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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 andPreventing Pollution

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 of Ozone 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 of Texas Air Quality Implementation Plan for the Control of Ozone 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 of these SIP revisions.

Sincerely,

~Z~l Chairman

,

BG/ca

Enclosures

cc: The Honorable Rick Perry, Governor of Texas

Mr. Toby Baker, Office of Budget, Planning and Policy, Office of the 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 of Federal 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 Quality
Texas 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 after January 1, 2009, are required to comply with 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 testimony and comments have been reviewed

and seriously considered. This hearing record contains a complete record of the pUblic hearing and

is divided into the following four sections:

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 Highway Administration

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 OF A PUBLIC HI!AIUNG ON PROP08ED REPEALS TO IIIrAC CHAPTER 111 ,\ND RI!VI8ION8

TO l1lE STAll! IIIPLEIIENTATION PLAN 'l'lw T_canm...1an an Erwi'lInmenllll Qud~ (CDI11I11lIIIan) wi!

canckIct a !Uk'-1ng 10 ,..,.....many,.,-ding prllIlOHd ""1030T_Adm~~Code

(TAC) ChlIplIIr 115, CcnIrDl mIl:r. PolIuIIon from Volatile Organic Compounds n 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 far Pemble Fuel CorUIne,.. SpeclllaIIly,'the

UnIWd S1IIlIIe Envtrormental ProteclIon AIlllllCY 8doptlld a flId8r8I PlII1IIble FUll Canlan.11l1e (72 FecIInIl

RegIster &432, Fetxu.ry 28, 2lXl7)lheI ata ndonaIlIland.a for guoIIne, dIueI, n henII_ PortIble Filii

Cclnlai1erw. All Porl8bIe Filii Contanrs mlllUllcbnd on or8rJ8llll8IY 1, 2008, nl'llqUiled 10 ccmply wtlh

the ,.......lDndaJdI. 'l'lw,....1fand8n:Ia prom~IIl8 mCll'8l1r1nllllflllhen the currents"" P~

Fuel Coralnerl1lIl\IldOI1I. (Rule prqa IUIlber 2DOlI-032-115-EN) 'l'lw prapond nAMlllldng WIlUId allO

....flellldlllrnplenlenmllon pIen (SIP) conoemlng repeIII ortheT_Por1llble FUll Conlin. rvIe. 1'HII

prap-.:IT_ PartabIIl Fuel ConlIn. Rule Repetll SIP RevIIIon (T..s PoItabIII Filii Corillllner RIH ReI*I

SIP) _ T_ PartabIIl Fuel ContahIr reguIeIIana from the controlllrDllY farT_''\lr QIlllIb'

IInplIIMlIIaIIon P,-"for the ConInlI or OZllllll 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 be equal to or ~llInlhoH dIrMId from the ....llIIllIIeIIlII'. the repelll mtheT_

PCIIlIbIe Full CoIUNrrule will not negIdIvIly mpllCllhlS.... orT_ Qudy Implem.....1an PIIlI for IhlI

CCInlrlll m0IDne Polkdlon. (Rule Projeat Number 2Cll»m4-8IP-NR) Apublic hlIl11nl1l11'1 '1M propoIII" be

hIld In AilItiI an Ootablr 8, 2001I. It2:00 p.m., In BuBdlng E Roam 201. at IhlI ccmmluat. ......loIIlae

IoclIDlt .12100 P.tl35 Circle. 'l'lwl-'"ll wiD bell1lUctUred fIlrlhll_1pt marel orwritlarl oammll1lL

IRegIItrIiIIon bIgIne 30 mlnutN prlor to the ~.lndIvlc*M mey present cnllllltllllllntl_1hlIn celed upon In

lIl'IIIrmI'IIllItNtIan. Atime linK may be uIlIbIIIhed to ..... 1Il0Ullh line Ia abnd far .vIIylntIrIIIId

penon to epeek. There wtI be no open dilQulon durtng the hIIrfl1ll; hclnwr, commlalton.tatr_bill wi!

be aw/IIbIe for dIIcuulon 30 mlnutel prlorlo the I-'"ll end wUl ""1'qUllllonl before and ....rthe

'-'"II. PlIl'IlII'II plImIng 10 ItIend the '-1ng, who t.w1plC8( oammuniCllllll'l or other eccarnmodatlon

nMds, Ihcdd coraot 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, Me 2Oll, 0fIIce cf Lege! llwv_

T_Commialan on Environmental QulIIly, P.O. Box 13087, AuI~ T_7871103087, orfluced 10(512)

239-4808. Electronic commentl may be Nlmlttlld It hItp:llwww5.aq.......tx. llIIruIeIIecommenll. FIle size

l8ItrtctIlII'Ia !MY epply 10 comm..... Nlmlllld 1IlRIullh the eCommlllll syIt8m. All commllllllhou/d lIfIr8I1C8

I

IhlI NIe or SIP prlljectthe commn perlalrw to: Rule Projec:t Number20Q8.032-115-EN farthl prapoeed

Porteble Full ConbIlner Rule Rep8ll1lld Project NLmber 2009-024-8IP-NR for.. PCIlIIbIllI'IIII Contlllner SIP

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 be obtained

from the commillkm'l WIIb ....

hItp:llwww.tDeq.......tx.llIIImplemll1tlltlonlllllmobl..~LhtmLForfurlhllrtnfllrmetlan or

i~concemInIl theH proposals. p.... lXll'ItIl:t LIlIa ShuYBiow. 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 'ch provides laudscape inigation

installation services; RULES VIO D: TWC, §37.oo3, Texas Occupations Code, §1903.2S1, and 30 C§30.S(b) and §344.30,by failing to refrain tiom advertising or senting himself to the public

as a person who can perform 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: AustinRegional Office, 2800 South Highway 3S, Suite 100, Austin,

Texas 78704-S712, (SI2) 339-292 •

(4) COMPANY: Nelson King; 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

outdoor burning by failing to prev the bwning offurniture, plastic,

paint cans, tires, domestic waste, and miscellaneous c0nstruction debris at the site; PENALlY: 1,712: STAFF ATIORNEY: Mike

Fishburn, Litigation Division, MC 17S, (SI2) 239-063S: REGIONAL

OffiCE: Dallas-Fort Worth Regio 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

failing to obtain authorization to . storm wamr associated with

construction activities: PENAl,; $2,100: STAFF AITORNEY: 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 and Revisions to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive t!:stimony regarding proposed repeals to 30 Texas Administrative Code (TAC) Chapter 11S, Control of

AirPollution from Volatile Organic Compounds and corresponding revisions to the state implementation plan.

The proposed rolemaking would repeal the state Portable Fuel Containerregulationsin orderto address IeCCD.tly adopted federal standards

for Portable Fuel Containers. Specifically, the United States Environmental Protection Agency adopted a federal Portable Fuel Container

role (72 Federal Registe,. 8432, February 26, 2007) that set a national

standard for gasoline, diesel, and kerosene Portable Fuel Containers.

All Portable Fuel Containers manufactured on or afterJanuary 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 Project Number 2008-032-1IS-EN)

The proposed rulemaking would also revise the state implementation

piau (SIP) concerning repeal ofthe Texas Portable FuelContainerrole.

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

Portable FuelContainerregulationsfrom the control strategy for Texas'

Air Quality Implementation Piau for the Control of Ozone Air Pollution. This proposed SIP revision incorporates proposed rulemaking repealing state Portable Fuel Container rules 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 greaterthan those derived from the state

regulations, the repeal ofthe Texas Portable Fuel Container role will

not negatively impact the State of Texas Air Quality Implementation

Plan for the Control of Ozone 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, 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 minUtl:S prior to the hearing. Individuals may present oral

statements when called upon in order ofregistration. A time 1imitmay

be established to assure enough time is allowed for every interested

person to speak. There will be DO open discussion during the hearing:

however, commission staff members 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 communication or other accommodation needs, should contact Charlotte Hom,

Office ofLegal Services at (SI2) 239'()779. Requests should be made

as far in advance as possible.

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

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.

Copies ofthe proposed SIP revision can be obtained from the commission's Web sit!: at http://www.tceq.state.tx.uslilnplemenlation!ai../mobilesource/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 of Public 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

conduct a public hearing to receive . ony concerning proposed revisions to 30 TAC Chapter 116, ntrol ofAir Pollution by Permits

for New Construction or Modifi 'on, and to the state implementation piau (SIP). These revisions proposed under the requirements

ofTexas Health and Safety Code, § 82.017; Texas Government Code,

Subchapter B, Chapter 2001; and 40 Code of Federal 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., Executive Director

~~op-:n

4.1 x

:I:

'c"'" c"

'" """'--

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing andPreventingPollution

NOTICE OF A PUBLIC BEARING ON

PROPOSED REPEALS TO 30 TAC CHAPTER 115 AND REVISIONS TO THE STATE

IMPLEMENTATION PLAN

The Texas Commission on Environmental Quality (commission) will conduct a public 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 repeal the state Portable Fuel Container regulations 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 Federal Register

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 with the federal standards. The federal standards promulgated are more stringent than the current

state Portable Fuel Container regulations. (Rule Project Number 2008-032-115-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 of Texas Air Quality Implementation

Plan for the Control ofOzone Air Pollution. (Rule Project Number 2009-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 and will answer questions before and after the hearing.

Persons planning to attend the hearing, who have special cQIDID.unication or other accommodation needs,

should contact Charlotte Horn, Office of Legal 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 Internet address: 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 project the comment pertains to: Rule Project Number 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 of the 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 for the first five-year period e proposed repeal is in effect,

there will be no fiscal implicatio s for the state or for units of local government as a result ofen rcing or administering 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 of the first

five years the repeal as propo is in effect, the public benefit

anticipated as a result ofenforci g the 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 authorizes th Texas Real Estate Commission

to adopt rules in the pUblic's st interest that require license

holders to use contract forms p pared by the Texas Real Estate

Broker-Lawyer Committee and dopted by the commission.

The statute affected by this pro sal is Texas Occupations Code,

Chapter 1101. No other statute, e orarticle is affected by the

proposed repeal.

§537.50. Standard Contract Fo

This agency hereby certifies tha e proposal has been reviewed

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

Filed with the Office ofthe Secre ry ofState on August 28, 2009.

TRD-200903801

Devon V. Bljansky

Assistant General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: 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 ofthe fol/awing sections proposedfor repeal

willnot bepublished The sectionsmay be examinedin the officesofthe

Texas Commission on Environmental Quality or in the Texas Register

office, Room 245, James Earl Rudder Building, 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 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 REPEALED RULES

The EPA adopted a federal portable fuel container (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 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

California Air Resources Board (CARB) on september 15, 2005.

The current Texas 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 criteria requirements for PFCs and 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 use emergency fuel carrier known 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 with the performance standards and testing requirements of §115.622 and the

labeling requirements of§115.626. In addition, the "Gas-O-Haul"

emergency fuel carrier did notqualify for the 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 director to initiate the rulemaking process that 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 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 to the 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 under the federal rule because it can only

be used once.

PROPOSED RULES September 11, 2009 34 TexReg 6279
Since 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 115.629 would remove regulations that have become unnecessary with the EPA's implementation ofthe federal PFC rule (72

Federal Register 8432, 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 significant fiscal implications are anticipated for the agency. In addition, no fiscal impad is expected

for other units of state or local governments as a result ofadministration or enforcement of the proposed rule repeal.

The proposed rules repealsedions in Chapter 115 relating to the

design criteria ofPFCs and PFC spouts thatwere adopted by the

agency on Odober 27, 2004. These rules are less stringent than

federal PFC rules, and are no longer valid. The EPA adopted

federal rules regarding PFCs for those manufactured on or after

January 1, 2009, and nationwide manufadurers are required to

prodUce PFCs meeting federal standards.

State agencies and local governments that use PFCs will 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 consistent with federal rules that are protective of the environment.

The EPA adopted federal rules regarding PFCs for those manufadured on or after January 1, 2009, that apply nationwide. The

proposed rules repeal sections in Chapter 115 concerning PFCs

that are no longer valid and are less stringent. The repeal of the

state rules is not expeded to have a fiscal 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 longer valid 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 IMPACT ANALYSIS DETERMINATlml

The commission reviewed the proposed rulemaking in light oftill!

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rules do not meet the definition of a "major environmental rUle". Under Texas 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. While the 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 for gasoline, diesel, and kerosene PFCs.

All PFCs manufactured on or after January 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. Because this rulemaking will not adversely affect:

in a material way the economy, a sedor of the economy, prodUdivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state, the rulemaking

does not fit the 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 to the contad person at the address listed underthe SUBMITIAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2oo7.002(5), "taking" means

a governmental adion that affects private real property, in whole

orin part ortemporarily orpermanently, in amannerthatrequires

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

the United States Constitution or Section 17 or 19, Article I, Texas

Constitution; or a governmental adion that affects an owner's

private real property that is the subjed of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that

would otherwise exist in the absence of the governmental action

and is the prodUcing cause of a redudion of at least 25% in the

mar1<et value of the affeded private real property, determined by

comparing the mar1<et value of the property as if governmental

action is not in effect and the mar1<et value of the property determined as if the governmental action is in effed.

The commission has prepared a takings impad assessment for

these rules under Texas Government Code, §2007.043. The fol34 TexReg 6280 September 11, 2009 Texas Register
The Texas Commission on E vironmental Quality (TCEQ or

commission) proposes new §1 6.20 and new §116.178.

Filed with the Office ofthe Secretary ofState on August 28, 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 under Texas 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 under the 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 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 Pennitting Authority of Commission;

Rules, which authorizes the commission to issue a pennit by

rule for types of facilities 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 and Testing Requirements.

§115.626. Labeling.

§115.627. Exemptions.

§115.629. AffectedCounties and Compliance Schedules.

This agency hereby certifies thatthe proposal has been reviewed

by legal counsel and found to be within 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 of that 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 under the 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

property that would 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 of state law. Therefore, the proposed repeal will not

cause a taking under Texas Government Code, Chapter 2007.

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 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

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, 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 pennitted 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

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,

PROPOSED RULES 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 OFFICER REPORT

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 and 2009-024-SIP-NR

A public hearing was scheduled for October 6, 2009 at the commission's central office.

At 2:00 PM, the room was open; TCEQ staff and a court reporter were present and ready

to open the hearing for public comment. After waiting for ten minutes, no one had

arrived to make comments on the record. Therefore, the public hearing was not formally

opened for comment and no 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 iBkbPfiCE MEMORANDUM

Date: January 22,2010

Thru: LaDonna Castaiiuela, ChiefClerk

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

From: ~usanaM. Hildebrand, P.E., ChiefEngineer

Docket No.: 2009-0542-RUL

Subject: Commission Approval for Rulemaking Adoption .'

Chapter 115, Control ofAir Pollution from Volatile Organic Compounds

Portable Fuel Container (pFC) Rule Repeal

Rule Project No. 2008-032-1 IS-EN

Background and reason(s) for the 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 Federal Register 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, it is 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 criteria for ''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 of L&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 manufacturer but are not intended for reuse. because·

it is not a pre-filled container.

On March 8, 2006. the commission approved the petition for rulemaking (Docket No. 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

proposed revisions to the PFC rules. However. the project was put on hold when it was learned the EPA was

promulgating a federal PFC rule.
Commissioners

Page 2

January 22,2010

Re: Docket No. 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 per ga.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 of Federal

,Regulations §59.680 "any reusable container." Thus, the "Gas-O-Haul" emergency fuel carrier is exempt

under the federal rule, because it can only be used once. ' ,

All PFCs manufactured on or after January 1,2009, are required to comply with the federal PFC standards.

The repeal of the current state PFC regu.la~ons is necessary, since they are less stringent than the adopted ,

federal regulations for PFCs.

Scope ofthe rulemaking:

A) Summary ofwhat the 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 Dot required by federal rule or state statute:

None. " ,

Statutory authority:

The repeals are adopted under Texas Water Code (TWC), §5.l03, concerning Rules, and §5.105, concerning

General Policy, which authorize the COmmission to adopt rules 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 commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act '

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 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 Permitting Authority ofCommission; Rules, which authorizes the commission

to issue a permit by rule for types of facilities that will not significantly contrlbute air contamiDants to the

a1mosphere.

Effect on the:

A) Regulated community:

The adopted repeal of30 TAC §§115.620 - 115.622, 115.626, 115.627, and 115.629 will have no impact on

the regulated community.

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: Docket No. 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.

Stakeholder meetings:

No stakeholder meetings were held.

Public comment:

TCEQ staffwere present at the following time and location to conduct a public hearing on the proposed SIP

revision and rule package. No member ofthe public wished to present comments, so staffdid not open the

public hearing.

CITY DATE TIME LOCATION

Austin October 6, 2009 2:00p.m. Texas Commission on Environmental Quality

12100 North 1-35

Building E, Room 201

The comment period opened on September 11,2009, and closed on October 12, 2009. No written comments

were received during the comment period.

SigJiificant clumges from proposal:

There are no signiticant changes from proposal.

Potential controversial concerns and legislative interest remaining after proposal and public comment:

There are none.

Does this rulemaking affect any current policies or require development: of new policies?

No. '

What are the consequences if this rulemaking does not go forward? Are there alternatives to

rulemaking? , '

None. However, retaining the state PFC regulations specified under 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

than the federal PFC regulations and could result in confusion for manufacturers.

The alternatives are:

• The state rule could be revised to reflect only the petition. Ifso, 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, and the current state rule is based on the CARE PFC program adopted

m2001, state and fed~ regulations define a PFC differently; the EPA regulations include antipermeation requirements; and the EPA regulations include kerosene and diesel fuel containers'.

• The state rule could be revised to mirrorthe federal rule.

r
Commissioners

Page 4

January 22, 2010

Re: Docket No. 2009-0542-RUL

Key points in adoption rulemaking schedule:

Texas Register proposal publication date:

Anticipated TexaS Register publication date:

Anticipated effective date:

Six-month Texos Registerfiling deadline:

September 11, 2009

February 26, 2010

March 4, 2010

March 11,2010

.Agency contacts:

Lisa Shuvalov, Rule Project Manager, 239-4484, Air Quality Division

Chrissie Angeletti, StaffAttorney, 239-1204 .

Michael Parrish, Texas Register Coordinator, 239-2548

.. Attachments: None

cc: ChiefClerk, 5 copies

Executive Director's Office

.Susana M. Hildebrand, P.E.

Kevin Patteson

Curtis Seaton

Daniel Womack

Office ofGeneral Counsel

Lisa Shuvalov

Michael Parrish

Chrissie Angeletti
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 without changes

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 Federal Register 8432,

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 California Air Resources Board (CARB) on September 15,2005. The current Texas 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 criteria requirements for PFCs and 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 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 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.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 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" emergency fuel carrier did not qualify for the 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 2006-0055-

RUL, the commission approved the petition for rulemaking and instructed the executive director

to initiate the rulemaking process that would allow one-time use, unfilled, emergency fuel

containers to be exempt and be eligible for sale 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 to the PFC rules

rulemaking. However, the rulemaking packet was put on hold while the EPA adopted the

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 carrier is exempt under the 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, 115.626, 115.627, and 115.629.

2
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 unnecessary with the EPA's implementation ofthe federal PFC

rule (72 Federal Register 8432, February 26, 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 IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light ofthe regulatory analysis

requirements ofTexas Government Code, §2001.0225, and determined that the rules do not

meet the defmition ofa "major environmental rule." Under Texas 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 ofthe

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

to update administrative and technical requirements. While the 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 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 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 not 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 ofthe state, the rulemaking

3
does not fit the Texas Government Code, §2001.0225 defmition of "major environmental rule".

Under Texas Government Code, §2001.0225, 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 public comment regarding the draft regulatory impact analysis

determination during the public comment period, and no comments were received.

TAKINGS IMPACT ASSESSMENT

Under Texas 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 owner as 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

property that is the subject ofthe governmental action, in whole or in part or temporarily or

permanently, in a manner that 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 ofa

reduction of at least 25 percent in the market value 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 a takings impact assessment for these rules under Texas

Government Code, §2007.043. The following is a summary ofthat assessment. The

commission has determined that the promulgation and enforcement ofthe adopted repeal will

not affect private real property in a manner that would require compensation to private real

4
property owners under the 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 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 would remove regulations that

have become unnecessary by the EPA's implementation offederal PFC standards and are

therefore intended to eliminate duplication and provide a clear regulatory structure. The

adopted repeal is reasonably taken to fulfill requirements ofstate law. Therefore, the adopted

repeal will not cause a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined this rulemaking related to an action or actions is 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 etseq.), and the commission

rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP. As

required by §281.45(aX3) and 31 TAC §505.l1(bX2), relating to actions and rules subject to the

CMP, commission rules governing air pollutant emissions must be consistent with the

applicable goals and policies ofthe CMP. The commission reviewed this action for consistency

with the CMP goals and policies in accordance with the 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 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 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 comment regarding the consistency with the CMP during the

public comment period and no comments were re(:eived.

PUBLIC COMMENT

A public hearing was scheduled on October 6,2009. The commission did not receive oral or

written 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.l03, concerning Rules, and

§5.105, concerning General Policy, which authorize the commission to adopt rules necessary to

carry out its powers and duties under the TWC; and under Texas Health and Safety Code

(THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes ofthe Tex.iS Clean Air Act. The repeal is also adopted

under THSC, §382.002, concerning Policy and PwipOse, which establishes the commission's

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 commission to prepare and develop a general,

comprehensive plan for the control ofthe state's air; and §382.051, concerning Permitting

Authority ofCommission; Rules, which authorizes the commission to issue a permit by rule for

types offacilities that will not significantly contribute air contaminantsto the atmosphere.

The adopted repeals implement THSC, §§382.002, 382.011, 382.012, and 382.051.

6
STAFF

RECOMMENDATIONS
SUBCHAPTER G: 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 Air Act, codified in THS ,§382.0173, to adopt the federal

program rules by reference. ince the adoption of these rules,

however, CAMR has been erturned by the United States

Court of Appeals for the Distri of Columbia. The United States

Supreme Court has declined t hear an appeal of this 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 that the 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 at the

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 er THSC, §382.002, concerning Policy and Purpose, which es blishes the 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

authorizes the commission to con 01 the quality ofthe 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 for existing sources

of pollutants for which Nation I Ambient Air Quality Standards

have not been established an providing for the 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 etseq.

This agency hereby certifies th t the adoption has been reviewed

by legal counsel and found to a valid exercise ofthe agency's

legal authority. .

Filed with the Office of the 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 r 25, 2009

For further 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

without changes as published in the September 11, 2009, issue

of the Texas Register(34 TexReg 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 (PFCj rule

(72 Federal Register 8432, 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

California Air Resources Board (CARB) on september 15, 2005.

The current Texas 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 criteria requirements for 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

ADOPTED RULES February 26, 2010 35 TexReg 1747
require the control of permeation rates through the walls of the

PFC. The control of permeation 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 rulemslking under 30 TAC §20.15 from Mr. Jon Lips of

L&W Innovations, LLC. L&W Innovations manufactures a onetime use emergency fuel carrier known as the "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"

emergency fuel carrier did not qualify forthe 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 director to initiate the rulemaking proceS!i that would allow one-time use, unfilled, emergency fuel contiliners to be exempt and be eligible for sale in the

State of Texas. On May 1, 2006, the petitioner was 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 to the 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 under the 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 unnecessary with the EPA's implementation of the federal PFC rule (72

Federal Register 8432, February 26, 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 IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the rules do not meet the definition of a "major environmental rule." Under Texas Government

Code, §2001.0225, a "major environmental rule" means a rule

with the specific intent of which is to protect the environment or

reduce risks to human health from environmental exposure, and

that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of

the state. The adopted rule repeal is intended to more effectively focus commission resources and to update administrative

and technical requirements. While the 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

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 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 not adversely affect

in a material way the economy, a sector of the economy, productiVity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state, the rulemaking

does not fit 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 pUblic comment regarding the draft regulatory impact analysis determination during the public comment

period, and no comments were received.

TAKINGS IMPACT ASSESSMENT

Under Texas 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 owner as 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 property that is the subject of the governmental action, in whole orin partortemporarily or permanently, in

a mannerthat restricts or limits the owner's right to 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 market value of the affected private real property,

determined by comparing the market value of the property as if

governmental action is not in effect and the market value of the

property determined as if the governmental action is in effect.

The commission has prepared a takings 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

that would require compensation to private real property owners

under the 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 under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined this rulemaking related to an action or actions is 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
Robert Martinez

Diredor, Environmental law Division

Texas Commission on Environmental Quality

Effectlve date: March 4,2010

Proposal publication date; September 11, 2009

For further 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 ofPortable

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 September 2001, May 2004,

October 2006, 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 of a "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

benefit ofpublic 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

of location of these facilities and e accompanying public notice

requirements. In some specific ses, permit holders have relocated a portable facility to a site or which the public was never

provided any notification or oppo nity for comment. Inthese inet seq.), and the commission rules in 30 TAC Chapter 281, 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 of the 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 Part 50, National Primary and 5econdary 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).

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 or written 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 under Texas

Health and Safety Code (THSC), §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the 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 hereby certifies thatthe adoption has been reviewed

by legal counsel and found to be a valid exercise of the 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

ADOPTED RULES February 26, 2010 35 TexReg 1749
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

ORDER ADOPTING 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 of Texas Air Quality Implementation Plan for the Control of Ozone

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 of Texas Air Quality Implementation Plan for the Control of Ozone 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 of the state's air and to issue orders consistent

with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the 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 consider the repealed rules

and revisions to the SIP. Proper notice included prominent advertisement in the areas affected at

least 30 days prior to the date of the hearing. A public hearing was held in 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 of its intended action to the public, including

interested persons, the Regional Administrator of the EPA, and all applicable local air pollution

control agencies. The public was invited to submit data, views, and recommendations on the

proposed 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 of this 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 of any portion shall not affect the validity of the remaining portions.

Date issued: FEB 1 22010 TEXAS COMMISSION ON

ENVIRONMENTAL QU