Texas Commission on Environmental Quality and Max Midstream, LLC v. San Antonio Bay Estuarine Waterkeeper, Texas Campaign for the Environment, and S. Diane Wilson

Court of Appeals of Texas·Decided January 10, 2025·No. 15-24-00036-CV·Published

Opinion

ACCEPTED 15-24-00036-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/10/2025 4:11 PM TAB 4 CHRISTOPHER A. PRINE CLERK

Substantial Evidence Affidavit Presented to TCEQ by Max FILED IN 15th COURT OF APPEALS Midstream (A.R. 55 at 59-66) 1/10/2025 4:11:58 PM AUSTIN, TEXAS

CHRISTOPHER A. PRINE Clerk TCEQ DOCKET NO. 2021-0157-AIR AFFIDAVIT OF LUCY FRAISER, PH.D., DABT FRAISER TOXICOLOGY CONSULTING, LLC

STATE OF ARKANSAS § COUNTY OF WASHINGTON §

BEFORE ME, the undersigned authority, on this day personally appeared Lucy Fraiser, who after being duly sworn upon her oath stated as follows:

1. My name is Lucy Fraiser. I am over 21 years of age, am of sound mind, and am fully competent to make this affidavit. Each and every statement contained in this affidavit is based upon my personal knowledge, and each and every statement is true and correct.

2. I am a toxicologist. I perform air quality health and welfare evaluations, provide litigation and regulatory support and prepare soil/water human health and ecological risk assessments. I formed Lucy Fraiser Toxicology Consulting LLC in July 2017, which is a toxicology consulting firm.

I have been retained on behalf of Max Midstream, LLC ("Max Midstream") to conduct a public health and welfare effects evaluation related to the potential for health and/or welfare effects from maximum allowable emissions from the expansion of the Seahawk Terminal ("Seahawk Terminaf') proposed by Max Midstream's application for Texas Commission on Environmental Quality ("TCEQ") Permit Application No. 162941 ("Application"). I have reviewed the following documents, as well as data regarding the Application provided to me by Trinity Consultants, which prepared the air dispersion modeling for the Application: TCEQ's Air Quality Analysis Audit dated January 26, 2021 ("Modeling Audit"); TCEQ Modeling Audit dated March 4, 2021 ("Supplemental Modeling Audit"); Affidavit of Joe Kupper, Manager of the Austin Office for Trinity Consultants, in the same TCEQ Docket Number listed above for the Application ("Kupper Affidavit"); Affidavit of Tony Nguyen, Senior Vice-President for Global Innovation and Technical Services for Max Midstream, in the same TCEQ Docket Number listed above for the Application ("Nguyen Affidavit"); Comments and Hearing Requests on the Application submitted on November 12, 2020, June 4, 2021, August 17, 2021, and January 10, 2022 by Diane Wilson, San Antonio Bay Estuarine Waterkeeper, Texas Rio Grande Legal Aid, and Environmental Integrity Project ("Group Hearing Requests"); TCEQ's Modeling and Effects Applicability Review: How to Determine the Scope of Modeling and Effects Review for Air Permits (APDG 5874) {2018) ("MERA");

AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQDOCKETNO. 2021-0157-AIR PAGE]

2474029.vl TCEQ's Guidelines to Develop Toxicity Factors (RG-442) (September 2015);

TCEQ's ESLs for crude oil,< 1% benzene, and fuel oil no. 2, available in the TCEQ Texas Air Monitoring Information System Toxicity Factor Database at https://,vwvvl 7.tceq.texas.gov/tamis/index.cfm;

TCEQ's Effects Evaluation Procedure: Marine Vessels dated (August, 2001) ("Extended Tier II Guidance for Marine Terminals" at https://ri,vww.tceq.texas.gov/searchpage?g=TCEO%E2%80%99s+Effects+Evaluation+Pro cedure%3A+Marine+Vessels+dated+August%2C+2001 &btnG=TCEO+Search. These are the same type of documents that I have reviewed, or any toxicologist would be expected to review, and rely upon in conducting a public health and welfare effects evaluation. 4. I received a Ph.D. in Toxicology in 1992 from the University of Texas at Austin and a B.A. Degree in Psychology from the University of Texas at Austin in 1984. I am a Diplomate of the American Board of Toxicology ("DABT'). The DABT certification is a globally-recognized credential in toxicology. The DABT C•ertification is a certification by the American Board of Toxicology ("ABT'), which is the largest professional toxicology credentialing organization in the world. The DABT certification represents competency and commitment to human health and environmental sciences. Becoming certified by the ABT requires a combination of higher education and experience, with rigorous certification (testing) and recertification processes. I am also a member of the American College of Toxicology. I have conducted and managed hundreds of multi-pathway exposure and human health risk-assessments and risk-based corrective action evaluations over my 32-year career. Early in my career, I worked in the Toxicology Division of the Tex.as Natural Resource Conservation Commission ("TNRCC'), the predecessor agency to the TCEQ. After leaving the TNRCC in 1998, I worked for a number of different consulting firms as a toxicologist. I started Lucy Fraiser Toxicology Consulting LLC in July 2017. While I work with an environmental media, I specialize in air quality public health and welfare effe.cts evaluations. I have performed these evaluations for many industrial source types and types of pollutants. I have extensive experience performing public health and welfare effects evaluations related to air quality permit applications submitted to the TCEQ and its predecessor agency, the lNRCC. I have conducted health and welfare evaluations for proposed and/or existing emissions from dozens of industrial facilities, including hazardous waste combustion facilities, refineries, electricity generating units, chemical plants, concrete batch plants, rock crushers, cement kilns, and smelters (copper and lead). I have also performed numerous other air quality evaluations in other states not directly related to the air permitting process. I have been qualified as an expert, been deposed, and have provided expert testimony in contested case hearings, federal civil suits, and state toxic tort litigation involving potential effects of air emissions on public health and welfare on numerous occasions.

5. Applicants for TCEQ air permit applications use air dispersion modeling to predict concentrations of the pollutants from the proposed facilities at "receptors," which TCEQ modeling guidance defines as locations "where the public could be exposed to an air contaminant in the ambient air.''. Air dispersion models predict movement of contaminants in the atmosphere and provide conservative estimates {i.e., overestimates) of air pollutant concentrations at different AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQ DOCKET No. 2021-0157-AIR PAGE2

2474029.v] distances and directions from the emissions source. Exposure occurs when local populations come into contact with pollutants from an emissions release. Therefore, conservatively estimated air concentrations from air dispersion modeling are routinely used to evaluate potential exposures by providing conservatively estimated air concentrations (i.e., overestimated by comparison to actual expected exposure levels) at different locations. The concentration of a pollutant to which a member of the public is potentially exposed is critical to determining whether adverse health or welfare effects will occur. Toxicologists in TCEQ's Toxicology Division use the results from the air dispersion modeling in their toxicological evaluations of the effects of proposed emissions. The objectives of the analysis are to: 1) establish off-property ground-level concentrations ("GLCs") of contaminants resulting from proposed and/or existing emissions; and 2) evaluate these GLCs for their potential to cause adverse health or welfare effects. TCEQ's effects evaluation process, which relies on air dispersion modeling results, includes three areas of review.

6. The first TCEQ effects evaluation looks at constituents for which the U.S.

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Texas Commission on Environmental Quality and Max Midstream, LLC v. San Antonio Bay Estuarine Waterkeeper, Texas Campaign for the Environment, and S. Diane Wilson, (Tex. Ct. App. 2025).

Texas Commission on Environmental Quality and Max Midstream, LLC v. San Antonio Bay Estuarine Waterkeeper, Texas Campaign for the Environment, and S. Diane Wilson (Texas Commission on Environmental Quality and Max Midstream, LLC v. San Antonio Bay Estuarine Waterkeeper, Texas Campaign for the Environment, and S. Diane Wilson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.