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

### Chainnan Toby Baker, Commissioner ZakCovar, 

### 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 byReducing andPreventing Pollution



## March 3, 2014

Ron Curry Regional Administrator U.S. Environmental ProtectionAgency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733
Dear Mr. Curry: DocketNo. 2013-0457-RUL Rule ProjectNo. 2013-023-111-CE

On January 15, 2014, theTexas 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 ofAir Pollution from Visible Emissions and Particulate Matter, Subchapter B, Outdoor Burning; and corresponding revisions to the SIP. The revision to the rule allows prescribedburnsfor thepurpose ofwildfire hazard mitigation. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthepublichearing, and the accompanying order. I lookforward to your expeditious approval ofthese 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 ofTexas Mr. Nate Hickman, Office ofBudget, Planning and Policy, Office ofthe 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 thatthe attached electronic file is included andthatthe
electronic file is a true and correct copy ofdocuments for a revision to the Texas State Implementation Plan, adopted on January 15, 2014, pursuantto 40 Code ofFederal Regulations § 

## 51.104. I am the records administrator for the Office ofCompliance and
Enforcement ofthe Texas Commission on Environmental Quality (Commission).

## Texas Commission on Environmental Quality Public Hearing on September 10, 2013 Concerning 30 TAC Chapter 111 

## Add Wildfire HazardMitigation to the State's PrescribedBurnRule Rule ProjectNo. 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 prescribedburning 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 ofthe public hearing andis divided into the following four sections:

• Public Notification and Proposal

• Written and Oral Testimony

• Evaluation ofTestimony

• StaffRecommendations (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 ofthe proposed revisions was conductedbythe following procedures:

1. 

## Publication ofthe notice ofthe publichearing in the following newspaper onthe date listed:
• July 29, 2013 

## in theAustin

## AmericanStatesman
• July 29, 2013 

## in the FortWorth

## Star-Telegram
• July 29, 2013 

## in the Houston 

## Chronicle

2. 

## Publication in the 

## Texas Register oftheproposedrulemaking (38 

## TexReg 5223) 

## and public hearing notice (38 

## TexReg 5357) 

## onAugust 16, 2013.


## 3. Correspondence forwarding the notice ofpublichearings to the following officials and agencies:
Speaker ofthe House Lieutenant Governor Mayor ofAustin Travis CountyJudge Alamo Area Council ofGovernments Arkansas Department ofEnvironmental Quality Capital Area Planning Council City ofDallas Department ofAviation City ofEl Paso City ofFort Worth City ofHouston City ofVictoria Planning Department El Paso Metropolitan Planning Organization
EastTexas Council ofGovernments Federal Highway Administration

## Galveston County Health District Harris County Public Health and Environmental Services Houston-Galveston Area Council Louisiana Department ofEnvironmental Quality
New Mexico Environmental Department North Central Texas Council ofGovernments Office ofEnvironmental Quality Oklahoma Department ofEnvironmental Quality SoutheastTexas Regional Planning Commission
Texas Department ofTransportation United States Environmental ProtectionAgency

### 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 

# july29, 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 correspandlng 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. )hepropased rulemak· mg would add pre· scrlbed 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 10:00a.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 1treceipt of 1 1 ora 

### or wr ten com·

. ments by interested ' : persons. Individuals : may presentoral state· : ments when called

. upon In order of regis·

· tration. Open d lscus· slonwill notbe permit·

. ted during the hearing; 

### ! however, commission : staff members will be

available to discuss the proposal 30 min· utes prior to the hear· Ing. 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 

### Ii services, Texas COm· 11 mission on Environ· 1 mental Quallty1 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/. Flle 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 

# legalnoticesat**ch~on.corn/legals**

### Bryan W. Shaw, Ph.D., 

### Chairman Carlos Rubinstein, 

### Commissioner Toby Baker, 

### Commissioner Zak Covar, 

### ExecutiveDirector



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas 

### byReducing andPreventing Pollution



## NOTICE OF PUBLIC HEARING ON PROPOSED REVISIONS TO 30TAC 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 ofAir Pollution from Visible Emissions and Particulate Matter, §111.211, and corresponding revisions to the state implementation plan (SIP) underthe requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental ProtectionAgency (EPA) concerning SIPs.
The proposed rulemaking would add prescribedburning for wildfire hazard mitigation as an exception to the state's outdoorburning prohibition. This proposedrulemaking is a follow-up to a petition filed bythe Texas Prescribed Burning Board and approved by the commission on February 27, 2013.
The commission will hold a public hearing on this proposal inAustin on September 10, 2013, at 10:00 a.m. in Building E, room 201S, at the commission's central office located at 12100 Park35 Circle. The hearing is structuredfor the receipt oforal orwritten comments byinterested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will notbe permitted during the hearing; however, commission staffmembers will be available to discuss the proposal30 minutes priorto the hearing.
Persons who have special communication or other accommodation needs who are planning to attendthe hearing should contact SandyWong, Office ofLegal Services at (512) 239-1802. Requests shouldbe made as far in advance as possible.
Written comments maybe submittedto Michael Parrish, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

# http:jjwwws.tceq.texas.govjrulesjecommentsj. File size restrictions may applyto comments being submittedvia the eComments system. All comments should reference Rule Project Number 2013-023-111-CE. The commentperiod closes September 16, 2013. Copies ofthe proposedrulemaking canbe obtained from the commission's Web site at 

# http:/ jwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further information, please contact JoeJanecka, (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 paperindividual annuity mortality table for valuation and, at the option of the company, may be used to determine [fef J*!fi*ISeS efdetermiaiag] the minimum standard ofvaluation for any individual annuity or pure endowment contract issued on or after August 29, 1977. (b) Except as provided in subsection (c) ofthis section, either the 1983 Table "a" or the Annuity 2000 Mortality Table must [sflal.l] be used to determine [fefdetermiaiag] the minimum standard ofvaluation 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) ofthis section, the Annuity 2000 Mortality Table must [sflal.l] be used to determine [fefdetermffiiag] the minimum standard ofvaluation 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] ofvaluation 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 ofcourt 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) ofthis section, the 1983 GAM Table, the 1983 Table "a", and the 1994 GARTable are recognized and approved as group annuity mortality tables for valuation and, at the option ofthe company, any one ofthese tables may be used for purposes ofvaluation 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 GARTable must**[is~]** be used to determine [fef determiaiag] the minimum standard ofvaluation for any annuity ofpure 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 ofvaluation for any annuity orpure 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 ofthe 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 ofwildfire 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 appropri

## PROPOSED RULES August 16,2013 38 TexReg 5223ate 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 ofthe 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 ofthe 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 ofwildfires. By reducing the likelihood ofthe 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 ofthe 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 ofthe 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 ofthe 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 ifthe revision to the rule constituted a major environmental rule, a regulatory impact analysis would not be required because the revision does not meet any ofthe 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 ofthis 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 ofwildfire 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 underthe Submittal ofComments section ofthis 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 forforest, 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 ofwildfires. 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 ofthe 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 ofthis 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, consistentwith 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 ofthe 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 ofthe Texas Clean Air Act. The amended sec

## PROPOSED RULES August 16, 2013 38 TexReg 5225tion 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. Exceptionfor PrescribedBurn. 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 ofthis 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/orblock 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 ofthis title. This agency hereby certifies thatthe 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 ofthe 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 ofthe contract for the purchase ofwater 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 oftheir investment if they do not use all ofthe 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 ofthe 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 monitorthe USTs for releases at a frequency ofat 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 ofthe occurrence ofthe 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 ofprotection at a frequency ofat 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 othercomponents 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 ofthe 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-MarketRoad 2493, Tyler, Smith County; TYPE OF FACILITY: UST system and convenience store with retail sales ofgasoline; 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 ofat least once every month (notto exceed 35 days betweeneachmonitoring), 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 ofgasoline; 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 ofat 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 ofPublic 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 ofAir 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 oforal or written comments by interested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not be permitted during the hearing; however, commission staffmembers 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 ofLegal Services at (512) 239-1802. Requests should be made as far in advance as possible.



## INADDITION August 16, 2013 38 TexReg 5357Written 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 20I3-023-1 II-CE. The comment period closes September 16, 2013. Copies ofthe 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 ofPublic 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 ofthe Rio Grande, §303.53, under the requirements ofTexas 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 ofthe 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 ofwater 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 oforal or written comments by interested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not be permitted during the hearing; however, commission staffmembers 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 ofLegal 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 ofthe 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 ofWater 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 ofthe 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 I0I), 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 I0I), and stormwater at a daily average flow not to exceed 400,000 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 101) 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 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 ofthe 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 ofTPDES 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 ofAvenueTESTIMONY

## Reference Number
W-1 

## W-2 W-3 W-4 

## Index of Written Testimony

Submitted By


## Houston Regional Group ofthe Sierra Club Harris CountyAttorney's Office Harris County Pollution Control Services Department United States Environmental ProtectionAgency, 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 isnotnecessaryor 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 

### ithitched 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 Mannchen , _;)

# ~-- I

# v~ Chair, Air Quality Committee 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 ofthe Addressee(s) lllUD.ed 

## belo D<.'. 

## Ifyou, 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. Ifyott 

## 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, 

# AssistantCounty 

## 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** 

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### 09/15/2013 15:38 7137552681

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## HCAO VINCE.RYAN PAGE 02/04

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## ViaFax 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 proposedrule:

• 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 beusedto 

# attemptt1 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 "wtldfirehm:ard 

## mltigatJOn"**shoul~** 

## be added 

## to 

## 30 1"AC, Secition).11.203

# to etb,rilnate }irty misunderstandings or**m~sinterpretations** 

## ofthe intent oftl:**~:rule.** 

## Proposed

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

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# d~ad trees.

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## Wildfire HazttrdMltigatimz 

# -Removal of undergrowth, dE 

## adtrees, or other 

# deadvegetation thatposes afire hazardby burning in a cc ntrolledmanner 

# that is intendedto

# preserve. living trees andothervegetation.

• The 

# rule does not stipulate 

# who may conduct prescribedbwn 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 therule 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 

# ofthe 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.. Ithas bec:n**I-I~s** 

# <;ounty**~** 

# eKperience tbat notification

# to' 16ca.l 1

# authoHtiest(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 havingjurisdiction 

## (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 

## Atleast 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 concernedthat**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 

## iffuture 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.{**

. •. •i_,-,-

...... ' . .
. .**·-·~<-~.'~ ~.** **?\~ :;-:_.~~** 



### . . . . •.:

.**~{.\~ ~**  :-:-:-**~** .

J l i.)·,:,..

. \ .' l :i ;

.:-;'

# ··~ "

# ~it2,4'~ ; .,.·.,.:··:<i::-t:_:_

.. ,, .. 

# fi:; i

. ' ··. ,; · ....... 

## • '-' · :•...'.cl2.1 j

.. . · _:;.·... : .. ·



# ·· u
...,.

# l:,~~rii'·.~:'·;:hs.~t~~:lr:!' 

# '. .. 

### ..

· •.'t



## HcAo comments ·to 

## TCEQ

# Rul~''p~~je~t**No.·2ois~23-1i1-cr:: -~:.:,.** 

. . ' 

# W-2



# ........ 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

.......,..,._.... _., ..................................... _.,..__.,.,,...,....**~. ~~-4W** 

# ......,..._._.,,_......,________________ _

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: StuartMu.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 

## bemailed m addition to thJs**transmission~~--** 

## · · · · · · · ··· ·····

·....**~** ..

·- 

# . '.

· .i···· 1 l

### ·~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 

### ofthe 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 recommendationstofurther 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 

## reccirrimends1

# that'**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 afire 

# hazqrd by burnlng,{n**a,.CPrt1roll~q~mqnn~r** 

## that is 

## intended to 

## preseNe living trees and other vegetation. · 

# I
i 

# I
l

### 09/16/2013 16:17 7132746475 

# •' HC POLLUTION CONTROL PAGE 03



### Rule 

### Project No. 2013..023·111-CE 

### Page**~l Sept~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 whattraining 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

## priorto**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!?bor il!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&IIJ**

## 1.•

### ~,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 impactfrom thesf:!**actlyl~!es_ !p1%TS:~.Cl..'!V1JJ,** 

# re
...**~y~,~~~e, t~!s**  

### exception. ..**~:**



# \ I ·I. . ' ·.; : .,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 

# W-3



# . .,**.:··:·~:~:.::**

# ..**:·;:~(,~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.f1

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### EPA Region 6 Comments on Revisions to 30 TAC Chapter 111 Rule ProjectNumber20**13-023~**

### 111-CE**9~27~13**



### 1. As acknowledged 

## in the TCEQ proposal, any SIP revision must meet the criteria ofSection 110(1) 

## ofthe CleanAir Act, which says 

## in part that EPA cannot approve a revisionto the SIP 

## ifit will interfere withattainment or maintenance ofthe a National Ambient Air Quality Standard. To that end, werequest you address the following points: w 

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

## 9

## that the proposedrevisionto 

## add wildfire hazard mitigation to Chapter 111 is**expect~d** 

## to improve 

## air quality 

## byreducing

## the incidence,**intensity~** 

### and spread ofwildfires?


## b. 

# Has the TCEQ done any analysis to estimatetho additional amm.mt 

### ofacreage that may 

### be atlllually 

## burned as a 

### result ofthis amendmentto 

### Chapter 111?



## c. The TCEQ shouldprovide

## an analysis to showthat therevision

## will not interfere 

## with attainment ormaintenance ofthe ozonet as well as the PM standards.
2. Onpage 2,the TCEQ statesthatpresently, authorizationto conduct a bumfor wildfire hazardmitigation mustbe granted on a**case-by~<;ase** 

### basis under section 111.215. Section 215, as approved into

## the SIPcurrentlystates:
Ifnot otherwise authorized bythis chapter, outdoorburning may 

## be authorized by written permissionfrom the executive director 

## if there is nopractical alternative and 

## ifthe burning will not cause or 

## contribute to a nuisance, traffic hazard or

## to a violation ofany federal 

## or state primary 

## or 

## secondary ambient airstandard. The executive director may specifyprocedures ormethods to 

### control or abate emissions from outdoorburningauthorized p1.1rsuantto 

### this rule. Authorization to

## burnmay berevoked by the executive director at 

## any time 

## iftheburning causes

## nuisance conditions, is not conducted in accordance withthe specifiedconditions, violates 

## any provision ofanapplicablepermit, orcauses a violation ofany air quality 

## standard. ·

a. We understand section 215 to requirethat a landowner must first declarethat

## he or she desires to conduct a bumexpresslyforthe purpose ofmitigating a wildfirehazard and thatthere is a formal processto review that request andapprove or deny 

## it. Since the intent ofthisrule change is 

## to remove that case
...by-case determinative process, howwill the TCEQ ensure

## thatfuture 

### bums are in fact conductedfor wildfire hazard mitigation, andnot for some otherreason (e.g., land clearing)that doesnot

## C&l'Y an exemption under section.111 .211? Therule should include a definition ofwildfire hazard and wildfire hazard mitigationto insure

## that therule doesnot allow increaseburningwithout 

# 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 difficultto 

## see howthe TCEQ 

## will ensure that the rule will 

## not result in

## burning 

## intended for 

## other than preventing catastrophie wildfires, malcing demons1rating compliance with Section 110(1) difficult.
b. 

## Section 215 allows the 

## Director to potentially specifymethods to 

## control or abate emissions from burning, and 

## revoke the authorization to burn ifthe burn violates any 

## provision ofan**applicable.pennit~** 

## or causes a violation ofany 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

# Indexof Oral Testimony

No oral testimonywas 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 Park35 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 openthe hearing for public comment. After waiting for 10 minutes, no one had arrived to make comments on the record. Therefore, the public hearing was notformally openedfor comment and a transcriptwas notprepared.

Hearing Officer

Date signed

### J-

..**--------~----·-.-,···-·-------** --- ------·- ·-• ··----co 

### .I


# - 1 - 

# Texas Commission on Environmental Quality Public Hearing Registration

Date: September 10, 2013 

### Time: w:ooAM 

## Rule ProjectNo.: 2013-023-111-CE ShortTitle: AddWildfire HazardMitigationtothe State's Prescribed BurnRule Location: Building E, Conference Room 201S, atthecommission's central office located at 12100 Park35 Circle Concerning: Proposedrevision to 30 TAC Chapter 111 andto the StateImplementationPlan

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 

## NoEVALUATION

## EVALUATION OF TESTIMONY

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adoptsthe
amendment to §111.211 

## without change to the proposedtext as published in theAugust 16, 2013,
issue ofthe 

## Texas Register (38 TexReg 5223), and will notbe republished.

The amendment will be submittedto the United States Environmental ProtectionAgency (EPA)

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



## Background and Summaryofthe FactualBasis for theAdopted Rule The Texas Prescribed Burning Board (TPBB) petitioned the TCEQ to address wildfires inthe
state's prescribed burn rule. In particular, the TPBB asked for a revision thatwould 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 byadding prescribed burningfor wildfire hazard mitigation

as an exception to the state's prohibition on outdoorburning. Currently, a prescribed burn is
allowed only for forest, range and wildland/wildlife management purposes, and coastal saltmarsh management burning. The revision allows prescribedburning in other areas, such as where rural areas interface with urban areas, for the purpose ofwildfire hazard mitigation in
order to reduce the incidence, intensity, and spread ofwildfires. While the petitioner did not specifically requestthat the hazard mitigation provisionbe specific to wildfires, the exception
added to §111.211(1) is specific to wildfire hazard mitigation in orderto provide clarity and specificity consistent with the commission's interpretation ofthe TPBB's intent. The TPBB did

not comment onthe proposed rule.

-1-

## Under currentTCEQ rule §111.215, 

## a prescribedburnfor wildfire hazard mitigation is
authorized only bywritten permission on a case-by-case basis from the TCEQ executive director. Prescribed burning has been underutilized due to lack ofawareness ofthe authorization
available under §111.215. 

## Also, prescribedburningfor hazard mitigation is currently subject to TCEQ enforcement action unless priorwritten permission from the executive director is received. Prescribed burning is not appropriate for land-clearing operations, which are addressed separatelyunder §111.209.



## Aprescribedburnis defined in §111.203(5) 

## as the controlled application offire 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 outdoorburning is in Chapter 111, 

## Subchapter B.



## DemonstratingNoninterference underFederal CleanAirAct, Section 110(l) 

## The revision to add wildfire hazard mitigation to Chapter 111 

## does not negatively impactthe
state's attainment ofthe particulate matter National AmbientAir Quality Standard (NAAQS),
does not interfere with control measures for NAAQS compliance, and does not prevent reasonable further progress toward attainment ofthe particulate matter NAAQS.

The outdoor burning rules in Chapter 111, 

## Subchapter B, are included in the SIP as part ofthe
state's strategyfor control ofparticulate matter emissions. The revision does not interfere with applicable requirements for attainment and for reasonable further progress toward attainment,

orwith other applicable requirements ofthe 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 ofwildfires. By reducing the

-2-

## likelihood ofthe 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 prescribedburning for wildfire hazard mitigation on a case-by-case basis as providedby §111.215. 

## Section 111.215 

## is already an EPA-approved rule underthe SIP. The commission's purpose in amending therule is to streamline the existing
process for authorization ofprescribedburning for wildfire hazard mitigation providedby

§111.215, 

## consistent with the executive director's currentenforcement ofthe outdoorburning 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 ofauthorized prescribedburnpurposes.

Final Regulatory Impact Determination


## The commission reviewed the rule revision in light ofthe regulatory analysis requirements of
Texas Government Code, §2001.0225, 

## RegulatoryAnalysis ofMajor Environmental Rules, and determined thatthe amendment does not meet the definition ofa 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 ofwhich is to protectthe environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state." The purpose of this revision is to increase protection ofthe environment through wildfire hazard mitigation and reduce riskto human health; it is not expected that this revision will adversely affect in a material way the economy, a sector ofthe economy, productivity,jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. Therefore, no regulatory impact

-3-

## analysis is required.

Furthermore, even ifthe revision to the rule constituted a major environmental rule, a regulatory impact analysis would notbe requiredbecausethe revision does not meet any ofthe
four applicability criteria for requiring a regulatoryimpact analysis for a major environmental
rule. Texas Government Code, §2001.0225 

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

## exceeds a standard setbyfederal law, unless the rule is specifically requiredby statelaw; 2) 

## exceeds an express requirement ofstate law, unless the rule is specifically requiredbyfederal law; 3) exceeds a requirement ofa delegation agreement or contractbetween the state and an
agency orrepresentative ofthe federal government to implement a state andfederal program; or 4) adopts a rule solely underthe general powers ofthe agency instead ofunder a specific state law. The revision does not meet any ofthe four applicability criteria listed in Texas Government Code, §2001.0225

## because: 1) 

## the revision is designed to meet, not exceed the relevant standard

setbyfederal law; 2) 

## no contract or delegation agreement covers the topic that is the subject of
this rule; and 3) the rule revision is authorizedby specific sections ofthe Texas Health and Safety Code, Chapter 382 

## (also known as the Texas Clean Air Act), cited in the Statutory Authority section ofthis preamble.

The purpose ofthe rule revision is to allow prescribedburns for the purpose ofwildfire hazard mitigation. Also, the rule revision will be incorporated intothe Texas SIP. Therevision will not interfere with any applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement ofthe FCAA. In addition, the revision is expected

to improve air qualitybyreducing the incidence, intensity, and spread ofwildfires.

Without the rule revision, a prescribedburn for wildfire hazard mitigation maybe authorized onlyby written permission on a case-by-case basis from the TCEQ executive directorunder

-4-

## §111.215. Under current rules, prescribedburning is underutilized due to lack ofawareness of the provision in §111.215. Without written permission from the executive director, prescribed burningfor hazard mitigation is subject to TCEQ enforcement action.

The commission invitedpublic comment regarding the draft regulatory impact analysis determination during the public commentperiod. No comments were received onthe regulatory impact analysis determination.



## TakingslrnpactAssessrnent
The commission completed a takings impact assessmentfor this rulemaking action under Texas Government Code, §2007.043. The primarypurpose ofthe rulemaking is to add in §111.211, prescribedburning for wildfire hazard mitigation as an exception to the state's prohibition on outdoorburning. Currently, a prescribedburn is allowed only for forest, range and wildland/wildlife management purposes, and coastal salt-marsh managementburning. A prescribedburn is defined in §111.203(5) as the controlled application offire to naturally occurring vegetative fuels under specified environmental conditions and confinedto a predetermined area, following appropriate planning andprecautionarymeasures.

This revision is expected to improve air qualityby reducing the incidence, intensity, and spread ofwildfires. In addition, the commission's assessment indicates thatTexas Government Code, Chapter 2007 does not apply to this rule amendmentbecause this is an action thatis taken in
response to a real and substantial threatto public health and safety, thatis designed to significantly advance thehealth and safety purpose, and that does not impose a greaterburden than is necessaryto achieve the health and safety purpose. Thus, this action is exempt under
Texas Government Code, §2007.003(b)(13).

-5-

## Consistencywith the CoastalManagement Program 

## The commission reviewed the rulemaking and found the revision is a rulemaking identified in
the Coastal CoordinationAct Implementation Rules, 31 

## TAC §505.11(b)(2) 

## relating to rules subject to the Coastal Management Program, and, therefore, requires that goals andpolicies of the Texas Coastal Management Program (CMP) be considered duringthe rulemaking process.

The commission reviewed this rulemaking for consistencywith the CMP goals and policies in
accordance with the regulations ofthe Coastal CoordinationAdvisory Committee and
determinedthat 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 commentperiod. No comments were received onthe CMP.

Effect on Sites Subject to the Federal OperatingPermits Program


## Because Chapter 111 

## contains applicable requirements under 30 

## TAC Chapter 122, 

## owners or operators subject to the Federal Operating Permit Program must, consistentwith the revision
process in Chapter 122, 

## revise operating permits to include the revised Chapter 111 

## requirements
for emissions affected bythe 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 ofthe 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 CountyAttorney's Office (HCAO), Harris County
Pollution Control Services Department (HCPCSD), and the EPA. The comments from the Sierra Club were generally in support ofthe revision.



## Responseto Comments
Comment The Sierra Club expressed supportfor this proposal, butbelieves it is unnecessary since the prescribed burning already allowed under §111.211 

## is usually flexible enough to allow burning in

areas as necessaryfor wildfire hazard mitigation. Sierra Club also encouraged the commission
to understandthatthis form ofprescribedburnis not needed orrecommended in streamside management zones orin riparian areas since it can severely damage these areas for the native
wildlife andvegetation.



## Response The commission appreciates the support. The amendment adopted inthis rulemaking specifically addresses the mitigation ofwildfirehazardsto human population. Thepurpose ofthe amendment isto includeprescribedburningfor wildfirehazardmitigation as an exceptionto the type ofoutdoorburningthat requires approval ofthe executive director on a case-by-casebasis. The amendment streamlinesthe authorizationprocessfor prescribedburningfor wildfirehazardmitigationby authorizing, withoutpriorapproval from the executive director, a form ofprescribedburningthathas consistentlybeen approvedinthepast. No changewas made as a result ofthis comment.

Comment

-7-

## The Sierra Club urged the commission to allow prescribedburning thatbegins naturally or as a result ofhuman carelessness.



## Response
A prescribedburn is one that is intentionally setwiththepurpose ofan end benefit. Firesthat begin naturally orbyhuman carelessness are not examples of prescribedburning. Prescribedburningfor wildfire hazard mitigation is an intentionallyset fire designedto reducethe frequency, intensity, and duration ofa wildfirebyconsumingthe fuel load under controlled conditions withthe goalto reduce thepotentialfire hazardbetweenunpopulated andpopulated areas. No changewas made as a result ofthis 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 ofbrushfrom land-clearing operations would take place under
this exception. In its comment, EPA questioned the TCEQ's abilityto ensure that the burning
would notbe conducted for anotherreason, such as land-clearing, ifthe executive director's case-by-case approval is not required.



## Response TheTCEQ does notbelieve a definition ofwildfire hazard or ofwildfire hazard mitigation inthe amended rule is necessaryto prevent unauthorizedburning underthe amended rule. A prescribedburnis definedin §111.203(5) 

## as: "The controlled application offire to naturally occurringvegetative fuels under specified environmental conditions and confinedto a predetermined area,

-8-

## following appropriate planning andprecautionarymeasures." It

## is also definedin
4 TAC §225.1(10) 

## as: "The controlledapplication of:fireto naturally occurring or naturalizedvegetative fuels under specified environmental conditions in accordance with a writtenprescribedburnplan." The accumulation ofcleared andpiledvegetation is considered a waste andtherefore isnot considered a naturally occurringfuel. Compliance withthe streamlinedauthorizationfor prescribedburningfor wildfirehazard mitigation does not change whetherthe approval is made on a case-by-casebasis or approved underthe conditions set forth inthis proposedrule. No changewas made as a result ofthese comments.

Comment
HCAO and HCPCSD commented on the lack ofrequirements that define who may carry out a prescribedburn and how prescribed burning takes place. They recommendthatthe proposed rule be revisedto define who can conduct prescribedburning, andthatthe rule include training and qualification criteria.



## Response The TPBB is responsiblefor regulatingcertified and insuredprescribedburn
managers. Formore information aboutthe TPBB's certificationandtraining
programs, goto 

## http:jjwww.texasagriculture.govjHomejProductionAgriculturejPrescribedBurn Program.aspx. No changewas made as a result ofthese comments.

Comment
HCAO and HCPCSD commented on thelack ofpre-approval orpre-inspection requirements of
the site or area that is the subject ofthe prescribedburn. They recommended prior notification

-9-

## to local authorities be made part ofthe revised rule. They proposed a specific wording for the notification requirement, and requested thatthe notification requirement be extended to all types ofprescribedburning in §111.211.



## Response Thepurpose ofthe amendment isto streamlinetheprocess for prescribedburning for wildfirehazard mitigation. Requiring notificationto local authorities is not alwayspossible due to time restraints and emergency situations. Notification would notfacilitate streamliningthe authorizationprocess for this type of prescribedburning. No change was made inresponseto these comments.

Comment
HCAO and HCPCSD commented that the exception would allow an increased number offires that could impact the Houston-Galveston-Brazoria (HGB) PM2. 5 

## attainment status. Since the
HGB attainment status is currentlyunderreview, the commenters requested a re-evaluation of the proposed exception iffuture PM2. 5 

## monitoring data indicates an impactfrom prescribed burning for wildfire hazard mitigation.

Response Prescribedburningfor wildfire hazardmitigation is alreadyconductedon a caseby-case basis, requiring approvalfrom the TCEQ Regional Director. Thepurpose ofthis rulemaking isto "pre-authorize" prescribedburningwiththe intention of streamliningthe decision-makingprocess under a specific set ofconditions. The result ofcontrolledburns for wildfirehazardmitigation shouldbe the reduced frequency, intensity, and duration ofwildfires, andtherefore less atmospheric loading ofairborne particulates.

-10-

## Ifthe HGB area's PM2.5 

## attainment status changes inthefuture, the TCEQ willbe requiredto develop SIPrevisionsto address all contributingfactors. The allowance ofthis type ofprescribedburningis not expectedtobe a contributing factor for PM2.5 

## non-attainment. No changewas made inresponseto these
comments.

Comment
EPA noted in their commentthat a SIP revision must meet §11o(l) 

## ofthe FCAA andrequested
that the TCEQ address several points. Specifically, the EPA asked what analysis has the TCEQ
done to support its statementthat the proposed revision to add wildfire hazard mitigation to Chapter 111 

## is expected to improve air qualitybyreducing the incidence, intensity, and spread of
wildfires. Additionally, the EPA asked ifthe TCEQ had done any analysis to estimate the
additional amount ofacreage that maybe annuallyburned as a result ofthis amendment to Chapter 111. 

## Finally, the EPA statedthatthe TCEQ should provide an analysis to showthat the
revision will not interfere with attainment or maintenance ofthe ozone, as well as the particulate matter standards.



## Response The commission did notperformanymodeling or othertechnical analysis regardingthe expectedbenefits associatedwithwildfirehazardmitigation. Nor has the commissionperformed an analysisto estimatethe additional acreagethat
maybeburned annuallyfrom wildfire hazard mitigationpurposes. The commission considers itto be self-evidentthat while prescribedburns for wildfire
hazard mitigationwill result in some emissions ofparticulate matter, nitrogen oxides, and otherpollutants, these emissions willbe significantlyless than a
-11-

## wildfire whichwouldburnuncontrolled and consume substantiallymore fuel. Additionally, such analyses are notnecessaryfor thepurposes ofFCAA, §110(1) 

## andthe adoptedrevisionto Chapter 111. 

## The commission alreadyhas the abilityto allowprescribedburnsfor wildfire hazardmitigationpurposes on a case-by-case basis under §111.215, 

## which is an EPA-approved rule underthe SIP. Therefore, the adopted rule revisionis not authorizing an activitythat couldnot alreadybe allowedunderthe currentrules includedinthe SIP. As 

## such, the revision cannot bebackslidingunderthe SIPfor thepurposes ofFCAA, §110(1) 

## for eitherthe particulate matter orthe ozone NAAQS. Thepurpose ofthe rulemaking is to better facilitate theprocess ofallowingprescribedburns for wildfire hazard mitigation by specificallyallowingthe activityunderthe rule ratherthanthrough case-bycase determinations. No change has been madeto the rule inresponseto this

comment.

Comment
EPA commented that, byremoving the existing approval process from §111.215, 

## the executive
director no longerhas "methods to specify control or abate emissions."



## Response Section 111.215 

## stipulates thatthe executive director may 

## specifyprocedures or methodsto controlor abate emissions. Because emissions controls or abatement

are notpracticalin all cases ofoutdoorburning, not everyrequest is conducive to abating or controlling emissions. Otherthanthe generalrequirements in the exception, there are no practical methods to control or abate emissions from prescribedburning, thus the executive director is not waiving or eliminatingthis requirement. No change was made in responseto this comment.

-12-RECOMMENDATION

## CHAPTER 111: 

## CONTROL OFAIR POLLUTION FROMVISIBLE EMISSIONS AND PARTICULATE MATTER SUBCHAPTERB: OUTDOORBURNING §111.211



## StatutoryAuthority


## 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 necessaryto carry outits powers and duties underthe TWC; and underthe Texas
Health and Safety Code (THSC), §382.017, 

## Rules, which authorizes the commission to adopt rules consistent with the policy andpurposes ofthe Texas Clean Air Act. The
amended section is also adopted under THSC, §382.002, 

## Policy and Purpose, which
establishes the commission's purpose to safeguardthe state's air resources, consistent
with the protection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

## General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; THSC, §382.012, 

## StateAir Control Plan, which authorizes the
commissionto prepare and develop a general, comprehensive plan for the control ofthe
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, 

# etseq.

-1-

### §111.211. 

## Exception for Prescribed Burn.



## Outdoorburning shallbe authorizedfor:

(1) 

## Prescribedburningfor forest, range andwildland/wildlife management, andwildfire hazard mitigation purposes, with the exception ofcoastal salt-marsh managementburning. Suchburning shallbe subject to the requirements of
§111.219 

## ofthis title (relating to General Requirements for Allowable Outdoor Burning),
and structures containing sensitive receptors must notbe negatively affectedbythe
burn. When possible, notification ofintentto burn shouldbe made to the appropriate
commission regional office priorto the proposedburn. Commission notification or approval is not required.

(2) 

## Coastal salt-marsh managementburning 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, andthe methodbywhich access is made to the site. For large
acreage, the map shouldbe divided into manageable blocks with identification for each

-2-

## definedblock. The information mustbe received for review at least 15 

## working days
before theburningtakes place.

(B) Priorto anyburning, notification, either verbal orwritten, must be made to, and authorization mustbe received from the appropriate commission regional office. Notification mustidentifythe specific area and/orblocktobeburned, approximate start and endtime, and a responsible partywho canbe contacted during
theburnperiod.

(C) Suchburning shall be subjectto the requirements of §111.219 

## of
this title.-::**~:)** i t'

. .

p-
.


# JAll 2 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALI'IY

ORDERADOPTINGAMENDED 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 ofamended 30 

## TAC § 111.211. 

## The Commission adopts this amendment in Chapter 111, 

## Control ofAir Pollution from Visible Emissions, Subchapter B, Outdoor Burning; and corresponding revision to the state implementation plan (SIP). The revision to the rule allows prescribedburns for the purpose ofwildfire hazard mitigation. UnderTex. Health & 

## Safety Code Ann.§§ 382.011, 382.012, 

## and 382.023 

## (Vernon 2011), 

## the Commission has the authority to control the quality ofthe state's air andto issue orders consistentwith the policies and purposes ofthe Texas Clean Air Act, Chapter 382 

## ofthe Tex. Health & 

## Safety Code. The proposed rule was publishedfor comment in theAugust 16, 2013, 

## issue ofthe 

# Texas Register (38 

## TexReg 5223). 

## Pursuantto Tex. Health & 

## Safety Code Ann.§ 382.017 

## (Vernon 2001), 

## Tex. Gov't Code Chapter 2001 

## (Vernon 2008), 

## and 40 

## Code ofFederal Regulations§ 51.102, 

## and after proper notice, the Commission conducteda public hearing to considerthe amended rule and revision to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 

## days priorto the date ofthe hearing. Apublic hearing was heldinAustin on September 10, 2013. 

## The Commission circulated hearing notices ofits intended action to the public, including ihterested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The publicwas invitedto submit data, views, and recommendations onthe proposed amended rule and SIP revision, either orally or in writing, at the hearing or during the commentperiod. Priorto the scheduled hearing, copies ofthe proposed amended rule and SIP revision were available for public inspection at the Commission's central office and onthe Commission's Web site. Data, views, and recommendations ofinterested persons regarding the proposed amended rule and SIP revision were submittedto the Commission during the comment period, andwere consideredbythe Commission as reflected in the analysis oftestimony incorporatedby reference to this Order. The Commission finds thatthe analysis of testimonyincludes the names ofall interested groups or associations offering comment onthe proposed amended rule andthe SIP revision andtheir position concerning the same. •.''

## IT IS THEREFORE ORDERED BY THE COMMISSION that the amendedrule and revision to the SIP incorporatedby reference to this Order are hereby adopted. The Commission further authorizes staffto make any non-substantive revisions to the rule necessary to comply with 

# Texas Register requirements. The adopted rule andthe preambleto the adopted rule andthe revision to the SIP are incorporated by reference inthis Order as ifset forth at length verbatim in this Order.
IT IS FURTHER ORDERED BY THE COMMISSION that onbehalfofthe Commission, the Chairman shouldtransmit a copy ofthis Order, together with the adopted rule and revision to the SIP, to the Regional Administrator ofEPA 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 Orderconstitutes the Order ofthe Commission required by the Administrative ProcedureAct, Tex. Gov't Code, § 

## 2001.033 (Vernon 2008). If

## any portion ofthis Order is for any reason heldto be invalidby a court of competentjurisdiction, the invalidity ofany portion shall not affect the validity ofthe remaining portions.

Issueddate: 

# JAN ·2 1

# 2014
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Bryan W. S aw, Ph.D., P.E., ChairmanThe 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 ofthe 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 497The 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 ofthe 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, orwith otherapplicable 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 underthe 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 ofthe 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 ofthe economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state." The purpose ofthis 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 ofthe 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

## 39 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 ofthis 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 AirAct), cited in the Statutory Authority section of this preamble. The purpose ofthe 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 ofthe 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 atakings 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 ofwildfires. 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, requiresthat 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 ofthe 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 ofthe 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 ofthe 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 supportfor 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 setwith 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 underthis 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 offire 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 thatthe 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 ofthe site or area that is the subject of the prescribed burn. They recommended prior notification to local authorities be made part ofthe revised rule. They proposed a specificwording forthe 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 499The purpose ofthe 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 ofwildfires, and therefore less atmospheric loading of airborne particulates. Ifthe 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 ofwildfires. Additionally, the EPA asked ifthe 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 othertechnical 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 itto be self-evidentthatwhile 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 mayspecify procedures or methods to control or abate emissions. Because emissions controls or abatement are not practical in all cases ofoutdoor 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 notwaiving 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-201400172Robert 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 ofthe Texas Department of Motor Vehicles (board) to the director ofthe 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 ofthe 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



## ADOPTEDRULES January 31, 2014 39 TexReg 501