Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner jlJL 2 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director @y 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

Docket No. 2005-1799-RUL 

0 )> 

en -::0 

'-- :::om 

July 18, 2006 := -o("'") 

r-~ N )>< 

.- %1"'1 

za· 

-o :z: I 

Richard .E. Greene, Regional Administrator :::::1: C)O") 

U.S. Environmental Protection Agency- Region 6 

1445 Ross A venue 

+:"" (.1)-o a .r:- rrlr 

......: ("") 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

On June 28, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 

state implementation plan (SIP). 

The Commission adopted amendments to §111.203 and §111.209 in 30 TAC Chapter 111, Control of Air 

Pollution fr9m Visible Emissions and Particulate Matter, Subchapter B, Outdoor Burning and corresponding 

revision to the SIP. 

Section 111.203 was amended to prohibit the burning of household refuse in a limited demographic area on 

lots ofless than five acres, qualifying as a Class C misdemeanor. The amendment to § 111.203 would be 

more restrictive than current outdoor burning rules in Montgomery County, which currently does not 

criminalize or prohibit outdoor burning. Section 111.209 was amended to make a distinction between 

allowable burning in areas of attainment and nonattainment, incorporate all of the controls in §111.219, and 

no longer require consideration of practical alternatives in areas of attainment. Section 111.219 will maintain 

the necessary controls on outdoor burning in attainment areas, such as delineating appropriate times, weather 

conditions, distances from sensitive receptors, prohibitions against burning certain materials, and prohibitions 

on burns within corporate limits of a city. The removal of practical alternatives in areas of attainment was 

specified by the legislature in the amendments made to Texas Health and Safety Code (THSC), §382.018(b). 

The removal of practical alternatives in areas of attainment will not constitute a relaxation of the SIP as the 

consideration was primarily for a demonstration of economic feasibility rather than a control on outdoor burn 

emissions. 

THSC, §382.018(d) was amended to allow for outdoor burning on designated sites generated from specific 

residential properties outside of a municipality and in counties with a population less than 50,000 and 

§ 111.209 was amended accordingly. The current version of § 111.209 does not allow for burning on 

designated sites. The amendment to § 111.209 for designated sites requires mandatory notice to the 

commission prior to the burn, includes the controls in § 111.219, requires consideration of practical 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.us 
alternatives, and requires supervision by a fire department employee. The adopted rules are not expected to 

result in an increase in outdoor burning as the counties that were previously conducting outdoor burns will be 

permitted to continue doing so, but requiring that the burns be conducted on a designated site and conducted 

within the requirements in § 111.209 and § 111.219. The additional controls, such as the required presence of 

a fire department employee supervising each burn, limits the frequency and number of outdoor burns and 

would further not constitute a relaxation of the SIP. 

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. 

KHW/js 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 
TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY 

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 June 28, 2006, pursuant to 40 Code of Federal Regulations (CFR) 

§51.104. I am the records administrator for the General Law Division of the Texas Commission on 

Environmental Quality (Commission). 

KevinNiieana 

Director, General Law Division 

Texas Commission on Environmental Quality 
Texas Commission on 

Environmental Quality 

Public Hearing 

March 7, 2006 

Concerning Revisions to Chapter 111 

Control of Air Pollution from Visible 

Emissions and Particulate Matter; 

House Bill 39, Senate Bill 1710: Outdoor Burning 

Rule Project No. 2005-041-111-CE 
INTRODUCTION 

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

March 7, 2006, to receive testimony regarding proposed revisions to 30 TAC Chapter 111 , Control 

of Air Pollution from Visible Emissions and Particulate Matter, and the state implementation plan. 

The rulemaking prohibits the burning of all household refuse on certain properties in a limited 

demographic region, authorizes by rule the burning of plant growth in attainment areas on the 

property on which it was generated, and provides for the burning of plant growth from specific 

residential properties on designated sites in counties wth a population of less than 50,000. 

The comment period closed on March 13, 2006. 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 and 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 Ronnie Kramer at (512) 239-

0194. 
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 hearings in the following newspapers on the date listed: 

Austin American Statesman; January 31, 2006 

Fort Worth Star-Telegram; February 1, 2006 

Houston Chronicle; January 30, 2006 

2. Publication of the proposed rules in the February 10, 2006 issue of the Texas Register 

(31 TexReg 819). 

3. Publication of the Notice of Public Hearing in the February 10, 2006 issue of the Texas Register 

(31 TexReg 908). 

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

City of Victoria Planning Department 

Dallas Department of Environmental and Health Services 

Dallas Department of Aviation 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Fort Worth Environmental Management Department 

Galveston County Health District 

Houston Department of Health and Human Services 
Harris County Pollution Control Department 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas 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, January 31, 2006 

NOTICE OF PUBLIC HEARING BY 

THE TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY ON 

PROPOSED REVISIONS TO 30 TAC 

CHAPTER 111-ANDTO THE STATE 

IMPLEMENTATION PLAN 

The Texas Commisslon on Envi~ 

I 

ronmental Quality (commission) 

will conduct a public hearing. ru 

rece1ve testimony regardmg 

propo~ed revisions to 30 TAC 

I 

Chapter 111, Control of Air Poilu· 

ticn from v;sible Emissions and 

Particulate Matter, and the state 

implementation plan (SIP), un· 

I der the requirement5 of Texas 

Health and Safety Code, I §382.017; Texas Government I Code, Subchapter 8, Chapter 

I 

2001: and 40 Code of Federal 

Regulations §51.1 02, of the 

1 United Stares Environmental Pro1 

tection Agency (EPA) regulations 

concerning SIPS. The l'foposed rulemaking would 

I 

prohibit the burning of all 

household rPfuse on ·certain 

properties in a limited demographic region, authorize by rule 

1 the burning of plant growth in 

att~inment areas on the property on which it was generated, 

and provide for the burning cil 

plant wowth from specific residential properties on designated 

sites in counties with a population of less than 50,000. 

A public hearing on this proposal 

wilL be held in·Austin on March 7, 

2006, at 10:00 a.m., at the Texas 

Commission on Environmental 

Quality complex located at 

12100 Park 35 Circle, Building 8, 

Room 201 A. The hearing will be 

structured for the receipt of oral 

or written comments by interested persons. Registration will 

begin 30 minutes prior to the 

hearing. Individuals may present 

orai ~tatements . when called upon in ardei of re.gistration. 

Theie wiH be no open dt~cussion 

during the hearing; however, 

commission staff member; will 

be avarlable to discuss the proposal 30 minutes before the 

hearing and will answer questions before and after the hear- ing. 

Persons planning to attend the 

hearing who have special communication or other accommc.-

dation needs, should contact 

Jovce Spencer, Office . of Legal 

Services at 1512) 239-5017. Requests should be made as far in 

advance as possible. 

Comments may be submitted to 

Joyce Spencer, MC 205, Texas 

Register Team, Office of Legal 

Services, Texas Commission on 

Environmental Quality, PO Box 

13087, i'.ustin, Texa> 78711-3087 

or faxed to (512) 239-4808. All 

commenls should reference Rule 

Project Number 

200o-041-111-CE. Comments 

must bt:- received by -5:00p.m., March 13, 2006. Copies 01 the proposed rules can be obtained from the commrssion's Web site 

tlt http://www.r.:::eq.statc.tx. 

us/nav/rules/oropnse L"!dom. hun!. i-or flrrtner ir1tormation, 

preast c.nntact Ronrnr Kr.::~mer, 

Field Operation:; Divisio~1. u· 

(.S12.~ 229-0lYli. 

Issued in /-\u5tt!l, T e:v-.?.: .. on Jam;" 

ary- 25, 2006. 
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 111 

AND TO THE STATE IMPLEMENTATION PLAN 

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

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

Emissions and Particulate Matter, and the state implementation plan (SIP), under the requirements of Texas 

Health and Safety Code, §382.017; Texas Government Code, Subchapter B, Chapter 2001; and 40 Code of 

Federal Regulations §51.102, of the United States Environmental Protection Agency (EPA) regulations 

concerning SIPs. 

The proposed rulemaking would prohibit the burning of all household refuse on certain properties in a 

limited demographic region, authorize by rule the burning of plant growth in attainment areas on the 

property on which it was generated, and provide for the burning of plant growth from specific residential 

properties on designated sites in counties with a population of less than 50,000. 

A public hearing on this proposal will be held in Austin on March 7, 2006, at 10:00 a.m., at the Texas 

Commission on Environmental Quality complex located at 12100 Park 35 Circle, Building B, Room 201A. 

The hearing will be structured for the receipt of oral or written comments by interested persons. 

Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called 

upon in order of registration. There will be no open discussion during the hearing; however, cmmnission 

staff members will be available to discuss the proposal 30 minutes before the hearing and will answer 

questions before and after the hearing. 

Persons planning to attend the hearing who have special communication or other accommodation needs, 

should contact Joyce Spencer, Office of Legal Services at (512) 239-5017. Requests should be made as far 

in advance as possible. 

Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Office of Legal Services, 

Texas Cmmnission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 

239-4808. All comments should reference Rule Project Number 2005-041-111-CE. Comments must be 

received by 5:00 p.m. , March 13, 2006. Copies of the proposed rules can be obtained from the 

cmmnission's Web site at http:llwww.tceq.state.tx.uslnavlruleslpropose _ adopt.html. For further 

information, please contact Ronnie Kramer, Field Operations Division, at (512) 239-0194. 

Issued in Austin, Texas, on January 25, 2006. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.us 
TRD-200600542 

Stephanie Bergeron Perdue 

Acting Deputy Director, Office of Le al Services 

Texas Commission on Environment I Quality 

Filed: February 1, 2006 

• • 

Notice of Public Hearing 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, and the state implementation 

plan (SIP), under the requirements of Texas Health and Safety Code, 

§382.017; Texas Government Code, Subchapter B, Chapter 2001; and 

40 Code of Federal Regulations §51.1 02, of the United States Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would prohibit the burning of all household 

refuse on certain properties in a limited demographic region, authorize 

by rule the burning of plant growth in attainment areas on the property 

on which it was generated, and provide for the burning of plant growth 

from specific residential properties on designated sites in counties with 

a population of less than 50,000. 

A public hearing on this proposal will be held in Austin, Texas on 

March 7, 2006, at 10:00 a.m., at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle, Building B, 

Room 201A. The hearing will be structured for the receipt of oral or 

written comments by interested persons. Registration will begin 30 

minutes prior to the hearing. Individuals may present oral statements 

when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff members will 

be available to discuss the proposal 30 minutes before the hearing and 

will answer questions before and after the hearing. 

Persons planning to attend the hearing who have special communication or other accommodation needs, should contact Joyce Spencer, Office ofLegal Services, at (512) 239-5017. Requests should be made as 

far in advance as possible. 

Comments may be submitted to Joyce Spencer, MC 205, Texas 

Register Team, Office of Legal Services, Texas Commission on Environmental Quality, P. 0. Box 13087, Austin, Texas 78711-3087 or 

faxed to (512) 239-4808. All comments should reference Rule Project 

Number 2005-041-111-CE. Comments must be received by 5:00p.m., 

March 13, 2006. Copies of the proposed rules can be obtained from the 

commission's Web site at http://www.tceq.state.tx.us/nav/ru/es/propose_adopt.htm/. For further information, please contact Ronnie 

Kramer, Field Operations Division, at (512) 239-0194. 

TRD-200600465 

Stephanie Bergeron Perdue 

Acting Deputy Director, Office of Legal Services 

Texas Commission on Environmental Quality 

Filed: January 30, 2006 

• • 

Notice of Water Quality Appli 

The following notices were issue during the period of January 24, 

2006 through January 27, 2006. 

The following require the applic ts to publish notice in the newspaper. The public comment perio , requests for public meetings, or 

requests for a contested case hear· g may be submitted to the Office 

of the Chief Clerk, Mail Code I , P. 0. Box 13087, Austin Texas 

31 TexReg 908 February 10, 2006 Texas Register 

78711-3087, WITHIN 30 DAYS 0 THE DATE OF NEWSPAPER 

PUBLICATION OF THIS NOTICE. 

AQUA UTILITIES, INC. has applie for a renewal of Texas Pollutant 

Discharge Elimination System (TPD S) Permit No. 12563-00 I, which 

authorizes the discharge of treated d mestic wastewater at a daily average flow not to exceed 20,000 gallo s per day. The facility is located 

approximately 1.3 miles west of th intersection of Farm-to-Market 

Road 729 and Farm-to-Market Road 1969 and approximately 4 miles 

southwest of the intersection of State ighway 49 and Farm-to-Market 

Road 1969 in Marion County, Texas 

CITY OF DENTON has applied for renewal of TPDES Permit No. 

10027-003, which authorizes the dis harge of treated domestic wastewater at an annual average flow not o exceed 21,000,000 gallons per 

day. The applicant has also applied t the Texas Commission on Environmental Quality (TCEQ) for appro a! of a substantial modification to 

its pretreatment program under the DES program. The current permit authorizes the land application o sewage sludge for beneficial use 

on 357 acres, land application of cia s A sewage sludge for beneficial 

use, and marketing and distribution f sludge. The facility is located 

east of the City ofDenton along Pee Creek, approximately 5, 700 feet 

east of State Highway 288 and two miles upstream from Lewisville 

Lake in Denton County, Texas. The applicant has also applied to the 

TCEQ for approval of a substantial edification to its approved pretreatment program under the TPDES rogram. Approval of the request 

for modification to the pretreatment ogram will allow the applicant to 

incorporate the City of Denton's Pro ect XL Final Project Agreement. 

The request for approval complies w th both federal and State requirements. The substantial modification ill be approved without change 

if no substantive comments are recei ed within 30 days of notice publication. 

CITY OF EL PASO AND TEXA DEPARTMENT OF TRANSPORTATION, which operate the Ci of El Paso Municipal Separate 

Storm Sewer System (MS4), have pplied for a renewal ofNPDES 

Permit No. TXS000801 which aut orizes storm water point source 

discharges to surface water in the state from the City of El Paso 

Municipal Separate Storm Sewer stem (MS4). This permit will 

be renewed as TPDES Permit No. WQ0004527000. The MS4 is 

located within the corporate bound of the City of El Paso, in El 

Paso County, Texas. 

NORTHWEST HARRIS COUNT 

TRICT NO. I 0 has applied for a ne 

No. WQ0014643001, to authorize 

wastewater at a daily average flow 

day. The facility is located on the 

4,600 feet north ofHuffmeister Roa 

· MUNICIPAL UTILITY DISpermit, proposed TPDES Permit 

he discharge of treated domestic 

ot to exceed 94,500 gallons per 

st side of Barker Cypress Road, 

in Harris County, Texas. 

ORANGEFIELD INDEPENDENT CHOOL DISTRICT has applied 

for a renewal ofTPDES Permit No. 11607-001, which authorizes the 

discharge of treated domestic wast ater at a daily average flow not 

to exceed 32,000 gallons per day. e facility is located immediately 

north ofFarm-to-Market Road 105 a d 0.5 mile west of the intersection 

ofF arm-to-Market Road I 05 and Fa -to-Market Road 408 in Orange 

County, Texas . 

KENNETH DUANE REYNOLDS as applied for a renewal of Permit No. 1173 7-00 I, which authoriz s the disposal of treated domestic 

wastewater at a daily average flow 1ot to exceed 12,000 gallons per 

day via subsurface drip irrigation o 2.75 acres of pasture land. This 

permit will not authorize a dischar of pollutants into waters in the 

State. The wastewater treatment fa ility and disposal site are located 

on State Highway 64, approximate! 2.5 miles east of the intersection 

of Loop 323 and State Highway 64 Smith County, Texas. 
ill [fB] The carrier shall aintain accurate records to reflect 

information regarding requests forpreauthorization, or concurrent review approval/~enial decisions, a appeals, if any. The carrier shall 

also maintain accurate records tore· ect information regarding requests 

for voluntary certification approva denial decisions. Upon request of 

the Division [ eemmissien], theca er shall submit such information in 

the form and manner prescribed b the Division [eemmissien]. 

ftm1 Req1:1ests fef an4lef eenel:ll'fent RWiew 

ffiHIH be resvended te in with mles in effeet at the time ef 

soomissien ef the~ Where teFms 6f fl6f1ioos ef tffi.s seetieH 

flftl deteFmined :ey & eetlft ef j1:1risdietien te be ffi.v.&liEl.; the 

remaining terms &ad previsiens ef · seetieH sftiiH feFH&iH in e4feet te 

the tl1HeHt pessible. If & pertieH ef · seetieH ts 6eel&red Hw&li6 ffi & 

fin&l j 1:1dgment that ts Hat Stlbjeet , 6f ts s1:1spended :ey 6fder ef 

the eetlft wftieft ts gt¥en immediate e4feet; the mle as it~ pri6f te 

the effeeti.¥e date ef tffi.s seetieH t=em&in ffi effeet fef &1-1 ~ 

fef preal:ltherii!atien te the tl1HeHt $~;ap,.;j 

{W -The efteeti.ve date ef . seetien ts Mareft H, ~ ~ 

~fur prelll:ltftem&tien · prief te Mareft H, ~ sftiiH be 

Stlbjeet te the fl:lle ffi effeet at the . tfte reql:leSt was soomitted.] 

This agency hereby certifies tha the proposal has been reviewed 

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

Filed with the Office of the Se retary of State on January 30, 

2006. 

TRD-200600470 

Norma Garcia 

General Counsel 

Texas Department of Insurance, Di sian of Workers' Compensation 

Earliest possible date of adoption: arch 12, 2006 

For further information, please call: 512) 804-4288 

• • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER B. OUTDOOR BURNING 

30 TAC §111.203, §111.209 

The Texas Commission on Environmental Quality (commission) 

proposes amendments to §111.203 and §111.209. 

The amended sections will be submitted to the United States 

Environmental Protection Agency (EPA) as revisions to the state 

implementation plan. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

House Bill (HB) 39, 79th Legislature, 2005, amended Texas 

Health and Safety Code (THSC), §382.018, Outdoor Burning 

of Waste and Combustible Material, by subjecting it to Local 

Government Code, §352.082, Outdoor Burning of Household 

Refuse in Certain Residential Areas. Under Local Government 

Code, §352.082, a person commits a Class C misdemeanor if 

the person intentionally or knowingly burns household refuse 

outdoors on a lot that is located in a neighborhood or on a lot that 

is smaller than five acres. Local Government Code, §352.082, 

is applicable only to the unincorporated area of a county that is 

adjacent to a county with a population of 3.3 million or more, 

and in which a planned community is located that has 20,000 

or more acres of land that was originally established under the 

Urban Growth and New Community Development Act of 1970 

(42 United States Code, §§4501 et seq.) and that is subject to 

restrictive covenants containing ad valorem or annual variable 

budget-based assessments on real property. The proposed 

rules would prohibit the burning of household refuse in the area 

delineated by Local Government Code, §352.082. 

Senate Bill (SB) 1710, 79th Legislature, 2005, also amer:~ded 

THSC, §382.018, by adding subsections (b) and (c), which require the commission to authorize by rule the burning of waste 

consisting of plant growth in areas that meet the national ambient 

air quality standards (NAAQS) and do not contain any part of a 

city that does not meet the NAAQS if the waste is burned on the 

property of origin and by the owner of the property or any other 

person authorized by the owner. The commission is prohibited 

from requiring prior commission approval of the burning, or from 

authorizing the burning, only when no practical alternative exists. Current rules make no distinction between attainment and 

nonattainment areas regarding outdoor disposal fires. The proposed rules would implement the authorization by rule required 

by THSC, §382.018. 

SB 1710 also amended THSC, §382.018, by adding subsections (d) and (e), which prohibit the commission from controlling or prohibiting outdoor burning of waste consisting of plant 

growth at a site designated for burning of waste generated from 

specific residential properties located outside of a municipality 

and in a county with a population of less than 50,000, if supervised by a fire department employee acting in the scope of 

the person's employment. The current rules do not authorize 

the burning of waste at designated sites. The proposed rules 

would establish minimal compliance determination criteria to ensure that all activities meet the qualifications for burns at designated sites. The commission notes that only three counties, 

Chambers, Hardin, and Rockwall, are within designated nonattainment areas and have a population of less than 50,000. Burning of domestic waste, including plant growth, is already authorized in these counties for private residences when collection of 

domestic waste is not provided or authorized by the local governmental entity having jurisdiction. To the commission's best available knowledge, no residential properties outside of municipalities in these counties are provided with domestic waste collection 

by the local governmental entity having jurisdiction. Therefore, 

the proposed rules would not cause an increase in plant growth 

burns in designated nonattainment areas. 

SECTION BY SECTION DISCUSSION 

Administrative and grammatical changes are proposed throughout the sections to bring the existing rule language into agreement with Texas Register requirements, agency guidelines, and 

guidance provided in the Texas Legislative Council Drafting Manual, November 2004. 

The proposed amendment to §111.203, Definitions, would add 

the definition of "Neighborhood" and "Refuse" and renumber 

subsequent definitions to accommodate the proposed new 

definitions. The proposed new definitions are repeated from 

THSC, §343.002. 

PROPOSED RULES February 10, 2006 31 TexReg 819 
The proposed amendment to § 111.203 would also update the 

name "Texas Natural Resource Conservation Commission" to 

"Texas Commission on Environmental Quality." 

The proposed amendment to §111.209, Exception for Disposal 

Fires, would prohibit the burning of household refuse outdoors 

in areas delineated in Local Government Code, §352.082, by 

adding new subsection (b). Local law enforcement will be the 

primary authority in the enforcement of Local Government Code, 

§352.082. 

The proposed amendment to §111.209 would also authorize by 

rule, as required by THSC, §382.018(b ), the burning of plant 

growth on the property on which it was generated and by the 

owner of the property, or any person authorized by the owner, in 

counties that are not designated as nonattainment and that do 

not contain any part of a city that is part of a designated nonattainment area, by adding proposed new subsection (a)(4)(B). 

THSC, §382.018(c), prohibits the commission from requiring 

prior commission approval for outdoor burning or considering practical alternatives when authorizing burning under this 

rule. To protect human health and safety and environmental 

receptors, proposed subsection (a)(4)(B) would be subjected to 

§111.219(3), (4), (6), and (7), relating to General Requirements 

for Allowable Outdoor Burning. The commission also notes that 

all responsible persons engaged in outdoor burning are subject 

to §111.221, relating to Responsibility for Consequences of 

Outdoor Burning. 

The proposed amendment to §111.209 would also provide for the 

burning of waste plant growth generated from specific residential properties at designated sites located outside of municipalities and within counties with a population of less than 50,000, by 

adding proposed new subsection (a)(4)(C). Under certain conditions, the commission is prohibited from controlling or prohibiting burning under THSC, §382.018(d). To meet these conditions, the burn must be at a designated burn site, located outside 

of a municipality, and within a county with a population of less 

than 50,000. All material burned must consist of plant growth 

generated at specific residential properties for which the site is 

designated. The burn must be supervised by a fire department 

employee acting in the scope of the person's employment, who 

must notify the commission of each supervised burn. To determine if burns under proposed subsection (a)(4 )(C) meet the conditions of THSC, §382.018(d), the proposed rule would require· 

the owner of the site or the owner's authorized agent to post 

the designated site, maintain a description or list of specific residential properties for which the site is generated, ensure that 

all waste burned consists of plant growth generated from these 

properties, and to ensure that a qualified fire department employee supervises each burn at the site. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT .. 

Nina Chamness, Analyst, Strategic Planning and Grants Management Section, determined that, for the first five-year period 

the proposed rules are in effect, no fiscal implications are anticipated for the agency or other units of state government. Although not anticipated to be significant, local governments may 

experience fiscal implications as a result of administration or enforcement of the proposed rules. 

The proposed rulemaking would implement the provisions of HB 

39 and SB 1710. HB 39 altered provisions of the Local Government Code concerning the outdoor burning of domestic waste. 

31 TexReg 820 February 10, 2006 Texas Register 

SB 1710 altered provisions of THSC, §382.018, regarding the 

outdoor burning of plant wastes. 

The proposed rules, in accordance with the requirements of HB 

39, would prohibit the burning of domestic waste in residential 

areas that are in unincorporated areas of a county adjacent to a 

county with a population of 3.3 million or more and where there 

is a planned community of 20,000 acres or more. In these residential areas, domestic waste could not be burned in a neighborhood or on a lot that is less than five acres. 

The proposed rules would also implement the requirements of 

SB 1710, which authorizes outdoor burning of plant material 

in qualifying attainment areas and for residences in qual~fying 

counties if there is a designated burn site. In qualifying attainment areas, plant waste must be burned on the property where 

it was generated and the waste must be burned by the owner of 

the property or an authorized representative. The commission 

cannot require property owners to obtain prior approval of the 

burn or to consider using practical alternatives to burns. In qualifying counties, plant waste can be burned at designated sites 

in counties where the population is less than 50,000, where the 

site is located outside a municipality, where the site serves designated residential properties, and where the burn is supervised 

by a fire department employee. 

Local law enforcement organizations in areas where the outdoor 

burning of household refuse is prohibited under the proposed 

rulemaking could see enforcement costs increase if more resources are required to investigate complaints or incidents. The 

proposed rules regarding outdoor burning of household refuse 

apply to one demographic area of the state. Since the potential 

number of future enforcement incidences is not known, enforcement costs cannot be accurately estimated. 

The fire departments in the areas of the state where designated 

burns can take place have the choice of whether to .supervise 

burns. The number of fire departments that would choose to 

supervise burns is not known at this time. Fire departments participating in outdoor burning at designated sites may decide to 

charge fees for supervising these types of burns. Since employee costs and the method each fire department may choose 

to supervise such burns can vary widely, the amount of costs recovered and revenue generated cannot be estimated. However, 

the fiscal implications, if any, of supervised burns is not anticipated to be significant. 

PUBLIC BENEFITS AND COSTS 

Ms. Chamness also determined that for each year of the first 

five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be 

greater protection of air quality in one demographic area of the 

state where the outdoor burning of refuse will be prohibited. In 

attainment areas, there will be greater flexibility for the outdoor 

burning of plant wastes. 

Individuals in areas of the state where outdoor burning of household refuse will be prohibited under the proposed rules may see 

disposal costs increase if alternatives for the disposal of such 

refuse do not currently exist. However, the cost of this waste 

disposal is not anticipated to be significant. 

Individuals or other entities in attainment areas may see costs 

for disposing of plant waste decrease since the proposed rules 

allow for the burning of such wastes and do not require individuals or other entities to consider practical alternatives to outdoor 

burning of plant wastes. Owners of residential property where 
outdoor burning of plant wastes must be burned at designated 

sites may see disposal costs increase if local fire departments 

collect fees to supervise these burns. The cost decrease or increase of outdoor burning of plant wastes depend on various 

factors and may vary. However, any cost decrease or increase 

is not anticipated to be significant. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micro-businesses under the proposed rulemaking. Plant waste disposal costs for small or micro-businesses in certain attainment 

areas may decrease since the proposed rules do not require 

small or micro-businesses to consider practical alternatives to 

outdoor burning in these cases; however, the cost decrease is 

not anticipated to be significant. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required 

because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed 

rules are in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rule making in light ofthe 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the rulemaking is not subject 

to §2001.0225 because it does not meet the definition of a major 

environmental rule as defined in the Administrative Procedure 

Act. A "major environmental rule" is a rule that is specifically 

intended to protect the environment or reduce risks to human 

health from eiwironmental exposure, and that may adversely affect in a material way the economy, productivity, competition, 

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

or a sector of the state. The primary purpose of the proposed 

rules is to protect the environment through the regulation of the 

outdoor burning of waste and combustible material. The proposed rules will not have an adverse material impact because 

the proposed rules are limited to revisions to the prohibition on 

and exception for disposal fires. The proposed .revisions would: 

1) prohibit the burning of domestic waste in residential areas that 

are in unincorporated areas of a county adjacent to a county with 

a population of 3.3 million or more and where there is a planned 

community of 20,000 acres or more. In these residential areas, 

domestic waste cannot be burned in a neighborhood or on a lot 

that is less than five acres; 2) allow for the burning of waste consisting of plant growth in areas that meet the NMQS and do not 

contain any part of a city that does not meet the NMQS if the 

waste is burned on the property of origin and by the owner of the 

property or any other person authorized by the owner; and 3) allow for the outdoor burning of waste consisting of plant growth 

at a site designated for consolidated burning of waste generated 

from specific residential properties located outside of a municipality and in a county with a population of less than 50,000, if 

supervised at the time of the burning by a fire department employee acting in the scope of the person's employment. 

Furthermore, the proposed rule making does not meet any of the 

four applicability requirements listed in Texas Government Code, 

§2001.0225(a), where the proposed rules: 1) are specifically required by state law, namely THSC, §382.018; 2) do not exceed 

the express requirements of THSC, §382.018; 3) do not exceed 

a requirement of a federal delegation agreement or contract between the state and an agency or representative of the federal 

government to implement a state and federal program; and 4) 

are not an adoption of a rule solely under the general powers of 

the commission. 

Based on this assessment, the proposed rulemaking does not 

constitute a major environmental rule and is not subject to 

the regulatory analysis provisions of Texas Government Code, 

2001.0225. The commission invites public comment on this 

draft regulatory impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the proposed rules and performed 

an assessment of whether the proposed rules constitute a taking 

under Texas Government Code, Chapter 2007. The primary purpose of the proposed rules is to protect the environment through 

the regulation of the outdoor burning of waste. 

Promulgation and enforcement of these proposed rules would 

be neither a statutory nor a constitutional taking of private real 

property. Specifically, the subject proposed regulations do not 

affect a landowner's rights in private real property because this 

rulemaking does not burden (constitutionally}, nor restrict or limit 

the owner's right to property and reduce its value by 25% or 

more beyond that which would otherwise exist in the absence 

of the regulations. The proposed rules are limited to revisions 

to the prohibition on and exception for disposal fires. The proposed revisions would: 1) prohibit the burning of domestic waste 

in residential areas that are in unincorporated areas of a county 

adjacent to a county with a population of 3.3 million or more and 

where there is a planned community of 20,000 acres or more. 

In these residential areas, domestic waste cannot be burned in 

a neighborhood or on a lot that is less than five acres; 2) allow 

for the burning of waste consisting of plant growth in areas that 

meet the NMQS and do not contain any part of a city that does 

not meet the NMQS if the waste is burned on the property of 

origin and by the owner of the property or any other person authorized by the owner; and 3) allow for the outdoor burning of 

waste consisting of plant growth at a site designated for consolidated burning of waste generated from specific residential 

properties located outside of a municipality and in a county with 

a population of less than 50,000, if supervised at the time of the 

bwrning by a fire department employee acting in the scope of the 

person's employment. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking and found 

that the proposal is subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination 

Act, Texas Natural Resources Code, §§33.201 et seq., and 

therefore must be consistent with all applicable CMP goals 

and policies. The commission conducted a consistency determination for the proposed rules in accordance with Coastal 

Coordination Act Implementation Rules, 31 TAC §505.22 and 

found that the proposed rulemaking is consistent with the 

applicable CMP goals and policies. 

The CMP goals applicable to the proposed rules include: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to 

ensure sound management of all coastal resources by allowing for compatible economic development and multiple human 

uses of the coastal zone; to ensure and enhance planned public 

access to and enjoyment of the coastal zone in a manner that 

is compatible with private property rights and other uses of the 

coastal zone; and to balance these competing interests. 

PROPOSED RULES February 10, 2006 31 TexReg 821 
The specific CMP policy applicable to the proposed rules requires that commission rules under THSC, Chapter 382, governing emissions of air pollutants, shall comply with regulations 

in 40 Code of Federal Regulations, adopted in accordance with 

federal Clean Air Act, 42 United States Code, §§7401, et seq., 

to protect and enhance air quality in the coastal area so as to 

protect coastal natural resources areas and promote the public 

health, safety, and welfare. 

Promulgation and enforcement of the rules will not violate or exceed any standards identified in the applicable CMP goals and 

policies. The proposed rules are consistent with these CMP 

goals and policies. The rules do not create or have a direct or 

significant adverse effect on any coastal natural resource areas. 

Written comments on the consistency of this rulemaking may be 

submitted to the contact person at the address listed under the 

SUBMITTAL OF COMMENTS section of this preamble. 

ANNOUNCEMENT OF HEARING 

A public hearing on this proposal will be held in Austin on Tuesday, March 7, 2006, at 10:00 a.m., at the Texas Commission on 

Environmental Quality complex located at 12100 Park 35 Circle, Building B, Room 201A. The hearing will be structured for 

the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the 

hearing; however, an agency staff member will be available to 

discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact Joyce Spencer, Office of Legal Services, 

at (512) 239-5017. Requests should be made as far in advance 

as possible. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Joyce Spencer, MC 205, Texas 

Register Team, Office of Legal Services, P.O. Box 13087, Austin, 

Texas 78711-3087 or faxed to (512) 239-4808. All comments 

should reference Rule Project Number 2005-041-111-CE. Comments must be received by 5:00p.m., Monday, March 13, 2006. 

Copies of the proposed rules can be obtained from the commission's Web site at http:llwww.tceq.state.tx.uslnav/ru/eslpropose_adopt.html. For further information, please contact Ronnie 

Kramer, Field Operations Division, at (512) 239-0194. 

STATUTORY AUTHORITY 

The amendments are proposed under THSC, §382.002, relating 

to Policy and Purpose, Texas Clean Air Act (TCAA), §382.011, 

which authorizes the commission to administer the requirements of the TCAA; §382.012, which provides the commission 

the authority to develop a comprehensive plan for the state's 

air; §382.017, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the TCAA; §382.018, 

which authorizes the commission to control outdoor burning; 

and §382.085, which prohibits unauthorized air emissions; and 

Texas Water Code, §5.1 03 and §5.1 05, which authorizes the 

commission to adopt rules. 

The proposed amendments implement THSC, §§382.002, 

382.011, 382.017, and 382.018. 

§111.203. Definitions. 

Unless specifically defined in the Texas Clean Air Act (TCAA) or in 

the rules of the Texas [Nattiml Reseliree Gonservation] Commission on 

31 TexReg 822 February 10, 2006 Texas Register 

Environmental Quality (commission), the tenus used by the commission have the meanings commonly ascribed to them in the field of air 

pollution control. In addition to the terms that [wftiefl] are defined by 

the TCAA, the following terms, when used in this chapter, [t!ltaU] have 

the following meanings, unless the context clearly indicates otherwise. 

(l) (No change.) 

(2) Landclearing operation--The uprooting, cutting, or 

clearing of vegetation in connection with conversion for the construction of buildings, rights-of-way, residential, commercial, or industrial 

development, or the clearing of vegetation to enhance property value, 

access, or production. It does not include the maintenance burning 

of on-site property wastes such as fallen limbs, branches, or leaves, 

or other wastes from routine property clean-up activities, nor does it 

include burning following clearing for ecological restoration. 

ill Neighborhood--A platted subdivision or property contiguous to and within 300 feet of a platted subdivision. 

ill [~] Practical alternative--An economically, technologically, ecologically, and logistically viable option. 

ill [(41] Prescribed burn--The controlled application of 

fire to naturally occurring [ narurally occurring] vegetative fuels under 

specified environmental conditions and confined to a predetermined 

area, following appropriate planning and precautionary measures. 

f§2 Refuse--Garbage, rubbish, paper, and other decayable 

and nondecayable waste, including vegetable matter and animal and 

fish carcasses. 

fD. [f-B] Structure containing sensitive receptor(s)--A 

man-made structure utilized for human residence or business, the 

containment of livestock, or the housing of sensitive live vegetation. 

The term "man-made structure" does not include such things as range 

fences, roads, bridges, hunting blinds, or facilities used solely for 

the storage of hay or other livestock feeds. The term "sensitive live 

vegetation" is defined as vegetation that [wffieh] has potential to be 

damaged by smoke and heat, examples of which include, but are not 

limited to, [~] nursery production, mushroom cultivation, pharmaceutical plant production, or laboratory experiments involving plants. 

ffi [~] Sunrise/Sunset--Official sunrise/sunset as set 

forth in the United States Naval Observatory tables available from 

National Weather Service offices. 

f22 [t+)] Wildland--Uncultivated land other than fallow, 

land minimally influenced by human activity, and land maintained 

for biodiversity, wildlife forage production, protective plant cover, or 

wildlife habitat. 

§111.209. Exception for Disposal Fires. 

~ Except as provided in subsection (b) of this section, outdoor [GtitOOeF] burning shall be authorized for the following; [,] 

(I) domestic [Domestic] waste burning at a property designed for and used exclusively as a private residence, housing not 

more than three families, when collection of domestic waste is not provided or authorized by the local governmental entity having jurisdiction, and when the waste is generated only from that property. Provision of waste collection refers to collection at the premises where the 

waste is generated. The term "domestic waste" is defined in §101.1 

of this title (relating to Definitions). Wastes normally resulting from 

the function of life within a residence that can be burned include such 

things as kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch 

trimmings. Examples of wastes not considered domestic waste that 

[wffieh] cannot be burned, include such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances1 H 
(2) diseased [Diseased] animal carcass burning when burning is the most effective means of controlling the spread of disease; ["] 

(3) veterinarians [Veteriaari!lfls] in accordance with Texas 

Occupations Code, §801.361, Disposal of Animal Remains;[~] 

(4) on-site [Gfl-site] burning of trees, brush, and other plant 

growth~ 

fA} for right-of-way maintenance, landclearing operations, and maintenance along water canals when no practical alternative 

to burning exists and when the materials are generated only from that 

property. Stru~tures containing sensitive receptors must not be negatively affected by the bum. Such burning shall be subject to the requirements of §111.219 of this title (relating to General Requirements 

for Allowable Outdoor Burning). When possible, notification of intent 

to burn should be made to the appropriate commission regional office 

prior to the proposed bum. For a single project entailing multiple days 

of burning, an initial notice delineating the scope of the burn is sufficient if the scope does not constitute circumvention of the rule for a 

continual burning situation. Commission [aetifieatioa &] approval is 

not required; ["] 

@)_ in a county that is not part of a designated nonattainment area and that does not contain any part of a municipality that 

extends into a designated nonattainment area; and on the property on 

which it was generated and by the owner of the property or any other 

person authorized by the owner. Such burning shall be subject to the 

requirements of §111.219(3), (4), (6), and (7) of this title. Commission 

approval is not required; or 

(9 at a site designated for consolidated burning of 

waste generated from specific residential properties. A designated site 

must be located outside of a municipality and within a county with a 

population of less than 50,000. The owner of the designated site or the 

owner's authorized agent shall: 

fll post at all entrances to the site a placard measuring a minimum of 48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE -No 

burning of any material is allowed except for trees, brush, grass, leaves, 

branch trimmings, or other plant growth generated from specific residential properties for which this site is designated. All burning must 

be supervised by a fire department employee. For more information 

call {PHONE NUMBER OF OWNER OR AUTHORIZED AGENT}." 

The placard(s) must be clearly visible and legible at all times; 

@ designate specific residential properties for consolidated burning at the designated site; 

[jjjJ_ maintain a record of the designated residential 

properties. The record must contain the description of a platted subdivision and/or a list of each property address and the name of each property owner. The description must be made available to commission or 

local air pollution control agency staff within 48 hours. if requested; 

(j:j_ ensure that all waste burned at the designated 

site consists of trees, brush. grass. leaves, branch trimmings, or other 

plant growth; 

M ensure that all such waste was generated at specific residential properties for which the site is designated; and 

D!.!J. ensure that all burning at the designated site is 

directly supervised by an employee of a fire department who is part of 

the fire protection personneL as defined by Texas Government Code, 

§419.021, and is acting in the scope of the person's employment. The 

fire department employee shall notify the appropriate commission regional office with a telephone or electronic facsimile notice 24 hours in 

advance of any scheduled supervised bum. The commission shall provide the employee with information on practical alternatives to burning. Commission approval is not required; 

(5) crop [Grep] residue burning for agricultural management purposes when no practical alternative exists. Such burning shall 

be subject to the requirements of§ 111.219 of this title[,] and structures containing sensitive receptors must not be negatively affected by 

the bum. When possible, notification of the intent to bum should be 

made to the appropriate commission regional office prior to the proposed bum. Commission notification or approval is not required. This 

section is not applicable to crop residue burning covered by an administrative order; and ["] 

(6) brush [Bmsh], trees, and other plant growth causing a 

detrimental public health and safety condition [may he] burned by a 

county or municipal government at a site it owns upon receiving site 

and bum approval from the executive director. Such a bum can only be 

authorized when there is no practical alternative, and it may be done 

no more frequently than once every two months. Such burns cannot 

be conducted at municipal solid waste landfills unless authorized under§ 111.215 of this title (relating to Executive Director Approval of 

Otherwise Prohibited Outdoor Burning), and shall be subject to the requirements of§ 111.219 of this title. 

(Q) No person may cause, suffer, allow, or permit the burning 

of household refuse on a lot that is smaller than five acres or located in 

a neighborhood and in an unincorporated area of a county: 

ill that is adjacent to a county with a population of3 .3 million or more; and 

ill in which a planned community is located that has 

20,000 or more acres ofland, that was originally established under the 

Urban Growth and New Community Development Act of 1970 (42 

United States Code, §§4501 et seq.), and that is subject to restrictive 

covenants containing ad valorem or annual variable budget-based 

assessments on real property. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on January 27, 

2006. 

TRD-200600452 

Stephanie Bergeron Perdue 

Acting Deputy Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: March 12, 2006 

For further information, please call: (512) 239-5017 

• • 

CHAPTER 335. RIAL SOLID WASTE 

AND MUNICIPAL HAZ OUS WASTE 

SUBCHAPTER H. ST 

MANAGEMENT OF SP CIFIC WASTES AND 

SPECIFIC TYPES OF F CILITIES 

30 TAC §335.261 

The Texas Commission on E 

commission) proposes an arne 

BACKGROUND AND SUMM 

FOR THE PROPOSED RULE 

vironmental Quality (TCEQ or 

dment to §335.261. 

Y OF THE FACTUAL BASIS 

PROPOSED RULES February 10, 2006 31 TexReg 823 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

W-2 

W-3 

W-4 

W-5 

W-6 

W-7 

W-8 

W-9 

W-10 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Phillip J. Ford, Brazos River Authority 

Ronnie Schultz, Galveston County Health District 

Patricia Ann Harris 

Duane Freeman, City of Lufkin Fire Department 

Brandt Mannchen, Sierra Club, Houston Regional Group 

Ivett Teczely and Tom Patel 

Robert R. (Bob) Turner, Earthmoving Contractors 

Association of Texas 

Ray Averitt, TXU Electric Delivery 

Thomas Diggs, United States En\tironmental Protection 

Agency 

Mary Williams 
~ Brazos River Authority 

March 1 , 2006 

Ms. Joyce Spencer 

Texas Register Team, MC-205 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

Re: Proposed Amendment of 30 TAC §111.209 

Dear Ms. Spencer: 

QUALITY • CONSERVATION • SERVICE 

RECEIVED 

11AR 0 3 2006 

RtGUltJJOiiS OtVElOPf~E~!T SECTION 

Recently the TCEQ published revised Outdoor Burning Rules for Rule Project No. 2005-041-

111-CE. Overall, we at the Brazos River Authority are supportive of the proposed rule changes; 

however, we have one concern regarding the requirement in §111.209(a)(4)(C)(i) and 

§111.209(a)(4)(C)(vi) for burning to be "directly supervised by an employee of a fire department 

who is part of the fire protection personnel, as defined by Texas Government Code, §419.021, 

and is acting in the scope of the person's employment." 

We feel that the requirement for the supervising fire personnel to be a permanent, full-time fire 

department employee does not recognize the considerable skill and training that volunteer 

firefigHters have in fighting brush fires, grass fires and wildfires. This requirement eliminates 

most of rural Texas, where local governments rely solely upon volunteer fire departments for fire 

protection, from taking advantage of the revised outdoor burning rules. 

At the Authority's property in Palo Pinto County, where consolidated brush burning from 

residential properties is performed, the primary mode of fire protection is provided by the 

Possum Kingdom Volunteer Fire Department. The Chief of the Possum Kingdom Volunteer Fire 

Department, Ronald Ranft, has 160 hours of general fire training through Texas A&M University, 

120 hours of wildland firefighting training through the Texas Forest Service, 120 hours of 

wildland firefighting training through the United States Forest Service, 8 hours of hazardous 

materials training, and is also a state certified Emergency Medical Technician. Mr. Ranft has 

also been a member of the Palo Pinto County Wildland Strike Team for 10 years. In contrast to 

the vast wildfire experience of volunteer firefighters, most municipal firefighter's training focuses 

primarily on structural firefighting. 

The Brazos River Authority respectfully requests your assistance in making these revised rules 

more accessible to rural Texas. 

Sincerely, 

fl:;tt,d,P 

General Manager/CEO 

PJF:rw 

R:\Upper Basin\Users\Tiffany Morgan\PK\OutdoorBurning02-24-06.doc 

4600 Cobbs Drive • P.O. Box 7555 • Waco, Texas 76714-7555 

254-761-3100 • FAX 254-761-3215 
p.2 

Mar 13 06 04: 13p 

GALVF:STON COUNTY HEALTH DISTRICT 

4C's Clillic ... , l 1ul>li<• I kuftlt f>ro;:ram.~. (;11/l•esto/1 /~. Af.,\: 

lhtrlnn "Mark" (iuodl)'. MD, Ml'll 

Chi,,l'r;w,·utivc ()ilJccr & llc~llh i\uth<•rlly 

March 13, 2006 

Ms. Joyce Spencer 

Texas Register Team (MC205) 

Oftice ofLegal Services 

Texas Commission on Environmental Quality 

PO Rox 13087 

Austin, Texas 7g711-3087 

Dear Ms. Spencer: 

www.1,!rhcl~o•'1! 

W~mcn J. llull~•ltllll 

< :h1cf t'ltll:ralint~ Ollk .. ,r 

Ronnie Schultz 

Dii\'.Clt)f of l~nvfrcu'm"~'llal I J,~ullh f'•·o~r.um:o. 

RECEIVED 8 

MAR 1 3 2006 

RtGUli:J'IONS DEVtlOrtiENI SECT:m: 

RF,: Rule PrQject Number 2005-041-11 1-CR 

On behalf of the Galveston County Health District, I respectfully submit comments concerning the pr(1posed 

revisions to 30 Ti\C Chopter 111. The rule project nun1ber is 2005-041-11l·CE. 

• Within the propo~ed revisions. the rule authorizes the burning ofwastc consisting of plant growth in 

areaS that meet the national ambient air quality standards (NAAQS) and do not contain any part of a city 

that docs not meet the Ni\AQS if the waste is burned on property of origin and hy the owner of the 

property or any other person authori:zed by the owner. What about the burning of plant material in nonattainment areas on property of origin by the owner of the property or any other person authorized by the 

owner? 

Thank you in advance for your attention to this motter. 

Ronnie Schultz 

Director of Environmental Tlcalth Programs 

Galveston County Health District 

P.O. llOX 9J'> • 1.1\ MA RQllF:, 'rEX AS 77568 • (40?) 938-7221 
March 8, 2006 

To Whom It May Concern: 

Re: Article in Lufkin Daily News-March 6, 2006 

"Austin to hear testimony on burning" 

RECEIVED 

MI-\R 1 0 2006 

REGUli\TIONS DE~Ll0fi1.:::NI SEC1\0il 

f::\ 

to the pollutants 

With my 

contained 

allergies and 

in the 

my 

smoke 

husband's 

when 

emphysema, 

our neighbors 

we 

or 

do 

folks 

NOT 

down 

need to 

the 

be 

street 

exposed 

bum 

~ 

their pine needles, leaves, trash or etc. in our area. A couple of months ago when we 

called police to tell our neighbors to put out the fire, they were burning plastic car seats, 

which was releasing all sorts of harmful gases that we were breathing. 

When folks burn•, the smoke comes into our home. Even though the windows are 

painted shut, the smoke still gets into our home, making us sick, On several occasions, 

I've had to leave my own house! ! I have also had to see my Dr. This is not right and 

should not happen. With so much lung cancer in this area, burning in the city limits of 

Lufkin should be a "no, no." 

These are my comments on allowing Lufkin to bum within the city limits. I vote 

NO! 

Sincerely, 

V~cia Ann Harris 

518 Humason Ave. 

Lufkin, Texas 75901-2478 
Rule Project Number 200~ +1-111-CE Page 1 ofl 

Ronnie Kramer- Rule Project Number 2005-041-111-CE 

From: 11Duane Freeman11 <duane@cityoflufkin.com> 

To: <rk.ramer@tceq.state.tx.us> 

Date: 3/13/2006 6:06PM 

Subject: Rule Project Number 2005-041-111-CE 

such 

Mr. Kramer 

burning 

............. 

shall be 

The 

subject 

proposed 

to the 

amendments 

requirements 

to 

of 

111.209 

111.219(3), 

(a) (4) 

(4 ), 

(B) 

(6), 

indicate 

and (7) o 8 

the title. Specifically (6) (A) states that burning shall commence no earlier than one 

hour after sunrise and be completed on the same day not later than one hour before 

sunset. 

In today's world where many people work long hours, I feel the requirement to 

complete the burn one hour before sunset is too restrictive. Why not allow the 

homeowner to bum after they get home from work and into the evening hours? 

Generally, the wind is calmer and the humidity is higher later in the evening, 

therefore presenting less risk of the fire getting out of control. The same logic 

applies to contractors burning for land clearing operations. Very early in the 

morning, the wind is calm and the humidity is higher and there would be less risk or 

an out of control fire, if the contractor could begin much earlier that one hour before 

sunrise. The Texas Forest Service actually encourages burning to commence 

earlier than the rules allow. 

Thanks for the opportunity to comment. Sincerely ........ . 

t> ... ~,.... 

Fire Marshal 

City of Lufkin, TX 

936-633-0307 

936-633-0202 Fax 

file://C:\WINNT\Temp\GW}00001.HTM 3/14/2006 
SIERRA 

CLUB 

FOUNDED 1892 

February 6, 2006 

Ms. Joyce Spencer 

Texas Register Team 

Office of Legal Services 

MC205 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Ms. Spencer, 

Houston Regional Group 

P: 0. Bex 3021 

Ho:usten, Texas 77253-3021 

713-895 9~9 

http: I ltexas.sierraclub.org /houston/ 

'J:'F B 0 q 2006 

, , r ,JNT SECTION G 

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

(HSC) regarding the Texas Commission on Environmental Quality's (TCEQ) 

proposed amendments to 111.203 and 111.209. 

The HSC understands that TCEQ is implementing statutory requirements passed 

by the Texas Legislature. 

The HSC supports the proposed change to 111.203 and 111.209 which makes 

the burning of household refuse a Class C misdemeanor. Unfortunately, the way 

the bill (HB 39) is worded, TCEQ must apply this rule only to areas near The 

Woodlands. Therefore other areas will not get commensurate protection from air 

pollution due to the outdoor burning of household refuse. 

TCEQ also proposes changing 111.203 and 111.209, due to HB 1710, which 

requires that it authorize outdoor burning of waste consisting of "plant growth" in 

areas that meet the National Ambient Air Quality Standards (NAAQS) and do not 

contain a part of any city that does not meet the NAAQS. The rule also prohibits 

TCEQ from requiring prior approval of the burning unless no practical alternative 

exists. The HSC does not support implementation of this rule. We believe that 

approval by TCEQ of outdoor burning provides the public protection and 

information. 

The HSC recommends that the phrase "plant growth" be defined in 111.203 for 

the implementation of rule 111.209. Does a piece of lumber (a 2 x 4, for 

instance), meet the definition of "plant growth"? TCEQ should strictly define this 

phrase so that there are no unintended legal surprises when the rule is tested in 

court. 

"When we tty to pick out anything by itself, we fmd it hitched to everything else in the universe." john Mftir 

Printed on 100% Kenaf tree free paper 
The HSC supports the requirements of 111.209(a)(4)(C)(i)-(vi), (posting with a 

placard at all entrances; designation of specific residential properties for 

consolidated burning; maintaining a record of those designated properties; 

ensuring only plant growth is burned; ensuring that plant growth waste was 

generated at designated properties; ensuring that the designated site is 

supeNised by a fire department employee) as reasonable things for a owner of 

the designated site or the owner's authorized agent to do. 

The HSC appreciates this opportunity to comment. Thank you. 

Sincerely, 

Brandt Mannchen V ~~ "'_~ Chair, Air Quality Committee 

Houston Regional Group of the Sierra Club 

Lone Star Chapter 

5431 Carew 

Hou~on,Texas77096 

713-664-5962 

brandtshnfbt@juno.com 

2 
Mar 06 06 01:03p Geraldine BradFord (936) 634-7708 p.2 ----------~------

"Rule Project Number 2005-041-111-CE" 

My name is Ivett Teczely. I live in Lufkin since 2001. 8 

My husband and I moved to a new location in Lufkin and to my 

horror I realized that people are burning!!!!! Constantly, daily, 

morning, evening any time. The smoke is unbearable, it comes into 

the house it stays. If I go for a walk, I smell of smoke and my eyes 

are burning for hours. We can not enjoy our backyard because of 

the smoke. 

We have almost 4 acre to take care of and it is within city limits. 

We clean our yard, bag everything up and the city takes care of the 

rest. 

Why do I have to smell the smoke all the time? It makes me feel 

sick and it makes me feel very angry. 

I am tired of calling the police every time when I smell the sn1oke. 

I would like to make my point that outdoor burning is bothering 

me, just like many others here in Lufkin and I would be very happy 

to see that the statewide ban on burning within city limits were 

enforced (with no exceptions) in Lufkin. I - _..., ; ~-cv- [§ ()(1:1:--- ~ -r~ 

Ivett Teczely and Tom Patel 

909 Hylane 

Lufkin, TX 75904 
BOB TURNER 

RURAL ISSUES CONSULTANT 

40 CR 340 - VOSS, TX 76888 

Cell 325.669.1717 

RECEIVED 

MAR 0 ~, 2006 

REGULA DONS :DEV£LDf,~:EWr $litTIO~ 

Voss Office 

325.357.4421 

325.357.4436 Fax 

bobturner@web-access.net 

Austin Office 

512.382.7581 

Rturner33@Austin. rr .com 

March 7th, 2006 

For Presentation at TCEQ Public Hearing in Austin, Texas 

Re: Rule Project No. 2005-041-111-CE 

My name is Robert (Bob) Turner, and provide contract governmental relations 

consultation and advice for Eartlunoving Contractors Association ofTexas (ECAT). 

I am presenting this testimony on the associations behalf today. 

ECAT is made up of members from all over the State of Texas, all of whom are 

contractors, who specialize in heavy dirt work, with a major portion of their work in the 

area of agriculture and natural resource conservation type work. Our contractors do 

mechanical brush control as it relates to improving pasture conditions, and primarily as it 

relates to increasing and conserving both ground water and surface water. As we all 

know, the issue ofwater conservation is of major concern to the State ofTexas at this 

time, and will increase in it's role of importance as the population of our state continues 

to increase. 

Our members have MAJOR CONCERNS and MAJOR INTERESTS in how we dispose 

of the brush that we move in our business. Burning in most of our applications is the 

ONLY practical method of dealing with this issue. Therefore, it concerns us when there 

are discussions at the state's environmental agency that could possibly limit, or put 

unrealistic controls on this best practice method of handling this waste matter. 

Realizing that the rules in discussion today make very little change in agricultural 

application of burning, we still wanted to express and STRESS our concerns and fears 

that this could be leading to unacceptable levels of control by the agency at a future time. 

Also realize that these proposed rules do not impact another one of agriculture's methods 

of range management, and thus, water and range conservation, and that is what is known 

as "prescribed burning. The ability to continue this, yet another best practice method is 

most important to the agricultural industry as a whole. 

As an association of professionals in this field , we offer our services to TCEQ when you 

are working on rules concerning agricultural burning, of all types. It would be a pleasure 

8 
for our members to assist you when called upon. Some of these contractors have been in 

their business for 50 or more years, and are looked upon as "the authority" on how to best 

deal with agricultural refuse in the most ecologically acceptable manner. 

Thanks for your interest and attention to this written testimony. ECAT and our 

membership looks forward to working hand in hand with TCEQ in casting rules which 

are effective, yet affordable and livable by the industry. 

Robert R (Bob) Turner 

Governmental Relations and Consultant 

Earthmoving Contractors Association ofTexas 
Mar-13-2006 05:04pm From-EHS ONCO~ 2144864399 T-289 P.002/003 F-054 

~'8 IA.U 

.,.A'S!' Electric Delivery 

TXU Electric Delivery 

500 N. Akard Street 

Ray Averitt 

Dire~;tor of Environment, Safety & lndus\rial Healtl1 

Dill las, TX 75201 

Tel: 214 <166 2815 

Filx:214 486 4399 

ray_avcritt@txued.com 

March 13,2006 RECEIVED 

MAR 13 2006 

REGUlMIU\\~ u~~HU~l.\E~1 SECI\ON 8 Joyce Spencer 

Texas Commission on Environmental Quality 

Texas Register Team, Office ofLegal Services 

Mail Code 205 

P.O. Box 13087 

Austin, Texas 78711-3087 

RE: Rule Project Number 2005~041-111-CE 

Dear Ms. Spencer: 

TXU appreciates the opportunity to comment on the Texas Commission on Envirorunental 

Quality (TCEQ's) Outdoor Burning Proposed Rule. These conunents are submitted on behalf 

ofTXU Electric Delivery, which is TXU's regulated electric distribution and transmission 

business. TXU Electric Delivery's operations are the largest in Texas, providing power to 2.9 

million delivery points over more than 98,000 miles of distribution and 14,000 miles of 

transmission lines. · 

TXU Electric Delivery (hereinafter referred to as TXU) supports TCEQ efforts to improve the 

clarity of the rule language. TXU supports the rule as proposed and emphasizes the 

importance of two sections contained in the proposed rule: 1) TXU supports the additional 

flexibility in specific circumstances and/or operations that the applicability of 

§ lll.209(a)(4)(A)-(B) provides for ''on-site burning" for "right-ofway (ROW) management" 

and 2) TXU supports allowing a "contractual easement document" to be acceptable 

documentation that an individual or company is an "authorized agent". 

Section lll.209(a)(4)(A)-(B) of the proposed rule allows outdoor buming regardless of 

whether a practical altemative to burning exists. TXU occasionally utilizes the existing rules 

when it is necessary to bum large amounts of wood. For example, cleanup efforts from 

Hurricane Katrina and Rita resulted in large amoWltS of wood and brush~ some in remote areas 

inaccessible by most vehicles. The ability to conduct outdoor bl.Uning without having to 

provide evidence of other practical alternatives would greatly expedite clean-up and 

management of ROW in circumstances such as these. 

TXU supports the inclusion of an "authorized agent" in Section 111.209(a)(4)(B). TXU 

maintains lines and ROWs over a large part of Texas. In some instances, TXU may not be the 

actual propeny owner, but may have a contractual easement agreement with the owner to 

maintain and manage the materials. 
Mar-13-2006 05:04pm From-EHS ONCO~ 2144864399 T-289 P.003/003 F-054 

If you have any questions or need additional information, please do not hesitate to contact me. 

Sincerely, 

;Jwif~ Ray Averitt 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

Mr. Russ Kimble 

General Law Division 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

March 10, 2006 

RECEIVED 

Texas Commission on Environmental Quality MAR 1 ~- 2005 

P.O. Box 13087 

Austin, TX 78711-3 087 REGUlAT~!S DEVElO,iENT SECTib 

Dear Mr. Kimble: ~ 

I received your letter to Rebecca Weber, dated January 25,2006, in which you invite the 

public to submit comments on revisions to 30 TAC Chapter 111.203 and 111.209, Subchapter B, 

Outdoor Burning, and state the Commission's intent to submit such provisions to EPA Region 6 

as revisions to Texas' State Implementation Plan (SIP). 

I would like to bring to your attention thut the Texas SIP does not include 

Sections 111 , 203 to 111 .221 , but rather an earlier version of rules governing outdoor burning, 

which includes Sections 111.101, 111.103, 111.1 05, and I 11.107 as approved by EPA on 

January 18, 1994 (59 FR 02534). Although EPA took a direct final action, on October 9, 1999, 

(64 FR 57983), to approve revisions to Texas' open burning regulations .• we received a relevant 

adverse comment in the 1999 action and therefore withdrew the direct final rulemaking on 

December 1 7, 1999 ( 64 FR 70592). We arc now in the process of revjewing that action. 

From an initial comparison ofTexas' tevisions to Sections 111.203 and 111.209 (and 

Sections 111.215 and 111.219, as referenced within 111.209), to current SIP-approved rules (and 

those under consideration for approval by EPA in the aforementioned action), I feel there is a 

potential that the open burning rules might be relaxed in some areas. Open burning emissions 

result in not only direct emissions of PM, but also include other pollutants. such as NOx, VOCs 

and S02 which can contribute to the tonnation of secondary PM and ozone. Therefore, any 

relaxation to rules that could result in an increase in emissions that could make it more diilicult 

for areas within Texas to attain, or to continue to attain, the National Ambient Air Quality 

Standards (NAAQS) is of legal concern. 

Our principal focus in reviewing a possible SIP revision request would be whether the 

proposed revisions to the open burning rules present in the Texas SIP would be in compliance 

with Section 110(1) ofthe Clean Air Act (CAA), which states: 

"Each revision to an implementation plan submitted by a State under this Act 

shall be adopted by such State after reasonable notice and public hearing. The 

Administrator shall not approve a revision of a plan if the revision would interfere 

with any applicable requirement concerning attainment and reasonable further 

progress (as defined in section 171 ), or any other applicable requirement of this 

Act." 

lntsrnet AQdn~ss (UAL) • http://www.epa.gov 

Roc:yc:lod/Roc:yc:l.ablo • Prlnled with V&g&lable 011 Based In~ on Recycled Paper (Minimum .25"A. Poslconsumer) 
-2-

1n 1975, the Supreme Court, in Train v. NRDC, 421 U.S. 60 (1975), articulated the 

principle that EPA is authoriz~;:d undt:r lht: CAA lo approvt: r~laxalions of SIP requirements as 

long as the relaxations do not interfere with timely attainment or subsequent maintenance of the 

NAAQS or any other CAA requirement. 

A submittal requesting approval of SIP revisions must therefore demonstrate that the SIP 

revisions do not interfere with the attainment or maintenance of the NAAQS, violate the 

Prevention of Significant Deterioration increments, or any other applicable requirements under 

the CAA, or in any way adversely af-Tect lhe existing air quality in T~x~. This demonstration 

must show any relaxatic>ns of the existing SIP requirements will not result in interference with 

the requirements of the CAA. In addition, the State must provide an opportunity for notice and 

public comment. To that end, we refer you to past EPA Federal Register Actions und guidance 

memorandum on the above that we will be happy to provide you. We have also enclosed a copy 

of EPA's latest draft guidance, dated June 6, 2005, "Demonstrating Noninterference Under 

Section 11 0(1) ofthe Clean Air Act When Revising a State Implementation Plan." 

As stated in the guidance. with respect to attainmen~ maintenance and RFP, and all other 

applicable requirements, the Agency interprets section 11 0(1) such that areas generally have two 

options available to demonstrate no1linte1ference fol" the affected poUutant(s). These options are, 

1) substitution of one measure by another with equivalent or greater emissions reductions/air 

quality benefit; or 2) an air quality analysis showing that removing the meac;ure will not interfere 

with other applicable requirements (i.e., without a substitute measure). 

Lastly, CAA Section 193, "General Savings Clause," requires that control measures in 

effect or required to be adopted in nonattainment areas by an order, settlement agreement, or plan 

in effect before the 1990 CAA amendments 1n nonattallmlC.nt areas may nol be removed or 

modified absent a SIP revision that ensures equivalent or greater emissions reductions. 

Therefore, please demonstrate to us how revisions to Sections 111.203 and 111.209 Em.d 

Sections 111.101, 111.103, 111.105, and 111.107 show that such revisions would not interfere 

with any applicable requirements concerning attainm_ent. RFP or any other applicable 

requirement under the CAA. 

Thank you for providing us the opportunity to provide comments on this proposal. If you 

have any q\.testions or concerns, please call me at 214-665-31 02, or Joe Kord7.i of my staff, at 

214-665-7186. 

E11closure 

cc: Ms. Joyce Spencer 

~lyyours, 

Y·/~· 

Thomas Diggs, Chi~f 

Air Planning Section 

INDEX OF ORAL TESTIMONY 

March 7, 2006, Austin, Texas, Texas Commission on Environmental Quality 

Reference Number 

0-1 

0-2 

0-3 

Submitted by 

John Ockels, Texas Illegal Dumping Resource Center 

Jay Dyer, Texas Association of Builders 

Bob Turner, Earthmoving Contractors Association of Texas 
BEFORE THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

In the Matter of: ) 

) 

PROPOSED REVISIONS TO 30 TAC CHAPTER 111) 

AND TO THE STATE IMPLEMENTATION PLAN ) 

) 

PUBLIC HEARING ) 

Room 201-A 

Building B 

) 

12100 Park 35 Circle 

Austin, Texas 

Tuesday, 

March 7, 2006 

The above-entitled matter came on for public 

hearing, pursuant to notice, at 10:00 a.m. 

PRESIDING: 

JOYCE SPENCER, TCEQ, General Law Division, 

Texas Register Team 

ALSO PRESENT FOR TCEQ: 

MICHAEL BLINN, Litigation Division 

PINAR DOGRU, Environmental Law Division 

RONNIE KRAMER, Field Operations Division 

ON THE RECORD REPORTING 

(512) 450-0342 ORIGINAl 
I N D E X 

Agenda Item 

Welcome and Introductions 3 

-Joyce Spencer, General Law Division 

Witnesses: 

John Ockels, Texas Illegal Dumping Resource Center 4 

Jay Dyer, Director of Regulatory Affairs, Texas 6 

Builders Association 

Bob Turner, Earth Moving Construction Association 10 

of Texas 

Adjourn 12 

-Joyce Spencer 

ON THE RECORD REPORTING 

(512) 450-0342 

2 
3 

1 P R 0 C E E D I N G S 

2 MS. SPENCER: Good morning. I would like to 

3 welcome everyone to this hearing being conducted by the 

4 Texas Commission on Environmental Quality. My name is 

5 Joyce Spencer, and I am with the Texas Register Team of 

6 the General Law Division. I would also like to introduce 

7 Ronnie Kramer, Field Operations Division, Pinar Dogru, the 

8 Environmental Law Division, and Michael Blinn, Litigation 

9 Division. 

10 We are here this morning to receive oral and/or 

11 written comments on proposed revisions to 30 TAC Chapter 

12 111, Control of Air Pollution from Visible Emissions and 

13 Particulate Matter, and corresponding revisions to the 

14 state implementation plan. If you intend to present oral 

15 testimony and haven't already registered, please sign in 

16 now. Copies of the proposal from the issue of The Texas 

17 Register are available at the registration table. 

18 For those of you who do not have access to the 

19 internet to download the rules, there are sheets available 

20 at the registration table for you to fill in your name and 

21 address, and we will mail a copy of the rules to you once 

22 the rules have been adopted by the Commission. We will 

23 continue to accept written comments on this proposal until 

24 5:00 p.m. Monday, March 13, 2006. 

25 This hearing is structured strictly for the 

ON THE RECORD REPORTING 

(512) 450-0342 
4 

1 receipt of oral or written comments. Open discussion 

2 during the hearing is not allowed; however, if anyone has 

3 any additional questions or comments regarding the 

4 proposal, there will be another opportunity after the 

5 hearing to have your questions answered. 

6 We will now begin receiving testimony in the 

7 order in which you registered. Once I call your name, 

8 please come to the table and begin your testimony. 

9 The first gentleman is John Ockels. 

10 MR. OCKELS: Good morning, everybody. I'm John 

11 Ockels with the Texas Illegal Dumping Resource Center, and 

12 I have some written comments I'll also pass to you in the 

13 time frames. I have a comment on each of the two sets of 

14 changes that are generated by the underlying laws. The 

15 first is on House Bill 39. 

16 House Bill 39 in its language creates a Class C 

17 misdemeanor for certain illegal trash burning. However, 

18 . by adding the language that you propose to the outdoor 

19 burning rule at 111.209(b), you also are creating a crime 

20 with a larger penalty. I just want to point out that any 

21 violation of the Texas outdoor burning rule 

22 administratively is also a criminal violation of Texas 

23 Water Code 7177(a) (5). That has penalties of up to 

24 $50,000 for an individual and up to 180 days confinement. 

25 So I'm not sure that was intentionally done, 

ON THE RECORD REPORTING 

(512) 450-0342 
5 

1 but I would just urge you to consider the fact that when 

2 local governments are out enforcing the outdoor burning 

3 rule, they're not enforcing it administratively; they're 

4 attempting to enforce it criminally. And as a rule 

5 itself, it is not a criminal violation. What they look to 

6 is the underlying criminal violation, which is at 7177 of 

7 the Texas Water Code. So I'd urge you to consider that 

8 fact. 

9 And the second is something that has probably 

10 been pointed out by others in Senate Bill 1710. It's the 

11 fact that the bill in its own language specifically refers 

12 to areas that meet the national ambient air quality 

13 standard, but the draft change would -- at 

14 111.209(a) (4) (B) with the new language that's being added 

15 would have the rule change apply everywhere except non16 attainment areas, which would include the undetermined 

17 areas, which constitute most of Texas. 

18 The impact on that would be to greatly expand 

19 the area that the rule would be applicable to beyond that, 

20 which the state legislature has directed in this clear 

21 language. There's a negative impact on cities when you do 

22 that. Not all cities have local ordinances that they deal 

23 with illegal burning with; some of them have relied on in 

24 fact the criminal application of 7177 of the Texas Water 

25 Code to take care of local burning within the city limits. 

ON THE RECORD REPORTING 

(512) 450-0342 
6 

1 By removing the criminal penalty for burning of 

2 brush and limbs and other plant waste inside the city 

3 limit, you're going to catch some cities a little bit 

4 flat-footed right now. They're going to have time to 

5 change their ordinances and make sure that their local 

6 policies will fill in the gaps that are being removed by 

7 this. To that end, it's not a small thing that the area 

8 to which this would be applicable is being expanded beyond 

9 what the legislature has pointed out. 

10 And those are the comments I have. I'll submit 

11 those in writing, also. 

12 MS. SPENCER: Okay. 

13 MR. OCKELS: Thank you very much. 

14 MS. SPENCER: Thank you. 

15 Jay Dyer? 

16 MR. DYER: Good morning. My name is Jay Dyer; 

17 I'M the Director of Regulatory Affairs for the Texas 

18 Association of Builders. 

19 The first thing I want to do this morning if I 

20 could and if time permits is to apologize. I was so 

21 excited to come here and testify this morning that I 

22 forgot my coat. 

23 (Laughter.) 

24 MR. DYER: I just didn't want you all to think 

25 that I deliberately blew that off. I did forget. I know 

ON THE RECORD REPORTING 

(512) 450-0342 
7 

1 exactly where it is. It's sitting at home. 

2 So that's the first thing that I wanted to do. 

3 The second thing is, obviously, comment on these rules. I 

4 have four specific comments. By and large, we do support 

5 them. We feel like they are consistent with the statute, 

6 but I would point out four probably more legalistic and 

7 drafting issues. Admittedly, they probably don't affect 

8 the substance of the rule, but, optically, I think that 

9 they might go a little ways toward eliminating any kind of 

10 ambiguities. 

11 The first one is in 111.209(a) (4). The current 

12 draft of the rule talks about burning of brush, trees and 

13 other plant growth. We would recommend inserting the 

14 words, "Grass, leaves, branch trimmings or other plant 

15 growth." We feel like that would expand the rule a little 

16 bit, and the language I just recited is consistent with 

17 what's in Senate Bill 1710. I think that's probably--

18 the intent is probably the same, but, again, to eliminate 

19 any kind of ambiguities and to more closely track the 

20 language of the statute, we would encourage inserting the 

21 words, "Grass, leaves, branch trimmings or," in between 

22 that, "Brush and other plant growth," in (a) (4). 

23 I also think it would make the language more 

24 consistent with what's in-- I guess it's-- (a) (4) (C) (i). 

25 That litany is in that rule, as well. 

ON THE RECORD REPORTING 

(512) 450-0342 
8 

1 The second comment that I have -- it's on page 

2 18 of my printout. It's in (a) ( 4) (B) . You all -- the 

3 rule starts out, "In a county that is not part of 

4 designated non-attainment area." We would recommend using 

5 the words, "In an area," rather than, "In a county." 

6 The statute uses the word "area" rather than 

7 "county." And I think "county" could be read as-- does 

8 that mean the unincorporated area only? Does it mean both 

9 the incorporated and the unincorporated area? I think it 

10 was intended to mean both, and I think that the word 

11 "area" is a broader term and should be used. 

12 The other comment is on -- I guess it's on the 

13 next line -- "Municipality that extends into a designated 

14 non-attainment area." It's probably just a personal 

15 preference, but we feel like the words -- it should read, 

16 "That is designated non-attainment area," rather than, 

17 "That extends into." Again, it may not be a substantive 

18 change, but it might help the rule read a little bit more 

19 clearly. 

20 The third is in the next sentence. It talks 

21 about such burning as subject to the requirements of these 

22 three or four other rules in the TCEQ's administrative 

23 code. Subsection 7 may not be necessary. I certainly 

24 don't disagree with the concept, but Subsection 7 talks 

25 about burning oil, non-wood construction items and things 

ON THE RECORD REPORTING 

( 512) 450-0342 
9 

1 like that. The rule itself is limited to the burning of 

2 branches, trees, trimmings, grass and things of that 

3 nature. It doesn't contemplate or allow the burning of 

4 things like oil or non-construction labor [sic]. Again, I 

5 don't disagree with the concept, but it may be that sort 

6 of -- including Subsection 7 just may be considered 

7 redundant. 

8 Finally, in Subsection 3 of -- I guess it's 

9 (a) (4) (C), Subsection 3 on page 19. That talks about how 

10 the owner of a designated site has to maintain a record of 

11 certain designated residential properties. The current 

12 draft talks about how you need to maintain a description 

13 of a platted subdivision and/or a list of each property 

14 and the name of each property owner. We were just a 

15 little but confused as to whether that could be read to 

16 mean A or B but, in any event, C, or whether it was A 

17 and/or B and C. 

18 In other words, a platted subdivision or a list 

19 of properties and, in each case, the name of each property 

20 owner, or whether it was designed to mean a platted 

21 subdivision or the list of properties and the name of each 

22 property owner. It's just a-- and then, I guess, 

23 finally, what we could do, I guess, to eliminate that kind 

24 of concern or any kind of ambiguity is just to delete the 

25 requirement that the names of each property owner be 

ON THE RECORD REPORTING 

(512) 450-0342 
10 

1 submitted. Something like that may or may not be known to 

2 the owner of a designated site. 

3 And in any event, it may not be necessary, 

4 because if we have a platted subdivision that we can 

5 identify and an address of an identifiable location, that 

6 should be sufficient in either event to -- the designated 

7 site knows from the locations that it can burn trash from. 

8 That's really all that I had. I'd be happy to 

9 answer any questions from you all. I know that's not part 

10 of the protocol, but if you all do have questions, we're 

11 available, and we'll be happy to answer any. And next 

12 time I come, I will bring my coat. 

13 (Laughter.) 

14 MR. DYER: So thank you all. 

15 MS. SPENCER: Thank you, sir. 

16 The next speaker is Bob Turner. 

17 MR. TURNER: Good morning. I'm Bob Turner, and 

18 I am a legislative consultant for Earth Moving 

19 Construction Association of Texas, a contractors 

20 association that has members scattered over the entire 

21 state. We do primarily agricultural and conservation 

22 work. We do a lot of brush control -- mechanical brush 

23 control and a lot of road clearing, road right of way 

24 clearing and this sort of thing. 

25 Non-attainment areas is basically not an issue 

ON THE RECORD REPORTING 

(512) 450-0342 
11 

1 with us. I didn't come to specific issues in the rules. 

2 I did print them off from your web site, and I don't se a 

3 lot of change in agricultural issues in the rules that 

4 would impact us. But I do want to speak up as being 

5 desirous of being included in the process when we do any 

6 kind of changes and rules that might impact our 

7 construction and agricultural realm of the world. 

8 We actually do a lot of mechanical brush 

9 clearing; we also do a lot of prescribed burns. I know 

10 that people like Phil Harwell [phonetic] over here have a 

11 feel for prescribed burns and how we control those, since 

12 he's a member of the burn board. That's not addressed in 

13 this issue. But any time anything of this nature is 

14 involved, I would like to volunteer our members, of which 

15 we have several hundred scattered over the state. 

16 Some of these people have been in business 50 

17 years in the world of dealing with the ecology and the 

18 environmental issues of range control and what it means in 

19 the way of water enhancement. We actually like to look at 

20 what we do as being the people who conserve and increase 

21 the availability of water for the urban and suburban 

22 areas, as well as range management. 

23 So we want it understood that in our world, 

24 there is no alternative really to burning of the brush 

25 that we accumulate and pile. I recently-- I'm in the 

ON THE RECORD REPORTING 

(512) 450-0342 
12 

1 ranching business and recently had fence rows cleared and 

2 pushed into an open pasture area. As soon as burn bans 

3 are lifted in my area if and when it were to ever rain 

4 again, I anticipate burning those. And that's the kind of 

5 things that we need to be able to continue to do. 

6 We have people that use mechanical means as 

7 probably the only viable means of controlling cactus and 

8 mesquite and cedar. We are in basically rural areas. And 

9 I simply wanted to express our willingness and desire to 

10 be part of the rulemaking process when we deal with these 

11 issues. I'd be glad to address any questions if you have 

12 some. Thank you. 

13 MS. SPENCER: Thank you. 

14 Is there anyone else who would like to present 

15 testimony at this time? 

16 (No response.) 

17 MS. SPENCER: Once again, the Commission will 

18 continue to accept written comments on this proposal until 

19 5:00 p.m. Monday, March 13, 2006. We do appreciate your 

20 comments, and we thank you for coming. If there are no 

21 further questions, this hearing is now closed. 

22 (Pause.) 

23 MS. SPENCER: Once again, staff will be here 

24 and available to answer any questions. If anybody has any 

25 questions, they will be glad to answer them. 

ON THE RECORD REPORTING 

(512) 450-0342 
1 (Whereupon, at 10:19 a.m., this hearing was 

2 concluded. ) 

ON THE RECORD REPORTING 

(512) 450-0342 

13 
14 

1 C E R T I F I C A T E 

2 

3 IN RE: Proposed Revisions to 30 TAC Chapter 111 

4 Public Hearing 

5 LOCATION: Austin, Texas 

6 DATE: March 7, 2006 

7 I do hereby certify that the foregoing pages, 

8 numbers 1 through 14, inclusive, are the true, accurate, 

9 and complete transcript prepared from the verbal recording 

10 made by electronic recording by Paul Cater Deaton before 

the Texas Commission on Environmental Quality. 

~ H~w 3/24/2006 

(Transcriber') pbti( Date) 

On the Record Reporting 

3307 Northland, Suite 315 

Austin, Texas 78731 

ON THE RECORD REPORTING 

(512) 450-0342 
Texas Commission on Environmental Quality 

Public Hearing Registration 

Rule Project No. 2005-041-111-CE 

Location: Austin- 10:00 a.m. Date: March 7. 2006 

Concerning: Oral and/or written comments on proposed revisions to 30 T AC Chapter 111 , Control of Air 

Pollution from Visible Emissions and Particulate Matter 

Name Representing Presenting Oral Testimony? 

(Circle One) 

(Please Print) 

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EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM 

To: 

Thru: 

From: 

Commissioners 

LaDonna Castafmela, Chief Clerk 

Glenn Shankle,· Executive Director 

~John F. Steib, Jr., Deputy Director k;;,. ....Office of Compliance and Enforcement 

Docket No.: 2005-1799-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Date: June 23, 2006 

Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter 

House Bill39, Senate Bill1710: Outdoor Burning 

Rule Project No. 2005-041-111-CE 

Reasons for the rule package: 

House Bill (HB) 39, 79th Legislature, 2005, authored by Representative Rob Eissler, District 15, and 

Senate Bill (SB) 1710, 79th I:-egislature, 2005, authored by Senator Todd Staples, District 3, both amended 

Texas Health and Safety Code (THSC), §382.018, Outdoor Burning of Waste and Combustible Material. 

As amended, THSC, §382.018(a), is subject to Local Government Code, §352.082, Outdoor Burning of 

Household Refuse in Certain Residential Areas. Local Government Code, §352.082, is applicable to the 

. unincorporated area of a county that is adjacent to a county with a population of 3.3 million or more, and 

in which a planned community is located that has 20,000 or more acres of land, which was originally 

established under the Urban Growth and New Community Development Act of 1970 (42 United States 

Code, §§4501 et seq.), and that is subject to restrictive covenants containing ad valorem or annual variable 

budget-based assessments on real property. A person commits a Class C misdemeanor under Local 

Government Code, §352.082, if the person intentionally or knowingly burns household refuse outdoors 

on a lot that is located in a neighborhood or on a property smaller than five acres. Current agency rules 

authorize such burning in the applicable area for private residences when collection of domestic waste is 

not provided or authorized by the local governmental entity having jurisdiction. 

As amended, THSC, §382.018(b), requires the commission to authorize by rule outdoor burning of plant 

growth on the property on which the waste was generated and by the owner of the property or any person 

authorized by the owner, if it occurs in an area that meets the national ambient air quality standards 

(NAAQS) and that does not contain any part of a city that does not meet NAAQS. THSC, §382.018(c), 

prohibits the commission from requiring prior commission approval of such burning, or authorizing such 

burning only when no practical alternative exists. Current agency rules do not authorize such burning and 

make no distinction between attainment and nonattainment areas regarding outdoor burning. 

As amended, THSC, §382.018(d), prohibits the commission from contro1Iing or prohibiting outdoor 

burning of plant growth by a person at a site designated for burning of wastes generated from specific 

residential properties and under certain conditions. The designated site must be located outside of a 

municipality and in a county with a population of less than 50,000. The waste must be generated from a 

property for which the site is designated. All burning at the designated site must be supervised at the time 

of the burning by an employee of a fire department who is part of the fire protection personnel of the 
Commissioners 

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June 23, 2006 

Re: Docket No. 2005-1799-RUL 

department and is acting in the scope of the person's employment. THSC, §382.018(e), requires the fire 

department employee to notify the commission of each supervised burn. Current agency rules prohibit 

such burning and make no provision for the establishment of sites designated for the burning of waste. 

• Under what authority are we adopting these changes? The amendments are adopted under 

THSC, §382.002, relating to Policy and Purpose, Texas Clean Air Act (TCAA), §382.011, which 

authorizes the commission to administer the requirements of the TCAA; §382. 012, which provides 

the commission the authority to develop a comprehensive plan for the state's air; §382.017, which 

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; 

§382.018, which authorizes the commission to control outdoor burning; §382.085, which prohibits 

unauthorized air emissions; and Texas Water Code (TWC), §5.103 and §5.105, which authorizes 

the commission to adopt rules. 

• Is this rulemaking required by federal rule or state statute? Which ones? Yes. THSC, 

§382.018, Outdoor Burning of Waste and Combustible Material. 

• Are there any legal deadlines by which these rules must be adopted or effective? No. 

• What issue(s) or problem(s) are we trying to solve? Current rules conflict with HB 39, SB 

1710, THSC, §382.018, and Local Government Code, §352.082. The intent of the rule revisions 

is twofold: 1) to address and prohibit the burning of household refuse in a limited demographic 

area on properties in neighborhoods or on lots smaller than five acres; and 2) to add flexibility and 

options for property owners when burning plant growth in attainment areas and in areas outside 

of municipalities in counties with a population of less than 50,000. 

• Why is it important that we do this rule package? THSC, §382.018, requires the commission 

to authorize by rule the burning of plant growth in attainment areas under certain conditions. The 

rule revisions would address additional provisions ofTHSC, §382. 018, which conflict with current 

commission rules. 

• Other important background or historical information. None. 

Scope of the rulemaking: 

The rulemaking amends §111.203 and §111.209, to incorporate the amendments in THSC, §382.018. The 

revisions prohibit the burning of household refuse in a limited demographic area on lots of less than five 

acres, authorize by rule the burning of vegetative waste in attainment areas on the property on which it was 

generated without consideration of practical alternatives, and authorize by rule the burning of vegetative 

waste from specific residential properties at designated sites in counties with a population of less than 

50,000. 

• Changes required by federal rule: 

None. 

• Changes required by state statute: 
Commissioners 

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June 23, 2006 

Re: Docket No. 2005-1799-RUL 

• prohibit the burning of household refuse in a limited demographic area on lots of less than 

five acres. This act is a Class C misdemeanor; 

• authorize by rule the burning of vegetative waste in most attainment areas on the property 

on which it was generated without consideration of practical alternatives; and 

• authorize by rule the burning of vegetative waste from specific residential properties at 

designated sites in counties with a population of less than 50,000. The commission is 

prohibited from prohibiting or controlling such burning. 

• Staff recommendations that are not expressly required by federal rule or state statute: 

• provide for the establishment of designated burn sites and establish minimal compliance 

determination criteria to ensure that activities meet the requirements for burns at 

designated sites. 

Impact on the regulated community: 

• Who will be affected? 

• property owners in a limited demographic area (currently unincorporated Montgomery 

County) whose lots are smaller than five acres or located in neighborhoods; 

• property owners in counties that are not part of a designated nonattainment area and 

contain no part of a city that extends into a designated nonattainment area; 

• property owners that allow their property to be a designated burn site; 

• owners of specific residential properties for which a site has been designated for 

consolidated burning outside of a municipality and in a county with a population of less 

than 50,000; and 

• fire department employees who choose to supervise burns at designated sites. 

• Does it create a group of affected persons who were not affected previously? Yes. How? 

• by prohibiting previously allowed burning in a limited demographic area (currently 

unincorporated Montgomery County) whose lots are smaller than five acres or located in 

neighborhoods; 

• by authorizing property owners in counties that are not part of a designated nonattainment 

area and contain no part of a city that extends into a designated nonattainment area to burn 

plant growth on-site without considering practical alternatives or local waste collection; 

• by authorizing the designation of sites for burning of plant growth generated from specific 

residential properties outside of a municipality and in a county with a population of less 

than 50, 000.; and 

• by requiring fire department employees who supervise burns at designated sites to notify 

the commission of all such burns. 

• Will there be a fiscal impact? Yes. If so, estimate. Property owners in a limited demographic 

area (currently unincorporated Montgomery County) whose lots are smaller than five acres or 
Commissioners 

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June 23, 2006 

Re: Docket No. 2005-1799-RUL 

located in neighborhoods may see disposal costs increase. However, the cost of this waste disposal 

is not anticipated to be significant. 

Owners of specific residential properties for which a site has been designated for consolidated 

burning may see disposal costs increase if local fire departments collect fees to supervise these 

burns. The cost decrease or increase of outdoor burning of plant wastes depends on various 

factors and may vary. However, any cost decrease or increase is not anticipated to be significant. 

Impact on the public: 

• Who will be affected? There may be an increase in the number of persons negatively affected 

by smoke. 

• Does it create a group of affected persons who were not affected previously? No. How? 

• Will there be a fiscal impact? No. If so, estimate. 

Impact on Local Government: 

Municipal governments within most attainment areas that want to place controls on the burning of yard 

waste otherwise authorized under § 111.209( 4)(B) within the corporate limits of the city or town must enact 

ordinances consistent with TCAA, Chapter 382, Subchapter E, Authority of Local Governments. 

Impact on agency programs: 

The rulemaking may result in an increase in the number of complaints that the regional offices receive. 

The regional offices will be providing information on practical alternatives to the fire official responsible 

for supervising the burn activity at designated sites. TCEQ publication RG-049, TCEQ Regulatory 

Guidance, Outdoor Burning in Texas, will need to be revised. The Field Operations Division maintains 

this document. 

Stakeholder meetings: 

• Have any stakeholder meetings been held? Yes, September 26, 2005, in Austin. 

• With whom? Attendees included representatives from county law enforcement agencies, city 

government, land developers, and utility companies. 

• What were the general sentiments? The primary interest was in how the agency would interpret 

HB 39 and SB 1710. 

• Were any changes made in response to stakeholder concerns? Stakeholder comments were 

taken into consideration in the rule evaluation. While it did not change the language of the rules, 

the interpretation offered by representatives ofland developers, that THSC, §382.018(b), applied 

to commerciallandclearing operations as well as private residences, resulted in a change in how 

agency staff interpreted SB 1710. 
Commissioners 

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June 23, 2006 

Re: Docket No. 2005-1799-RUL 

Policy issues: 

• What policy issues are affected? N/A 

• Are any policies that are not currently based on rule being made into a rule? No. 

• What are the consequences if this rulemaking is not approved to go forward? TCEQ rules 

will conflict with THSC, §382.018. 

• Are there alternatives? No. 

Potentially controversial matters: 

Authorizing outdoor burning of plant growth in attainment areas and in counties with a population of less 

than 50,000 could create the perception that the agency is relaxing air quality standards, particularly in 

attainment areas where owners of property of any size could burn plant growth generated for commercial 

development without considering practical alternatives. 

Key points in the adoption rulemaking schedule: 

• Texas Register proposal publication date: February 10, 2006 

• Anticipated effective date: July 20, 2006 

• Six-month Texas Register filing deadline: August 10, 2006 

Public comment: 

Comments were received from four individuals, the City of Lufkin, Brazos River Authority (BRA), TXU 

Electric Delivery (TXU), Houston Regional Group of the Sierra Club (HSC), Texas Builder's Association 

(TBA), Texas Illegal Dumping Resource Center (TIDRC), Earthmoving Contractors Association of Texas 

(ECAT), Galveston County Health District (GCHD), and United States Environmental Protection Agency 

(EPA). 

Three individuals were opposed to authorizing landowners to burn within the city limits, while one 

individual supported burning in the city limits. In response, §111.209(4) has been made subject to local 

ordinances that are consistent with TCAA, Chapter 382, Subchapter E, Authority of Local Governments. 

The City of Lufkin was opposed to restricting burning to one hour after sunrise to one hour before sunset. 

No change has been made in response to the comment. 

BRA generally supported the rulemaking but expressed concern with the requirement that burning at 

designated sites be supervised by a fire department employee who is part of the fire protection personnel 

and acting in the scope of the person's employment. No change has been made in response to the 

comment. 

TXU generally supported the rulemaking. While not commenting that the proposed rule language was 

confusing, its comments indicated that it did not interpret the rule language as intended by the rule team. 
Commissioners 

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June 23, 2006 

Re: Docket No. 2005-1799-RUL 

TXU indicated the proposed rule removed the requirement to consider practical alternative before burning. 

In response the provisions of §lll.209(4)(A) and (B) were made mutually exclusive, which clarifies in 

what areas practical alternatives must be considered before burning. 

TXU also commented that it supported the section in the proposed rule allowing a "contractual easement 

document" to be acceptable documentation that an individual or company is an "authorized agent," and 

supported inclusion of an "authorized agent" in §111.209(4). This language does not exist in the proposed 

rule. No changes were made in response to the comment. 

In response, the language "by the owner of the property or any other person authorized by the owner" has 

been moved from §111.209(4)(B) to §111.209(4) so that both subparagraphs (A) and (B) are made subject 

to the requirement. The inclusion of the language in subparagraph (B) but not subparagraph (A) may have 

been taken as authorization to burn under subparagraph (A) without the owner's authorization. 

Another option would have been to omit the language entirely; however, the language comes from SB 

1710, which states "The commission by rule shall authorize outdoor burning of waste if. . . by the owner 

of the property or any other person authorized by the owner." Therefore, it was our opinion that the 

language should remain in the adopted rule. Currently, there is no explicit requirement to have 

authorization from the landowner before burning for right-of-way maintenance, landclearing operations, 

or maintenance along waterways. Authorizing certain burning activities does not take precedence over 

property rights. 

HSC supported the change that makes burning household waste a Class C misdemeanor, but regrets that 

it applies only to areas near The Woodlands. HSC did not support the implementation of SB 1710, which 

prohibits the TCEQ from requiring approval prior to burning. HSC recommended that the TCEQ should 

define the phrase "plant growth." HSC supported the requirements of designated sites in proposed 

§111.209(a)(4)(C), now §111.209(5). The context of the term "plant growth" was revised to match the 

language in SB 1710. The term "plant growth" was not strictly defined. No other changes were made 

in response to these comments. 

TBA generally supported the rule changes. TBA recommended using the phrase "in an area" rather than 

"in a county" in proposed §111.209(a)(4)(B). TBA recommended using the language "municipality that 

is designated nonattainment area" rather than "Municipality that extends into a designated nonattaimnent 

area" in proposed § 111. 209( a)( 4 )(B). TBA cornmented that subjecting proposed § 111.209( a)( 4 )(B) to the 

requirements of §111.219(7) might be redundant. No changes were made in response to these 

recommendations and comments. 

TBA also recommended the language "brush, trees, grass, leaves, branch trimmings, or other plant 

growth" be used instead of "brush, trees, and other plant growth" in proposed §111.209(a)(4)(B). This 

recommendation was taken and the language is now in adopted §111.209(4). 

TBA also commented that the language in proposed §111.209(a)(4)(C)(iii), now adopted §111.209(5)(C), 

requiring the owner of a designated site to maintain records including the name of each property owner 

was confusing and may not be necessary. In response to this comment, the requirement to keep the name 

of each property owner as part of the records was removed. 
Commissioners 

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June 23, 2006 

Re: Docket No. 2005-1799-RUL 

TIDRC commented that while HB 39 prescribed a Class C misdemeanor under Local Government Code, 

§352.052, the proposed §111.209(b) created a crime with a larger penalty under TWC, §7 .177(a)(5) than 

intended by the legislation. In response, §111.209(b) was struck and §111.209 was made subject directly 

to Local Government Code·, §352.052. TIDRC also commented that SB 1710 specifically refers to areas 

that meet the NAAQS, which does not include undetermined areas, but the language in §111.209(a)(4)(B) 

refers to most of the state including the undetermined areas. No change was made in response to this 

comment. 

TIDRC commented that many cities do not have local ordinances dealing with illegal burning and rely on 

the criminal application of TWC, §7 .177 to address local burning within the city limit. By removing the 

criminal penalty for burning plant growth, many cities would be caught flat-footed. In response, 

§ 111. 209( 4) has been made subject to local ordinances that are consistent with TCAA, Chapter 382, 

Subchapter E, Authority of Local Governments. 

GCHD did not indicate support or opposition to the rulemaking, but merely asked a question. No change 

to the rule was made in response to the question. 

ECA T's comments are outside the scope of the rulemaking. 

EPA commented that while it had taken final action on October 9, 1999 (64 FR 57983), to approve state 

implementation plan (SIP) revisions to the Texas outdoor burning rules (i.e., the currently existing rules, 

§111.203 and §111.209), it had thereafter withdrawn the direct final rulemaking on December 17, 1999 

(64 FR 70592), and is now in the process of reviewing that action. Therefore, the current rule under 

revision is not part of the Texas SIP. 

EPA expressed concerns that the proposed rules may potentially relax outdoor burning in some areas, in 

comparison to current SIP-approved rules (§§111.101, 111.103, 111.105, and 111.107) and those 

currently under EPA consideration. EPA requested that TCEQ demonstrate how revisions to §§111.101, 

111.103, 111.105, and 111.107, and revisions to §101.203 and §101.209, would not interfere with any 

applicable requirements concerning attainment or any other applicable requirement under the Clean Air 

Act. In response to EPA comments, §111.209(4) has been made subject to local ordinances that are 

consistent with TCAA, Chapter 382, Subchapter E, Authority of Local Governments. 

Significant changes from proposal: 

Proposed §111.209(a)(4)(C) was renumbered as §111.209(4), and the provisions of §111.209(4)(A) and 

§111.209(4)(B) were made mutually exclusive. This was done in response to comments received at agenda 

for proposal and from TXU. This clarifies where practical alternative must be considered prior to burning. 

All of§ 111.209( 4) was made subject to the requirement that burning be "by the owner of the property or 

any other person authorized by the owner." This was done in response to comments from TXU, which 

indicated misinterpretation of the intent of the proposed rule. Existing rules and proposed § 111.209( 4)(A) 

are not subject to this requirement. The language is explicit in SB 1710, but its absence in § 111. 209( 4)(A) 

may have been understood to imply that the commission was authorizing someone to bum without consent 

from the owner of the property. 
Commissioners 

Page 8 

June 23, 2006 

Re: Docket No. 2005-1799-RUL 

In order to ensure that local authorities retain appropriate authority to enact ordinances controlling outdoor 

burning, adopted §111.209(4)(B) is made subject to local ordinances which prohibit burning inside the 

corporate limits of a city or town, and that are consistent with TCAA, Chapter 382, Subchapter E, 

Authority of Local Governments. This was done in response to concerns that TCAA, §382.113(b) 

prohibits a municipality from enacting an ordinance which makes unlawful a condition or act approved or 

authorized by the commissions's rules or orders. 

Agency contacts: 

Ronnie Kramer, Rule Project Manager, 239-0194, Field Operations Division 

Michael Blinn, Staff Attorney, 239-4705 

Pinar Dogru, Staff Attorney, 239-0144 

Joyce Spencer, Texas Register Coordinator, 239-5017 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Brent Wade 

Office of General Counsel 

Ronnie Kramer 

Joyce Spencer 

cc (without attachments): 

Michael Blinn, Staff Attorney 

Pinar Dogru, Staff Attorney 

Debra Barber, Office Liaison 

Jim Reed, Division Liaison 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts amendments 

to §111.203 and §111.209. Section 111.209 is adopted with change to the proposed text as 

published in the February 10, 2006, issue of the Texas Register (31 TexReg 819). Section 

111.203 is adopted without change to the proposed text and the text will not be republished. 

The amended 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 

House Bill (HB) 39, 79th Legislature, 2005, amended Texas Health and Safety Code (THSC), 

§382.018, Outdoor Burning of Waste and Combustible Material, by making it subject to Local 

Government Code, §352.082, Outdoor Burning of Household Refuse in Certain Residential 

Areas. Under Local Government Code, §352.082, a person commits a Class C misdemeanor if 

the person intentionally or knowingly burns household refuse outdoors on a lot that is located in 

a neighborhood or on a lot that is smaller than five acres. Local Government Code, §352.082, 

is applicable only to the unincorporated area of a county that is adjacent to a county with a 

population of 3.3 million or more, in which a planned community is located that has 20,000 or 

more acres of land that was originally established under the Urban Growth and New Community 

Development Act of 1970 (42 United States Code, §§4501 et seq.) and that is subject to 

restrictive covenants containing ad valorem or annual variable budget-based assessments on 

real property. The adopted rules will prohibit the burning of household refuse in the area 

delineated by Local Government Code, §352.082. 

1 
Senate Bill (SB) 1710, 79th Legislature, 2005, also amended THSC, §382.018, by adding 

subsections (b) and (c), which require the commission to authorize by rule the burning of waste 

consisting of plant growth in areas that meet the national ambient air quality standards (NAAQS) 

and do not contain any part of a city that does not meet the NAAQS if the waste is burned on 

the property of origin and by the owner of the property or any other person authorized by the 

owner. The commission is prohibited from requiring prior commission approval of the burning, 

or from authorizing the burning only when no practical alternative exists. Current rules do not 

make a distinction between attainment and nonattainment areas regarding outdoor disposal 

fires. The adopted rules will implement the authorization by rule required by THSC, §382.018. 

SB 1710 also amended THSC, §382.018, by adding subsections (d) and (e), which prohibit the 

commission from controlling or prohibiting outdoor burning of waste consisting of plant growth at 

a site designated for burning of waste generated from specific residential properties located 

outside of a municipality and in a county with a population of less than 50,000, if supervised by 

a fire department employee acting in the scope of the person's employment. The current rules 

do not authorize the burning of waste at designated sites. The adopted rules will establish 

minimal compliance determination criteria to ensure that all activities meet the qualifications for 

burns at designated sites. The commission notes that only three counties, Chambers, Hardin, 

and Rockwall, are within designated nonattainment areas and have a population of less than 

50,000. Burning of domestic waste, including plant growth, is already authorized in these 

counties for private residences when collection of domestic waste is not provided or authorized 

by the local governmental entity having jurisdiction. To the commission's best available 

knowledge, no residential properties outside of municipalities in these counties are provided 

with domestic waste collection by the local governmental entity having jurisdiction. Therefore, 

2 
the adopted rules will not cause an increase in plant growth burning in designated 

nonattainment areas. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIR ACT, SECTION 

11 0(1) 

Issue 

The commission provides the following information to clarify why the amendments to §111.203 

and §111.209 and the Texas SIP, will not negatively impact the status of the state's attainment 

areas. 

The requirement for reasonable notice and public hearing is satisfied through the hearing held 

on March 7, 2006, and the public comment period, which was held from February 10, 2006, to 

March 13, 2006. EPA also issued draft guidance on June 8, 2005, "Demonstrating 

noninterference Under Section 11 0(1) of the Clean Air Act When Revising a State 

Implementation Plan." The guidance states (page 6) that" ... areas have two options available 

to demonstrate noninterference for the affected pollutant(s)." This document provides detail of 

the identified existing measures in the rule preamble to show compliance with option (1) of 

EPA's guidance: Substitution of one measure by another with equivalent or greater emissions 

reduction/air quality benefits. 

Background 

In September 1996 (21 TexReg 8505), the commission approved revisions to the Texas outdoor 

burning regulations by repealing §§ 111.101, 111.103, 111.1 05, and 111.107 and adopting 

§§111.201, 111.203,111.205,111.207,111.209,111.211,111.213,111.215,111.219, and 

111.221. In October 1999 (64 FR 57983), EPA took a direct final action to approve these 

revisions to the state's outdoor burning regulations as amendments to the SIP. However, EPA 

3 
received an adverse comment regarding the amendments and, therefore, withdrew the direct 

final rulemaking in December 1999 (64 FR 70592). EPA is now in the process of reviewing that 

action. 

As this rulemaking is a revision of regulations currently under review and consideration by EPA 

for inclusion in the Texas SIP, the commission is asking EPA to review these revisions to 

§111.203 and §111.209 for inclusion in the SIP, concurrently with the previously submitted 

outdoor burning regulations. 

Analysis of Revisions 

a) Revision of §111.203 adds the definitions of "Neighborhood" and "Refuse" as repeated from 

THSC, §343.002. No air control measures have been removed. 

b) Revisions to §111.209. 

1) Section 111.209 has been made subject to Local Government Code, §352.082, which 

classifies certain types of outdoor burning as a Class C misdemeanor. This revision is more 

restrictive than current outdoor burning rules, which do not prohibit outdoor burning in the area 

specified in amended Local Government Code, §352.082 (Montgomery County). Furthermore, 

the adoption of this rule revision and/or the SIP has no bearing on the implementation and 

enforcement of Local Government Code, §352.082. No air control measures have been 

removed. 

2) THSC, §382.018(d) was amended to prohibit the commission from controlling or prohibiting 

outdoor burning of waste consisting of plant growth generated from specific residential 

properties on designated sites outside of a municipality and in counties with a population of less 

4 
than 50,000. THSC, §382.018(d) is self-implementing. To address the statutory amendment, 

§111.209(5) authorizes outdoor burning at certain sites as designated by the property owner. 

However, this revision merely consolidates currently authorized outdoor burning, and does not 

authorize an increase in outdoor burning frequency. Burning waste consisting of plant growth 

generated from residential properties within the county but outside of municipalities is currently 

authorized under §111.209(1) as burning of domestic waste. To the commission's best 

available knowledge, county jurisdictions do not regularly provide domestic waste collection as 

that service is ordinarily provided by a municipality. The revision provides an option allowing 

homeowners to consolidate yard waste at a designated site before burning, rather than having 

many smaller fires throughout the neighborhood. Furthermore, the revision places additional 

restrictions on outdoor burning at such a designated site than currently exist for burning of 

domestic waste. Specifically, the revision requires mandatory notice to the commission prior to 

the burn and requires supervision by a fire department employee who is part of the fire 

protection personnel, as defined by Texas Government Code, §419.021, that is acting in the 

scope of that person's employment. The required supervision of a fire department employee for 

each burn imposes limits on the frequency and number of outdoor burns and, therefore, would 

not constitute a relaxation of the SIP. No air control measures have been removed. 

3) THSC, §382.018(b) was amended to require the commission to authorize by rule the burning 

of waste consisting of plant growth on the property of origin, if in an area that meets the 

NAAQS. Section 111.209(4)(8) authorizes the burning of plant growth on the property of origin 

in most areas of attainment, regardless of the type of activity that produced the waste. Current 

rules authorize the burning of waste plant growth on the property of origin, but limit activities to 

right-of-way maintenance, landclearing operations, and maintenance along water canals, and 

only when no practical alternative to burning exists. 

5 
However, most activities that generate plant waste are the result of right-of-way maintenance, 

landclearing operations, maintenance along water canals, or domestic activities. Plant waste 

generated from all of these activities is currently authorized. Therefore, no restriction on the 

type of activity for which waste plant growth may be burned has been removed. 

THSC, §382.018(c) was amended to prohibit rules adopted underTHSC, §382.018(b) from 1) 

requiring prior approval of the burn; and 2) authorizing the burning only when no practical 

alternative to burning exists. The removal of the requirement to burn only when no practical 

alternative to burning exists does not constitute the removal of a practical or effective air control 

measure. In response to comments during the 1996 rulemaking (21 Tex Reg 8509), the 

commission stated that "The commission's intent. .. is to foster an analysis of practical 

alternatives prior to burning." The current rule does not require approval of the practical 

alternative analysis prior to burning. Once the responsible party has determined that 

alternatives are not practical, it is unreasonable to dispute the determination due to the broad 

and vague nature of the definition of practical alternative, per §111.1 01 (4) (formerly 

§111.101 (3)), "An economically, technologically, ecologically, and logistically viable option." 

TCEQ guidance document RG-049, Appendix D, states that when evaluating these four criteria 

the standard of judgment should be that of a "reasonable person." Therefore, practical 

alternative does not constitute an air control measure, but rather a measure to foster an analysis 

prior to burning, as was the commission's intent. To demonstrate this, there is no record in the 

commission's compliance database of any Notices of Violation or Enforcement for violation of 

the practical alternative clause. Actions on record regarding outdoor burning cite the burning of 

inappropriate material, burning in unauthorized locations, burning under unauthorized conditions 

(e.g. high winds, inappropriate hours, proximity to receptors, etc.), burning of domestic waste 

6 
where waste collection is provided, or causing nuisance conditions. This further demonstrates 

that the appropriate air control measures to ensure noninterference with the Texas SIP are in 

place. Additionally, the commission stated during the 1996 rulemaking and in RG-049 that "The 

use of trench burners is a practical alternative under certain circumstances." The use of trench 

burners has not been demonstrated to significantly increase burning efficiency, but is rather a 

method used to prevent nuisance conditions. Therefore, the removal of practical alternative 

does not imply an increase in the quantity of material that may be burned, or an increase in air 

contaminants resulting from burning. 

Finally, the current rule is subject to all of the air control measures in §111.219. The revised 

rules, for areas in attainment, are subject to the air control measures in §111.219(3), (4), (6), 

and (7), and subject to any local ordinances that prohibit burning inside the corporate limits of a 

city or town, consistent with Texas Clean Air Act (TCAA), Chapter 382, Subchapter E, Authority 

of Local Governments. The revised rules, for areas in nonattainment, maintain all of the air 

control measures in §111.219. 

The commission does not anticipate increased burning or a relaxation of the Texas SIP for 

those municipalities in areas of attainment. Municipalities in areas of attainment remain subject 

to the prohibitions on outdoor burning in §111.219(3), (4), (6), and (7), which list prohibited burn 

materials, specify appropriate weather conditions, and prohibit causing adverse effects to any 

thoroughfares or off-site sensitive receptors. The adopted rules will confer control of allowable 

outdoor burning to local authorities but require that ordinances prohibiting or regulating outdoor 

burning comply with the TCAA, Chapter 382, Subchapter E, Authority of Local Governments. 

Regardless of whether in areas of attainment or nonattainment, persons conducting outdoor 

7 
burns remain responsible for any consequences, damages, or injuries resulting from the burning 

in accordance with §111.221, Responsibility for Consequences of Outdoor Burning. 

Conclusion 

In addition to the above analysis of the rule, §1 01.4, General Nuisance, continues to provide a 

determination for whether an air contaminant release is a nuisance. The commission 

determined that there are sufficient rules and procedures in place to assure compliance with the 

Texas SIP, and that sufficient air control measures exist in this rulemaking so as not to 

constitute a relaxation of the Texas SIP. 

SECTION BY SECTION DISCUSSION 

Administrative and grammatical changes are adopted throughout the sections to bring the 

existing rule language into agreement with Texas Register requirements, agency guidelines, 

and guidance provided in the Texas Legislative Council Drafting Manual, November 2004. 

The adopted amendment to §111.203, Definitions, adds the definition of "Neighborhood" and 

"Refuse" and renumbers subsequent definitions to accommodate the adopted new definitions. 

The adopted new definitions are repeated from THSC, §343.002. 

The adopted amendment to §111.203 will also update the name "Texas Natural Resource 

Conservation Commission" to "Texas Commission on Environmental Quality." 

The adopted amendment to §111.209, Exception for Disposal Fires, is made subject to Local 

Government Code, §352.082. The proposed rule repeated Local Government Code, §352.082, 

in proposed subsection (b). All of adopted §111.209 is instead made subject directly to Local 

8 
Government Code, §352.082. Local law enforcement will be the primary authority in the 

enforcement of Local Government Code, §352.082. 

The adopted amendment to §111.209 also authorizes, as required by THSC, §382.018(b}, the 

burning of plant growth on the property on which it was generated and by the owner of the 

property, or any person authorized by the owner, in counties that are not designated as 

nonattainment and that do not contain any part of a city that is part of a designated 

nonattainment area, by adding adopted new paragraph (4)(8}, proposed as subsection 

(a)(4)(8). The adopted rule expands the existing options for on-site burning of plant growth in 

most attainment areas by removing the requirement to consider practical alternatives and by 

allowing on-site burning of plant growth by all property owners, rather than only for right-of-way 

maintenance, landclearing operations, and maintenance along waterways. The adopted rule, 

§111.209(4)(8}, is subject to §111.219(3}, (4}, (6}, and (7}, and subject to any local ordinances 

that prohibit burning inside the corporate limits of a city or town, consistent with TCAA, Chapter 

382, Subchapter E, Authority of Local Governments. 

The adopted paragraph (4) does not expand the existing options for on-site burning of plant 

growth in nonattainment areas. Paragraph (4)(A}, proposed as subsection (a)(4)(A}, will 

continue to authorize burning in nonattainment areas, but only for right-of-way maintenance, 

landclearing operations, and maintenance along water canals, and only in the absence of a 

practical alternative. When proposed, subsection (a)(4)(A) covered the entire state. The 

adopted rule, §111.209(4)(A}, is subject to §111.219. 

The context of "plant growth" has been expanded in paragraph (4) to match the language used 

in 88 1710. When proposed, subsection (a)(4)(8) was explicitly subject to authorization by the 

9 
owner of the property! per the requirement in SB 1710. All burning under adopted paragraph (4) 

is subject to authorization by the owner of the property. This is to clarify that while the language 

is required by SB 1710 for burning under paragraph (4)(B), the absence of the language 

elsewhere does not imply that burning on site without the consent of the property owner is 

authorized. 

To protect human health and safety and environmental receptors, adopted §111.209(4)(B) is 

made subject to §111.219(3), (4), (6), and (7), relating to General Requirements for Allowable 

Outdoor Burning. In order to ensure that local authorities retain appropriate authority to enact 

ordinances controlling outdoor burning, adopted §111.209(4)(B) is made subject to any local 

ordinances that prohibit burning inside the corporate limits of a city or town and that are 

consistent with TCAA, Subchapter E, Authority of Local Governments. The commission also 

notes that all responsible persons engaged in outdoor burning are subject to §111.221, relating 

to Responsibility for Consequences of Outdoor Burning. 

The adopted amendment to §111.209 also provides for the burning of waste plant growth 

generated from specific residential properties at designated sites located outside of 

municipalities and within counties with a population of less than 50,000, by adding adopted new 

paragraph (5), proposed as subsection (a)(4)(C). Under specific conditions, the commission is 

prohibited from controlling or prohibiting burning under THSC, §382.018(d). The burn must be 

at a designated burn site, located outside of a municipality, and within a county with a 

population of less than 50,000. All material burned must consist of plant growth generated at 

specific residential properties for which the site is designated. The burn must be supervised by 

a fire department employee acting in the scope of the person's employment, who must notify the 

commission of each supervised burn. To determine if burns under adopted paragraph (5) meet 

10 
the conditions of THSC, §382.018(d), the adopted rule requires the owner of the site or the 

owner's authorized agent to post the designated site, maintain a description or list of specific 

residential properties for which the site is designated, ensure that all waste burned consists of 

plant growth generated from these properties, and to ensure that a qualified fire department 

employee supervises each burn at the site. The requirement under proposed subsection 

(a)(4)(C)(iii}, now paragraph (5)(C}, to include the name of each property owner on the record of 

designated residential properties has been struck from the adopted rule. 

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 rulemaking is 

not subject to §2001.0225 because it does not meet the definition of a major environmental rule 

as defined in the Administrative Procedure Act. A "major environmental rule" is a rule that is 

specifically intended to protect the environment or reduce risks to human health from 

environmental exposure, and that may adversely affect in a material way the economy, 

productivity, competition, jobs, the environment, or the public health and safety of the state or a 

sector of the state. The primary purpose of the adopted rules is to protect the environment 

through the regulation of the outdoor burning of waste and combustible material. The adopted 

rules will not have an adverse material impact because the adopted rules are limited to revisions 

to the prohibition on and exception for disposal fires. The adopted revisions will: 1) prohibit the 

burning of domestic waste in residential areas that are in unincorporated areas of a county 

adjacent to a county with a population of 3.3 million or more and where there is a planned 

community of 20,000 acres or more. In these residential areas, domestic waste cannot be 

burned in a neighborhood or on a lot that is less than five acres; 2) allow for the burning of 

waste consisting of plant growth in areas that meet the NAAQS and do not contain any part of a 

11 
city that does not meet the NAAQS if the waste is burned on the property of origin and by the 

owner of the property or any other person authorized by the owner; and 3) allow for the outdoor 

burning of waste consisting of plant growth at a site designated for consolidated burning of 

waste generated from specific residential properties located outside of a municipality and in a 

county with a population of less than 50,000, if supervised at the time of the burning by a fire 

department employee acting in the scope of the person's employment. 

Furthermore, the adopted rulemaking does not meet any of the four applicability requirements 

listed in Texas Government Code, §2001.0225(a), where the adopted rules: 1) are specifically 

required by state law, namely THSC, §382.018; 2) do not exceed the express requirements of 

THSC, §382.018; 3) do not exceed a requirement of a federal delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a 

state and federal program; and 4) are not an adoption of a rule solely under the general powers 

of the commission. 

Based on this assessment, the adopted rulemaking does not constitute a major environmental 

rule and is not subject to the regulatory analysis provisions of Texas Government Code, 

§2001.0225. Public comments were solicited. No public comments were received regarding 

the regulatory impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rules and performed an assessment of whether the 

adopted rules constitute a taking under Texas Government Code, Chapter 2007. The primary 

purpose of the adopted rules is to protect the environment through the regulation of the outdoor 

burning of waste. 

12 
Promulgation and enforcement of these adopted rules will be neither a statutory nor a 

constitutional taking of private real property. Specifically, the subject adopted regulations do not 

affect a landowner's rights in private real property because this rulemaking does not burden 

(constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or 

more beyond that which would otherwise exist in the absence of the regulations. The adopted 

rules are limited to revisions to the prohibition on and exception for disposal fires. The adopted 

revisions will: 1) prohibit the burning of domestic waste in residential areas that are in 

unincorporated areas of a county adjacent to a county with a population of 3.3 million or more 

and where there is a planned community of 20,000 acres or more. In these residential areas, 

domestic waste cannot be burned in a neighborhood or on a lot that is less than five acres; 2) 

allow for the burning of waste consisting of plant growth in areas that meet the NAAQS and do 

not contain any part of a city that does not meet the NAAQS if the waste is burned on the 

property of origin and by the owner of the property or any other person authorized by the owner; 

and 3) allow for the outdoor burning of waste consisting of plant growth at a site designated for 

consolidated burning of waste generated from specific residential properties located outside of a 

municipality and in a county with a population of less than 50,000, if supervised at the time of 

the burning by a fire department employee acting in the scope of the person's employment. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found that the revision is subject to the 

Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, 

Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all 

applicable CMP goals and policies. The commission conducted a consistency determination for 

the adopted rules in accordance with Coastal Coordination Act Implementation Rules, 31 TAC 

13 
§505.22, and found that the adopted rulemaking is consistent with the applicable CMP goals 

and policies. 

The CMP goals applicable to the adopted rules include: to protect, preserve, restore, and 

enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; 

to ensure sound management of all coastal resources by allowing for compatible economic 

development and multiple human uses of the coastal zone; to ensure and enhance planned 

public access to and enjoyment of the coastal zone in a manner that is compatible with private 

property rights and other uses of the coastal zone; and to balance these competing interests. 

The specific CMP policy applicable to the adopted rules requires that commission rules under 

THSC, Chapter 382, governing emissions of air pollutants, shall comply with regulations in 40 

Code of Federal Regulations, adopted in accordance with Federal Clean Air Act (FCAA), 42 

United States Code, §§7401, et seq., to protect and enhance air quality in the coastal area so 

as to protect coastal natural resources areas and promote the public health, safety, and welfare. 

Promulgation and enforcement of the rules will not violate or exceed any standards identified in 

the applicable CMP goals and policies. The adopted rules are consistent with these CMP goals 

and policies. The rules do not create or have a direct or significant adverse effect on any 

coastal natural resource areas. 

Public comments were solicited. No public comments were received regarding the consistency 

with the coastal management program. 

PUBLIC COMMENTS 

14 
The commission received written comments from four individuals, the City of Lufkin, Brazos 

River Authority (BRA), TXU Electric Delivery (TXU), Houston Regional Group of the Sierra Club 

(HSC), Earthmoving Contractors Association of Texas (ECAT), Galveston County Health District 

(GCHD), and United States Environmental Protection Agency (EPA). A public hearing was held 

on March 7, 2006. The commission received oral comments from the Texas Illegal Dumping 

Resource Center (TIDRC), Texas Builder's Association (TBA), and ECAT. 

Three individuals were opposed to authorizing landowners to burn within the city limits, while 

one individual supported burning in the city limits. The City of Lufkin was opposed to restricting 

burning to one hour after sunrise to one hour before sunset. BRA, TXU, HSC, and TBA 

generally supported the rulemaking. TIDRC did not oppose the rulemaking but made several 

suggestions. GCHD did not indicate support or opposition to the rulemaking. ECA T's 

comments were outside the scope of the rulemaking. 

RESPONSE TO COMMENTS 

One individual commented that due to her allergies and her husband's emphysema there 

should be no burning allowed within the city limits. She also commented that she has had to 

leave her house and seek medical attention as a result of burning in her neighborhood. Two 

individuals would like to see a statewide ban on burning within a city limit and would like the ban 

to be enforced. 

The commission has undertaken this rulemaking to comply with SB 1710. SB 1710 

requires the commission to authorize by rule the burning of plant growth in most 

attainment areas, if burned on the property of origin. The commission believes the intent 

of the legislation, in part, is to direct and delegate appropriate authority to local 

15 
governments in efforts to ensure that regulatory policies address the concerns of 

affected citizens. In response to the comment, the commission has made §111.209(4)(8) 

subject to any local ordinances that prohibit burning inside the corporate limits of a city 

or town and that are consistent the TCAA, Chapter 382, Subchapter E, Authority of Local 

Governments. This will allow each affected municipality to determine and address the 

concerns of affected citizens. Allowable outdoor burning is not permitted at any time to 

rise to a level of nuisance conditions. Anyone may report a nuisance condition to the 

commission and file a complaint by calling 1-888-777-3186. 

One individual commented that she is concerned that her current practice of burning leaves in 

her yard at her residence in the city limits will be prohibited or limited under the proposed 

amendments to outdoor burning in 30 TAC Chapter 111. 

Under current rules, there is no provision allowing a person to burn yard waste on site 

where waste collection is provided by the local entity having authority. Under the 

adopted rule, however, this type of burning will be authorized even when waste 

collection is provided. As noted in the response to the previous comment, this authority 

is subject to any local ordinances that prohibit burning inside the corporate limits of a 

city or town and that are consistent with TCAA, Chapter 382, Subchapter E, Authority of 

Local Governments. This will allow each affected municipality to determine and address 

the concerns of affected citizens. The commission believes city governments should be 

allowed to control burning within their limits at the local level. No change has been made 

in response to the comment. 

16 
The City of Lufkin commented that §111.219(6)(A) was too restrictive and that the requirement 

to begin burning no earlier than one hour after sunrise and to have the burn completed no later 

than one hour before sunset should be changed. The city commented that the winds are 

generally calmer and the humidity higher early in the morning and later in the evening which 

would reduce the possibility for the burn to get out of control. 

The commission agrees that in many instances the meteorological conditions early in the 

morning and late in the evening may reduce the risk of an out of control burn. The 

requirements of §111.219 are intended to improve the dispersion conditions necessary to 

reduce the potential impacts of smoke and related emissions from burns subject to the 

requirements of this section. No change to the rule has been made. 

BRA commented that overall it supported the rule changes; however, it expressed concern that 

the requirement under proposed §111.209(a)(4)(C)(i) and §111.209(a)(4)(C)(vi) that the burning 

be "directly supervised by an employee of a fire department who is part of the fire protection 

personnel, as defined by Local Government Code, §419.021, and is acting in the scope of the 

person's employment," was too restrictive. BRA commented that this requirement "does not 

recognize the considerable skill and training that volunteer firefighters have in fighting brush 

fires, grass fires and wildfires," and "in contrast to the vast wildfire experience of volunteer 

firefighters, most municipal firefighter's training focuses primarily on structural firefighting." BRA 

was concerned that this requirement eliminates most of rural Texas, where local governments 

rely solely upon volunteer fire departments for fire protection, from taking advantage of the 

revised outdoor burning rules. 

17 
The commission recognizes the considerable skill and training that volunteer firefighters 

have in fighting brush fires, grass fires, and wildfires. However, the commission has 

undertaken this rulemaking to comply with SB 1710. SB 1710 is specific in its 

requirement that the burning be udirectly supervised by an employee of a fire department 

who is part of the fire protection personnel, as defined by Local Government Code, 

§419.021, and is acting in the scope ofthe person's employment." No change to the rule 

has been made in response to the comment. 

TXU commented that it supported the rule as proposed and emphasized the importance of two 

sections contained in the proposed rule: 1) TXU supports the additional flexibility in specific 

circumstances and/or operations that the applicability of §111.209(a)(4)(A) and 

§111.209(a)(4)(8) provides for "on-site burning" for "right-of-way (ROW) management." 

Sections 111.209(a)(4)(A) and §111.209(a)(4)(8) of the proposed rule allows outdoor burning 

regardless of whether a practical alternative to burning exists. The ability to conduct outdoor 

burning without having to provide evidence of practical alternatives would greatly expedite 

cleanup and management of ROW. For example, Hurricanes Katrina and Rita resulted in large 

amounts of wood and brush, some in remote areas inaccessible by most vehicles; and 2) TXU 

supports allowing a "contractual easement document" to be acceptable documentation that an 

individual or company is an "authorized agent," and supports the inclusion of an "authorized 

agent" in §111.209(a)(4)(8). TXU may not be the actual property owner, but may have a 

contractual easement agreement with the owner to maintain the ROW. 

Proposed §111.209(a)(4)(A) and §111.209(a)(4)(8) were intended to be two separate 

authorizations, i.e., a person would have to choose whether he intended to burn under 

subparagraph (A) or (8}, but could not pick and choose from both. Subparagraph (A) 

18 
was intended to apply statewide but only to the listed activities (i.e., ROW, landclearing, 

maintenance along water canals), and only when no practical alternative to burning 

exists. Subparagraph (B) was intended to apply only in certain areas of the state, but for 

all activities including, but not limited to, ROW, landclearing, and maintenance along 

water canals, and only by the landowner or any person authorized by the landowner. 

Under proposed subparagraph (A), burning for ROW in nonattainment areas would be 

permitted, as long as no practical alternatives existed. Under proposed subparagraph 

(B), burning for ROW would be permitted, but only with landowner authorization. 

In response to TXU's first point, the commission has made the authorizations under 

subparagraphs (A) and (B) mutually exclusive. Subparagraph (A) applies only in a 

county that is part of a designated nonattainment area or that contains any part of a 

municipality that extends into a designated nonattainment area. Subparagraph (B) 

applies in all other areas. Under subparagraph (A), only the listed activities are 

authorized and practical alternatives must be considered. Subparagraph (B) includes, 

but is not limited to, the listed activities and consideration of practical alternatives is not 

required. Burning under either subparagraph (A) or subparagraph (B) is restricted to 

plant growth generated on the property on which it is burned. 

In response to TXU's second point, the proposed rule did not contain language allowing 

a "contractual easement document" to be acceptable documentation that an individual or 

company is an "authorized agent." SB 1710 is specific in that the burning must be by the 

property owner or any other person authorized by the owner. The commission 

authorizes burning of plant growth, but does not authorize the infringement of the 

property rights of landowners. Whether or not a "contractual easement document" is 

19 
acceptable documentation that an individual or company is authorized by the landowner 

to burn plant growth is a matter between the parties to the document. The adopted rule 

makes both subparagraphs (A) and (B) subject to the requirement that burning must be 

by the property owner or any other person authorized by the owner. 

HSC commented that it supported the rule change that makes the burning of household waste a 

Class C misdemeanor. Unfortunately, HSC commented, the way HB 39 is worded, TCEQ must 

apply this rule only to areas near The Woodlands. Therefore, other areas will not receive 

commensurate protection. 

HB 39 created a Class C misdemeanor in Local Government Code, Chapter 352. The 

commission has undertaken this rulemaking, as it relates to HB 39, to ensure that the 

exceptions for disposal fires contained in §111.209 are consistent with the new criminal 

statute. No change to the rule has been made in response to the comment. 

HSC commented that it does not support the implementation of the language in SB 1710 which 

prohibits the commission from requiring prior approval for outdoor burning under the proposed 

rules. HSC commented that approval by the TCEQ of outdoor burning provides public 

protection and information. 

The commission has undertaken this rulemaking to comply with SB 1710. SB 1710 is 

specific in its requirement that the commission cannot require prior commission 

approval. No change to the rule has been made in response to the comment. 

20 
HSC commented that the phrase "plant growth" is not defined in §111.203 and the TCEQ 

should "strictly define this phase so that there are no unintended legal surprises when the rule is 

tested in court." 

The commission has expanded the context of the term "plant growth" to include "trees, 

brush, grass, leaves, branch trimmings, or other plant growth," and believes the meaning 

is clear from the expanded context. The term has not been strictly defined in 30 TAC 

§101.203. 

HSC commented that it supported the requirements under §111.209(a)(4)(C)(i)- (vi), as 

reasonable things for an owner of a designated site or the owner's agent to do. 

The commission appreciates the comment. No change to the rule has been made in 

response to the comment. 

TBA commented that it supported the proposed rules. It pointed out four issues which it stated 

probably do not affect the substance of the rule but may help eliminate ambjguities. 

In §111.209(a)(4}, the proposed rule uses the language "brush, trees, and other plant 

growth." Using the language "brush, trees, grass, leaves, branch trimmings, or other 

plant growth" would expand the language a little and be consistent with the language 

used in SB 1710, and in proposed §111.209(a)(4)(C)(i). 

The commission agrees that using the language "brush, trees, grass, leaves, branch 

trimmings, or other plant growth" would expand the language and be consistent with the 

language used in SB 1710. The language has been revised as recommended. 

21 
TBA commented that in §111.209(a)(4)(8), the proposed rule uses the language "In a county 

that is not part of {a} designated nonattainment area." TBA recommends using the language "In 

an area," rather than, "In a county." The statute uses the word "area" rather than "county." 

"County" could be ambiguous; does it mean both the incorporated and the unincorporated areas 

of the county? Or does it mean the unincorporated areas only? TBA prefers that the language 

"municipality that extends into a designated nonattainment area," read "municipality that is 

designated nonattainment area." TBA believes this may not be substantive but might help 

clarify the rule. 

The commission believes that the term "county" represents the only comprehensive set 

of legally defined areas in Texas. Furthermore, nonattainment areas are designated 

along county lines. No change has been made in response to the comment. 

The commission believes that the language "in a county that is not part of a designated 

nonattainment area and that does not contain any part of a municipality that extends into 

a designated nonattainment area" is necessary to concisely define the counties in which 

proposed §111.209(a)(4)(B) is not applicable. The rule is not applicable in two types of 

counties: 1) all counties in designated nonattainment areas; and 2) counties in 

attainment areas that both border a nonattainment county and in which a municipality 

extends across the county line into both the attainment and nonattainment areas. No 

change has been made in response to this comment. 

TBA commented that in §111.209(a)(4)(8), the proposed rule is subject to the requirements of 

§111.219(3), (4), (6), and (7). TBA believes paragraph (7) may be redundant. Paragraph (7) 

22 
talks about burning oil, non-wood construction items, and similar things. The rule itself does not 

contemplate the burning of things like oil or non-wood construction materials. 

While the commission acknowledges that proposed §111.209(a)(4)(B) does not contemplate the 

burning of items such as those prohibited in §111.219(7), the commission believes that making 

§111.209 subject to §111.219(7), emphasizes the necessity and importance of complying with 

the general restriction. No change has been made in response to the comment. 

TBA commented that in §111.209(a)(4)(C)(iii), the proposed rule requires the owner of a 

designated site to maintain records of the designated residential properties for which the site is 

designated. The record must contain the description of a platted subdivision and/or a list of 

each property address and the name of each property owner. TBA believes the language is 

confusing. Does it mean you must maintain the description of the platted subdivision or a list of 

each address, and in any event the name of each property owner? Or does it mean you must 

maintain the description or both the address and name of each property owner? TBA suggests 

the requirement to maintain the name of each property owner may not be necessary and that 

removing it would eliminate the confusion. The owner of the designated site may not have the 

name of the residential property owner, but if he has the description of the subdivision and the 

address of each property, then he knows the locations designated for the site. 

The commission agrees that the requirement to include the name of each property owner 

may be an unnecessary restriction and may be the cause of confusion. The requirement 

has been struck from the rule. 

TIDRC commented that while HB 39 created a Class C misdemeanor, located under Local 

Government Code, §352.052, the commission created a crime with a larger penalty under 

23 
Texas Water Code, §7.177(a)(5), by restating this prohibition against outdoor burning in 

proposed §111.209(b). 

The commission has undertaken this rulemaking as it relates to HB 39 to ensure that the 

exceptions for disposal fires contained in §111.209 are consistent with the new criminal 

statute located in Local Government Code, Chapter 352. TIDRC is correct that under 

Texas Water Code, §7.177(a)(5), an intentional or knowing violation of commission rules 

adopted under THSC, Chapter 382, carries penalties of up to $50,000 for an individual 

and up to 180 days confinement. The commission has made §111.209 subject directly to 

Local Government Code, §352.052, rather than repeating the restriction in proposed 

§111.209(b). This will provide notice of this new criminal statute without creating a larger 

penalty than HB 39 intended. 

TIDRC commented that SB 1710 specifically refers to areas that meet the NAAQS, but 

proposed §111.209(a)(4)(B), uses language that would have the rule change apply everywhere 

except nonattainment areas, which would include the undetermined areas, which constitute 

most of Texas. This would greatly expand the area that the rule would be applicable to beyond 

that specified in SB 1710. 

The commission concurs that the language in proposed §111.209(a)(4)(B) encompasses 

most attainment areas, and the language in SB 1710 does not encompass the 

undetermined areas. However, the language in SB 1710 does not describe an 

enforceable area. It is possible for an area to meet the NAAQS one day, and fail to meet 

the NAAQS for a particular pollutant on the next day, depending on atmospheric 

conditions and pollutant transport from other areas. On the other hand, nonattainment 

24 
areas are designated and legally defined areas. No change has been made in response 

to the comment. 

TIDRC commented that not all cities have local ordinances to deal with illegal burning. Some of 

them rely on the criminal application of Texas Water Code, §7.177 to address local burning 

within the city limits. By removing the criminal penalty for burning of brush and limbs and other 

plant waste inside the city limit, some cities will have to change their ordinances to ensure that 

their local policies will criminalize outdoor burning. 

The commission concurs that removing the criminal penalty for burning inside the city 

limit could prove a significant inconvenience to many Texas municipalities. The 

commission has undertaken this rulemaking to comply with SB 1710. SB 1710 requires 

the commission to authorize by rule the burning of plant growth in most attainment 

areas, if burned on the property of origin. The commission believes the intent of the 

legislation, in part, is to direct and delegate appropriate authority to our local 

governments in efforts that regulatory policies address the concerns of affected citizens. 

In response to the comment, the commission has made §111.209(4)(8) subject to any 

local ordinances that prohibit burning inside the corporate limits of a city or town and 

that are consistent with TCAA, Chapter 382, Subchapter E, Authority of Local 

Governments. This will allow each affected municipality to determine and address the 

concerns of affected citizens. 

GCHD commented that the proposed revisions authorize the burning of plant growth in areas 

that meet the NAAQS and do not contain any part of a city that does not meet the NAAQS if the 

waste is burned on the property of origin and by the owner of the property or any other person 

25 
authorized by the owner. GCHD asked the question, "What about burning of plant material in 

nonattainment areas on property of origin by the owner of the property or any other person 

authorized by the owner?" 

The adopted rule does not authorize outdoor burning in designated nonattainment areas 

on the property of origin by the owner or the property or any other person authorized by 

the owner. No change to the rule has been made in response to the comment. 

ECAT commented that it is a statewide organization made up of contractors who specialize in 

heavy dirt work, with a major portion of their work in the area of agriculture and natural resource 

conservation type work. ECAT does mechanical brush control as it relates to pasture 

conditions, and primarily as it relates to increasing and conserving both groundwater and 

surface water. ECAT has major concerns and interests in how the contractors dispose of the 

brush in their business. Burning in most of their applications is the only practical method. 

Therefore, it concerns ECAT when there are discussions at the state environmental agency that 

could possibly limit, or put unrealistic controls on this best practice. ECAT offers its services in 

the future to the commission whenever work on rules concerning agricultural burning is 

considered. 

The commission's proposed rule §111.209(a)(4)(A) and (B) will not prohibit any 

landclearing activity that is authorized under the current rule. The proposed amendment 

to the rule would remove the requirement of practical alternative in attainment areas. 

The commission thanks ECAT for its comments and welcomes suggestions on any 

future rule proposals concerning agricultural burning. 

26 
EPA commented that a comparison of Texas' revisions to §111.203 and §111.209 to current 

SIP-approved rules (including those currently under EPA consideration) seem to relax outdoor 

burning in some areas. EPA is concerned that a relaxation on outdoor burning would make it 

difficult for some areas to remain in attainment due to potential increases in direct emissions of 

particulate matter and other pollutants such as nitrogen oxides, volatile organic compounds, and 

sulfur dioxide. EPA stated that the proposal does not show noninterference with any of the 

Clean Air Act requirements, particularly with regard to FCAA, §110(1). EPA commented that the 

Texas SIP does not include §111.203 to §111.221, but instead an earlier approved version of 

rules including §§111.101, 111.103,111.105, and 111.107. EPA pointed out that the remaining 

sections not in the SIP are currently under EPA review and have not yet been approved. 

EPA suggested that the commission provide an explanation on how the amendments to 

§111.203 and §111.209, and how §§111.101, 111.103, 111.105, and 111.107 would not 

interfere with any of the FCAA requirements. EPA also commented that there must be an 

opportunity for notice and public comment. 

The 79th Legislature in 2005 amended THSC, §382.018(a), making it subject to the Local 

Government Code, §352.082, which classified certain types of outdoor burning, as 

designated in this rulemaking, as a Class C misdemeanor. 30 TAC §111.209 was 

amended accordingly to prohibit the burning of household refuse in a limited 

demographic area. The amendment to §111.209 would be more restrictive than current 

outdoor burning rules, which do not criminalize or prohibit outdoor burning in the 

specified area. The commission does not expect any increases in outdoor burning in the 

specified area and, therefore, this rulemaking would not constitute a relaxation of the 

Texas SIP. The commission made no changes to §111.209 in response to this comment. 

27 
Through the enactment of S8 1710, the 79th Legislature in 2005 amended THSC, 

§382.018(b) and (d). The current rules under revision (§111.203 and §111.209) require 

consideration of practical alternatives, incorporate all of the controls in §111.219, and do 

not make a distinction between areas of attainment and nonattainment. The adopted 

rules, however, make a distinction between allowable burning in areas of attainment and 

nonattainment. Section 111.209(4)(A) still incorporates all of the controls in §111.219. 

Section 111.209(4)(8) is subject to the controls in §111.219(3), (4), (6), and (7), is subject 

to any local ordinances that prohibit burning inside the corporate limits of a city or town 

and that are consistent with TCAA, Chapter 382, Subchapter E, Authority of Local 

Governments, and no longer require consideration of practical alternatives. 

THSC, §382.018(b) allows burning in areas that meet the NAAQS without requiring prior 

commission approval or consideration of practical alternatives. During proposal of the 

regulation, 30 TAC §111.209 was amended to authorize on-site outdoor burning in 

attainment areas without consideration of practical alternatives and incorporated 

§111.219(3), (4), (6), and (7). For areas in attainment, §111.209(4)(8) is subject to the 

controls in §111.219(3), (4), (6), and (7), and is subject to any local ordinances that 

prohibit burning inside the corporate limits of a city or town and that are consistent with 

TCAA, Chapter 382, Subchapter E, Authority of Local Governments. For areas of 

nonattainment, §111.209(4)(A) is subject to the air control measures in §111.219. Section 

111.219 will maintain the necessary controls on outdoor burning in nonattainment areas, 

such as delineating appropriate burn times, weather conditions, distances from sensitive 

receptors, prohibitions against burning certain materials, and prohibitions on burns 

within corporate limits of a city. Areas in attainment will also be subject to the controls 

28 
in §111.219, with the distinction that controls on allowable outdoor burning within the 

corporate limits of a city will be delegated to local authorities to enact ordinances 

consistent with the TCAA. The removal of practical alternatives in areas of attainment 

was specified by the legislat~:~re in the amendments made to THSC, §382.018(b). The 

removal of practical alternatives in areas of attainment will not constitute a relaxation of 

the SIP as the consideration was primarily for a demonstration of economic feasibility 

rather than a control on outdoor burn emissions. Controls on outdoor burn emissions 

remain in place because they are included in the requirements in §111.219, particularly 

with regard to areas in nonattainment so as not to constitute a relaxation of the SIP. The 

commission has adopted regulations to conform with the changes made to the statute 

without compromising controls on allowable outdoor burning. 

THSC, §382.018(d) was amended to allow for outdoor burning of plant growth generated 

from specific residential properties on designated sites outside of a municipality and in 

counties with a population less than 50,000. Section 111.209 currently does not allow for 

burning on designated sites. The amendment to §111.209 for designated sites requires 

mandatory notice to the commission prior to the burn, and requires supervision by a fire 

department employee. Only three counties in nonattainment areas meet the 

requirements for designated site burns (Hardin, Rockwall, and Chambers). The 

commission anticipates changes to the adopted rule would consolidate currently 

authorized outdoor burning rather than increasing it. Burning of domestic waste, 

including plant growth, is already authorized in these counties for private residences 

when collection of domestic waste is not provided or authorized by the local government 

having jurisdiction. To the commission's best available knowledge, no residential 

properties outside of the municipalities in these counties are provided with domestic 

29 
waste collection by the local government having jurisdiction. The adopted rules are not 

expected to result in an increase in outdoor burning as the counties that were previously 

conducting outdoor burns will be permitted to continue doing so, but with the 

requirement that the burns be conducted on a designated site and conducted within the 

requirements in §111.209. The additional controls, such as the required presence of a 

fire department employee supervising each burn, impose limits on the frequency and 

number of outdoor burns and, therefore, would not relax the SIP. The commission made 

no changes to the rules in response to this comment. 

Through the enactment of HB 39 and SB 1710, the 79th Legislature in 2005, amended 

THSC, §382.018(a)- (e), and §111.203 and §111.209 were amended accordingly to 

conform to the statutes. Sections 111.101, 111.103, 111.105, 111.107, 111.205, and 

111.207 were not proposed to be amended as HB 39 and SB 1710 did not affect these 

sections. Additionally, §§111.1 01, 111.103, 111.105, and 111.107 were repealed on 

August 21, 1996, and replaced with §§111.201 - 111.221 (64 FR 57983). The sections 

under EPA consideration for approval have now been amended (§111.203 and §111.209); 

therefore, there has only been a SIP revision for these sections and consideration or 

revisions of other sections in Chapter 111 would be outside the scope of SB 1710 and HB 

39. In response, a new section, DEMONSTRATING NONINTERFERENCE UNDER 

FEDERAL CLEAN AIR ACT, SECTION 110(1), has been incorporated in the rule preamble. 

The commission held a stakeholder meeting on September 26, 2005, in Austin and 

gained input from county and local law enforcement agencies, city governments, land 

developers, and utility companies. The amendments and public hearing notice were 

30 
published in the Texas Register on February 10, 2006, and the public hearing was held on 

March 7, 2006, to obtain comment. 

31 
STAFF 

RECOMMENDATIONS 
CHAPTER 111: CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER B: OUTDOOR BURNING 

§111.203, §111.209 

STATUTORY AUTHORITY 

The amendments are adopted under THSC, §382.002, relating to Policy and Purpose, Texas 

Clean Air Act (TCAA), §382.011, which authorizes the commission to administer the 

requirements of the TCAA; §382.012, which provides the commission the authority to develop a 

comprehensive plan for the state's air; §382.017, which authorizes the commission to adopt 

rules consistent with the policy and purposes of the TCAA; §382.018, which authorizes the 

commission to control outdoor burning; and §382.085, which prohibits unauthorized air 

emissions; and Texas Water Code, §5.1 03 and §5.1 05, which authorizes the commission to 

adopt rules. 

The adopted amendments implementTHSC, §§382.002, 382.011,382.017, and 382.018. 

§111.203. Definitions. 

Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the 

Texas Commission on Environmental Quality (commission), the terms used by the commission 

have the meanings commonly ascribed to them in the field of air pollution control. In addition to 

the terms that are defined by the TCAA, the following terms, when used in this chapter, have the 

following meanings, unless the context clearly indicates otherwise. 

1 
(1) Extinguished--The absence of any visible flames, glowing coals, or smoke. 

(2) Landclearing operation--The uprooting, cutting, or clearing of vegetation in 

connection with conversion for the construction of buildings, rights-of-way, residential, 

commercial, or industrial development, or the clearing of vegetation to enhance property value, 

access, or production. It does not include the maintenance burning of on-site property wastes 

such as fallen limbs, branches, or leaves, or other wastes from routine property clean-up 

activities, nor does it include burning following clearing for ecological restoration. 

(3) Neighborhood--A platted subdivision or property contiguous to and within 

300 feet of a platted subdivision. 

(4) Practical alternative--An economically, technologically, ecologically, and 

logistically viable option. 

(5) Prescribed burn--The controlled application of fire to naturally occurring 

vegetative fuels under specified environmental conditions and confined to a predetermined 

area, following appropriate planning and precautionary measures. 

(6) Refuse--Garbage, rubbish, paper, and other decayable and nondecayable 

waste, including vegetable matter and animal and fish carcasses. 

(7) Structure containing sensitive receptor(s)--A man-made structure utilized 

for human residence or business, the containment of livestock, or the housing of sensitive live 

vegetation. The term "man-made structure" does not include such things as range fences, 

2 
roads, bridges, hunting blinds, or facilities used solely for the storage of hay or other livestock 

feeds. The term "sensitive live vegetation" is defined as vegetation that has potential to be 

damaged by smoke and heat, examples of which include, but are not limited to, nursery 

production, mushroom cultivation, pharmaceutical plant production, or laboratory experiments 

involving plants. 

(8) Sunrise/Sunset--Official sunrise/sunset as set forth in the United States 

Naval Observatory tables available from National Weather Service offices. 

(9) Wildland--Uncultivated land other than fallow, land minimally influenced by 

human activity, and land maintained for biodiversity, wildlife forage production, protective plant 

cover, or wildlife habitat. 

§111.209. Exception for Disposal Fires. 

Except as provided in Local Government Code, §352.082, outdoor burning is authorized 

for the following: 

(1) domestic waste burning at a property designed for and used exclusively as a 

private residence, housing not more than three families, when collection of domestic waste is 

not provided or authorized by the local governmental entity having jurisdiction, and when the 

waste is generated only from that property. Provision of waste collection refers to collection at 

the premises where the waste is generated. The term "domestic waste" is defined in § 101.1 of 

this title (relating to Definitions). Wastes normally resulting from the function of life within a 

residence that can be burned include such things as kitchen garbage, untreated lumber, 

3 
cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch 

trimmings. Examples of wastes not considered domestic waste that cannot be burned, include 

such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and 

appliances; 

(2) diseased animal carcass burning when burning is the most effective means 

of controlling the spread of disease; 

(3) veterinarians in accordance with Texas Occupations Code, §801.361, 

Disposal of Animal Remains; 

(4) on-site burning of trees, brush, grass, leaves, branch trimmings, or other 

plant growth, by the owner of the property or any other person authorized by the owner, and 

when the material is generated only from that property: 

(A) in a county that is part of a designated non attainment area or that 

contains any part of a municipality that extends into a designated nonattainment area; if the 

plant growth was generated as a result of right-of-way maintenance, landclearing operations, 

and maintenance along water canals when no practical alternative to burning exists. Such 

burning is subject to the requirements of §111.219 of this title (relating to General Requirements 

for Allowable Outdoor Burning). Commission notification or approval is not required; or 

(B) in a county that is not part of a designated nonattainment area and 

that does not contain any part of a municipality that extends into a designated nonattainment 

area; this provision includes, but is not limited to, the burning of plant growth generated as a 

4 
result of right-of-way maintenance, landclearing operations, and maintenance along water 

canals. Such burning is subject to local ordinances that prohibit burning inside the corporate 

limits of a city or town and that are consistent with the Texas Clean Air Act, Chapter 382, 

Subchapter E, Authority of Local Governments, and the requirements of §111.219(3), (4), (6), 

and (7) of this title. Commission notification or approval is not required. 

(5) at a site designated for consolidated burning of waste generated from 

specific residential properties. A designated site must be located outside of a municipality and 

within a county with a population of less than 50,000. The owner of the designated site or the 

owner's authorized agent shall: 

(A) post at all entrances to the site a placard measuring a minimum of 48 

inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED 

BURN SITE - No burning of any material is allowed except for trees, brush, grass, leaves, 

branch trimmings, or other plant growth generated from specific residential properties for which 

this site is designated. All burning must be supervised by a fire department employee. For 

more information call {PHONE NUMBER OF OWNER OR AUTHORIZED AGENT}." The 

placard(s) must be clearly visible and legible at all times; 

(B) designate specific residential properties for consolidated burning at 

the designated site; 

(C) maintain a record of the designated residential properties. The 

record must contain the description of a platted subdivision and/or a list of each property 

5 
address. The description must be made available to commission or local air pollution control 

agency staff within 48 hours, if requested; 

(D) ensure that all waste burned at the designated site consists of trees, 

brush, grass, leaves, branch trimmings, or other plant growth; 

(E) ensure that all such waste was generated at specific residential 

properties for which the site is designated; and 

(F) ensure that all burning at the designated site is directly supervised by 

an employee of a fire department who is part of the fire protection personnel, as defined by 

Texas Government Code, §419.021, and is acting in the scope of the person's employment. 

The fire department employee shall notify the appropriate commission regional office with a 

telephone or electronic facsimile notice 24 hours in advance of any scheduled supervised burn. 

The commission shall provide the employee with information on practical alternatives to burning. 

Commission approval is not required; 

(6) crop residue burning for agricultural management purposes when no 

practical alternative exists. Such burning shall be subject to the requirements of §111.219 of 

this title and structures containing sensitive receptors must not be negatively affected by the 

burn. When possible, notification of the intent to burn should be made to the appropriate 

commission regional office prior to the proposed burn. Commission notification or approval is 

not required. This section is not applicable to crop residue burning covered by an administrative 

order; and 

6 
(7) brush, trees, and other plant growth causing a detrimental public health and 

safety condition burned by a county or municipal government at a site it owns upon receiving 

site and burn approval from the executive director. Such a burn can only be authorized when 

there is no practical alternative, and it may be done no more frequently than once every two 

months. Such burns cannot be conducted at municipal solid waste landfills unless authorized 

under §111.215 of this title (relating to Executive Director Approval of Otherwise Prohibited 

Outdoor Burning), and shall be subject to the requirements of §111.219 of this title. 

7 
TExAs CoMMISSION ON ENVIRONMENTAL QuALITY 

ORDER ADOPTING AMENDED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2005-1799-RUL 

On June 28, 2006, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended§ 111.203 and§ 111.209. The Commission adopts this amendment 

in Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, Subchapter B, 

Outdoor Burning; and corresponding revisions to the state implementation plan (SIP). The adopted revisions 

to § 111.203 and § 111.209 do not constitute a relaxation to the SIP. 

Section 111.203 was amended to prohibit the burning of household refuse in a limited demographic 

area on lots of less than five acres, qualifying as a Class C misdemeanor. The Commission does not 

anticipate increased burns or a relaxation of the SIP from the amendment to § 111.203, as outdoor burns 

previously allowed would now constitute a Class C misdemeanor. Section 111.209 was amended to make a 

distinction between allowable burning in areas of attainment and nonattainment, incorporate all of the controls 

in§ 111.219, and no longer require consideration of practical alternatives in areas of attainment. Section 

111.219 will maintain the necessary controls on emissions from outdoor burns in attaimnent areas, by 

delineating appropriate times, weather conditions, distance from sensitive receptors, prohibitions against 

burning certain materials, and prohibitions on burns within corporate limits of a city. The removal of 

practical alternatives in areas of attainment was specified by the legislature in the amendments made to Tex. 

Health & Safety Code Ann. §382.0f8(b). The removal of practical alternatives in areas of attaimnent will not 

constitute a relaxation of the SIP as the consideration was primarily for a demonstration of economic 

feasibility rather than a control on outdoor burn emissions. Section 111.209 was also amended to authorize 

designated site burns where plant growth was generated from specific residential properties outside of a 

municipality and in counties with a population less than 50,000. The current version of§ 111.209 does not 

allow for burning on designated sites. Designated site burns require mandatory notice to the commission 

prior to the burn, include the controls in§ 111.219, require consideration of practical alternatives, and require 

supervision by a fire department employee. Designated site burns are not expected to result in an increase in 

outdoor burning, as the counties that were previously conducting outdoor burns will be permitted to continue 

doing so, but at designated sites, will be limited to plant growth, conducted within the requirements in § 

111.209 and § 111.219, and will require the presence of a fire department employee supervising each burn. 

The Cmmnission believes that the additional limitations and requirements for designated site burns will limit 

the frequency and number of outdoor burns and would not constitute a relaxation of the SIP. 

Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the 

Cmmnission 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 Tex. Health & Safety Code. The 

proposed rules were published for comment in the February 10, 2006, issue of the Texas Register (31 TexReg 

819). 
Pursuant to Tex. Health & Safety Code A1m. § 382.017 (Vernon 2001), Tex. Gov't Code, Chapter 

2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations§ 51.102 and after proper 

notice, the Commission conducted a public hearing to consider the amendments 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 on March 7, 2006, at the Texas Cmmnission on Environmental Quality 

at 12100 Park 35 Circle, Building B, Room 201A. 

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 amended 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 amended rules and SIP revision were available for public inspection at the 

Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed amended rules and 

SIP revisions were submitted to the Commission during the comment period, and were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The 

Cmmnission finds that the analysis of testimony includes the names of all interested groups or associations 

offering comment on the proposed amended rules and the SIP revisions and their position concerning the 

same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended 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 

Chairman should transmit a copy of this Order, together with the adopted rules 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, § 110, codified at 42 U.S. Code Ann. §§ 7410- 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Tex. Gov't Code, § 2001.033 (Vernon 2000 & Vernon Supp. 2005). 

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: JUL 0 5 2005 
I 

(II) if the executi e director determines that there 

is substantial public interest in the faci ty. 

(3) For purposes of this su ection, "substantial public interest" is demonstrated if a request for public meeting is filed by: 

(A) a local government I entity with jurisdiction over 

the location in which the facility is Joe ted or proposed to be located 

by formal resolution of the entity's gov rning body; 

(B) a council of govern ents with jurisdiction over the 

location in which the facility is locate or proposed to be located by 

formal request of either the council's s lid waste advisory committee, 

executive committee, or governing bo d; 

(C) a homeowners' or p 

rnally organized or chartered and havi 

in the general area in which the facili 

located; or 

perty owners' association forat least ten members located 

is located or proposed to be 

(D) a group of ten or ore local residents, property 

owners, or businesses located in the ge era! area in which the facility 

is located or proposed to be located. 

( 4) A public meeting is not contested case proceeding under the Administrative Procedure Act. public meeting held as part of 

a local review committee process unde subsection (a) of this section 

meets the requirements of this subsecti n if public notice is provided 

in accordance with this subsection. 

(5) The applicant shall pub! h notice of the public meeting 

once each week during the three wee s preceding a public meeting 

under §39.405(f)(2) of this title. The p blished notice must be at least 

15 square inches (96.8 square centime rs) with a shortest dimension 

of at least three inches (7 .6 centimeter . 

( 6) The chief clerk shall rna I notice to the persons listed in 

§39.413 of this title. 

(f) Notice of contested case he ring. 

(I) Applicability. This subs ction applies if an application 

is referred to the State Office of Adrnini ative Hearings for a contested 

case hearing under Chapter 80 of this t le (relating to Contested Case 

Hearings). 

(2) Newspaper notice. 

(A) If the application c ncerns a facility other than a 

hazardous waste facility, the applicants all publish notice at least once 

in a newspaper of general circulation in he county in which the facility 

is located and in each county and area t at is adjacent or contiguous to 

each county in which the proposed fac' ity is located. 

(B) For Class I under und injection wells, the published notice must be .at least 15 squar inches (96.8 square centimeters) with a shortest dimension of at le three inches (7 .6 centimeters) 

and the notice must appear in the secti n of the newspaper containing 

state or local news items. 

(C) If the application co cerns a hazardous waste facility, the hearing must include one sessi n held in the county in which 

the facility is located. The applicant sh ll publish notice of the hearing 

once each week during the three wee preceding the hearing under 

§39.405(f)(2) of this title. The publis ed notice must be at least 15 

square inches (96.8 square centimeter with a shortest dimension of 

at least three inches (7.6 centimeters). The notice must appear in the 

section of the newspaper containing sta e or local news items. The text 

of the notice must include the staternen that at least one session of the 

hearing will be held in the county in w ich the facility is located. 

(3) Mailed notice. 

31 TexReg 5654 July 14, 2006 Texas Register 

(A) For all appli tions concerning underground injection wells, the chief clerk shall ail notice to persons listed in §39.413 

of this title. 

(B) For notice o hearings concerning Class I underground injection wells, the chie clerk shall also mail notice to: 

(i) persons w own the property on which the existing or proposed injection well f: ility is or will be located, if different 

from the applicant; 

(ii) landowne adjacent to the property on which 

the existing or proposed injectio well facility is or will be located; 

(iii) persons ho own mineral rights underlying the 

existing or proposed injection ll facility; and 

(iv) persons o own mineral rights underlying the 

tracts ofland adjacent to the pro rty on which the existing or proposed 

injection well facility is or will e located. 

(C) If the applic t proposes a new solid waste management facility, the applicant all mail notice to each residential or 

business address, not listed und r subparagraph (A) of this paragraph, 

located within 112 mile of the f: ility and to each owner of real property located within 112 mile oft facility listed in the real property appraisal records of the appraisal istrict in which the facility is located. 

The notice must be mailed to t e persons listed as owners in the real 

property appraisal records on th date the application is determined to 

be administratively complete. e notice must be mailed no more than 

45 days and no less than 30 d s before the contested case hearing. 

Within 30 days after the date o mailing, the applicant shall file with 

the chief clerk an affidavit cert ing compliance with its obligations 

under this subsection. Filing an ffidavit certifying facts that constitute 

compliance with notice require ents creates a rebuttable presumption 

of compliance with this subpa aph. 

(4) Radio broadcas If the application concerns a hazardous waste facility, the ap licant shall broadcast notice under 

§39.503(d)(2) of this title. 

(5) Deadline. Notic under paragraphs (2)(A), (3), and (4) 

of this subsection must be com leted at least 30 days before the contested case hearing. 

(g) Approval. All pub ·shed notices required by this section 

must be in a form approved by e executive director prior to publication. 

This agency hereby certifies at the adoption has been reviewed 

by legal counsel and found t be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the S cretary of State on June 29, 2006. 

TRD-200603521 

Robert Martinez 

Acting Director, Environmental L w Division 

Texas Commission on Environm ntal Quality 

Effective date: July 19, 2006 

Proposal publication date: Marc 24, 2006 

For further information, please c II: (512) 239-5017 

• • • 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 
SUBCHAPTER B. OUTDOOR BURNING 

30 TAC §111.203, §111.209 

The Texas Commission on Environmental Quality (TCEQ or 

commission) adopts amendments to §111.203 and §111.209. 

Section 111 .209 is adopted with change to the proposed text as 

published in the February 10, 2006, issue of the Texas Register 

(31 TexReg 819). Section 111.203 is adopted without change to 

the proposed text and the text will not be republished. 

The amended 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 

House Bill (HB) 39, 79th Legislature, 2005, amended Texas 

Health and Safety Code (THSC), §382.018, Outdoor Burning of 

Waste and Combustible Material, by making it subject to Local 

Government Code, §352.082, Outdoor Burning of Household 

Refuse in Certain Residential Areas. Under Local Government 

Code, §352.082, a person commits a Class C misdemeanor if 

the person intentionally or knowingly burns household refuse 

outdoors on a lot that is located in a neighborhood or on a lot that 

is smaller than five acres. Local Government Code, §352.082, 

is applicable only to the unincorporated area of a county that is 

adjacent to a county with a population of 3.3 million or more, 

in which a planned community is located that has 20,000 or 

more acres of land that was originally established under the 

Urban Growth and New Community Development Act of 1970 

(42 United States Code, §§4501 et seq.) and that is subject to 

restrictive covenants containing ad valorem or annual variable 

budget-based assessments on real property. The adopted 

rules will prohibit the burning of household refuse in the area 

delineated by Local Government Code, §352.082. 

Senate Bill (SB) 1710, 79th Legislature, 2005, also amended 

THSC, §382.018, by adding subsections (b) and (c), which require the commission to authorize by rule the burning of waste 

consisting of plant growth in areas that meet the national ambient air quality standards (NAAQS) and do not contain any part 

of a city that does not meet the NAAQS if the waste is burned 

on the property of origin and by the owner of the property or any 

other person authorized by the owner. The commission is prohibited from requiring prior commission approval of the burning, 

or from authorizing the burning only when no practical alternative 

exists. Current rules do not make a distinction between attainment and nonattainment areas regarding outdoor disposal fires. 

The adopted rules will implement the authorization by rule required by THSC, §382.018. 

SB 1710 also amended THSC, §382.018, by adding subsections 

(d) and (e), which prohibit the commission from controlling or 

prohibiting outdoor burning of waste consisting of plant growth 

at a site designated for burning of waste generated from specific 

residential properties located outside of a municipality and in a 

county with a population of less than 50,000, if supervised by 

a fire department employee acting in the scope of the person's 

employment. The current rules do not authorize the burning of 

waste at designated sites. The adopted rules will establish minimal compliance determination criteria to ensure that all activities 

meet the qualifications for burns at designated sites. The commission notes that only three counties, Chambers, Hardin, and 

Rockwall, are within designated nonattainment areas and have 

a population of less than 50,000. Burning of domestic waste, 

including plant growth, is already authorized in these counties 

for private residences when collection of domestic waste is not 

provided or authorized by the local governmental entity having 

jurisdiction. To the commission's best available knowledge, no 

residential properties outside of municipalities in these counties 

are provided with domestic waste collection by the local governmental entity having jurisdiction. Therefore, the adopted rules 

will not cause an increase in plant growth burning in designated 

nonattainment areas. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL 

CLEAN AIR ACT, SECTION 110(1) 

Issue 

The commission provides the following information to clarify why 

the amendments to §111.203 and §111.209 and the Texas SIP, 

will not negatively impact the status of the state's attainment areas. 

The requirement for reasonable notice and public hearing is satisfied through the hearing held on March 7, 2006, and the public comment period, which was held from February 10, 2006, to 

March 13, 2006. EPA also issued draft guidance on June 8, 

2005, "Demonstrating noninterference Under Section 110(1) of 

the Clean Air Act When Revising a State Implementation Plan." 

The guidance states (page 6) that " ... areas have two options 

available to demonstrate noninterference for the affected pollutant(s)." This document provides detail of the identified existing 

measures in the rule preamble to show compliance with option 

(1) of EPA's guidance: Substitution of one measure by another 

with equivalent or greater emissions reduction/air quality benefits. 

Background 

In September 1996 (21 TexReg 8505), the commission approved revisions to the Texas outdoor burning regulations by 

repealing §§111.101, 111.103,111.105, and 111.107 and adopting §§101.201-101.221, 111.201, 111.203, 111.205, 111.207, 

111.209, 111.211, 111.213, 111.215, 111.219 and 111.221. In 

October 1999 (64 FR 57983), EPA took a direct final action to 

approve these revisions to the state's outdoor burning regulations as amendments to the SIP. However, EPA received an 

adverse comment regarding the amendments and, therefore, 

withdrew the direct final rulemaking in December 1999 (64 FR 

70592). EPA is now in the process of reviewing that action. 

As this rulemaking is a revision of regulations currently under review and consideration by EPA for inclusion in the Texas SIP, the 

commission is asking EPA to review these revisions to §111.203 

and §111.209 for inclusion in the SIP, concurrently with the previously submitted outdoor burning regulations. 

Analysis of Revisions 

a) Revision of §111.203 adds the definitions of "Neighborhood" 

and "Refuse" as repeated from THSC, §343.002. No air control 

measures have been removed. 

b) Revisions to § 111.209. 

1) Section 111.209 has been made subject to Local Government 

Code, §352.082, which classifies certain types of outdoor burning as a Class C misdemeanor. This revision is more restrictive than current outdoor burning rules, which do not prohibit 

outdoor burning in the area specified in amended Local Government Code, §352.082 (Montgomery County). Furthermore, 

the adoption of this rule revision and/or the SIP has no bearing 

on the implementation and enforcement of Local Government 

Code, §352.082. No air control measures have been removed. 

ADOPTED RULES July 14, 2006 31 TexReg 5655 
2) THSC, §382.018(d) was amended to prohibit the commission 

from controlling or prohibiting outdoor burning of waste consisting of plant growth generated from specific residential properties 

on designated sites outside of a municipality and in counties with 

a population of less than 50,000. THSC, §382.018(d) is self-implementing. To address the statutory amendment, §111.209(5) 

authorizes outdoor burning at certain sites as designated by the 

property owner. However, this revision merely consolidates currently authorized outdoor burning, and does not authorize an 

increase in outdoor burning frequency. Burning waste consisting of plant growth generated from residential properties within 

the county but outside of municipalities is currently authorized 

under §111.209(1) as burning of domestic waste. To the commission's best available knowledge, county jurisdictions do not 

regularly provide domestic waste collection as that service is ordinarily provided by a municipality. The revision provides an option allowing homeowners to consolidate yard waste at a designated site before burning, rather than having many smaller fires 

throughout the neighborhood. Furthermore, the revision places 

additional restrictions on outdoor burning at such a designated 

site than currently exist for burning of domestic waste. Specifically, the revision requires mandatory notice to the commission 

prior to the burn and requires supervision by a fire department 

employee who is part of the fire protection personnel, as defined by Texas Government Code, §419.021, that is acting in the 

scope of that person's employment. The required supervision of 

a fire department employee for each burn imposes limits on the 

frequency and number of outdoor burns and, therefore, would 

not constitute a relaxation of the SIP. No air control measures 

have been removed. 

3) THSC, §382.018(b) was amended to require the commission to authorize by rule the burning of waste consisting of plant 

growth on the property of origin, if in an area that meets the 

NAAQS. Section 111.209(4)(B) authorizes the burning of plant 

growth on the property of origin in most areas of attainment, regardless of the type of activity that produced the waste. Current 

rules authorize the burning of waste plant growth on the property 

of origin, but limit activities to right-of-Way maintenance, landclearing operations, and maintenance along water canals, and 

only when no practical alternative to burning exists. 

However, most activities that generate plant waste are the result 

of right-of-way maintenance, landclearing operations, maintenance along water canals, or domestic activities. Plant waste 

generated from all of these activities is currently authorized. 

Therefore, no restriction on the type of activity for which waste 

plant growth may be burned has been removed. 

THSC, §382.018(c) was amended to prohibit rules adopted under THSC, §382.018(b) from 1) requiring prior approval of the 

burn; and 2) authorizing the burning only when no practical alternative to burning exists. The removal of the requirement to 

burn only when no practical alternative to burning exists does not 

constitute the removal of a practical or effective air control measure. In response to comments during the 1996 rulemaking (21 

Tex Reg 8509), the commission stated that "The commission's 

intent. . .is to foster an analysis of practical alternatives prior 

to burning." The current rule does not require approval of the 

practical alternative analysis prior to burning. Once the responsible party has determined that alternatives are not practical, it 

is unreasonable to dispute the determination due to the broad 

and vague nature of the definition of practical alternative, per 

§111.101 (4) (formerly §111.101 (3)), "An economically, technologically, ecologically, and logistically viable option." TCEQ guidance document RG-049, Appendix D, states that when evaluat31 TexReg 5656 July 14, 2006 Texas Register 

ing these four criteria the standard of judgment should be that 

of a "reasonable person." Therefore, practical alternative does 

not constitute an air control measure, but rather a measure to 

foster an analysis prior to burning, as was the commission's intent. To demonstrate this, there is no record in the commission's 

compliance database of any Notices of Violation or Enforcement 

for violation of the practical alternative clause. Actions on record 

regarding outdoor burning cite the burning of inappropriate material, burning in unauthorized locations, burning under unauthorized conditions (e.g. high winds, inappropriate hours, proximity to receptors, etc.), burning of domestic waste where waste 

collection is provided, or causing nuisance conditions. This further demonstrates that the appropriate air control measures to 

ensure noninterference with the Texas SIP are in place. Additionally, the commission stated during the 1996 rulemaking and 

in RG-049 that "The use of trench burners is a practical alternative under certain circumstances." The use of trench burners 

has not been demonstrated to significantly increase burning efficiency, but is rather a method used to prevent nuisance conditions. Therefore, the removal of practical alternative does not 

imply an increase in the quantity of material that may be burned, 

or an increase in air contaminants resulting from burning. 

Finally, the current rule is subject to all of the air control measures in §111.219. The revised rules, for areas in attainment, 

are subject to the air control measures in §111.219(3), (4), (6), 

and (7), and subject to any local ordinances that prohibit burning 

inside the corporate limits of a city or town, consistent with Texas 

Clean Air Act (TCAA), Chapter 382, Subchapter E, Authority of 

Local Governments. The revised rules, for areas in nonattainment, maintain all of the air control measures in §111.219. 

The commission does not anticipate increased burning or a relaxation of the Texas SIP for those municipalities in areas of attainment. Municipalities in areas of attainment remain subject 

to the prohibitions on outdoor burning in §111.219(3), (4), (6), 

and (7), which list prohibited burn materials, specify appropriate 

weather conditions, and prohibit causing adverse effects to any 

thoroughfares or off-site sensitive receptors. The adopted rules 

will confer control of allowable outdoor burning to local authorities but require that ordinances prohibiting or regulating outdoor 

burning comply with the TCAA, Chapter 382, Subchapter E, Authority of Local Governments. Regardless of whether in areas of 

attainment or nonattainment, persons conducting outdoor burns 

remain responsible for any consequences, damages, or injuries 

resulting from the burning in accordance with § 111.221, Responsibility for Consequences of Outdoor Burning. 

Conclusion 

In addition to the above analysis of the rule, §1 01.4, General 

Nuisance, continues to provide a determination for whether an 

air contaminant release is a nuisance. The commission determined that there are sufficient rules and procedures in place to 

assure compliance with the Texas SIP, and that sufficient air control measures exist in this rulemaking so as not to constitute a 

relaxation of the Texas SIP. 

SECTION BY SECTION DISCUSSION 

Administrative and grammatical changes are adopted throughout the sections to bring the existing rule language into agreement with Texas Register requirements, agency guidelines, and 

guidance provided in the Texas Legislative Council Drafting Manual, November 2004. 

The adopted amendment to § 111.203, Definitions, adds the definition of "Neighborhood" and "Refuse" and renumbers subse-
quent definitions to accommodate the adopted new definitions. 

The adopted new definitions are repeated from THSC, §343.002. 

The adopted amendment to §111.203 will also update the name 

"Texas Natural Resource Conservation Commission" to "Texas 

Commission on Environmental Quality." 

The adopted amendment to § 111.209, Exception for Disposal 

Fires, is made subject to Local Government Code, §352.082. 

The proposed rule repeated Local Government Code, §352.082, 

in proposed subsection (b). All of adopted §111.209 is instead 

made subject directly to Local Government Code, §352.082. Local law enforcement will be the primary authority in the enforcement of Local Government Code, §352.082. 

The adopted amendment to §111.209 also authorizes, as required by THSC, §382.018(b), the burning of plant growth on 

the property on which it was generated and by the owner of the 

property, or any person authorized by the owner, in counties that 

are not designated as nonattainment and that do not contain any 

part of a city that is part of a designated nonattainment area, 

by adding adopted new paragraph (4)(B}, proposed as subsection (a}(4)(B}. The adopted rule expands the existing options for 

on-site burning of plant growth in most attainment areas by removing the requirement to consider practical alternatives and by 

allowing on-site burning of plant growth by all property owners, 

rather than only for right-of-way maintenance, landclearing operations, and maintenance along waterways. The adopted rule, 

§111.209(4)(B), is subject to §111.219(3}, (4}, (6), and (7}, and 

subject to any local ordinances that prohibit burning inside the 

corporate limits of a city or town, consistent with TCAA, Chapter 

382, Subchapter E, Authority of Local Governments. 

The adopted paragraph (4} does not expand the existing options for on-site burning of plant growth in nonattainment areas. 

Paragraph (4)(A), proposed as subsection (a)(4)(A), will continue to authorize burning in nonattainment areas, but only for 

right-of-way maintenance, landclearing operations, and maintenance along water canals, and only in the absence of a practical alternative. When proposed, subsection (a}(4)(A) covered 

the entire state. The adopted rule, §111.209(4)(A), is subject to 

§111.219. 

The context of "plant growth" has been expanded in paragraph 

(4) to match the language used in SB 1710. When proposed, 

subsection (a)(4)(B) was explicitly subject to authorization by 

the owner of the property, per the requirement in SB 1710. All 

burning under adopted paragraph (4) is subject to authorization 

by the owner of the property. This is to clarify that while the 

language is required by SB 1710 for burning under paragraph 

(4)(B), the absence of the language elsewhere does not imply 

that burning on site without the consent of the property owner is 

authorized. 

To protect human health and safety and environmental receptors, adopted §111.209(4}(B) is made subjectto §111.219(3), (4), 

(6}, and (7), relating to General Requirements for Allowable Outdoor Burning. In order to ensure that local authorities retain appropriate authority to enact ordinances controlling outdoor burning, adopted §111.209(4}(B) is made subject to any local ordinances that prohibit burning inside the corporate limits of a city 

or town and that are consistent with TCAA, Subchapter E, Authority of Local Governments. The commission also notes that 

all responsible persons engaged in outdoor burning are subject 

to §111.221, relating to Responsibility for Consequences of Outdoor Burning. 

The adopted amendment to § 111.209 also provides for the burning of waste plant growth generated from specific residential 

properties at designated sites located outside of municipalities 

and within counties with a population of less than 50,000, by 

adding adopted new paragraph (5), proposed as subsection 

(a)(4)(C). Under specific conditions, the commission is prohibited from controlling or prohibiting burning under THSC, 

§382.018(d). The burn must be at a designated burn site, 

located outside of a municipality, and within a county with a 

population of less than 50,000. All material burned must consist 

of plant growth generated at specific residential properties for 

which the site is designated. The burn must be supervised by 

a fire department employee acting in the scope of the person's 

employment, who must notify the commission of each supervised burn. To determine if burns under adopted paragraph (5) 

meet the conditions of THSC, §382.018(d), the adopted rule 

requires the owner of the site or the owner's authorized agent to 

post the designated site, maintain a description or list of specific 

residential properties for which the site is designated, ensure 

that all waste burned consists of plant growth generated from 

these properties, and to ensure that a qualified fire department 

employee supervises each burn at the site. The requirement 

under proposed subsection (a)(4}(C}(iii), now paragraph (5)(C), 

to include the name of each property owner on the record of 

designated residential properties has been struck from the 

adopted rule. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rule making in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the rulemaking is not subject 

to §2001.0225 because it does not meet the definition of a major 

environmental rule as defined in the Administrative Procedure 

Act. A "major environmental rule" is a rule that is specifically 

intended to protect the environment or reduce risks to human 

health from environmental exposure, and that may adversely 

affect in a material way the economy, productivity, competition, 

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

or a sector of the state. The primary purpose of the adopted 

rules is to protect the environment through the regulation of 

the outdoor burning of waste and combustible material. The 

adopted rules will not have an adverse material impact because 

the adopted rules are limited to revisions to the prohibition on 

and exception for disposal fires. The adopted revisions will: 1) 

prohibit the burning of domestic waste in residential areas that 

are in unincorporated areas of a county adjacent to a county 

with a population of 3.3 million or more and where there is a 

planned community of 20,000 acres or more. In these residential areas, domestic waste cannot be burned in a neighborhood 

or on a lot that is less than five acres; 2) allow for the burning of 

waste consisting of plant growth in areas that meet the NAAQS 

and do not contain any part of a city that does not meet the 

NAAQS if the waste is burned on the property of origin and by 

the owner of the property or any other person authorized by the 

owner; and 3) allow for the outdoor burning of waste consisting 

of plant growth at a site designated for consolidated burning 

of waste generated from specific residential properties located 

outside of a municipality and in a county with a population of 

less than 50,000, if supervised at the time of the burning by a 

fire department employee acting in the scope of the person's 

employment. 

Furthermore, the adopted rulemaking does not meet any of the 

four applicability requirements listed in Texas Government Code, 

§2001.0225(a), where the adopted rules: 1) are specifically reADOPTED RULES July 14,2006 31 TexReg 5657 
quired by state law, namely THSC, §382.018; 2) do not exceed 

the express requirements of THSC, §382.018; 3) do not exceed 

a requirement of a federal delegation agreement or contract between the state and an agency or representative of the federal 

government to implement a state and federal program; and 4) 

are not an adoption of a rule solely under the general powers of 

the commission. 

Based on this assessment, the adopted rulemaking does not 

constitute a major environmental rule and is not subject to 

the regulatory analysis provisions of Texas Government Code, 

§2001.0225. Public comments were solicited. No public comments were received regarding the regulatory impact analysis 

determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rules and performed an 

assessment of whether the adopted rules constitute a taking under Texas Government Code, Chapter 2007. The primary purpose of the adopted rules is to protect the environment through 

the regulation of the outdoor burning of waste. 

Promulgation and enforcement of these adopted rules will be 

neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations do not affect 

a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the 

owner's right to property and reduce its value by 25% or more 

beyond that which would otherwise exist in the absence of the 

regulations. The adopted rules are limited to revisions to the 

prohibition on and exception for disposal fires. The adopted revisions will: 1) prohibit the burning of domestic waste in residential areas that are in unincorporated areas of a county adjacent 

to a county with a population of 3.3 million or more and where 

there is a planned community of 20,000 acres or more. In these 

residential areas, domestic waste cannot be burned in a neighborhood or on a lot that is less than five acres; 2) allow for the 

burning of waste consisting of plant growth in areas that meet the 

NMOS and do not contain any part of a city that does not meet 

the NMOS if the waste is burned on the property of origin and by 

the owner of the property or any other person authorized by the 

owner; and 3) allow for the outdoor burning of waste consisting 

of plant growth at a site designated for consolidated burning of 

waste generated from specific residential properties located outside of a municipality and in a county with a population of less 

than 50,000, if supervised at the time of the burning by a fire 

department employee acting in the scope of the person's employment. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found 

that the revision is subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination 

Act, Texas Natural Resources Code, §33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination 

for the adopted rules in accordance with Coastal Coordination 

Act Implementation Rules, 31 TAC §505.22, and found that the 

adopted rulemaking is consistent with the applicable CMP goals 

and policies. 

The CMP goals applicable to the adopted rules include: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to 

ensure sound management of all coastal resources by allow31 TexReg 5658 July 14, 2006 Texas Register 

ing for compatible economic development and multiple human 

uses of the coastal zone; to ensure and enhance planned public 

access to and enjoyment of the coastal zone in a manner that 

is compatible with private property rights and other uses of the 

coastal zone; and to balance these competing interests. 

The specific CMP policy applicable to the adopted rules requires 

that commission rules under THSC, Chapter 382, governing 

emissions of air pollutants, shall comply with regulations in 

40 Code of Federal Regulations, adopted in accordance with 

Federal Clean Air Act (FCM), 42 United States Code, §7401, 

et seq., to protect and enhance air quality in the coastal area so 

as to protect coastal natural resources areas and promote the 

public health, safety, and welfare. 

Promulgation and enforcement of the rules will not violate or exceed any standards identified in the applicable CMP goals and 

policies. The adopted rules are consistent with these CMP goals 

and policies. The rules do not create or have a direct or significant adverse effect on any coastal natural resource areas. 

Public comments were solicited. No public comments were received regarding the consistency with the coastal management 

program. 

PUBLIC COMMENTS 

The commission received written comments from four individuals, the City of Lufkin, Brazos River Authority (BRA), TXU Electric Delivery (TXU), Houston Regional Group of the Sierra Club 

(HSC), Earthmoving Contractors Association of Texas (ECAT), 

Galveston County Health District (GCHD), and United States Environmental Protection Agency (EPA). A public hearing was held 

on March 7, 2006. The commission received oral comments 

from the Texas Illegal Dumping Resource Center (TIDRC), Texas 

Builder's Association (TBA), and ECAT. 

Three individuals were opposed to authorizing landowners to 

burn within the city limits, while one individual supported burning in the city limits. The City of Lufkin was opposed to restricting burning to one hour after sunrise to one hour before sunset. 

BRA, TXU, HSC, and TBA generally supported the rulemaking. 

TIDRC did not oppose the rulemaking but made several suggestions. GCHD did not indicate support or opposition to the 

rulemaking. ECAT's comments were outside the scope of the 

rulemaking. 

RESPONSE TO COMMENTS 

One individual commented that due to her allergies and her husband's emphysema there should be no burning allowed within 

the city limits. She also commented that she has had to leave 

her house and seek medical attention as a result of burning in 

her neighborhood. Two individuals would like to see a statewide 

ban on burning within a city limit and would like the ban to be 

enforced. 

The commission has undertaken this rulemaking to comply with 

SB 1710. SB 1710 requires the commission to authorize by rule 

the burning of plant growth in most attainment areas, if burned on 

the property of origin. The commission believes the intent of the 

legislation, in part, is to direct and delegate appropriate authority 

to local governments in efforts to ensure that regulatory policies 

address the concerns of affected citizens. In response to the 

comment, the commission has made §111.209(4)(B) subject to 

any local ordinances that prohibit burning inside the corporate 

limits of a city or town and that are consistent the TCM, Chapter 

382, Subchapter E, Authority of Local Governments. This will 

allow each affected municipality to determine and address the 
concerns of affected citizens. Allowable outdoor burning is not 

permitted at any time to rise to a level of nuisance conditions. 

Anyone may report a nuisance condition to the commission and 

file a complaint by calling 1-888-777-3186. 

One individual commented that she is concerned that her current practice of burning leaves in her yard at her residence in the 

city limits will be prohibited or limited under the proposed amendments to outdoor burning in 30 TAG Chapter 111. 

Under current rules, there is no provision allowing a person to 

burn yard waste on site where waste collection is provided by 

the local entity having authority. Under the adopted rule, however, this type of burning will be authorized even when waste 

collection is provided. As noted in the response to the previous comment, this authority is subject to any local ordinances 

that prohibit burning inside the corporate limits of a city or town 

and that are consistent with TCAA, Chapter 382, Subchapter E, 

Authority of Local Governments. This will allow each affected 

municipality to determine and address the concerns of affected 

citizens. The commission believes city governments should be 

allowed to control burning within their limits at the local level. No 

change has been made in response to the comment. 

The City of Lufkin commented that §111.219(6)(A) was too restrictive and that the requirement to begin burning no earlier than 

one hour after sunrise and to have the burn completed no later 

than one hour before sunset should be changed. The city commented that the winds are generally calmer and the humidity 

higher early in the morning and later in the evening which would 

reduce the possibility for the burn to get out of control. 

The commission agrees that in many instances the meteorological conditions early in the morning and late in the evening 

may reduce the risk of an out of control burn. The requirements 

of §111.219 are intended to improve the dispersion conditions 

necessary to reduce the potential impacts of smoke and related 

emissions from burns subject to the requirements of this section. 

No change to the rule has been made. 

BRA commented that overall it supported the rule changes; however, it expressed concern that the requirement under proposed 

§111.209(a)(4)(C)(i) and §111.209(a)(4)(C)(vi) that the burning 

be "directly supervised by an employee of a fire department who 

is part of the fire protection personnel, as defined by Local Government Code, §419.021, and is acting in the scope of the person's employment," was too restrictive. BRA commented that 

this requirement "does not recognize the considerable skill and 

training that volunteer firefighters have in fighting brush fires, 

grass fires and wildfires," and "in contrast to the vast wildfire 

experience of volunteer firefighters, most municipal firefighter's 

training focuses primarily on structural firefighting." BRA was 

concerned that this requirement eliminates most of rural Texas, 

where local governments rely solely upon volunteer fire departments for fire protection, from taking advantage of the revised 

outdoor burning rules. 

The commission recognizes the considerable skill and training 

that volunteer firefighters have in fighting brush fires, grass fires, 

and wildfires. However, the commission has undertaken this 

rulemaking to comply with SB 1710. SB 1710 is specific in its 

requirement that the burning be "directly supervised by an employee of a fire department who is part of the fire protection personnel, as defined by Local Government Code, §419.021, and 

is acting in the scope of the person's employment." No change 

to the rule has been made in response to the comment. 

TXU commented that it supported the rule as proposed and 

emphasized the importance of two sections contained in the 

proposed rule: 1) TXU supports the additional flexibility in 

specific circumstances and/or operations that the applicability of §111.209(a)(4)(A) and §111.209(a)(4)(B) provides for 

"on-site burning" for "right-of-way (ROW) management." Section 

111.209(a)(4)(A) and §111.209(a)(4)(B) of the proposed rule 

allows outdoor burning regardless of whether a practical alternative to burning exists. The ability to conduct outdoor burning 

without having to provide evidence of practical alternatives 

would greatly expedite cleanup and management of ROW. For 

example, Hurricanes Katrina and Rita resulted in large amounts 

of wood and brush, some in remote areas inaccessible by most 

vehicles; and 2) TXU supports allowing a "contractual easement 

document" to be acceptable documentation that an individual or 

company is an "authorized agent," and supports the inclusion of 

an "authorized agent" in §111.209(a)(4)(B). TXU may not be the 

actual property owner, but may have a contractual easement 

agreement with the owner to maintain the ROW. 

Proposed §111.209(a)(4)(A) and §111.209(a)(4)(B) were intended to be two separate authorizations, i.e., a person would 

have to choose whether he intended to burn under subparagraph (A) or (B), but could not pick and choose from both. 

Subparagraph (A) was intended to apply statewide but only 

to the listed activities (i.e., ROW, landclearing, maintenance 

along water canals), and only when no practical alternative to 

burning exists. Subparagraph (B) was intended to apply only in 

certain areas of the state, but for all activities including, but not 

limited to, ROW, landclearing, and maintenance along water 

canals, and only by the landowner or any person authorized 

by the landowner. Under proposed subparagraph (A), burning 

for ROW in nonattainment areas would be permitted, as long 

as no practical alternatives existed. Under proposed subparagraph (B), burning for ROW would be permitted, but only with 

landowner authorization. 

In response to TXU's first point, the commission has made the 

authorizations under subparagraphs (A) and (B) mutually exclusive. Subparagraph (A) applies only in a county that is part of 

a designated nonattainment area or that contains any part of a 

municipality that extends into a designated nonattainment area. 

Subparagraph (B) applies in all other areas. Under subparagraph (A), only the listed activities are authorized and practical 

alternatives must be considered. Subparagraph (B) includes, 

but is not limited to, the listed activities and consideration of practical alternatives is not required. Burning under either subparagraph (A) or subparagraph (B) is restricted to plant growth generated on the property on which it is burned. 

In response to TXU's second point, the proposed rule did not 

contain language allowing a "contractual easement document" 

to be acceptable documentation that an individual or company 

is an "authorized agent." SB 1710 is specific in that the burning 

must be by the property owner or any other person authorized by 

the owner. The commission authorizes burning of plant growth, 

but does not authorize the infringement of the property rights of 

landowners. Whether or not a "contractual easement document" 

is acceptable documentation that an individual or company is 

authorized by the landowner to burn plant growth is a matter between the parties to the document. The adopted rule makes 

both subparagraphs (A) and (B) subject to the requirement that 

burning must be by the property owner or any other person authorized by the owner. 

ADOPTED RULES July 14, 2006 31 TexReg 5659 
HSC commented that it supported the rule change that makes 

the burning of household waste a Class C misdemeanor. Unfortunately, HSC commented, the way HB 39 is worded, TCEQ 

must apply this rule only to areas near The Woodlands. Therefore, other areas will not receive commensurate protection. 

HB 39 created a Class C misdemeanor in Local Government 

Code, Chapter 352. The commission has undertaken this rulemaking, as it relates to HB 39, to ensure that the exceptions for 

disposal fires contained in §111.209 are consistent with the new 

criminal statute. No change to the rule has been made in response to the comment. 

HSC commented that it does not support the implementation of 

the language in SB 1710 which prohibits the commission from 

requiring prior approval for outdoor burning under the proposed 

rules. HSC commented that approval by the TCEQ of outdoor 

burning provides public protection and information. 

The commission has undertaken this rulemaking to comply with 

SB 1710. SB 1710 is specific in its requirement that the commission cannot require prior commission approval. No change 

to the rule has been made in response to the comment. 

HSC commented that the phrase "plant growth" is not defined in 

§ 111.203 and the TCEQ should "strictly define this phase so that 

there are no unintended legal surprises when the rule is tested 

in court." 

The commission has expanded the context of the term "plant 

growth" to include "trees, brush, grass, leaves, branch trimmings, or other plant growth," and believes the meaning is clear 

from the expanded context. The term has not been strictly 

defined in 30 TAC § 1 01.203. 

HSC commented that it supported the requirements under 

§111.209(a)(4)(C)(i)-(vi), as reasonable things for an owner of a 

designated site or the owner's agent to do. 

The commission appreciates the comment. No change to the 

rule has been made in response to the comment. 

TBA commented that it supported the proposed rules. It pointed 

out four issues which it stated probably do not affect the substance of the rule but may help eliminate ambiguities. 

In §111.209(a)(4), the proposed rule uses the language "brush, 

trees, and other plant growth." Using the language "brush, trees, 

grass, leaves, branch trimmings, or other plant growth" would 

expand the language a little and be consistent with the language 

used in SB 1710, and in proposed §111.209(a)(4)(C)(i). 

The commission agrees that using the language "brush, trees, 

grass, leaves, branch trimmings, or other plant growth" would 

expand the language and be consistent with the language used 

in SB 1710. The language has been revised as recommended. 

TBA commented that in §111.209(a)(4)(B), the proposed rule 

uses the language "In a county that is not part of {a} designated 

nonattainment area." TBA recommends using the language "In 

an area," rather than, "In a county." The statute uses the word 

"area" rather than "county." "County" could be ambiguous; does 

it mean both the incorporated and the unincorporated areas of 

the county? Or does it mean the unincorporated areas only? 

TBA prefers that the language "municipality that extends into a 

designated nonattainment area," read "municipality that is designated nonattainment area." TBA believes this may not be substantive but might help clarify the rule. 

31 TexReg 5660 July 14, 2006 Texas Register 

The commiSSIOn believes that the term "county" represents 

the only comprehensive set of legally defined areas in Texas. 

Furthermore, nonattainment areas are designated along county 

lines. No change has been made in response to the comment. 

The commission believes that the language "in a county that is 

not part of a designated nonattainment area and that does not 

contain any part of a municipality that extends into a designated 

nonattainment area" is necessary to concisely define the counties in which proposed §111.209(a)(4)(B) is not applicable. The 

rule is not applicable in two types of counties: 1) all counties in 

designated nonattainment areas; and 2) counties in attainment 

areas that both border a nonattainment county and in which a 

municipality extends across the county line into both the attainment and nonattainment areas. No change has been made in 

response to this comment. 

TBA commented that in §111.209(a)(4)(B), the proposed rule 

is subject to the requirements of §111.219(3), (4), (6), and (7). 

TBA believes paragraph (7) may be redundant. Paragraph (7) 

talks about burning oil, non-wood construction items, and similar 

things. The rule itself does not contemplate the burning of things 

like oil or non-wood construction materials. 

While the comm1ss1on acknowledges that proposed 

§111.209(a)(4)(B) does not contemplate the burning of items 

such as those prohibited in §111.219(7), the commission 

believes that making §111.209 subject to §111.219(7), 

emphasizes the necessity and importance of complying with 

the general restriction. No change has been made in response 

to the comment. 

TBA commented that in §111.209(a)(4)(C)(iii), the proposed rule 

requires the owner of a designated site to maintain records of 

the designated residential properties for which the site is designated. The record must contain the description of a platted subdivision and/or a list of each property address and the name of 

each property owner. TBA believes the language is confusing. 

Does it mean you must maintain the description of the platted 

subdivision or a list of each address, and in any event the name 

of each property owner? Or does it mean you must maintain 

the description or both the address and name of each property 

owner? TBA suggests the requirement to maintain the name of 

each property owner may not be necessary and that removing it 

would eliminate the confusion. The owner of the designated site 

may not have the name of the residential property owner, but if 

he has the description of the subdivision and the address of each 

property, then he knows the locations designated for the site. 

The commission agrees that the requirement to include the name 

of each property owner may be an unnecessary restriction and 

may be the cause of confusion. The requirement has been struck 

from the rule. 

TIDRC commented that while HB 39 created a Class C misdemeanor, located under Local Government Code, §352.052, the 

commission created a crime with a larger penalty under Texas 

Water Code, §7.177(a)(5), by restating this prohibition against 

outdoor burning in proposed § 111.209(b ). 

The commission has undertaken this rulemaking as it relates 

to HB 39 to ensure that the exceptions for disposal fires contained in §111.209 are consistent with the new criminal statute 

located in Local Government Code, Chapter 352. TIDRC is correct that under Texas Water Code, §7.177(a)(5), an intentional 

or knowing violation of commission rules adopted under THSC, 

Chapter 382, carries penalties of up to $50,000 for an individual 

and up to 180 days confinement. The commission has made 
§111.209 subject directly to Local Government Code, §352.052, 

rather than repeating the restriction in proposed §111.209(b). 

This will provide notice of this new criminal statute without creating a larger penalty than HB 39 intended. 

TIDRC commented that SB 1710 specifically refers to areas that 

meet the NAAQS, but proposed §111.209(a)(4)(B), uses language that would have the rule change apply everywhere except 

nonattainment areas, which would include the undetermined areas, which constitute most of Texas. This would greatly expand 

the area that the rule would be applicable to beyond that specified in SB 1710. · 

The commission concurs that the language in proposed 

§111.209(a)(4)(B) encompasses most attainment areas, and 

the language in SB 1710 does not encompass the undetermined 

areas. However, the language in SB 1710 does not describe 

an enforceable area. It is possible for an area to meet the 

NAAQS one day, and fail to meet the NAAQS for a particular 

pollutant on the next day, depending on atmospheric conditions 

and pollutant transport from other areas. On the other hand, 

nonattainment areas are designated and legally defined areas. 

No change has been made in response to the comment. 

TIDRC commented that not all cities have local ordinances to 

deal with illegal burning. Some of them rely on the criminal application of Texas Water Code, §7.177 to address local burning 

within the city limits. By removing the criminal penalty for burning of brush and limbs and other plant waste inside the city limit, 

some cities will have to change their ordinances to ensure that 

their local policies will criminalize outdoor burning. 

The commission concurs that removing the criminal penalty for 

burning inside the city limit could prove a significant inconvenience to many Texas municipalities. The commission has undertaken this rulemaking to comply with SB 1710. SB 1710 requires the commission to authorize by rule the burning of plant 

growth in most attainment areas, if burned on the property of origin. The commission believes the intent of the legislation, in part, 

is to direct and delegate appropriate authority to our local governments in efforts that regulatory policies address the concerns 

of affected citizens. In response to the comment, the commission has made §111.209(4)(B) subject to any local ordinances 

that prohibit burning inside the corporate limits of a city or town 

and that are consistent with TCAA, Chapter 382, Subchapter E, 

Authority of Local Governments. This will allow each affected 

municipality to determine and address the concerns of affected 

citizens. 

GCHD commented that the proposed revisions authorize the 

burning of plant growth in areas that meet the NAAQS and do 

not contain any part of a city that does not meet the NAAQS if 

the waste is burned on the property of origin and by the owner 

of the property or any other person authorized by the owner. 

GCHD asked the question, "What about burning of plant material in nonattainment areas on property of origin by the owner of 

the property or any other person authorized by the owner?" 

The adopted rule does not authorize outdoor burning in designated nonattainment areas on the property of origin by the owner 

or the property or any other person authorized by the owner. No 

change to the rule has been made in response to the comment. 

ECAT commented that it is a statewide organization made up of 

contractors who specialize in heavy dirt work, with a major portion of their work in the area of agriculture and natural resource 

conservation type work. ECAT does mechanical brush control 

as it relates to pasture conditions, and primarily as it relates to 

increasing and conserving both groundwater and surface water. 

ECAT has major concerns and interests in how the contractors 

dispose of the brush in their business. Burning in most of their 

applications is the only practical method. Therefore, it concerns 

ECAT when there are discussions at the state environmental 

agency that could possibly limit, or put unrealistic controls on this 

best practice. ECAT offers its services in the future to the commission whenever work on rules concerning agricultural burning 

is considered. 

The commission's proposed §111.209(a)(4)(A) and (B) will not 

prohibit any landclearing activity that is authorized under the current rule. The proposed amendment to the rule would remove 

the requirement of practical alternative in attainment areas. The 

commission thanks ECAT for its comments and welcomes suggestions on any future rule proposals concerning agricultural 

burning. 

EPA commented that a comparison of Texas' revisions to 

§111.203 and §111.209 to current SIP-approved rules (including 

those currently under EPA consideration) seem to relax outdoor 

burning in some areas. EPA is concerned that a relaxation on 

outdoor burning would make it difficult for some areas to remain 

in attainment due to potential increases in direct emissions of 

particulate matter and other pollutants such as nitrogen oxides, 

volatile organic compounds, and sulfur dioxide. EPA stated that 

the proposal does not show noninterference with any of the 

Clean Air Act requirements, particularly with regard to FCAA, 

§110(1). EPA commented that the Texas SIP does not include 

§111.203 to §111.221, but instead an earlier approved version 

of rules including §§111.101, 111.103, 111.105, and 111.107. 

EPA pointed out that the remaining sections not in the SIP are 

currently under EPA review and have not yet been approved. 

EPA suggested that the commission provide an explanation 

on how the amendments to §111.203 and §111.209, and how 

§§111.101, 111.103, 111.105, and 111.107 would not interfere 

with any of the FCAA requirements. EPA also commented that 

there must be an opportunity for notice and public comment. 

The 79th Legislature in 2005 amended THSC, §382.018(a), 

making it subject to the Local Government Code, §352.082, 

which classified certain types of outdoor burning, as designated 

in this rulemaking, as a Class C misdemeanor. 30 TAC §111.209 

was amended accordingly to prohibit the burning of household 

refuse in a limited demographic area. The amendment to 

§111.209 would be more restrictive than current outdoor burning 

rules, which do not criminalize or prohibit outdoor burning in the 

specified area. The commission does not expect any increases 

in outdoor burning in the specified area and, therefore, this 

rulemaking would not constitute a relaxation of the Texas SIP. 

The commission made no changes to §111.209 in response to 

this comment. 

Through the enactment of SB 171 0, the 79th Legislature in 2005 

amended THSC, §382.018(b) and (d). The current rules under revision (§111.203 and §111209) require consideration of 

practical alternatives, incorporate all of the controls in §111.219, 

and do not make a distinction between areas of attainment and 

nonattainment. The adopted rules, however, make a distinction 

between allowable burning in areas of attainment and nonattainment. Section 111.209(4)(A) still incorporates all of the controls 

in §111.219. Section 111.209(4)(B) is subject to the controls in 

§111.219(3), (4), (6), and (7), is subject to any local ordinances 

that prohibit burning inside the corporate limits of a city or town 

and that are consistent with TCAA, Chapter 382, Subchapter E, 

ADOPTED RULES July 14,2006 31 TexReg 5661 
Authority of Local Governments, and no longer require consideration of practical alternatives. 

THSC, §382.018(b) allows burning in areas that meet the 

NMQS without requiring prior commission approval or consideration of practical alternatives. During proposal of the 

regulation, 30 TAC §111.209 was amended to authorize on-site 

outdoor burning in attainment areas without consideration of 

practical alternatives and incorporated §111.219(3), (4), (6), 

and (7). For areas in attainment, § 111 .209( 4 )(8) is subject to 

the controls in §111.219(3), (4), (6), and (7), and is subject to 

any local ordinances that prohibit burning inside the corporate 

limits of a city or town and that are consistent with TCM, 

Chapter 382, Subchapter E, Authority of Local Governments. 

For areas of nonattainment, §111.209(4)(A) is subject to the air 

control measures in §111.219. Section 111.219 will maintain 

the necessary controls on outdoor burning in nonattainment 

areas, such as delineating appropriate burn times, weather 

conditions, distances from sensitive receptors, prohibitions 

against burning certain materials, and prohibitions on burns 

within corporate limits of a city. Areas in attainment will also 

be subject to the controls in §111.219, with the distinction that 

controls on allowable outdoor burning within the corporate limits 

of a city will be delegated to local authorities to enact ordinances 

consistent with the TCM. The removal of practical alternatives 

in areas of attainment was specified by the legislature in the 

amendments made to THSC, §382.018(b). The removal of 

practical alternatives in areas of attainment will not constitute 

a relaxation of the SIP as the consideration was primarily for a 

demonstration of economic feasibility rather than a control on 

outdoor burn emissions. Controls on outdoor burn emissions 

remain in place because they are included in the requirements 

in §111.219, particularly with regard to areas in nonattainment 

so as not to constitute a relaxation of the SIP. The commission 

has adopted regulations to conform with the changes made to 

the statute without compromising controls on allowable outdoor 

burning. 

THSC, §382.018(d) was amended to allow for outdoor burning of plant growth generated from specific residential properties on designated sites outside of a municipality and in counties 

with a population less than 50,000. Section 111.209 currently 

does not allow for burning on designated sites. The amendment to § 111.209 for designated sites requires mandatory notice 

to the commission prior to the burn, and requires supervision 

by a fire department employee. Only three counties in nonattainment areas meet the requirements for designated site burns 

(Hardin, Rockwall, and Chambers). The commission anticipates 

changes to the adopted rule would consolidate currently authorized outdoor burning rather than increasing it. Burning of domestic waste, including plant growth, is already authorized in 

these counties for private residences when collection of domestic waste is not provided or authorized by the local government 

having jurisdiction. To the commission's best available knowledge, no residential properties outside of the municipalities in 

these counties are provided with domestic waste collection by 

the local government having jurisdiction. The adopted rules are 

not expected to result in an increase in outdoor burning as the 

counties that were previously conducting outdoor burns will be 

permitted to continue doing so, but with the requirement that the 

burns be conducted on a designated site and conducted within 

the requirements in §111.209. The additional controls, such as 

the required presence of a fire department employee supervising 

each burn, impose limits on the frequency and number of outdoor 

31 TexReg 5662 July 14, 2006 Texas Register 

burns and, therefore, would not relax the SIP. The commission 

made no changes to the rules in response to this comment. 

Through the enactment of HB 39 and SB 1710, the 79th Legislature in 2005, amended THSC, §382.018(a)-(e), and §111.203 

and §111.209 were amended accordingly to conform to the 

statutes. Sections 111.101,111.103,111.105,111.107,111.205, 

and 111.207 were not proposed to be amended as HB 39 and 

SB 1710 did not affect these sections. Additionally, §§111.1 01, 

111.103, 111.105, and 111.107 were repealed on August 21, 

1996, and replaced with §§111.201-111.221 (64 FR 57983). 

The sections under EPA consideration for approval have now 

been amended (§111.203 and §111.209); therefore, there has 

only been a SIP revision for these sections and consideration 

or revisions of other sections in Chapter 111 would be outside 

the scope of SB 1710 and HB 39. In response, a new section, 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL 

CLEAN AIR ACT, SECTION 110(1), has been incorporated in 

the rule preamble. 

The commission held a stakeholder meeting on September 26, 

2005, in Austin and gained input from county and local law enforcement agencies, city governments, land developers, and utility companies. The amendments and public hearing notice were 

published in the Texas Register on February 10, 2006, and the 

public hearing was held on March 7, 2006, to obtain comment. 

STATUTORY AUTHORITY 

The amendments are adopted under THSC, §382.002, relating 

to Policy and Purpose, Texas Clean Air Act (TCM), §382.011, 

which authorizes the commission to administer the requirements of the TCM; §382.012, which provides the commission 

the authority to develop a comprehensive plan for the state's 

air; §382.017, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the TCM; §382.018, 

which authorizes the commission to control outdoor burning; 

and §382.085, which prohibits unauthorized air emissions; and 

Texas Water Code, §5.103 and §5.105, which authorizes the 

commission to adopt rules. 

The adopted amendments implement THSC, §§382.002, 

382.011, 382.017, and 382.018. 

§111.209. Exception for Disposal Fires. 

Except as provided in Local Government Code, §352.082, outdoor 

burning is authorized for the following: 

(I) domestic waste burning at a property designed for and 

used exclusively as a private residence, housing not more than three 

families, when collection of domestic waste is not provided or authorized by the local governmental entity having jurisdiction, and when 

the waste is generated only from that property. Provision of waste collection refers to collection at the premises where the waste is generated. 

The term "domestic waste" is defined in §I 01.1 of this title (relating to 

Definitions). Wastes normally resulting from the function oflife within 

a residence that can be burned include such things as kitchen garbage, 

untreated lumber, cardboard boxes, packaging (including plastics and 

rubber), clothing, grass, leaves, and branch trimmings. Examples of 

wastes not considered domestic waste that cannot be burned, include 

such things as tires, non-wood construction debris, furniture, carpet, 

electrical wire, and appliances; 

(2) diseased animal carcass burning when burning is the 

most effective means of controlling the spread of disease; 

(3) veterinarians in accordance with Texas Occupations 

Code, §801.361, Disposal of Animal Remains; 
(4) on-site burning of trees, brush, grass, leaves, branch 

trimmings, or other plant growth, by the owner of the property or any 

other person authorized by the owner, and when the material is generated only from that property: 

(A) in a county that is part of a designated nonattainment area or that contains any part of a municipality that extends into a 

designated nonattainment area; if the plant growth was generated as a 

result of right-of-way maintenance, landclearing operations, and maintenance along water canals when no practical alternative to burning 

exists. Such burning is subject to the requirements of §111.219 of this 

title (relating to General Requirements for Allowable Outdoor Burning). Commission notification or approval is not required; or 

(B) in a county that is not part of a designated nonattainment area and that does not contain any part of a municipality that 

extends into a designated nonattainment area; this provision includes, 

but is not limited to, the burning of plant growth generated as a result of right-of-way maintenance, landclearing operations, and maintenance along water canals. Such burning is subject to local ordinances 

that prohibit burning inside the corporate limits of a city or town and 

that are consistent with the Texas Clean Air Act, Chapter 382, Subchapter E, Authority of Local Governments, and the requirements of 

§ 111.219(3), (4), (6), and (7) of this title. Commission notification or 

approval is not required. 

(5) at a site designated for consolidated burning of waste 

generated from specific residential properties. A designated site must 

be located outside of a municipality and within a county with a population of less than 50,000. The owner of the designated site or the 

owner's authorized agent shall: 

(A) post at all entrances to the site a placard measuring 

a minimum of 48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE -No 

burning of any material is allowed except for trees, brush, grass, leaves, 

branch trimmings, or other plant growth generated from specific residential properties for which this site is designated. All burning must 

be supervised by a fire department employee. For more information 

call {PHONENUMBEROFOWNERORAUTHORIZEDAGENT}." 

The placard(s) must be clearly visible and legible at all times; 

(B) designate specific residential properties for consolidated burning at the designated site; 

(C) maintain a record of the designated residential properties. The record must contain the description of a platted subdivision and/or a list of each property address. The description must be 

made available to commission or local air pollution control agency staff 

within 48 hours, if requested; 

(D) ensure that all waste burned at the designated site 

consists of trees, brush, grass, leaves, branch trimmings, or other plant 

growth; 

(E) ensure that all such waste was generated at specific 

residential properties for which the site is designated; and 

(F) ensure that all burning at the designated site is directly supervised by an employee of a fire department who is part of 

the fire protection personnel, as defined by Texas Government Code, 

§419.021, and is acting in the scope of the person's employment. The 

fire department employee shall notifY the appropriate commission regional office with a telephone or electronic facsimile notice 24 hours in 

advance of any scheduled supervised bum. The commission shall provide the employee with information on practical alternatives to burning. Commission approval is not required; 

(6) crop residue burning for agricultural management purposes when no practical alternative exists. Such burning shall be subject to the requirements of § 111.219 of this title and structures containing sensitive receptors must not be negatively affected by the bum. 

When possible, notification of the intent to bum should be made to 

the appropriate commission regional office prior to the proposed bum. 

Commission notification or approval is not required. This section is not 

applicable to crop residue burning covered by an administrative order; 

and 

(7) brush, trees, and other plant growth causing a detrimental public health and safety condition burned by a county or municipal 

government at a site it owns upon receiving site and bum approval from 

the executive director. Such a bum can only be authorized when there 

is no practical alternative, and it may be done no more frequently than 

once every two months. Such burns cannot be conducted at municipal solid waste landfills unless authorized under § 111.215 of this title 

(relating to Executive Director Approval of Otherwise Prohibited Outdoor Burning), and shall be subject to the requirements of§ 111.219 of 

this title. 

This agency hereby certifies that the 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 June 29, 2006. 

TRD-200603522 

Robert Martinez 

Acting Division Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: July 19, 2006 

Proposal publication date: February 10, 2006 

For further information, please call: (512) 239-5017 

• 

TITLE 31. NATU 

CONSERVATION 

PART 1. 

CHAPTER 13. 

• 

RESOURCES AND 

LAND OFFICE 

SOURCES 

The General Land Office (GL ) and the School Land Board 

(SLB) adopt the repeal of Titl 31, Part 1, Chapter 13, Subchapter F, relating to Applicati to Purchase or Lease Vacant 

and Unsurveyed Public Schoo Land, §§13.71 - 13.86 of the 

Texas Administrative Code. T e GLO simultaneously adopts 

new Subchapter F, relating to V caney Process, §§13.71 -13.83 

of the Texas Administrative Co e, without changes to the text, 

as published in the May 19, 2 06, issue of the Texas Register (31 TexReg 4169) and will ot be republished. The newly 

adopted Subchapter F, §§13.71 - 13.83, contains rules governing the administrative procedur s for processing and investigation of vacancy applications su itted to the GLO and the terms 

and conditions for the sale or I ase of the vacant land. These 

rules are adopted pursuant to ew legislation that requires the 

GLO and the SLB to adopt rule governing the administration of 

the statutes and the terms and nditions for the sale or lease of 

vacantlandinaccordancewith x. Nat. Res. Code§51.174(c). 

The GLO adopts the repeal of e existing Subchapter F, relating to Application to Purchase o Lease Vacant and Unsurveyed 

Public School Land, §§13.71 -1 .86 of the Texas Administrative 

Code as all application pending efore the GLO and actions arising out of vacancy application p nding in the courts of the State 

ADOPTED RULES July 14, 2006 31 TexReg 5663