Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

Docket No. 2004-0006-RUL 

November 15, 2004 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross A venue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

On October 27, 2004, the Texas Commission on Environmental Quality (Commission) adopted a revision to the 

state implementation plan (SIP). 

The Commission adopted an amendment to § 111.209, Exception for Disposal Fires, in 30 TAC Chapter 111, 

Control of Air Pollution from Visible Emissions and Particulate Matter, Subchapter B, Outdoor Burning; and 

corresponding revision to the SIP. The amendment changes 30 TAC §111.209(3) to conform with Texas 

Occupations Code, §801.361, Disposal of Animal Remains, which allows veterinarians to burn animal remains. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the public 

hearing, and the accompanying order. I look forward to your expeditious approval of this SIP revision. 

Sine rely, 

K thleen Hartnett White 

(....,) 

KHW/pd 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

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Ms. Wendy Wyman, Environmental and Natural Resources Policy Director, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

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

Page 2 

bee: Mr. Randolph Wood, Deputy Director, Office of Environmental Policy, Analysis, and Assessment 

Mr. Jim Muse, Director, Policy and Regulations Division 

Ms. Candy Garrett, Environmental Planning and Implementation Division 

Mr. Erik Gribbin, Environmental Planning and Implementation Division 

Ms. Kerri Rowland, Senior Attorney, Environmental Law Division 

Ms. Emily Barrett, Project Manager, Policy and Regulations Division 

Ms. Patricia Duron, Texas Register Coordinator, Policy and Regulations Division 
TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

This is to certify that the attached are true and correct copies of documents for revisions to the 

Texas State Implementation Plan, adopted on October 27, 2004, in accordance with 40 Code of Federal 

Regulations § 51.104. I am the records administrator for the Policy and Regulations Division of the Texas 

Commission on Environmental Quality. 

ecords Administrator, Policy and Regulations Division 

Texas Commission on Environmental Quality 
Texas Commission on 

Environmental Quality 

Public Hearing 

June 24, 2004 

Austin, Texas 

30 T AC Chapter 111 

and the State Implementation Plan 

Rule Project Number 2004-003-330-WS 
INTRODUCTION 

The Texas Commission on Environmental Quality (TCEQ) held a public hearing in Austin on June 24, 

2004 at 10:00 a.m., in Building C, Room 131 Eat the commission's Central Office located at Park 35 

Circle, to receive testimony regarding revisions to 30 TAC Chapter 111, Control of Air Pollution from 

Visible Emissions and Particulate Matter; and corresponding revisions to the state implementation plan. 

The amendmentto § 111.209 and corresponding revisions to the SIP would conform agency rules with 

Senate Bill 216, 78th Legislature, 2003, which allows veterinarians to burn or bury animals and 

associated medical waste provided certain conditions are met. 

The comment period closed on june 28, 2004. All testimony and comments have been reviewed and 

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

divided into the following four sections: 

• Public Notification and Proposal 

• Written and Oral Testimony 

• Evaluation of Testimony 

• Staff Recommendations 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 

Circle, Austin, Texas 78753. For further information, contact Emily Barrett at (512) 239-3546. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

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

1. Publication of the notice of public hearing in the following newspaper on the date listed: 

Corpus Christi-Caller Times: May 17, 2004 

Fort Worth Star-Telegram: May 18, 2004 

Houston Chronicle: May 18, 2004 

2. Publication in the Texas Register of the proposed rulemaking (29 TexReg 5276) and public 

hearings notice (29 TexReg 5437) on May 28, 2004. 

3. Correspondence forwarding the notice of public hearings to the following officials and 

agencies: 

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Arkansas Department of Pollution Control and Ecology 

City of Austin Mayor 

Bastrop County Judge 

City of Bastrop Mayor 

Bexar County Judge 

Caldwell County Judge 

Capital Area Planning Council 

Chambers County Judge 
Public Notification 

Page 2 

City of Dallas, Department of Aviation 

City of Dayton 

City of Houston 

Carnal County Judge 

Dallas Environmental and Health Services 

East Texas Council of Governments 

City of Elgin Mayor 

El Paso City-County Health Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

City of Floresville Mayor 

Fort Worth Environmental Management Department 

Galveston County Health District 

City of Gilmer Mayor 

Gregg County Judge 

Guadalupe County Judge 

Harris County Judge 

Harris County Pollution Control Department 

Harrison County judge 

Hays County Judge 

City of Henderson Mayor 

Houston Department of Health and Human Services 
Public Notification 

Page 3 

Houston-Galveston Area Council 

City of Kilgore Mayor 

Liberty County judge 

City of Lockhart Mayor 

City of Longview Mayor 

Louisiana Department of Environmental Quality 

City of Luling Mayor 

City of Marshall Mayor 

City Council of New Braunfels 

City of New Braunfels Mayor 

New Mexico Air Quality Bureau 

North Central Texas Council of Governments 

Oklahoma Department of Environmental Quality 

City of Round Rock Mayor 

Rusk County Judge 

City of San Antonio Mayor 

City of San Marcos Mayor 

City Council of Seguin 

City of Seguin Mayor 

Smith County judge 

South East Texas Regional Planning Commission 

Texas Department ofT ransportation 

Texas Transportation Institute 
Public Notification 

Page4 

Travis County judge 

City of Tyler Mayor 

United States Environmental Protection Agency 

Upshur County judge 

Victoria Metropolitan Planning Organization 

Waller County Judge 

Williamson County Commissioner 

Williamson County judge 

Wilson County judge 
Category: Notices 

EXAMPLE OF NEWSPAPER CLASSIFIED AD 

CORPUS CHRISTI-CALLER TIMES 

May 17, 2004 

Description: Legal Notices - NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY ON PROPOSED REVISIONS TO 30 TAC CHAPTERS 111 AND 330 The 

Texas Commission on Environmental Quality (commission) will conduct a public 

hearing to receive comments concerning revisions to 30 TAC 111.209, Exception for 

Disposal Fires; 330.4, Permit Required; and corresponding revisions to the Texas 

state implementation plan (SIP) under the requirements of Texas Health and Safety 

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

Federal Regulations, 51.102 of the United States Environmental Protection Agency 

regulations concerning SIPs. The amendment to 111.209 is proposed as a revision to 

the SIP. The proposed rulemaking would conform agency rules with Senate Bill 216, 

78th Legislature, 2003, which allows veterinarians to burn or bury animals and 

associated medical waste provided certain conditions are met. A public hearing on 

this proposal will be held in Austin on June 24, 2004, at 10:0.0 a.m. in Building C, 

Room 131E, at the commission's central office, located at 12100 Park 35 Circle. The 

hearing will be structured for the receipt of oral or written comments by 

interested persons. Individuals may present oral statements when called upon in 

order of registration. There will be no open discussion during the hearing; 

however, an agency staff member will be available to discuss the proposal 30 

minutes prior to the hearing and will answer questions before and after the 

hearing. Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearing should contact the 

Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. 

Requests should be made as far in advance as possible Comments may be submitted to 

Patricia Durn, Texas Commission on Environmental Quality, Office of Environmental 

Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, 

or by fax to (512) 239-4808. All comments should reference Rule Project Number 

2004-003-330-WS. Comments must be received by 5:00p.m., June 28, 2004. For further 

information, please contact Emily Barrett, Policy and Regulations Division, at 

(512) 239-3546. Issued in Austin, Texas, on May 12, 2004. 

Location: TX 

Date: 5/17/2004 

Source: C:.c::>l:"Pl!i:l.C:h:Xi§t:i. C:9:_U~:r:::::J:imes 

http://caller.abracat.com/c2/mylist/print.xml?marked=47007343IDELIMITIANNIDELIMI... 5/18/2004 
j 

by failing to observe that the owners or operators of the facilities had 

valid, current delivery certificates issued by the TCEQ, covering the 

UST systems, prior to depositing a regulated substance into the UST 

systems; PENALTY: $38,400; STAFF ATTORNEY: Alfred Okpohworho, Litigation Division, MC R-12, (713) 422-8918; REGIONAL 

OFFICE: Houston Regional Office, 5425 Polk Avenue, Suite H, 

Houston, Texas 77023-1486, (713) 767- 3500; Austin Regional Office, 

1921 Cedar Bend Drive, Suite 150, Austin, Texas 78758-5336, (512) 

339- 2929; and Dallas-Fort Worth Regional Office, 2301 Gravel Drive, 

Fort Worth, Texas 76118-6951, (817) 588-5800. 

TRD-200403363 

Paul C. Sarahan 

Director, Litigation Division 

Texas Commission on Environmental Quality 

Filed: May 18, 2004 

• • • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 111, Control of Air Pollution from Visible Emissions 

and Particulate Matter, and Chapter 330, Municipal Solid 

Waste 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive comments concerning revisions to 

30 TAC § 111.209, Exception for Disposal Fires; §330.4, Permit Required; and corresponding revisions to the Texas state implementation 

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

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

40 Code of Federal Regulations, §51.102 of the United States Environmental Protection Agency regulations concerning SIPs. The amendment to § 111.209 is proposed as a revision to the SIP. 

The proposed rulemaking would conform agency rules with Senate Bill 

216, 78th Legislature, 2003, which allows veterinarians to bum or bury 

animals and associated medical waste provided certain conditions are 

met. 

A public hearing on this proposal will be held in Austin on June 24, 

2004 at 10:00 a.m. in Building C, Room 131E, at the commission's 

central office, located at 12100 Park 35 Circle. The hearing will be 

structured for the receipt of oral or written comments by interested 

persons. Individuals may present oral statements when called upon 

in order of registration. There will be no open discussion during the 

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

the proposal 30 minutes prior to the hearing and will answer questions 

before and after the hearing. 

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and Assessment at 

(512) 239-4900. Requests should be made as far in advance as possible. 

Comments may be submitted to Patricia Duron, Texas Commission on 

Environmental Quality, Office of Environmental Policy, Analysis, and 

Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or 

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

Number 2004-003-330-WS. Comments must be received by 5:00p.m., 

June 28, 2004. For further information, please contact Emily Barrett, 

Policy and Regulations Division, at (512) 239-3546. 

TRD-200403270 

Stephanie Bergeron 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: May 14, 2004 

• • • 

Notice of Water Quality Applications 

The following notices were issued during the period of May 3, 2004 

through May 12, 2004. 

The following require the applicants to publish notice in the newspaper. 

The public comment period, requests for public meetings, or requests 

for a contested case hearing may be submitted to the Office of the Chief 

Clerk, Mail Code 105, P 0 Box 13087, Austin Texas 78711- 3087, 

WITHIN 30 DAYS OF THE DATE OF NEWSPAPER PUBLICATION 

OF THIS NOTICE. 

AQUA WATER SUPPLY CORPORATION has applied for a renewal 

ofTPDES Permit No. WQ0014226001, which authorizes the discharge 

of filter backwash and settling pit decant wastewater from an iron removal potable water plant at a daily average flow not to exceed 5, 

000 gallons per day. The facility is located approximately 2.1 miles 

west-northwest of the intersection of Farm-to-Market Road 1624 and 

County Road 322, and approximately 2.4 miles southeast of the intersection of Farm-to-Market Road 696 and County Road 309 in Lee 

County, Texas. 

BAYVIEW MUNICIPAL UTILITY DISTRICT has applied for arenewal of TPDES Permit No. 10770-001, which authorizes the discharge of treated domestic wastewater at a daily average flow not to 

exceed 300,000 gallons per day. The facility is located at 3206 State 

Highway 146, approximately 1200 feet west of State Highway 146 and 

5,500 feet north of the intersection of Farm- to-Market Road 646 and 

State Highway 146 in Galveston County, Texas. 

BELL COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO.1 has applied for a renewal ofTPDES Permit No. 10351-

001, which authorizes the discharge of treated water treatment plant 

filter backwash water at a daily average flow not to exceed 900,000 

gallons per day. The facility is located three miles west-northwest of 

Lake Belton Dam, north of Farm-to-Market Road 439 and approximately one mile north ofWestcliffPark in Bell County, Texas. 

BELL COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 2 has applied for a renewal of TPDES Permit No. 

11090-001, which authorizes the discharge of treated domestic 

wastewater at a daily average flow not to exceed 94,000 gallons per 

day. The facility is located immediately west of State Highway 95 

approximately 700 feet south of the intersection of State Highway 95 

and Farm-to-Market Road 436 in Bell County, Texas. 

TOWN OF DARROUZETT has applied for a major amendment to 

Permit No. 10446-001 to authorize a change in irrigation site from 

a 36-acre Park and Golf Course to a 21.36-acre non-public access pastureland. The current permit authorizes the disposal of treated domestic 

wastewater at a daily average flow not to exceed 40,000 gallons per day 

via surface irrigation of 36 acres of a Park and Golf Course. This permit will not authorize a discharge of pollutants into waters in the State. 

The facility is located approximately 2,000 feet south-southwest of the 

intersection Interstate Highway 15 and Farm-to-Market Road 2248, immediately east of the Town of Darrouzett in Lipscomb County, Texas. 

The disposal site is located approximately 500 feet south-southwest of 

the intersection of Interstate Highway 15 and Farm-to-Market Road 

2248, east of the Town of Darrouzett in Lipscomb County, Texas. 

DRIPPING SPRINGS APARTMENTS, L.P. has applied for a renewal 

·of Permit No. 14146- 00 I, which authorizes the disposal of treated domestic wastewater at a daily average flow not to exceed 0.014 gallons 

per day via subsurface drip irrigation on 3.57 acres of non-public access 

land. This permit will not authorize a discharge of pollutants into waters in the State. The facility and disposal site are located on the north 

side of U.S. Route 290, approximately 13,000 feet west along U.S. 

IN ADDITION May 28, 2004 29 TexReg 5437 
(4) is currently receivi g Medicaid for Youth Transitioning 

Out of Foster Care (Transitional dicaid) because he or she formerly 

received foster care through TDFP [IDPRS] and was under the financial responsibility ofTDFPS [ ]; or 

(5) (No change.) 

This agency hereby certifies tha the proposal has been reviewed 

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

Filed with the Office of the Sec tary of State on May 14, 2004. 

TRD-200403279 

Rodolfo Arredondo 

Chairman, Texas MHMR Board 

Texas Department of Mental Heal! 

Earliest possible date of adoption: 

For further information, please call: (512) 206-4516 

• • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER B. OUTDOOR BURNING 

30 TAC §111.209 

The Texas Commission on Environmental Quality (TCEQ or 

commission) proposes an amendment to §111.209. 

The amended section and corresponding revisions to the Texas 

state implementation plan will be submitted to the United States 

Environmental Protection Agency. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULE 

A bill from the 77th Legislature, 2001 amended Texas Occupations Code, §801.361, Disposal of Animal Remains. This bill 

allowed the burning of animal remains if the burning occurred 

in a county with a population of less than 10,000, on property 

owned by the veterinarian, and the veterinarian did not charge 

for disposal. This bill did not allow the burning of medical waste 

associated with animal remains. 

This rule making implements a subsequent amendment to Texas 

Occupations Code, §801.361. Senate Bill (SB) 216, 78th Legislature, 2003, amended Texas Occupations Code, §801.361, 

by allowing veterinarians to burn animal remains and associated medical waste. Associated medical waste includes: animal 

waste, blood, gloves, sleeves, newspapers, and plastic bags, 

but does not include sharps. SB 216 also changes the conditions under which a veterinarian may burn waste. The proposed 

amendment revises paragraph (3) by replacing the current language with a reference to amended Texas Occupations Code, 

§801.361. This would provide an exception to the prohibition of 

outdoor burning by veterinarians in accordance with Texas Occupations Code, §801.361. 

29 TexReg 5276 May 28, 2004 Texas Register 

In compliance with House Bill 3061, 78th Legislature, 2003, this 

rule has been developed in cooperation with and was approved 

by the Texas Animal Health Commission on December 2, 2003. 

The commission simultaneously proposes in this issue of the 

Texas Register the amendment to 30 TAC §330.4, Permit Required. 

SECTION DISCUSSION 

The proposed amendment to §111.209, Exception for Disposal 

Fires, is necessary to make the burning revisions provided by 

SB 216 consistent with TCEQ rules. The proposed amendment 

revises paragraph (3) by removing the current language and replacing it with a reference to amended Texas Occupations Code, 

§801.361. This amendment will modify the exception to the prohibition of outdoor burning relating to burning by veterinarians to 

make it consistent with Texas Occupations Code, §801.361. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jan Washburn, Program Specialist in the Grants and Strategic 

Planning Section, determined that for the first five-year period 

the proposed amendment is in effect, there will be no fiscal implications for the agency or any other unit of state government. 

The amendment implements the legislative directive of SB 216, 

78th Legislature, 2003, which took effect September 1, 2003. 

Current rule language allows veterinarians to burn or bury animal remains under three conditions: 1 ) the property is owned 

by the veterinarian; 2) the activity occurs only in counties with 

a population of less than 1 0,000; and 3) the veterinarian does 

not charge for the burning or burial. The proposed rule will allow 

veterinarians to burn or bury medical waste associated with the 

remains of an animal, as well. However, this activity must now 

occur on property that is outside the corporate boundaries of a 

municipality or within the corporate boundaries of a municipality 

as a result of an annexation that occurred on or after September 

1, 2003, and the veterinarian may charge for the disposal. Ms. 

Washburn also determined that there will be no fiscal impact to 

units of local government as a result of the proposed amendment. 

PUBLIC BENEFITS AND COSTS 

Ms. Washburn also determined that for the first five years the 

proposed amendment is in effect, the anticipated public benefit 

will be minimal as the amendment will only apply to property outside the corporate boundaries of a municipality. This rule is expected to benefit veterinarians because they may dispose of animals on their own property, which will save them approximately 

$25 to $250 per animal. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

Ms. Washburn also determined that there will be no significant 

fiscal implications to small or micro-businesses as a result of implementation of the proposed amendment for the first five years it 

is in effect. The proposed amendment will allow veterinarians to 

dispose of medical waste associated with the animal by burning 

or burying, which may be a benefit to those businesses. However, the veterinarian's property must now be outside the corporate boundaries of a municipality or within the corporate boundaries of a municipality as a result of an annexation that occurred 

on or after September 1, 2003. This may exclude some veterinarians in counties of less than 10,000 from burning or burying 

animals who were previously allowed to burn or bury before SB 

216, 78th Legislature, 2003 was enacted. 

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

because the proposed rule does not adversely affect a local 

economy in a material way for the first five years that the proposed rule is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the proposed rulemaking is not 

subject to §2001.0225 because it does not meet the definition of 

a "major environmental rule" as defined in that statute. The proposed amendment to §111.209 is only intended to make existing commission rules consistent with the new legislative changes 

made to the Texas Occupations Code, and the proposed rule will 

not adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and 

safety of the state or a sector of the state. Therefore, the proposed amendment does not qualify as a "major environmental 

rule." Furthermore, the analysis required by §2001.0225(c) does 

not apply because the proposed rule does not meet any of the 

four applicable requirements of a major environmental rule. The 

proposed rule does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement 

of a delegation agreement, or adopt a rule solely under the general powers of the agency. The rule is proposed specifically to 

make commission rules consistent with SB 216 and does not exceed the requirements of that bill. The commission invites public 

comment on the draft regulatory impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the proposed rule and performed an 

assessment of whether the proposed rule constitutes a takings 

under Texas Government Code, Chapter 2007. The specific purpose of the proposed rule is to make existing commission rules 

consistent with the new legislative changes made to the Texas 

Occupations Code by SB 216. The proposed rule will substantially advance this purpose by replacing existing language with a 

reference to the Texas Occupations Code amended by SB 216. 

Promulgation and enforcement of the proposed rule will be neither a statutory nor a constitutional taking of private real property. 

Specifically, the proposed rule will not affect private real property rights because it will not burden, restrict, or limit an owner's 

property rights which would otherwise exist in the absence of the 

regulation. The proposed rule will actually expand the allowable 

uses of a veterinarian's private real property except those veterinarians in a municipality that is within a county of 10,000 or 

fewer people. The proposed rule does not meet the definition of 

a takings under Texas Government Code, §2007.002(5). 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking and found 

that the proposal is subject to the 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 rule in accordance with Coastal Coordination Act Implementation Rules, 31 TAG §505.22 and found that the proposed 

rulemaking is consistent with the applicable CMP goals and policies. 

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

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

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

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

is compatible with private property rights and other uses of the 

coastal zone; and to balance these competing interests. 

CMP policy applicable to the proposed rule is 31 TAG §501.14(q), 

which states that TCEQ rules under Texas Health and Safety 

Code, Chapter 382, governing emissions of air pollutants, shall 

comply with regulations in Code of Federal Regulations, Title 40, 

adopted in accordance with Clean Air Act, 42 United States Code 

Annotated, §§7401, et seq, to protect and enhance air quality in 

the coastal area so as to protect coastal natural resources areas 

and promote the public health, safety, and welfare. 

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

policies. The proposed rule is consistent with these CMP goals 

and policies. The rule does not create or have a direct or significant adverse effect on any coastal natural resource areas. 

Written comments on the consistency of this rulemaking. may be 

submitted to the contact person at the address listed under the 

SUBMITIAL OF COMMENTS section of this preamble. 

ANNOUNCEMENT OF HEARING 

A public hearing on this proposal will be held in Austin on June 

24, 2004, at 10:00 a.m. at the Texas Commission on Environmental Quality complex in Building C, Room 131 E, located at 

12100 Park 35 Circle. The hearing will be structured for thereceipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of 

registration. There will be no open discussion during the hearing; 

however, an agency staff member will be available to discuss the 

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

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact the Office of Environmental Policy, 

Analysis, and Assessment at (512) 239-4900. Requests should 

be made as far in advance as possible. 

SUBMITIAL OF COMMENTS 

Comments may be submitted to Patricia Duron, MC 205, Office 

of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 

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

reference Rule Project Number 2004-003-330-WS. Comments 

must be received by 5:00 p.m., June 28, 2004. For further information, please contact Phil Harwell of the Policy and Regulations Division at (512) 239-1517 or Emily Barrett of the Policy 

and Regulations Division at (512) 239-3546. 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.D11, which authorizes 

the commission to administer the requirements of the TCAA; 

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

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.018, which authorizes the 

PROPOSED RULES May 28, 2004 29 TexReg 5277 
commission to control outdoor burning; and §382.085, which 

prohibits unauthorized air emissions; and Texas Water Code, 

§5.103, which authorizes the commission to adopt rules. 

The proposed amendment implements Texas Health and 

Safety Code, §382.002, concerning · Policy and Purpose; 

§382.011, concerning General Powers and Duties; §382.012, 

concerning State Air Control Program; §382.0 17, concerning 

Rules; §382.018, concerning Outdoor Burning of Waste and 

Combustible Material; Texas Water Code, §5.1 03, concerning 

Rules; and Texas Occupations Code, §801.361, concerning 

Disposal of Animal Remains. 

§ 111.209. Exception for Disposal Fires. 

Outdoor burning shall be authorized for the following. ['] 

(I)- (2) (No change.) 

(3) Veterinarians in accordance with Texas Occupations 

Code, §801.361, Disposal of Animal Remains. [Ammahemaffis bumffig by a veteriftarillfl if the trummg is eeftdueted oo prepeFty ewBed by 

the Yeterinarillfl; the prepeFty is in a eelHlty with a peplilatieft ef less 

thaD ~ and the '>'eteriBarillfl dees net ehaFge feF the bumiftg; Allimall'eH!tlffis refef te an animal that dies in the eare ef the ·~eteriftarian 

and dees net ffieffide any ethef type ef medieal waste.] 

(4)- (6) (No change.) 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on May 14, 2004. 

TRD-200403268 

Stephanie Bergeron 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: June 27, 2004 

For further information, please call: (512) 239-6087 

• • 

CHAPTER 330. MUNI IPAL SOLID WASTE 

SUBCHAPTER A. GE ERAL INFORMATION 

30 TAC §330.4 

The Texas Commission on E vironmental Quality (TCEQ or 

commission) proposes an arne dment to §330.4. 

BACKGROUND AND SUMM Y OF THE FACTUAL BASIS 

FOR THE PROPOSED RULE 

A bill from the 77th Legislatur , 2001, amended Texas Occupations Code, §801.361, Dispo al of Animal Remains. This bill 

allowed the burning or burying f animal remains if the disposal 

occurred in a county with pop1 lation of less than 10,000, the 

burning or burying occurred on roperty owned by the veterinarian, and the veterinarian did n t charge for disposal. This bill 

did not allow the burning or bur ing of medical waste associated 

with animal remains. 

This rulemaking implements nate Bill (SB) 216, 78th Legislature, 2003. This bill arne ded Texas Occupations Code, 

§801.361, and took effect Sept mber 1, 2003. Section 801.361 

now allows a veterinarian to ispose of animal remains and 

medical waste associated with the animal by burial or burning 

if certain conditions are met. The veterinarian must conduct 

these activities on property o ned by the veterinarian that is 

29 TexReg 5278 May 28, 2004 Texas Register 

outside the corporate bound ries of a municipality or within 

the corporate boundaries of municipality as a result of an 

annexation that occurs on or fter September 1, 2003. Further, 

SB 216 stipulates that §801.3 1 prevails over any other law that 

authorizes a government ent to prohibit or restrict outdoor 

burning or abate a public nuis nee. 

In compliance with House Bill 061, 78th Legislature, 2003, this 

rule has been developed in peration with and was approved 

by the Texas Animal Health C mmission on December 2, 2003. 

The commission simultaneou ly proposes in this issue of the 

Texas Register the amend me t to 30 TAC § 111.209, Exception 

for Disposal Fires. 

SECTION DISCUSSION 

The commission proposes to mend §330.4(c), (g), and (x) in 

order to conform with current rmatting standards. In proposed 

subsection (c) "MSWLF" will b revised to "MSW landfill facility." 

In subsection (g) the titles of§ 330.150- 330.159 are proposed 

to be listed individually, and t e title of the subchapter in which 

these sections are contained, "Operational Standards for Solid 

Waste Processing and Experi ental Sites" is removed. The proposed amendment to subsecti n (x) replaces "RCRA" with "The 

Resource Conservation and ecovery Act." 

The commission proposes o revise §330.4(y) to refer to 

amended Texas Occupations ode, §801.361. Section 801.361 

allows a veterinarian to burn r bury the remains of an animal 

and medical waste associat d with the animal on property 

owned by the veterinarian wit out having to seek approval from 

the TCEQ for this activity. he veterinarian-owned property 

must now be outside the cor orate boundaries of any municipality or within the corporat boundaries of a municipality as 

a result of an annexation th t occurs on or after September 

1, 2003. Existing languag in §330.4(y) that conflicts with 

amended Texas Occupations ode §801.361, will be removed. 

Additionally, new language h s been added to §330.4(y) that 

stipulates that veterinarians ho dispose by burning under this 

section must comply only with §111.209(3). Paragraphs (1)- (9) 

of this subsection will be rem ved. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jan Washburn, Program Spe ialist in the Grants and Strategic 

Planning Section, determine that for the first five-year period 

the proposed amendment is i effect, there will be no fiscal implications for the agency or a y other unit of state government. 

The amendment implements e legislative directive of SB 216, 

78th Legislature, 2003, whic took effect September 1, 2003. 

Current rule language allows veterinarians to burn or bury animal remains under three co itions: 1) the property is owned 

by the veterinarian; 2) the a ivity occurs only in counties with 

a population of less than 10, 00; and 3) the veterinarian does 

not charge for the burning or rial. The proposed rule will allow 

veterinarians to burn or bury edical waste associated with the 

remains of an animal, as well However, this activity must now 

occur on property that is outs de the corporate boundaries of a 

municipality or within the corp rate boundaries of a municipality 

as a result of an annexation t t occurred on or after September 

1, 2003, and the veterinarian ay now charge for the disposal. 

Ms. Washburn also determin that there will be no fiscal impact 

to units of local government a a result of the proposed amendment. 

PUBLIC BENEFITS AND CO TS 
Ms. Washburn determined that for the first five years the proposed amendment is in effect, the anticipated public benefit will 

be minimal as the amendment will only apply to property outside 

the corporate boundaries of a municipality. This rule is expected 

to benefit veterinarians because they may dispose of animals on 

their own property, which will save them approximately $25 to 

$250 per animal. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

Ms. Washburn determined that there will be no significant fiscal 

implications to small or micro-businesses as a result of implementation of the proposed amendment for the first five years it 

is in effect. The proposed amendment will allow veterinarians to 

dispose of medical waste associated with the animal by burning 

or burying, which may be a benefit to those businesses. However, the veterinarian's property must now be outside the corporate boundaries of a municipality or within the corporate boundaries of a municipality as a result of an annexation that occurred 

on or after September 1, 2003. This may exclude some veterinarians in counties of less than 10,000 from burning or burying 

animals who were previously allowed to burn or bury before SB 

216, 78th Legislature, 2003 was enacted. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

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

because the proposed rule does not adversely affect a local 

economy in a material way for the first five years that the proposed rule is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the rulemaking is not subject 

to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. Furthermore, it 

does not meet any of the four applicability requirements listed in 

§2001.0225(a). 

A "major environmental rule" means a rule the specific intent of 

which is to protect the environment or reduce risks to human 

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

and safety of the state or a sector of the state. This rulemaking proposes to amend §330.4(y) by removing existing language 

that conflicts with amended Texas Occupations Code, §801.61, 

and by adding language that stipulates that veterinarians burning under Texas Occupations Code, §801.361 must comply only 

with § 111.209(3). This proposal does not qualify as a major environmental rule because it does not have as its specific intent the 

protection of the environment or the reduction of risk to human 

health from environmental exposure. The specific intent of this 

amendment is to incorporate the changes made by SB 216 into 

the municipal solid waste permitting exemption for the disposal 

of animal remains and associated medical waste by veterinarians. 

In addition, a draft regulatory impact assessment is not required 

because the proposed rule does not meet any of the four 

applicability requirements listed in Texas Government Code, 

§2001.0225(a). The proposed rule does not exceed a standard 

set by federal law because there is no corresponding federal 

standard. The proposal does not exceed an express requirement of state law because it is in direct response to SB 216, 

and does not exceed the requirements of this bill. This proposal 

does not exceed a requirement of a delegation agreement or 

contract between the state and an agency or representative 

of the federal government to implement a state and federal 

program. This proposal does not adopt a rule solely under the 

general powers of the agency, but rather under specific state 

law, namely Texas Health and Safety Code, §361.011 and 

§361.024. The commission invites public comment on the draft 

regulatory analysis determination. 

TAKINGS IMPACT ASSESSMENT 

The commission performed an assessment of this proposed rule 

in accordance with Texas Government Code, §2007.043. The 

following is a summary of that assessment. The specific purpose of the proposed rulemaking is to implement SB 216. The 

proposed rule implements the provisions of SB 216, which modified the requirements applicable to veterinarians who wish to dispose of animal remains and associated medical waste by burying 

or burning without obtaining a TCEQ permit or registration. The 

proposed rule will substantially advance this stated purpose by 

modifying §330.4 to conform to the statute. The proposed rule 

does not affect real property because it refers to a statute that 

specifies the conditions under which a veterinarian may dispose 

of animal remains and associated medical waste without TCEQ 

authorization. Therefore, the proposed rule will not constitute a 

taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking and found 

that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will it affect any action/authorization identified in §505.11. Therefore, the proposed 

rule is not subject to the Coastal Management Program. 

ANNOUNCEMENT OF HEARING 

A public hearing on this proposal will be held in Austin on June 

24, 2004, at 10:00 a.m. at the Texas Commission on Environmental Quality complex in Building C, Room 131 E, located at 

12100 Park 35 Circle. The hearing will be structured for thereceipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of 

registration. There will be no open discussion during the hearing; 

however, an agency staff member will be available to discuss the 

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

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact the Office of Environmental Policy, 

Analysis, and Assessment at (512) 239-4900. Requests should 

be made as far in advance as possible. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Patricia Duron, MC 205, Office 

of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 

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

reference Rule Project Number 2004-003-330-WS. Comments 

must be received by 5:00 p.m., June 28, 2004. For further information, please contact Wayne Harry of the Waste Permits Division at (512) 239-6619 or Emily Barrett of the Policy and Regulations Division at (512) 239-3546. 

STATUTORY AUTHORITY 

PROPOSED RULES May 28, 2004 29 TexReg 5279 
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Margaret Hoffman, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 

30 TAC CHAPTERS 111 AND 330 

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

comments concerning revisions to 30 TAC §111.209, Exception for Disposal Fires; §330.4, Permit 

Required; and corresponding revisions to the Texas state implementation plan (SIP) under the requirements 

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

40 Code of Federal Regulations, §51.102 of the United States Environmental Protection Agency 

regulations concerning SIPs. The amendment to §111.209 is proposed as a revision to the SIP. 

The proposed rulemaking would conform agency rules with Senate Bill216, 78th Legislature, 2003, which 

allows veterinarians to burn or bury animals and associated medical waste provided certain conditions are 

met. 

A public hearing on this proposal will be held in Austin on June 24, 2004 at 10:00 a.m. in Building C, 

Room 131E, at the commission's central office, located at 12100 Park 35 Circle. The hearing will be 

structured for the receipt of oral or written comments by interested persons. Individuals may present oral 

statements when called upon in order of registration. There will be no open discussion during the hearing; 

however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing 

and will answer questions before and after the hearing. 

Persons with disabilities who have special communication or other accommodation needs who are planning 

to attend the hearing should contact the Office of Environmental Policy, Analysis, and Assessment at 

(512) 239-4900. Requests should be made as far in advance as possible. 

Comments may be submitted to Patricia Duron, Texas Commission on Environmental Quality, Office of 

Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, 

or by fax to (512) 239-4808. All comments should reference Rule Project Number 2004-003-330-WS. 

Comments must be received by 5:00p.m., June 28, 2004. For further information, please contact Emily 

Barrett, Policy and Regulations Division, at (512) 239-3546. 

Issued in Austin, Texas, on May 12, 2004. 

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

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

Rule Project No. 2004-003-330-WS 

Page 1 

The Texas Commission on Environmental Quality (TCEQ or commission) proposes an amendment to 

§111.209. 

The amended section and corresponding revisions to the Texas state implementation plan will be 

submitted to the United States Environmental Protection Agency. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE 

A bill from the 77th Legislature, 2001 amended Texas Occupations Code, §801.361, Disposal of 

Animal Remains. This bill allowed the burning of animal remains if the burning occurred in a county 

with a population of less than 10,000, on property owned by the veterinarian, and the veterinarian did 

not charge for disposal. This bill did not allow the burning of medical waste associated with animal 

remains. 

This rulemaking implements a subsequent amendment to Texas Occupations Code, §801.361. Senate 

Bill (SB) 216, 78th Legislature, 2003, amended Texas Occupations Code, §801.361, by allowing 

veterinarians to burn animal remains and associated medical waste. Associated medical waste includes: 

animal waste, blood, gloves, sleeves, newspapers, and plastic bags, but does not include sharps. SB 

216 also changes the conditions under which a veterinarian may burn waste. The proposed amendment 

revises paragraph (3) by replacing the current language with a reference to amended Texas 

Occupations Code, §801.361. This would provide an exception to the prohibition of outdoor burning 

by veterinarians in accordance with Texas Occupations Code, §80 1. 361. 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

In compliance with House Bill 3061, 78th Legislature, 2003, this rule has been developed in 

Page 2 

cooperation with and was approved by the Texas Animal Health Commission on December 2, 2003. 

The commission simultaneously proposes in this issue of the Texas Register the amendment to 30 TAC 

§330.4, Permit Required. 

SECTION DISCUSSION 

The proposed amendment to §111.209, Exception for Disposal Fires, is necessary to make the burning 

revisions provided by SB 216 consistent with TCEQ rules. The proposed amendment revises 

paragraph (3) by removing the current language and replacing it with a reference to amended Texas 

Occupations Code, §80 1. 361. This amendment will modify the exception to the prohibition of outdoor 

burning relating to burning by veterinarians to make it consistent with Texas Occupations Code, 

§801.361. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jan Washburn, Program Specialist in the Grants and Strategic Planning Section, determined that for the 

first five-year period the proposed amendment is in effect, there will be no fiscal implications for the 

agency or any other unit of state government. The amendment implements the legislative directive of 

SB 216, 78th Legislature, 2003, which took effect September 1, 2003. Current rule language allows 

veterinarians to bum or bury animal remains under three conditions: 1) the property is owned by the 

veterinarian; 2) the activity occurs only in counties with a population of less than 10,000; and 3) the 

veterinarian does not charge for the burning or burial. The proposed rule will allow veterinarians to 

bum or bury medical waste associated with the remains of an animal, as well. However, this activity 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

Page 3 

must now occur on property that is outside the corporate boundaries of a municipality or within the 

corporate boundaries of a municipality as a result of an annexation that occurred on or after September 

1, 2003, and the veterinarian may charge for the disposal. Ms. Washburn also determined that there 

will be no fiscal impact to units of local government as a result of the proposed amendment. 

PUBLIC BENEFITS AND COSTS 

Ms. Washburn also determined that for the first five years the proposed amendment is in effect, the 

anticipated public benefit will be minimal as the amendment will only apply to property outside the 

corporate boundaries of a municipality. This rule is expected to benefit veterinarians because they may 

dispose of animals on their own property, which will save them approximately $25 to $250 per animal. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

Ms. Washburn also determined that there will be no significant fiscal implications to small or 

micro-businesses as a result of implementation of the proposed amendment for the first five years it is 

in effect. The proposed amendment will allow veterinarians to dispose of medical waste associated 

with the animal by burning or burying, which may be a benefit to those businesses. However, the 

veterinarian's property must now be outside the corporate boundaries of a municipality or within the 

corporate boundaries of a municipality as a result of an annexation that occurred on or after September 

1, 2003. This may exclude some veterinarians in counties of less than 10,000 from burning or burying 

animals who were previously allowed to burn or bury before SB 216, 78th Legislature, 2003 was 

enacted. 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

LOCALEMPLOYMENTIMPACTSTATEMENT 

Page 4 

The commission reviewed this proposed rulemaking and determined that a local employment impact 

statement is not required because the proposed rule does not adversely affect a local economy in a 

material way for the first five years that the proposed rule is in effect. 

DRAFf REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and determined that the proposed rulemaking is not subject to 

§2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that 

statute. The proposed amendment to § 111.209 is only intended to make existing commission rules 

consistent with the new legislative changes made to the Texas Occupations Code, and the proposed rule 

will not adversely affect in a material way the economy, productivity, competition, jobs, the 

environment, or the public health and safety of the state or a sector of the state. Therefore, the 

proposed amendment does not qualify as a "major environmental rule." Furthermore, the analysis 

required by §2001.0225(c) does not apply because the proposed rule does not meet any of the four 

applicable requirements of a major environmental rule. The proposed rule does not exceed a standard 

set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation 

agreement, or adopt a rule solely under the general powers of the agency. The rule is proposed 

specifically to make commission rules consistent with SB 216 and does not exceed the requirements of 

that bill. The commission invites public comment on the draft regulatory impact analysis 

determination. 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

TAKINGS IMPACT ASSESSMENT 

Page 5 

The commission evaluated the proposed rule and performed an assessment of whether the proposed 

rule constitutes a takings under Texas Government Code, Chapter 2007. The specific purpose of the 

proposed rule is to make existing commission rules consistent with the new legislative changes made to 

the Texas Occupations Code by SB 216. The proposed rule will substantially advance this purpose by 

replacing existing language with a reference to the Texas Occupations Code amended by SB 216. 

Promulgation and enforcement of the proposed rule will be neither a statutory nor a constitutional 

taking of private real property. Specifically, the proposed rule will not affect private real property 

rights because it will not burden, restrict, or limit an owner's property rights which would otherwise 

exist in the absence of the regulation. The proposed rule will actually expand the allowable uses of a 

veterinarian's private real property except those veterinarians in a municipality that is within a county 

of 10,000 or fewer people. The proposed rule does not meet the definition of a takings under Texas 

Government Code, §2007 .002(5). 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking and found that the proposal is subject to the 

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 rule 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. 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

Page 6 

The CMP goals applicable to the proposed rule include: to protect, preserve, restore, and enhance the 

diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound 

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

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

coastal zone in a manner that is compatible with private property rights and other uses of the coastal 

zone; and to balance these competing interests. 

CMP policy applicable to the proposed rule is 31 TAC §501.14(q), which states that TCEQ rules under 

Texas Health and Safety Code, Chapter 382, governing emissions of air pollutants, shall comply with 

regulations in Code of Federal Regulations, Title 40, adopted in accordance with Clean Air Act, 42 

United States Code Annotated, §§7401, et seq, to protect and enhance air quality in the coastal area so 

as to protect coastal natural resources areas and promote the public health, safety, and welfare. 

Promulgation and enforcement of the rule will not violate or exceed any standards identified in the 

applicable CMP goals and policies. The proposed rule is consistent with these CMP goals and 

policies. The rule does not create or have a direct or significant adverse effect on any coastal natural 

resource areas. 

Written comments on the consistency of this rulemaking may be submitted to the contact person at the 

address listed under the SUBMITTAL OF COMMENTS section of this preamble. 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

ANNOUNCEMENT OF HEARING 

Page 7 

A public hearing on this proposal will be held in Austin on June 24, 2004, at 10:00 a.m. at the Texas 

Commission on Environmental Quality complex in Building C, Room 131E, located at 12100 Park 35 

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

persons. Individuals may present oral statements when called upon in order of registration. There will 

be no open discussion during the hearing; however, an agency staff member will be available to 

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

hearing .. 

Persons with disabilities who have special communication or other accommodation needs who are 

planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and 

Assessment at (512) 239-4900. Requests should be made as far in advance as possible. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Patricia Duron, MC 205, Office of Environmental Policy, Analysis, 

and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 

78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Project Number 2004-

003-330-WS. Comments must be received by 5:00p.m., June 28, 2004. For further information, 

please contact Phil Harwell of the Policy and Regulations Division at (512) 239-1517 or Emily Barrett 

of the Policy and Regulations Division at (512) 239-3546. 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

SUBCHAPTER B: OUTDOOR BURNING 

§111.209 

STATUTORY AUTHORITY 

Page 8 

The amendment is proposed under Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

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

which provides the commission the authority to develop a comprehensive plan for the state's air; 

§382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of 

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

which prohibits unauthorized air emissions; and Texas Water Code, §5.103, which authorizes the 

commission to adopt rules. 

The proposed amendment implements Texas Health and Safety Code, §382.002, concerning Policy and 

Purpose; §382.011, concerning General Powers and Duties; §382.012, concerning State Air Control 

Program; §382.017, concerning Rules; §382.018, concerning Outdoor Burning of Waste and 

Combustible Material; Texas Water Code, §5.103, concerning Rules; and Texas Occupations Code, 

§801.361, concerning Disposal of Animal Remains. 

§111.209. Exception for Disposal Fires. 

Outdoor burning shall be authorized for the following. [:] 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

(1) Domestic waste burning at a property designed for and used exclusively as a private 

Page 9 

residence, housing not more than three families, when collection of domestic waste is not provided or 

authorized by the local governmental entity having jurisdiction, and when the waste is generated only 

from that property. Provision of waste collection refers to collection at the premises where the waste is 

generated. The term "domestic waste" is defined in §101.1 of this title (relating to Definitions). 

Wastes normally resulting from the function of life within a residence that can be burned include such 

things as kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and 

rubber), clothing, grass, leaves, and branch trimmings. Examples of wastes not considered domestic 

waste which cannot be burned, include such things as tires, non-wood construction debris, furniture, 

carpet, electrical wire, and appliances. 

(2) Diseased animal carcass burning when burning is the most effective means of controlling 

the spread of disease. 

(3) Veterinarians in accordance with Texas Occupations Code, §801.361, Disposal of Animal 

Remains. [Animal remains burning by a veterinarian if the burning is conducted on property owned by 

the veterinarian; the property is in a county with a population of less than 10,000; and the veterinarian 

does not charge for the burning. Animal remains refer to an animal that dies in the care of the 

veterinarian and does not include any other type of medical waste.] 

(4) On-site burning of trees, brush, and other plant growth for right-of-way maintenance, 

landclearing operations, and maintenance along water canals when no practical alternative to burning 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

Page 10 

exists and when the materials are generated only from that property. Structures containing sensitive 

receptors must not be negatively affected by the bum. Such burning shall be subject to the 

requirements of § 111.219 of this title (relating to General Requirements for Allowable Outdoor 

Burning). When possible, notification of intent to bum should be made to the appropriate commission 

regional office prior to the proposed bum. For a single project entailing multiple days of burning, an 

initial notice delineating the scope of the bum is sufficient if the scope does not constitute 

circumvention of the rule for a continual burning situation. Commission notification or approval is 

not required. 

(5) Crop residue burning for agricultural management purposes when no practical alternative 

exists. Such burning shall be subject to the requirements of §111.219 of this title, and structures 

containing sensitive receptors must not be negatively affected by the bum. When possible, notification 

of intent to bum should be made to the appropriate commission regional office prior to the proposed 

bum. Commission notification or approval is not required. This section is not applicable to crop 

residue burning covered by an administrative order. 

(6) Brush, trees, and other plant growth causing a detrimental public health and safety 

condition may be burned by a county or municipal government at a site it owns upon receiving site and 

bum approval from the executive director. Such a bum can only be authorized when there is no 

practical alternative, and it may be done no more frequently than once every two months. Such burns 

cannot be conducted at municipal solid waste landfills unless authorized under §111.215 of this title 
Texas Commission on Environmental Quality 

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

Rule Project No. 2004-003-330-WS 

Page 11 

(relating to Executive Director Approval of Otherwise Prohibited Outdoor Burning), and shall be 

subject to the requirements of § 111.219 of this title. 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

W-2 

INDEX OF WRITTEN TESTIMONY 

Public Hearing 

june 24, 2004 

Austin, Texas 

Submitted By 

Texas Veterinary Medical Association 

United States Environmental Protection Agency, Region 6 
VIVIA 

TEXAS VETERINARY MEDICAL ASSOCIATION 

6633 Hwy 290 East, Suite #201 o Austin, Texas 78723 

Phone: 512/452-4224 o Fax: 512/452-6633 

Website: www.tvma.org 

June 22, 2003 

Ms. Patricia Duron 

MC205 

Office of Environmental Policy, Analysis, and Assessment 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas i~/11-3087 

Re: Rule Project Number 2004-003-330-WS 

Dear Ms. Duron: 

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I am writing this letter on behalf of the Texas Veterinary Medical Association (TVMA) in 

response to the Texas Commission on Environmental Quality's proposed amendments to 30 

TAC §330.4. TVMA is opposed to the rule as proposed, as the net effect of the rule will be 

to preclude the burying of carcasses by veterinarians. 

Senate Bill216 was passed during the regular session of the Texas Legislature in 2003 to 

provide veterinarians with a means of disposing of animal carcasses by either burning or 

burying. Before the bill was passed, veterinarians (especially large animal practitioners) were 

severely limited in their methods for disposing of dead animals. In fact, in many instances 

veterinarians had only one practical means of coping with carcasses - sending them home 

with the owner. But sending carcasses back home with the owner had its own set of 

disadvantages as owners were often slow in retrieving the carcasses or failed to retrieve them 

ar ali. In aud.icion, sending the carcas~es home was a poor way of proteccing human and 

animal health. Most such carcasses were almost certainly dumped in a pasture and left to be 

scavenged by wildlife. This method of disposal is far from ideal as the risk of spreading 

disease is quite high. 

In surveying its members, TVMA has determined that the vast majority of veterinarians who 

dispose of animals at their clinics (which will actually be a very small percentage of 

veterinarians) will do so through burning. However, there will be instances in which burning 

will not be an option, due for the most part to weather conditions. In those instances a 

veterinarian will be forced to bury a carcass. And unlike the proposed rules on burning 

carcasses, the proposed rules for burial have a number of critena that must be met before· 

doing so. In fact, the proposed rules will hold veterinarian to the same standards as other 

entities that are disposing of municipal solid waste. 

f:( TEXAS VETERINARIANS REACHING COMMON GOALS tr 

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m 

() 

rn 
Requiring a veterinarian to meet the same standards as commercial landfills is costly and 

impractical. Unlike true landfills which are burying tons of debris, veterinarians will seldom 

actually bury carcasses. For that reason it does not make financial sense for a veterinarian to 

go through the trouble and expense of having his land surveyed and the deed recorded in the 

county and with TCEQ in order to bury a few animals. Should the proposed rule be 

adopted, it is highly unlikely that veterinarians will make use of the burial provisions of SB 

216. Unfortunately, animal health and public health could suffer as a result. 

With the large number of disease outbreaks in animals in Texas in recent months, it is clear 

that this is a growing problem. One of the keys to preventing such outbreaks is the proper 

disposal of diseased animals. Allowing veterinarians who are.highly trained and educated on 

these issues to properly dispose of animal remains through burning and burial will be of 

great benefit to both animal and public health and is the best method for dealing with this 

probiem. To require veterinarians to n1eenhe standards iu the proposed rule: will aliiw::>t 

certainly prevent veterinarians from burying animals at all. And, as stated above, the 

alternatives to veterinarians burying carcasses are not very attractive. 

TVMA respectfully requests that TCEQ not adopt the proposed rule as currently written. 

Thank you for your time and consideration. If you have any questions or would like to 

discuss this further, please do not hesitate to contact me. 

Sincerely, 

~ Chris Copelan 

General Counsel 
UNITl ,TATES ENVIRONMENTAL PROTECTI1 ~GENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

June 23, 2004 

RECEIVED 

JUN 3 0 2004 

8 

Mr. Jim Muse 

OFFICE OF ENVIRONMENTAL 

POLICY, ANALYSIS & ASSESSMENT 

Director, Policy and Regulations Division 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

Dear Mr. Muse: 

'* f'eceived fateJ 

dtOJraenl- DO loJ:J. 

- -ldurcfn 

I have received your letter to Rebecca Weber, dated May 12, 2004, regarding proposed 

revisions to 30 TAC §§ 111.209 and 330.4 concerning the disposal of animal remains, and your 

request for comments to the proposed changes to § 111.209 as a revision to the State 

Implementation Plan (SIP). 

We have no objection to the proposed amendment to § 111.209 as a revision to the SIP. I 

note that both §§ 111.209 and 330.4 reference §80 1.361 of the Texas Occupational Code, which 

will be included by reference in this SIP revision. 

If you have any questions regarding this response, please contact Joe Kordzi at of my staff 

at (214) 665-7186. 

cc: Ms. Emily C. Barrett (TCEQ) 

Ms. Patricia Duron (TCEQ) V 

Sincerely yours, 

~,&),~ 

Thomas H. Diggs 

Chief 

Air Planning Section 

Internet Address (URL) • http://www.epa.gov 

Recycled/Recyclable • Prtnted wKh Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer) 
Reference Number 

0-1 

INDEX OF ORAL TESTIMONY 

Public Hearing 

June 24, 2004 

Austin, Texas 

Submitted by 

Chris Copeland, on behalf of Texas Veterinary Medical 

Association 
TRANSCRIPT OF PROCEEDINGS BEFORE THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

AUSTIN, TEXAS 

IN THE MATTER OF: ) 

) 

PROPOSED REVISIONS TO ) 

30 TAC CHAPTER 111 AND 330 ) 

PUBLIC BEARING 

THURSDAY, JUNE 24, 2004 

BE IT REMEMBERED THAT at 10:01 a.m., on Thursday, 

the 24th day of June 2004, the above-entitled matter came on 

for hearing at the offices of the Texas Commission on 

Environmental Quality, 12100 Park 35 Circle, Building C, 

Room 131-E, Austin, Texas, before LISA MARTIN; and the 

following proceedings were reported by Christy Welch, a 

Certified Shorthand Reporter of: 

l ""'.1~1~1 ll""'-.11'1"1\li' ~­ - 1:~- \,_;-"\:- --\. \...:!. 

a record of excellence 

1801 Lavaca · Suite 115 · Austin, Texas 78701 · 512·474-2233 
2 

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

2 THURSDAY, JUNE 24, 2004 

3 (10:01 a.m.) 

4 MS. MARTIN: Good morning. I would like to 

5 welcome everyone to this public hearing being conducted by 

6 the Texas Commission on Environmental Quality. My name is 

7 Lisa Martin, and I'm with the Policy and Regulations 

8 Division. 

9 Additional staff members who are present are 

10 Emily Barrett and Phil Harwell with the Policy and 

11 Regulations Division, Wayne Harry with the Waste Permits 

12 Division, and that's all for right now. 

13 We are here this morning to receive oral 

14 and/or written comments on proposed revisions to 30 TAC 

15 Chapter 111, Control of Air Pollution from Visible Emissions 

16 and Particulate Matter, and Chapter 330, Municipal Solid 

17 Waste. 

18 If you intend to present oral testimony and 

19 haven't already signed in at our registration table, please 

20 do so now. If you are not familiar with the proposed 

21 changes, copies of the proposal from the issue of the Texas 

22 Register are available at the registration table. We also 

23 have copies of the hearing notice so that if anyone is 

24 planning to send in written comments, you can quickly find 

25 the information on where to fax or mail those in. 

KENNEDY REPORTING SERVICE, INC. 

(512) 474-2233 
3 

1 For those of you who do not have access to 

2 the Internet to download the rules, we have a sheet 

3 available on the registration table. And on your way out, 

4 you can stop by and fill in your name and address, and we 

5 will mail a copy of the final version as published in the 

6 Texas Register to you. 

7 We will continue to accept written comments 

8 on this proposal until 5:00p.m. on Monday, June 28th, 2004. 

9 This hearing is structured strictly for the receipt of oral 

10 or written comments. Open discussion during the hearing is 

11 not allowed. However, if anyone has any additional 

12 questions or comments regarding the proposal, there will be 

13 another opportunity after the hearing to have your questions 

14 answered. 

15 We will now begin receiving testimony in the 

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

17 please state your name and who you represent and present 

18 your testimony. 

19 And you can stay where you're seated. Chris 

20 Copeland. 

21 MR. COPELAND: I'm Chris Copeland. I'm 

22 general counsel with the Texas Veterinary Medical 

23 Association. I actually do just have a very short list of 

24 comments regarding the proposed rules. 

25 TVMA is actually in support of Section 111. 

KENNEDY REPORTING SERVICE, INC. 

(512)474-2233 
4 

1 We have no comments about that particular section. We are, 

2 however, opposed to the amendments to Section 330.4, having 

3 to do with municipal solid waste. 

4 As written, this proposal will basically 

5 require the veterinarians who carry animal carcasses to meet 

6 the same standards as municipal solid waste landfills. A 

7 particular concern are the requirements regarding to deed 

8 recordation. The fact is, that in talking with 

9 veterinarians who will take advantage of this rule and of SB 

10 216, which I guess preceded this rule-making process, the 

11 vast majority of them will actually end up burning 

12 carcasses. That's the best way to handle the especially 

13 diseased carcasses and is probably the most efficient way 

14 for them to do .so. 

15 Unfortunately, there will be times when 

16 weather conditions don't permit the burning of carcasses. 

17 And in those cases, the veterinarian has to make a decision 

18 on how they will dispose of the animal. The problem is 

19 there are times when what most veterinarians would do is 

20 send the carcass home with the owner of the animal if they 

21 don't have a way to dispose of it themselves, which means 

22 basically either burial or try to get that animal to some 

23 other landfill that would accept it. And in talking with 

24 some of our members who have experienced this problem, 

25 especially in rural areas, that basically means putting t~e 

KENNEDY REPORTING SERVICE, INC. 

(5l2)474-2233 
5 

1 animal on a trailer and driving them, in some cases, well 

2 over an hour away, which is -- we consider to be a bigger 

3 health risk when you've got a diseased animal that is 

4 probably dripping fluids and whatnot on the road as it goes 

5 to the landfill. 

6 So their other option, like I said, is to 

7 actually take that animal and have the owner come back, pick 

8 it up and take it out to wherever the owner resides. In 

9 talking with veterinarians, my understanding is that most of 

10 these people will basically find a spot in a pasture, dump 

11 the animal, and leave it at that. In doing some research on 

12 this, that is not generally a well-accepted practice, 

13 especially with a diseased animal, with scavengers and 

14 wildlife who could easily eat the carcass and spread the 

15 disease throughout wildlife populations. 

16 So, the reason we're concerned is that we 

17 wanted a method in those cases where the veterinarian can't 

18 burn to be able to bury with as little -- I guess I would 

19 call it "red tape" as possible. Under the proposal, these 

20 individuals would have to do a survey of their land and then 

21 record it in the county, and then send a copy to TCEQ. 

22 That's my understanding. And then let TCEQ know when they 

23 have closed that particular burial pit. 

24 In talking to veterinarians, I'm just afraid 

25 that having to go through that process is basically going :: 

KENNEDY REPORTING SERVICE, INC. 

(512) 474-2233 
1 prevent them from using it at all, which means, again, we're 

2 back to the idea of calling people up and sending the 

3 animals home with them. And we just don't think that's the 

4 appropriate way to handle this. I don't think that there 

5 will be many veterinarians, period, that take advantage of 

6 the ability to bury, even if it were easier to do. I think 

7 it's kind of a fallback position for cases in which the 

8 weather just doesn't perrni t burning. 

9 So I would say in conclusion, basically, that 

10 we would ask that the agency not adopt the rule as currently 

11 written and instead consider a rule that would except 

12 veterinarians for meeting the deed recording requirements 

13 under the proposed rule. Thank you. 

14 MS. MARTIN: Thank you, Mr. Copeland. 

15 Once again, the Commission will continue to 

16 accept written comments until 5:00 p.m. on Monday, June 

17 28th, 2004. If there are no further comments, this hearing 

18 is now closed. We appreciate your comments, and thank you 

19 for coming. 

20 (Proceedings concluded at 10:07 a.m.) 

21 

22 

23 

24 

25 

KENNEDY REPORTING SERVICE, INC. 

(512)474-2233 
1 C E R T I F I C A T E 

2 

3 STATE OF TEXAS 

4 COUNTY OF TRAVIS 

5 

6 I, Christy Welch, Certified Shorthand Reporter in 

7 and for the State of Texas, do hereby certify that the 

8 above-mentioned matter occurred as hereinbefore set out. 

9 I FURTHER CERTIFY THAT the proceedings of such 

10 were reported by me or under my supervision, later reduced 

11 to typewritten form under my supervision and control and 

12 that the foregoing pages are a full, true and correct 

13 transcription of the original notes. 

14 IN WITNESS WHEREOF, I have hereunto set my hand 

15 and seal this 8th day of July 2004. 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Christy We c , Texas CSR 7652 

Expiration ate -.12/31/05 

Kennedy Reporting Service, Inc. 

Firm Certification No. 276 

1801 Lavaca Street, Suite 115 

Austin, Texas 78701 

(512) 474-2233 

KENNEDY REPORTING SERVICE, INC. 

(512) 474-2233 

7 
Texas Commission on Environmental Quality 

Public Hearing Registration 

Rule Project No.: 2004-003-330-WS 

Location: 12100 Park 35 Circle, Bldg. C, Room 131E Date: June 24, 2004 Time: 10:00 a.m. 

TCEQ complex in Austin, Texas 

Concerning: 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, and Chapter 330, Municipal 

Solid Waste. 

Name Representing Presenting Oral Testimony? 

(Please Print) (Circle One) 

I /{1 I , 

(__/1\Vi~ Co(Je(v,,.J -'GAsVt-1e,,"u'\ lMd,c~ Arroc LS No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Qualicy __ INTEROFFICE MEMORANDUM 

To: Commissioners Date: October 8, 2004 

Thru: LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: 

Office 

Randy 

of 

Wood, 

Environmental 

Deputy Director 

Policy, A~d 

./'J ~ Assessment 

Docket No.: 2004-0006-RUL 

Subject: Commission Approval for Rulemaking Adoption 

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

and Chapter 330, Municipal Solid Waste 

SB 216: Veterinarian Disposal of Animal Remains and Associated Medical Waste 

Rule Project No. 2004-003-330-WS 

Reasons for the rule package: 

·• Under what authority are we adopting these changes? 

Texas Health and Safety Code, §361.011, concerning Cornmission'sJurisdiction: Municipal Solid 

Waste; §361.024, concerning Rules and Standards; §382.011, concerning General Powers and 

Duties; §382.012, concerning State Air Control Program; §382.017, concerning Rules; §382.018, 

concerning Outdoor Burning of Waste and Combustible Material; Texas Water Code, §5.013, 

concerning General Jurisdiction of Commission; §5.102, concerning General Powers; and §5.103, 

concerning Rules. 

• Is this rulemaking required by federal rule or state statute? Which ones? 

This rulemaking is required in order to assure that our rules are consistent with Senate Bill (SB) 

216, 78th Legislature, 2003. 

• Are there any legal deadlines by which these rules must be proposed, adopted, or effective? 

No deadline was specified in the statute. 

• What issue(s) or problem(s) are we trying to solve? 

This rulemaking will resolve inconsistencies between agency rules and state statute. 

• Why is.it important that we do this rule package? 

To reflect current state statute in our rules. 

• How does it improve the environment? 

This rulemaking references state legislation and is not directly related to specific environmental 

improvement. 

• Other important background or historical information. 

A previous statute from the 77th Legislature allowed the burning or burial of animal remains if the 

disposal occurred in a county with a population of less than 10,000, the activity occurred on 
Commissioners 

Page 2 

October 8, 2004 

Re: Docket 2004-0006'-RUL 

property owned by the veterinarian, and the veterinarian did not charge for the disposal. This 

exemption did not apply to medical wastes associated with the animal. 

SB 216 specifies that the TCEQ may not adopt a rule that prohibits conduct authorized by this 

statute, and it specifies that this statute prevails over any other law that authorizes a govenunental 

entity to prohibit or restrict outdoor burning or to abate public nuisance. 

What the rulemaking will do: 

• Project scope: 

~ This rulemaking will add a reference to Texas Occupations Code, §801.361 and remove 

language that is inconsistent with the statute from the rules. The referenced statute allows 

a veterinarian to dispose of animal remains and medical waste associated with the animal 

by burial or burning without agency authorization. 

~ HB 3061, 78th Legislature, 2003 requires that the commission work with the Texas 

Animal Health Commission (TAHC) in drafting these rules. Staff has been working with 

Gene Snelson, General Counsel of the T AHC, to ensure that the T AHC approves of the 

draft rules. TAHC approved of the proposed rules at its May 25, 2004 commission 

meeting. 

• Changes required by federal rule: None. 

• Changes required by state statute: 

~ removing rule language that conflicts with current statute in §330.4, Permit Required and 

§ 111.209, Exception for Disposal Fires 

~ adding a reference to Texas Occupations Code, §801.361 in both of these sections 

• Staff recommendations that differ from or fall outside of federal rule or state statute: None. 

Impact on the regulated community: 

• Who will be affected? 

According to the statute, veterinarians located outside the corporate boundaries of a municipality 

or within the corporate boundaries of a municipality as a result of annexation that occurs on or 

after September 1 , 2003 are allowed to dispose of animal remains and medical waste associated 

with the animal on their property. 

• Does it create a group of affected persons who were not affected previously? How? 

Yes. Current rules allow burying and burning of animal remains in counties with less than 10,000 

residents without requiring an agency authorization and allow for restriction of this activity if 

nuisance conditions occur. The new rules will reference a statute that allows the burning or burial 

of veterinary medical waste associated with the ·animal outside the corporate boundary of a 

municipality, or within the corporate boundary of a municipality as a result of annexation that 

occurs on or after September 1, 2003, regardless of the population in the county, which will 

increase the number of veterinarians who can burn or bury animal remains. Additionally, the 
Commissioners 

Page 3 

October 8, 2004 

Re: Docket 2004-0006-RUL 

statute does not allow for restriction of these burning or burial activities if nuisance conditions 

occur. 

• Will there be a fiscal impact? If so, estimate. 

There are no significant fiscal impacts as a result of this rulemaking. 

Impact on the public: 

• Who will be affected? 

The public living near locations where animal remains and veterinary medical waste are being 

burned or buried may be affected. 

• Does it create a group of affected persons who were not affected previously? How? 

Yes, people living near veterinarian-owned property where legitimate burning and burying activity 

occurs may be affected by odors or smoke. The statute prohibits governmental entities from 

abating a public nuisance. 

• Will there be a fiscal impact? If so, estimate. 

No; this rule simply removes regulatory requirements that conflict with current state statute. The 

effect of the statute may be that properties near a burning or burying activity may lose value if 

there is a real or perceived nuisance. 

Impact on agency programs: 

Air: Field Operations will need to develop guidance on handling complaints if the implementation 

of the legislation results in an increase in complaints from citizens living near veterinarian-owned 

land where the veterinarian has chosen to bum animal carcasses on-site. These complaints may 

require investigation by Field Operations; however, SB 216 supersedes all other laws or rules 

related to this activity, including § 101.4 and the Texas Clean Air Act prohibition against creating 

a condition of air pollution. 

Waste: The Municipal Solid Waste Permits Section would be primarily responsible for 

implementation. The Field Operations Program is responsible for verifying that veterinarians are 

properly disposing of these wastes. 

Stakeholder meetings: 

• Have any stakeholder meetings been held? No. 

• With whom? NA 

• What were the general sentiments? NA 

• Were any changes made in response to stakeholder concerns? NA 

The implications are: 

• What policy issues are affected? No policy issues will be affected. 

• Are any policies that are not currently based on rule being made into a rule? No. 

• What are the consequences if this rulemaking is not approved to go forward? 

Commission rules will be inconsistent with state statute. 
Commissioners 

Page 4 

October 8, 2004 

Re: Docket 2004-0006-RUL 

• Are there alternatives? 

No. This rulemaking will reference SB 216. 

Potentially controversial matters: 

Persons adjacent to these veterinarian-owned properties may not favor the statute (to which the rule refers) 

because it does not allow governmental entities to abate public nuisances. 

Public comment: 

The Texas Veterinary Medical Association (TVMA) commented at the June 24th hearing. During the 

public comment period, which closed on June 28,2004, the commission received written comments from 

TVMA, the United States Environmental Protection Agency (EPA), and Senator Judith Zaffirini. EPA 

stated neither support nor objection to the amendments, while TVMA opposed the rule as proposed because 

it feels that the net effect of the rule will be to preclude the burying of carcasses by veterinarians. TVMA 

further commented that §330.4 should exempt veterinarians from deed recordation. Senator Zaffirini 

expressed support of the TVMA·position and expressed concern that the effect of requiring veterinarians 

to deed record will be that they do not choose to bury waste. 

The team responded to these comments by stating that this rulemaking does not prevent veterinarians from 

the activities that are authorized by SB 216. Further, this rulemaking does not modify or refer to the deed 

recordation requirements in §330. 7, and it implements SB 216 by referring directly to the statute, Texas 

Occupations Code, §801.361. 

Significant changes from proposal: 

None. 

Agency contacts: 

Emily Barrett, Rule Project Manager, 239-3546 

Wayne Harry, Program Lead (Waste), 239-6619 

Phil Harwell, Program Lead (Air), 239-1517 

Todd Galiga, Staff Attorney (Waste), 239-3578 

Dan Long, Staff Attorney (Air), 239-5373 

Patricia Duron, Texas Register Coordinator, 239-6087 

Attachments 
Commissioners 

Page 5 

October 8, 2004 

Re: Docket 2004-0006-RUL 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

Brian· Christian 

Derek Seal 

Brent Wade 

Ashley. K. W adick 

Randolph Wood 

Jim Muse 

Office of General Counsel 

Emily Barrett 

Patricia Duron 

cc (without attachments): 

Wayne Harry, Program Lead (Waste) 

Phil Harwell, Program Lead (Air) 

Todd Galiga, Staff Attorney (Waste) 

Dan Long, Staff Attorney (Air) 

Kathy Vail, Regulation Development Team Leader 

Kari Bourland, Program Liaison (Waste) 

Susi Ferguson, Program Liaison (Air) 

Sharon Smith, OLS Liaison (Waste) 

Keri Rowland, OLS Liaison (Air) 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts the amendment to 

§ 111.209. Section 111.209 is adopted without change to the proposed text as published in the 

May 28, 2004 issue of the Texas Register (29 TexReg 5276) and will not be republished. 

The amendment is being adopted as a revision to the Texas state implementation plan, which will 

be submitted to the United States Environmental Protection Agency (EPA). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE 

A bill from the 77th Legislature, 2001 amended Texas Occupations Code, §801.361, Disposal of 

Animal Remains and allowed the burning of animal remains if the burning occurred in a county 

with a population of less than 10,000, on property owned by the veterinarian, and the veterinarian 

did not charge for disposal. This bill did not allow the burning of associated medical waste. 

This rulemaking implements a subsequent amendment to Texas Occupations Code, §801.361. 

Senate Bill (SB) 216, 78th Legislature, 2003, amended Texas Occupations Code, §801.361, by 

allowing veterinarians to burn animal remains and associated medical waste. Associated medical 

waste includes: animal waste, blood, gloves, sleeves, newspapers, and plastic bags, but does not 

include sharps. SB 216 also changes the conditions under which a veterinarian may burn waste. 

The adopted amendment revises paragraph (3) by replacing the current language with a reference 

to amended Texas Occupations Code, §801.361. This provides an exception to the prohibition of 

outdoor burning by veterinarians in accordance with Texas Occupations Code, §801.361. 

-1-
In compliance with House Bill 3061, 78th Legislature, 2003, this rule was developed in 

cooperation with and was approved by the Texas Animal Health Commission on May 25, 2004. 

The commission simultaneously adopts in this issue of the Texas Register an amendment to 30 TAC 

§330.4, Permit Required. 

SECTION DISCUSSION 

The amendment to§ 111.209, Exception for Disposal Fires, is necessary to make commission rules 

consistent with the burning revisions provided by SB 216. The amendment revises paragraph (3) 

by removing the current language and replacing it with a reference to amended Texas Occupations 

Code, §801.361. This amendment modifies the exception to the prohibition of outdoor burning 

relating to burning by veterinarians to make it consistent with Texas Occupations Code, §801.361. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements 

of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to 

§2001.0225 because it does not meet the definition of a "major environmental rulen as defined in 

that statute. The amendment to§ 111.209 is only intended to make existing commission rules 

consistent with the new legislative changes made to the Texas Occupations Code, and the adopted 

rule does not adversely affect in a material way the economy, productivity, competition, jobs, the 

environment, or the public health and safety of the state or a sector of the state. lherefore, the 

adopted amendment does not qualify as a "major environmental rule." Furthermore, the analysis 

required by Texas Government Code, §2001.0225(c) does not apply because the rule does not 

meet any of the four applicable requirements of a major environmental rule. The rule does not 

exceed a standard set by federal law, exceed an express requirement of state law, exceed a 

-2-
requirement of a delegation agreement, or adopt a rule solely under the general powers of the 

agency. The rule is adopted specifically to make commission rules consistent with SB 216 and 

does not exceed the requirements of that bill. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the rule and performed an assessment of whether the rule constitutes a 

takings under Texas Government Code, Chapter 2007. The specific purpose of the adopted rule is 

to make existing commission rules consistent with the new legislative changes made to the Texas 

Occupations Code by SB 216. The rule substantially advances this purpose by replacing existing 

language with a reference to the Texas Occupations Code as amended by SB 216. Promulgation 

and enforcement of the adopted rule is neither a statutory nor a constitutional taking of private real 

property. Specifically, the rule does not affect private real property rights because it does not 

burden, restrict, or limit an owner's property rights that would otherwise exist in the absence of the 

regulation. The rule actually expands the allowable uses of a veterinarian's private real property 

except those veterinarians in a municipality that is within a county of 10,000 or fewer people. The 

adopted rule does not meet the definition of a takings under Texas Government Code, 

§2007 .002(5). 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the rulemaking and found that the adopted rule 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 

-3-
rule in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §505.22 and 

found that the rulemaking is consistent with the applicable CMP goals and policies. 

The CMP goals applicable to the rule include: to protect, preserve, restore, and enhance the 

diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound 

management of all coastal resources by allowing for compatible economic development and 

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

enjoyment of the coastal zone in a manner that is compatible with private property rights and other 

uses of the coastal zone; and to balance these competing interests. 

CMP policy applicable to the rule is 31 TAC §501.14(q), which states that commission rules under 

Texas Health and Safety Code, Chapter 382, governing emissions of air pollutants, shall comply 

with regulations in Code of Federal Regulations, Title 40, adopted in accordance with Clean Air 

Act, 42 United States Code Annotated, §§7401, et seq., to protect and enhance air quality in the 

coastal area so as to protect coastal natural resources areas and promote the public health, safety, 

and welfare. 

Promulgation and enforcement of the rule does not violate or exceed any standards identified in 

the applicable CMP goals and policies. The adopted rule is consistent with these CMP goals and 

policies. The rule does not create or have a direct or significant adverse effect on any coastal 

natural resource areas. 

-4-
PUBLIC COMMENT 

The commission conducted a public hearing on the rulemaking on June 24, 2004, in Austin. The 

Texas Veterinary Medical Association (TVMA) commented at the hearing. During the public 

comment period, which closed on June 28, 2004, the commission received written comments from 

TVMA, EPA, and Senator Judith Zaffirini. EPA stated no objection to the proposed amendment to 

§ 111.209, TVMA stated support of the changes to Chapter 111, while Senator Zaffirini only 

commented on the amendment to §330.4. 

RESPONSE TO COMMENTS 

TVMA stated support of the changes to Chapter 111. EPA stated no objection to the amendment to 

§ 111.209 as a revision to the SIP and noted that the revisions in this rulemaking reference Texas 

Occupational Code, §801.361, which will be included by reference in the SIP revision. 

The commission appreciates these comments. 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

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

§382.012, which provides the commission the authority to develop a comprehensive plan for the 

state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy 

and purposes of the TCAA; §382.018, which authorizes the commission to control outdoor 

burning; and §382.085, which prohibits unauthorized air emissions; and Texas Water Code, 

§5.1 03, which authorizes the commission to adopt rules. 

-5-
STAFF 

RECOMMENDATIONS 
CHAPTER 111: CONTROL OF AIR POLLUTION FROM VISIBLE 

EMISSIONS AND PARTICULATE MATIER 

SUBCHAPTER B: OUTDOOR BURNING 

§111.209 

§ 111.209. Exception for Disposal Fires. 

Outdoor burning shall be authorized for the following. 

(1) Domestic waste burning at a property designed for and used exclusively as a 

private residence, housing not more than three families, when collection of domestic waste is not 

provided or authorized by the local governmental entity having jurisdiction, and when the waste is 

generated only from that property. Provision of waste collection refers to collection at the premises 

where the waste is generated. The term "domestic waste" is defined in § 101.1 of this title (relating 

to Definitions). Wastes normally resulting from the function of life within a residence that can be 

burned include such things as kitchen garbage, untreated lumber, cardboard boxes, packaging 

(including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples of wastes 

not considered domestic waste which cannot be burned, include such things as tires, non-wood 

construction debris, furniture, carpet, electrical wire, and appliances. 

(2) Diseased animal carcass burning when burning is the most effective means of 

controlling the spread of disease. 

(3) Veterinarians in accordance with Texas Occupations Code, §801.361, Disposal 

of Animal Remains. 

-1-
(4) On-site burning of trees, brush, and other plant growth for right-of-way 

maintenance, landclearing operations, and maintenance along water canals when no practical 

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

Structures containing sensitive receptors must not be negatively affected by the burn. Such burning 

shall be subject to the requirements of §111.219 ofthis title (relating to General Requirements for 

Allowable Outdoor Burning). When possible, notification of intent to burn should be made to the 

appropriate commission regional office prior to the proposed burn. For a single project entailing 

multiple days of burning, an initial notice delineating the scope of the burn is sufficient if the scope 

does not constitute circumvention of the rule for a continual burning situation. Commission 

notification or approval is not required. 

(5) Crop residue burning for agricultural management purposes when no practical 

alternative exists. Such burning shall be subject to the requirements of§ 1 1 1.219 of this title, and 

structures containing sensitive receptors must not be negatively affected by the burn. When 

possible, notification of intent to burn should be made to the appropriate commission regional 

office prior to the proposed burn. Commission notification or approval is not required. This 

section is not applicable to crop residue burning covered by an administrative order. 

(6) Brush, trees, and other plant growth causing a detrimental public health and 

safety condition may be 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§ 1 11.215 of this title (relating to Executive Director Approval of Otherwise Prohibited 

Outdoor Burning), and shall be subject to the requirements of§ 1 1 1.219 of this title. 

-2-
La. . f!8 Ca~nuela, Chi~ e1:ntal Quality 

ORDER ADOPTING AMENiiJm~'1~ . 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2004-0006-RUL 

On October 27, 2004, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended §111.209 and §330.4. The commission adopts these amendments, in 

Title 30 T AC Chapter 111, concerning Control of Air Pollution from Visible Emissions and Particulate Matter 

along with its corresponding revisions to the state implementation plan (SIP); and 30 TAC Chapter 330, 

concerning Municipal Solid Waste, which does not revise the SIP. These amendments reference Texas 

Occupations Code, § 801.361, Disposal of Animal Remains. Under Texas Health & Safety Code Ann. 

§§382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the authority to control the quality of the 

state's air and to issue orders consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 

of the Texas Health & Safety Code. In addition, under Texas Health & Safety Code Ann. §361.011 and 

§361.024 (Vernon 2001), the Commission has the authority to adopt rules necessary to carry out its powers and 

duties under the Texas Solid Waste Disposal Act. The proposed rules were published for comment in the May 

28, 2004 issue of the Texas Register (29 TexReg 5276). 

Pursuant to Texas Health & Safety Code Ann. §382.017 (Vernon 2001), Texas Government Code, 

Chapter 2001 (Vern on 2000 & Vernon Supp. 2001) and 40 Code of Federal Regulations §51.1 02 and after proper 

notice, the Commission conducted a public hearing to consider the amendments and revisions to the SIP. Proper 

notice included prominent advertisement in the areas affected at least 30 days prior to the date of the hearing. 

A public hearing was held in Austin, Texas on June 24, 2004. 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the United States Environmental Protection Agency (EPA), and all 

applicable local air pollution control agencies. The public was invited to submit data, views, and 

recommendations on the proposed amended rules and SIP revisions, either orally or in writing, at the hearing 

or during the comment period. Prior to the scheduled hearing, copies of the proposed amended rules and SIP 

revisions were available for public inspection at the Commission's central office and regional offices. 

Data, views, and recommendations of interested persons regarding the proposed amended rules and SIP 

revisions were submitted to the Commission during the comment period, and were considered by the Commission 

as reflected in the analysis of testimony incorporated by reference to this Order. The Commission finds that the 

analysis of testimony includes the names of all interested groups or associations offering comment on the 

proposed amended rules and the SIP revisions and their position concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions to the 

SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff to 

make any non-substantive revisions to the rules necessary to comply with Texas Register requirements. The 

adopted rules and the preamble to the adopted rules and the revisions to the SIP are incorporated by reference 

in this Order as if set forth at length verbatim in this Order. 
Order Adopting Amended Rules and Revisions to the state implementation plan 

Page 2 

Re: Docket No. 2004-0006-RUL 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions 

to the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes 

staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 

requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are 

incorporated by reference in this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, 

to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal 

Clean Air Act, §110, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Texas Government Code, §2001.033. 

If any portion of this Order is for any reason held to be invalid by a court of competent 

jurisdiction, the invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: NOV 0 J 2004 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 
Board of Examiners of Prof ssional Counselors with the authority to adopt rules concerni the regulation of licensure of professional counselors that a reasonably necessary to properly 

perform its duties under thi Act. 

This agency hereby certifie that the adoption has been reviewed 

by legal counsel and found o be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on November 1, 

2004. 

TR D-200406569 

Judith Powell 

Chairperson 

Texas State Board of Examine of Professional Counselors 

Effective date: November 21, 2 04 

Proposal publication date: Aug st 6, 2004 

For further information, please all: (512) 458-7236 

• • • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 111. CONTROL OF AIR 

POLLUTION FROM VISIBLE EMISSIONS AND 

PARTICULATE MATTER 

SUBCHAPTER B. OUTDOOR BURNING 

30 TAC § 111.209 

Texas Commission on Environmental Quality (commission) 

adopts the amendment to §111.209. Section 111.209 is 

adopted without change to the proposed text as published in 

the May 28, 2004 issue of the Texas Register (29 TexReg 5276) 

and will not be republished. 

The amendment is being adopted as a revision to the Texas state 

implementation plan, which will be submitted to the United States 

Environmental Protection Agency (EPA). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULE 

A bill from the 77th Legislature, 2001 amended Texas Occupations Code, §801.361, Disposal of Animal Remains and allowed 

the burning of animal remains if the burning occurred in a county 

with a population of less than 10,000, on property owned by the 

veterinarian, and the veterinarian did not charge for disposal. 

This bill did not allow the burning of associated medical waste. 

This rulemaking implements a subsequent amendment to Texas 

Occupations Code, §801.361. Senate Bill (SB) 216, 78th Legislature, 2003, amended Texas Occupations Code, §801.361, 

by allqwing veterinarians to burn animal remains and associated medical waste. Associated medical waste includes: animal 

waste, blood, gloves, sleeves, newspapers, and plastic bags, 

but does not include sharps. SB 216 also changes the conditions under which a veterinarian may burn waste. The adopted 

amendment revises paragraph (3) by replacing the current language with a reference to amended Texas Occupations Code, 

§801.361. This provides an exception to the prohibition of outdoor burning by veterinarians in accordance with Texas Occupations Code, §801.361. 

In compliance with House Bill 3061, 78th Legislature, 2003, this 

rule was developed in cooperation with and was approved by the 

Texas Animal Health Commission on May 25, 2004. The commission simultaneously adopts in this issue of the Texas Register 

an amendment to 30 TAG §330.4, Permit Required. 

SECTION DISCUSSION 

The amendment to §111.209, Exception for Disposal Fires, is 

necessary to make commission rules consistent with the burning revisions provided by SB 216. The amendment revises paragraph (3) by removing the current language and replacing it with 

a reference to amended Texas Occupations Code, §801.361. 

This amendment modifies the exception to the prohibition of outdoor burning relating to burning by veterinarians to make it consistent with Texas Occupations Code, §801.361. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the rulemaking is not subject 

to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. The amendment to §111.209 is only intended to make existing commission 

rules consistent with the new legislative changes made to the 

Texas Occupations Code, and the adopted rule does not adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety 

of the state or a sector of the state. Therefore, the adopted 

amendment does not qualify as a "major environmental rule." 

Furthermore, the analysis required by Texas Government Code, 

§2001.0225(c) does not apply because the rule does not meet 

any of the four applicable requirements of a major environmental rule. The rule does not exceed a standard set by federal law, 

exceed an express requirement of state Jaw, exceed a requirement of a delegation agreement, or adopt a rule solely under the 

general powers of the agency. The rule is adopted specifically 

to make commission rules consistent with SB 216 and does not 

exceed the requirements of that bill. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the rule and performed an assessment of whether the rule constitutes a takings under Texas 

Government Code, Chapter 2007. The specific purpose of the 

adopted rule is to make existing commission rules consistent 

with the new legislative changes made to the Texas Occupations 

Code by SB 216. The rule substantially advances this purpose 

by replacing existing language with a reference to the Texas 

Occupations Code as amended by SB 216. Promulgation and 

enforcement of the adopted rule is neither a statutory nor a 

constitutional taking of private real property. Specifically, the 

rule does not affect private real property rights because it does 

not burden, restrict, or limit an owner's property rights that 

would otherwise exist in the absence of the regulation. The rule 

actually expands the allowable uses of a veterinarian's private 

real property except those veterinarians in a municipality that 

is within a county of 10,000 or fewer people. The adopted 

rule does not meet the definition of a takings under Texas 

Government Code, §2007.002(5). 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

ADOPTED RULES November 12, 2004 29 TexReg 10515 
The commission reviewed the rulemaking and found that the 

adopted rule is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, 

Texas Natural ResouR::es 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 rule in accordance with Coastal Coordination Act 

Implementation Rules, 31 TAG §505.22 and found that the rulemaking is consistent with the applicable CMP goals and policies. 

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

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

coastal zone; to ensure and enhance planned public access to 

and enjoyment of the coastal zone in a manner that is compatible 

with private property rights and other uses of the coastal zone; 

and to balance these competing interests. 

CMP policy applicable to the rule is 31 TAG §501.14(q), which 

states that commission rules under Texas Health and Safety 

Code, Chapter 382, governing emissions of air pollutants, shall 

comply with regulations in Code of Federal Regulations, Title 

40, adopted in accordance with Clean Air Act, 42 United States 

Code Annotated, §§7 401, et seq., to protect and enhance 

air quality in the coastal area so as to protect coastal natural 

resources areas and promote the public health, safety, and 

welfare. 

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

policies. The adopted rule is consistent with these CMP goals 

and policies. The rule does not create or have a direct or significant adverse effect on any coastal natural resource areas. 

PUBLIC COMMENT 

The commission conducted a public hearing on the rulemaking 

on June 24, 2004, in Austin. The Texas Veterinary Medical Association (TVMA) commented at the hearing. During the public 

comment period, which closed on June 28, 2004, the commission received written comments from TVMA, EPA, and Senator 

Judith Zaffirini. EPA stated no objection to the proposed amendment to§ 111.209, TVMA stated support of the changes to Chapter 111, while Senator Zaffirini only commented on the amendment to §330.4. 

RESPONSE TO COMMENTS 

Comment 

TVMA stated support of the changes to Chapter 111. EPA stated 

no objection to the amendment to §111.209 as a revision to the 

SIP and noted that the revisions in this rulemaking reference 

Texas Occupational Code, §801.361, which will be included by 

reference in the SIP revision. 

Response 

The commission appreciates these comments. 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.011, which authorizes 

the commission to administer the requirements of the TCAA; 

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

authorizes the commission to adopt rules consistent with the 

policy and purposes of the TCAA; §382.018, which authorizes 

the commission to control outdoor burning; and §382.085, 

which prohibits unauthorized air emissions; and Texas Water 

Code, §5.1 03, which authorizes the commission to adopt rules. 

This agency hereby certifies that the adoption has been reviewed 

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

legal authority. 

Filed with the Office of the Secretary of State on October 29, 

2004. 

TRD-200406487 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: November 18, 2004 

Proposal publication date: May 28, 2004 

For further information, please call: (512) 239-6087 

• 

CHAPTER 114. 

• 

POLLUTION FROMM OR VEHICLES 

SUBCHAPTER I. NO ROAD ENGINES 

·DIVISION 6. LAWN S RVICE EQUIPMENT 

OPERATING RESTRIC ONS 

30 TAC §114.452, §114.459 

The Texas Commission on Env onmental Quality (commission) 

adopts the repeal of §114.452 nd §114.459. Sections 114.452 

and 114.459 are adopted with ut changes as published in the 

June 11, 2004 issue of the Tex s Register (29 TexReg 5736). 

Repealed §114.452 and §114. 59 and the corresponding revisions to the state implementati plan (SIP) will be submitted to 

the United States Environment I Protection Agency (EPA) as a 

revision to the SIP. 

BACKGROUND AND SUMM Y OF THE FACTUAL BASIS 

FOR THE ADOPTED REPEAL 

The Houston/Galveston/Braze a (HGB) ozone nonattainment 

area is classified as Severe-17 nder the Federal Clean Air Act 

Amendments of 1990 (42 Unit d States Code (USC), §§7401 

et seq.), and therefore, is requi d to attain the one-hour ozone 

standard of 0.12 parts per milli n by November 15, 2007. The 

HGB area, defined by Brazori , Chambers, Fort Bend, Galveston, Harris, Liberty, Montgo ery, and Waller Counties, has 

developed a demonstration of attainment in accordance with 

42 USC, §7410. The most rei tive HGB SIP revisions to date 

are the December 2000 one- ur ozone standard attainment 

demonstration, the September 001 follow-up revision, and the 

December 2002 nitrogen oxid s (NO,)/highly-reactive volatile 

organic compound (HAVOC) r ision. 

This process has proven to be allenging due to the magnitude 

of reductions needed for attain ent. The emission reduction requirements included as part of e December 2000 SIP revision 

represent substantial, intensive 3fforts on the part of stakeholder 

coalitions in the HGB area to a jdress ozone. These coalitions, 

which include local government ~I entities, elected officials, environmental groups, industry, co sultants, and the public, worked 

diligently with EPA and the co 1mission to identify and quantify 

29 TexReg 10516 November 12, 2004 Texas Register