Kathleen HartnettWhite, Chairman R. B. "Ralph" Marquez, Commissioner 

### jlJL 2 Larry R. Soward, Commissioner Glenn Shankle, ExecutiveDirector 

# @y TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducingandPreventingPollution



### 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 Avenue +:"" (.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 ofAir 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 ofhousehold 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 ofattainment and nonattainment, incorporate all ofthe controls in §111.219, and no longer require consideration ofpractical alternatives in areas ofattainment. 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 ofa city. The removal ofpractical alternatives in areas ofattainment was specified by the legislature in the amendments made to Texas Health and Safety Code (THSC), §382.018(b). The removal ofpractical alternatives in areas ofattainment will not constitute a relaxation ofthe SIP as the consideration was primarily for a demonstration ofeconomic 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 ofa 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 ofpractical

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 ofoutdoor burns and would further not constitute a relaxation ofthe SIP. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearing, and the accompanying order. I look forward to your expeditious approval ofthese SIP revisions.

KHW/js 

### Enclosures

cc: The Honorable Rick Perry, Governor ofTexas Mr. Zak Covar, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Glenn Shankle, Executive Director, Texas Commission onEnvironmental Quality

### TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY

THE STATE OFTEXAS § 

### COUNTY OFTRAVIS §



### This is to certify that the attached are true and correctcopies ofdocuments for revisions to the Texas State Implementation Plan, adopted on June 28, 2006, pursuant to 40 Code ofFederal Regulations (CFR) §51.104. I am the records administrator for the General Law Division ofthe Texas Commission on Environmental Quality (Commission).

KevinNiieana Director, General Law Division Texas Commission on Environmental QualityTexas Commission on Environmental Quality Public Hearing March 7, 2006 Concerning Revisions to Chapter 111

Control ofAir Pollution from Visible Emissions and Particulate Matter; House Bill 39, Senate Bill 1710: Outdoor Burning Rule Project No. 2005-041-111-CEINTRODUCTION

TheTexas 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 ofAir 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 ofless than 50,000.

The comment period closed on March 13, 2006. All testimonyand comments have been reviewed and seriously considered. This hearing record contains a complete record ofthe public hearing and is divided into the following four sections:



### o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation ofTestimony

o Staff Recommendations and Order

Additional copies ofthis hearing record are maintained in theTCEQ central office at 12100 Park35 Circle, Austin, Texas 78753. Forfurther information, please contact Ronnie Kramer at (512) 239- 0194.

# PUBLIC NOTIFICATION AND PROPOSALPUBLIC NOTIFICATION

Notification to the public ofthe 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 ofthe proposed rules in the February 10, 2006 issue ofthe Texas Register (31 TexReg 819).

3. Publication ofthe Notice of Public Hearing in the February 10, 2006 issue ofthe Texas Register (31 TexReg 908).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker ofthe House Lieutenant Governor City ofVictoria Planning Department Dallas Department of Environmental and Health Services Dallas Department ofAviation El Paso City-County Health and Environmental District El Paso Metropolitan Planning Organization Federal HighwayAdministration Fort Worth Environmental Management Department Galveston County Health District Houston Department of Health and Human ServicesHarris County Pollution Control Department North Central Texas Council ofGovernments Houston-Galveston Area Council South East Texas Regional Planning Commission Texas Department ofTransportation 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 AgencyExample 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-ANDTOTHE 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 ofAir 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 §51.102, 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 ofless than 50,000. A public hearing on this proposal wilLbe 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 advanceas 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, Te:v-.?.:

.. on Jam;" ary- 25, 2006.Kathleen HartnettWhite, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shankle, Executive Director 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducing andPreventingPollution

NOTICE OF PUBLIC HEARING BYTHE TEXAS COMMISSION ONENVIRONMENTAL QUALITY

ONPROPOSED REVISIONS TO 30 TAC CHAPTER 111 AND TO THE STATEIMPLEMENTATIONPLAN The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter, and the state implementationplan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, SubchapterB, Chapter2001; 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 ofplant growth from specific residential properties on designated sites in counties with a population ofless 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 onEnvironmental Quality complex located at 12100 Park 35 Circle, BuildingB, Room201A. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration willbegin 30minutes priorto the hearing. Individuals may presentoral statements whencalled upon in order ofregistration. 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 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 ofLegal Services, Texas CmmnissiononEnvironmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 orfaxed 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.usTRD-200600542 Stephanie Bergeron Perdue Acting Deputy Director, Office ofLe al Services Texas Commission on Environment I Quality Filed: February 1, 2006 

# • • Notice ofPublic Hearing The Texas Commission on Environmental Quality (commission) will conduct apublic hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter, and the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, SubchapterB, Chapter 2001; and 40 Code ofFederalRegulations §51.102, oftheUnited StatesEnvironmental Protection Agency (EPA) regulations concerning SIPs. Theproposed rulemaking wouldprohibitthe burning ofall household refuse on certainproperties in alimiteddemographic region, authorize byrule theburning ofplantgrowth in attainment areas ontheproperty on whichitwas generated, and provideforthe burningofplantgrowth from specificresidentialproperties on designated sites in countieswith apopulation ofless 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 oforal 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 ofregistration. There will be no open discussion during the hearing; however, commission staffmembers will be available to discuss theproposal 30 minutes before the hearing and will answer questions before and afterthe hearing. Persons planning to attend the hearing who have special communication orother accommodation needs, shouldcontactJoyce Spencer, Office ofLegalServices, at (512) 239-5017. Requests shouldbemade as far in advance as possible. Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, Office ofLegal Services, Texas Commission on Environmental Quality, P. 0. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should referenceRule Project Number2005-041-111-CE. Comments mustbereceivedby 5:00p.m., March 13, 2006. Copiesoftheproposedrules canbe obtainedfromthe 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 ofLegal Services Texas Commission on Environmental Quality Filed: January 30, 2006 

# • • Notice ofWater Quality Appli The following notices were issue during the period ofJanuary 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 ofthe ChiefClerk, 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 arenewal ofTexas Pollutant DischargeElimination System(TPD S)PermitNo. 12563-00I,which authorizes the discharge oftreated d mestic wastewater at a daily averageflow notto exceed20,000gallo sper day. The facility is located approximately 1.3 miles west ofth intersection ofFarm-to-Market Road 729 and Farm-to-Market Road 1969 and approximately 4 miles southwestofthe intersection ofState ighway49 andFarm-to-Market Road 1969 in Marion County, Texas CITY OF DENTON has applied for renewal ofTPDES Permit No. 10027-003, which authorizes the dis harge oftreated domestic wastewater at an annual average flow not o exceed 21,000,000 gallons per day. The applicanthas also appliedt the Texas Commission onEnvironmental Quality (TCEQ)forappro a! ofasubstantialmodificationto its pretreatmentprogramunderthe DES program. Thecurrent permit authorizes the land applicationo sewage sludge forbeneficialuse on 357 acres, land application ofcia s A sewage sludge for beneficial use, and marketing and distribution f sludge. The facility is located eastoftheCityofDentonalongPee Creek, approximately5,700 feet east ofState Highway 288 and two miles upstream from Lewisville Lake in Denton County, Texas. The applicant has also applied to the TCEQ for approval ofa substantial edification to its approved pretreatmentprogramunderthe TPDES rogram. Approval oftherequest formodificationtothepretreatment ogramwill allowtheapplicantto incorporate the City ofDenton's Pro ectXL Final Project Agreement. The request for approval compliesw thboth federal and Staterequirements. The substantial modification illbe approved without change ifno substantive comments arerecei edwithin 30 days ofnoticepublication. CITY OF EL PASO AND TEXA DEPARTMENT OF TRANSPORTATION, which operate the Ci ofEl 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 ofthe City ofEl Paso, in El Paso County, Texas. NORTHWEST HARRIS COUNT TRICTNO. I0has appliedfor ane No. WQ0014643001, to authorize wastewater at a daily average flow day. The facility is located on the 4,600 feet northofHuffmeisterRoa ·MUNICIPAL UTILITY DISpermit, proposedTPDES Permit he discharge oftreated domestic ot to exceed 94,500 gallons per st side ofBarker Cypress Road, in Harris County, Texas. ORANGEFIELD INDEPENDENT CHOOL DISTRICThas applied for a renewal ofTPDES PermitNo. 11607-001, which authorizes the discharge oftreated domestic wast ater at a daily average flow not to exceed 32,000 gallons per day. e facility is located immediately northofFarm-to-MarketRoad 105 a d0.5 milewestoftheintersection ofFarm-to-MarketRoad I05 and Fa -to-MarketRoad408 in Orange County, Texas

. KENNETH DUANE REYNOLDS as applied for a renewal ofPermit No. 11737-00I, which authoriz s the disposal oftreated domestic wastewater at a daily average flow 1ot to exceed 12,000 gallons per day via subsurface drip irrigation o 2.75 acres ofpasture land. This permit will not authorize a dischar ofpollutants into waters in the State. The wastewater treatment fa ility and disposal site are located on State Highway 64, approximate! 2.5 miles east ofthe intersection ofLoop 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, ifany. The carrier shall alsomaintainaccuraterecords tore· ectinformationregardingrequests for voluntary certification approva denial decisions. Upon request of theDivision [eemmissien], theca ershall submit suchinformationin the form and mannerprescribedb the Division [eemmissien]. ftm1 Req1:1ests fef an4lef eenel:ll'fent RWiew ffiHIH beresvended te in withmles ineffeet atthe time ef soomissien ef**the~** Where teFms 6ffl6f1ioos eftffi.s seetieH flftl deteFmined

### :ey & eetlftef j1:1risdietien te be ffi.v.&liEl.; the remainingterms&adprevisiensef · seetieHsftiiHfeFH&iH ine4feette thetl1HeHt pessible. If& pertieH ef · seetieHts 6eel&red Hw&li6 ffi & fin&lj1:1dgmentthatts HatStlbjeet ,6fts s1:1spended

### :ey6fderef theeetlftwftieftts gt¥en immediatee4feet;the mleas**it~**pri6fte the effeeti.¥edate eftffi.s seetieH t=em&in ffi effeetfef &1-1**~** fefpreal:ltherii!atien tethe tl1HeHt**$~;ap,.;j** {W -The efteeti.vedateef

. seetients MareftH,**~ ~** **~fur**prelll:ltftem&tien · priefteMareftH,**~**sftiiH be Stlbjeet tethefl:lle ffieffeetatthe

. tftereql:leStwas soomitted.] Thisagencyherebycertifiestha the proposal has been reviewed by legal counsel andfoundto 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 ofWorkers' 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 FROMVISIBLE 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 revisionstothe 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 lotthat is located in a neighborhood oron a lotthat is smaller than five acres. Local Government Code, §352.082, is applicable only to the unincorporated area ofa 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 ofplantgrowth in areasthat meetthe national ambient air quality standards (NAAQS) and do not contain any part of a city that does not meetthe NAAQS ifthe waste is burned on the property of origin and by the owner ofthe property or any other person authorized by the owner. The commission is prohibited from requiring prior commission approval ofthe burning, orfrom 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 implementthe 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 ofwaste 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 oflessthan 50,000. Burning of domestic waste, including plant growth, is already authorized in these counties for private residences when collection of domesticwaste is notprovided orauthorized bythe local governmental entity havingjurisdiction. To the commission's best available knowledge, no residential properties outside of municipalities in these countiesareprovidedwithdomesticwaste 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 agreementwith Texas Register requirements, agency guidelines, and guidance provided in the Texas Legislative CouncilDraftingManual, 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.



### PROPOSEDRULES February 10, 2006 31 TexReg 819The 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 ofLocal 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 ofthe 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 amendmentto §111.209 would also provideforthe burning ofwaste 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 ata 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 ifburns underproposed subsection (a)(4)(C) meetthe conditions ofTHSC, §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 ofspecific 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 experiencefiscal implications as a resultofadministration or enforcement ofthe proposed rules. The proposed rulemaking would implementthe 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 orto 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 lawenforcementorganizations 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 ofthe state. Since the potential number offuture enforcement incidences is not known, enforcement costs cannot be accurately estimated. The fire departments in the areas ofthe 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 atthis 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 ofcosts 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 ofthe statewhere outdoor burning ofhousehold refuse will be prohibited underthe 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 forthe burning ofsuch wastes and do not require individuals or other entities to consider practical alternatives to outdoor burning of plant wastes. Owners of residential property whereoutdoor 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 underthe proposed rulemaking. Plantwaste 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 notadverselyaffecta local economy in a material way for the first five years that the proposed rules are in effect. DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION Thecommission reviewed theproposed rulemaking in lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because itdoes not meetthe definition ofa 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 healthfrom eiwironmental exposure, and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector of the state. The primary purpose of the proposed rules is to protect the environment through the regulation ofthe 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) prohibitthe burning ofdomestic waste in residential areasthat are in unincorporated areas ofa countyadjacenttoa countywith a population of 3.3 million or more and where there is a planned community of20,000 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 forthe burning ofwaste consisting of plant growth in areas that meetthe NMQS and do not contain any part of a city that does not meet the NMQS if the waste is burned on the property oforigin and bythe ownerofthe propertyorany 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 ofwaste 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 ofthe person's employment. Furthermore, the proposed rulemaking does not meet any ofthe 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 ofTHSC, §382.018; 3) do not exceed a requirement ofa federal delegation agreement or contract between the state and an agency or representative ofthe federal government to implement a state and federal program; and 4) are not an adoption ofa rule solely underthe 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 ofwhetherthe proposed rules constituteataking underTexas Government Code, Chapter2007. The primary purpose ofthe proposed rules isto protectthe environment through the regulation of the outdoor burning ofwaste. 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) prohibitthe burning ofdomesticwaste in residential areas that are in unincorporated areas of a county adjacent to a county with a population of3.3 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 ofwaste consisting of plant growth in areas that meetthe NMQS and do not contain any part ofa city that does not meet the NMQS if the waste is burned on the property of origin and by the owner ofthe 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 lessthan 50,000, ifsupervised atthe time ofthe bwrning by afire department employee acting in the scope ofthe 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 ofthe 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.



### PROPOSEDRULES February 10, 2006 31 TexReg 821The 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 ofthe rules will not violate orexceed 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 ofthis rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section ofthis 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 priorto 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 RegisterTeam, Office ofLegal Services, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Project Number2005-041-111-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. Forfurther information, please contact Ronnie Kramer, Field Operations Division, at (512) 239-0194. STATUTORY AUTHORITY The amendments are proposed underTHSC, §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 consistentwith the policy and purposes ofthe TCAA; §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 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 therules oftheTexas [NattimlReselireeGonservation] 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 ofair pollution control. In addition to the terms that [wftiefl] are defined by theTCAA, the following terms,when used in this chapter, [t!ltaU] have thefollowing meanings, unlessthe context clearly indicates otherwise. (l) (No change.) (2) Landclearing operation--The uprooting, cutting, or clearing ofvegetation in connection with conversion for the construction ofbuildings, rights-of-way, residential, commercial, or industrial development, or the clearing ofvegetation to enhanceproperty value, access, or production. It does not include the maintenance burning ofon-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 subdivisionorproperty contiguous to and within 300 feet ofa 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 appropriateplanning and precautionarymeasures. 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 oflivestock, 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 ofhay 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 ofwhich include, but are not limited to,**[~]** nursery production, mushroom cultivation, pharmaceutical plantproduction, orlaboratory experiments involvingplants. 

### 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. ExceptionforDisposalFires.**~** Except as provided in subsection (b) ofthis section, outdoor [GtitOOeF] burning shall be authorized for thefollowing; [,] (I) domestic [Domestic] waste burning at a property designed for and used exclusively as a private residence, housing not more thanthreefamilies, whencollection ofdomestic waste is notprovided or authorized by the local governmental entity havingjurisdiction, and when the waste is generated only from that property. Provision ofwaste collection refers to collection at the premises where the waste is generated. The term "domestic waste" is defined in §101.1 ofthis 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, cardboardboxes, packaging (includingplastics and rubber), clothing, grass, leaves, andbranch trimmings. Examples of wastes not considered domestic waste that [wffieh] cannotbeburned, include such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances1 

### H(2) diseased [Diseased] animal carcassburningwhenburning is the most effectivemeans ofcontrolling the spread ofdisease; ["] (3) veterinarians [Veteriaari!lfls] in accordance with Texas Occupations Code, §801.361, Disposal ofAnimal**Remains;[~]** (4) on-site [Gfl-site]burningoftrees,brush, andotherplant**growth~** fA} forright-of-way maintenance, landclearing operations, andmaintenancealongwatercanalswhennopracticalalternative 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 ofthis title (relating to General Requirements for Allowable OutdoorBurning). When possible, notificationofintent to burn should be made to the appropriate commissionregional office priorto the proposedbum. For a singleprojectentailingmultiple days ofburning, an initial notice delineating the scope ofthe burn is sufficient ifthe scope does not constitute circumvention ofthe rule for a continual burning situation. Commission [aetifieatioa &] approval is not required; ["] @)_ in a county that is not part ofa designated nonattainment area and that does not contain anypart ofa municipality that extends into a designated nonattainment area; and on the property on which it was generated and bythe owner ofthe 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) ofthis 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 ofa municipality and within a county with a population ofless than 50,000. Theownerofthedesignated site orthe owner's authorized agent shall: 

### fll post at all entrances to the site a placardmeasuring a minimum of48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE -No burningofanymaterial is allowedexceptfortrees,brush,grass,leaves, branchtrimmings, 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}." Theplacard(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 ofthe designated residential properties. Therecord mustcontain the description ofa platted subdivision and/ora listofeachpropertyaddress andthe nameofeachproperty owner. The description must bemade available to commission or local airpollution control agency staffwithin 48 hours. ifrequested; (j:j_ ensure that all waste burned at the designated site consists oftrees, 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 supervisedby an employeeofa fire department who is part of the fire protection personneL as defined by Texas Government Code, §419.021, and is acting in the scope ofthe person's employment. The fire department employee shall notify the appropriate commission regional officewith atelephone orelectronicfacsimile notice 24hours in advance ofany 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 purposeswhennopractical alternative exists. Suchburning shall be subject to the requirements of§111.219 ofthis title[,] and structures containing sensitivereceptors mustnotbe negatively affected by the bum. When possible, notification ofthe intent to bum should be made to the appropriate commission regional office prior to the proposedbum. Commission notification or approval is not required. This section is not applicable to cropresidueburningcoveredby 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 andbumapproval from the executivedirector. Such abumcanonlybe 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 ofthis title (relating to Executive Director Approval of OtherwiseProhibited OutdoorBurning), and shall be subject to the requirements of§111.219 ofthis title. (Q) No person may cause, suffer, allow, orpermit the burning ofhouseholdrefuse on a lotthatis smallerthanfive acres or located in a neighborhood and in an unincorporated area ofa county: 

### ill that isadjacentto acountywith apopulationof3.3 million or more; and 

### ill in which a planned community is located that has 20,000 ormore acres ofland,that wasoriginally establishedunder the Urban Growth and New Community Development Act of 1970 (42 United States Code, §§4501 etseq.), and that is subject to restrictive covenants containing ad valorem or annual variable budget-based assessments on real property. This agency herebycertifiesthatthe 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



### PROPOSEDRULES February 10, 2006 31 TexReg 823

# WRITTEN AND ORAL TESTIMONYReference 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 ofTexas Ray Averitt, TXU Electric Delivery Thomas Diggs, United States En\tironmental Protection Agency Mary Williams

# ~ BrazosRiverAuthority

March 1 , 2006 Ms. Joyce Spencer Texas RegisterTeam, MC-205 Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 78711-3087 Re: Proposed Amendment of30 TAC §111.209 Dear Ms. Spencer: QUALITY • CONSERVATION • SERVICE



### RECEIVED 

## 11AR 032006 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 ofthe 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 ofthe fire protection personnel, as defined by Texas Government Code, §419.021, and is acting in the scope ofthe 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 departmentsforfire protection, from taking advantage ofthe 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 ofthe Possum Kingdom Volunteer Fire Department, Ronald Ranft, has 160 hours ofgeneral 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 ofthe Palo Pinto County Wildland Strike Team for 10 years. In contrast to the vast wildfire experience ofvolunteer 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<• Ikuftlt**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 TexasRegisterTeam (MC205) Oftice ofLegal Services Texas Commission onEnvironmental Quality PORox 13087 Austin, Texas7g711-3087

Dear

### Ms. Spencer:**www.1,!rhcl~o•'1! W~mcn**  J.**llull~•ltllll** <

:h1cf**t'ltll:ralint~** Ollk

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

# 8

RECEIVED 

## MAR 1 3 2006 RtGUli:J'IONS

### DEVtlOrtiENISECT:m:

RF,: Rule PrQject Number2005-041-11 1-CR



### On behalf

### ofthe Galveston CountyHealth District,I respectfully submitcommentsconcerningthe pr(1posed revisions to 30Ti\CChopter 111. Therule projectnun1ber is2005-041-11l·CE.

• Within the**propo~ed** 

### revisions. the

### rule authorizesthe burningofwastcconsistingof

### plant growth in areaS 

### that meet thenational ambientair quality standards (NAAQS) and do not contain any part ofa city thatdocsnot meetthe Ni\AQS ifthe waste is burned onpropertyoforigin and hy

### the ownerofthe 

### property oranyotherperson authori:zed bythe owner. What aboutthe burning of

### plant material in nonattainment areas on propertyoforigin by

### the ownerofthe property orany otherperson authorized by 

### the owner? Thank you in advance for your

### attention to this motter.

Ronnie Schultz DirectorofEnvironmental 

### Tlcalth Programs Galveston County Health District

P.O. llOX 9J'> • 1.1\ MARQllF:, 'rEXAS 77568 • (40?) 938-7221

### March 8, 2006

ToWhom It

### May Concern: Re: Article inLufkinDailyNews-March 6, 2006 "Austin to heartestimony onburning" 

### RECEIVED 

# MI-\R 102006 REGUli\TIONS

### DE~Ll0fi1.:::NI SEC1\0il 

# f::\

With my allergies andmyhusband's emphysema, we do NOTneedtobe exposed

# ~ to thepollutants containedinthe smoke whenourneighbors orfolks downthe streetbum theirpineneedles, leaves, trash oretc. in ourarea. A couple ofmonths ago whenwe calledpoliceto tellourneighborsto putoutthefire, theywere burningplasticcar seats, whichwasreleasing all sorts ofharmful gasesthatwewerebreathing. When folks burn•, the smokecomesinto ourhome. Eventhoughthe windows are painted shut, the smoke still gets into ourhome, makingus sick, Onseveral occasions, I'vehadto leavemy ownhouse! ! I have also had

### to see myDr. This is notright and shouldnothappen. With so muchlung cancerinthis area, burning inthecitylimits of 

### Lufkinshouldbe a "no, no." These aremy commentsonallowing Lufkinto bumwithinthe citylimits. 

### I vote NO! Sincerely,

# V~ciaAnn Harris 518

### Humason Ave. Lufkin, Texas 75901-2478

### Rule ProjectNumber**200~** 

### +1-111-CE Page 1ofl



### RonnieKramer- RuleProjectNumber2005-041-111-CE

From: 11

### DuaneFreeman11 

### <duane@cityoflufkin.com> 

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

### Date: 3/13/2006 6:06PM 

### Subject: RuleProjectNumber2005-041-111-CE



### Mr. Kramer

.............The proposed amendments to 111.209 (a) (4) (B) indicate

# 8

such burning shall be subjectto the requirements of 111.219(3), (4), (6), and (7) o the title. Specifically (6) (A) states that burning shall commence no earlierthan one hour after sunrise and be completed on the same day not laterthan 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 homeownerto bum afterthey 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 ofthefire getting out ofcontrol. 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 ofcontrol fire, ifthe contractor could begin much earlierthat one hour before sunrise. The Texas Forest Service actually encourages burning to commence earlierthan the rules allow. Thanks forthe opportunityto 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, 

## HoustonRegional Group 

# P: 0.Bex 3021 Ho:usten, Texas 77253-3021 

### 713-895**9~9** 

### http:

### Iltexas.sierraclub.org/houston/



### 'J:'F

## B 0 q 

## 2006

, , r

### ,JNTSECTION

# 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 thatTCEQ 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, theway 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 AmbientAir 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.

"Whenwettytopickout anything byitself, we fmd it hitchedto everythingelse 

### intheuniverse."

### johnMftir

Printed on 100% Kenaftree 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 opportunityto comment. Thank you. Sincerely,

# ~~ Brandt Mannchen 

# V**"'_~** Chair, Air Quality Committee Houston Regional Group ofthe Sierra Club Lone Star Chapter 5431 Carew**Hou~on,Texas77096** 

### 713-664-5962 brandtshnfbt@juno.com

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



## "RuleProjectNumber2005-041-111-CE"

Mynameis Ivett Teczely. I live inLufkin since 2001. 

# 8

Myhusband and I movedto a new locationinLufkin andtomy horrorI realizedthatpeople areburning!!!!! Constantly, daily, morning, evening any 

## time. The smokeis unbearable, it

## comes into thehouse it stays. IfI go for a walk, I smell ofsmoke andmyeyes are burningforhours. We cannotenjoy ourbackyardbecause of the smoke. Wehavealmost4 acretotake care ofanditis within city limits. We cleanouryard, bag everythingup andthe city

## takes care ofthe rest. Why do I haveto smellthe smoke allthetime? It

## makes me feel sickanditmakesme feel very angry. I amtired ofcallingthepolice everytimewhenI smellthe sn1oke. I would liketo make mypointthat outdoorburning is bothering me,justlike many othershere in

## Lufkin andI wouldbeveryhappy to seethatthe statewidebanonburningwithincity limitswere enforced (withno exceptions) inLufkin.

I

- _..., 

# ;**~-cv-** 

### [§()(1:1:---**~ -r~**  

## IvettTeczely and TomPatel 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 ForPresentationat TCEQPublic Hearing inAustin, Texas Re: Rule ProjectNo. 2005-041-111-CE

My name is Robert (Bob) Turner, andprovide contract governmentalrelations consultationand advice for Eartlunoving ContractorsAssociationofTexas (ECAT). I 

### ampresentingthistestimony onthe associations behalftoday. ECAT is made upofmembers from all overthe StateofTexas, all ofwhomare contractors, who specialize in heavydirt work,witha majorportionoftheir work inthe areaofagriculture and naturalresource conservationtypework. Ourcontractors do mechanicalbrushcontrolas it relatesto improving pasture conditions, andprimarily as it relatesto increasing and conservingbothgroundwaterand surfacewater. As we all know, the issue ofwaterconservation is ofmajorconcernto the State ofTexas at this time, andwill increase in it's role ofimportance as thepopulationofour state continues to increase. Ourmembers have MAJORCONCERNS andMAJORINTERESTS inhowwe dispose ofthe brushthat wemove in ourbusiness. Burning inmost ofourapplications is the ONLYpracticalmethodofdealing withthis issue. Therefore, it concernsus whenthere are discussions atthe state'senvironmental agency that could possibly limit, orput unrealistic controls onthis bestpractice method ofhandling thiswaste matter. Realizing thattherules indiscussiontodaymake very little change in agricultural applicationofburning, we stillwantedto express and STRESS ourconcerns and fears thatthis could be leading to unacceptable levels ofcontrolbythe agencyat a future time. Also realize thattheseproposedrules do not impact another oneofagriculture's methods ofrange management, and thus, water andrange conservation, andthat is what is known as "prescribedburning. The abilitytocontinue this, yet another best practice method is most importanttothe agricultural industry as a whole. As anassociationofprofessionals inthis field , we offer our servicesto TCEQ whenyou are working onrules concerning agricultural burning, ofall types. It 

### would be a pleasure

# 8

### for our membersto assist you whencalledupon. Some ofthese contractors have been in theirbusiness for 50 ormore years, and are looked upon as "the authority" onhowto best deal withagriculturalrefuse inthe most ecologicallyacceptable manner.

Thanks for yourinterest and attentiontothis writtentestimony. ECAT and our membership looksforward to working hand inhand withTCEQ incastingrules which areeffective, yet affordable and livable bythe industry.

Robert R (Bob) Turner GovernmentalRelations and Consultant Earthmoving ContractorsAssociationofTexas

### 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** ofEnvironment, Safety & lndus\rial Healtl1 Dilllas,TX 75201 Tel: 214 <166 2815 Filx:214 4864399 ray_avcritt@txued.com 

### March 13,2006 

### RECEIVED 

## MAR 13 2006**REGUlMIU\\~ u~~HU~l.\E~1** 

## SECI\ON

# 8 Joyce Spencer Texas Commission onEnvironmental Quality Texas Register Team, Office ofLegal Services Mail Code 205 P.O. Box 13087 Austin, Texas 78711-3087 

## RE: Rule ProjectNumber**2005~041-111-CE** 

### DearMs. Spencer: 

### TXU appreciatesthe opportunityto 

### commentontheTexas Commission onEnvirorunental Quality (TCEQ's) OutdoorBurningProposedRule. These conunents are submitted onbehalf ofTXUElectric Delivery, whichisTXU'sregulated electric distribution andtransmission business. TXUElectric Delivery'soperations arethe largestinTexas,providingpowerto 2.9 milliondeliverypoints overmorethan 98,000 miles ofdistributionand 14,000miles of transmission lines. · TXU Electric Delivery (hereinafterreferredto as TXU) supports TCEQ effortsto improvethe clarity ofthe rule language. TXU supports the rule 

### as proposed and emphasizesthe importance oftwo sections containedintheproposedrule: 1) TXU supports the additional flexibility inspecific circumstancesand/or operationsthatthe applicability of §lll.209(a)(4)(A)-(B)provides for ''on-siteburning" for "right-ofway (ROW) management" and 2) TXU supports allowing a "contractual easement document"to be acceptable documentationthat anindividual or companyis an "authorized agent". Section lll.209(a)(4)(A)-(B) oftheproposedrule allows outdoorbumingregardless of whether apractical altemative toburning exists. TXUoccasionallyutilizes theexistingrules when itis necessary to bumlarge amounts ofwood. Forexample, cleanup efforts from Hurricane Katrina andRitaresulted 

### inlarge amoWltS ofwood and**brush~** 

### some inremote areas inaccessiblebymostvehicles. Theabilityto conductoutdoorbl.Uning withouthavingto provide evidence ofotherpractical alternatives wouldgreatly expedite clean-up and management ofROW in

### circumstances such as these. TXU supports the inclusion ofan "authorized agent"in Section 111.209(a)(4)(B). TXU maintains lines and ROWs overa largepart ofTexas. In some instances, TXUmaynotbe the actualpropenyowner, butmay have a contractual easementagreement with the ownerto maintain and manage thematerials.

### Mar-13-2006 05:04pm From-EHS**ONCO~** 

### 2144864399 T-289 P.003/003 F-054



### Ifyouhave anyquestions orneed

### additional information,pleasedo

### nothesitate

### to contactme. Sincerely,

# ;Jwif~ RayAverittUNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6



### Mr. Russ Kimble GeneralLawDivision 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 

### March 10, 2006 

### RECEIVED 

## MAR 1**~-** 

## 2005 Texas Commission onEnvironmental Quality P.O. Box 13087 Austin, TX78711-3087

### REGUlAT~!S

## DEVElO,iENTSECTib

Dear

### Mr. Kimble:

## ~ I receivedyourletterto RebeccaWeber, dated January25,2006,inwhichyouinvitethe publicto submit comments onrevisions to 30TAC Chapter 111.203 and 111.209, SubchapterB, OutdoorBurning, and state

### the Commission'sintentto submitsuchprovisionsto EPARegion6 asrevisions to Texas' StateImplementationPlan (SIP). I would like to bringto your attention thutthe Texas SIP does notinclude Sections 111 , 

### 203 to 111 .221 ,

### butrather anearlierversion ofrules governing outdoorburning, which includes Sections 111.101, 111.103, 111.105, and I 11.107as approved by

### EPAon January 18, 1994 (59 

### FR02534). AlthoughEPAtooka directfinal action, onOctober9, 1999, (64 FR 57983),to approverevisionsto Texas' openburningregulations.• wereceived arelevant adverse comment

### inthe 1999actionand therefore withdrewthe direct final rulemakingon December 17, 1999 (64FR70592). We arcnow intheprocessofrevjewing

### thataction. From an initial comparison ofTexas' tevisionsto Sections 111.203 and 111.209 (and Sections 111.215 and 111.219, as referenced 

### within 111.209), to current SIP-approvedrules (and thoseunderconsiderationfor approvalbyEPA

### inthe aforementioned action), I feel thereisa potentialthatthe openburningrulesmightberelaxedin some areas. Open burningemissions result

### innotonlydirect emissions ofPM,butalsoincludeotherpollutants. suchas NOx, VOCs and 

### S02 which can contributeto the tonnation ofsecondaryPMand ozone. Therefore, any relaxationto rules thatcouldresult in an increase in emissionsthatcould makeitmorediilicult for areaswithinTexasto attain, orto

### continueto attain,theNationalAmbient AirQuality Standards (NAAQS)

### is oflegal concern. Our

### principal focus inreviewing a possibleSIPrevision requestwouldbewhetherthe proposedrevisions to the openburningrulespresent

### intheTexasSIPwould

### be 

### incompliance with Section 110(1) ofthe CleanAirAct (CAA), which states: "Eachrevisionto animplementationplan submitted by 

### a StateunderthisAct shall beadoptedby such Stateafterreasonable notice and publichearing. The Administrator shall notapprove a revision ofa planifthe revision wouldinterfere with any applicablerequirement concerning attainment and reasonable further progress (as definedin section 171), oranyother applicablerequirementofthis Act."

lntsrnet**AQdn~ss** (UAL) • http://www.epa.gov Roc:yc:lod/Roc:yc:l.ablo • Prlnledwith 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 principlethatEPA

### is**authoriz~;:d** 

### undt:r lht: CAA 

### lo approvt:**r~laxalions** 

### ofSIPrequirements as long astherelaxations donotinterfere withtimely attainment orsubsequentmaintenance ofthe NAAQS oranyotherCAA requirement. 

### A submittal requesting approval of

### SIP revisionsmusttherefore demonstratethatthe SIP revisions do not interfere with the attainment ormaintenance ofthe NAAQS, violatethe Prevention 

### ofSignificantDeteriorationincrements, or

### anyother applicablerequirementsunder the CAA, orin any way adversely af-Tect lhe existingairquality in**T~x~.** 

### This demonstration must show anyrelaxatic>ns ofthe existing 

### SIP requirements will 

### notresult ininterference 

### with therequirements ofthe CAA. In addition, the State mustprovide an opportunityfor notice and public comment. Tothatend, wereferyoutopastEPAFederalRegisterActions undguidance memorandumonthe abovethatwewillbehappyto provideyou. Wehave also enclosed a copy ofEPA's latestdraft guidance, dated June 6, 2005, "Demonstrating Noninterference Under Section 

### 110(1) oftheClean

### AirActWhenRevising a StateImplementationPlan." As stated in the guidance. withrespectto**attainmen~** 

### maintenanceand

### RFP, andall other applicablerequirements, theAgencyinterprets section 

### 110(1) suchthatareas generallyhavetwo options availableto demonstrateno1linte1ference fol" the affected poUutant(s). These options are, 1) 

### substitutionofonemeasure by 

### anotherwithequivalentor 

### greateremissionsreductions/air qualitybenefit; or2) an air quality analysis showingthatremoving the meac;ure 

### will notinterfere with otherapplicablerequirements 

### (i.e., without 

### a substitutemeasure). Lastly, 

### CAA Section 

### 193, "General Savings Clause," requiresthat control measures in effect orrequiredto be adoptedinnonattainment areas by

### an order, settlementagreement, or

### plan ineffect

### before the 1990 CAAamendments 

### 1nnonattallmlC.nt

### areas may nol

### beremovedor modifiedabsenta SIPrevisionthat ensures equivalentorgreateremissionsreductions. Therefore,pleasedemonstratetoushowrevisions to Sections 111.203 and 111.209 Em.d Sections 111.101, 111.103, 111.105, and 111.107 showthat suchrevisions would notinterfere withanyapplicablerequirements concerning attainm_ent. 

### RFP or any other applicable requirementunderthe CAA. Thankyoufor providingusthe opportunityto provide comments onthisproposal. Ifyou have any q\.testions orconcerns,pleasecall me at 214-665-3102, or

### Joe Kord7.i ofmy staff, at 214-665-7186.

E11closure

cc: Ms. Joyce Spencer**~lyyours,**

# Y·/~· Thomas Diggs,**Chi~f** 

### Air Planning SectionINDEX 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 ofBuilders Bob Turner, Earthmoving Contractors Association ofTexas

### 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 

# ORIGINAlI 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 23 

### 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) 450-03426 

### 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) 450-03427 

### 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/orwritten comments on proposed revisions to 30 TAC Chapter 111 , Control of Air Pollution from Visible Emissions and Particulate Matter

Name Representing Presenting Oral Testimony? (Circle One) (Please Print) 

# :rc)"'-' Oc\C-€

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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 ofCompliance and Enforcement


### Docket No.: 2005-1799-RUL 

### Subject: Commission Approval for Rulemaking Adoption 

### Date: June 23, 2006

Chapter 111, Control ofAir 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 SenateBill (SB) 1710, 79thI:-egislature, 2005, authoredbySenatorToddStaples, District3,bothamended Texas Health and Safety Code (THSC), §382.018, OutdoorBurning ofWaste andCombustibleMaterial. As amended, THSC, §382.018(a), is subjectto Local Government Code, §352.082, OutdoorBurning of Household Refuse in CertainResidential Areas. Local Government Code, §352.082, is applicable to the

. unincorporated area ofacounty thatis adjacent to a county with a population of3.3 million ormore, and

in which a planned community is located that has 20,000 or more acres ofland, which was originally established under the Urban Growth and New Community Development Act of 1970 (42 United States Code, §§4501 

### etseq.), andthatis subjectto restrictive covenants containing ad valoremorannualvariable budget-based assessments on real property. A person commits a Class C misdemeanor under Local Government Code, §352.082, ifthe person intentionally or knowingly burns household refuse outdoors on a lot that is located in a neighborhood or on aproperty smaller than five acres. Current agency rules authorize such burning in the applicable area for private residences when collection ofdomestic waste is not provided or authorized by the local governmental entity havingjurisdiction. As amended, THSC, §382.018(b), requires the commission to authorize by rule outdoorburning ofplant growth on the property on which the waste was generated and by the owner ofthe 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 ofa city that does not meet NAAQS. THSC, §382.018(c), prohibits the commission from requiring prior commission approval ofsuch 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 ofplant 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 ofless 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 Page 2 June 23, 2006 Re: Docket No. 2005-1799-RUL departmentand is acting in the scope ofthe person'semployment. THSC, §382.018(e), requires the fire department employee to notify the commission ofeach supervised burn. Current agency rules prohibit such burning and make no provision for the establishment ofsites designated for the burning ofwaste.

• Under what authority are we adopting these changes? The amendments are adopted under THSC, §382.002, relating to Policy andPurpose, TexasCleanAirAct(TCAA), §382.011, which authorizesthecommissionto administertherequirementsoftheTCAA; §382.012, whichprovides the commissionthe authority to develop acomprehensiveplanfor the state'sair; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe TCAA; §382.018, whichauthorizesthecommissiontocontroloutdoorburning; §382.085, whichprohibits unauthorized airemissions; andTexasWater Code (TWC), §5.103 and §5.105, whichauthorizes the commissionto adopt rules.

• Is this rulemaking required by federal rule or state statute? Which ones? Yes. THSC, §382.018, Outdoor Burning ofWaste 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 GovernmentCode, §352.082. The intent oftherule revisions is twofold: 1) to address andprohibitthe burning ofhousehold refuse in a limited demographic area onpropertiesinneighborhoods oronlots smallerthanfive acres; and2) to add flexibility and options for property owners when burning plant growth in attainment areas and in areas outside ofmunicipalities in counties with a population ofless than 50,000.

• Why isitimportantthatwe do thisrule package? THSC, §382.018, requires the commission to authorizeby rule the burning ofplantgrowthin attainment areasunder certainconditions. The rulerevisionswouldaddressadditionalprovisionsofTHSC, §382.018, whichconflictwithcurrent commissionrules.

• Other important background or historical information. None. Scope ofthe rulemaking: Therulemakingamends §111.203 and §111.209, to incorporatethe amendments inTHSC, §382.018. The revisions prohibitthe burning ofhousehold refuse in a limited demographic area on lots ofless than five acres, authorizebyrule theburning ofvegetativewaste in attainmentareas ontheproperty onwhichitwas generated without consideration ofpractical alternatives, and authorize by rule the burning ofvegetative 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 requiredby state statute:

### Commissioners Page 3 June 23, 2006 Re: Docket No. 2005-1799-RUL

• prohibitthe burning ofhouseholdrefuse in alimited demographic area onlots ofless than five acres. This act is a Class C misdemeanor;

• authorize by rule the burning ofvegetative waste in most attainment areas on the property on which it was generated without consideration ofpractical alternatives; and

• authorize by rule the burning ofvegetative 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.



### • Staffrecommendations that are not expressly required by federal rule or state statute:

• provide for the establishment ofdesignated 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 ofa 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 ofa municipality and in a county with a population ofless than 50,000; and • fire department employees who choose to supervise burns at designated sites.



### • Does it create a group ofaffected 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 orlocated in neighborhoods; • by authorizingpropertyowners incounties thatare notpartofa designated nonattainment areaandcontainnopartofacity thatextends into a designatednonattainmentareato burn plant growth on-site without considering practical alternatives or local waste collection; • by authorizingthe designationofsites forburning ofplantgrowthgeneratedfrom specific residential properties outside ofa municipality and in a county with a population ofless than 50,000.; and • by requiring fire department employees who supervise burns at designated sites to notify the commission ofall such burns.

• Will

### therebea fiscal impact? Yes. If

### so, estimate. Property owners in alimited demographic area (currently unincorporated Montgomery County) whose lots are smaller than five acres or

### Commissioners Page 4 June 23, 2006 Re: Docket No. 2005-1799-RUL

locatedinneighborhoodsmay seedisposalcostsincrease. However, the costofthis wastedisposal 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 iflocal fire departments collect fees to supervise these burns. The cost decrease or increase of outdoor burning ofplant wastes depends on various factors and may vary. However, any costdecrease orincrease is not anticipated to be significant. 

### Impacton the public:

• Who will be affected? There may be an increase in the number ofpersons negatively affected by smoke.



### • Does it create a group ofaffectedpersons who were not affected previously? No. 

### How?

• Will there be a fiscal impact? No. If

### so, estimate. ImpactonLocal Government: Municipal governments within most attainment areas that want to place controls on the burning ofyard waste otherwiseauthorizedunder §111.209( 4)(B)withinthecorporatelimits ofthe city ortownmustenact ordinances consistent with TCAA, Chapter 382, Subchapter E, Authority ofLocal Governments. 

### Impact on agency programs: The rulemaking may result in an increase in the number ofcomplaints that the regional offices receive. The regional offices will beproviding information onpracticalalternatives 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. 

### Stakeholdermeetings:

• 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.



### • Whatwere the generalsentiments? Theprimaryinterestwas inhowthe 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 ofthe rules, the interpretationofferedby representatives oflanddevelopers, thatTHSC, §382.018(b), applied to commerciallandclearing operations as well as private residences, resulted in a change in how agency staffinterpreted SB 1710.

### Commissioners Page 5 June 23, 2006 Re: Docket No. 2005-1799-RUL 

### Policy issues:

• What policy issues are affected? N/A



### • Are any policies that are not currentlybased on rule beingmadeinto a rule? No.



### • What are the consequences ifthis rulemaking is not approved to go forward? TCEQ rules will conflict with THSC, §382.018.



### • Are there alternatives? No. 

### Potentially controversial matters: Authorizing outdoorburning ofplant growth in attainment areas and in counties with apopulationofless than 50,000 could create the perception that the agency is relaxing air quality standards, particularly in attainment areas where owners ofproperty ofany size couldburnplantgrowth 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 ofLufkin, Brazos River Authority (BRA), TXU ElectricDelivery (TXU), HoustonRegional Groupofthe SierraClub (HSC), TexasBuilder'sAssociation (TBA), TexasIllegalDumpingResource Center(TIDRC), EarthmovingContractorsAssociationofTexas (ECAT), GalvestonCounty HealthDistrict(GCHD), and United StatesEnvironmental ProtectionAgency (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 beenmade subject to local ordinances thatare consistentwithTCAA, Chapter 382, SubchapterE, Authority ofLocal Governments.

The City ofLufkin was opposed to restrictingburning to one hour after sunrise to one hourbefore 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 departmentemployee who is partofthe fire protectionpersonnel 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 Page 6 June 23, 2006 Re: Docket No. 2005-1799-RUL

TXUindicatedthe proposedruleremovedthe requirementto considerpracticalalternativebeforeburning. 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 "contractualeasement document" to be acceptable documentation that an individual or company is an "authorized agent," and supported inclusionofan "authorizedagent" 

### in §111.209(4). Thislanguage does notexistintheproposed rule. No changes were made in response to the comment. Inresponse, the language "bythe ownerofthe propertyorany otherpersonauthorizedby the owner" has beenmoved from §111.209(4)(B) to §111.209(4) sothatboth subparagraphs (A) and (B) are made subject to the requirement. Theinclusionofthe language 

### in subparagraph (B) butnot subparagraph(A) may have been taken as authorization to burnunder 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 commissionby rule shall authorize outdoor burning ofwaste 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 nearTheWoodlands. HSC did not supportthe implementationofSB 1710, which prohibits the TCEQ from requiring approval prior to burning. HSC recommendedthat 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 ofthe 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 recommendedusing the phrase "inan area" ratherthan "in a county" inproposed §111.209(a)(4)(B). TBA recommended using the language "municipality that is designated nonattainment area" ratherthan "Municipality that extends into a designated nonattaimnent area" inproposed §111.209(a)(4)(B). TBA cornmentedthat subjectingproposed §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 otherplant growth" inproposed §111.209(a)(4)(B). This recommendation was taken and the language is now in adopted §111.209(4). TBA also commentedthatthe languageinproposed §111.209(a)(4)(C)(iii), now adopted §111.209(5)(C), requiring the owner ofa designated site to maintain records including the name ofeach property owner was confusing and may notbe necessary. Inresponse to this comment, the requirementto keep the name ofeach property owner as part ofthe records was removed.

### Commissioners Page 7 June 23, 2006 Re: Docket No. 2005-1799-RUL

TIDRC commented that while HB 39prescribed a Class C misdemeanorunder Local GovernmentCode, §352.052, the proposed §111.209(b) createdacrimewith alargerpenaltyunderTWC, §7.177(a)(5) than intended by the legislation. Inresponse, §111.209(b) was struck and §111.209 was made subjectdirectly to Local GovernmentCode·, §352.052. TIDRC also commented that SB 1710 specifically refers to areas thatmeetthe NAAQS, whichdoesnotinclude undetermined areas, butthe language in §111.209(a)(4)(B) refers to most ofthe state including the undetermined areas. No change was made in response to this comment. TIDRC commented thatmany cities do not have local ordinances dealing with illegal burning and rely on the criminal application ofTWC, §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 ofLocal Governments. GCHDdid not indicate supportoroppositionto the rulemaking, butmerely asked a question. No change to the rule was made in response to the question. ECAT's comments are outside the scope ofthe rulemaking. EPA commented that while ithad takenfinal action on October 9, 1999 (64 FR57983), to approve state implementationplan(SIP) revisions to the Texas outdoorburning 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 ofreviewing that action. Therefore, the current rule under revision is not part ofthe Texas SIP. EPA expressed concerns thatthe proposed rules may potentially relax outdoorburning in some areas, in comparison to current SIP-approved rules (§§111.101, 111.103, 111.105, and 111.107) and those currentlyunderEPA consideration. EPA requested thatTCEQdemonstratehow 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 ofLocal 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)weremade mutuallyexclusive. Thiswas done inresponsetocommentsreceivedatagenda forproposalandfromTXU. Thisclarifieswherepracticalalternativemustbeconsideredpriorto burning. All of§111.209(4) was made subject to the requirementthat burning be "by the owner ofthe property or any other person authorized by the owner." This was done in response to comments from TXU, which indicatedmisinterpretationofthe intentofthe proposedrule. Existing rules andproposed §111.209( 4)(A) are not subjectto this requirement. The language is explicitinSB 1710, butits absence in §111.209(4)(A) may have beenunderstoodto imply that the commissionwas authorizing someone to bumwithoutconsent from the owner ofthe property.

### Commissioners Page 8 June 23, 2006 Re: Docket No. 2005-1799-RUL

Inorderto ensure thatlocalauthoritiesretainappropriate authority to enactordinancescontrollingoutdoor burning, adopted §111.209(4)(B) is made subject to local ordinances which prohibitburning 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 amunicipalityfrom enacting an ordinance which makes unlawful aconditionoractapproved or authorized by the commissions's rules or orders. Agency contacts: Ronnie Kramer, Rule Project Manager, 239-0194, Field Operations Division Michael Blinn, StaffAttorney, 239-4705 Pinar Dogru, StaffAttorney, 239-0144 Joyce Spencer, Texas Register Coordinator, 239-5017 Attachments

cc: ChiefClerk, 5 copies Executive Director's Office David C. Schanbacher, P.E. Jason Skaggs Ashley K. 

### Wadick Brent Wade Office ofGeneral Counsel Ronnie Kramer Joyce Spencer

cc (without attachments): Michael Blinn, StaffAttorney Pinar Dogru, StaffAttorney Debra Barber, Office Liaison Jim Reed, Division Liaison Booker Harrison, OLS Liaison Russ Kimble, OLSEVALUATION 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 ofthe 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).

BACKGROUNDAND 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 ofWaste and Combustible Material, by making it subjectto 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 ofa county that is adjacent to a county with a population of3.3 million or more, in which a planned community is located that has 20,000 or

more acres of land that was originally established underthe Urban Growth and New Community DevelopmentAct 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.



### 1Senate 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 ofwaste consisting of plant growth in areas that meet the national ambient air quality standards (NAAQS) and do not contain any part ofa city that does not meet the NAAQS ifthe waste is burned on the property of origin and by the owner ofthe property or any other person authorized by the

owner. The commission is prohibited from requiring prior commission approval ofthe 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 implementthe 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 ofwaste consisting of plant growth at

a site designated for burning ofwaste generated from specific residential properties located outside ofa municipality and in a county with a population of less than 50,000, if supervised by

a fire department employee acting in the scope ofthe person's employment. The current rules do not authorize the burning ofwaste at designated sites. The adopted rules will establish minimal compliance determination criteria to ensure that all activities meetthe 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 ofdomestic waste, including plant growth, is already authorized in these counties for private residences when collection ofdomesticwaste 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 domesticwaste collection by the local governmental entity having jurisdiction. Therefore,



### 2the adopted rules will not cause an increase in plant growth burning in designated nonattainment areas. DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIRACT, SECTION 110(1) Issue The commission provides the following information to clarify whythe amendments to §111.203 and §111.209 and the Texas SIP, will not negatively impact the status ofthe state's attainment

areas.

The requirementfor 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) ofthe Clean AirActWhen Revising a State Implementation Plan." The guidance states (page 6) that"

...areas have two options available to demonstrate noninterference forthe 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 ofone measure by anotherwith equivalent or greateremissions 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 §§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), EPAtook a directfinal action to approve these revisions to the state's outdoor burning regulations as amendments to the SIP. However, EPA 

### 3received 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 ofoutdoor 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 ofthis 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 ofwaste consisting of plant growth generated from specific residential properties on designated sites outside ofa municipality and in counties with a population of less 

### 4than 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 ofdomestic waste. To the commission's best available knowledge, countyjurisdictions 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 smallerfires throughout the neighborhood. Furthermore, the revision places additional restrictions on outdoor burning at such a designated site than currently exist for burning of domesticwaste. Specifically, the revision requires mandatory notice to the commission priorto the burn and requires supervision by a fire department employee who is part ofthe fire protection personnel, as defined by Texas Government Code, §419.021, that is acting in the scope ofthat person's employment. The required supervision ofa fire department employee for each burn imposes limits on the frequency and number ofoutdoor burns and, therefore, would not constitute a relaxation ofthe 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 ofwaste 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 oforigin in most areas ofattainment, regardless ofthe type ofactivity that produced the waste. Current rules authorize the burning ofwaste plant growth on the property oforigin, but limit activities to right-of-way maintenance, landclearing operations, and maintenance along water canals, and only when no practical alternative to burning exists. 

### 5However, 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 ofthese 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 ofthe burn; and 2) authorizing the burning only when no practical alternative to burning exists. The removal ofthe 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 priorto burning." The current rule does not require approval ofthe practical alternative analysis priorto 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 ofthe definition of practical alternative, per §111.101 (4) (formerly §111.101 (3)), "An economically, technologically, ecologically, and logisticallyviable option." TCEQ guidance document RG-049, Appendix D, states that when evaluating these four criteria the standard ofjudgment should be that ofa "reasonable person." Therefore, practical alternative does not constitute an air control measure, but rather a measure to foster an analysis priorto burning, as was the commission's intent. To demonstrate this, there is no record in the commission's compliance database ofany Notices ofViolation or Enforcement forviolation 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 ofdomestic waste 

### 6where waste collection is provided, or causing nuisance conditions. This further demonstrates thatthe 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 oftrench burners is a practical alternative under certain circumstances." The use oftrench 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 ofthe 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 ortown, consistent with Texas Clean AirAct (TCAA), Chapter 382, Subchapter E, Authority of Local Governments. The revised rules, for areas in nonattainment, maintain all ofthe air control measures in §111.219.

The commission does not anticipate increased burning or a relaxation ofthe Texas SIP for those municipalities in areas ofattainment. 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 ofwhether in areas ofattainment or nonattainment, persons conducting outdoor

7burns remain responsible for any consequences, damages, or injuries resulting from the burning in accordance with §111.221, Responsibility for Consequences ofOutdoor Burning.

Conclusion In addition to the above analysis ofthe 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 ofthe Texas SIP.

SECTION BY SECTION DISCUSSION Administrative and grammatical changes are adopted throughout the sections to bring the existing rule language into agreementwith Texas Register requirements, agency guidelines, and guidance provided in the Texas Legislative Council Drafting Manual, November 2004. The adopted amendmentto §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 directlyto Local



### 8Government 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 ofthe property, or any person authorized by the owner, in counties that are not designated as nonattainment and that do not contain any part ofa 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, ratherthan only for right-of-way maintenance, landclearing operations, and maintenance along waterways. The adopted rule, §111.209(4)(8}, is subjectto §111.219(3}, (4}, (6}, and (7}, and subject to any local ordinances that prohibit burning inside the corporate limits ofa city ortown, 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 ofa 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 subjectto authorization by the 9owner ofthe property! per the requirement in SB 1710. All burning under adopted paragraph (4) is subject to authorization by the owner ofthe property. This is to clarify that while the language is required by SB 1710for burning under paragraph (4)(B), the absence ofthe language elsewhere does not imply that burning on site without the consent ofthe 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 forAllowable 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 ofa city ortown 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 ofwaste 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 underTHSC, §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 ofthe person's employment, who must notify the commission of each supervised burn. To determine if burns under adopted paragraph (5) meet 10the conditions ofTHSC, §382.018(d), the adopted rule requires the owner ofthe site orthe owner's authorized agent to post the designated site, maintain a description or list ofspecific residential properties forwhich 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 ofeach 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 ofthe regulatory analysis requirements ofTexas 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, orthe public health and safety ofthe state or a sector ofthe state. The primary purpose ofthe adopted rules is to protect the environment through the regulation ofthe outdoor burning ofwaste 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 ofdomesticwaste in residential areas that are in unincorporated areas ofa county adjacentto a county with a population of 3.3 million or more and where there is a planned community of20,000 acres or more. In these residential areas, domesticwaste cannot be burned in a neighborhood or on a lot that is less than five acres; 2) allow forthe burning of waste consisting of plant growth in areas that meetthe NAAQS and do not contain any part ofa 

### 11city that does not meet the NAAQS ifthe waste is burned on the property of origin and by the

owner ofthe property or any other person authorized by the owner; and 3) allow for the outdoor burning ofwaste 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 ofthe burning by a fire department employee acting in the scope ofthe person's employment.

Furthermore, the adopted rulemaking does not meet any ofthe 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 ofthe federal governmentto implement a state and federal program; and 4) are not an adoption of a rule solely underthe general powers ofthe commission.

Based on this assessment, the adopted rulemaking does not constitute a major environmental rule and is not subjectto the regulatory analysis provisions ofTexas Government Code, §2001.0225. Public comments were solicited. No public comments were received regarding the regulatory impact analysis determination.

TAKINGS IMPACTASSESSMENT The commission evaluated the adopted rules and performed an assessment ofwhetherthe adopted rules constitute a taking underTexas Government Code, Chapter 2007. The primary purpose ofthe adopted rules is to protect the environment through the regulation ofthe outdoor burning ofwaste. 12Promulgation and enforcement ofthese 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 ofthe 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 domesticwaste in residential areas that are in unincorporated areas ofa county adjacent to a county with a population of 3.3 million or more and where there is a planned community of20,000 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 ofwaste consisting of plant growth in areas that meet the NAAQS and do not contain any part of a city that does not meetthe NAAQS ifthe waste is burned on the property of origin and by the owner ofthe property or any other person authorized by the owner; and 3) allow forthe outdoor burning ofwaste consisting of plant growth at a site designated for consolidated burning ofwaste 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 ofthe person's employment.

CONSISTENCYWITH 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 ofcoastal natural resource areas; to ensure sound management ofall coastal resources by allowing for compatible economic development and multiple human uses ofthe coastal zone; to ensure and enhance planned public access to and enjoyment ofthe coastal zone in a mannerthat is compatible with private property rights and other uses ofthe 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 ofair pollutants, shall comply with regulations in 40 Code of Federal Regulations, adopted in accordance with Federal Clean AirAct (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 ofthe rules will not violate orexceed 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 14The commission received written comments from four individuals, the City of Lufkin, Brazos RiverAuthority (BRA), TXU Electric Delivery (TXU), Houston Regional Group ofthe Sierra Club (HSC), Earthmoving ContractorsAssociation ofTexas (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 ofthe rulemaking.

RESPONSE TO COMMENTS One individual commented that dueto 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 complywith SB 1710. SB 1710 requires the commission to authorize by rule the burning of plant growth in most attainmentareas, if burned on the property oforigin. The commission believes the intent ofthe legislation, in part, is to directand delegate appropriate authority to local 15

### governments in efforts to ensurethat regulatory policies address the concerns of affected citizens. In response to the comment, the commission has made §111.209(4)(8) subjectto any local ordinances that prohibit burning inside the corporate limits ofa city

ortown and thatare consistentthe TCAA, Chapter 382, Subchapter E, Authority of Local Governments. This will allow each affected municipalityto determine and address the

concerns ofaffected citizens. Allowable outdoor burning is not permitted atanytimeto rise to a level of nuisance conditions. Anyone may report a nuisance condition tothe 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 underthe 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 wherewaste collection is provided by the local entity having authority. Underthe adopted rule, however, this type of burningwill be authorized even when waste collection is provided. As noted in the response to the previous comment, this authority is subjectto any local ordinancesthat prohibit burning insidethe corporate limits ofa city ortown and thatare consistentwith TCAA, Chapter 382, Subchapter E, Authority of Local Governments. This will alloweach affected municipality to determine and address the concerns ofaffected citizens. The commission believes city governments should be allowed to control burningwithin their limits atthe local level. No change has been made in response to the comment.

16The 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 forthe 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 ofan out ofcontrol burn. The requirements of§111.219 are intended to improve the dispersion conditions necessaryto reduce the potential impacts ofsmoke and related emissionsfrom burns subjecttothe requirements ofthis section. No change tothe 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 ofa fire department who is part ofthe fire protection personnel, as defined by Local Government Code, §419.021, and is acting in the scope ofthe person's employment," was too restrictive. BRA commented that this requirement "does not recognize the considerable skill and training that volunteerfirefighters have in fighting brush fires, grass fires and wildfires," and "in contrast to the vast wildfire experience ofvolunteer 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 volunteerfire departmentsforfire protection, from taking advantage ofthe revised outdoor burning rules.



### 17

### The commission recognizes the considerable skill and training thatvolunteerfirefighters have in fighting brush fires, grassfires, andwildfires. However, the commission has undertaken this rulemaking to complywith SB 1710. SB 1710 is specific in its requirementthatthe burning be udirectly supervised by an employee ofa fire department who is part ofthe 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 tothe comment.

TXU commented that it supported the rule as proposed and emphasized the importance oftwo sections contained in the proposed rule: 1) TXU supports the additional flexibility in specific circumstances and/or operations thatthe 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) ofthe proposed rule allows outdoor burning regardless ofwhether 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 ofwood 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 choosewhether he intended to burn under subparagraph (A) or (8}, butcould 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 onlywhen no practical alternative to burning exists. Subparagraph (B) was intended to apply only in certain areas ofthe state, butfor all activities including, but not limitedto, ROW, landclearing, and maintenance along watercanals, and only by the landownerorany person authorized by the landowner. Under proposed subparagraph (A), burning for ROW in nonattainmentareaswould be permitted, as long as no practical alternatives existed. Under proposed subparagraph (B), burning for ROW would be permitted, butonlywith landownerauthorization.

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 countythat is part ofa designated nonattainment area orthat contains any part ofa municipalitythat extends into a designated nonattainmentarea. Subparagraph (B) applies in all other areas. Undersubparagraph (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 undereithersubparagraph (A) orsubparagraph (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 notcontain language allowing

a "contractual easement document" to be acceptable documentation thatan individual or company is an "authorized agent." SB 1710 is specific in thatthe burning must be bythe property owner or any other person authorized by the owner. The commission authorizes burning of plantgrowth, but does notauthorizethe infringementofthe property rights of landowners. Whetheror nota "contractual easement document" is 

### 19

### acceptable documentationthatan 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) subjecttothe requirementthat burning must be by the property owner orany 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 nearThe 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 thatthe exceptions for disposal fires contained in §111.209 are consistentwith the new criminal statute. No change to the rule has been made in responseto the comment.

HSC commented that it does not support the implementation ofthe language in SB 1710which prohibits the commission from requiring prior approval for outdoor burning underthe proposed rules. HSC commented that approval by the TCEQ ofoutdoor burning provides public protection and information.



### The commission has undertaken this rulemaking to complywith SB 1710. SB 1710 is specific in its requirement thatthe commission cannot require priorcommission approval. No change to the rule has been made in response tothe comment.



### 20HSC 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 ofthe term "plantgrowth" to include "trees, brush, grass, leaves, branch trimmings, or other plant growth," and believes the meaning is clearfrom 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 orthe owner's agent to do.



### The commission appreciates the comment. No change tothe 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 ofthe 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 consistentwith the language used in SB 1710, and in proposed §111.209(a)(4)(C)(i). The commission agrees that usingthe language "brush, trees, grass, leaves, branch trimmings, or other plantgrowth"would expand the language and be consistentwith the language used in SB 1710. The language has been revised as recommended. 21TBA 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," ratherthan, "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 ofthe 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 thatthe 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 tothe comment.

The commission believes thatthe language "in a county that is not partofa designated nonattainmentarea and thatdoes notcontain any partofa municipalitythat extends into

a designated nonattainmentarea" is necessaryto concisely definethe counties in which proposed §111.209(a)(4)(B) is notapplicable. The rule is notapplicable in twotypes of counties: 1) all counties in designated nonattainment areas; and 2) counties in attainment areas that both bordera nonattainment county and in which a municipality extends across the county line into both the attainment and nonattainmentareas. 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) 22talks about burning oil, non-wood construction items, and similar things. The rule itself does not contemplate the burning ofthings 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 ofcomplying 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 ofthe 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 ofeach property owner. TBA believes the language is confusing. Does it mean you must maintain the description ofthe platted subdivision or a list of each address, and in any event the name of each property owner? Ordoes it mean you must maintain the description or both the address and name ofeach 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 ofthe designated site may not have the

name ofthe residential property owner, but if he has the description ofthe subdivision and the address ofeach property, then he knows the locations designated forthe site.

The commission agrees that the requirement to include the name ofeach 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 23Texas 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 thatthe exceptionsfor disposal fires contained in §111.209 are consistentwith the new criminal statute located in Local Government Code, Chapter 352. TIDRC is correctthat under Texas Water Code, §7.177(a)(5), an intentional or knowing violation ofcommission rules adopted underTHSC, Chapter 382, carries penalties of upto $50,000 foran individual and upto 180 days confinement. The commission has made §111.209 subject directlyto Local GovernmentCode, §352.052, ratherthan repeating the restriction in proposed §111.209(b). Thiswill provide notice ofthis newcriminal statutewithout 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 ofTexas. This would greatly expand the area that the rule would be applicable to beyond that specified in SB 1710.



### The commission concurs thatthe language in proposed §111.209(a)(4)(B) encompasses mostattainmentareas, and the language in SB 1710 does notencompassthe undetermined areas. However, the language in SB 1710 does notdescribe an enforceable area. It is possible foran area to meetthe NAAQS one day, and fail to meet the NAAQS for a particular pollutanton the nextday, depending on atmospheric conditions and pollutanttransportfrom otherareas. 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 ofTexas 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 complywith SB 1710. SB 1710 requires the commission to authorize by rule the burning of plant growth in most attainment areas, ifburned on the property oforigin. The commission believes the intentofthe legislation, in part, is to directand delegate appropriate authorityto our local governments in efforts that regulatory policies address the concerns ofaffected citizens. In response to the comment, the commission has made §111.209(4)(8) subjectto any local ordinances that prohibit burning insidethe corporate limits ofa city ortown and thatare consistentwith TCAA, Chapter 

### 382, Subchapter E, Authority of Local Governments. This will alloweach affected municipalityto determine and address the

concerns ofaffected 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 ifthe waste is burned on the property of origin and by the owner ofthe property or any other person 

### 25authorized by the owner. GCHD asked the question, "What about burning of plant material in nonattainment areas on property oforigin by the owner ofthe property or any other person authorized by the owner?"



### The adopted rule does not authorize outdoor burning in designated nonattainmentareas
on the property oforigin bythe owner orthe property orany other person authorized by the owner. No changeto the rule has been made in response tothe comment.

ECAT commented that it is a statewide organization made up ofcontractors who specialize in heavy dirt work, with a major portion oftheirwork in the area ofagriculture 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 howthe contractors dispose ofthe brush in their business. Burning in most oftheir applications is the only practical method. Therefore, it concerns ECATwhen 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 underthe current rule. The proposed amendment tothe rulewould remove the requirement of practical alternative in attainmentareas. The commission thanks ECAT for its comments and welcomes suggestions on any future rule proposals concerning agricultural burning.



### 26EPA commented that a comparison ofTexas' 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 thatthe proposal does not show noninterference with any ofthe Clean AirAct 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 howthe amendments to §111.203 and §111.209, and how §§111.101, 111.103, 111.105, and 111.107 would not interfere with any ofthe 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 itsubjectto the Local GovernmentCode, §352.082, which classified certain types ofoutdoor burning, as designated in this rulemaking, as a Class C misdemeanor. 30 TAC §111.209 was amended accordinglyto prohibitthe burning of household refuse in a limited demographicarea. The amendmentto §111.209 would be more restrictive than current outdoor burning rules, which do notcriminalize or prohibit outdoor burning in the specified area. The commission does notexpect any increases in outdoor burning in the specified area and, therefore, this rulemaking would notconstitute a relaxation ofthe Texas SIP. The commission made no changes to §111.209 in response tothis comment. 27

### Through the enactment ofS8 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 ofthecontrols in §111.219, and do not make a distinction between areas ofattainment and nonattainment. The adopted rules, however, make a distinction between allowable burning in areas ofattainmentand nonattainment. Section 111.209(4)(A) still incorporates all ofthe controls in §111.219. Section 111.209(4)(8) is subjecttothe controls in §111.219(3), (4), (6), and (7), issubject to any local ordinances that prohibit burning insidethe corporate limits ofa city ortown and that are consistentwith 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 meetthe NAAQS without requiring prior commission approval or consideration of practical alternatives. During proposal ofthe regulation, 30 TAC §111.209 was amended to authorize on-site outdoor burning in attainmentareaswithoutconsideration of practical alternatives and incorporated §111.219(3), (4), (6), and (7). Forareas in attainment, §111.209(4)(8) is subjectto the controls in §111.219(3), (4), (6), and (7), and issubjectto any local ordinancesthat prohibit burning insidethe corporate limits ofa city ortown and thatare consistentwith TCAA, Chapter 382, Subchapter E, Authority of Local Governments. For areas of nonattainment, §111.209(4)(A) is subjecttothe air control measures in §111.219. Section 111.219will maintain the necessary controls on outdoor burning in nonattainmentareas, such as delineating appropriate burn times, weather conditions, distances from sensitive receptors, prohibitions against burning certain materials, and prohibitions on burns within corporate limits ofa city. Areas in attainmentwill also be subjectto the controls 

### 28

### in §111.219, with the distinction that controls on allowable outdoor burning within the corporate limits ofa citywill be delegated to local authorities to enact ordinances consistentwith the TCAA. The removal of practical alternatives in areas ofattainment

was specified by the**legislat~:~re** 

### in the amendments made toTHSC, §382.018(b). The removal of practical alternatives in areas ofattainmentwill not constitute a relaxation of the SIP as the consideration was primarilyfora demonstration ofeconomicfeasibility ratherthan 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 nonattainmentso as notto constitute a relaxation ofthe 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 allowforoutdoor burning of plant growth generated from specific residential properties on designated sites outside ofa municipality and in countieswith a population less than 50,000. Section 111.209 currently does notallowfor burning on designated sites. The amendmentto §111.209 fordesignated sites requires mandatory noticetothe commission priorto the burn, and requires supervision by a fire departmentemployee. Only three counties in nonattainmentareas meetthe requirements for designated site burns (Hardin, Rockwall, and Chambers). The commission anticipates changes to the adopted rule would consolidate currently authorized outdoor burning ratherthan increasing it. Burning ofdomesticwaste, including plant growth, is already authorized in these counties for private residences when collection ofdomesticwaste is not provided orauthorized bythe local government havingjurisdiction. To the commission's bestavailable knowledge, no residential properties outside ofthe municipalities inthese counties are provided with domestic 

### 29

### waste collection bythe local government havingjurisdiction. The adopted rules are not expected to result in an increase in outdoor burning as the counties thatwere previously conducting outdoor burns will be permitted to continue doing so, butwith the requirementthatthe burns be conducted on a designated site and conducted within the requirements in §111.209. The additional controls, such as the required presence ofa fire department employee supervising each burn, impose limits on the frequency and numberofoutdoor burns and, therefore, would not relax the SIP. The commission made

no changes to the rules in response tothis comment.

Through the enactment ofHB 39 and SB 1710, the 79th Legislature in 2005, amended THSC, §382.018(a)- (e), and §111.203 and §111.209 were amended accordinglyto conform to the statutes. Sections 111.101, 111.103, 111.105, 111.107, 111.205, and 111.207were not proposed to be amended as HB 39 and SB 1710 did notaffectthese sections. Additionally, §§111.101, 111.103, 111.105, and 111.107were repealed on August 21, 1996, and replaced with §§111.201

- 111.221 (64 FR 57983). The sections under EPA consideration forapproval have now been amended (§111.203 and §111.209); therefore, there has only been a SIP revision forthese sections and consideration or revisions ofothersections in Chapter 111 would be outside the scope ofSB 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 astakeholder meeting on September 26, 2005, in Austin and gained inputfrom county and local lawenforcement agencies, city governments, land developers, and utility companies. The amendments and public hearing noticewere



### 30

### published in theTexas Register on February 10, 2006, and the public hearing was held on March 7, 2006, to obtain comment.

31

# STAFF RECOMMENDATIONSCHAPTER 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 underTHSC, §382.002, relating to Policy and Purpose, Texas Clean Air Act (TCAA), §382.011, which authorizes the commission to administerthe requirements ofthe TCAA; §382.012, which provides the commission the authority to develop a comprehensive plan forthe state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe 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 ofthe Texas Commission on Environmental Quality (commission), the terms used by the commission have the meanings commonly ascribed to them in the field ofair 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, orsmoke.

(2) Landclearing operation--The uprooting, cutting, or clearing ofvegetation in connection with conversion for the construction of buildings, rights-of-way, residential, commercial, or industrial development, orthe clearing ofvegetation 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 otherwastes 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 ofa platted subdivision.

(4) Practical alternative--An economically, technologically, ecologically, and logistically viable option.

(5) Prescribed burn--The controlled application offire to naturally occurring vegetative fuels under specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary measures.

(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 ofsensitive live vegetation. The term "man-made structure" does not include such things as range fences, 

### 2roads, bridges, hunting blinds, or facilities used solely forthe 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 ofwhich 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 otherthan fallow, land minimally influenced by human activity, and land maintained for biodiversity, wildlife forage production, protective plant cover, orwildlife habitat.

§111.209. Exception for Disposal Fires.

Except as provided in Local Government Code, §352.082, outdoor burning is authorized forthe 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 ofdomestic waste is not provided or authorized by the local governmental entity having jurisdiction, and when the waste is generated only from that property. Provision ofwaste 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, 

### 3cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples ofwastes not considered domesticwaste 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 ofcontrolling the spread of disease;

(3) veterinarians in accordance with Texas Occupations Code, §801.361, Disposal ofAnimal Remains;

(4) on-site burning oftrees, brush, grass, leaves, branch trimmings, or other plant growth, by the owner ofthe 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 ofa designated nonattainment area orthat contains any part ofa municipality that extends into a designated nonattainment area; ifthe 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 ofthis 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 ofa municipality that extends into a designated nonattainment area; this provision includes, but is not limited to, the burning of plant growth generated as a 

### 4result 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 ofa city ortown and that are consistent with the Texas Clean AirAct, Chapter 382, Subchapter E, Authority of Local Governments, and the requirements of§111.219(3), (4), (6), and (7) ofthis title. Commission notification or approval is not required.

(5) at a site designated for consolidated burning ofwaste 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 ofthe designated site orthe owner's authorized agent shall:

(A) post at all entrances to the site a placard measuring a minimum of48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE

- No burning ofany material is allowed except for trees, brush, grass, leaves, branch trimmings, or other plant growth generated from specific residential properties forwhich 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 ofthe designated residential properties. The record must contain the description ofa platted subdivision and/or a list ofeach property



### 5address. The description must be made available to commission or local air pollution control agency staffwithin 48 hours, if requested;

(D) ensure that all waste burned at the designated site consists oftrees, 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 departmentwho is part ofthe fire protection personnel, as defined by Texas Government Code, §419.021, and is acting in the scope ofthe person's employment. The fire department employee shall notify the appropriate commission regional office with a telephone or electronicfacsimile 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 ofthe intent to burn should be made to the appropriate commission regional office priorto 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 ofthis title (relating to Executive DirectorApproval of Otherwise Prohibited Outdoor Burning), and shall be subject to the requirements of§111.219 ofthis 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 ofamended§ 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 ofhousehold refuse in a limited demographic area on lots ofless than five acres, qualifying as a Class C misdemeanor. The Commission does not anticipate increased burns or a relaxation ofthe 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 ofattainment and nonattainment, incorporate all ofthe controls in§ 111.219, and no longer require consideration ofpractical alternatives in areas ofattainment. 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 ofa city. The removal of practical alternatives in areas ofattainment was specified by the legislature in the amendments made to Tex. Health & Safety Code Ann. §382.0f8(b). The removal ofpractical alternatives in areas ofattaimnent will not constitute a relaxation ofthe SIP as the consideration was primarily for a demonstration ofeconomic 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 ofa municipality and in counties with a population less than 50,000. The currentversion 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 ofpractical 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 ofa 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 ofoutdoor burns and would not constitute a relaxation ofthe 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 ofthe 

### 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 ofFederal 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 ofthe 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 ofthe 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 ofthe 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 ofinterested 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 ifset 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 ofthis Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator ofEPA 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 ofthe Commission required by the Administrative Procedure Act, Tex. Gov't Code, §2001.033 (Vernon 2000 & 

### Vernon Supp. 2005). Ifany portion ofthis Order is for any reason held to be invalid by a court ofcompetentjurisdiction, the invalidity ofany portion shall not affect the validity ofthe remaining portions.

Date issued: 

# JUL 05

# 2005

### I (II) iftheexecuti edirectordeterminesthatthere is substantial public interest in the faci ty. (3) Forpurposes ofthis su ection, "substantial public interest" is demonstrated ifa request for public meeting isfiled by: (A) a local government I entity withjurisdiction over the location in which the facility is Joe ted or proposed to be located by formal resolution ofthe entity's gov rning body; (B) acouncil ofgovern ents withjurisdiction overthe location in which the facility is locate or proposed to be located by formal request ofeither the council's s lid waste advisory committee, executive committee, or governing bo d; (C) ahomeowners' orp rnally organized or chartered and havi in the general area in which the facili located; or pertyowners' associationforat least ten members located is located orproposed to be (D) a group of ten or ore local residents, property owners, orbusinesses located in the ge era! area in which the facility is located orproposed to be located. ( 4) Apublicmeetingisnot contestedcaseproceedingunderthe AdministrativeProcedureAct. publicmeetingheld as partof a local review committee process unde subsection (a) ofthis section meets the requirements ofthis subsecti n ifpublic notice is provided in accordance with this subsection. (5) Theapplicantshallpub! hnotice ofthepublicmeeting once each week during the three wee s preceding a public meeting under §39.405(f)(2) ofthis title. The p blished notice must be at least 15 square inches (96.8 square centime rs) with a shortest dimension ofat least three inches (7.6 centimeter

. (6) The chiefclerk shallrna Inotice to thepersons listedin §39.413 ofthis title. (f) Notice ofcontested case he ring. (I) Applicability. This subs ction applies ifan application isreferredtothe StateOfficeofAdrnini ativeHearingsfor acontested case hearing under Chapter 80 ofthis t le (relating to Contested Case Hearings). (2) Newspaper notice. (A) Ifthe application c ncerns a facility other than a hazardous wastefacility, the applicants allpublishnotice atleastonce in anewspaperofgeneral circulationin he countyin whichthe facility is located and in each county and areat at is adjacent orcontiguous 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)witha shortestdimensionofatle threeinches (7.6 centimeters) and the notice must appear in the secti n ofthe newspaper containing state or local news items. (C) Ifthe applicationco cerns ahazardous waste facility, the hearing must include one sessi n held in the county in which the facility is located. The applicant sh ll publishnotice ofthehearing once each week during the three wee preceding the hearing under §39.405(f)(2) ofthis 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 sectionofthe newspapercontainingsta eorlocalnews items. The text ofthe notice must include the staternen that at least one session ofthe hearing will be held inthe county inw ich the facility is located. (3) Mailed notice.



### 31 TexReg 5654 July 14, 2006 Texas Register (A) For all appli tions concerning underground injectionwells, the chiefclerk shall ail noticeto persons listed in §39.413 ofthis title. (B) For notice o hearings concerning Class I underground injection wells, the chie clerk shall also mail noticeto: (i) personsw ownthepropertyon whichtheexisting orproposed injection well f: ility is orwill belocated, ifdifferent from the applicant; (ii) landowne adjacent to the property on which the existing or proposed injectio well facility is orwill 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 oflandadjacenttothepro rty on whichtheexistingorproposed injection well facility is orwill e located. (C) Ifthe 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) ofthis paragraph, located within 112 mile ofthe f: ility and to each owner ofreal property locatedwithin 112mileoft facility listedin therealpropertyappraisal records ofthe 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 beadministratively complete. enoticemustbemailedno morethan 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 chiefclerk an affidavit cert ing compliance with its obligations underthis subsection. Filingan ffidavit certifyingfacts thatconstitute compliance with notice require ents creates a rebuttable presumption ofcompliance 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) ofthis title. (5) Deadline. Notic underparagraphs (2)(A), (3), and (4) ofthis 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 bein a form approved by e executive directorprior to publication. This agencyherebycertifies attheadoption has been reviewed by legal counsel and found t be a valid exerciseofthe agency's legal authority. Filed with the Office ofthe S cretary ofState 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 Forfurther information, please c II: (512) 239-5017 

# • • • CHAPTER 111. CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER

### SUBCHAPTER B. 

### OUTDOORBURNING 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 ofthe 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 ProtectionAgency (EPA) asa revision tothe 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 lotthat is located in a neighborhood oron a lotthat 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 ofwaste 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 ifthe waste is burned on the property oforigin and by the owner ofthe property orany other person authorized by the owner. The commission is prohibited from requiring prior commission approval ofthe burning, orfrom authorizing the burning onlywhen 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 1710also 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 designatedfor burning ofwaste 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 ofthe person's employment. The current rules do not authorize the burning of waste atdesignated sites. The adopted rules will establish minimal compliance determination criteria to ensure thatall 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 ofdomestic 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 providesthefollowing information to clarifywhy the amendments to §111.203 and §111.209 and the Texas SIP, will not negatively impact the status ofthe state's attainment areas. The requirementfor 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 AirAct 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 reviewand consideration by EPAfor inclusion in theTexas 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 ofRevisions 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 subjectto Local Government Code, §352.082, which classifies certain types ofoutdoor 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 ofthis 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.



### ADOPTEDRULES July 14, 2006 31 TexReg 56552) THSC, §382.018(d) was amended to prohibit the commission from controlling or prohibiting outdoor burning ofwaste consisting ofplant growth generated from specific residential properties on designated sites outside ofa municipalityand in countieswith 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 domesticwaste 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 smallerfires 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 byTexas GovernmentCode, §419.021, that is acting in the scope ofthat 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 ofwaste 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 oforigin in most areas ofattainment, regardless ofthe type ofactivity that produced the waste. Current rules authorizethe burningofwaste plantgrowth 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 activitiesthatgenerate plantwaste 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 forwhich 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 onlywhen no practical alternativeto burning exists does not constitute the removal ofa 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 priorto 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 logisticallyviable option." TCEQ guidance document RG-049, Appendix D, states that when evaluat

### 31 TexReg 5656 July 14, 2006 Texas Register ing these four criteria the standard ofjudgment 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 demonstratethis, there is no record in the commission's compliance database ofany Notices ofViolation or Enforcement forviolation ofthe 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 oftrench 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 subjectto any local ordinances that prohibit burning insidethe corporate limits ofacity ortown, consistentwith Texas Clean Air Act (TCAA), Chapter 382, Subchapter E, Authority of Local Governments. The revised rules, for areas in nonattainment, maintain all ofthe air control measures in §111.219. The commission does not anticipate increased burning or a relaxation ofthe Texas SIP for those municipalities in areas ofattainment. 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, Chapter382, Subchapter E, Authority ofLocal Governments. Regardless ofwhether in areas of attainment or nonattainment, persons conducting outdoor burns remain responsible for any consequences, damages, or injuries resulting from the burning in accordancewith §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 assurecompliancewiththeTexas SIP, and thatsufficientaircontrol measures exist in this rulemaking so as not to constitute a relaxation ofthe Texas SIP. SECTION BY SECTION DISCUSSION Administrative and grammatical changes are adopted throughout the sections to bring the existing rule language into agreementwith Texas Register requirements, agency guidelines, and guidance provided in the Texas Legislative CouncilDraftingManual, 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. Theadopted newdefinitionsare repeatedfrom THSC, §343.002. The adopted amendmentto §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 GovernmentCode, §352.082, in proposed subsection (b). All of adopted §111.209 is instead made subjectdirectlyto 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 ofthe property, orany person authorized bythe owner, in countiesthat are not designated as nonattainmentand thatdo notcontain 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 requirementto 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 ofa city ortown, 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 ofthe 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 ofthe 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 RequirementsforAllowable 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 Responsibilityfor Consequences ofOutdoor Burning. Theadopted amendmentto §111.209 also providesforthe 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 ofthe site orthe owner's authorized agentto postthe designated site, maintain a description or list ofspecific 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 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 meetthe definition ofa 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, orthe public health and safety ofthe 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 of20,000 acres or more. In these residential areas, domestic waste cannot be burned in a neighborhood or on a lotthat is less than five acres; 2) allow forthe burning of waste consisting ofplant 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 ofthe property or any other person authorized by the owner; and 3) allow for the outdoor burning ofwaste 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 fourapplicability requirements listed in Texas GovernmentCode, §2001.0225(a), where the adopted rules: 1) are specifically re

### ADOPTEDRULES July 14,2006 31 TexReg 5657quired by state law, namely THSC, §382.018; 2) do not exceed the express requirements ofTHSC, §382.018; 3) do not exceed a requirement ofa federal delegation agreement orcontract between the state and an agency or representative ofthe federal government to implement a state and federal program; and 4) are not an adoption ofa rule solely underthe 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 ofwhetherthe adopted rules constitute ataking under Texas Government Code, Chapter 2007. The primary purpose ofthe 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 neithera statutory nora constitutional taking ofprivate 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 limitthe owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence ofthe regulations. The adopted rules are limited to revisions to the prohibition on and exception for disposal fires. The adopted revisions will: 1) prohibitthe burning of domesticwaste 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 of20,000 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 ofwaste consisting ofplant growth in areasthat meetthe NMOS and do not contain any part of a city that does not meet the NMOSifthewaste is burned on the propertyoforigin and by the owner of the property orany 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 etseq., 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 allow

### 31 TexReg 5658 July 14, 2006 Texas Register ing for compatible economic development and multiple human uses ofthe coastal zone; to ensure and enhance planned public access to and enjoyment ofthe coastal zone in a manner that is compatible with private property rights and other uses ofthe coastal zone; and to balance these competing interests. The specificCMP policy applicabletothe 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, etseq., 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 ofthe rules will notviolate or exceed any standards identified in the applicable CMP goals and policies. The adopted rules are consistentwith 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 ofthe 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 theTexas 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 thatdue to herallergies 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 ofplantgrowth in mostattainmentareas, ifburned on the property of origin. The commission believes the intent ofthe legislation, in part, isto direct and delegate appropriate authority to local governments in effortsto 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 ofa city ortown and that are consistentthe TCM, Chapter 382, Subchapter E, Authority of Local Governments. This will allow each affected municipality to determine and address theconcerns 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 practiceofburning leaves in heryard at her residence in the city limits will be prohibited or limited underthe 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 atthe 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 andthatthe requirementto begin burning no earlierthan 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 ofcontrol. The commission agrees that in many instances the meteorological conditions early in the morning and late in the evening may reduce the risk ofan out ofcontrol burn. The requirements of §111.219 are intended to improve the dispersion conditions necessary to reduce the potential impacts ofsmoke and related emissions from burnssubjectto the requirements ofthis section. No change to the rule has been made. BRAcommentedthatoverall itsupportedthe rule changes; however, it expressed concern thatthe 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 afire departmentwho is part ofthe fire protection personnel, as defined by Local Government Code, §419.021, and is acting in the scope ofthe 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 ofvolunteer 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 volunteerfire departments for fire protection, from taking advantage of the revised outdoor burning rules. The commission recognizes the considerable skill and training thatvolunteerfirefighters have in fighting brush fires, grassfires, 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 ofafire department who is part ofthe 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 ofwood 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 ownerto 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 municipalitythat 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 activitiesand consideration ofpractical 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 bythe propertyowneror anyother person authorized by the owner. The commission authorizes burning of plant growth, but does not authorize the infringement ofthe property rights of landowners. Whetheror not a "contractual easementdocument" is acceptable documentation that an individual or company is authorized bythe landownerto 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.



### ADOPTEDRULES July 14, 2006 31 TexReg 5659HSC 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 thatthe exceptions for disposal fires contained in §111.209 are consistentwith 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 underthe 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 thatthe phrase "plantgrowth" is not defined in §111.203 and theTCEQshould "strictly definethis 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, orother 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 ofa designated site or the owner's agent to do. The commission appreciates the comment. No change to the rule has been made in response tothe comment. TBAcommented that it supported the proposed rules. It pointed out four issues which it stated probably do not affect the substance ofthe 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 consistentwith 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 ofa municipalitythat 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 itselfdoes notcontemplatethe burning ofthings 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. TBAcommented 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 ofa 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 ofeach address, and in any eventthe 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 ownerofthe designated site may not have the name of the residential property owner, but if he hasthe description ofthe subdivision andtheaddress ofeach property, then he knows the locations designated for the site. Thecommission agreesthatthe requirementto includethe name of each property owner may be an unnecessary restriction and may be thecauseofconfusion. The requirementhas 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 directlyto Local Government Code, §352.052, rather than repeating the restriction in proposed §111.209(b). This will provide notice ofthis new criminal statute without creating a larger penalty than HB 39 intended. TIDRC commented that SB 1710specifically refers to areas that meet the NAAQS, but proposed §111.209(a)(4)(B), uses languagethatwould havethe rule change apply everywhere except nonattainment areas, which would include the undetermined areas, which constitute most ofTexas. 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 1710does not encompassthe 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 ofthem 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 ofbrush 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 mostattainment areas, ifburned on the property oforigin. Thecommission believesthe intentofthe legislation, in part, is to direct and delegate appropriate authority to our local governments in efforts that regulatory policies addressthe 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 ofaffected 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 bythe owner?" The adopted rule does not authorize outdoor burning in designated nonattainmentareas on the propertyoforigin bythe owner orthe property or any other person authorized bythe 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 oftheir work in the area ofagriculture 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 ofthe brush in their business. Burning in most oftheir applications is the only practical method. Therefore, it concerns ECAT when there are discussions at the state environmental agencythat could possibly limit, or put unrealisticcontrols 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 activitythat is authorized underthecurrent rule. The proposed amendment to the rule would remove the requirement ofpractical alternative in attainmentareas. 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 difficultfor 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 sulfurdioxide. 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 ofthe 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 ofoutdoor burning, as designated in this rulemaking, as a Class C misdemeanor. 30TAC §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 restrictivethan 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 ofSB 1710, 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 ofthe 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 ofattainment 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 consistentwith TCAA, Chapter 382, Subchapter E,



### ADOPTEDRULES July 14,2006 31 TexReg 5661Authority 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 ofacity 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 ofthe 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 ofa municipality and in counties with a population less than 50,000. Section 111.209 currently does not allow for burning on designated sites. The amendmentto §111.209for 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 ofdomestic 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, butwith 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 ofafire departmentemployeesupervising each burn, impose limitson thefrequency and numberofoutdoor



### 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, §§111.101, 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 enforcementagencies, citygovernments, land developers, and utilitycompanies. The amendments and public hearing noticewere published in the Texas Registeron 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 ofthe 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 ofthe 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. ExceptionforDisposalFires. 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 ofdomestic waste is not provided or authorized by the local governmental entity havingjurisdiction, and when the waste is generated only from thatproperty. Provision ofwaste collectionrefersto collectionatthe premiseswherethewasteis generated. The term "domestic waste" is defined in §I01.1 ofthis title (relatingto Definitions). Wastesnormallyresultingfrom thefunction oflifewithin aresidence that canbe 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 ofcontrolling the spread ofdisease; (3) veterinarians in accordance with Texas Occupations Code, §801.361, Disposal ofAnimal Remains;(4) on-site burning of trees, brush, grass, leaves, branch trimmings, orotherplant growth, by the ownerofthe property orany otherperson authorized by the owner, and when the material is generated only from that property: (A) in a county that is part ofa designated nonattainmentareaorthatcontains any partofamunicipalitythatextends into a designated nonattainment area; ifthe plant growth was generated as a result ofright-of-waymaintenance, landclearingoperations, andmaintenance along water canals when no practical alternative to burning exists. Such burning is subject to the requirements of§111.219 ofthis 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 ofa designated nonattainment area and that does not contain any part ofamunicipality that extends into a designated nonattainment area; this provision includes, but isnot limited to, the burning ofplant growth generated as a resultofright-of-waymaintenance, landclearingoperations, andmaintenance along water canals. Such burning is subject to local ordinances that prohibit burning inside the corporate limits ofa city or town and that are consistent with the Texas Clean Air Act, Chapter 382, Subchapter E, Authority ofLocal Governments, and the requirements of §111.219(3), (4), (6), and (7) ofthis title. Commission notification or approval is not required. (5) at a site designated for consolidated burning ofwaste generated from specific residential properties. A designated site must be located outside ofa municipality and within a county with a population ofless than 50,000. The owner ofthe designated site or the owner's authorized agent shall: (A) post at all entrances to the site aplacard measuring a minimum of48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE -No burningofanymaterial is allowedexceptfortrees,brush,grass, leaves, branch trimmings, or otherplant 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 clearlyvisible and legible at all times; (B) designate specific residential properties for consolidated burning at the designated site; (C) maintainarecordofthedesignatedresidentialproperties. The record must contain the description ofa platted subdivision and/or a list ofeach property address. The description must be madeavailabletocommissionorlocal airpollutioncontrolagencystaff within 48 hours, ifrequested; (D) ensure that all waste burned at the designated site consists oftrees, brush, grass, leaves, branchtrimmings, orotherplant growth; (E) ensurethat 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 ofa fire department who is part of the fire protection personnel, as defined by Texas Government Code, §419.021, and is acting in the scope ofthe person's employment. The fire department employee shall notifY the appropriate commission regional office with atelephone orelectronic facsimile notice 24 hours in advance ofany scheduled supervised bum. The commission shallprovide the employee with information on practical alternatives to burning. Commission approval is not required; (6) crop residueburning for agricultural management purposes when no practical alternative exists. Suchburning shall be subject to the requirements of §111.219 ofthis title and structures containing sensitivereceptors mustnotbenegatively affectedby the bum. When possible, notification ofthe intent to bum should be made to the appropriate commissionregional officepriorto the proposedbum. Commissionnotificationorapprovalisnotrequired. This section isnot applicable to cropresidueburning coveredbyan administrativeorder; and (7) brush,trees, andotherplantgrowthcausingadetrimentalpublichealth and safetycondition burnedbyacounty ormunicipal governmentat asiteitownsuponreceiving site andbumapprovalfrom the executive director. Such abumcan onlybe authorized when there is no practical alternative, and itmay 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 ofthis title (relatingto ExecutiveDirectorApproval ofOtherwiseProhibitedOutdoorBurning), and shall be subject to therequirements of§111.219of this title. Thisagency herebycertifiesthatthe adoption has been reviewed by legal counsel and foundto be a valid exercise ofthe agency's legal authority. Filed with the Office ofthe 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 ofvacancy applications su itted to the GLO and theterms 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 nditionsforthe 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 ofthe Texas Administrative Code as all application pending eforethe GLO and actions arising out ofvacancy application p nding in the courts of the State



### ADOPTEDRULES July 

### 14, 2006 31 TexReg 5663