Bryan W. Shaw, Ph.D., P.E., Chainnan 

Toby Baker, Commissioner 

Zak Covar, Commissioner 

Richard A. Hyde, P.E., Executive Director 

HECt:lvElJ -- GPDL 

/\IR FL!'.N~l!rlG SEC 

14 MAR -6 PH 6: 08 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

March 3, 2014 

Ron Curry 

Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Curry: 

Docket No. 2013-0457-RUL 

Rule Project No. 2013-023-111-CE 

On January 15, 2014, the Texas Commission on Environmental Quality (Commission) adopted 

revisions to the State Implementation Plan (SIP). 

The Commission adopted amendments to§ 111.211, Exception for Prescribed Burn, in 30 Texas 

Administrative Code Chapter 111, Control of Air Pollution from Visible Emissions and 

Particulate Matter, Subchapter B, Outdoor Burning; and corresponding revisions to the SIP. 

The revision to the rule allows prescribed burns for the purpose of wildfire hazard mitigation. 

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

of the public hearing, and the accompanying order. I look forward to your expeditious approval 

of these SIP revisions. 

Sincerely, 

~~~'::~ Chairman 

BWS/BP 

Enclosures 

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

How is our customer service? tceq.texas.govfcustomersurvey 

printed on recycled paper 
cc: The Honorable Rick Perry, Governor of Texas 

Mr. Nate Hickman, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Richard A. Hyde, P.E., Executive Director, Texas Commission on Environmental 

Quality 
TEXAS COMMISSION ON ENVIRONMENTAL QUALIIT 

THE STATE OF TEXAS 

COUNITOFTRAVIS 

Docket No. 2013-0457-RUL 

Rule Project No. 2013-023-111-CE 

This is to certify that the attached electronic file is included and that the 

electronic file is a true and correct copy of documents for a revision to the Texas State 

Implementation Plan, adopted on January 15, 2014, pursuant to 40 Code of Federal 

Regulations § 51.104. I am the records administrator for the Office of Compliance and 

Enforcement of the Texas Commission on Environmental Quality (Commission). 
Texas Commission on Environmental Quality 

Public Hearing on September 10, 2013 

Concerning 

30 TAC Chapter 111 

Add Wildfire Hazard Mitigation to the State's Prescribed Burn Rule 

Rule Project No. 2013-023-111-CE 
INTRODUCTION 

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

Texas, on September 10, 2013, to receive testimony regarding revisions to 30 TAC Chapter 111, 

Control of Air Pollution from Visible Emissions and Particulate Matter; and corresponding 

revisions to the state implementation plan. 

The rulemaking action adds prescribed burning for wildfire hazard mitigation as an exception to 

the state's outdoor burning prohibition. This proposed rulemaking is a follow-up to a petition 

filed by the Texas Prescribed Burning Board and approved by the commission on February 27, 

2013. 

The comment period closed on September 16, 2013. All testimony and 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: 

• Public Notification and Proposal 

• Written and Oral Testimony 

• Evaluation of Testimony 

• Staff Recommendations (includes the Order and Texas Register publication) 

Additional copies of this hearing record are maintained in the commission's central office at 

12100 Park 35 Circle, Austin, Texas, 78753. For further information, please contact Joe Janecka 

at (512) 239-1353. 
NOTICE & PROPOSAL
PUBLIC NOTIFICATION 

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

1. Publication of the notice of the public hearing in the following newspaper on the date 

listed: 

• July 29, 2013 in the Austin American Statesman 

• July 29, 2013 in the Fort Worth Star-Telegram 

• July 29, 2013 in the Houston Chronicle 

2. Publication in the Texas Register of the proposed rulemaking (38 TexReg 5223) and 

public hearing notice (38 TexReg 5357) on August 16, 2013. 

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

agencies: 

Speaker of the House 

Lieutenant Governor 

Mayor of Austin 

Travis County Judge 

Alamo Area Council of Governments 

Arkansas Department of Environmental Quality 

Capital Area Planning Council 

City of Dallas Department of Aviation 

City of El Paso 

City of Fort Worth 

City of Houston 

City of Victoria Planning Department 

El Paso Metropolitan Planning Organization 

East Texas Council of Governments 

Federal Highway Administration 
Galveston County Health District 

Harris County Public Health and Environmental Services 

Houston-Galveston Area Council 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

North Central Texas Council of Governments 

Office of Environmental Quality 

Oklahoma Department of Environmental Quality 

Southeast Texas Regional Planning Commission 

Texas Department of Transportation 

United States Environmental Protection Agency 
125785059 TCEQ · OFFICE OF LEGAL SERVI Jul 29 2013 

. AFFIDAVIT OF PUBLICATION 

STATE OF TEXAS: 

COUNTY OF HARRIS: 

Page 1 Houston Chronicle 

CLASSIFIEDS 

Before me 1 the undersigned authority, a Notary Public in and for the State 

of Texas, on this day personally appeared 1 the Newspaper Representative 

at the HOUSTON CHRONICLE, a daily newspaper published in Harris County, Texas, 

and generally circulated in the Counties of: HARRIS 1 TRINITY, WALKER, GRIMES, 

POLK, SAN JACINTO, WASHINGTON, MONTGOMERY 1 LIBERTY, AUSTIN 1 WALLER, CHAMBERS, 

COLORADO/ BRAZORIA, FORT BEND, GALVESTON, WHARTON/ JACKSON/ and MATAGORDA 

and that the publication, of which the annexed herein, or attached to, 

is a true and correct copy 1 was published to-wit: 

TCEQ - OFFICE OF LEGAL SERVI 

RAN A LEGAL NOTICE 

L 

date 

25785059 

SIZE BEING: 1 X 134 

product 

he Jul 29 2013 

class 

1245.0 

NEWSPAPER REPRESENTATIVE 

Notary Public in 

29696122 

page 

B_monlg_8 
Houston Chronicle 

july 29, 2013 

\,! ........... --..... • ... --·- -·---#-

TEXAS COMMISSION 

ON ENVIRONMENTAL 

QUALITY Protectlnq Texas by Reducmgand Preventing Pollution 

NOTICE Of PUBLIC 

HEARING ON 

PROPOSED REVISIONS 

TO 30TAC CHAPTER 111 

AND TO THE STATE 

IMPLEMENTATION 

PLAN 

The l'exas commission 

1 on ~rwironmental 

Quality (commission) wlll conduct a public '!Elaring to receive tes· 

t1mony regarding pro· posed revisions to 30 

Texas Administrative 

Code (TAC} Chapter 111, Control of Air Pol· 

lutlon from Visible 

Emissions and Partlcu· 

late Matter, §111.211, and correspandl ng re· 1 

visions to the state ' 

Implementation plan I 

(SIP) under the re· ' 

quirements of Texas I Health and Safety Code, §382.017: Texas 

Government Code, 

Chapter 2001, Sub· I 

chapter B· and 40 Code 

of Federal Regulations 

§51.102 of the United I 

States Environmental 

Protection Agency (EPA) conr.erning SIPs. 

)he propased rulemak· 

mg would add pre· scrl bed burning for . -.y!ldflre hazard mitlga· ' t1on as an exception to · the ~tate's outdoor · burning prohibition. This proposed rulemaking is a follow-up to a petition filed bY. 

the Texas Presctibea 

Burning Bo£~rd and ap· J 

proved by the commis· 

1

. S1on on February 27, 

2013. • 

The commission will 

hold a public hearing , on this proposal In 1 

Austin on september 10. 2013, at 10:00 a.m. in 

Building E, room 2015, 

at the commission's 

central office located at 12100 Park 35 Circle. , The hearing Is struc· · tured

1 

for the

1 

treceipt of 1

1 ora or wr ten com· . ments by interested ' : persons. Individuals : may present oral state· : ments when called . upon In order of regis· · tration. Open d lscus· 

slonwill not be permit· . ted during the hearing; ! however, commission : staff members will be 

available to discuss 

the proposal 30 min· 

utes prior to the hear· 

In g. 

Persons who have spe· Cl\11 communication or other accommodation n~eds who are plan· 

nmg to attend the 

hearing should contact 

Sandy Wong, Office of 

Legal Services at (512) 239-1802. Requests should be made as far 

in advance as possible. 

Written comments 

may be submitted to 

Michael Parrish, MC II 

205, Office of Legal I i 

services, Texas COm· 11 

mission on Environ· 

mental Quallty 1 1 P.O. 

BOX 13087, AUStin, Texas 78711·3087 or faxed to (512) 239·4aOa. 

Electronic comments 

may be submitted at: 

http://WWWS.tceq . texas.gov/ru,eS/ 

ecomments/. Fll e size 

restrictions may apply to comments being submitted via the 

ecomments system. All comments should 

reference Rule Prolect 

Number 2013·023-111· 

CE. The comment pe· rlod closes September 16, 2013. Copies of the 

proposed rulemaklng can be obtained frotn 

the commission's Web 

site at http://www. tceq.t~?xas.gov/nav/ 

rules/propose-adopt. 

/ltml. Rlr further Infer· 

mation, please contact 

Joe Janecka, 

(512} 239·1353. 

View 

legal notices at 

ch~on.corn/legals 
Bryan W. Shaw, Ph.D., Chairman 

Carlos Rubinstein, Commissioner 

Toby Baker, Commissioner 

Zak Covar, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING ON PROPOSED REVISIONS TO 30 TAC 

CHAPTER 111AND TO THE STATE IMPLEMENTATION PLAN 

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

hearing to receive testimony regarding proposed revisions to 30 Texas Administrative 

Code (TAC) Chapter 111, Control of Air Pollution from Visible Emissions and Particulate 

Matter, §111.211, and corresponding revisions to the state implementation plan (SIP) 

under the requirements of Texas Health and Safety Code, §382.017; Texas Government 

Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the 

United States Environmental Protection Agency (EPA) concerning SIPs. 

The proposed rulemaking would add prescribed burning for wildfire hazard mitigation 

as an exception to the state's outdoor burning prohibition. This proposed rulemaking is 

a follow-up to a petition filed by the Texas Prescribed Burning Board and approved by 

the commission on February 27, 2013. 

The commission will hold a public hearing on this proposal in Austin on September 10, 

2013, at 10:00 a.m. in Building E, room 201S, at the commission's central office located 

at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral statements when called 

upon in order of registration. Open discussion will not be permitted during the hearing; 

however, commission staff members will be available to discuss the proposal30 minutes 

prior to the hearing. 

Persons who have special communication or other accommodation needs who are 

planning to attend the hearing should contact Sandy Wong, Office of Legal Services at 

(512) 239-1802. Requests should be made as far in advance as possible. 

Written comments may be submitted to Michael Parrish, MC 205, Office of Legal 

Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 

78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: 

http:jjwwws.tceq.texas.govjrulesjecommentsj. File size restrictions may apply to 

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

Rule Project Number 2013-023-111-CE. The comment period closes September 16, 

2013. Copies of the proposed rulemaking can be obtained from the commission's Web 

site at http:/ jwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further 

information, please contact Joe Janecka, (512) 239-1353. 

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

How is our customer service? tceq.texas.govfgotofcustomersurvey 

printed on recycled paper 
individual annuity mortality table for valuation and, at the option of 

the company, may be used to determine [fef J*!fi*ISeS ef determiaiag] 

the minimum standard of valuation for any individual annuity or pure 

endowment contract issued on or after August 29, 1977. 

(b) Except as provided in subsection (c) of this section, either 

the 1983 Table "a" or the Annuity 2000 Mortality Table must [sflal.l] be 

used to determine [fef determiaiag] the minimum standard of valuation 

for any individual annuity or pure endowment contract delivered or 

issued for delivery on or after January 1, 1987. 

(c) Except as provided in subsection (d) of this section, the Annuity 2000 Mortality Table must [sflal.l] be used to determine [fefdetermffiiag] the minimum standard of valuation for any individual annuity 

or pure endowment contract issued on or after January 1, 2000. 

(d) The 1983 Table "a" without projection must be used to 

determine [is ~ be HSed fef determiaiag] the minimum standard 

[staadards] of valuation for an individual annuity or pure endowment 

contract issued on or after January 1, 2000, solely when the contract 

is based on life contingencies and is issued to fund periodic benefits 

arising from: 

(1) settlements of various forms of claims pertaining to 

court settlements or out of court settlements from tort actions; 

(2) settlements involving similar actions such as workers' 

compensation claims; or 

(3) settlements oflong term disability claims where a temporary or life annuity has been used in lieu of continuing disability 

payments. 

(e) Except as provided in subsection (d) of this section, the 

2012 IAR Mortality Table must be used to determine the minimum 

standard of valuation for any individual annuity or pure endowment 

contract issued on or after January 1, 2014. 

§3.1504. Group Annuity or Pure Endowment Contracts. 

(a) Except as provided in subsections (b) and (c) of this section, the 1983 GAM Table, the 1983 Table "a", and the 1994 GAR Table 

are recognized and approved as group annuity mortality tables for valuation and, at the option of the company, any one of these tables may 

be used for purposes of valuation for any annuity or pure endowment 

purchased on or after August 29, 1977, under a group annuity or pure 

endowment contract. 

(b) Except as provided in subsection (c) of this section 

[subseetiea], either the 1983 GAM Table or the 1994 GAR Table must 

[is~] be used to determine [fef determiaiag] the minimum standard 

of valuation for any annuity of pure endowment purchased on or after 

January 1, 1987, under a group annuity or pure endowment contract. 

(c) The 1994 GAR Table must [sflal.l] be used to determine 

[fef determiaiag] the minimum standard of valuation for any annuity 

or pure endowment purchased on or after January 1, 2000 under a group 

annuity or pure endowment contract. 

§3.1505. Application of the 1994 GAR Table. 

In using the 1994 GAR Table, the mortality rate for a person age x in 

year ( 1994 + n) is calculated ~ [is-] follows: 

Figure: 28 TAC §3.1505 

§3.1506. Application o[the 2012 JAR Mortalitv Table. 

In using the 2012 IAR Mortality Table, the mortality rate for a person 

age x in year (2012 + n) is calculated as follows: 

Figure: 28 TAC §3.1506 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on July 31, 2013. 

TRD-201303116 

Sara Waitt 

General Counsel 

Texas Department of Insurance 

Earliest possible date of adoption: September 15, 2013 

For further information, please call: (512) 463-6327 

• • • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER B. OUTDOOR BURNING 

30 TAC §111.211 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) proposes to amend §111.211. 

If adopted, amended §111.211 will be submitted to the United 

States Environmental Protection Agency as a revision to the 

state implementation plan (SIP). 

Background and Summary of the Factual Basis for the Proposed 

Rule 

The Texas Prescribed Burning Board (TPBB) petitioned the 

TCEQ to address wildfires in the state's prescribed burn rule. In 

particular, the TPBB asked for a revision that would add hazard 

mitigation to the rule. The commission approved the request 

at its February 27, 2013, Agenda meeting and issued an order 

on March 5, 2013, directing the executive director to initiate 

rulemaking (Project No. 2013-018-PET-NR). 

The rule revision would amend §111.211 by adding prescribed 

burning for wildfire hazard mitigation as an exception to the 

state's prohibition on outdoor burning. Currently, a prescribed 

burn is allowed only for forest, range and wildland/wildlife 

management purposes, and coastal salt-marsh management 

burning. The proposed revision would allow prescribed burning 

in other areas, such as where rural areas interface with urban 

areas, for the purpose of wildfire hazard mitigation in order toreduce the incidence, intensity, and spread of wildfires. While the 

petitioner did not specifically request that the hazard mitigation 

provision be specific to wildfires, the commission is proposing 

that the exception added to §111.211(1) be specific to wildfire 

hazard mitigation in order to provide clarity and specificity 

consistent with the commission's understanding of the TPBB's 

intent. 

Without the proposed rule revision, a prescribed burn for wildfire hazard mitigation is authorized only by written permission 

on a case-by-case basis from the TCEQ executive director under §111.215. Under current rules, prescribed burning is underutilized due to lack of awareness of the authorization available 

under §111.215. Without written permission from the executive 

director, prescribed burning for hazard mitigation is subject to 

TCEQ enforcement action. Prescribed burning is not appropriPROPOSED RULES August 16,2013 38 TexReg 5223 
ate for land-clearing operations, which are addressed separately 

under §111.209. 

A prescribed burn is defined in §111.203(5) as the controlled 

application of fire to naturally occurring vegetative fuels under 

specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary 

measures. The state's prohibition on outdoor burning is found 

in Chapter 111, Subchapter B. 

Demonstrating Noninterference under Federal Clean Air Act, 

Section 110(1) 

The proposed revision to add wildfire hazard mitigation to Chapter 111 will not negatively impact the state's attainment of the particulate matter National Ambient Air Quality Standard (NAAQS), 

will not interfere with control measures for NAAQS compliance, 

and will not prevent reasonable further progress toward attainment of the particulate matter NAAQS. 

The outdoor burning rules in Chapter 111, Subchapter B, are included in the SIP as part of the state's strategy for control of 

particulate matter emissions. The revision would not interfere 

with applicable requirements for attainment and for reasonable 

further progress toward attainment, or with other applicable requirements of the Federal Clean Air Act. While prescribed burning does result in some air emissions, controlled burning for wildfire hazard mitigation purposes helps reduce the incidence, intensity, and spread of wildfires. By reducing the likelihood of the 

significantly greater air emissions associated with wildfires, the 

rule revision is expected to help improve air quality. Additionally, 

as discussed elsewhere in this preamble, the executive director 

currently authorizes prescribed burning for wildfire hazard mitigation on a case-by-case basis as provided by §111.215. The 

commission's purpose in amending the rule is to streamline the 

existing process for authorization of prescribed burning for wildfire hazard mitigation provided by §111.215, consistent with the 

executive director's current enforcement of the outdoor burning 

rules in Chapter 111, Subchapter B. 

Section Discussion 

The proposed amendment to §111.211 would change existing 

paragraph (1) to add "wildfire hazard mitigation" to the list of authorized prescribed burn purposes. 

Fiscal Note: Costs to State and Local Government 

Nina Chamness, Analyst, Strategic Planning and Assessment, 

has determined that, for the first five-year period the proposed 

rule is in effect, no fiscal implications are anticipated for the 

agency or other units of state or local government as a result of 

administration or enforcement of the proposed rule. 

The proposed rule is in response to a petition from the TPBB. The 

proposed rule would add prescribed burning for wildfire hazard 

mitigation as an exception to the state's prohibition on outdoor 

burning at §111.211. A prescribed burn is defined in §111.203(5) 

as the controlled application of fire to naturally occurring vegetative fuels. Currently, a prescribed burn is allowed without 

written authorization from the TCEQ only for forest, range and 

wildland/wildlife management purposes, and coastal salt-marsh 

management burning. 

This proposed revision would not change or increase the 

equipment, training, or other resources needed to conduct a 

prescribed burn, and the agency, other state agencies, and 

units of local government are not expected to experience a 

fiscal impact as a result of the proposed rule. 

38 TexReg 5224 August 16, 2013 Texas Register 

Public Benefits and Costs 

Nina Chamness also determined that for each year of the first 

five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be a 

reduction in the incidence spread, and intensity of wildfires by 

reducing the naturally occurring available fuel load. 

The proposed rule would not have an immediate significant 

fiscal impact on individuals or business. The proposed rule 

would not change or increase the equipment, training, or other 

resources needed to conduct a prescribed burn, but the proposed rule would reduce the naturally occurring available fuel 

load and mitigate the effects of a wildfire thereby reducing the 

possible loss from a wildfire. 

Small Business and Micro-Business Assessment 

No adverse fiscal implications are anticipated for small or microbusinesses. 

Small Business Regulatory Flexibility Analysis 

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not 

required because the proposed rule does not adversely affect a 

small or micro-business in a material way for the first five years 

that the proposed rule is in effect. 

Local Employment Impact Statement 

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a 

local economy in a material way for the first five years that the 

proposed rule is in effect. 

Draft Regulatory Impact Analysis Determination 

The commission reviewed the rule revision in light of the regulatory analysis requirements of Texas Government Code, 

§2001.0225, Regulatory Analysis of Major Environmental Rules, 

and determined that the amendment does not meet the definition of a major environmental rule as defined in the statute. 

According to Texas Government Code, §2001.0225, a major 

environmental rule means "a rule the specific intent of which 

is to protect the environment or reduce risks to human health 

from environmental exposure and that may adversely affect in a 

material way the economy, a sector of the economy, productivity, 

competition, jobs, the environment, or the public health and 

safety of the state or a sector of the state." The purpose of this 

revision is to increase protection of the environment through 

wildfire hazard mitigation and reduce risk to human health; it is 

not expected that this revision will adversely affect in a material 

way the economy, a sector of the economy, productivity, jobs, 

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

a sector of the state. Therefore, no regulatory impact analysis 

is required. 

Furthermore, even if the revision to the rule constituted a major 

environmental rule, a regulatory impact analysis would not be required because the revision does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 

applies only to a major environmental rule that: 1) exceeds a 

standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state 

law, unless the rule is specifically required by federal law; 3) 

exceeds a requirement of a delegation agreement or contract 

between the state and an agency or representative of the fed-
eral government to implement a state and federal program; or 

4) adopts a rule solely under the general powers of the agency 

instead of under a specific state law. The revision does not meet 

any of the four applicability criteria listed in Texas Government 

Code, §2001.0225 because: 1) the revision is designed to meet, 

not exceed the relevant standard set by federal law; 2) no contract or delegation agreement covers the topic that is the subject 

of this rule; and 3) the rule revision is authorized by specific sections of the Texas Health and Safety Code, Chapter 382 (also 

known as the Texas Clean Air Act), cited in the Statutory Authority section of this preamble. 

The purpose of the rule revision is to allow prescribed burns for 

the purpose of wildfire hazard mitigation. Also, the rule revision 

would be incorporated into the Texas SIP. The revision would 

not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable 

requirement of the Federal Clean Air Act. In addition, the revision is expected to improve air quality by reducing the incidence, 

intensity, and spread of wildfires. 

Without the rule revision, a prescribed burn for wildfire hazard mitigation may be authorized only by written permission 

on a case-by-case basis from the TCEQ executive director 

under §111.215. Under current rules, prescribed burning is 

underutilized due to lack of awareness of the provision in 

§111.215. Without written permission from the executive director, prescribed burning for hazard mitigation is subject to TCEQ 

enforcement action. 

Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address 

listed under the Submittal of Comments section of this preamble. 

Takings Impact Assessment 

The commission completed a takings impact assessment for this 

rulemaking action under Texas Government Code, §2007.043. 

The primary purpose of the rulemaking is to add at §111.211, 

prescribed burning for wildfire hazard mitigation as an exception 

to the state's prohibition on outdoor burning. Currently, a prescribed burn is allowed only for forest, range and wildland/wildlife 

management purposes, and coastal salt-marsh management 

burning. A prescribed burn is defined in §111.203(5) as the 

controlled application of fire to naturally occurring vegetative 

fuels under specified environmental conditions and confined 

to a predetermined area, following appropriate planning and 

precautionary measures. 

This revision is expected to improve air quality by reducing the 

incidence, intensity, and spread of wildfires. In addition, the commission's assessment indicates that Texas Government Code, 

Chapter 2007 does not apply to this proposed rule amendment 

because this is an action that is taken in response to a real and 

substantial threat to public health and safety, that is designed 

to significantly advance the health and safety purpose, and that 

does not impose a greater burden than is necessary to achieve 

the health and safety purpose. Thus, this action is exempt under 

Texas Government Code, §2007.003(b)(13). 

Consistency with the Coastal Management Program 

The commission reviewed the proposed rulemaking and found 

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11 (b)(2) relating 

to rules subject to the Coastal Management Program, and will, 

therefore, require that goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. 

The commission reviewed this rulemaking for consistency with 

the CMP goals and policies in accordance with the regulations 

of the Coastal Coordination Advisory Committee and determined 

that the rulemaking is procedural in nature and will have no substantive effect on commission actions subject to the CM P and is, 

therefore, consistent with CMP goals and policies. 

Written comments on the consistency of this rulemaking may be 

submitted to the contact person at the address listed under the 

Submittal of Comments section of this preamble. 

Effect on Sites Subject to the Federal Operating Permits Program 

Because Chapter 111 contains applicable requirements under 

30 TAC Chapter 122, owners or operators subject to the Federal Operating Permit Program must, consistent with the revision 

process in Chapter 122, revise operating permits to include the 

revised Chapter 111 requirements for emissions affected by the 

revisions to Chapter 111 at their site. 

Owners or operators must revise operating permits to include 

the new Chapter 111 requirements upon the effective date of the 

adopted rulemaking. 

Announcement of Hearing 

The commission will hold a public hearing on this proposal in 

Austin on September 10, 2013, at 10:00 a.m. in Building E, 

Room 201 S, at the commission's central office located at 12100 

Park 35 Circle. The hearing is structured for the receipt of oral 

or written comments by interested persons. Individuals may 

present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; 

however, commission staff members will be available to discuss 

the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact 

Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. 

Submittal of Comments 

Written comments may be submitted to Michael Parrish, MC 

205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 

or faxed to (512) 239-4808. Electronic comments may be 

submitted at: http:llwww5.tceq.texas.govlruleslecommentsl. 

File size restrictions may apply to comments being submitted 

via the eComments system. All comments should reference 

Rule Project Number 2013-023-111-CE. The comment period closes September 16, 2013. Copies of the proposed 

rulemaking can be obtained from the commission's Web site 

at http:llwww.tceq.texas.govlnav!ruleslpropose_adopt.html. 

For further information, please contact Joe Janecka, (512) 

239-1353. 

Statutory Authority 

The amendment is proposed under Texas Water Code (TWC), 

§5. 102, General Powers, §5.1 03, Rules, and §5.1 05, General 

Policy, which authorize the commission to adopt rules necessary 

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

Texas Health and Safety Code (THSC), §382.017, Rules, which 

authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amended secPROPOSED RULES August 16, 2013 38 TexReg 5225 
tion is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard 

the state's air resources, consistent with the protection of public 

health, general welfare, and physical property; §382.011, General Powers and Duties, which authorizes the commission to 

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

Plan, which authorizes the commission to prepare and develop 

a general, comprehensive plan for the control of the state's air; 

§382.018, which authorizes the commission to control outdoor 

burning; and §382.085, which prohibits unauthorized air emissions. 

The proposed amendment will implement TWC, §§5.1 02, 5.1 03, 

and 5.105; THSC, §§382.002, 382.011, 382.012, 382.017, 

382.018, and 382.085; and Federal Clean Air Act, 42 United 

States Code, §§7401, et seq. 

§111.211. Exception for Prescribed Burn. 

Outdoor burning shall be authorized for: 

( 1) Prescribed burning for forest, range and wildland/wildlife management, and wildfire hazard mitigation purposes, 

with the exception of coastal salt-marsh management burning. Such 

burning shall be subject to the requirements of § 111.219 of this title 

(relating to General Requirements for Allowable Outdoor Burning), 

and structures containing sensitive receptors must not be negatively 

affected by the burn. When possible, notification of intent to burn 

should be made to the appropriate commission regional office prior 

to the proposed burn. Commission notification or approval is not 

required. 

(2) Coastal salt-marsh management burning conducted in 

Aransas, Brazoria, Calhoun, Chambers, Galveston, Harris, Jackson, 

Jefferson, Kleberg, Matagorda, Nueces, Orange, Refugio, and San 

Patricio Counties. Coastal salt-marsh burning in these counties shall 

be subject to the following requirements: 

(A) All land on which burning is to be conducted shall 

be registered with the appropriate commission regional office using a 

United States Geological Survey map or equivalent upon which are 

identified significant points such as roads, canals, lakes, and streams, 

and the method by which access is made to the site. For large acreage, 

the map should be divided into manageable blocks with identification 

for each defined block. The information must be received for review 

at least 15 working days before the burning takes place. 

(B) Prior to any burning, notification, either verbal or 

written, must be made to, and authorization must be received from the 

appropriate commission regional office. Notification must identify the 

specific area and/or block to be burned, approximate start and end time, 

and a responsible party who can be contacted during the burn period. 

(C) Such burning shall be subject to the requirements 

of § 111.219 of this title. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on July 30, 2013. 

TRD-201303096 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: September 15, 2013 

For further information, please call: (512) 239-2548 

• • • 

38 TexReg 5226 August 16, 2013 Texas Register 

CHAPTER 303. OPERATION OF THE RIO 

GRANDE 

SUBCHAPTERF. CONTRACTUALSALES 

30 TAC §303.53 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) proposes to amend §303.53. 

Background and Summary of the Factual Basis for the Proposed 

Rule 

This rulemaking will remove the one-year limitation for certain 

water contracts in the Rio Grande Watermaster Program. Under the existing rule, water contracts in the Rio Grande may also 

serve as pushwater contracts to move municipal water through 

irrigation conveyances. Under §303.53(a)(8), these contracts 

have a maximum duration of one year. With this one-year limitation, unused water purchased by a municipality under contract is 

returned to the system and no longer available to the municipality. By removing the one-year limitation, the water rights holders' 

investments will be better protected and reduce the risk of losing 

part of the monetary investment in contract water. 

The commission also proposes to add §303.53(d) to the rule to 

clarify that all contracts for water will remain subject to §303.22, 

Allocations to Accounts. This will maintain the requirement that 

allocations of water be put to beneficial use within two consecutive calendar years; otherwise, the account will be reduced to 

zero as per §303.22. 

The proposed amendment will not allow for speculative purchase 

and resale of water under contract. The change would not remove any other requirements related to water contracts. The 

change also would not apply to contracts for Domestic, Municipal, or Industrial (DMI) water. These DMI contracts expire on the 

last Saturday of the year. 

Section Discussion 

Section 303.53(a)(8) limits the length of the contract for the purchase of water to one year. The commission proposes to remove 

the requirement that contracts for the purchase of all or a part of 

the annual authorized amount of use for a water right in the Middle or Lower Rio Grande be limited to one year. This will allow 

municipalities to avoid the risk of losing part of their investment if 

they do not use all of the water they purchases within that timeframe. Further, this will allow municipalities to avoid the expense 

of entering into additional contracts for pushwater. These additional contract costs are typically passed on to a municipality's 

water customers. 

The commission proposes to add §303.53(a)(8)(A) and (B) to 

the rule to clarify that contracts for DMI water must terminate by 

the last Saturday of the calendar year in which the contract was 

entered. All other contracts shall terminate at a date determined 

by the interested parties. 

The commission also proposes to add §303.53(d) to the rule 

to clarify that all contracts for water would remain subject to 

§303.22. This would maintain the requirement that allocations 

of water be put to beneficial use within two consecutive calendar years; otherwise, the account will be reduced to zero as per 

§303.22. 

Fiscal Note: Costs to State and Local Government 

Nina Chamness, Analyst, Strategic Planning and Assessment, 

has determined that, for the first five-year period the proposed 
(1) COMPANY: Butterflies, Inc.; DOCKET NUMBER: 2012-0194-

PST-E; TCEQ ID NUMBER: RN102062999; LOCATION: 203 East 

Court Street, Newton, Newton County; TYPE OF FACILITY: UST 

system and convenience store with retail sales of gasoline; RULES 

VIOLATED: TWC, §26.3475(d) and 30 TAC §334.49(a(l), by failing to provide proper corrosion protection for the UST system; TWC, 

§26.3475(c)(1) and 30 TAC §334.50(b)(l)(A), by failing to monitor the 

USTs for releases at a frequency of at least once every month (not to 

exceed 35 days between each monitoring); TWC, §26.3475(b) and 30 

TAC §334.50(b)(2), by failing to provide release detection for the suction piping associated with the USTs; and 30 TAC §334.10(b), by failing to maintain the UST records and make them immediately available 

for inspection upon request by agency personnel; PENALTY: $6,141; 

STAFF ATTORNEY: Rudy Calderon, Litigation Division, MC 175, 

(512) 239-0205; REGIONAL OFFICE: Beaumont Regional Office, 

3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) 898-3838. 

(2) COMPANY: Marvin A. Canas; DOCKET NUMBER: 2012-2450-

PST-E; TCEQ ID NUMBER: RN102058997; LOCATION: 907 Lark 

Lane, Oak Leaf, Ellis County; TYPE OF FACILITY: UST system and 

convenience store with retail sales of gasoline; RULES VIOLATED: 

30 TAC §334.7(d)(3), by failing to provide an amended registration 

for any change or additional information regarding the USTs within 30 

days from the date of the occurrence of the change or addition; TWC, 

§26.3475(d) and 30 TAC §334.49(a)(2), (c)(4) and (2)(C), by failing 

to have the cathodic protection system inspected and tested for operability and adequacy of protection at a frequency of at least once every 

three years; failing to inspect the impressed current cathodic protection 

system at least once every 60 days to ensure the rectifier and other components are operating properly; and failing to ensure that a corrosion 

protection system is designed, installed, operated, and maintained in 

a manner that will ensure continuous corrosion protection to all metal 

components of the UST system; 30 TAC §334.74, by failing to investigate a suspected release within 30 days of discovery; and 30 TAC 

§334.54(b)(l) and (2), by failing to keep the UST system vent lines 

open and functioning; and failing to maintain all piping, pumps, manways, and ancillary equipment in a capped, plugged, locked, and/or 

otherwise secured manner to prevent access, tampering, or vandalism 

by unauthorized persons; PENALTY: $35,703; STAFF ATTORNEY: 

Rudy Calderon, Litigation Division, MC 175, (512) 239-0205; REGIONAL OFFICE: Houston Regional Office, 5425 Polk Street, Suite 

H, Houston, Texas 77023-1452, (713) 767-3500. 

(3) COMPANY: Moutawakil Investments, L.L.C. d/b/a Super Food 

Mart 36; DOCKET NUMBER: 2012-2404-PST-E; TCEQ ID NUMBER: RN102234473; LOCATION: 15834 Farm-to-Market Road 2493, 

Tyler, Smith County; TYPE OF FACILITY: UST system and convenience store with retail sales of gasoline; RULES VIOLATED: TWC, 

§26.3475(a) and (c)(1) and 30 TAC §335.50(b)(l)(A) and (2), by failing to monitor the USTs for releases at a frequency of at least once every month (not to exceed 35 days between each monitoring), and failing 

to provide release detection for the pressurized piping associated with 

the UST system; and 30 TAC §334.10(b), by failing to maintain UST 

records and make them immediately available for inspection upon request by agency personnel; PENALTY: $5,132; STAFF ATTORNEY: 

Ryan Rutledge, Litigation Division, MC 175, (512) 239-0630; REGIONAL OFFICE: Tyler Regional Office, 2916 Teague Drive, Tyler, 

Texas 75701-3734, (903) 535-5100. 

(4) COMPANY: PEACE BUSINESS, INC. d/b/a Sun coast Food 

Mart; DOCKET NUMBER: 2013-0080-PST-E; TCEQ 1D NUMBER: RN102261914; LOCATION: 5415 West Airport Boulevard, 

Houston, Harris County; TYPE OF FACILITY: UST system and 

convenience store with retail sales of gasoline; RULES VIOLATED: 

TWC, §26.3475(d) and 30 TAC §334.49(a)(l), by failing to provide 

corrosion protection for the UST system; TWC, §26.3475(c)(l) and 30 

TAC §334.50(b)( l)(A), by failing to monitor the USTs for releases at a 

frequency of at least once every month (not to exceed 35 days between 

each monitoring); and 30 TAC §334.10(b), by failing to maintain 

UST records and make them immediately available for inspection 

upon request by agency personnel; PENALTY: $18,750; STAFF 

ATTORNEY: Jacquelyn Boutwell, Litigation Division, MC 175, (512) 

239-5846; REGIONAL OFFICE: Houston Regional Office, 5425 Polk 

Street, Suite H, Houston, Texas 77023-1452, (713) 767-3500. 

(5) COMPANY: Raja & Aliah Investments, Inc. d/b/a Rogers Food 

Mart; DOCKET NUMBER: 20 13-0232-PST-E; TCEQ ID NUMBER: 

RN101913390; LOCATION: 124 West Kingsbury Street, Seguin, 

Guadalupe County; TYPE OF FACILITY: UST system and convenience store with retail sales of gasoline; RULES VIOLATED: 

TWC, §26.3475(c)(l) and 30 TAC §334.50(b)(l)(A), by failing to 

monitor the USTs for releases at a frequency of at least once every 

month (not to exceed 35 days between each monitoring); TWC, 

§26.3475(a) and 30 TAC §334.50(b)(2), by failing to provide release 

detection for the pressurized piping associated with the UST system; 

TWC, §26.3475(d) and 30 TAC §334.49(a)(l), by failing to provide 

corrosion protection for the UST system; and 30 TAC §334.10(b), by 

failing to maintain UST records and make them immediately available 

for inspection upon request by agency personnel; PENALTY: $8,879; 

STAFF ATTORNEY: Kari L. Gilbreth, Litigation Division, MC 175, 

(512) 239-1320; REGIONAL OFFICE: San Antonio Regional Office, 

14250 Judson Road. San Antonio, Texas 78233-4480, (210) 490-3096. 

TRD-201303244 

Kathleen C. Decker 

Director, Litigation Division 

Texas Commission on Environmental Quality 

Filed: August 6, 2013 

• • • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 111 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed 

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

Emissions and Particulate Matter, § 111.211, and corresponding revisions to the state implementation plan (SIP) under the requirements of 

Texas Health and Safety Code, §382.0 17; Texas Goverrunent Code, 

Chapter 2001, Subchapter B; and 40 Code of Federal Regulations 

§51.102 ofthe United States Environmental Protection Agency (EPA) 

concerning SIPs. 

The proposed rulemaking would add prescribed burning for wildfire 

hazard mitigation as an exception to the state's outdoor burning prohibition. This proposed rulemaking is a follow-up to a petition filed by 

the Texas Prescribed Burning Board and approved by the commission 

on February 27, 2013. 

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

on September 10, 2013, at 10:00 a.m. in Building E, Room 201S, at 

the commission's central office located at 12100 Park 35 Circle. The 

hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called 

upon in order of registration. Open discussion will not be permitted 

during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Sandy 

Wong, Office of Legal Services at (512) 239-1802. Requests should 

be made as far in advance as possible. 

IN ADDITION August 16, 2013 38 TexReg 5357 
Written comments may be submitted to Michael Parrish, MC 205, 

Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed 

to (512) 239-4808. Electronic comments may be submitted at: 

http://www5.tceq.texas.govlruleslecommentsl. File size restrictions may apply to comments being submitted via the eComments 

system. All comments should reference Rule Project Number 

20 I 3-023-1 I I-CE. The comment period closes September 16, 

2013. Copies of the proposed rulemaking can be obtained from the 

commission's Web site at http:llwww.tceq.texas.gov/nav/rules/propose _adopt.html. For further information, please contact Joe Janecka 

at (512) 239-1353. 

TRD-201303097 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: July 30, 2013 

• • • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 303 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 303, Operation of the Rio Grande, §303.53, 

under the requirements of Texas Water Code, §I 1.327 and § 11.3271; 

and Texas Government Code, Chapter 2001, Subchapter B. 

The proposed rulemaking would remove the one-year limitation for 

certain water contracts in the Rio Grande Watermaster Program; and 

clarify that contracts for Domestic, Municipal, and Industrial water 

must terminate by the last Saturday of the calendar year in which the 

contract was entered. All other contracts shall terminate at a date determined by the interested parties. The amended rule would also clarify that all contracts for water would remain subject to §303.22. This 

would maintain the requirement that allocations of water be put to beneficial use within two consecutive calendar years; otherwise, the account will be reduced to zero as per §303.22. 

The commission will hold a public hearing on this proposal in Harlingen on September 10, 2013, at 9:00a.m. at the Texas State Technical 

College (TSTC) Service Support Center, Conference Room 145. The 

TSTC Service Support Center is at 1902 North Loop 499 in Harlingen, 

Texas. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements 

when called upon in order of registration. Open discussion will not be 

permitted during the hearing; however, commission staff members will 

be available to discuss the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Sandy 

Wong, Office of Legal Services, at (512) 239-1802. Requests should 

be made as far in advance as possible. 

Written comments may be submitted to Patricia Duron, MC 205, 

Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed 

to (512) 239-4808. Electronic comments may be submitted at: 

http://www5.tceq.texas.govlruleslecomments/. File size restrictions may apply to comments being submitted via the eComments 

system. All comments should reference Rule Project Number 

2013-031-303-0W. The comment period closes September 16, 

2013. Copies of the proposed rulemaking can be obtained from the 

commission's Web site at http://www.tceq.texas.gov/navlrules/propose adopt.html. For further information, please contact Amy 

Settemeyer, Watermaster Section, at (512) 239-2588. 

38 TexReg 5358 August 16, 2013 Texas Register 

TRD-201303098 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: July 30, 2013 

• • 

Notice of Water Quality Applications 

• 

The following notices were issued on July 26, 2013 through August 2, 

2013. 

The following require the applicants to publish notice in a newspaper. 

Public comments, requests for public meetings, or requests for a contested case hearing may be submitted to the Office of the Chief Clerk, 

Mail Code 105, P.O. Box 13087, Austin, Texas 78711-3087, WITHIN 

30 DAYS OF THE DATE OFNEWSPAPERPUBLICATION OF THE 

NOTICE. 

INFORMATION SECTION 

ARKEMA INC which operates the Arkema Houston Chemical 

Plant, an organic chemicals and mercaptans production facility, has 

applied for a major amendment with modification and renewal to 

Texas Pollutant Discharge Elimination System (TPDES) Permit No. 

WQ0000445000 to authorize a reduction in the monitoring frequency 

for chemical oxygen demand, oil and grease, and pH at Outfall 004; 

and to make Outfalls 003, 004, and 005 inactive in the permit upon 

the applicant obtaining coverage for stormwater discharges under 

the TPDES Multi-Sector Industrial General Permit No. TXR050000 

from Outfalls 003, 004, and 005. The existing permit authorizes the 

discharge of: equipment wash water, utility wastewater, previously 

monitored effluent (PME) (treated domestic wastewater with a daily 

average flow not to exceed 3,000 gallons per day (GPD) via Outfall 

101), and stormwater at a daily average flow not to exceed 400,000 

thousand gallons per day via Outfall 001; stormwater commingled 

with equipment wash water, utility wastewater, and PME (treated domestic wastewater with a daily average flow not to exceed 3,000 GPD 

via Outfall I 0 I), on an intermittent and flow variable basis via Outfall 

002; and stormwater on an intermittent and flow variable basis via 

Outfalls 003, 004, and 005. The draft permit authorizes the discharge 

of: equipment wash water, utility wastewater, PME (treated domestic 

wastewater with a daily average flow not to exceed 3,000 GPD via 

Outfall I 0 I), and storm water at a daily average flow not to exceed 

400,000 gallons per day via Outfall 001; storm water commingled 

with equipment wash water, utility wastewater, and PME (treated 

domestic wastewater with a daily average flow not to exceed 3,000 

GPD via Outfall 101) on an intermittent and flow variable basis via 

Outfall 002; and storm water on an intermittent and flow variable basis 

via Outfalls 003, 004, and 005 until coverage is obtained under the 

TPDES Multi-Sector Industrial General Permit No. TXR050000. The 

facility is located at 2231 Haden Road, Houston, Harris County, Texas 

77015. The Texas Commission on Environmental Quality (TCEQ) 

Executive Director has reviewed this action for consistency with the 

Texas Coastal Management Program (CMP) goals and policies in 

accordance with the regulations of the General Land Office, and has 

determined that the action is consistent with the applicable CMP goals 

and policies. 

ENERGYCO LLC which operates Altura Cogen, LLC, a steam and 

electricity cogeneration facility, has applied for a renewal of TPDES 

Permit No. WQ0002845000, which authorizes the discharge of storm 

water and steam condensate on an intermittant and flow variable basis 

via Outfall 001; and cooling tower blowdown at a daily average flow 

not to exceed 504,000 gallons per day via Outfall 002. The facility is 

located at 2330 Sheldon Road, adjacent to the intersection of Avenue 
TESTIMONY
Reference Number 

W-1 

W-2 

W-3 

W-4 

Index of Written Testimony 

Submitted By 

Houston Regional Group of the Sierra Club 

Harris County Attorney's Office 

Harris County Pollution Control Services Department 

United States Environmental Protection Agency, Region 6 
W-1 

SIERRA 

CLUB 

Houston Regional Group 

. P .0. Box 3021 

Houston) Texas 77253-3021 

713-895-9309 

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

FOUNDED 1892 

August 16, 2013 

Mr. Michael Parrish 

MC 205 

Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Mr. Parrish, 

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

(Sierra Club) regarding the Texas Commission on Environmental Quality's 

(TCEQ) proposal for changes to Section 111.211, Outdoor Burning. This 

proposals adds prescribed burning for the purpose of wildfire hazard mitigation in 

areas, for example, where urban/rural areas interface to reduce the incidence, 

intensity, and spread of wildfires. 

1) The Sierra .Club supports this propG.sal. · c: The- Siefra Club ·believes that this 

change is, in ·most cases; not needed· because;- bi.miing for forest, range, 

wildland/wildlife manage purposes, and coastal salt.:marsh management burning 

already allows enough flexibility to allow burning in areas that are determined 

should be burned for wildfire hazard mitigation. This is due. to the fact that 

prescribed burning, when conducted correctly, usually generates positive wildlife 

benefits. 

However, there may be some _occasions.where this is not the case. The Sierra 

Club encourag~s the.TCEQ to: unde_rst~nd :a~O.. stress _to th9se who would use 

this change to· bur11-f9r. wildfire. ha*a~ct ·mJtig~tiqt\O:that :burning:i'n. streamside· · 

management zones is not necessary or recommended and can severely damage 

these areas for the native wildlife and vegetatiorl that exists in these forested or 

shrub wetland zones. TCEQ should stress in this change that burning riparian 

areas is not appropriate, recommended, or ailowed except when they are used 

as natural fire breaks. 

2) The Sierra Club urges the TCEQ to also allow Wildfire· prescribed burns that 

begin either naturally, via lightning,· or due:,tb hl:ililttii" carelessness if they are 

managed to a safe· prescribed burn;il'l·g prescfiptien f.and:; a're not a hazard to 

human habitation .. These Wil"dfrre's <tliaPtlegih 'riot'~'as':prescribed fires can be 

managed as if they ar~ prescribed fires ·a~d ~h€!~efor~ gain us the benefits that a 

"When we try to pick out anything by itself, we find it hitched to everything else in universe." ]1hn Muir 
.. 

I 

normal prescribed fire provides for forest, range, wildlife, and wildfire hazard 

mitigation. · 

The Sierra Club appreciates this opportunity to comment. Thank you. 

Sincerely, (1 '}1 1 ~ · J 

Brandt 

Chair, Air 

Mannchen 

Quality Committee 

, _;) ~-- I v~ 

Houston Regional Group of the Sierra Club 

5431 Carew 

Hou~on,Texas77096 

713-664-5962 

J2H!f.ldt.~bJlf~t@j_l,I_DO. CQ_ffi 

2 

W-1 
; -·· ... - 09/16/2013 16:38 7137552681 . . HCAO VINCE RVAN PAGE 01/04 

W-2 

VINCE RYAN ___________________ .......,.E !.!.ris County Attorney_ 

FAX TRANSMITTAL SHEET 

NOTICE 

This facsimile contains CONFlDENTIAL INFORMATION w:hicb may also be LEGALLY 

PRIVILEGED and which is intended for the use of the Addressee(s) lllUD.ed belo D<.'. If you, are n.ot the intended 

recipient of the facsimile~ or the employer or agent responsible for delive:r.ing it to the intended recipient, you 

are hereby noti.fl.ed that any . dissemination or copying of:; this \.facslmile,i is ~ t.rictly prohibited wi.thout the 

permission of the sender. If yott have recejved this facsimile in error, please i 1irt1.ediately notify the sender, 

Leah A Gordon, by telephone at (713) 274-5130. 

PLEASE DELIVER THIS FACSIMILE TO: 

Mr. Michael Parrish 512-239-4808 

. SENDER: Sarah Utley, Assistant County Attorney 

PHONE NO.: (713) 274-5124 FAX NO.:. (713) 437-4211 

NUMBER OF PAGES: 3 (NOT INCLUDIN0TRANSMITTAL SHEET) 

DATE: September 16t 201.3 ~--J(JliCL 

COMMENTS: eomnieD.tirt,o:Rll1lProjecPN'cD2olr3'-623iJfll ... CE~l· ~illiflr.e Hazard-Mitigation .,._::t~,::t ;,,1" U~-.···t·lst.~ (..lt".U~u~ /\dt..i!~;;~._:'-"(S) 1l.,~rn~~ t_;\~h .. :~\·_ \i- ~-

:"·•·:]p'!t:r or :\f";;..';J:•t rcsr1xHlsibk ftll' ddivcrin·· i• i•: •:, • ; . ..... ·~ 

',,_.~·., il;inaq: dl or c;vpying of.thi.s ~,,,~,;:-ur.,~·~ ;~: .... · 

IF YOU DO NOT RECEIVE ALL OF·THE,)>AOES~'Pl~EA.SE~CALL AS SOJN AS POSSIBLE SO THAT 

THIS FACSIMILE MAY l3E RE-'fMNSMITTED. 

·~ .. ··;!MILLfO: 

- .-. ,, . "". .. ~ , ........ ·-.. 

) ... _ ,.i ....... - .. -~·-, .• r·· _; \--. ·----, ----- : , . -.11 : ,)X";·l'·•":"-.A"', , ,,,.~. 1,;l ;_::,:U l.l)_'.i~'. l_''t ... : .·. 

1019 Congress, 15th Floor ( • . , rloUE)tQ:r,y ;r.Xt:'?~OO~ ·N!.y~h9n~:,. {;i$,-'7.55,; 101 • Fax: 713-437-4211 
09/15/2013 15:38 7137552681 . HCAO VINCE.RYAN PAGE 02/04 

. .• 

.., J··!~_-·:-1t;:·:tc~ll, ··l,·.x!/.'/Ofl~~~ ·v PJ".:-r't~_': /~ ·:' ·--

Via Fax at 512 239~4808 

:M:r. Michael Parrish 

Oft1ce of Legal Services 

Texas Commission on Environmental Quality 

P. 0. Box 13087 · 

Austin, TX 78711-3087 

Vince Ryan 

Harris County Attorney 

Re: Comments to Ru1e Project No. 2013~023~111~CE, Wildfire Ha.:~a1·d Mitigation 

Dear Mr. Parrish: 

Harris County Attorney's Office ·(HCAO) would like to submh th{ fClUowing comme11ts 

in response to TCEQ's Rule Project'No. 20.13-023-llt .. CE ,which pwposcs a change to 

30 Texas Admi.nis1:rative Code (30 TAC), § 111.211, pertaining · o the ~.'Exception for 

Pres~ribed Bum.'~ Harris ~ounty Pollution Control Ser~~~~S,.~~ 'rPartment (HCPCS~, . 

Hmns County's local pollunon control agency. has also subm1t r.:cl· comments to th1s 

proposed rule amendment· .·.The .. HCAo··rwiY~"supports"tb.e· cor.m11mts submitted by 

HCPCSD and incorporates them ill thc;ir entirety., Accordingly, tl e HCAO submits the 

following comments and recommei)dadoh.sto the proposed rule: 

• The pro:i)6s~d {m~ does not clearly define wildfire ~ard mi :igf.tion. As written, 

i.t is possible that someone could dear landfor developmel t and bum large piles 

oftrees.and,~nw~ 1=t~h?,l.~\W;,~pg,t.J!~h~~ is for wildfire miti.ga.t on purposes. 

Accordingly, thts new exemption may be used to attempt t1 1 c:lrcumvent the 

prohibi~ori.R~outdoor burning in 30 TAC § 111.201. · 

To ad~e~s,&I~ P,~~e.~t~~}, ~~~~;bo,l.~;.;~G~C? l:'ecR~~ds ~: tl.~ (:l~ar ru;~ . enforceable aefimtions· 0(. 'wlldfire ha:c.ard" and "wtldfire hm:ard mltigatJOn" 

shoul~ be added to 30 1"AC, Secition).11.203 to etb,rilnate }irty 

misunderstandings or m~sinterpretations of the intent oftl: ~:rule. 

Proposed defiriltfdR~::~··(I,lCi\O)·~~;~)uld.likc.lo s·ubrnit fh, _;·o:Jny,,.;,., 

•.· ...... )'s .i.'.J.k r,ojcctl\c •. 201-3::-02.3.-111·-CE. ,v:b,:t '.,.; . 

Wildfzre Hakat-i:'J::~[J;~~iti'o){i'h WhtJt;. ·d bu~ldup ~I ~nd~ r-growth, or d~ad trees. or oth~f:~egeiatiq~;:ih~t)ts'l(Jea{! ::tu,ft·o 'h.at.ural cau,s. ~s, poses afire hiJZard 

ro,~ur?:~u~din:gr.w3b'ifY~trri'{ · •• : t~'F('fro,.~i?:u:e~~~~, ~;u'_:: :n. :• ,' ·'. . . . . ·. , .... .1 .••. ldrtlent.. · . .J'he 'HU5fe8i .ftrtfy ... ,qppqtts •. th:e .. ,cOJ JJ/ILIHc· .. , ""!1,., .. ,.,, . 

: · ··p ... J::.~s t·h~hi·')h.ih~ii:·-.edt'i1'et~'. ·'Ac\~ofdhl'ab'/.tf" ! rc.\u ::·•bl:·,>·~ 1 . 

;.•.: ·, •.. :t.>~i ·, ::;c.;n~:;,';' i_i(H.:~;:l•..Jth.-:: p.::opo:::.. i nd,: 

.··· ...... 

. . ·:i rnk doe~ c:otcle~triyth::fltiewikLtireha>.<1HI u;: · ., 

1019 Congress, 15111 F!oorh·• HoU.stoxt;.f'X.'W002·1700H•! Phone:-713-755-5' .0:1 • Fax: 71~437.-4211 

.. . .• , .· l\iu::IA l'•Y cl:Jiming that it i~; f .. ;' wdfitli .. : . :-

.. ly,.thEa~~\V·C;·:~~t)l}.1tinn may bl: :t..>t':d il).a~i;s:.,.i i·. c: .. · hiti• .. , . ,,foi1tauof:':nufitfilg~hi~30~m:Ne::§·~TF.l :~OJ')'' . · ~t., .. ··-~·: .. ~/ .. ·:·· .. ._-:~.~:--._.X "'",·_. :':··f _:.'·:·.::,:.~--. t .. <:-~ -> · •,· ..i:~~-.:~.: ~~-~ · ·-.- '. 

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09/15/2013 15:38 7137552681 .·: ... PAGE 03/04 

Wildfire H azttrd Mltigatimz -Removal of undergrowth, dE ad trees, or other 

dead vegetation that poses afire hazard by burning in a cc ntrolled manner that 

is intended to preserve. living trees and other vegetation. 

• The rule does not stipulate who may conduct prescribed bwn n.g. how it is to be 

co11ducted, or what constitutes prescribed burning. Texas. )a:r:\:s and Wildlife 

conducts routine burning in Harris County for wildlm1.d tn! n1:1gement purposes. 

These prescribed burns are hazardous operations that are c m.c".ucted by 

experienced professi011als with due care and planning to e1 .sure their own safety 

as well as that of the pub1i.c and the envirorunent. 

HCAO recommends an addition to the rule that specifies v ·ho is authorized to 

conduct all types of prescribed burning and what training: n.d qualification 

c.r.iteria are required . . . . : ·. ·: .: :1 · fl•".:/,li "·./ ll¥.:f i :\','•I i 

• As the rule is currently written, there is no provision that wot .tel allow inspection 

of the proposed site for potential fire and life safety hazarc s 'by the local ftre 

services, which is well suited to identifY potential fire and [il~ safety hazards. 

The current rules also do not require notification to local a .1tl11:uities before 

conducting prescribed burning.. It has bec:n I-I~s <;ounty ~ eKperience tbat 

notification to' 16ca.l1authoHtiest(locaUire 8e~ices~'-laWi·eriJ drcement, and·.·· 

pollution control' agenCiesfis exti~emeiyl~portant:=: espech U:~; wl-ien Harris 

county.is·among~ihe.ti.hii fespori'ders~l clirr~ntly~:notifi'cat 01111. to these 

authorities are ve>lUl)tary. ; · . . . . •: : ': : .:. :~vi ~;)lj)Ul.:\l\.: _v.,·!hl may <~OIHki. i f'' _;~.;.;nc:• : .. i .. ;. · 

In anticipation.of:anti.ncreaseJu pres¢rlbed.buini..ng·due to th~ proposed wildftre 

hazard 'mitigationexc'ep_tioo!~HeAo~reconimendS~the proJ ose~d rule<lnclude a. 

notification reqwrement;to:therappticabledocalat1thorities having jurisdiction 

(local fire services~•law<bnforcement;land•pbllution ~ontrci :fl.g.,encies),.in order .. 

to provide an opportJ,mi-cy -fo~·ilbdab autnorities· to. inspect p: ·op :~sed burn sites for 

safety and environp1ental i$.S'I,les, ·. · . · . t·· .. -·~.n.11.r~'~ ~~. i:.~ ;~n adiLllntl tf\ 1_~·1e-t~!H·' ~b~a :~1 · ~. ·, 

. . . . .. r· .. _,..:. ....... ~--~, ;. ... 1 l-,, \ ,-.,·1 : ., ... , _ ! . : '· , , Specifically; the following'languag~Hs recominended: . · · · · · · • · . r; • \ 1·••r.~ · 1 

At least 14 'day~ 'prior toco,nducUng qpresc}:tbed~_urn~ th rfiJJlowl'ng shall be 

notified: ~he. Coun.iy_,.Fii;.e 'k/,ar~h~l (s_· ojjlce{a.fzy l9cal flre t rep.-:trtmem having 

Jurisdtatt.On~· a~,pi'oa;;.rrjJqllittf.~il$9ntr8lr~g¥nc'J'.'hilvtJi]u.i l.~h lb't~iin} 'ana·any I 

neighboring're~idelkriorcptistn~~$~}ltfo{it~nab~~aae1ntno~ fi,·(.•p~r1JI line wfth the 

properly ·wh~,:(J 5urnthg i~!8·tfcq~rm•ty.potq~'lt_l.altt:(·.:m•.· , '~:: · · ,, ·· : · • :·.· ,J'I nL rul•2·S also <10 not reqmr~~·:i\otrfica.uon to tncal :; .: 1 ' 

HCAO reoo~en~s·tli~f*~··ib.<Jv~ ~i!P.:guagel ~houl~ be fl:F plimtble to all types 

of_prescHbcd ~iu-nirig!spd~ip~cf.Hf3Q_ TAC~:Sectlori· 111.:? . J. · .. :. L• _:. :_;;:;J~~~£.tJI~!,~~?~~~)~}/§.~~J£~1~!~!J,:lll_~~~~~~9.f\l,~.~p~-:'~l;l_l> \ .. :,,,,. 

• In the pre8lrtcie·'1B;1:i{lli·~ pt~po~{<f''~fiie'ii&h~nt:t-1h~T.~EQ isti. :a1· thai ~ .. the proposed 

revision to add·.· Wildflr~·-~~azat:~. !nit~gation ·to Chapter. Ill will not negatively 

impact ._~e!; s.tertr~'t~E}ftnB!~~~h~£~l~~H-lb:1Jl(lt.J~fn!f/tW?ti,.J ~!~~~?PilL Ambient .Air 

.... · ,: il:i~ig'atiojiex~·~ption::JIGAO~t.Ccotnmeuds i:t~ prq ··.( ·· 

: .t~'i, .~·, f•,:··:!:;~:· ::I·:"'~f~nt f·("~.!lle~~!r .. ·:~~: .. ~~~ .... ~l'"·l~·-·f.·;-~:il.-a1.i.:f· 

HCAO Conun~nts to 'fOjQ R11Je J?:roje~t"NC!;.~O~~-::OZ}111-:-<:!E .. : .. "· • ;d;,. ;,•~l>lL•~;·,, IU\\ l.:llJ(tt(;C1hLl1L,··~ld•.~ l'"t!Utllitl . ·• ... 

. ' · · : .· :\J~~bl)p; .ttl,li'li't'y}'O~· ki.:~;il·{{tit_ht.,· ;tic:\·,~) h•L~p ... , p -..:·:' 

: '.' :·;: .· ... ~r1·Vif<iih1teri~~.r:iss:tt'Cs;z:', ·(·~;. · , ... :.·--: ·; ·:;,_. .. ·· · , ,· .... ::~_-:·· · ........ , :· ·-·:.r< ·_- ·J_.· - :-,~~-~-'.~·r.-

- . -.:;..· -r·~- ·: . "~~~=.: ·_·,. :··::_/;;,;-:~ --~- ~- :. 

w-z··.:·.· 

Page2 
. • J,.· - :.----~._ '":'":"'\.}•." ' ' . . 

09/15/2013 15:38 . · 7137f?,!:i2~l;l~Hrs:Vt'6}tMe'(!i.ai HlfffilHPA~; '<~ki,Ci;:c(RXAN ;;':, PAGE 04/04 

, , :,,Jd.'i.,il,lCire i~:.t;:.::i!'d liritiz~~!>,il ttl f:iq 

·np·.: ·\lw statt\':9 -~ittaiJmii~nt"=''Of,ti'i't\'p;ll·tkulat~ rn:n''·· : ~;. ''· 

····:~.:+ ·. ··~·.·:·~+tr!:,:•·:tt;·..i,tf:·::s·J{i;:t~~:-;· .. ·.:.~· ~~;:;;',~~~Jit:·"·:·, .. ·.··.:· .. · ·.· · · 

. Quality Standfh.d:\i~xtQ~·)a~;~~~~~~~~~J~Ith~t~dirig . T :::HQ's comment, the 

HCAO is concerned that incr~s¢d. pa!tigulate levels 'due t< · thls exemption could 

jeopardize the Houston .Oalveston;Brazo:da area. PM 2.5 .atb .in.nent status which is 

.. cu.r.rently_...borderlinfL..compliant-.with.-the.-recently-lower., :d · NAAQS sta1:1dard. 

Accordingly, the HCAO requests that if future PM. 2.5 moni' orhg data i.ndicates an 

impact from these activities the TCEQ will re-evaluate this e: :c'~Jni.on. 

Thank you for the opportunity to .submit comments on the prOJlOs•::d revisions. 

·;t··:;;;;~"~:f: .. :::;~+JG;:.d~V1NCii ,,RyAN ·· -_.:~· . ..·,, :· 

·. _., : 

. · :u,_,w~, :·~\t~:';.~~c:;;:..::_;r.{ 

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' . . . . 

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. . . . •.: . ~{.\~ ~ :-:-:- ~ . 

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. \ .' l : i ; . :-;' ··~ " ~it2,4'~ ; .,.·.,.: ··:<i::-t:_:_ .. ,, .. fi:; i . ' ··. ,; · ...... . 

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_:;.· ... : .. · 

·· u ... , . l:,~~rii'·.~:'·;:hs.~t~~:lr:!' '. .. .. 

· •. 't 

HcAo comments ·to TCEQ Rul~''p~~je~t No.·2ois~23-1i1-cr:: -~:.:,. . . ' 

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... .. ... I 

Page3 
09/15/2613 16:17 7132746475 : HC POLLUTION CONTROL PAGE 61 

Pollution Control Services Department 

101 S. Richey, Suite H 

Pasadena, Texas 77506 

FAX: 7l3-2.74·6475 

W-3 

••• M ...... .,..,._ .... _., ..................................... _., .. __ .,.,,..., .... ...... ,..._._.,,_......, ________________ _ 

NOTES: 

FAX 

TO: Mr. Michael Parrish 

. COMPANY: Texas Commis-Sion on Env.ironma:ntal OualiD:; 

FAX NUMBER: (512) 239-4808 

REFERENCE: Commm.ts for Rule Protect Nttmber 2013-023-111-CE 

Total number ofpages transmitteO. (including coverpage). 

4 Lette::r Legal 

FROM: Stuart Mu.eller 

FAX NUMBER: '7iJ.:274-6475 . 

DAT~: September 16, 2013 TIME: 4:00PM •• f ••• 

If there are any problems in receivihg this, please call the 

above listed sender as so~:m as possible at (713) 920~2831. 

Thanks. ·~ t'./\. /\.., 

Please f'md the) attaclu.~d; ~~-~~~~J~~t9r. !!P.W...ll!!!!!!l. ... !;9.~;1;!,cy_ .~Qllution Control 

Services on the P~9P.I?~9fh:~~~~~J!.;:;tp,1~0:tT~;tns Administrative Code §111.211 

(Exception for Prescribed Bumrto · biclude wildf.iJ'e hazard mitigation. A hard copy • a 0 I .,. ', t"' ·: t . '. ·, • ~ 1 : : ' . ' •, ; ). ; l (. : •. ~ o. I ~ , . ~ • will be mailed m addition to thJs transmission~~-- · · · · · · · · ·· ····· 

· .... ~ .. 

·- . '. 

· .i····1l ·~d .-- _·:s~:~;:·>:~~tt.: J,~_tt.~\r frF~--~~ lr~ · r.?· ~:· 

, •. ,~ :H·u~~\~~·;: .. :.'"~ :i''\·(~·A~'J)·:..i-~' tO-· :to -r\·~ ... ,n:.; . 4-. :·:: .• !.~ 

P-..:··· .. ·' · .:l >.,ti -~:t'!~" -.~\ 1·!~, ~-..;., h~:~•- •·;· :~·: \{\i;·~·; : , 
.... · 

09/16/2013 16:17 7132746475 HC POLLUTION CONTROL . : .. ·.· 

Pollution Contro1 Services Department 

101 S. Richey, Suite H 

Pasadena, Texas 77506 

PAX: 713-274·-6475 

September 16, 201.3 

Mr. Michael Parrish 

MC205 

Office of Legal Services 

Texas Commission on Environmental Quality 

P. 0. Box 13087 

Austin, TX 78711-3087 

PAGE 02 

W-3 

713-274-6500 

Re: Rule Project No. 2013~023"11l~CE, Add Wildfire Ha~ard Mitigation to Prescribed aurn Rule 

Comments 

Dear Mr. Parrish 

... ; ',:: .~:,:rvic~:~: Dcp;Htnl nt 

The following comments are in response to the above referenced Rule Project which proposes a 

change to Title 30 Texas >Administrative Code (30 TAC), Section §111.211, pertaining to the 

"Exception for Prescribed Burn."_ Harris county P.oflution Control Services Department (HCPCSD) is 

the local pollution control agenctwith the authority to enforce rules and regulations of the Stat(! of 

Texas within Harris. County. It Is our understanding the proposed rule will add an exception for 

"wildfire hazard mitigation" to the prohibition on outdoor burning. HCPCSD offers the following 

comments and recommendations to further strengthen the proposed rule. 

• The proposed rule does not clearly define wildfire hazard mitigation. As written, it is possible 

that someone c?ul~ .. i~~~.e~r-.J~~-~ lRf.,R~~velopment and burn large piles ot trees and brush by 

claiming that It Is for wildfire mitigation purposes. More specifically, HCPCSD is concerned that 

this newexception may be used to circumvent the prohibition of outdoor burning in 30 lAC, 

Section §111.20f · 

HCPCSP reccirrimends1that' cl~a~··cfrf'd &nfoi6~fji)(e''d~flnltidn~llgf, .. '!wiJdfire tlazard11' and "wildfire 

hazard mitigation". should be· added .to 30 . TAC; S~ction §111.203 to eliminate any 

misunderstandings or misinterpretations of the Intent of the rule. 

Proposed definitions: 

Wildfire H.azari!!. ~}o,~r:!frMd;f.P~i;'~~jc~.,;~;.P~«~u~.·'?.f),V'!.~~~grow;h~ or dead trees or ather 

vegetation~ .that Is cJe.gd, if(u~ -~g ,TJJitl.!.f..'!!.~~a.u;jf,-$,, ,Jat?;S~J: •• «,[ir~ .. ~f!~qf!i. to. .. ~urrounding woods, 

grassland, or.structunis .. ;::.;: .. y-:witl-; t·i·u''!·'~·ri.{hor\tv l·r(enfdri:e:r(iku> ;,nd r,-.,,,. ::, .. ;c., • , ,, ',,. .. 

· , i ·:;;; ~nl:tr iJi-itfi:·i·•.~·\ifidlnp ti~(~. fltbr~'io:-;~d , ·.)(•. ,-"!!: . ; ' . · · 

Wildfire Hazard .Mi;~(J.at~9Pt.'ilo:~F.ffi'?.YB! .. J?l1 UlJl1'1Irif8WJ~,b~rRff,Jt:et:f!f~ ~P[RJher deac!,. veg~t~tion 

that poses a fire hazqrd by burnlng,{n a,.CPrt1roll~q~mqnn~r that is intended to preseNe living 

trees and other vegetation. · 

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09/16/2013 16:17 7132746475 •' HC POLLUTION CONTROL PAGE 03 

Rule Project No. 2013..023·111-CE 

Page ~lSept~mber l6, 2013 

.. ; 

-· W-3 

• The rule does not stipulate who may conduct prescribed burning, how it is to be conducted, or 

whet constitutes prescribed burning. Texas Parks and Wildlife conducts routine burning in 

Harris County for wildland management purposes. These prescribed bum~ are hazardous 

operations that are conducted by experienced professionals with due care and planning to 

ensure their own safety as well as that of the public and the environment. 

HCPCSD recommends an addition to the rule that specifies who is authorized to conduct all 

types of prescribed burning and what training and qualification criteria are required. 

• As the rule is currently written, there is no provision that would allow inspection of a proposed 

site for potential fire and life safety hazards by the local fire services, which are well suited to 

identify fire related , haz~rds. The. current. ~~l:e .. ~,1~9rr~B~S _I!i%:·t:rquire notificatio~ before 

conducting prescribed burning. It has been HCPCD~s experience that notification to local 

authorities (local tire services, iaw enforcement, and pollution control agencies) is. extremely 

important, Currently, notifications to these au~horities are voluntary. 

In anticipation of a'n increase in prescribed burning due to the proposed wildfire hazard 

mitigation exception, HCPCS recommends the proposed rule include a notification requirement 

to the applicable local auttaorities h.aving jurisdiction (local fire services, law enforcement, and 

pollution control agencies}, in order to provide an opportunity for local authorities to inspect 

proposed burn sites,f~rsafety)a~c;l,envi(()~lm~p~aiJ~4~~<:11;urni1·,;:, ilc;•.·· i: .,, 

Specifically, the f~l19wi.nt1~8g~~~~il~h~,r;J .. ~~~s rid~~lli''.~~ .~:~~J~itt· .. c:ll•d' tu ·. , . -·,. ,, , .... -., . ·~·, . .,,11 ..... " ......... t, ... rl,..nf"pul_pu....... 11 ..... 4•• • 

At least 14 days prior to coi~t;li..tcting a prescribed!burnhhefolfowing shall be notified: the County 

Fire Marshal's office; any Jocal"fireidepartment·having jiJrisdiction; any local pollution control 

agency having jurl~d}ftlon; .r19" t:I!'IY.,nelg!?boril!f!t!esid.~fi~C!' ~usin~sse,~ t~ot shore o common 

t II ·---•th'th"·' o.Hl n··dttl<,~• oO~ttw.,FII ~-. -·l•rAl. ~ . .I~<..Htr..~ \.uiiU 1., d• .. ''·" ,, proper y ne Wt . e J?roperty wnere urmna IS to occur.. -:, .· , , · .. . . . . . . . -.r: - t< >lt;rn~o ~n am:fwfHlt- ramurg.ancl qu<JIII"t(:-a~toncntcrw :H •. ! " q u •· .·:tL 

HCPCSD recomm.end~ .. ~~~t J~~~ ~~~Y~J~~r~~u ~_7v~~~~~lft;,~~ ~~Pa,l,~ c~~~~\·~~ t:~i~·lty~~~ ·~;f. pr~s~~bed 

burning specifle~ i~, ~~J~C!;,~~f.!:!,9R}~f~hfrt;"by the loc::.d fire .·:·:·• '" i :r:·: .. ·- ' ; . 

: · . ' •··.;r;,rds Thf' n•d·Pn-t'-~r~'l"'· "!•o · , ... ,. ·- '" · • In the preamble.to'.this1

pmp6sed ariieJ\dm,ent, t~t1i.Texas. Commission on Environmental Quality · ' • • j ' f · 'J ·. • I • ·~ r i . f'l , · • . I 

(TCEQ) stated that "the Pi"?pos~d revision to ~dd wiJd:fire·.hazard mitigation to Chapter 111 will •. , ~~.t 4 .;;~-l..,,},.-t., ·•vV•(··Iillf~;til.'l..,lt-•fl ·1,., _,,, ·' ... 

not negatively imp~'~t,~~~,,~~·t1,~~~- f~tf;llJ,m~~~-;-Rf: .. th:~. p~J1'$~~!.~~.~ .~.atter National Ambient Air 

Qvality Standard' (NAAQ.S):,/~7!'; : NotWit_listanding JCEQ's · eoril'rrlent, r HCPCSD is concerned that 

increased pa rticulat_~, l~v.~i~·h~.l:l~it·jq~·;~i~r.~X~tlP..~ism·i~c;:g-u!~;lje~pa,r,~Jzr:pi th~h J1Q.ust~n 1 ,~alveston 

Brazoria area P~2.5 i!Jtti!!.iJ1~tte.n~~1~t~~:~wm~h.Jsr'~-l)~(ilJ:l.t!Y. :!;ln~~~.tf,t;;~q ~EIV.i~w •. , Wei uncler~tand 

that a formal. recommen(:f~t.!Qrli&IIJ1 .• ~,j:'ll'~JIRml;t\t.~,S il9(~llEl<~Pf?\-l[eg_ar.Q!ng non-attainment status 

Jater this year, Ac~on:H~Jgty,, .~C.I?.Cd.R . .r~q,t,~,ej~;.ut.h~la if;i~At,J,r .. ~,P,_ryj2.S_.r:nonitoriog data indicates an 

impact from thesf:! actlyl~!es_ !p1%TS:~.Cl..'!V1JJ, re ... ~y~,~~~e, t~!s exception. 

.. ~: 

\ 

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. . ' ·.; : .,h,.. I I • • ·'."' .. ' . : .... ~·.;. ::-~. "1·;--- ------;;:-,·-~· Wj"""'}"-J 0: :-.;-·: ··:· •• , 

09/15/2013 15: 17· · · · 713274G.475';~tl;it'l>tct:d.iJHJiJi~~t'lv.r~o-~!ROL1turto~~co~TROL 

Rule Project No. 2013-029·111-CE :. 

Page-2· 

. ·.~. ·.··:·:·~--- .. .:~. ·'· ':\ .. ::.• ·~: .... - ... 

-..... ·.· 

··;_~ ,-·. 

. •, .. ~ ... 

-:.· .. ·. · .. ··. September 16, 2013 .. : ... ~ J, • . ·:·:·:·:,,p.-1_;;._ .... 

: .... 

PAGE 04 

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. ., .:··:·~:~:.:: .. :·;:~(,~ii;··f~·~~:cf.r.,;:r : .. ;_>·?:~t.::,;t~:~::·'::· -.·. -.- · . Thank you for the opportunity to· subinh: comments ·on the proposed revisions. Should you or other 

TCEQ staff have-questions~-pteaseco'ntact-MiftVariVfeci<;-ATi"Speciallst-;wf713=274-6412- or by email 

at matt.vanvleck@pcs.hctx.net. 

Sincerely, 

Bob Allen 

Director 

cc: Paula Warren, Harris county Judge Ed Emm·ett 

John Beaudlon, Harris County Precinct 1 . ·· 

JacquepN~~n~~~!:l~_rrisCounty PrecJnct 2 ': ...... , .. 

carole Lamont, Harris County l'rednct 3 ·' · :; 

Mike Denny, Harris County ~reclnct 4 

Rock Owens~ Harris County Attorney's Office 

Mike Montgomery, Har_ris Coull)ty.Fire Maxshal's Office 

Ashley Wa~ick, JG;q R~giQDi~4 coh-iiiii~i\t~r~.:l ;:hi> rh~(l,:- . ~ ··. · 

Artur~.;~ Bla~~~ q~v,,9fJigl.!.tt.c:m:.,.J~1,1(~~{1 P.f1t;>pJiu_tJp.rl,Prcrvention and Control 

.(' ; . :.hct>(neL .. 

·'-~-

.. 

; , , i~ c \~,~~y,.J•i~Jhe':EtJ'F~~,/ri~:~a .::: -~- :1 .. ;·:, •• r·:._ Cot:;.l~;·'Ptd:iht:t 1 

'· ,;:'-. 11 "<!'1':·-:, Ci·HJdty·Pri~dflct2. 

·. i bt ri{(()W'ItV P'rr~t.i_nd 3 · · .. 

. '!.- .. 'i: b C ·:.If 1< y Pt'·=~uilCt 4 

•, · .. :::, Harris Cout-d:yi\tHlfl'lay's Officf;: . 

i . :. r._':'i:~M1}~~~(W'~~i.~~'-\A'ff~~~~·~~:-. . . . . · . _, : ,,_,;_r~-to_,i, ·R1frrgH1' ~f.Polf.~tt'IOii Ptevtnf.~< ,.., .-.r.r1 C. ... ::'·! 

.. ·.• -~ . ·. .: .. ~ .. ' ; ; 

. • .· .. l'~: .: ~ 

.: • ~-·:• ·;.,. •A: 
EPA Region 6 Comments on Revisions to 30 T AC Chapter 111 

Rule Project Number 20 13-023~ 111-CE 

9~27~13 

1. As acknowledged in the TCEQ proposal, any SIP revision must meet the criteria of Section 

110(1) of the Clean Air Act, which says in part that EPA cannot approve a revision to the SIP 

if it will interfere with attainment or maintenance of the a National Ambient Air Quality 

Standard. To that end, we request you address the following points: 

w 

a. What analysis has the TCEQ done to support its statement on page 9 that the 

proposed revision to add wildfire hazard mitigation to Chapter 111 is expect~d to 

improve air quality by reducing the incidence, intensity~ and spread of wildfires? 

b. Has the TCEQ done any analysis to estimate tho additional amm.mt of acreage that 

may be atlllually burned as a result of this amendment to Chapter 111? 

c. The TCEQ should provide an analysis to show that the revision will not interfere 

with attainment or maintenance of the ozonet as well as the PM standards. 

2. On page 2, the TCEQ states that presently, authorization to conduct a bum for wildfire 

hazard mitigation must be granted on a case-by~<;ase basis under section 111.215. 

Section 215, as approved into the SIP currently states: 

If not otherwise authorized by this chapter, outdoor burning may 

be authorized by written permission from the executive director if 

there is no practical alternative and if the burning will not cause or 

contribute to a nuisance, traffic hazard or to a violation of any 

federal or state primary or secondary ambient air standard. The 

executive director may specify procedures or methods to control or 

abate emissions from outdoor burning authorized p1.1rsuant to this 

rule. Authorization to burn may be revoked by the executive 

director at any time if the burning causes nuisance conditions, is 

not conducted in accordance with the specified conditions, violates 

any provision of an applicable permit, or causes a violation of any 

air quality standard. · 

a. We understand section 215 to require that a landowner must first declare that he or she 

desires to conduct a bum expressly for the purpose of mitigating a wildfire hazard and 

that there is a formal process to review that request and approve or deny it. Since the 

intent of this rule change is to remove that case ... by-case determinative process, how will 

the TCEQ ensure that future bums are in fact conducted for wildfire hazard mitigation, 

and not for some other reason (e.g., land clearing) that does not C&l'Y an exemption under 

section .111 .211? The rule should include a definition of wildfire hazard and wildfire 

hazard mitigation to insure that the rule does not allow increase burning without 

W-4 

Sl.£2Sl.Sv121S XH.:l l3C~3SI:JI dH WI:Jov:s ETOc L2 das 
providing the expected benefit Without a clear definition, it is difficult to see how the 

TCEQ will ensure that the rule will not result in burning intended for other than 

preventing catastrophie wildfires, malcing demons1rating compliance with Section 11 0(1) 

difficult. 

b. Section 215 allows the Director to potentially specify methods to control or abate 

emissions from burning, and revoke the authorization to burn if the burn violates any 

provision of an applicable.pennit~ or causes a violation of any air quality standatd. Why 

does the TCEQ believe that there is no longer any need to potentially specifY methods to 

control or abate emissions from such burning? 

W-4 

9L.E2Sl.Svl21S XI:::J.::J l3f'~3SI:::Jl dH WI:::IOv=B El02 £.2 das 
Index of Oral Testimony 

No oral testimony was received pertaining to this proposal. 
HEARING OFFICER REPORT 

I am the hearing officer assigned to conduct the public hearing regarding the 

proposed revision to 30 TAC Chapter 111 and to the State Implementation Plan, 

TCEQ Rule Project Number 2013-023-111-CE 

A public hearing was scheduled for 10:00 a.m. on September 10, 2013, at 

Building E, Conference Room 201S, at the commission's central office located at 

12100 Park 35 Circle. 

At 9:30 a.m., the room was open and TCEQ staff members were available to 

discuss the proposal. At 10:00 am, TCEQ staff and a court reporter were present 

and ready to open the hearing for public comment. After waiting for 10 minutes, 

no one had arrived to make comments on the record. Therefore, the public 

hearing was not formally opened for comment and a transcript was not prepared. 

Hearing Officer 

Date signed 
J- .. --------~----·-.-,···-·------- --- ------·-·-• ··----co .I 

- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: September 10, 2013 

Time: w:ooAM 

Rule Project No.: 2013-023-111-CE 

Short Title: Add Wildfire Hazard Mitigation to the State's Prescribed Burn Rule 

Location: Building E, Conference Room 201S, at the commission's central office located at 12100 Park 35 Circle 

Concerning: Proposed revision to 30 TAC Chapter 111 and to the State Implementation Plan 

Name / ~Representing Presenting Oral Testimony? 

(Please Print) (Circle One) 

~r_\// Yes No 

/0 ~ IV ;;:,./ 

() 

Yes No 

/(/\\)' £1,/~J Yes No 

'K \ !lJ yr ~ Ct'lV Yes No 

\D \ ~ Yes No 

'\-\ Yes No 

'\. 

Yes No 

Yes No 
EVALUATION
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the 

amendment to §111.211 without change to the proposed text as published in the August 16, 2013, 

issue of the Texas Register (38 TexReg 5223), and will not be republished. 

The amendment will be submitted to the United States Environmental Protection Agency (EPA) 

as a revision to the state implementation plan (SIP). 

Background and Summary of the Factual Basis for the Adopted Rule 

The Texas Prescribed Burning Board (TPBB) petitioned the TCEQ to address wildfires in the 

state's prescribed burn rule. In particular, the TPBB asked for a revision that would add hazard 

mitigation to the rule. The commission approved the request at its February 27, 2013, Agenda 

meeting and issued an order on March 5, 2013, directing the executive director to initiate 

rulemaking (Project No. 2013-018-PET-NR). 

The rule revision amends §111.211 by adding prescribed burning for wildfire hazard mitigation 

as an exception to the state's prohibition on outdoor burning. Currently, a prescribed burn is 

allowed only for forest, range and wildland/wildlife management purposes, and coastal saltmarsh management burning. The revision allows prescribed burning in other areas, such as 

where rural areas interface with urban areas, for the purpose of wildfire hazard mitigation in 

order to reduce the incidence, intensity, and spread of wildfires. While the petitioner did not 

specifically request that the hazard mitigation provision be specific to wildfires, the exception 

added to §111.211(1) is specific to wildfire hazard mitigation in order to provide clarity and 

specificity consistent with the commission's interpretation of the TPBB's intent. The TPBB did 

not comment on the proposed rule. 

-1-
Under current TCEQ rule §111.215, a prescribed burn for wildfire hazard mitigation is 

authorized only by written permission on a case-by-case basis from the TCEQ executive director. 

Prescribed burning has been underutilized due to lack of awareness of the authorization 

available under §111.215. Also, prescribed burning for hazard mitigation is currently subject to 

TCEQ enforcement action unless prior written permission from the executive director is 

received. Prescribed burning is not appropriate for land-clearing operations, which are 

addressed separately under §111.209. 

A prescribed burn is defined in §111.203(5) as the controlled application of fire to naturally 

occurring vegetative fuels under specified environmental conditions and confined to a 

predetermined area, following appropriate planning and precautionary measures. The state's 

prohibition on outdoor burning is in Chapter 111, Subchapter B. 

Demonstrating Noninterference under Federal Clean Air Act, Section 110(l) 

The revision to add wildfire hazard mitigation to Chapter 111 does not negatively impact the 

state's attainment of the particulate matter National Ambient Air Quality Standard (NAAQS), 

does not interfere with control measures for NAAQS compliance, and does not prevent 

reasonable further progress toward attainment of the particulate matter NAAQS. 

The outdoor burning rules in Chapter 111, Subchapter B, are included in the SIP as part of the 

state's strategy for control of particulate matter emissions. The revision does not interfere with 

applicable requirements for attainment and for reasonable further progress toward attainment, 

or with other applicable requirements of the Federal Clean Air Act (FCAA). While prescribed 

burning does result in some air emissions, controlled burning for wildfire hazard mitigation 

purposes helps reduce the incidence, intensity, and spread of wildfires. By reducing the 

-2-
likelihood of the significantly greater air emissions associated with wildfires, the rule revision is 

expected to help improve air quality. Additionally, as discussed elsewhere in this preamble, the 

executive director currently authorizes prescribed burning for wildfire hazard mitigation on a 

case-by-case basis as provided by §111.215. Section 111.215 is already an EPA-approved rule 

under the SIP. The commission's purpose in amending the rule is to streamline the existing 

process for authorization of prescribed burning for wildfire hazard mitigation provided by 

§111.215, consistent with the executive director's current enforcement of the outdoor burning 

rules in Chapter 111, Subchapter B. 

Section Discussion 

The amendment to §111.211 changes existing paragraph (1) to add "wildfire hazard mitigation" to 

the list of authorized prescribed burn purposes. 

Final Regulatory Impact Determination 

The commission reviewed the rule revision in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, Regulatory Analysis of Major Environmental Rules, and 

determined that the amendment does not meet the definition of a major environmental rule as 

defined in the statute. According to Texas Government Code, §2001.0225, a major 

environmental rule means "a rule the specific intent of which is to protect the environment or 

reduce risks to human health from environmental exposure and that may adversely affect in a 

material way the economy, a sector of the economy, productivity, competition, jobs, the 

environment, or the public health and safety of the state or a sector of the state." The purpose of 

this revision is to increase protection of the environment through wildfire hazard mitigation and 

reduce risk to human health; it is not expected that this revision will adversely affect in a 

material way the economy, a sector of the economy, productivity, jobs, the environment, or the 

public health and safety of the state or a sector of the state. Therefore, no regulatory impact 

-3-
analysis is required. 

Furthermore, even if the revision to the rule constituted a major environmental rule, a 

regulatory impact analysis would not be required because the revision does not meet any of the 

four applicability criteria for requiring a regulatory impact analysis for a major environmental 

rule. Texas Government Code, §2001.0225 applies only to a major environmental rule that: 1) 

exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) 

exceeds an express requirement of state law, unless the rule is specifically required by federal 

law; 3) exceeds a requirement of a delegation agreement or contract between the state and an 

agency or representative of the federal government to implement a state and federal program; or 

4) adopts a rule solely under the general powers of the agency instead of under a specific state 

law. The revision does not meet any of the four applicability criteria listed in Texas Government 

Code, §2001.0225 because: 1) the revision is designed to meet, not exceed the relevant standard 

set by federal law; 2) no contract or delegation agreement covers the topic that is the subject of 

this rule; and 3) the rule revision is authorized by specific sections of the Texas Health and 

Safety Code, Chapter 382 (also known as the Texas Clean Air Act), cited in the Statutory 

Authority section of this preamble. 

The purpose of the rule revision is to allow prescribed burns for the purpose of wildfire hazard 

mitigation. Also, the rule revision will be incorporated into the Texas SIP. The revision will not 

interfere with any applicable requirement concerning attainment and reasonable further 

progress, or any other applicable requirement of the FCAA. In addition, the revision is expected 

to improve air quality by reducing the incidence, intensity, and spread of wildfires. 

Without the rule revision, a prescribed burn for wildfire hazard mitigation may be authorized 

only by written permission on a case-by-case basis from the TCEQ executive director under 

-4-
§111.215. Under current rules, prescribed burning is underutilized due to lack of awareness of 

the provision in §111.215. Without written permission from the executive director, prescribed 

burning for hazard mitigation is subject to TCEQ enforcement action. 

The commission invited public comment regarding the draft regulatory impact analysis 

determination during the public comment period. No comments were received on the regulatory 

impact analysis determination. 

TakingslrnpactAssessrnent 

The commission completed a takings impact assessment for this rulemaking action under Texas 

Government Code, §2007.043. The primary purpose of the rulemaking is to add in §111.211, 

prescribed burning for wildfire hazard mitigation as an exception to the state's prohibition on 

outdoor burning. Currently, a prescribed burn is allowed only for forest, range and 

wildland/wildlife management purposes, and coastal salt-marsh management burning. A 

prescribed burn is defined in §111.203(5) as the controlled application of fire to naturally 

occurring vegetative fuels under specified environmental conditions and confined to a 

predetermined area, following appropriate planning and precautionary measures. 

This revision is expected to improve air quality by reducing the incidence, intensity, and spread 

of wildfires. In addition, the commission's assessment indicates that Texas Government Code, 

Chapter 2007 does not apply to this rule amendment because this is an action that is taken in 

response to a real and substantial threat to public health and safety, that is designed to 

significantly advance the health and safety purpose, and that does not impose a greater burden 

than is necessary to achieve the health and safety purpose. Thus, this action is exempt under 

Texas Government Code, §2007.003(b)(13). 

-5-
Consistency with the Coastal Management Program 

The commission reviewed the rulemaking and found the revision is a rulemaking identified in 

the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b )(2) relating to rules 

subject to the Coastal Management Program, and, therefore, requires that goals and policies of 

the Texas Coastal Management Program (CMP) be considered during the rulemaking process. 

The commission reviewed this rulemaking for consistency with the CMP goals and policies in 

accordance with the regulations of the Coastal Coordination Advisory Committee and 

determined that the rulemaking is procedural in nature and has 

no substantive effect on commission actions subject to the CMP and is, therefore, consistent 

with CMP goals and policies. 

The commission invited public comment regarding the consistency with the CMP during the 

public comment period. No comments were received on the CMP. 

Effect on Sites Subject to the Federal Operating Permits Program 

Because Chapter 111 contains applicable requirements under 30 TAC Chapter 122, owners or 

operators subject to the Federal Operating Permit Program must, consistent with the revision 

process in Chapter 122, revise operating permits to include the revised Chapter 111 requirements 

for emissions affected by the revisions to Chapter 111 at their site. 

Owners or operators must revise operating permits to include the new Chapter 111 requirements 

upon the effective date of the adopted rulemaking. 

Public Comment 

The commission held a public hearing on September 10, 2013. The comment period closed on 

-6-
September 16, 2013. The commission received comments from the Houston Regional Group of 

the Sierra Club (Sierra Club), the Harris County Attorney's Office (HCAO), Harris County 

Pollution Control Services Department (HCPCSD), and the EPA. The comments from the Sierra 

Club were generally in support of the revision. 

Response to Comments 

Comment 

The Sierra Club expressed support for this proposal, but believes it is unnecessary since the 

prescribed burning already allowed under §111.211 is usually flexible enough to allow burning in 

areas as necessary for wildfire hazard mitigation. Sierra Club also encouraged the commission 

to understand that this form of prescribed burn is not needed or recommended in streamside 

management zones or in riparian areas since it can severely damage these areas for the native 

wildlife and vegetation. 

Response 

The commission appreciates the support. The amendment adopted in this 

rulemaking specifically addresses the mitigation of wildfire hazards to human 

population. The purpose of the amendment is to include prescribed burning for 

wildfire hazard mitigation as an exception to the type of outdoor burning that 

requires approval of the executive director on a case-by-case basis. The 

amendment streamlines the authorization process for prescribed burning for 

wildfire hazard mitigation by authorizing, without prior approval from the 

executive director, a form of prescribed burning that has consistently been 

approved in the past. No change was made as a result of this comment. 

Comment 

-7-
The Sierra Club urged the commission to allow prescribed burning that begins naturally or as a 

result of human carelessness. 

Response 

A prescribed burn is one that is intentionally set with the purpose of an end 

benefit. Fires that begin naturally or by human carelessness are not examples of 

prescribed burning. Prescribed burning for wildfire hazard mitigation is an 

intentionally set fire designed to reduce the frequency, intensity, and duration of a 

wildfire by consuming the fuel load under controlled conditions with the goal to 

reduce the potential fire hazard between unpopulated and populated areas. No 

change was made as a result of this comment. 

Comment 

EPA, HCAO, and HCPCSD commented on the need for the revised rule to define "wildfire 

hazard" and "wildfire hazard mitigation." They are concerned that, without the requested 

definitions, burning oflarge piles of brush from land-clearing operations would take place under 

this exception. In its comment, EPA questioned the TCEQ's ability to ensure that the burning 

would not be conducted for another reason, such as land-clearing, if the executive director's 

case-by-case approval is not required. 

Response 

The TCEQ does not believe a definition of wildfire hazard or of wildfire hazard 

mitigation in the amended rule is necessary to prevent unauthorized burning 

under the amended rule. A prescribed burn is defined in §111.203(5) as: "The 

controlled application of fire to naturally occurring vegetative fuels under 

specified environmental conditions and confined to a predetermined area, 

-8-
following appropriate planning and precautionary measures." It is also defined in 

4 TAC §225.1(10) as: "The controlled application of :fire to naturally occurring or 

naturalized vegetative fuels under specified environmental conditions in 

accordance with a written prescribed burn plan." The accumulation of cleared 

and piled vegetation is considered a waste and therefore is not considered a 

naturally occurring fuel. Compliance with the streamlined authorization for 

prescribed burning for wildfire hazard mitigation does not change whether the 

approval is made on a case-by-case basis or approved under the conditions set 

forth in this proposed rule. No change was made as a result of these comments. 

Comment 

HCAO and HCPCSD commented on the lack of requirements that define who may carry out a 

prescribed burn and how prescribed burning takes place. They recommend that the proposed 

rule be revised to define who can conduct prescribed burning, and that the rule include training 

and qualification criteria. 

Response 

The TPBB is responsible for regulating certified and insured prescribed burn 

managers. For more information about the TPBB's certification and training 

programs, go to 

http:jjwww.texasagriculture.govjHomejProductionAgriculturejPrescribedBurn 

Program.aspx. No change was made as a result of these comments. 

Comment 

HCAO and HCPCSD commented on the lack of pre-approval or pre-inspection requirements of 

the site or area that is the subject of the prescribed burn. They recommended prior notification 

-9-
to local authorities be made part of the revised rule. They proposed a specific wording for the 

notification requirement, and requested that the notification requirement be extended to all 

types of prescribed burning in §111.211. 

Response 

The purpose of the amendment is to streamline the process for prescribed burning 

for wildfire hazard mitigation. Requiring notification to local authorities is not 

always possible due to time restraints and emergency situations. Notification 

would not facilitate streamlining the authorization process for this type of 

prescribed burning. No change was made in response to these comments. 

Comment 

HCAO and HCPCSD commented that the exception would allow an increased number of fires 

that could impact the Houston-Galveston-Brazoria (HGB) PM2.5 attainment status. Since the 

HGB attainment status is currently under review, the commenters requested a re-evaluation of 

the proposed exception if future PM2.5 monitoring data indicates an impact from prescribed 

burning for wildfire hazard mitigation. 

Response 

Prescribed burning for wildfire hazard mitigation is already conducted on a caseby-case basis, requiring approval from the TCEQ Regional Director. The purpose 

of this rulemaking is to "pre-authorize" prescribed burning with the intention of 

streamlining the decision-making process under a specific set of conditions. The 

result of controlled burns for wildfire hazard mitigation should be the reduced 

frequency, intensity, and duration of wildfires, and therefore less atmospheric 

loading of airborne particulates. 

-10-
If the HGB area's PM2.5 attainment status changes in the future, the TCEQ will be 

required to develop SIP revisions to address all contributing factors. The 

allowance of this type of prescribed burning is not expected to be a contributing 

factor for PM2.5 non-attainment. No change was made in response to these 

comments. 

Comment 

EPA noted in their comment that a SIP revision must meet §11o(l) of the FCAA and requested 

that the TCEQ address several points. Specifically, the EPA asked what analysis has the TCEQ 

done to support its statement that the proposed revision to add wildfire hazard mitigation to 

Chapter 111 is expected to improve air quality by reducing the incidence, intensity, and spread of 

wildfires. Additionally, the EPA asked if the TCEQ had done any analysis to estimate the 

additional amount of acreage that may be annually burned as a result of this amendment to 

Chapter 111. Finally, the EPA stated that the TCEQ should provide an analysis to show that the 

revision will not interfere with attainment or maintenance of the ozone, as well as the 

particulate matter standards. 

Response 

The commission did not perform any modeling or other technical analysis 

regarding the expected benefits associated with wildfire hazard mitigation. Nor 

has the commission performed an analysis to estimate the additional acreage that 

may be burned annually from wildfire hazard mitigation purposes. The 

commission considers it to be self-evident that while prescribed burns for wildfire 

hazard mitigation will result in some emissions of particulate matter, nitrogen 

oxides, and other pollutants, these emissions will be significantly less than a 

-11-
wildfire which would burn uncontrolled and consume substantially more fuel. 

Additionally, such analyses are not necessary for the purposes of FCAA, §110(1) 

and the adopted revision to Chapter 111. The commission already has the ability to 

allow prescribed burns for wildfire hazard mitigation purposes on a case-by-case 

basis under §111.215, which is an EPA-approved rule under the SIP. Therefore, the 

adopted rule revision is not authorizing an activity that could not already be 

allowed under the current rules included in the SIP. As such, the revision cannot 

be backsliding under the SIP for the purposes of FCAA, §110(1) for either the 

particulate matter or the ozone NAAQS. The purpose of the rulemaking is to better 

facilitate the process of allowing prescribed burns for wildfire hazard mitigation 

by specifically allowing the activity under the rule rather than through case-bycase determinations. No change has been made to the rule in response to this 

comment. 

Comment 

EPA commented that, by removing the existing approval process from §111.215, the executive 

director no longer has "methods to specify control or abate emissions." 

Response 

Section 111.215 stipulates that the executive director may specify procedures or 

methods to control or abate emissions. Because emissions controls or abatement 

are not practical in all cases of outdoor burning, not every request is conducive to 

abating or controlling emissions. Other than the general requirements in the 

exception, there are no practical methods to control or abate emissions from 

prescribed burning, thus the executive director is not waiving or eliminating this 

requirement. No change was made in response to this comment. 

-12-
RECOMMENDATION
CHAPTER 111: CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS 

AND PARTICULATE MATTER 

SUBCHAPTERB: OUTDOORBURNING 

§111.211 

Statutory Authority 

The amendment is adopted under Texas Water Code (TWC), §5.102, General Powers, 

§5.103, Rules, and §5.105, General Policy, which authorize the commission to adopt 

rules necessary to carry out its powers and duties under the TWC; and under the Texas 

Health and Safety Code (THSC), §382.017, Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The 

amended section is also adopted under THSC, §382.002, Policy and Purpose, which 

establishes the commission's purpose to safeguard the state's air resources, consistent 

with the protection of public health, general welfare, and physical property; THSC, 

§382.011, General Powers and Duties, which authorizes the commission to control the 

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

commission to prepare and develop a general, comprehensive plan for the control of the 

state's air; THSC, §382.018, which authorizes the commission to control outdoor 

burning; and THSC, §382.085, unauthorized emissions prohibited. 

The adopted amendment implements TWC, §§5.102, 5.103, and 5.105; THSC, 

§§382.002, 382.011, 382.012, 382.017, 382.018, and 382.085; and Federal Clean Air 

Act, 42 United States Code, §§7401, et seq. 

-1-
§111.211. Exception for Prescribed Burn. 

Outdoor burning shall be authorized for: 

(1) Prescribed burning for forest, range and wildland/wildlife 

management, and wildfire hazard mitigation purposes, with the exception of coastal 

salt-marsh management burning. Such burning shall be subject to the requirements of 

§111.219 of this title (relating to General Requirements for Allowable Outdoor Burning), 

and structures containing sensitive receptors must not be negatively affected by the 

burn. When possible, notification of intent to burn should be made to the appropriate 

commission regional office prior to the proposed burn. Commission notification or 

approval is not required. 

(2) Coastal salt-marsh management burning conducted in Aransas, 

Brazoria, Calhoun, Chambers, Galveston, Harris, Jackson, Jefferson, Kleberg, 

Matagorda, Nueces, Orange, Refugio, and San Patricio Counties. Coastal salt-marsh 

burning in these counties shall be subject to the following requirements: 

(A) All land on which burning is to be conducted shall be registered 

with the appropriate commission regional office using a United States Geological Survey 

map or equivalent upon which are identified significant points such as roads, canals, 

lakes, and streams, and the method by which access is made to the site. For large 

acreage, the map should be divided into manageable blocks with identification for each 

-2-
defined block. The information must be received for review at least 15 working days 

before the burning takes place. 

(B) Prior to any burning, notification, either verbal or written, must 

be made to, and authorization must be received from the appropriate commission 

regional office. Notification must identify the specific area and/or block to be burned, 

approximate start and end time, and a responsible party who can be contacted during 

the burn period. 

(C) Such burning shall be subject to the requirements of §111.219 of 

this title. 
-:: ~:) i t' . . 

p- . 

JAll 2 1 

TEXAS COMMISSION ON ENVIRONMENTAL QUALI'IY 

ORDER ADOPTING AMENDED RULE AND 

REVISION TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2013-0457-RUL 

Rule Project No. 2013-023-111-CE 

1lii~ 

On January 15, 2014, the Texas Commission on Environmental Quality 

(Commission), during a public meeting, considered adoption of amended 30 TAC § 

111.211. The Commission adopts this amendment in Chapter 111, Control of Air 

Pollution from Visible Emissions, Subchapter B, Outdoor Burning; and corresponding 

revision to the state implementation plan (SIP). The revision to the rule allows 

prescribed burns for the purpose of wildfire hazard mitigation. Under Tex. Health & 

Safety Code Ann.§§ 382.011, 382.012, and 382.023 (Vernon 2011), the Commission has 

the authority to control the quality of the state's air and to issue orders consistent with 

the policies and purposes ofthe Texas Clean Air Act, Chapter 382 of the Tex. Health & 

Safety Code. The proposed rule was published for comment in the August 16, 2013, 

issue of the Texas Register (38 TexReg 5223). 

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

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

after proper notice, the Commission conducted a public hearing to consider the 

amended rule and revision to the SIP. Proper notice included prominent advertisement 

in the areas affected at least 30 days prior to the date of the hearing. A public hearing 

was held in Austin on September 10, 2013. 

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

including ihterested persons, the Regional Administrator of the EPA, and all applicable 

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

recommendations on the proposed amended rule and SIP revision, either orally or in 

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

copies of the proposed amended rule and SIP revision were available for public 

inspection at the Commission's central office and on the Commission's Web site. 

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

amended rule and SIP revision were submitted to the Commission during the comment 

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

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

testimony includes the names of all interested groups or associations offering comment 

on the proposed amended rule and the SIP revision and their position concerning the 

same. 

•.'' 
IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rule 

and revision to the SIP incorporated by reference to this Order are hereby adopted. The 

Commission further authorizes staff to make any non-substantive revisions to the rule 

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

preamble to the adopted rule and the revision to the SIP are incorporated by reference 

in this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the 

Commission, the Chairman should transmit a copy of this Order, together with the 

adopted rule and revision to the SIP, to the Regional Administrator of EPA as a 

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

U.S. Code Ann. §§ 7401- 7671q, as amended. 

This Order constitutes the Order of the Commission required by the 

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

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

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

remaining portions. 

Issueddate: JAN ·2 1 2014 

TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

Bryan W. S aw, Ph.D., P.E., Chairman 
The amendments are adopted under Texas Occupations Code, 

§651.152. The Commission interprets §651.152 as authorizing 

it to adopt rules as necessary to administer Chapter 651. 

No other statutes, articles, or codes are affected by the adoption. 

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. 

Filed with the Office of the Secretary of State on January 14, 

2014. 

TRD-201400121 

Janice McCoy 

Executive Director 

Texas Funeral Service Commission 

Effective date: February 3, 2014 

Proposal publication date: October 4, 2013 

For further information, please call: (512) 936-2469 

• • • 

CHAPTER 203. LICENSING AND 

ENFORCEMENT --SPECIFIC SUBSTANTIVE 

RULES 

22 TAC §203.3 

The Texas Funeral Service Commission ("Commission") adopts 

an amendment to §203.3, concerning Funeral Director in 

Charge, without changes to the proposed text as published in 

the October 4, 2013, issue of the Texas Register (38 TexReg 

6862). The section will not be republished. 

The amendment to §203.3 is adopted to change the mileage in 

subsection (d) from 60 to 100 miles. 

No comments were received regarding the proposed amendment. 

The amendment is adopted under Texas Occupations Code, 

§651.152. The Commission interprets §651.152 as authorizing 

it to adopt rules as necessary to administer Chapter 651. 

No other statutes, articles, or codes are affected by the adoption. 

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. 

Filed with the Office of the Secretary of State on January 14, 

2014. 

TRD-201400120 

Janice McCoy 

Executive Director 

Texas Funeral Service Commission 

Effective date: February 3, 2014 

Proposal publication date: October 4, 2013 

For further information, please call: (512) 936-2469 

• • • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER B. OUTDOOR BURNING 

30 TAC §111.211 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) adopts the amendment to §111.211 

without change to the proposed text as published in the August 

16, 2013, issue of the Texas Register (38 TexReg 5223) and 

will not be republished. 

The amendment will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP) . 

Background and Summary of the Factual Basis for the Adopted 

Rule 

The Texas Prescribed Burning Board (TPBB) petitioned the 

TCEQ to address wildfires in the state's prescribed burn rule. In 

particular, the TPBB asked for a revision that would add hazard 

mitigation to the rule. The commission approved the request 

at its February 27, 2013, Agenda meeting and issued an order 

on March 5, 2013, directing the executive director to initiate 

rulemaking (Project No. 2013-018-PET -NR). 

The rule revision amends §111.211 by adding prescribed burning for wildfire hazard mitigation as an exception to the state's 

prohibition on outdoor burning. Currently, a prescribed burn is 

allowed only for forest, range and wildland/wildlife management 

purposes, and coastal salt-marsh management burning. Therevision allows prescribed burning in other areas, such as where 

rural areas interface with urban areas, for the purpose of wildfire hazard mitigation in order to reduce the incidence, intensity, 

and spread of wildfires. While the petitioner did not specifically 

request that the hazard mitigation provision be specific to wildfires, the exception added to §111.211 (1) is specific to wildfire 

hazard mitigation in order to provide clarity and specificity consistent with the commission's interpretation of the TPBB's intent. 

The TPBB did not comment on the proposed rule. 

Under current TCEQ rule §111.215, a prescribed burn for wildfire hazard mitigation is authorized only by written permission 

on a case-by-case basis from the TCEQ executive director. Prescribed burning has been underutilized due to lack of awareness 

of the authorization available under §111.215. Also, prescribed 

burning for hazard mitigation is currently subject to TCEQ enforcement action unless prior written permission from the executive director is received. Prescribed burning is not appropriate 

for land-clearing operations, which are addressed separately under §111.209. 

A prescribed burn is defined in §111.203(5) as the controlled 

application of fire to naturally occurring vegetative fuels under 

specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary 

measures. The state's prohibition on outdoor burning is in Chapter 111, Subchapter B. 

Demonstrating Noninterference under Federal Clean Air Act, 

Section 11 0(1) 

ADOPTED RULES January 31,2014 39 TexReg 497 
The revision to add wildfire hazard mitigation to Chapter 111 

does not negatively impact the state's attainment of the particulate matter National Ambient Air Quality Standard (NAAQS), 

does not interfere with control measures for NAAQS compliance, 

and does not prevent reasonable further progress toward attainment of the particulate matter NAAQS. 

The outdoor burning rules in Chapter 111, Subchapter B, are included in the SIP as part of the state's strategy for control of particulate matter emissions. The revision does not interfere with 

applicable requirements for attainment and for reasonable further progress toward attainment, or with other applicable requirements of the Federal Clean Air Act (FCAA). While prescribed 

burning does result in some air emissions, controlled burning for 

wildfire hazard mitigation purposes helps reduce the incidence, 

intensity, and spread of wildfires. By reducing the likelihood of 

the significantly greater air emissions associated with wildfires, 

the rule revision is expected to help improve air quality. Additionally, as discussed elsewhere in this preamble, the executive 

director currently authorizes prescribed burning for wildfire hazard mitigation on a case-by-case basis as provided by §111.215. 

Section 111.215 is already an EPA-approved rule under the SIP. 

The commission's purpose in amending the rule is to streamline 

the existing process for authorization of prescribed burning for 

wildfire hazard mitigation provided by § 111.215, consistent with 

the executive director's current enforcement of the outdoor burning rules in Chapter 111, Subchapter B. 

Section Discussion 

The amendment to §111.211 changes existing paragraph (1) 

to add "wildfire hazard mitigation" to the list of authorized 

prescribed burn purposes. 

Final Regulatory Impact Determination 

The commission reviewed the rule revision in light of the regulatory analysis requirements of Texas Government Code, 

§2001.0225, Regulatory Analysis of Major Environmental Rules, 

and determined that the amendment does not meet the definition of a major environmental rule as defined in the statute. 

According to Texas Government Code, §2001.0225, a major 

environmental rule means "a rule the specific intent of which 

is to protect the environment or reduce risks to human health 

from environmental exposure and that may adversely affect in a 

material way the economy, a sector of the economy, productivity, 

competition, jobs, the environment, or the public health and 

safety of the state or a sector of the state." The purpose of this 

revision is to increase protection of the environment through 

wildfire hazard mitigation and reduce risk to human health; it is 

not expected that this revision will adversely affect in a material 

way the economy, a sector of the economy, productivity, jobs, 

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

a sector of the state. Therefore, no regulatory impact analysis 

is required. 

Furthermore, even if the revision to the rule constituted a major 

environmental rule, a regulatory impact analysis would not be required because the revision does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 

applies only to a major environmental rule that: 1) exceeds a 

standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state 

law, unless the rule is specifically required by federal law; 3) 

exceeds a requirement of a delegation agreement or contract 

between the state and an agency or representative of the fed39 TexReg 498 January 31, 2014 Texas Register 

era! government to implement a state and federal program; or 

4) adopts a rule solely under the general powers of the agency 

instead of under a specific state law. The revision does not meet 

any of the four applicability criteria listed in Texas Government 

Code, §2001.0225 because: 1) the revision is designed to meet, 

not exceed the relevant standard set by federal law; 2) no contract or delegation agreement covers the topic that is the subject 

of this rule; and 3) the rule revision is authorized by specific sections of the Texas Health and Safety Code, Chapter 382 (also 

known as the Texas Clean Air Act), cited in the Statutory Authority section of this preamble. 

The purpose of the rule revision is to allow prescribed burns for 

the purpose of wildfire hazard mitigation. Also, the rule revision 

will be incorporated into the Texas SIP. The revision will not interfere with any applicable requirement concerning attainment and 

reasonable further progress, or any other applicable requirement 

of the FCAA. In addition, the revision is expected to improve air 

quality by reducing the incidence, intensity, and spread of wildfires. 

Without the rule revision, a prescribed burn for wildfire hazard mitigation may be authorized only by written permission 

on a case-by-case basis from the TCEQ executive director 

under §111.215. Under current rules, prescribed burning is 

underutilized due to lack of awareness of the provision in 

§111.215. Without written permission from the executive director, prescribed burning for hazard mitigation is subject to TCEQ 

enforcement action. 

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment 

period. No comments were received on the regulatory impact 

analysis determination. 

Takings Impact Assessment 

The commission completed a takings impact assessment for this 

rulemaking action under Texas Government Code, §2007.043. 

The primary purpose of the rulemaking is to add in §111.211, 

prescribed burning for wildfire hazard mitigation as an exception 

to the state's prohibition on outdoor burning. Currently, a prescribed burn is allowed only for forest, range and wildland/wildlife 

management purposes, and coastal salt-marsh management 

burning. A prescribed burn is defined in § 111.203(5) as the 

controlled application of fire to naturally occurring vegetative 

fuels under specified environmental conditions and confined 

to a predetermined area, following appropriate planning and 

precautionary measures. 

This revision is expected to improve air quality by reducing the 

incidence, intensity, and spread of wildfires. In addition, the commission's assessment indicates that Texas Government Code, 

Chapter 2007 does not apply to this rule amendment because 

this is an action that is taken in response to a real and substantial threat to public health and safety, that is designed to significantly advance the health and safety purpose, and that does not 

impose a greater burden than is necessary to achieve the health 

and safety purpose. Thus, this action is exempt under Texas 

Government Code, §2007.003(b)(13). 

Consistency with the Coastal Management Program 

The commission reviewed the rulemaking and found the revision 

is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) relating to rules subject 

to the Coastal Management Program, and, therefore, requires 
that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process. 

The commission reviewed this rulemaking for consistency with 

the CMP goals and policies in accordance with the regulations 

of the Coastal Coordination Advisory Committee and determined 

that the rulemaking is procedural in nature and has no substantive effect on commission actions subject to the CMP and is, 

therefore, consistent with CMP goals and policies. 

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received on the CMP. 

Effect on Sites Subject to the Federal Operating Permits Program 

Because Chapter 111 contains applicable requirements under 

30 TAG Chapter 122, owners or operators subject to the Federal Operating Permit Program must, consistent with the revision 

process in Chapter 122, revise operating permits to include the 

revised Chapter 111 requirements for emissions affected by the 

revisions to Chapter 111 at their site. 

Owners or operators must revise operating permits to include 

the new Chapter 111 requirements upon the effective date of the 

adopted rulemaking. 

Public Comment 

The commission held a public hearing on September 10, 2013. 

The comment period closed on September 16, 2013. The commission received comments from the Houston Regional Group 

of the Sierra Club (Sierra Club), the Harris County Attorney's Office (HCAO), Harris County Pollution Control Services Department (HCPCSD), and the EPA. The comments from the Sierra 

Club were generally in support of the revision. 

Response to Comments 

Comment 

The Sierra Club expressed support for this proposal, but believes 

it is unnecessary since the prescribed burning already allowed 

under §111.211 is usually flexible enough to allow burning in areas as necessary for wildfire hazard mitigation. Sierra Club also 

encouraged the commission to understand that this form of prescribed burn is not needed or recommended in streamside management zones or in riparian areas since it can severely damage 

these areas for the native wildlife and vegetation. 

Response 

The commission appreciates the support. The amendment 

adopted in this rulemaking specifically addresses the mitigation 

of wildfire hazards to human population. The purpose of the 

amendment is to include prescribed burning for wildfire hazard 

mitigation as an exception to the type of outdoor burning that 

requires approval of the executive director on a case-by-case 

basis. The amendment streamlines the authorization process 

for prescribed burning for wildfire hazard mitigation by authorizing, without prior approval from the executive director, a form of 

prescribed burning that has consistently been approved in the 

past. No change was made as a result of this comment. 

Comment 

The Sierra Club urged the commission to allow prescribed burning that begins naturally or as a result of human carelessness. 

Response 

A prescribed burn is one that is intentionally set with the purpose 

of an end benefit. Fires that begin naturally or by human carelessness are not examples of prescribed burning. Prescribed 

burning for wildfire hazard mitigation is an intentionally set fire 

designed to reduce the frequency, intensity, and duration of a 

wildfire by consuming the fuel load under controlled conditions 

with the goal to reduce the potential fire hazard between unpopulated and populated areas. No change was made as a result 

of this comment. 

Comment 

EPA, HCAO, and HCPCSD commented on the need for therevised rule to define "wildfire hazard" and "wildfire hazard mitigation." They are concerned that, without the requested definitions, burning of large piles of brush from land-clearing operations would take place under this exception. In its comment, EPA 

questioned the TCEQ's ability to ensure that the burning would 

not be conducted for another reason, such as land-clearing, if 

the executive director's case-by-case approval is not required. 

Response 

The TCEQ does not believe a definition of wildfire hazard or 

of wildfire hazard mitigation in the amended rule is necessary 

to prevent unauthorized burning under the amended rule. A 

prescribed burn is defined in §111.203(5) as: "The controlled 

application of fire to naturally occurring vegetative fuels under 

specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary 

measures." It is also defined in 4 TAG §225.1 (1 0) as: 'The controlled application of fire to naturally occurring or naturalized vegetative fuels under specified environmental conditions in accordance with a written prescribed burn plan." The accumulation of 

cleared and piled vegetation is considered a waste and therefore 

is not considered a naturally occurring fuel. Compliance with the 

streamlined authorization for prescribed burning for wildfire hazard mitigation does not change whether the approval is made on 

a case-by-case basis or approved under the conditions set forth 

in this proposed rule. No change was made as a result of these 

comments. 

Comment 

HCAO and HCPCSD commented on the lack of requirements 

that define who may carry out a prescribed burn and how prescribed burning takes place. They recommend that the proposed 

rule be revised to define who can conduct prescribed burning, 

and that the rule include training and qualification criteria. 

Response 

The TPBB is responsible for regulating certified and insured 

prescribed burn managers. For more information about the 

TPBB's certification and training programs, go to http:llwww.texasagriculture.gov/Home/ProductionAgriculture/PrescribedBurnProgram.aspx. No change was made as a result of these 

comments. 

Comment 

HCAO and HCPCSD commented on the lack of pre-approval or 

pre-inspection requirements of the site or area that is the subject 

of the prescribed burn. They recommended prior notification to 

local authorities be made part of the revised rule. They proposed 

a specific wording for the notification requirement, and requested 

that the notification requirement be extended to all types of prescribed burning in §111.211. 

Response 

ADOPTED RULES January 31, 2014 39 TexReg 499 
The purpose of the amendment is to streamline the process for 

prescribed burning for wildfire hazard mitigation. Requiring notification to local authorities is not always possible due to time 

restraints and emergency situations. Notification would not facilitate streamlining the authorization process for this type of prescribed burning. No change was made in response to these 

comments. 

Comment 

HCAO and HCPCSD commented that the exception would allow an increased number of fires that could impact the Houston-Galveston-Brazoria (HGB) PM,. attainment status. Since 

the HGB attainment status is currently under review, the commenters requested a re-evaluation of the proposed exception if 

future PM,. monitoring data indicates an impact from prescribed 

burning for wildfire hazard mitigation. 

Response 

Prescribed burning for wildfire hazard mitigation is already conducted on a case-by-case basis, requiring approval from the 

TCEQ Regional Director. The purpose of this rulemaking is to 

"pre-authorize" prescribed burning with the intention of streamlining the decision-making process under a specific set of conditions. The result of controlled burns for wildfire hazard mitigation 

should be the reduced frequency, intensity, and duration of wildfires, and therefore less atmospheric loading of airborne particulates. 

If the HGB area's PM,. attainment status changes in the future, 

the TCEQ will be required to develop SIP revisions to address 

all contributing factors. The allowance of this type of prescribed 

burning is not expected to be a contributing factor for PM,. nonattainment. No change was made in response to these comments. 

Comment 

EPA noted in their comment that a SIP rev1s1on must meet 

§110(1) of the FCAA and requested that the TCEQ address several points. Specifically, the EPA asked what analysis has the 

TCEQ done to support its statement that the proposed revision 

to add wildfire hazard mitigation to Chapter 111 is expected 

to improve air quality by reducing the incidence, intensity, and 

spread of wildfires. Additionally, the EPA asked if the TCEQ had 

done any analysis to estimate the additional amount of acreage 

that may be annually burned as a result of this amendment 

to Chapter 111. Finally, the EPA stated that the TCEQ should 

provide an analysis to show that the revision will not interfere 

with attainment or maintenance of the ozone, as well as the 

particulate matter standards. 

Response 

The commission did not perform any modeling or other technical 

analysis regarding the expected benefits associated with wildfire hazard mitigation. Nor has the commission performed an 

analysis to estimate the additional acreage that may be burned 

annually from wildfire hazard mitigation purposes. The commission considers it to be self-evident that while prescribed burns for 

wildfire hazard mitigation will result in some emissions of particulate matter, nitrogen oxides, and other pollutants, these emissions will be significantly less than a wildfire which would burn 

uncontrolled and consume substantially more fuel. Additionally, 

such analyses are not necessary for the purposes of FCAA, 

§110(1) and the adopted revision to Chapter 111. The commission already has the ability to allow prescribed burns for wildfire hazard mitigation purposes on a case-by-case basis under 

39 TexReg 500 January 31, 2014 Texas Register 

§111.215, which is an EPA-approved rule under the SIP. Therefore, the adopted rule revision is not authorizing an activity that 

could not already be allowed under the current rules included in 

the SIP. As such, the revision cannot be backsliding under the 

SIP for the purposes of FCAA, §110(1) for either the particulate 

matter or the ozone NAAQS. The purpose of the rulemaking is 

to better facilitate the process of allowing prescribed burns for 

wildfire hazard mitigation by specifically allowing the activity under the rule rather than through case-by-case determinations. 

No change has been made to the rule in response to this comment. 

Comment 

EPA commented that, by removing the existing approval process 

from § 111.215, the executive director no longer has "methods to 

specify control or abate emissions." 

Response 

Section 111.215 stipulates that the executive director may specify procedures or methods to control or abate emissions. Because emissions controls or abatement are not practical in all 

cases of outdoor burning, not every request is conducive to abating or controlling emissions. Other than the general requirements in the exception, there are no practical methods to control 

or abate emissions from prescribed burning, thus the executive 

director is not waiving or eliminating this requirement. No change 

was made in response to this comment. 

Statutory Authority 

The amendment is adopted under Texas Water Code (TWC), 

§5.1 02, General Powers, §5.1 03, Rules, and §5.1 05, General 

Policy, which authorize the commission to adopt rules necessary 

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

Texas Health and Safety Code (THSC), §382.017, Rules, which 

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

section is also adopted under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard 

the state's air resources, consistent with the protection of public 

health, general welfare, and physical property; THSC, §382.011, 

General Powers and Duties, which authorizes the commission to 

control the quality of the state's air; THSC, §382.012, State Air 

Control Plan, which authorizes the commission to prepare and 

develop a general, comprehensive plan for the control of the 

state's air; THSC, §382.018, which authorizes the commission 

to control outdoor burning; and THSC, §382.085, unauthorized 

emissions prohibited. 

The adopted amendment implements TWC, §§5.1 02, 5.1 03, and 

5.105; THSC, §§382.002, 382.011,382.012,382.017,382.018, 

and 382.085; and Federal Clean Air Act, 42 United States Code, 

§§7401, et seq. 

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. 

Filed with the Office of the Secretary of State on January 17, 

2014. 

TRD-20 1400172 
Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: February 6, 2014 

Proposal publication date: August 16, 2013 

For further information, please call: (512) 239-2548 

• • • 

TITLE 43. TRANSPORTATION 

PART 10. TEXAS DEPARTMENT OF 

MOTOR VEHICLES 

CHAPTER 215. MOTOR VEHICLE 

DISTRIBUTION 

SUBCHAPTER B. ADJUDICATIVE PRACTICE 

AND PROCEDURE 

43 TAC §215.58 

The Texas Department of Motor Vehicles (department) adopts 

new §215.58, Delegation of Final Order Authority, without 

changes to the proposed text as published in the September 27, 

2013, issue of the Texas Register (38 TexReg 6565). The new 

section will not be republished. 

EXPLANATION OF ADOPTED NEW SECTION 

The new section delegates final order authority and motion for rehearing authority from the board of the Texas Department of Motor Vehicles (board) to the director of the department division that 

regulates the distribution and sale of motor vehicles in certain 

cases resolved without a decision on the merits and in all cases 

under Occupations Code, §2301.204 or §§2301.601 - 2301.613 

filed before January 1, 2014. 

Currently, the designated division is the department's Motor Vehicle Division, but the adopted language allows the board or the 

Executive Director the flexibility to change the division's name. 

New §215.58(a) delegates the authority to issue final orders in 

certain cases to the director of the department division that regulates the distribution and sale of motor vehicles. 

New §215.58(b) delegates the authority to issue decisions 

and orders in cases under Occupations Code, §2301.204 or 

§§2301.601 - 2301.613 filed prior to January 1, 2014. 

New §215.58(c) delegates the authority to issue decisions and 

orders regarding motions for rehearing in certain cases. 

COMMENTS 

No comments on the proposed new section were received. 

STATUTORY AUTHORITY 

The new section is adopted under Transportation Code, 

§1 002.001, which provides the board of the Texas Department 

of Motor Vehicles with the authority to adopt rules that are 

necessary and appropriate to implement the powers and duties 

for the Texas Department of Motor Vehicles under the Transportation Code and the Occupations Code; Occupations Code, 

§2301.155, which authorizes the board to adopt rules as necessary or convenient to administer Occupations Code, Chapter 

2301; and more specifically, Occupations Code, §2301.154( c), 

and Transportation Code, §1 003.005(b), which provide the 

board with the authority to delegate final order authority. 

CROSS REFERENCE TO STATUTE 

Occupations Code, Chapter 2301. 

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. 

Filed with the Office of the Secretary of State on January 16, 

2014. 

TRD-201400166 

David D. Duncan 

General Counsel 

Texas Department of Motor Vehicles 

Effective date: February 5, 2014 

Proposal publication date: September 27, 2013 

For further information, please call: (512) 467-3853 

• • • 

SUBCHAPTER E. GENERAL DISTINGUISHING NUMBERS 

43 TAC §215.138 

The Texas Department of Motor Vehicles (department) adopts 

amendments to §215.138, Use of Metal Dealer License Plates, 

without changes to the proposed text as published in the October 

4, 2013, issue of the Texas Register (38 TexReg 6903). The 

amended rule will not be republished. 

EXPLANATION OF ADOPTED AMENDMENTS 

The amendments implement the changes mandated by House 

Bill 894, 83rd Legislature, Regular Session, 2013, which 

amended Transportation Code, §503.068(b) and added subsection (b-1) to expand the use of metal dealer license plates on 

service or work vehicles used by an independent motor vehicle 

dealer to transport inventory to and from points of sale, and add 

a non-substantive amendment. 

Amendment to subsection (b) is adopted to identify and clarify 

the statutory exception under which an independent motor vehicle dealer may use a metal dealer license plate on a service 

or work vehicle to transport a motor vehicle from the dealer's inventory to and from a point of sale. 

Amendment to subsection (e) is adopted to correct a punctuation 

error by adding a comma. 

COMMENTS 

No comments on the proposed amendments were received. 

STATUTORY AUTHORITY 

The amendments are adopted under Transportation Code, 

§503.002 and §1 002.001, and Occupations Code, §2301.155, 

which provide the board of the Texas Department of Motor 

Vehicles (board) with the authority to establish rules necessary 

to administer the laws relating to the sale and distribution of 

motor vehicles in this state; and more specifically, Transportation Code, §503.061 (b), which provides the board the authority 

to adopt rules to regulate the issuance and use of metal dealer 

license plates. 

CROSS REFERENCE TO STATUTE 

ADOPTED RULES January 31, 2014 39 TexReg 501