance rule in §101.4 areutilized andresult in issuance ofNotices ofViolations. The agency therefore asserts thatthese enforcementtools, in addition to secondary PM10 

### andPM2• 5 

### standards requiredbythe National Ambient Air Quality Standards (NAAQS), are adequate to address PM nuisance concerns.

Environmental Defense further provided scientific documentation ofadverse health effects from shortterm exposure to PM and commented that §111.155 provides protection against short-term exposures
to respirable fractions ofPM that the 24-hour and annual PM NAAQS do not. HSC is also concerned
that TSP contains a range ofparticles that can cause welfare and health effects. In addition, one ofthe provided studies suggested that particle composition may differentially affect toxicity.



### 17

### The agency agrees that TSP contains a fraction ofrespirable PMless than 10 IJ.m in 

### diameter. However, as Environmental Defense mentioned, the exact proportion ofthe respirable fraction varies from source to source. More importantly, there is no scientific basis for the established one-hour value of400 j.lg/m 3 

### and three-hour value of200 j.lg/m 3 

### andno evidence that these values provide health protection. In addition, the net measurement used to determine these values can result in underestimation ofactual particle concentrations. Forexample, ifconcentrations both upwind and downwind ofa facility arehigh, the net concentrationmay be well below the one- or three-hour TSPvalues but may not be protective ofhealth and/or nuisance conditions. Therefore, the agency disagrees that §111.155 provides short-termhealth protection not afforded by the PM NAAQS.

Regarding thetoxicity ofindividual particle components, the agency agrees thatthe toxicity of
PM can be influenced by the particle composition. Therefore, Effects Screening Levels (ESLs) have been established for particles, such asmetals. These ESLs are used during the permitting and enforcement processes to assess potential adverse health effects andprovide healthprotection
not affordedby §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 ofa facility and potentialunderestimation ofthe 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 statedpreviously,

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 byroad access and obstructions attheproperty line. For these reasons, theagency does not agree that 

### High-Volume Air Sampling is straightforward and more scientifically precise than field operations.

HSC also commented that use ofthe term "ambient air" is inappropriate in describing property-line samples.



### The agency disagrees with this comment. Section 101.1(4) defmes "ambient 

### air" as "Thatportion ofthe atmosphere, externaltobuildings, to whichthe general public has 

### access." The property line includes an areaoutside ofthe company's property and an area where the general public could potentially have legal access. Theterm "source" is also defined in §101.1 as: "(97) SourceA point oforigin of

### air contaminants, whether privately or publicly owned or operated••••" Therefore, under commission defmitions theproperty line ofa site would notbe considered a

source since itis not the point oforigin ofan 

### air contaminant.

HSC recommended the addition ofstandards for particulate matter 10 IJ.m and 2.5 IJ.m in diameter.
HSC also commented that information onpollutants other than nuisance dust canbe 

### gained from property-line TSP monitoring.



### 19

### The agency agrees that particles 10 IJ.m (PM11

## J 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 ofTexas. This provision allows fence-line monitoring ofPM10 

### and PM2.5 

### that is more stringent than net property line measurements. In addition, speciation of fence-line PM10 

### can provide importantinformation on respirable air pollutants.

Lowerre 

### & Frederick commented that during the 1989 amendmentprocess 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 ofthe 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 occurred45 times. Ofthese, only 11 Notices ofViolation and five Notices ofEnforcementwere issued to a total ofnine separate entities. The reason this rule is rarely used in enforcementtoday is that controls, such as special permit conditions requiring Best Management Practices, now serve the same purpose. Enforcement ofthese permit conditions, including requirements to water roads and facilities, eliminates the need for TSPmodeling 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
measurementmay not provide evidence ofnuisance 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 SIPrevision to replace Rule 105.2with §111.155 onAugust 21, 1989. EPA is 

### currently reviewing a pending actionrelated to the reorganization ofRegulation I, Board Order 67-1, which includes a proposal
to include §111.155 inthe Texas SIP. The commission requests thatEPA remove §111.155 from consideration in the pending request atEPAfor inclusion into the SIP.

21

# STAFF RECOMMENDATIONS

### CHAPTER 111: CONTROL OFAIRPOLLUTIONFROMVISIBLE EMISSIONS AND PARTICULATE MATTER SUBCHAPTERA: VISIBLEEMISSIONS 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 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 ofpublic health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality ofthe 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 ofthe state's air.

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, 382.016, and 382.017.



### §111.155. GroundLevel Concentrations.

### TEXAS COMMISSION ON

# ENVIRONM~~~t**QU.ALlt:i** Ihe.-ebycertilY m:tthis L;**.~ ~nk**  emu correct copyata TexasCommiss1on on Environmental Qualitydocument which isfiled inthe permansn! records ofthe Commission. Given un my nand and :1e seal ofoffice on 

# JUN 06

# 2006

La ' '**e~~~'** Oft!llfC:lefl\ 

### ORDERADOPTING REPEALED**RDI9~ion**on Environmental Quality 

### REVISIONTO THE STATEIMPLEMENTATION PLAN

Docket No. 2005-1606-RUL
On May 17, 2006, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofthe repeal of § 

### 111.155. The Commission adopts this repeal, in Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter, Visible Emissions and Particulate Matter, and a corresponding request to remove from EPA consideration a currently pending requestfor the inclusionof30TAC § 

### 111.155 inthe state implementationplan(SIP). UnderTex. Health & 

### Safety Code Ann. §§ 

### 382.011, 382.012, and 382.023 (Vernon 2001), the Commissionhas the authority to control the quality of the state's air and to issue orders consistent with the policies and purposes ofthe Texas CleanAirAct, Chapter 382 ofthe Tex. Health & 

### Safety Code. Theproposedrepeal was published for comment in the November 25, 2005 issue ofthe 

### Texas Register (30 TexReg 7821).
Pursuantto Tex. Health & 

### Safety Code Ann. § 

### 382.017 (Vernon2001), Tex. Gov'tCode Chapter 2001 (Vernon2000 & 

### VernonSupp. 2005), and 40 Code ofFederalRegulations §

### 51.102and afterproper notice, the Commissionconducted a publichearing to considerthe proposed repeal and requestto remove 30 TAC § 

### 111.155 from considerationas a SIP revision. Propernotice includedprominent advertisement in the areas affected atleast 30 days priorto the date ofthe hearing. Apublichearing was held inAustin, Texas on December 15, 2005.
The Commissioncirculatedhearing notices ofits intended actionto thepublic, including interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed repeal and SIP revision, either orally or in writing, at the hearing or during the commentperiod. Prior to the scheduled hearing, copies of the proposed repealand 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, andrecommendationsofinterestedpersonsregardingthe proposedrepeal 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 oftestimony includes the names ofall 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 arehereby adopted. The Commissionfurther authorizes staffto make any non-substantiverevisions to the rule necessary to comply with Texas Register

### requirements. The repealed rule and the preamble tothe 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 ofthis 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 Orderconstitutes the Orderofthe CommissionrequiredbytheAdministrativeProcedureAct, 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 ofany portion shall not affect the validity ofthe remaining portions.

Date issued: 

# JUN Q 

# 52006

. 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 POLLUTIONFROM VISIBLE EMISSIONS AND PARTICULATE MATTER SUBCHAPTERA. 

### VISIBLE EMISSIONS AND PARTICULATE MATTER DIVISION 5. EMISSIONS LIMITS ON NONAGRICULTURALPROCESSES 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 requestfor inclusion of§111.155 as a revision to the SIP. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL TheTexasAirControl Board (TACB)firstdeveloped and adopted ambientairstandardsfor 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 ofthe state that suggestedthat PM control was necessary. Atthe time, the sampling method typically used for ambient PM was high-volume sampling. High-volumesamplers collected the PM sizefraction 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 airquality 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. Followingtheestablishmentofthe PM NMQS, theTACB significantly revised the state ambientairstandardsfor PM in 1972. The revised standards established net ground-level concentrations in ambientairfor PM of 100, 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 (PM 10) replacing TSP as the PM indicator and new primary and secondary NAAQS established. The rationale for replacing TSPwith PM,. relates to the significant amount ofscientific progress made since the promulgation on the 1971 PM NMQS. This progress occurred in numerous facets of PM research, ranging from monitoringtechnology (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 indicatorfor coarse PM, and the establishmentofa new, additional PM indicator, particulate matter2.5 micrometers orsmaller in diameter (PM._,). This new indicatorwas selectedto addressfine PM based on the emerging sciencethat PM smallerthan PM,. was more strongly associated with premature mortality and severe morbidity. Current PM NAAQS (PM and PM

... NAAQSestablished in 1997)are under reviewand 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 TSPto 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 inconsistentwith 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 regulatorytoolto 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 divisionsto 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.



### ADOPTEDRULES June 2, 2006 31 TexReg 4651In terms of health effects of PM, research overwhelmingly supports respirable PM (PM that can enter the lungs, generally regarded as ten micrometers orsmaller in diameter) asthe primary causative agentof PM-related health effects, particularly premature mortality and severe morbidity. PM fractions largerthan 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 concernsthan standards based onTSP, such as§111.155 or its predecessor, Rule 105.2. Additionally, the commission has developed effects screening levels (ESLs)to address health and welfare concernsfor specific airpollutants 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 30TAG §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 levelsto 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 ofthese modeled estimates. Inaccurate modeled estimates may result in imposing PM controlswithout evidence ofnuisance 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

# aperspective ofotherstate 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 ofambient 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 oftools 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., PM 10, 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 oftheir 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 notweaken theTexas 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 forinclusion intothe SlP. As discussed previously, there areother 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 providesthefollowing information to clarify why the repeal of§111.155, Control ofAir Pollution from Visible Emissions and Particulate Matter, (previously Rule 105.2) from TAC and the Texas SIP will not negatively impactthe attainment status ofthe 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 showcompliance 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 105.2was 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 EPAto 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 nottocontinuewith the inclusion of§111.155 intothe Texas SIP, and to continue with the removal of Rule 105.2 from the SIP. TSP inthe 1970swas replaced by PM standards inthe 1980s. In terms of health and welfare effects of PM, research overwhelmingly supports respirable PM (PM that can enterthe 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 105.2. The state does not rely on §111.155 in attainment demonstration SIPs as a control strategy. Forthe 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 regulatoryhistory does notprovide anyexplanationfor howthe limits in §111.155were established. It is clear, however,

· thatthe limits were intendedto 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 ofthe 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 ofcurrent regulations andrequirements 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 ofthe 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 permitare relied upon bythefield operations staffin 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. Atthat point in time itwasn'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 thatthe smaller particles actually cause negative health effects. Sincethen, thefocus has been primarily on PM,•• particles 10 microns and smaller becausethose are the particlesthatcan actually passthe upper respiratory system into the lungs. The PM,.NMQS regulations were passed to regulate this particlesizefraction. Additional scientificresearch 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 ofthe emissions. Furthermore, there is a health effects review conducted, whichwill review theexpected emissions againstthe NMOSfor PM,. and thespecific compounds, which make upthe particulate matter, will be reviewed to ensure that off-site receptors are not adverselyaffected. To limitthe potentialfora nuisance condition from particulatematter, permitlanguagedoes require continuous compliance with all rules and regulations passed bythe TCEO. This includes the agency's rules prohibiting nuisance conditions and excess visible emissions. Best Management Practices are also placed intothe permits, required as partofa Permitby Rule, and also required intheagency'sStandard Permits. These practices could includewatering of roads within the plantsite, covering orwatering ofstock piles, limitingthe size and location ofthe piles, and covering and/orwatering oftransfer pointon conveyor belts, all whichwill help inthecontrol offugitive particulate matter emissions. Finally, duetothedifferingtypes ofparticulate matter and the properties that each one has, it is nottechnically feasible to determine a nuisance condition based on a single TSP standard. For example, when determining if a nuisance condition has occurred, a pound ofcarbon black, which has a greater rate ofcoverage, is notthe same as a pound of limestone dust. b) Enforcement ofthe current rule for compliance purposes consisted of 17 notices ofviolation and five notices ofenforcement issued from 1998 2005. One explanation forthe seemingly low use in enforcementtoday is thatother 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 ofwhether an air contaminant release is a nuisance; 2) 30 TAC §111.111, Requirements for Specified Sources, 40 CFR §52.2299(c)(94)



### ADOPTEDRULES June 2, 2006 31 TexReg 4653Restricts 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 ofApplication 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) Regulationsspecificto El Paso, the state's only nonattainment area for PM. 1) §111.111(c)(1) includes operating restrictions for solid fuel heating devices during stagnation periods. 2) §§111.141, 111.143,111.145,111.147, and 111.149 prescribe certain types ofcontraIsto be appliedtothe 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 ofthe 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 ofwhich, is to protectthe environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs. the environment, orthe public health and safety ofthe state or a sector ofthe 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 ofthis 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 underTexas Government Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined that this rulemaking action relates to an action oractions subjectto the Texas Coastal Management Program (CMP) in accordancewith the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 etseq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistencywith Texas Coastal Management Program. As required by §281.45(a)(3), Actions Subject to Consistency with the Goals and Policies ofthe 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 ofthe 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 ofair contaminants will be authorized and the proposed revisions will maintain the same level of emissions control asthe existing rules. The CMP policy applicable to this rulemaking action is the policythat 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 accordancewith 31 TAG §505.22(e), the commission affirmsthat this rulemaking action is consistent with CMP goals and policies. EFFECTON SITES SUBJECTTOTHE FEDERAL OPERATING PERMITS PROGRAM Because §111.155 is an applicable requirement under 30 TAG Chapter 122, Federal Operating Permits Program, owners oroperators 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 COMMENTA 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 ofAir Quality Control (BAQC), Environmental Defense, Harris County Public Health & Environmental Services Pollution Control & Environmental Health Division (HCPHESPCEHD), Houston Regional Group ofthe 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 thatthe current rule is overly burdensome on the regulated community. Environmental Defense supported these comments. The commission disagreeswiththecomment becausesome 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 inabilityto adequately modelsome sources does present an unnecessary burden on the regulated communityto 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 ofViolations. 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 commentedthat§111.155 provides protection againstshortterm exposuresto respirablefractions of PM thatthe24-hourand 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 ofthe provided studies suggested that particle composition may differentially affect toxicity. The agencyagreesthatTSP contains afraction ofrespirable PM less than 10**~gm** in diameter. However, as Environmental Defense mentioned, the exact proportion ofthe respirable fraction varies from source to source. More importantly, there is no scientific basis forthe established one-hourvalue of400 1Jg/m3 and three-hourvalue of200**~g/m 3**  and no evidence thatthese values provide health protection. In addition, the net measurement used to determinethese values can result in underestimation ofactual particle concentrations. For example, if concentrations both upwind and downwind of a facility are high, the net concentration may be well belowtheone- orthree-hourTSPvalues butmaynot 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 agencydisagreeswith this comment, due tothe 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 tofield 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 atthe property line. Forthese reasons, the agency does notagree that High-VolumeAir Sampling is straightforward and more scientifically precise than field operations. HSC also commented that use ofthe 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 ofthe atmosphere, external to buildings, to which the general public has access.• The property line includes an area outside ofthe 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 oforigin of air contaminants, whether privately orpublicly owned oroperated

.... "Therefore, undercommission definitions the property line of a site would not be considered a source since it is notthe point oforigin ofan air contaminant. HSC recommended theaddition ofstandardsfor particulate matter 10 IJgm and 2.51Jgm in diameter. HSC also commented that informationon pollutants otherthan 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 ofTexas. 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



### ADOPTEDRULES June 2, 2006 31 TexReg 4655the 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 thatthe 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 ofViolation andfive Notices of Enforcementwere 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, althoughthe property line standard does provide a numerical value, the net measurement may not provide evidence of nuisance conditions, and the standards againstwhich 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 Order67-1, 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 underTexas 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 consistentwith the policy and purposes oftheTexas Clean AirAct. The repeal is also adopted underTHSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state air resources, consistentwith 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 ofthe state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizesthe commission to prepare and develop a general, comprehensive plan for the control ofthe state's air. The adopted repeal implements THSC, §§382.002, 382.011, 382.D12, 382.016, and 382.017. Thisagency herebycertifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary of State on May 22, 2006. TRD-200602856



### 31 TexReg4656 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: November25, 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 tothe 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 Parkthat is not inconsistent with sound biologica management practices normally exercised to protect or utiliz. the wildlife resources occurring therein. In 1976, the Commis ion promulgatedthe 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 underthe 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. Thedepartmentreceived one com entopposing adoption ofthe proposed repeals. The comment r stated that Sea Rim State Park was·not part ofthe public hu ting system and that hunting in the park was not covered under eitherthe Statewide Hunting and Fishing Proclamation orthe P lie Hunting Lands Proclamation. The department agreesthat 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 ofthe 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 ofwildlife to be taken a the means and methods of take.