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# ESI>FlJl.~.\(. ••••

# ESl'7~ •••••••••••••••• 6MD···· 8SF 

# fS()iC"•....••.•...**fSll~·················· ES,.[).<;J~~~J.** **~~l** 

## fI •••• •••••.••••••• 

# Rb-l**~O()..J j5x:t··(}.JJp·¥··~···**  TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Bryan

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

### Chainnan Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. Vickery, P.G., 

### Executive

### Direc~ 

# MAR I I

Protecting Texas by

### Reducing andPreventingPollution 

## March 4,2010

Docket 

## Nos. 2009·0542·RUL; 2009·0744·SIP

Al Armendariz, Ph. D., Regional Administrator U.S. Environmental Protection Agency

- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733
Dear Dr. Armendariz:
On February 10, 2010, the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP). The Commission adopted the repeal of §§ 

### 115.620

- 115.622, 115.626, 115.627, and 115.629 of 30 Texas Administrative Code (TAC) Chapter 115, Control of Air Pollution from Volatile Organic Compounds, and corresponding revisions to the SIP. This adoption to the Texas Portable Fuel Container (PFC) Rule Repeal SIP Revision (Texas PFC Rule Repeal SIP) removes Texas PFC regulations from the control strategy for the State of Texas Air Quality Implementation Plan for the Control ofOzone Air Pollution. This adoption to the SIP revision incorporates rulemaking repealing state PFC rules and demonstrates that federal PFC standards promulgated in 2007 provide replacement emission reductions. Because those emission reductions are estimated to be equal to or greater than those derived from the state regulations, the repeal of the Texas PFC rule will not negatively impact the State ofTexas Air Quality Implementation Plan for the Control ofOzone Air Pollution. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the public hearing, and the accompanying order. I look forward to your expeditious approval ofthese SIP revisions. Sincerely,

# ~Z~l Chairman 

# ,

BG/ca Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. 

### Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

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

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Docket Nos. 

## 2009.0542-RUL; 2009-0744-SIP

THE STATE OF TEXAS
COUNTY OF TRAVIS

This is to certify that the attached are true and correct copies of documents for revisions to the Texas
State Implementation Plan, adopted on February 10,2010, pursuant to 40 Code ofFederal Regulations (C.F.R.) § 

### 51.104. I am the records administrator for the Air Quality Division of the Texas Commission on Environmental Quality (Commission).

David Brymer, D' ector Air Quality Divis on Texas Commission on Environmental QualityTexas Commission on Environmental Quality Public Hearing October 6, 2009 Concerning revisions to

30 TAC Chapter 115 Portable Fuel Container Rule Repeal Rule Project Number 2008-032-115-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on October 6,2009, to receive testimony regarding proposed repeals to 30 Texas Administrative Code (TAG) Chapter 115, Control of Air Pollution from Volitale Organic Compounds and corresponding revisions to the state implementation plan.

The adoption addresses federal standards for Portable Fuel Containers (PFC). Specifically, the United States Environmental Protection Agency adopted a federal PFC rule (72 

### Federal Register 8432, February 26, 2007) that set a national standard for gasoline, diesel, and kerosene PFCs. All PFCs manufactured on or afterJanuary 1, 2009, are required to complywith the federal standards.
The federal standards promulgated are more stringent than the current state PFC regulations. Therefore, it is necessary to repeal the state PFC regulations.

The comment period closed on October 12, 2009. All testimonyand comments have been reviewed
and seriously considered. This hearing record contains a complete record ofthe pUblic hearing and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations/Order

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 Circle, Austin, Texas 78753. For further information, please contact Lisa Shuvalov at (512) 239-
4484.

# PUBLIC NOTIFICATION AND PROPOSAL

### PUBLIC NOTIFICATION

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

1. Publication of notice of public hearing in the following newspapers on the date listed: Austin American-Statesman, 

### August 31,2009 EI Paso Times, 

### August 31, 2009 Fort Worth Star-Telegram, 

### August 31, 2009 Houston Chronicle, 

### August 31,2009

2. Publication of the proposed repeal in the September 11,2009, issue of the Texas Register (34 TexReg 6279)

3. Publication of the Public Hearing Notice in the September 11, 2009, issue of the Texas Register 

### (34 TexReg 6371).

4. Correspondence forwarding the notice of public hearing to the following officials and agencies: Speaker of the House Lieutenant Governor Alamo Area Council of Governments Capital Area Planning Council City of Austin, Mayor's Office City of EI Paso City of EI Paso, Mayor's Office City of Fort Worth, Mayor's Office City of Houston City of Houston, Mayor's Office

### City of Victoria Planning Department
Dallas Department of Environmental and Health Services
Dallas Department of Aviation East Texas Council of Governments
EI Paso County Judge EI Paso Metropolitan Planning Organization
Federal HighwayAdministration Fort Worth Environmental Management Department Galveston County Health District Harris County Public Health and Environmental Services
Harris County Judge Houston Department of Health and Human Services Houston-Galveston Area Council North Central Texas Council of Governments South East Texas Regional Planning Commission
Tarrant County JUdge Texas**DE~partment** 

### of Transportation Texas Transportation Institute Travis County Judge Victoria Metropolitan Planning Organization ArkansaB Department of Pollution Control and Ecology Louisiana Department of Environmental Quality New Mexico Environmental Department Oklahoma Department of Environmental Quality 

# u. S. Environmental Protection Agency

### Example of Newspaper Classified Ad
Austin American-Statesman, 

### August 31,**~~009**

Details NOncE OFA PUBLIC HI!AIUNG ON PROP08ED REPEALS TO III

## rAC CHAPTER 111 ,\ND RI!VI8ION8 TO l1lE STAll! IIIPLEIIENTATION PLAN 'l'lw T_ canm

...1an an Erwi'lInmenllll**Qud~** (CDI11I11lIIIan) wi! canckIcta !Uk'-1ng 10 ,..,. 

### ....many ,.,-ding prllIlOHd ""1030T_**Adm~~** Code (TAC) ChlIplIIr 115, CcnIrDlmIl:r. PolIuIIonfrom Volatile OrganicCompoundsn oOl'r8lpondlngl'lNillonllo the

.... Implem.nI8lion pllIl. Th. prapllIlId I1lIemMWlg would repIIlII the

.... PlIl1IIblII Fue: ClII'IIHw lIIIlulalionIln lII'del'ID 8ddnIA recently 8lIoptIId fIIdlnlllllndllrda farPemble Fuel CorUIne,.. SpeclllaIIly,'the UnIWd S1IIlIIe Envtrormental ProteclIonAIlllllCY 8doptlld a flId8r8I PlII1IIble FUll Canlan.11l1e (72 FecIInIl RegIster&432, Fetxu.ry28, 2lXl7) lheI ata ndonaIlIland.a forguoIIne, dIueI, n henII_ PortIble Filii Cclnlai1erw. All Porl8bIe Filii Contanrs mlllUllcbnd on or 8rJ8llll8IY 1, 2008, nl'llqUiled 10 ccmplywtlh the ,.......lDndaJdI. 'l'lw,....1fand8n:Ia**prom~** IIl8mCll'8l1r1nllllflllhen thecurrents""**P~** Fuel Coralnerl1lIl\IldOI1I. (Rule prqa IUIlber2DOlI-032-11 5-EN) 'l'lw prapond nAMlllldng WIlUId allO

.... flellldlllrnplenlenmllon pIen (SIP) conoemlng repeIII orthe T_ Por1llble FUll Conlin. rvIe. 1'HII prap-.:I T_ PartabIIl Fuel ConlIn. Rule Repetll SIP RevIIIon (T

..s PoItabIII Filii CorillllnerRIHReI*I SIP)

_ T_ PartabIIlFuel ContahIr reguIeIIanafrom thecontrolllrDllYfarT_' '\lr QIlllIb' IInplIIMlIIaIIon P,-" forthe ConInlI orOZllllll Alr PoRullon. Thla prapclIed SIP NIIIIIon n»rp:nlee Pl1lpoNd**11l~** NpMllngllale PoitIbIe Filii CCInlIInIrrules IIld demlll'lllrNelhelfednI Portaille Full ConlaIMr

....**prom~** In 2007 pnwlde

... emllalon reeU::IIonI. lIeoeuesllallllllllllan reducIIonI nllllmllad 10 beequalto or**~llIn** lhoH dIrMIdfrom the

.... llIIllIIeIIlII'. therepelll mtheT_ PCIIlIbIe Full CoIUNrrule will notnegIdIvIly mpllCllhlS

.... orT_ Qudy Implem

.....1an PIIlI forIhlI CCInlrlll m 0IDne Polkdlon. (Rule Projeat Number2Cll»m4-8IP-NR)ApublichlIl11nl1l11'1 '1M propoIII" be hIldIn AilItiI an Ootablr8, 2001I. It2:00 p.m., In BuBdlng ERoam 201. atIhlI ccmmluat.

......loIIlae IoclIDlt .12100 P.tl35 Circle. 'l'lwl-'"llwiD bell1lUctUred fIlrlhll_1pt marel orwritlarl oammll1lL IRegIItrIiIIon bIgIne 30 mlnutN prlorto the**~.** lndIvlc*M mey present cnllllltllllllntl_1hlIn celed upon In lIl'IIIrmI'IIllItNtIan. Atime linKmaybe uIlIbIIIhedto

..... 1Il0Ullhline Ia abnd far .vIIylntIrIIIId penon to epeek. TherewtI benoopen dilQulon durtng the hIIrfl1ll; hclnwr, commlalton.tatr_bill wi! be aw/IIbIe fordIIcuulon 30 mlnutel prlorlo the I-'"ll endwUl ""1'qUllllonl before and

....rthe '-'"II. PlIl'IlII'II plImIng 10 ItIend the '-1ng, who t.w1plC8( oammuniCllllll'l orothereccarnmodatlon nMds, Ihcddcoraot Hom, Ottlla or I.IgeI ServIcII It (512)238-O771l. RequuIlIshould bI midi u fir In

### acmr- u pouIIIe. Commlllll!MY be Nlmlttlld to MIohMI PeniIh, Me2Oll, 0fIIce cfLege!

# llwv_
T_ Commialan on Environmental QulIIly, P.O. Box 13087,**AuI~** T_7871103087, orfluced 10(512) 239-4808. Electroniccommentl may be Nlmlttlld It hItp:llwww5.aq

.......tx. llIIruIeIIecommenll. FIle size l8ItrtctIlII'Ia !MYepply 10comm
..... Nlmlllld 1IlRIullhthe eCommlllll syIt8m. All commllllllhou/d lIfIr8I1C8 

# I IhlI NIe orSIP prlljectthe commn perlalrw to: Rule Projec:t Number20Q8.032-115-EN farthl prapoeed Porteble Full ConbIlnerRule Rep8ll1lld ProjectNLmber2009-024-8IP-NRfor

.. PCIlIIbIllI'IIII ContlllnerSIP RevlIiDn. The comment perlod daHl Oc:lober 12, 2008. To view the NIeI, pteue *II 

# I http:INww.lDllq.

......tx.UllfnevIrullllpropol._edoplhlml. Caples orthe prapDIlIlI SIP l1IVlalDn CIlI beobtained from thecommillkm'lWIIb

.... hItp:llwww.tDeq.

......tx.llIIImplemll1tlltlonlllllmobl

..**~LhtmL** Forfurlhllrtnfllrmetlan or**i~** concemInIl theH proposals. p
.... lXll'ItIl:t LIlIaShuYBiow. QIIIIfty PlInnlng SII:tIon, It (512) 239-

FIrIlDlilI'ullloMd: S1-Auv-1lll._. ---'

### (3) COMPANY: Mordonio Flores Flores Landscaping; DOCKET NUMBER: 2009.()39S-Lll-E; T Q In 

### NUMBER: RNI0S639348; LOCATION: 7S07

### Compass Dri Austin, Travis County; TYPE OF FACllJTY: laudscaping business 'chprovides laudscape inigation installation 

### services; RULES VIO D: TWC, §37.oo3, Texas Occupations Code, §1903.2S1, 

### and30 C§30.S(b)

### and §344.30,byfail

### ing to 

### refrain tiom 

### advertising or 

### senting himselfto 

### the public 

### as a person who 

### canperform for which a license or registration is 

### required

### when not possess' a current license or registration; PENALlY: $52S; 

### STAFF AITO Y: Barham Richard, 

### Litigation Division, MC 17S, (S

### 12) 239'()107 REGIONAL OFFICE: AustinRe

### gional Office, 2800 South 

### Highway 3S, 

### Suite 100, Austin, Texas 78704-S712, (SI2) 

### 339-292 • (4) COMPANY: NelsonKing; 

### TNUMBER: 2009'()218-AIR.- E; TCEQ In 

### NUMBER: RNI0S 68091; LOCATION: 386 Coyot!: Trail, Rhome, 

### WlSC County: TYP OF FACll.JlY: property: RULES VIOLATED: 30 TAC §111.201 Texas Health 

### and Safety Code, 

### §382.08S(b), by failing to 

### camp with the general prohibition of outdoorburning by failing to 

### prev the bwning 

### offurniture, plastic, paint cans, 

### tires, domestic waste, 

### and 

### miscellaneous c0nstruc

### tion debris atthe site; 

### PENALlY: 1,712: STAFFATIORNEY: Mike 

### Fishburn, LitigationDivision, MC 17S, (SI2) 239-063S: 

### REGIONAL OffiCE: Dallas-FortWorthRegio Office, 2309 Gravel Drive, Fort Worth, Texas 76118-69S1, 

### (817) S 

### 8-S8oo. (S) 

### COMPANY: Total Land lopmcnt Corporation; DOCKET NUMBER: 2008-1lSl-WQ-E: In 

### NUMBER: RNI0S346241; LOCATION: Old 440 

### Road an Claridge Avenue, 

### Killeen, Bell County: TYPE 

### OF FACllJTY: 'vision; RULES VIOLATED: 30 TAC §281.25(a)(4) 

### and 40 Code fFccIeral Regulations 

### §122.26, by failingto

### obtainauthorizationto

. storm

### wamrassociatedwith construction activities: PENAl,; $2,100: STAFFAITORNEY: Jim SaUans. Litigation Division, MC 7S, 

### (512) 239-2053; REGIONAL OffiCE: Waco Regional Office, 801 Sanger Avenue, Suit!: 2Soo, 

### Waco, Texas 76710-7826, (254) 7 1-0335. TRD-200903867 Kathleen C. Decker Director, LItIgation DMllIon Texas Commission on Envlronme Filed: 

### september 1, 2009 

# • • Notice ofPublic 

### Hearing on oposed Repeals 

### to 30 TAC Chapter 115 andRevisions to 

### the State Implementation Plan The Texas Commission on 

### Environmental Quality 

### (commission) 

### will conduct 

### apublic hearing to 

### receive t!:stimony regarding proposed repealsto 

### 30TexasAdministrative Code 

### (TAC) Chapter 11S, 

### Control of AirPollutionfromVolatileOrganicCompounds

### andcorrespondingrevisions to 

### the state 

### implementationplan. The 

### proposed rolemaking would repeal the state 

### Portable Fuel Containerregulationsinordertoaddress

### IeCCD.tlyadoptedfederal standards 

### forPortableFuel Containers. Specifically, the United States 

### Environmental Protection Agency adopted a federal 

### Portable Fuel Container role (72 FederalRegiste,. 

### 8432, February 26, 2007)

### that set

### anational standard for gasoline, 

### diesel, and kerosene Portable Fuel Containers. 

### All PortableFuel Containersmanufacturedonorafter

### January 1,2009, are required to 

### comply with the fccleral standards. The 

### federal standards 

### promulgated are more stringent than the 

### current state Portable Fuel Containerregulations. (Rule

### ProjectNumber2008-032-1IS-EN) The proposed rulemaking 

### would also revise the state 

### implementation piau (SIP) 

### concerningrepeal

### of theTexasPortableFuelContainerrole. This proposed 

### Texas Portable Fuel Container Rule Repeal SIP 

### Revision (Texas Portable Fuel ContainerRule Repeal SIP) removes Texas PortableFuelContainerregulationsfromthecontrolstrategy

### forTexas' Air Quality 

### Implementation Piau for 

### the Control ofOzoneAir Pollution. This

### proposedSIPrevisionincorporatesproposedrulemakingrepealing 

### state Portable Fuel Containerrules and 

### demonstrates 

### that federal Portable Fuel Container standards promulgated in 2007 provide 

### replacement emission reductions. 

### Because those emissionreductions are estimatedto

### beequalto 

### orgreaterthan

### those derived

### fromthe state 

### regulations, the repeal 

### ofthe 

### Texas Portable Fuel 

### Containerrole will not negatively impactthe 

### State ofTexas Air Quality 

### Implementation Plan for the Control ofOzone Air Pollution. (Rule 

### Project Number 2009-G24-SIP-NR) A public hearing on 

### this proposal will be held in Austin on October 6, 2009, at 2:00 p.m., in Building

### Eo Room 201, atthe commission's central office located at 

### 12100 Park 35 Circle. 

### The hearing 

### will be structured for the receipt oforal or 

### written comments. Registration begins 30 minUtl:S 

### prior to the 

### hearing. Individuals may present oral 

### statements when 

### calledupon inorderofregistration. Atime 

### 1imitmay be established to 

### assure enough time is 

### allowed for 

### every interested personto speak. 

### Therewill 

### be DO open 

### discussion duringthe

### hearing: however, commission staffmembers will be available for discussion 30 minutes 

### prior to 

### the hearing 

### and will 

### answer questions before 

### and after

### the hearing. Persons planning to attI:nd the hearing, who 

### have special communi

### cation or

### otheraccommodation needs, 

### should contact 

### Charlotte Hom, Office ofLegal 

### Services at (SI2) 

### 239'()779. Requests shouldbe 

### made as far in 

### advance as possible. Comments may 

### be submitted to 

### Michael Parrish, MC 205, Of

### fice 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 

### htJp:/1www5.tceq.stlJte.tx.uslruJesiecomments. File size 

### restrictions may apply to comments 

### submitted through the 

### eComments system. 

### All comments 

### should reference the rule 

### or SIP project 

### the comment pertains to: 

### Rule Project Number 2008'()32-11S-EN for the proposed Portable Fuel Container Rule Repeal 

### and Project Number 2009'()24-SIP-NR for the 

### Portable Fuel Container SIP 

### Revision. 

### The comment period 

### closes October 12, 2009. To 

### view the rules, please visit 

### http://www.tceq.state.tx.us/nmlruJes/p1.Opose

_ adopLhtml. 

### Copiesofthe 

### proposedSIPrevision

### canbe 

### obtainedfromthe commission's Web sit!: 

### at http://www.tceq.state.tx.uslilnplemenlation!ai

../mo

### bilesource/vetech/flle/programs.htm1. For further 

### information or questions concerning these proposals, 

### please contact Lisa Shuvalov, Air Quality 

### Planning Section, at (512) 239-4484. TRD-200903797 

### Robert Martinez Director. environmental Law DMslon Texas Commiuion on Environmental Quality Filed: August 28,2009 

# • • Notice ofPublic 

### Hearing on 

### Pr posed Revisions

### to 30 TAC Chapter 116 and to 

### the State 

### 1m lementation Plan The 

### Texas Commission on Env' ental Qua1ity 

### (commission) will conductapublichearingto 

### receive

. ony concerningproposedrevisions to 

### 30 TAC Chapter 

### 116, ntrol ofAirPollution by 

### Permits for New Construction or Modifi 'on, and to 

### the state 

### implementation piau (SIP). 

### These revisions proposed underthe 

### requirements ofTexas Health

### and Safety Code, § 

### 82.017; Texas GovernmentCode, 

### Subchapter B, Chapter 

### 2001; and 40 Code ofFederal Regulations,



## INADDIDON September 

## 11, 2009 

## 34 Tex.Reg 6371

### Bryan W. 

### Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. 

### Vickery, P.G., 

### ExecutiveDirector

# ~~op -:n 4.1 

### x :I: 'c"'" c"



### '" """'-- 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by

### ReducingandPreventingPollution



### NOTICE OF A PUBLIC BEARING ON PROPOSED REPEALS TO 30 

### TAC CHAPTER 115AND 

### REVISIONS TO THE 

### STATE IMPLEMENTATIONPLAN 

## The Texas Commission onEnvironmental Quality (commission) will 

## conduct apublic hearing to 

## receive testimony regarding proposed repeals to 

## 30 Texas Administrative Code (TAC) Chapter lIS, Control of Air 

## Pollution from Volatile Organic Compounds and corresponding revisions 

## to the state 

## implementation plan. The proposed rulemaking would repealthe state Portable Fuel Containerregulations in 

## order to 

## address recently adopted federal 

## standards for Portable Fuel Containers. Specifically, the United States Environmental Protection Agency adopted a federal Portable Fuel Container rule (72 

## FederalRegister 8432, February 26, 2007) that set 

## a 

## national 

## standard for gasoline, diesel, and kerosene Portable Fuel Containers. All Portable Fuel Containers manufactured on or aftet 

## January I, 2009, are required to 

## comply withthe federal 

## standards. The 

## federal 

## standards promulgated are more stringent

## than the current state 

## PortableFuel Containerregulations. (RuleProjectNumber2008-032-115-EN) The proposed rulemaking would also reVise the state 

## implementation plan (SIP) concernin,g 

## repeal ofthe Texas Portable Fuel Container rule. 

## This proposed Texas Portable Fuel Container Rule Repeal SIP Revision (Texas Portable Fuel Container Rule Repeal SIP) removes Texas Portable Fuel Container regulations from 

## the control 

## s1rategy for Texas' Air 

## Quality**Impl~entation** 

## Plan for the Control of Ozone Air 

## Pollution. This proposed SIP revision incorporates proposed roJernaking repealing state 

## Portable Fuel Container roles and demonstrates that 

## federal Portable Fuel Container standards promulgated in 2007 provide replacement emission reductions. Because those emission reductions are estimated 

## to be 

## equal to 

## or greater 

## than those derived from 

## the state 

## regulations, the 

## repeal ofthe Texas Portable Fuel Container rule will not negatively impact the 

## State ofTexas Air 

## Quality Implementation Planforthe Control ofOzone Air

## Pollution. (RuleProjectNumber2009-Q24-SIP-NR.)
A public hearing on this proposal will be 

## held in Austin on October 6, 2009, at 

## 2:00 p.m., in Building E Room 201, at 

## the commission's central office located at 

## 12100 Park 35 Circle. The hearing will be 

### structured 

## for the receipt of oral or written 

## comments. Registration begins 

## 30 minutes prior to 

## the hearing. Individuals may present oral statements when called upon in 

## order ofregistration. A time limit may be 

## established to 

## assure enough time is allowed for 

## every interested person to 

## speak. There will 

### be 

## no open discussion during the hearing; however, commission staff 

## members will be 

## available for discussion 30 minutes prior

## to the hearing andwill answerquestions before and after

## thehearing.
Persons planning to 

## attend the hearing, who have special cQIDID.unication or other accommodation needs, should contact Charlotte Horn, Office ofLegal 

## Services at 

## (512) 239-0779. Requests should be 

## made as far in 

## advance as possible.

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internetaddress: www.tceq.state.tx.us
Ilrinted on recvcled l)(UJer usinl! sov-based ink

### Comments may be submitted to Michael Panish, 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.state.IX.us/ru/es/ecomments. File size restrictions may apply to 

### comments submitted through the eComments system. All comments should reference the rule or SIP projectthe commentpertains to: Rule ProjectNumber 2008-032-115-EN for the proposed Portable Fuel Container Rule Repeal and Project Number 2009-024-SIP-NR for the Portable Fuel Container SIP Revision. The comment period closes October 12, 2009. To view the rules, please visit 

## http://www.tceq.state.IX.usInav/ruJes/p1.opose_adopt.htmI. Copies ofthe proposed SIP revision can be obtained from the commission's Web site 

### at 

## http://www.tceq.state.IX. us/imp/ementation/air/mobi/esource/vetech/fue/p1'ograms.htmI. For further information or questions concerning these proposals, please contact Lisa Shuvalov, 

### Air Quality Planning Section, 

### at (512) 239-4484.dendum Containing Required tices under §§5.016, 420.001 and 420.002, Texas Property ode). The repeal of §537.50, Standard Contract Form TREC No. 43-0, repeals the Addendum Containing Required Noti sUnder §§5.016, 420.001 and 420.002, Texas Property Code, hich will no longer be required to be prOVided to buyers of ne homes. Devon 

### V. Bijansky, Assistant G neral Counsel, has determined that forthe first five-year period e proposed repeal is in effect, there will be no fiscal implicatio s forthe state or for units of local governmentas a result ofen rcing oradministering the proposed repeal. There is no antici ated economic cost to persons who are required to comply wi the proposed repeal. There is no anticipated impact on small sinesses, micro-businesses or local or state employment as a suit of implementing the proposed repeal. Ms. Bijansky also has determin that, for each year ofthe first five years the repeal as propo is in effect, the public benefit anticipated as a result ofenforci gthe repeal will be consistency between state law and the TRE -promUlgated contract forms. Comments on the proposed re al may be submitted to Devon 

### V. Bijansky, Assistant General C unsel, Texas Real Estate Commission, P.O. Box 12188, Austi ,Texas 78711-2188. The repeal is proposed und r Texas Occupations Code, §1101.155, which authorizesth Texas Real Estate Commission to adopt rules in the pUblic's st interest that require license holders to use contractforms p pared bythe Texas Real Estate Broker-Lawyer Committee and dopted by the commission. The statute affected bythis pro sal isTexas Occupations Code, Chapter 1101. No otherstatute, e orarticle is affected bythe proposed repeal. §537.50. StandardContractFo This agency herebycertifiestha e proposal has been reviewed by legal counsel and found

### to be ithinthe agency's legal authority to adopt Filed with the Office ofthe Secre ryofStateon August28, 2009. TRD-200903801 Devon V. Bljansky Assistant General Counsel Texas Real Estate Commission Earliest possible date ofadoption: dober 11,2009 For further information, please call: (512) 465-3926 

# • • TITLE 30. ENVIRONMENTAL QUALITY 

## PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 115. CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS SUBCHAPTER G. CONSUMER-RELATED SOURCES DIVISION 2. PORTABLE FUEL CONTAINERS 30 TAC §§115.620

- 115.622, 115.626, 115.627, 115.629 (Editor:S note: The text of thefol/awing sectionsproposed for repeal 

### willnotbepublished Thesectionsmaybeexaminedintheofficesof the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James EarlRudderBuilding, 1019 Brazos Street, Austin, Texas.) The Texas Commission on Environmental Quality (TCEQ or commission) proposes the repeal of §§115.620

- 115.622, 115.626,115.627, and 115.629. The repealed sectionswill be SUbmitted tothe United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE REPEALED RULES The EPA adopted a federal portable fuel container (PFC) rule (72 Federal Register8432, February 26, 2007) that set a national standard for gasoline, diesel, and kerosene PFCs. All PFCs manufactured on or after January 1, 2009, are reqUired to comply with the federal standards. The federal regulations are very similar to the revised PFC regulations adopted by the CaliforniaAir Resources Board (CARB) on september 15, 2005. The currentTexas PFC regulations are inconsistentwith the federal standards because the state regulations were based on the previous PFC testing methods adopted by the CARB in 2001. The design criteria requirements for PFCsand PFC spouts specified under§§115.620 -115.622,115.626,115.627, and 115.629 were adopted on October 27, 2004. These PFC rules established design criteria for "no-spill" PFCs based primarily on the 2001 CARB standards. The Texas PFC regulations do differ from the 2001 CARB standards because the Texas rule does not require the control of permeation rates through the walls of the PFC. The control ofpermeation rates was not included in the Texas PFC regulations because the cost of compliance was expected to be large and the reduction in emissions small. The Texas PFC rules became effective on December 31,2005, and on January 11, 2006, the executive director received a petition for rulemaking under 30 TAC §20.15 from Mr. Jon Lips of L&W Innovations, LLC. L&W Innovations manufactures a onetime useemergencyfuel carrierknown asthe "Gas-O-Haul." The "Gas-O-Haul" emergency fuel carrier is prohibited by regulation from sale in Texas because it does not comply with the performance standards and testing requirements of§115.622 and the labeling requirements of§115.626. In addition, the "Gas-O-Haul" emergencyfuel carrierdid notqualifyforthe exemption provided in §115.627 for one-time use containers filled by the manufacturer but are not intended for reuse, because the "Gas-O-Haul" is not a pre-filled container. On March 8, 2006, Docket Number 200EHl055-RUL, the commission approved the petition for rulemaking and instructed the executive directorto initiate the rulemaking process that would allow one-time use, unfilled, emergencyfuel containers to be exempt and be eligible forsale in the State ofTexas. On May 1, 2006, the petitioner was granted an interim enforcement discretion waiver that is effective until the PFC rules are appropriately revised. In December 2006, a concept memo was drafted to initiate proposed revisions tothe PFC rules rulemaking. However, the rulemaking packet was put on hold while the EPA adopted the federal PFC rule. The federal rule defines a "portable fuel container" in 40 Code of Federal Regulations (CFR) §59.680 as "any reusable container." Thus, the "Gas-O-Haul" emergency fuel carrier is exempt underthe federal rule because it can only be used once.



## PROPOSEDRULES September 11, 

## 2009 34 

## TexReg 6279Since all PFCs manufadured on or after January 1, 2009, are required to comply with the federal standards, this adion would provide a clear regulatory structure by repealing §§115.620

- 115.622, 115.626, 115.627, and 115.629. SECTION BY SECTION DISCUSSION The proposed repeal of§§115.620 -115.622, 115.626, 115.627, and 115.629would remove regulationsthat have become unnecessarywith the EPA's implementation ofthefederal PFC rule (72 

### Federal Register8432, February 26, 2007), which established a national standard for gasoline, diesel, and kerosene PFCs, and are therefore intended to eliminate duplication and provide a clear regulatory strudure. 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 repeal is in effed, no significantfiscal implications are anticipated for the agency. In addition, no fiscal impad is expected forother units ofstate or local governmentsas a result ofadministration or enforcement ofthe proposed rule repeal. The proposed rules repealsedions in Chapter 115 relating tothe design criteria ofPFCs and PFC spoutsthatwereadopted bythe agency on Odober27, 2004. These rules are lessstringentthan federal PFC rules, and are no longer valid. The EPA adopted federal rules regarding PFCs forthose manufactured on orafter January 1, 2009, and nationwide manufadurers are required to prodUce PFCs meeting federal standards. State agencies and local governmentsthatuse PFCswill be purchasing those that meet federal rules. PFCs that meet the federal standards are not expeded to cost significantly more, and the repeal of state rules is not expeded to have a fiscal impad on other state agencies or local governments. PUBLIC BENEFITS AND COSTS Nina Chamness also determined that for each year of the first five years the proposed rule 

### repeal is in effed, the public benefit anticipated fl:om the changes seen in the proposed rule repeal will be consistentwith federal rules that are protective ofthe environment. The EPA adopted federal rules regarding PFCs for those manufadured on orafterJanuary 1, 2009, that apply nationwide. The proposed rules repeal sections in Chapter 115concerning PFCs that are no longervalid and are less stringent. The repeal ofthe state rules is not expeded to have afiscal impad on businesses or individuals. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT No adverse fiscal implications are anticipated for small or micro-businesses. The proposed rules repeal sections in Chapter 115 concerning PFCs that are no longervalid since new federal rules now determine the manufaduring standards of PFCs nationwide. SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS The commission has reviewed this proposed rulemaking and de-- termined that a small business regulatory flexibility analysis is not required because the proposed action repeals state rules that are no longer valid and do not adversely affect a small or micro-business in a material way for the first five years that the proposed rule repeal is in effect. LOCAL EMPLOYMENT IMPACT STATEMENT The commission has reviewed this proposed rulemaking and de· termined that a local employment impad statement is not required, because the proposed rule repeal does not**adversel~,** affed a local economy in a material way for the first five year.; that the proposed rule repeal is in effed. DRAFT REGULATORY IMPACTANALYSIS DETERMINATlml The commission reviewed the proposed rulemaking in lightoftill! regulatory analysis requirements of Texas Government Code, §2001.0225, and determined thatthe rules do not meetthe definition ofa "majorenvironmental rUle". UnderTexas Government Code, §2001.0225, a "major environmental rule" means a rult! the specific intent of which is to proted the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sedor of 

### the state. The proposed rule repeal is intended to more effectively focus commission resources and to update administrativo and technical requirements. Whilethe rules being repealed werEI originally intended to proted the environment or reduce risks tCI human health from environmental exposure, they are no longel" necessary because the EPA has promulgated federal rules that set a national standard forgasoline, diesel, and kerosene PFCs. All PFCs manufactured on orafterJanuary 1, 2009, are requirecl to comply with the federal standards. The proposed repeal will remove requirements for PFC manufadurers in Texas, so that they can comply with the federal standard, which will prevent companies from having to determine compliance with duplica· tive standards. Becausethis rulemaking will notadversely affect: in a material way the economy, a sedor of the economy, prodUdivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector of the state, the rulemaking does notfitthe Texas Government Code, §2001.0225 definition of "major environmental rule". Under Texas Government Code, §2001.0225, only a major en· vironmental rule requires a regulatory impad analysis. Because this proposal does not constitute a major environmental rule, a regulatory impad analysis is not required. Written comments on the draft regulatory impad analysis determination may be submitted tothe contad person atthe address listed underthe SUBMITIAL OF COMMENTS section ofthis preamble. TAKINGS IMPACTASSESSMENT UnderTexas Government Code, §2oo7.002(5), "taking" means agovernmental adion that affects private real property, in whole orin partortemporarily orpermanently, in amannerthat requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution orSection 17or 19, Article I, Texas Constitution; or a governmental adion that affects an owner's private real property that is the subjed ofthe governmental action, in whole or in part ortemporarily or permanently, in a mannerthat restricts or limits the owner's right to the property that would otherwise exist in the absence ofthe governmental action and is the prodUcing cause of a redudion ofat least 25% in the mar1<etvalue ofthe affeded private real property, determined by comparing the mar1<et value ofthe property as if governmental action is not in effect and the mar1<etvalue ofthe property determined as ifthe governmental action is in effed. The commission has prepared atakings impad assessment for these rules underTexas GovernmentCode, §2007.043. The fol

## 34 TexReg 6280 September 11, 

## 2009 Texas RegisterThe Texas Commission on E vironmental Quality (TCEQ or commission) proposes new §1 6.20 and new §116.178. Filed with the Office ofthe SecretaryofState on August28, 2009. TRD-200903796 Robert Martinez Dlredor, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: October 11. 2009 For further information. please call: (512) 239-2548 or faxed to (512) 239-4808. Electronic comments may be submitted at 

### http://.Nww5.tceq.state.tx.usJrolesiecommenls/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2oo8-o32-115-EN. The comment period closes October 12, 2009. Copies of the proposed rulemaking can be obtained from the commission's web site at 

### http://.Nww.tceq.state.tx.uslnav/rolesipropos9_adopt.html. For further infonnation, please contact Lisa Shuvalov, Air Quality Planning Section, at (512) 239-4484. STATUTORY AUTHORITY The repeal is proposed underTexas Water Code, §5.103. conceming Rules, and §5.105, conceming General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties underthe Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rulee, which authorizes the commission to adopt rules consistent with the policy and purposes of 

### the Texas Clean Air Act. The repeal is also proposed under Texas Health and safety Code, §382.002, conceming Policy and Purpose, which establishes the commission's purposeto safeguard the state's airresources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state's air; and §382.051 , concerning Pennitting Authority of Commission; Rules, which authorizes the commission to issue a pennit by rule for types offacilities that will not significantly contribute air contaminants to the atmosphere. The proposed repeal will implement Texas Health and Safety Code, §§382.002, 382.011, 382.012, and 382.051. §115.620. Definitions. 

### §115.621. Applicability. 

### §115.622. Performance Standards andTesting Requirements. 

### §115.626. Labeling. 

### §115.627. Exemptions. 

### §115.629. AffectedCounties 

### andCompliance Schedules. This agency herebycertifiesthatthe proposal has been reviewed by legal counsel and found to bewithin the agency's legal authority to adopt.



# • OL OF AIR TS FOR NEW ODIFICATION 

# • CHAPTER 116. CON POLLUTION BY PE CONSTRUCTION OR lowing is a summary ofthat assessment. The commission has determined that the promulgation and enforcement of the proposed repeal will not affect private real property in a manner that would require compensation to private real property owners underthe United States Constitution or the Texas Constitution. The proposed repeal also will not affect private real property in a manner that restricts or limits an owner's right to the propertythatwould otherwise exist in the absence ofthe governmental action. The proposed repeal is administrative and does not impose any new regulatory reqUirements. The changes to §§115.620

- 115.622, 115.626, 115.627, and 115.629 would 

### remove regUlations that have become unnecessary by the EPA's implementation of federal PFC standards and are therefore intended to eliminate duplication and provide a clear regulatory structure. The proposed repeal is reasonably taken to fulfill requirements ofstate law. Therefore, the proposed repeal will not cause ataking underTexas Government Code, Chapter2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission detennined this rulemaking related to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended 

### (Texas Natural Resources Code, §§33.201 

### et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, conceming Consistency 

### with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistentwith the applicable goals and policies ofthe CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and detennined that the repeal is consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving 

### the quality and values of coastal natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas. The repeal complies with 40 CFR Part 50, National Primary and secondary Air Quality Standards, and 40 CFR Part 51, ReqUirements for Preparation, Adoption, and Submittal of Implementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e). ANNOUNCEMENT OF HEARING The commission will hold a public hearing on this proposal in Austin on October 6, 2009, at 2:00 p.m., in BUilding E Room 201, atthe commission's central office located at 12100 Park 35 Circle. The hearing is structured forthe receipt oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be pennitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes priorto the hearing. Persons who have special communication orotheraccommodation needswho are planning to attend the hearing should contact Michael Parrish, Office of Legal Services at (512) 239-2548. Requests should be made as far in advance as possible. SUBMITIAL 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,



## PROPOSEDRULES September 

## 11, 2009 

## 34 TexReg 6281

# WRITTEN AND ORAL TESTIMONY

### Reference Number INDEX OF WRITTEN TESTIMONY

Submitted By

No written testimony was received pertaining to this proposal.

### Reference Number 

### INDEX OF ORAL TESTIMONY

Submitted by

No oral testimony was received pertaining to this proposal.

## HEARING OFFICERREPORT

I am 

## the hearing officer assigned 

## to conduct the public hearing regarding proposed repeals to 30 

## TAC Chapter 115, 

## Con1ro1 of Air 

## Pollution from Volatile Organic Compounds 

## and corresponding revisions to the state implementation plan, Rule Project Numbers 2008"032"115"EN 

## and2009-024-SIP-NR 

## Apublichearing

## was scheduledfor October6, 2009 

## atthe commission's central office. At2:00 PM, the room

## was open; TCEQ staff

## and a court

## reporterwere presentandready to 

## open the hearing for public comment. After waiting 

## for ten 

## minutes, no one had 

## arrived

## to make comments onthe record. Therefore, thepublic hearing was notformally openedfor commentandno transcript

## was prepared.

Date signed

# Texas Commission on Environmental Quality Public Hearing Registration
Date: October

### 6, 2009 Time: 2:00 PM
Rule Project No.: 2008-032-115-EN and 2009-o24-SIP-NR Short TItle: Portable Fuel Container Rule Repeal and SIP Revision Location: TCEQ Complex. 12100 Parf< 35 Circle, Building E, Room 2018. Austin, Texas Concerning: Proposed repeals to 30 TAC Chapter 115 and corresponding revisions to the state imJ?lementation plan 

# - 1 -

Name and Phone No. or E-mail Address (Please Print) 

### Representing Presenting Oral Testimony? 

### (Circle One)

Yee No

Yes 

### No

Yes 

### No

Yes 

### No

Yes 

### No

# EVALUATION OF

TESTIMONY

## To: Commissioners iN

### iBkbPfiCEMEMORANDUM

Date: 

### January22,2010 Thru: LaDonna Castaiiuela, ChiefClerk Mark 

### R. Vickery, P.G., Executive Director


### From:

# ~usana M. Hildebrand, P.E., ChiefEngineer

DocketNo.: 2009-0542-RUL 

## Subject: Commission ApprovalforRulemaking Adoption .' Chapter 115, Control of

## AirPollution from Volatile Organic Compounds PortableFuel Container (pFC) Rule Repeal Rule ProjectNo. 2008-032-1 IS-EN



### Background and reason(s) forthe rulemaking:
On 

### February 26, 2007, the UIiited States Environmental Protectipn Agency (EPA) adopted federal regulations that limit the evaporative hydrocarbon (HC) emissions from gasoline, diesel, and kerosene PFCs to 03 

### grams per gallon per day (72 

## FederalRegister 8432). All PFCs manufactured on or after,January 1, 2009. are required 

## to comply with the federal standards. The current Texas Pl"C regulations specified under 30 Texas**Admini~ve** 

### Code (TAC) §§115.620

- 115.622. 115.626. 115.627. and 115.629 as adopted on October 27.2004. 

# are less stringent

### than the federal PFC standards, because the Texas PFC rules are based on the PFC testing methods adopted by the California 

## Air Resources Boaro (CARB) in 2001. These rules lack an evaporative HC emission 

## standard. Therefore, itis necessary to repeal the state 

### PFC regulations.
The current requirements relating to the design criteria for PFCs and PFC spouts specified under 30 TAC §§115.620

- 115.622. 115.626. 115.627, and 115.629 were adopted**o~** 

### October 27,**200~** 

### .. The texas PFC rules established design criteriafor 

### ''no-spill'' PFCs based in large part 

### on the 2001 CA,RB PFC standards.
The Texas PFC rules went into effect on December 31.2005. On 

### January 11.2006. the Executive Director received a petition for rulemaking under 30 TAC §20.l5 from 

## Mr. Jon Lips ofL&W Innovations. LLC. L&W Innovations manufactures a one-time use emergency fuel carrier known as the "Gas-O-Haul." The "Gas-O-Haul" emergency fuel carrier is currently prohibited from sale in Texas. 

### because it does not comply with the performance standards 

### and testing requirements of §115.622 and the labeling requirements of §115.626. The "Gas-O-Haul" emergency fuel carrier did not qualify for the exemption provided in 

## § 115.627 for one-time use containers that have been 

### filled by the manufacturerbut are not intended for reuse. because· itis nota pre-filled container. On 

### March 8, 2006. the commission approved the petition for rulemaking (DocketNo. 2006-0055-RUL) and instructed the Executive Director to initiate the rulemaking process. The modifications to the rule would allow one-time use, unfilled, emergency fuel containers to be exempt and be eligible for sale in the State of Texas. On 

### May 1,2006, the petitioner

### was granted an interim enforcen1ent discretion waiver that is effective until the PFC rules are appropriately revised. 

### In December 2006, a concept memo was drafted to initiate proposedrevisions to the PFC rules. However. the projectwas put on holdwhen 

### itwas learned theEPA 

### was promulgating a federal PFCrule.

## Commissioners 

## Page2 January 22,2010
Re: DocketNo. 2009-0542-RUL
On 

## February 26, 2007, the EPA adopted federal regulations (72 

## Federal Register 8432) that limit the evaporative HC emissions from gasoline, diesel, and'kerosene PFCs,to 0.3 grams perga.11on per day. These new federal,**~FC** 

## regulations are very similar to the revised PFC 'regulations adopted by the CARB on September 15,2005. The federal PFC rule also defined a "portable fuel container" in 

## 40 Code ofFederal ,Regulations §59.680 "any reusable container." Thus, the "Gas-O-Haul" emergency fuel carrier

## is exempt underthe federal rule, because it can 

## onlybeused once. ' , All 

## PFCs manufactured on or after

## January 1,2009, are required to comply with the federal PFC standards. The repeal ofthe current state 

## PFC**regu.la~ons** 

## is necessary, since they are less stringent than 

## the adopted , federal regulations forPFCs.
Scope ofthe rulemaking: A) Summaryofwhatthe rulemakiDg

## will do: , 

## ,The rulemaking repeals 30 TAe §§115.620

- 115.622, 115.626, 115.627, and 115.629, Subchapter G - Consumer-Related Sources, Division 2 - 

## Portable Fuel Containers, in 

## its entirety. ' ' B) 

### Scope required by

### federal regulations or state statutes: 

## No. 

# q Additional stafT

### recommendations that

## are Dotrequired by

### federal rule or state statute: 

## None. " , Statutory authority: 

## Therepeals are adoptedunderTexas Water Code (TWC), §5.l03, concerningRules, and §5.105, concerning General Policy, which authorize the COmmission to adoptrules necessary to 

## carry out its powers and dutiesunder the TWC; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commissionto adoptrules consistentwiththepolicyandpurposes ofthe Texas CleanAirAct ' The repeals are also adopted under lHSC, §382.002, concerning Policy and Pmpose, which establishes the commission purpose to 

## safeguard the state's air 

## resources, consistent with the protection ofpublic health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; 

## §382.012, concerning State Air Control Plan, which authorizes the commissionto 

## prepare and develop ageneral, comprehensiveplan forthe control ofthe state's air; 

## and §382.051, concerningPermitting Authority ofCommission; Rules, which authorizes the commission to 

## issue a permit by rule for types offacilities that 

### will 

## not significantly contrlbute air 

## contamiDants to 

## the a1mosphere. Effect on the: A) Regulated community: 

## The adoptedrepeal of30 TAC §§115.620

- 115.622, 115.626, 115.627, and 115.629will 

## have no impacton theregulatedcommunity. B) 

### Public: 

## The adopted repeal'of30 TAC §§115.620

- 115.622, 115.626, 115.627, and 115.629 will have no**imp~** 

## on the public.

## Commissioners Page 3 

## January 22,2010
Re: DocketNo. 2009-0542-RUL C) 

### Agency programs: 

## the adopted repeal of30 TAC §§115.620

- 115.622, 115.626, 115.627, 

## and 115.629 

## will have no impact on agency programs. There is no back-sliding issue as the emissions modeling for estimating the air quality 

## benefits associated 

## with the state's PFCl 

## rules for the state implementation plan will be performed USing ,factors associated with the federal PFC emission standards, which are more stringent than the state's PFC staridards.
Stakeholdermeetings: 

## No stakeholdermeetings wereheld.
Public comment: 

## TCEQ staffwere presentat

## the following time and locationto conduct apublic hearing ontheproposed SIP revision andrule package. No memberofthe public wishedto presentcomments, so staffdidnot openthe public hearing.
CITY DATE 

### TIME LOCATION 

## Austin October6, 2009 2:00p.m. Texas Commission onEnvironmental Quality 12100North 1-35 BuildingE, Room 201 The commentperiod opened on September 11,2009, and closed on October 12, 2009. No written comments were received duringthe commentperiod. SigJiificantclumges from proposal: 

## There 

## are no signiticantchanges fromproposal.
Potential controversial concerns 

### and legislativeinterest remaining afterproposal and publiccomment: 

## There are none. Does this 

### rulemaking 

### affect

### any current policies orrequire development: ofnew policies? 

## No. '
What are the consequences if this 

### rulemaking does not go forward? Are there alternatives 

## to rulemaking? , ' 

## None. However, retainingthe state 

## PFC regulations specifiedunder 30 TAC §§115.620

- 115.622, 115.626, 115.627, and 115.629 will continue to 

## provide no emissions reduction benefit, since they are less stringent thanthe federal PFC regulations and couldresult in confusionformanufacturers. The alternatives are:

• The state rule could be revised to 

## reflect only the petition. If 

## so, the rule will be .inconSistent with the EPA rule for the following reasons: the EPA regulations are based on the CARB PFC program adopted in 2005, andthe current staterule is based onthe CARE PFC program adopted 

# m 2001, state 

## and**fed~** 

## regulations define a PFC differently; the EPA regulations include anti

## permeationrequirements; andtheEPA regulations includekerosene and diesel fuel containers'.

• The state

## rule couldberevisedto 

## mirrorthe federal rule. r

### Commissioners Page4 January

### 22, 2010
Re: DocketNo. 2009-0542-RUL

Key points in adoption rulemaking schedule: 

## TexasRegisterproposalpublication date: Anticipated 

## TexaSRegisterpublication date: Anticipated effective date: Six-month 

## TexosRegisterfiling deadline: 

### September 11, 2009 February 26, 2010 March 4, 2010 March 11,2010

.Agency 

### contacts: 

### Lisa Shuvalov, Rule ProjectManager, 239-4484, Air Quality

### Division ChrissieAngeletti, StaffAttorney, 239-1204

. MichaelParrish, Texas RegisterCoordinator, 239-2548

.. Attachments: None

cc: ChiefClerk, 5 copies Executive Director's Office



## .SusanaM. Hildebrand, 

## P.E. KevinPatteson Curtis 

### Seaton DanielWomack Office ofGeneral Counsel LisaShuvalov MichaelParrish ChrissieAngeletti

### EVALUAnON OF TESTIMONY

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the repeal of §§115.620

- 115.622, 115.626, 115.627, and 115.629. The repeals are adopted 

### withoutchanges

as published in the September 11,2009, issue ofthe 

### Texas Register(34 Tex Reg 6279).

The repealed sections 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
RULES
The EPA adopted a federal portable fuel container(PFC) rule (72 

### FederalRegister8432, February 26, 2007) that set a national standard for gasoline, diesel, and kerosene PFCs. All
PFCs manufactured on or afterJanuary 1,2009, are required to comply with the federal
standards. The federal regulations are very similarto the revised PFC regulations adopted by
the CaliforniaAir Resources Board (CARB) on September 15,2005. The currentTexas PFC regulations are inconsistent with the federal standards, because the state regulations were based

on the previous PFC testing methods adopted by the CARB in 2001.

The design criteriarequirements for PFCs and PFC spouts specifiedunder §§115.620

- 115.622, 115.626, 115.627, and 115.629 were adopted on October 27,2004. These PFC rules established design criteriafor "no-spill" PFCs basedprimarily on the 2001 CARB standards. The Texas
PFC regulations differ from the 2001 CARB standards, because the Texas PFC rules do not require the control ofpermeation rates through the walls ofthe PFC. The control ofpermeation

rates was not included 

### in the Texas PFC regulations, because the costofcompliance was expected to be large and the reduction in emissions small.

### The Texas PFC rules became effective on December 31,2005, and on January 11,2006, the Executive Directorreceived a petition for rulemaking under 30 TAC §20.l5 from Mr. Jon Lips ofL&W Innovations, LLC. L&W Innovations manufactures a one-time use emergency fuel
carrierknown as the "Gas-O-Haul." The "Gas-O-Haul" emergency fuel carrier is prohibited by regulation from sale in Texas, because it does not comply withthe performance standards and testing requirements of§115.622 and the labeling requirements of§115.626. 

## In addition, the "Gas-O-Haul" emergency fuel carrierdid notqualify for the exemption provided in §115.627 for one-time use containers filled by the manufacturerbut are not intended forreuse, because the "Gas-O-Haul" is not apre-filled container. On 

### March 8, 2006, DocketNumber2006-0055- RUL, the commission approved the petitionforrulemaking and instructedthe executive director
to initiate the rulemaking process thatwould allow one-time use, unfilled, emergency fuel containers to be exempt and be eligible for sale inthe State ofTexas. On

### May 1,2006, the petitionerwas granted an interimenforcement discretion waiverthat is effective until the PFC rules are appropriatelyrevised.

In 

### December2006, a conceptmemo was drafted to initiate proposed revisions to the PFC rules rulemaking. However, the rulemaking packet was puton hold whilethe EPA adoptedthe federal PFC rule. The federal rule defmes a "portable fuel container" in 40 Code ofFederal Regulations (CFR) §59.680 as "any reusable container." Thus, the "Gas-O-Haul" emergency fuel carrieris exemptunderthe federal rule, because it canonlybe used once.

Since all PFCs manufactured on orafterJanuary 1,2009, are requiredto comply withthe federal standards, this action will provide a clearregulatory structurebyrepealing §§115.620- 115.622, 115.626, 115.627, and 115.629.

2

## SECTION BY SECTIONDISCUSSION
The adopted repeal of§§115.620 -115.622,115.626,115.627, and 115.629 will remove regulations thathave become unnecessary withthe EPA's implementation ofthe federal PFC
rule (72 

## FederalRegister 8432, February 26, 2007), which established a national standard for gasoline, diesel, and kerosene PFCs and are intended to eliminate duplication andprovide a clearregulatory structure.



## FINAL REGULATORY IMPACTANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light ofthe regulatory analysis requirements ofTexas Government Code, §2001.0225, and determinedthatthe rules do not

meetthe defmition ofa "majorenvironmental rule." Under Texas Government Code, §2001.0225, a "majorenvironmental rule" means a rule with the specific intent ofwhich is to protectthe environment orreduce risks to human health from environmental exposure, and that
may adversely affectin a material way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety 

### ofthe state ora sector ofthe

state. The adopted rule repeal is intended to more effectively focus commissionresources and

to update administrative and technical requirements. While the rules being repealed were originally intended to protectthe environment orreduce risks to human health from
environmental exposure, they are no longer necessary because the EPA has promulgatedfederal
rules that set a national standard for gasoline, diesel, and kerosene PFCs. All PFCs
manufactured on or afterJanuary 1,2009, are required to comply withthe federal standards.
The adopted repeals will remove requirements for PFC manufacturers in Texas, so that they can comply with the federal standard, which will prevent companies from having to determine compliance with duplicative standards. Because this rulemaking will notadversely affect in a material way the economy, a sectorofthe economy, productivity, competition,jobs, the environment, orthe public health and safety 

### ofthe state or a sector ofthe state, the rulemaking



### 3

### does not fit the Texas Government Code, §2001.0225 defmition of"majorenvironmental rule".

UnderTexas GovernmentCode, §2001.0225, only amajorenvironmental rule requires a regulatory impact analysis. Becausethis adoption does not constitute amajorenvironmental rule, aregulatory impact analysis is notrequired.

The commission invited public commentregarding the draftregulatory impact analysis determination duringthe public commentperiod, and no comments were received.

TAKINGS IMPACT ASSESSMENT UnderTexas GovernmentCode, §2007.002(5), "taking" means a governmental action that affects privatereal property, in whole orin part ortemporarily orpermanently, in a mannerthat requires the governmental entityto compensate the privatereal property owneras provided by the Fifth and Fourteenth Amendments tothe United States Constitution or Section 17 or 19, Article I, 

### Texas Constitution; ora governmental actionthat affects an owner's privatereal property that isthe subjectofthe governmental action, in whole orin part 

### ortemporarily or permanently, in amannerthatrestricts orlimits the owner's righttothe property that would otherwise exist inthe absence ofthe governmental action and is the producing cause ofa reduction ofat least 25 percentin the market value ofthe affectedprivatereal property, determined by comparingthe market value ofthe property as ifgovernmental action is not in effectandthe marketvalue ofthe property determined as if

### the governmental action is in effect.

The commission has prepared atakings impact assessmentfortheserules underTexas Government Code, §2007.043. The following is a summary ofthat assessment. The commission has determinedthatthe promulgation and enforcementofthe adopted repeal will
not affectprivate real property in amannerthatwouldrequire compensationto private real

4

### property owners underthe United States Constitution orthe Texas Constitution. The adopted repeal also will not affectprivate real property in a mannerthatrestricts or limits an owner's right to the property thatwould otherwise exist in the absence ofthe governmental action. The adopted repeal is administrative and does not impose any new regulatory requirements. The changes to §§ 115.620

- 115.622, 115.626, 115.627, and 115.629 wouldremove regulations that
have become unnecessary bythe EPA's implementation offederal PFC standards and are therefore intended to eliminate duplication and provide a clearregulatory structure. The adopted repeal is reasonably taken to fulfill requirements ofstate law. Therefore, the adopted repeal will not cause a taking underTexas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined this rulemaking related to an action or actions is subjectto the
Texas Coastal ManagementProgram (CMP) in accordance with the Coastal Coordination Act
of 1991, as amended 

## (Texas NaturalResources Code, §§33.201 

## etseq.), andthe commission
rules in 30 TAC Chapter 281, SubchapterB, concerning Consistency with the CMP. As required by §281.45(aX3) and 31 TAC §505.l1(bX2), relating to actions and rules subjectto the CMP, commission rules governing airpollutantemissions must

## be consistentwith the applicable goals and policies ofthe CMP. The commission reviewed this action for consistency
with the CMP goals and policies in accordance with the regulations ofthe Coastal Coordination
Council and determinedthatthe repeal is consistent with the applicable CMP goal expressed 

### in
31 TAC §501.12(1) ofprotecting and preserving the quality and values ofcoastal natural

resource areas, andthe policy 

### in 31 TAC §501.14(q), which requires that the commission protectair quality in coastal areas. The repeal complies with 40 CFRPart 50, National Primary
and Secondary Air Quality Standards, and 40 CFRPart 51, Requirements for Preparation, Adoption, and Submittal ofhnplementation Plans. This rulemaking action is consistent with
CMP goals and policies, in compliance with 31 TAC §505.22(e).



### 5

### The commission invited public commentregardingthe consistency withthe CMP duringthe public commentperiod andno comments were re(:eived.

PUBLIC COMMENT Apublic hearing was scheduled on October6,2009. The commission did notreceive oral or written comments onthe PFC rule repeal. The commentperiod closed on October 12,2009.

STATUTORY AUTHORITY The repeals are adopted underTexas WaterCode (TWC), §5.l03, concerning Rules, and §5.105, concerning General Policy, which authorize the commissionto adoptrules necessary to
carry outits powers and duties underthe TWC; and underTexas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commissionto adoptrules consistentwiththe policy and purposes ofthe Tex.iS CleanAirAct. Therepeal is also adopted underTHSC, §382.002, concerning Policy and PwipOse, which establishes the commission's
purposeto safeguardthe state's airresources, consistentwiththe protection ofpublic health, general welfare, andphysical property; §382.011, concerning General Powers andDuties, which authorizes the commissionto controlthe quality ofthe state's air; §382.012, concerning State AirControl Plan, which authorizes the commissionto prepare and develop a general, comprehensive plan forthe control ofthe state's air; and §382.051, concerning Permitting Authority ofCommission; Rules, which authorizes the commissionto issue apermitbyrule for types offacilities thatwill not significantly contribute aircontaminantsto the atmosphere.

The adopted repeals implementTHSC, §§382.002, 382.011, 382.012, and 382.051.

6

# STAFF RECOMMENDATIONS

### SUBCHAPTERG: CONSUMER-RELATED SOURCES
DMSION 2: PORTABLE FUEL CONTAINERS §§115.620

- 115.622, 115.626, 115.627, 115.629

§115.620. Definitions.

§115.621. Applicability.

§115.622. Performance Standards and Testing Requirements.

§115.626. Labeling.

§115.627. Exemptions.

§115.629. Affected Counties and Compliance Schedules.TAKINGS IMPACT ASSESS ENT The commission evaluated e adopted rulemaking and performed an assessment of wether Texas Government Code, Chapter 2007, is applicable. The specific purpose of the rulemaking is to repeal rules th t incorporated by reference the federal CAMR emissions tra ng rules, located in 40 CFR Part 60, Subpart HHHH. Subpart HHH established a Hg emissions cap and trade program for ne and existing coal-fired EGUs for which standards of performa ce were promUlgated under 42 USC, §7411. During the 79th Legislature, 2005, the legislature enacted HB 2481, which ere ted a requirement in the Texas Clean AirAct, codified in THS ,§382.0173, to adoptthe federal program rules by reference. ince the adoption ofthese rules, however, CAMR has been erturned by the United States Court ofAppeals for the Distri ofColumbia. The United States Supreme Court has declined t hear an appeal ofthis decision, rendering it final. Therefore, AMR has been invalidated by the courts and is no longer an nforceable federal requirement. Texas Government Code, §20 7.003(b)(4), provides that Chapter 2007 does not apply to thi adopted rulemaking because it is an action reasonably taken 0 fulfill an obligation mandated by federal law and by state la CONSISTENCY WITH THE ASTAL MANAGEMENT PROGRAM The commission found thatthe peal of§101.601 and §101.602 are neither identified in Coas 1Coordination Act Implementation Rules, 31 TAC §505.11(b) ) or (4), nor do they affect any action/authorization identified i Coastal Coordination Act Implementation Rules, 31 TAC §50 11 (a)(6). Therefore, the repeal of §101.601 and §101.602 are ot subject to the Texas Coastal Management Program. PUBLIC COMMENT Public hearings were held in F rt Worth on October 20, 2009; in Austin on October 21, 2009; nd in Houston on October 22, 2009. The commission did not ceive any oral comments atthe public hearings. The comment riod for this repeal closed on October 26, 2009. The commi ion did not receive any written comments. STATUTORY AUTHORITY The repeals are adopted under xas Water Code, §5.103, concerning Rules, and §5.105, co cerning General Policy, which authorize the commission to ad t rules necessary to carry out its powers and duties under

### the exas Water Code; and under Texas Health and Safety Code HSC), §382.017, concerning Rules, which authorizes the co mission to adopt rules consistent with the policy and purpo s of the Texas Clean Air Act. The repeals are also adopted un erTHSC, §382.002, concerning Policy and Purpose, which es blishesthe commission's purpose to safeguard the state's air resources, consistent with the protection of public health, gene al welfare, and physical property; §382.011, concerning Gen ral Powers and Duties, which authorizesthe commission 

### to con 01 the qualityofthe state's air; §382.012, concerning State Air ontrol Plan, which authorizes the commission to prepare and d velop a general, comprehensive plan for the control of the s te's air; §382.014, concerning Emission Inventory; §382.01 , concerning Monitoring ReqUirements; House Bill 2481, §2, 79th Legislature, 2005, codified in THSC, §382.0173, conca ngAdoption of Rules Regarding Certain SIP Requirements an Standards of Performance for certain Sources; THSC, §382.0 ,concerning Federal Operating Permit; and Federal Clean Air ct (FCAA), 42 United States Code (USC), §§7401 et 

### seq. which requires states to submit plans establishing standards 0 performance forexisting sources of pollutants for which Nation 

### I Ambient Air Quality Standards have not been established an providing forthe implementation and enforcement of such stan ards of performance. The adopted repeals implem nt THSC, §§382.002, 382.011, 382.012, 382.014, 382.016, 3 .0173, and 382.054, and FCAA, 42 USC, §§7401 et

### seq. This agency herebycertifiesth tthe adoption has been reviewed by legal counsel and found to avalid exercise ofthe agency's legal authority.

. Filed with the Office ofthe Se tary of State on February 12, 2010. TRD-201000698 Robert Martinez Director, Environmental Law Divisi n Texas Commission on Environmen I Quality Effective date: March 4, 2010 Proposal publication dale: Septem r25, 2009 Forfurther information, please call: (512) 239-2548 

# • • CHAPTER 115. CON OL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS SUBCHAPTER G. CONSUMER-RELATED SOURCES DIVISION 2. PORTABLE FUEL CONTAINERS 30 TAC §§115.620

- 115.622, 115.626, 115.627, 115.629 The Texas Commission on Environmental Quality (TCEQ or commission) adopts the repeal of §§115.620

- 115.622, 115.626, 115.627, and 115.629. The repeals are adopted 

### withoutchanges as published in the September 11, 2009, issue ofthe 

### Texas Register(34 TexReg 6279). The repealed sectionswill 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 RULES The EPA adopted a federal portable fuel container (PFCj rule 

### (72 Federal Register8432, February 26, 2007) that set a national standard for gasoline, diesel, and kerosene PFCs. All PFCs manufactured on or after January 1, 2009, are required to comply with the federal standards. The federal regulations are very similar to the revised PFC regulations adopted by the CaliforniaAir Resources Board (CARB) on september 15, 2005. The currentTexas PFC regUlations are inconsistentwith the federal standards, becausethe state regUlations were based on the previous PFC testing methods adopted by the CARB in 2001. The design criteria requirementsfor PFCs and PFC spouts spec-- ified under§§115.620 -115.622, 115.626, 115.627, and 115.629 were adopted on October 27, 2004. These PFC rules established design criteria for "no-spill" PFCs based primarily on the 2001 CARB standards. The Texas PFC regUlations differ from the 2001 CARB standards, because the Texas PFC rules do not



## ADOPTEDRULES February 26, 

## 2010 35 

## TexReg 1747require the control of permeation rates through the walls ofthe PFC. The control of permeation rates was not included in the Texas PFC regUlations, because the cost ofcompliance was expected to be large and the reduction in emissions small. The Texas PFC rules became effective on December 31, 2005, and on January 11, 2006, the Executive Director received a petition for rulemslking under30 TAC §20.15 from Mr. Jon Lips of L&W Innovations, LLC. L&W Innovations manufactures a onetime use emergencyfuel carrierknown asthe "Gas-O-Haul." The "Gas-O-Haul" E,mergency fuel carrier is prohibited by regulation from sale in Te:<as, because it does not comply with the performance standards and testing requirements of §115.622 and the labeling requirements of§115.626. In addition, the "Gas-O-Haul" emergencyfuel carrierdid notqualifyforthe exemption provided in §115.627 for one-time use containers filled by the manufacturer but are nClt intended for reuse, because the "Gas-O-Haul" is not a pre-filled container. On March 8, 2006, Docket Number 2006-oo55-RLlL, the commission approved the petition for rulemaking and instructed the executive directorto initiate the rulemaking proceS!i that would allow one-time use, unfilled, emergencyfuel contiliners to be exemptand be eligible for sale in the State of Texas. On May 1, 2006, the petitionerwas granted an interim enforcement discretion waiver that is effective until the PFC rules are nppropriately reVised. In December 2006, a concept memo was drafted to initiate proposed revisions tothe PFC rules rulemaking. However, the rulemaking packet was put on hold while the EPA adopted the federal PFC rule. The federal rule defines a "portable fuel container" in 40 G:xle of Federal Regulations (CFR) §59.680 as "any reusable l::ontainer." Thus, the "Gas-O-Haul" emergency fuel carrier is e):empt underthe federal rule, because it can only be used once. Since all PFCs manufactured on or after January 1, 2009, are required to comply with the federal standards, this action will prOVide a clear regUlatory structure by repealing §§115.620

- 115.622,**115.6~!6,** 115.627, and 115.629. SECTION BY SECTION DISCUSSION The adopted repeal of §§115.620

- 115.622, 115.626, 115.627, and 115.629 will remove regulations that have become unnecessarywith the EPA's implementation ofthe federal PFC rule (72 FederalRegister8432, February26, 2007), which established a national standard for gasoline, diesel, and kerosene PFCs and are intended to eliminate duplication and provide a clear regulatory structure. FINAL REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewed the adopted rulemaking in light ofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determined thatthe rules do not meetthe definition ofa "majorenvironmental rule." UnderTexas Government Code, §2001.0225, a "major environmental rule" means a rule with the specific intent ofwhich 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 ofthe state or a sector of the state. The adopted rule repeal is intended to more effectively focus commission resources and to update administrative andtechnical requirements. Whilethe rules being repealed were originally intended to protect the environment or reduce risks to human health from environmental exposure, they are no longer necessary because the EPA has promulgated federal rules that



## 35 TexReg 1748 

## February 26, 

## 2010 Texas Register seta national standard forgasoline, diesel, and kerosene PFCs. All PFCs manufactured on orafterJanuary 1, 2009, are required to comply with the federal standards. The adopted repeals will remove requirements for PFC manufacturers in Texas, so that they can comply with the federal standard, which will prevent companies from having 

### to determine compliance with duplicative standards. Becausethis rulemaking will notadversely affect in a material way the economy, a sector of the economy, productiVity, competition, jobs, the environment, orthe public health and safety of the state or a sector of the state, the rulemaking does notfit the Texas Government Code, §2001.0225 definition of "major environmental rule". Under Texas Government Code, §2oo1.0225, only a major environmental rule requires a regUlatory impact analysis. Because this adoption does not constitute a major environmental rule, a regulatory impact analysis is not required. The commission invited pUbliccomment regarding the draft regulatory impactanalysis determination during the publiccomment period, and no comments were received. TAKINGS IMPACT ASSESSMENT UnderTexas Government Code, §2007.002(5), ''taking'' means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that 

### requires the governmental entity to compensate the private real property owneras provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or a governmental action that affects an owner's private real propertythat is the subject ofthe governmental action, inwhole orin partortemporarilyorpermanently, in a mannerthat restricts or limits the owner's rightto the property that would otherwise exist in the absence of the governmental action and is the prodUcing cause of a reduction of at least 25 percent in the marketvalue ofthe affected private real property, determined by comparing 

### the market value ofthe property as 

### if governmental action is not in effect and the market value ofthe property determined as ifthe governmental action is in effect. The commission has prepared atakings impact assessment for these rules under Texas Government Code, §2007.043. The following is a summary of that assessment. The commission has determined that the promUlgation and enforcement of the adopted repeal will not affect private real property in a manner thatwould require compensation to private real property owners underthe United States Constitution or the Texas Constitution. The adopted repeal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. The adopted repeal is administrative and does not impose any new regulatory requirements. The changes to §§115.620

- 115.622, 115.626, 115.627, and 115.629 would 

### remove regulations that have become unnecessary by the EPA's implementation of federal PFC standards and are therefore intended to eliminate duplication and provide a clear regulatory structure. The adopted repeal is reasonably taken to fulfill 

### requirements of state law. Therefore, the adopted repeal will not cause a taking underTexas Government Code, Chapter2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined this rulemaking related to an action oractions is subjectto the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201Robert Martinez Diredor, Environmental law Division Texas Commission on Environmental Quality Effectlve date: March 4,2010 Proposal publication date; September 11, 2009 Forfurther information, please call: (512) 239-2548

The Texas Commission on E vironmental Quality (TCEQ or commission) adopts new §116. 0 and §116.178. Sections 116.20 and 116.178 adopted 

### with changes to the proposed text as published in September 11, 2009, issue of the 

### Texas Register(34 TexReg 281). The commission will submit

### the new rules to the United States Environmental Protection Agen (EPA) as revisions to the state implementation plan (SIP). BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS FOR THE ADOPTED RULES The adopted amendments 

### to C apter 116 revise Subchapter A, Definitions, to add new §116.2 Portable Facilities Definitions, and revise Subchapter B, New ource Review Permits, 

### to add new§116.178, Relocations and hanges of Location of Portable Facilities. House Bill (HB) 555 of the 7 Legislature, 2003, modified Texas Health and Safety Cod (THSC), §382.056(r) to state that the requirements for publi notice do not apply to: 1) the relocation or change of locatio of a portable facility to a site where a portable facility has n located 

### at the proposed site at any time dUring the previous 0 years; or 2) a facility located temporarily in the right-of-way, 0 contiguous to the right-of-way, of a public works project. The Air Permits Division origin lIy provided guidance regarding the proper procedures for m vement of portable facilities in 2000, and updated the gUida in September2001, May 2004, October2006, and in 5eptembe 2008. This rule package incorporates the previously issued g dance into the TCEQ's rules. THSC, §382.056(r) states thatth requirements for public notice do not apply to the relocation or hange of location of a portable facility to a site where a portabl facility has been located at the proposed site at any time durin the previous two years. However, without a specific definition ofa "portable facility" and specific public notice requirements r a site, it is possible to gain authorization for several portabl facilities on a site without the benefitofpublic participation in process. This rulemaking defines a "portable facility" and all it to relocate, with approval from the executive director, to a ite that has undergone public notice. The primary affected types of fa 'Iities that use portable permit conditions are concrete batch pi nts, rock crushing plants, and hot mix asphalt plants. These s of facilities are often of interest to citizens who are affect by the relocation and change oflocation ofthese facilities and e accompanying public notice requirements. In some specific ses, permit holders have relo

### cated a portable facility to a site or which the public was never provided any notification oroppo nityforcomment. Inthese in

### etseq.), and the commission rules in 30 TAC Chapter281, Subchapter B, concerning Consistency with the CMP. 

### As required by §281.45(a)(3) and 31 TAC §505.11 (b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations ofthe Coastal Coordination Council and determined that the repeal is consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preseNing the quality and values of coastal natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas. The repeal complies with 40 CFR Part50, National Primaryand 5econdaryAirQuality Standards, and 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e). The commission invited public comment regarding the consistency with the CMP dUring the public comment period and no comments were received. PUBLIC COMMENT A public hearing was scheduled on October 6, 2009. The commission did not receive oral orwritten comments on the PFC rule repeal. The comment period closed on October 12, 2009. STATUTORY AUTHORITY The repeals are adopted under Texas water Code (TWC), §5.103, concerning Rules, and §5.1 05, concerning General Policy, which authorize the commission to adopt rules necessary

### to carry out its powers and duties underthe TWC; and underTexas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The repeal is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, which authorizes the commission 

### to prepare and develop a general, comprehensive plan for the control of the state's air; and §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue a permit by rule for types of facilities that will not significantly contribute air contaminants to the atmosphere. The adopted repeals implement THSC, §§382'002, 382.011, 382.012, and 382.051. This agency herebycertifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of State on February 12, 2010. TRD-201000697 

# • CHAPTER 116. CON POLLUTION BY PE CONSTRUCTION OR 

# • OL OF AIR TS FOR NEW

DIFICATION



## ADOPTEDRULES February 

## 26, 2010 

## 35 TexReg 1749

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

ORDERADOPTING REPEALED RULES AND REVISION TO THE STATE IMPLEMENTATION PLAN

Docket No. 2009-0542-RUL; 2009-0744-SIP

On February 10, 2010, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption of the repeal of §§115.620

- 115.622, 115.626, 115.627, and 115.629 of 30 Texas Administrative Code (TAC) Chapter 115, Control of Air Pollution from Volatile Organic Compounds, and corresponding revisions to the state implementation plan (SIP). This adoption to the Texas Portable Fuel Container (PFq Rule Repeal SIP Revision (Texas PFC Rule Repeal SIP) removes Texas PFC regulations from the control strategy for the State ofTexas Air Quality Implementation Plan for the Control ofOzone Air Pollution. This adoption to the SIP revision incorporates rulemaking repealing state PFC rules and demonstrates that federal PFC standards promulgated in 2007 provide replacement emission' reductions. Because those emission reductions are estimated to be equal to or greater than those derived from the state regulations, the repeal ofthe Texas PFC rule will not negatively impact the State ofTexas Air Quality Implementation Plan for the Control ofOzone Air Pollution Under Texas Health and Safety Code Ann. §§382.011, 382.012, and 382.023 (Vernon 2008), the Commission has the authority to control the quality ofthe state's air and to issue orders consistent with the policies and purposes ofthe Texas Clean Air Act, Chapter 382 ofthe Texas Health and Safety Code. The proposed rule was published for comment in the September 11, 2009 issue of the Texas Register 

### (34 TexReg 6279).
Pursuant to Texas Health and Safety Code Ann. §382.017 (Vernon 2008), Tex. Government Code Chapter 2001 (Vernon 2008), and 40 Code of Federal Regulations §51.102, and after proper notice, the Commission conducted a public hearing to considerthe repealed rules and revisions to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date ofthe hearing. A public hearing was held in Building E, Room 201 at the Commission's central office located at 12100 Park 35 Circle on October 6, 2009.
The Commission circulated hearing notices ofits intended action to the public, including interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed repealed rules and SIP revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled hearing, copies of the proposed repealed rules and SIP revisions were available for public inspection at the Commission's central office and on the Commission's Web site.
IT IS THEREFORE ORDERED BY THE COMMISSION that the repealed rules and revisions to the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 

### requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are incorporated by reference in this Order as if set forth at length verbatim in this Order.

### IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the Chainnan should transmit a copy ofthis Order, together with the adopted rule:; and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, codified at 

### 42 U.S. Code Ann. 

### §§7401

- 767Jq, as amended.
This Order constitutes the Order of the Commission required by the**Administrativl~** 

### Procedure Act, Texas Government Code, § 

### 2001.033 (Vernon 

### 2008). 

### If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, the invalidity ofany portion shall not affect the validity ofthe remaining portions.

Date issued: 

# FEB 1 22010 TEXAS COMMISSION ON ENVIRONMENTAL QU