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

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducingandPreventingPollution 

### Docket No. 2004-0006-RUL



### November 15, 2004

Richard E. Greene, Regional Administrator U.S. Environmental Protection Agency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 Dear Mayor Greene: On October27, 2004, the Texas Commission onEnvironmental Quality (Commission) adopted arevisionto the state implementationplan (SIP). The Commission adopted an amendment to §

### 111.209, Exception for Disposal Fires, in 30 TAC Chapter 111, Control ofAir 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 ofAnimal Remains, which allows veterinarians to burn animal remains. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearing, and the accompanying order. I look forward to your expeditious approval ofthis SIP revision. Sine rely,

K thleen Hartnett White
(....,) 

### KHW/pd Enclosures

cc: The Honorable Rick Perry, Governor ofTexas ::> .:-;::**~**..**,~ ~·"-;**  \.._1**;-.~:.. ~--**  :_ J.>..**~:..,_** :Z:, -' r·: :z::**:~~:-~**



### Ms. Wendy Wyman, Environmental and Natural Resources Policy Director, Office ofthe 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 STATEOFTEXAS § 

### COUNTY OF TRAVIS §



### This is to certify that the attached are true and correct copies ofdocuments for revisions to the Texas State Implementation Plan, adopted onOctober 27, 2004, in accordance with 40 Code ofFederal Regulations §

### 51.104. Iamthe records administrator forthe Policy and Regulations Divisionofthe Texas Commission on Environmental Quality.

ecords Administrator, Policy and Regulations Division Texas Commission on Environmental QualityTexas Commission on Environmental Quality Public Hearing June 24, 2004 Austin, Texas 30 TAC Chapter 111 and the State Implementation Plan Rule Project Number 2004-003-330-WSINTRODUCTION

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 Eatthe commission's Central Office located at Park 35 Circle, to receive testimony regarding revisions to 30 TAC Chapter 111, Control ofAir Pollution from Visible Emissionsand Particulate Matter; and corresponding revisionstothe state implementation plan.

The amendmentto §111.209and corresponding revisions tothe 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 june28, 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 ofTestimony

• Staff Recommendations

Additional copies ofthis 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 PROPOSALPUBLIC NOTIFICATION

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

1. Publication ofthe 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 Registerofthe 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 ofthe House Lieutenant Governor Alamo Area Council ofGovernments Arkansas Department of Pollution Control and Ecology City ofAustin Mayor Bastrop CountyJudge City of Bastrop Mayor Bexar CountyJudge Caldwell CountyJudge Capital Area Planning Council Chambers County JudgePublic Notification Page 2 City of Dallas, Department ofAviation City of Dayton City of Houston Carnal CountyJudge Dallas Environmental and Health Services East Texas Council ofGovernments City of Elgin Mayor El Paso City-County Health Environmental District El Paso Metropolitan Planning Organization Federal Highway Administration City of Floresville Mayor FortWorth Environmental Management Department Galveston County Health District City of Gilmer Mayor Gregg County Judge Guadalupe County Judge Harris CountyJudge Harris County Pollution Control Department Harrison Countyjudge Hays CountyJudge City of Henderson Mayor Houston Department of Health and Human ServicesPublic Notification Page 3 Houston-Galveston Area Council City of Kilgore Mayor Liberty Countyjudge 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 ofGovernments Oklahoma Department of Environmental Quality City of Round Rock Mayor Rusk CountyJudge City of San Antonio Mayor City ofSan Marcos Mayor City Council ofSeguin City ofSeguin Mayor Smith Countyjudge South East Texas Regional Planning Commission Texas Department ofTransportation Texas Transportation InstitutePublic Notification Page4 Travis Countyjudge City ofTyler Mayor United States Environmental Protection Agency Upshur Countyjudge Victoria Metropolitan Planning Organization Waller CountyJudge Williamson County Commissioner Williamson Countyjudge Wilson Countyjudge

### 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 ofthe 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; AustinRegional Office, 1921 Cedar Bend Drive, Suite 150, Austin, Texas 78758-5336, (512) 339- 2929; andDallas-FortWorthRegional Office, 2301 Gravel Drive, FortWorth, Texas 76118-6951, (817) 588-5800. TRD-200403363 Paul C. Sarahan Director, Litigation Division Texas Commission on Environmental Quality Filed: May 18, 2004

# • • • Notice ofPublic Hearing on Proposed Revisions to 30TAC Chapter 111, Control ofAirPollution from Visible Emissions andParticulate Matter, and Chapter 330,Municipal Solid Waste The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive comments concerningrevisions to 30 TAC §111.209, Exception for Disposal Fires; §330.4, Permit Required; and correspondingrevisions to the Texas state implementation plan (SIP) under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 CodeofFederalRegulations, §51.102 ofthe United StatesEnvironmental Protection Agency regulations concerning SIPs. The amendmentto §111.209 is proposed as a revision to the SIP. TheproposedrulemakingwouldconformagencyruleswithSenateBill 216,78thLegislature,2003, which allowsveterinarianstobumorbury 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 oforal or written comments by interested persons. Individuals may present oral statements when called upon in order ofregistration. There will be no open discussion during the hearing; however, an agency staffmember will be available to discuss the proposal 30 minutespriorto the hearing and will answerquestions before and after the hearing. Persons with disabilities who have special communication orotheraccommodationneedswho areplanningtoattendthehearing shouldcontact the Office ofEnvironmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible. Commentsmaybe submittedto PatriciaDuron,Texas Commission on Environmental Quality, Office ofEnvironmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or by fax to (512) 239-4808. All comments shouldreferenceRule Project Number2004-003-330-WS. Commentsmustbereceivedby 5:00p.m., June 28, 2004. For further information, please contactEmily 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 ofWater Quality Applications The following notices were issued during the period ofMay 3, 2004 through May 12, 2004. The followingrequirethe applicantstopublishnoticeinthenewspaper. The public commentperiod, requests for public meetings, orrequests foracontestedcasehearingmaybe submittedto the Officeofthe Chief Clerk, Mail Code 105, P 0 Box 13087, Austin Texas 78711- 3087, WITHIN30DAYS OFTHEDATE OFNEWSPAPERPUBLICATION OF THIS NOTICE. AQUA WATER SUPPLY CORPORATION has applied for a renewal ofTPDESPermitNo. WQ0014226001,whichauthorizesthe discharge offilter 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 ofthe intersectionofFarm-to-Market Road 1624 and County Road 322, and approximately 2.4 miles southeast ofthe intersection ofFarm-to-Market Road 696 and County Road 309 in Lee County, Texas. BAYVIEW MUNICIPAL UTILITY DISTRICT has applied for arenewal ofTPDES Permit No. 10770-001, which authorizes the discharge oftreated domestic wastewater at a daily average flow notto exceed 300,000 gallons per day. The facility is located at 3206 State Highway 146, approximately 1200 feet westofStateHighway 146 and 5,500 feet north ofthe intersection ofFarm- 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 ofTPDESPermitNo. 10351- 001, which authorizes the discharge oftreated 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-northwestof Lake Belton Dam, north ofFarm-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 ofthe intersection ofState Highway95 and Farm-to-MarketRoad 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-acrePark and GolfCourse to a 21.36-acre non-public access pastureland. Thecurrentpermitauthorizesthedisposaloftreateddomestic wastewaterat adailyaverageflownottoexceed40,000gallonsperday via surface irrigation of36 acres ofa Park and GolfCourse. This permitwill not authorizea discharge ofpollutantsinto watersin the State. The facility is locatedapproximately 2,000 feet south-southwestofthe intersectionInterstateHighway 15 andFarm-to-MarketRoad2248,immediately east ofthe Town ofDarrouzettin Lipscomb County, Texas. The disposal site is located approximately 500 feet south-southwestof the intersection ofInterstate Highway 15 and Farm-to-Market Road 2248, eastofthe Town ofDarrouzett in Lipscomb County, Texas. DRIPPING SPRINGS APARTMENTS, L.P. has applied for a renewal ·ofPermitNo. 14146- 00I, which authorizes the disposal oftreateddomestic wastewater at a daily average flow not to exceed 0.014 gallons perdayviasubsurfacedrip irrigationon3.57 acres ofnon-publicaccess land. This permit will not authorize a discharge ofpollutants into waters in the State. Thefacility anddisposal site are located on the north side ofU.S. Route 290, approximately 13,000 feet west along U.S.



### INADDITION 

### May 28, 2004 29 TexReg 5437(4) iscurrentlyreceivi gMedicaidforYouthTransitioning Out ofFosterCare (Transitional dicaid)becausehe orshe formerly receivedfostercarethroughTDFP [IDPRS]andwas underthefinancial responsibility ofTDFPS [ ]; or (5) (No change.) This agency herebycertifiestha the proposal has been reviewed by legalcounsel andfound to b withinthe agency's legal authority to adopt. Filed with the Office ofthe Sec tary ofState on May 14, 2004. TRD-200403279 Rodolfo Arredondo Chairman, Texas MHMR Board Texas Department ofMental Heal! Earliest possible date ofadoption: For further information, please call: (512) 206-4516 

# • • TITLE30. ENVIRONMENTAL QUALITY 

## PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 111. CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER SUBCHAPTERB. 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 rulemaking implements a subsequent amendmentto 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 medicalwaste. Associated medical waste includes: animal waste, blood, gloves, sleeves, newspapers, and plastic bags, but does not include sharps. SB 216 also changes the conditions underwhich aveterinarian 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 TexReg5276 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 December2, 2003. The commission simultaneously proposes in this issue of the Texas Registerthe 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 itwith a reference to amendedTexas Occupations Code, §801.361. This amendment will modifythe exception tothe prohibition ofoutdoor burning relating to burning byveterinariansto 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 10,000; and 3) the veterinarian does notchargeforthe 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 municipalityorwithin the corporate boundaries ofa municipality as a result ofan annexation thatoccurred on or afterSeptember 1, 2003, and the veterinarian may charge for the disposal. Ms. Washburn also determined thatthere will be no fiscal impactto 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 asthe amendmentwill onlyapplyto property outside the corporate boundaries of a municipality. This rule is expected to benefitveterinarians becausethey may dispose ofanimals on theirown property, which will save them approximately $25 to $250 per animal. SMALL BUSINESSAND MICRO-BUSINESS ASSESSMENT Ms. Washburn also determined that there will be no significant fiscal implicationsto small or micro-businesses asa result ofimplementation ofthe proposed amendmentforthe firstfive years it is in effect. The proposed amendmentwill allowveterinariansto 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 ofa municipality orwithin the corporate boundaries ofa municipality as a result ofan annexation thatoccurred 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 STATEMENTThe 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 Thecommission reviewed the proposedrulemaking in lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determinedthatthe proposed rulemaking is not subjectto §2001.0225 because itdoes not meetthedefinition of a "major environmental rule" as defined in thatstatute. The proposed amendment to §111.209 is only intended to make existing commission rules consistentwiththe newlegislativechanges madetotheTexas Occupations Code, and the proposed rulewill not adversely affect in a material way the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. 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 ofthe fourapplicable requirements ofa majorenvironmental rule. The proposed rule does not exceed a standard set byfederal law, exceed an express requirement ofstate law, exceed a requirement ofa delegation agreement, oradopt a rule solely underthe general powers ofthe agency. The rule is proposed specifically to make commission rules consistentwith SB216 and does notexceed the requirements ofthatbill. Thecommission invites public commenton the draft regulatory impact analysis determination. TAKINGS IMPACT ASSESSMENT The commission evaluated the proposed rule and performed an assessment ofwhetherthe proposed rule constitutes a takings underTexas GovernmentCode, Chapter2007. Thespecificpurpose ofthe 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 advancethis purpose by replacing existing languagewith a reference to the Texas Occupations Code amended by SB 216. Promulgation and enforcement ofthe proposed rule will be neithera statutorynoraconstitutionaltaking ofprivate real property. Specifically, the proposed rule will not affect private real property rights because itwill not burden, restrict, or limit an owner's property rightswhichwould otherwiseexist in the absenceofthe 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 meetthe 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 thatthe proposal is subjecttothe Coastal ManagementProgram (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 consistentwith the applicable CMP goalsand 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 ofthe coastal zone; to ensure and enhance planned public access to and enjoyment ofthe coastal zone in a manner that is compatible with private property rights and other uses ofthe coastal zone; and to balancethese competing interests. CMP policyapplicabletothe proposed rule is31 TAG§501.14(q), which states that TCEQ rules under Texas Health and Safety Code, Chapter 382, governing emissions ofair pollutants, shall complywith regulations in Code ofFederal Regulations, Title 40, adopted in accordancewith CleanAirAct, 42 United States Code Annotated, §§7401, etseq, toprotect and enhance airquality in the coastal area so asto protect coastal natural resources areas and promote the public health, safety, and welfare. Promulgation and enforcement ofthe 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 adirect orsignificant adverse effecton any coastal natural resource areas. Written commentsonthe consistency ofthis rulemaking.may be submitted to the contact person atthe address listed under the SUBMITIAL OF COMMENTS section ofthis 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 oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Therewill be noopen discussionduringthe hearing; however, an agencystaff memberwill be availableto discussthe proposal 30 minutes priorto the hearing and will answer questions before and after the hearing. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact 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 ofEnvironmental Policy, Analysis, and Assessment,Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed 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. Forfurther information, please contact Phil Harwell ofthe 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 authorizesthe commissionto adopt rules consistentwith the policy and purposes of the TCAA; §382.018, which authorizes the



### PROPOSEDRULES May 28, 2004 29 TexReg 5277commission 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 ofAnimal Remains. §111.209. ExceptionforDisposalFires. Outdoorburning shall be authorized forthe following. ['] (I)- (2) (No change.) (3) Veterinarians in accordance with Texas Occupations Code, §801.361, Disposal ofAnimal Remains. [Ammahemaffisbumffig bya veteriftarillfl if thetrummgiseeftduetedooprepeFtyewBed by the Yeterinarillfl; the prepeFty is in a eelHlty with a peplilatieft efless thaD**~** and the '>'eteriBarillfl dees netehaFge feF the bumiftg; Allimall'eH!tlffis refefteananimal thatdies inthe eareefthe**·~eteriftarian** and deesnetffieffide any ethef typeefmedieal waste.] (4)- (6) (No change.) This agencyherebycertifiesthattheproposal has been reviewed by legal counsel and found to bewithin the agency's legalauthority to adopt. Filed with the Office ofthe SecretaryofState on May 14, 2004. TRD-200403268 Stephanie Bergeron Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: June27, 2004 Forfurther 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 dmentto §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 ifthe 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 notallowthe 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 1prevails over anyother 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 Registerthe amendme t to 30 TAC §111.209, Exception for Disposal Fires. SECTION DISCUSSION The commission proposes to mend §330.4(c), (g), and (x) in orderto conform with current rmatting standards. In proposed subsection (c) "MSWLF" will b revised to "MSW landfill facility." In subsection (g) thetitles of§ 330.150- 330.159 are proposed to be listed individually, and t e title ofthe 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 onlywith §111.209(3). Paragraphs (1)- (9) ofthis 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 ofstate 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 notcharge forthe 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 orwithin the corp rate boundaries of amunicipality as a resultofan annexation t t occurred on or after September 1, 2003, and the veterinarian ay now charge forthe disposal. Ms. Washburn also determin thattherewill be nofiscal impact to units of local governmenta a result ofthe proposed amendment. PUBLIC BENEFITS AND CO TSMs. Washburn determined that for the first five years the proposed amendment is in effect, the anticipated public benefit will be minimal asthe amendmentwill only applyto propertyoutside the corporate boundaries ofa municipality. This rule is expected to benefitveterinarians because they may dispose ofanimals 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 amendmentwill allowveterinarians 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 outsidethe corporate boundaries ofa municipality orwithin the corporate boundaries ofa municipalityas a resultofan annexation thatoccurred 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 Thecommission reviewed the proposed rulemaking in lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meetthe definition ofa "majorenvironmental rule" as defined in the statute. Furthermore, it does not meetany ofthe four applicability requirements listed in §2001.0225(a). A "majorenvironmental 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 materialway the economy, a sectoroftheeconomy, productivity, competition,jobs,the environment, orthe public health and safety of the state or a sector of the state. This rulemaking proposesto 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 underTexas Occupations Code, §801.361 must comply only with §111.209(3). This proposal does not qualifyas a majorenvironmental rule because it does nothave as its specific intentthe protection ofthe environment orthe reduction of risk to human health from environmental exposure. The specific intent ofthis 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, adraft 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 notexceed the requirements ofthis 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 ofthis proposed rule in accordance with Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose ofthe proposed rulemaking is to implement SB 216. The proposed rule implementsthe provisionsofSB 216, which modified the requirementsapplicableto veterinarianswho wish to dispose ofanimal remains and associated medicalwaste 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 underwhich aveterinarian maydispose of animal remains and associated medical waste without TCEQ authorization. Therefore, the proposed rule will not constitute a taking underTexas 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 notsubjectto 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 oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Therewill be noopen discussionduringthe hearing; however, an agencystaffmemberwill be availableto discussthe proposal 30 minutes prior to the hearing and will answer questions before and afterthe 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 ofEnvironmental Policy, Analysis, and Assessment, Texas Commission on EnvironmentalQuality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed 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 ofthe Waste Permits Division at (512) 239-6619 or Emily Barrett ofthe Policy and Regulations Division at (512) 239-3546. STATUTORY AUTHORITY



### PROPOSED RULES May 28, 2004 29 TexReg5279Kathleen HartnettWhite, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner Margaret Hoffman, ExecutiveDirector 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducingandPreventingPollution



### NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ONPROPOSED REVISIONS TO 30 TAC CHAPTERS 111 AND 330 The Texas Commission on Environmental Quality (commission) will conduct apublic hearing to receive comments concerning revisions to 30 TAC §111.209, Exception for Disposal Fires; §330.4, Permit Required; andcorrespondingrevisionstotheTexasstate implementationplan(SIP)undertherequirements ofTexas Health and Safety Code, §382.017; Texas GovernmentCode, 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. Theproposedrulemaking wouldconformagencyrules withSenateBill216, 78thLegislature, 2003, which allows veterinarians to burnorbury animals and associatedmedicalwaste providedcertainconditions are met. A public hearing on this proposal will be held in Austin onJune 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 receiptoforal orwrittencomments by interestedpersons. Individuals may presentoral statementswhencalledupon inorderofregistration. Therewillbe no opendiscussion during the hearing; however, anagency staffmemberwill be available to discuss the proposal 30 minutesprior to the hearing and will answer questions before and after the hearing. Personswithdisabilitieswhohave specialcommunicationorotheraccommodationneedswho areplanning 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 CommissiononEnvironmental Quality, Office of Environmental Policy, Analysis, andAssessment, MC 205, P.O. Box 13087, Austin, Texas78711-3087, or by fax to (512) 239-4808. All comments should reference Rule Project Number 2004-003-330-WS. Comments mustbe receivedby 5:00p.m., June 28, 2004. For further information, please contactEmily 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 ofAir 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 ProtectionAgency.

BACKGROUND AND SUMMARY OFTHE 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 ofanimal remains ifthe burning occurred in a county with a population ofless than 10,000, onproperty owned by the veterinarian, and the veterinarian did not charge for disposal. This bill did not allow the burning ofmedical 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 ofoutdoor burning by veterinarians in accordance with Texas Occupations Code, §801.361.

### Texas Commission onEnvironmental Quality Chapter 111

- Control ofAir 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 ofthe 

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

FISCAL NOTE: COSTS TO STATEAND 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 otherunit ofstate 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 bumorbury animal remains under three conditions: 1) the property is owned by the veterinarian; 2) the activity occurs only in counties with a population ofless than 10,000; and 3) the veterinarian does not charge for the burning orburial. Theproposed rule will allow veterinarians to bumorbury medical waste associated with the remains ofan animal, as well. However, this activity

### Texas Commission on Environmental Quality Chapter 111

- Control ofAir Pollution from Visible Emissions and Particulate Matter Rule Project No. 2004-003-330-WS Page 3

must now occur onproperty that is outside the corporate boundaries ofa municipality or within the corporate boundaries ofa municipality as a result ofan 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 oflocal government as a result ofthe 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 ofa municipality. This rule is expected to benefit veterinarians because they may dispose ofanimals on their ownproperty, 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 ofimplementation ofthe proposed amendment for the first five years it is in effect. The proposed amendment will allow veterinarians to dispose ofmedical 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 ofa municipality or within the corporate boundaries ofa municipality as a result ofan annexation that occurred on or after September 1, 2003. This may exclude some veterinarians in counties ofless than 10,000 from burning or burying animals who were previously allowed to burn orbury before SB 216, 78th Legislature, 2003 was enacted.

### Texas Commission onEnvironmental Quality Chapter 111

- Control ofAir 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 IMPACTANALYSIS DETERMINATION The commission reviewed the proposed rulemaking in light ofthe 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 ofa "majorenvironmental rule" as defined in that statute. Theproposed 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 ofthe state or a sector ofthe 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 ofthe four applicable requirements ofa major environmental rule. The proposed rule does not exceed a standard set by federal law, exceed an express requirement ofstate law, exceed a requirement ofa delegation agreement, or adopt a rule solely under the general powers ofthe agency. The rule is proposed specifically to make commission rules consistent with SB 216 and does not exceed the requirements of that bill. Thecommission invites public comment on the draft regulatory impact analysis determination.

### Texas Commission on Environmental Quality Chapter 111

- Control ofAir 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 ofwhether the proposed rule constitutes a takings under Texas Government Code, Chapter 2007. The specific purpose ofthe 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 ofthe proposed rule will be 

### neither a statutory nor a constitutional taking ofprivate real property. Specifically, the proposed rule will not affectprivate real property rights because it will not burden, restrict, or limit an owner'sproperty rights which would otherwise exist in the absence ofthe regulation. The proposed rule will actually expand the allowable uses ofa 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 ofa 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 CoordinationAct 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 ofAir 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 ofcoastal natural resource areas; to ensure sound management ofall coastal resources by allowing for compatible economic development and multiple human uses ofthe coastal zone; to ensure and enhance planned public access to and enjoyment ofthe coastal zone in a manner that is compatible with private property rights and otheruses ofthe 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 ofairpollutants, shall comply with regulations in Code ofFederal Regulations, Title 40, adopted in 

### accordance with Clean Air Act, 42 United States Code Annotated, §§7401, 

### et seq, to protectand enhance air quality in the coastal area so

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

Promulgation and enforcement ofthe rule will not violate orexceed 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 orhave a direct or significant adverse effect on any coastal natural

resource areas.

Written comments onthe consistency ofthis rulemaking may be submitted to the contactperson at the address listed under the SUBMITTAL OF COMMENTS section ofthis preamble.

### Texas Commission onEnvironmental Quality Chapter 111

- Control ofAir 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 onJune 24, 2004, at 10:00 a.m. at the Texas Commission onEnvironmental Quality complex in Building C, Room 131E, located at 12100 Park 35 Circle. The hearing will be structured for the receipt oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order ofregistration. There will be no open discussion during the hearing; however, an agency staffmember 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 ofEnvironmental 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 ofEnvironmental 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 ofthe Policy and Regulations Division at (512) 239-1517 or Emily Barrett ofthe Policy and Regulations Division at (512) 239-3546.

### Texas Commission onEnvironmental Quality Chapter 111

- Control ofAir Pollution from Visible Emissions and Particulate Matter Rule Project No. 2004-003-330-WS

SUBCHAPTERB: OUTDOORBURNING 

### §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 ofthe 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 ofWaste and Combustible Material; Texas Water Code, §5.103, concerning Rules; and Texas Occupations Code, §801.361, concerning Disposal ofAnimal Remains.



### §111.209. Exception for Disposal Fires.

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

### Texas Commission on Environmental Quality Chapter 111

- Control ofAir 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 ofdomestic waste is not provided or authorized by the local governmental entity havingjurisdiction, and when the waste is generated only from thatproperty. Provision ofwaste collection refers to collection at the premises where the waste is generated. The term "domestic waste" is defined in §101.1 ofthis title (relating to Definitions). Wastes normally resulting from the function oflife within a residence that canbe burned include such things as kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples ofwastes 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 ofcontrolling the spread ofdisease.

(3) Veterinarians in accordance with Texas Occupations Code, §801.361, Disposal ofAnimal Remains. [Animal remains burning by a veterinarian ifthe burning is conducted onproperty owned by the veterinarian; the property is in a county with a population ofless than 10,000; and the veterinarian does not charge for the burning. Animal remains refer to an animal that dies in the care ofthe veterinarian and does not include any other type ofmedical waste.]

(4) On-site burning oftrees, 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 ofAir 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 ofthis title (relating to General Requirements for Allowable Outdoor Burning). Whenpossible, notification ofintent to bum should be made to the appropriate commission regional office prior to the proposed bum. For a single projectentailing multiple days ofburning, an initial notice delineating the scope ofthe bumis sufficient ifthe scope does not constitute circumvention ofthe 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 ofthis title, and structures containing sensitive receptors must not be negatively affected by the bum. When possible, notification ofintent to bum should be made to the appropriate commission regional office prior to the proposed bum. Commission notification orapproval is not required. This section is not applicable to crop residue burning covered by an administrative order.

(6) Brush, trees, and otherplant growth causing a detrimental public health and safety condition may be burned by a county ormunicipal government at a site it

### owns upon receiving site and bum approval from the executive director. Such a bumcan only be authorized when there is no practical alternative, and it may be done no more frequently than once every two months. Suchburns cannot be conducted at municipal solid waste landfills unless authorized under §111.215 ofthis title

### Texas Commission on Environmental Quality Chapter 111

- Control ofAir Pollution from Visible Emissions and Particulate Matter Rule Project No. 2004-003-330-WS Page 11

(relating to Executive Director Approval ofOtherwise Prohibited Outdoor Burning), and shall be subject to the requirements of §

### 111.219 ofthis title.

# WRITTEN AND ORAL TESTIMONYReference 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 ofEnvironmentalPolicy,Analysis, andAssessment Texas CommissiononEnvironmentalQuality P.O. Box 13087 Austin, Texas**i~/11-3087**


### Re: Rule ProjectNumber 2004-003-330-WS

DearMs. Duron: ...... 

### ,..._, 

# = = ..:- <- c:: 

### :::z: N**~** :Po 

### :::::: C5



# .. N



### I amwriting this letter onbehalfoftheTexas Veterinary MedicalAssociation 

### (TVMA) in response to theTexas CommissiononEnvironmentalQuality's proposed amendments to 30 TAC §330.4. TVMA is opposedto the rule as proposed, as the net effectoftherule will be to preclude the burying ofcarcasses by veterinarians. SenateBill216was passed duringtheregular session oftheTexasLegislature in2003 to provide veterinarians with a means ofdisposing ofanimal carcasses by eitherburningor burying. Before the bill was passed,veterinarians (especially large animalpractitioners) were severely limited in theirmethods for disposing ofdead animals. In fact, inmanyinstances veterinarians hadonly onepracticalmeans ofcopingwith carcasses - sendingthemhome with the owner. But sending carcasses backhomewith the ownerhadits own set of disadvantages as owners were often slowin

### retrievingthe carcasses or failed to

### retrieve them ar ali. Inaud.icion, sending the**carcas~es** 

### home was apoorway ofproteccinghuman and animalhealth. Most such carcasses were almost certainly dumpedin a pasture andleft to be scavenged bywildlife. This method ofdisposalis far from ideal as the risk ofspreading disease is quite high. In surveyingits members, 

### TVMA has determined that thevast majority ofveterinarianswho dispose ofanimals attheir clinics (which 

### willactually be avery small percentage of veterinarians) will do so through burning. However, there will beinstances inwhich burning 

### will notbe an option, due for themostpart to weather conditions. In thoseinstances a veterinarian will be forced to bury a carcass. Andunlike the proposedrules onburning carcasses, the proposedrules for burial have a numberofcritenathatmust be met before· doing so. Infact, the proposedrules will holdveterinarian to the same standards as other entities that are disposing ofmunicipal solidwaste.

f:( TEXAS VETERINARIANS REACHING COMMON GOALS 

### tr 

## :0 

# m () 

# rn

### Requiringa veterinarian to meetthe same standards as commerciallandfills is costly and impractical. Unlike true landfillswhich are burying tons ofdebris, veterinarianswill 

### seldom actually bury carcasses. Forthatreason itdoes notmake financial sense for a veterinarianto go through the trouble andexpense ofhavinghis land surveyed and the deedrecordedinthe county andwithTCEQin ordertobury a few animals. Shouldtheproposedrule be adopted, itis highlyunlikely thatveterinarians 

### willmake use oftheburialprovisions ofSB 216. 

### Unfortunately, animalhealth and publichealth could suffer as a result. Withthe large number ofdisease outbreaksinanimals inTexas 

### inrecentmonths,itis clear thatthis is a growingproblem. One ofthe keys topreventing suchoutbreaks is the proper disposal ofdiseased animals. Allowing veterinarians who are.highly trained andeducated on these issues toproperlydispose ofanimalremains through burning and burialwill be of greatbenefittoboth animalandpublichealth andis the bestmethod for dealingwith this probiem. To require veterinarians ton1eenhe standardsiu the proposed rule: 

### will aliiw::>t 

### certainly preventveterinarians from burying animals atall. And, as stated above, the alternatives to veterinarians buryingcarcasses are notvery attractive. TVMA respectfullyrequests thatTCEQ notadoptthe proposedrule as currentlywritten. Thankyou foryour time and consideration. If

### you have any questions orwouldlike to discuss this further, please do nothesitate to contactme. Sincerely,

# ~ Chris Copelan General CounselUNITl ,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

Ihave received your letterto RebeccaWeber, dated May 12, 2004, regardingproposed revisions to 30 TAC §§ 111.209 and 330.4 concerning the disposal ofanimal remains, and your request for comments to the proposedchanges to §111.209 as a revision to the State Implementation Plan(SIP). Wehave no objection to the proposed amendmentto §111.209 as a revision to the SIP. I note that both §§ 111.209 and 330.4 reference §801.361 ofthe Texas Occupational Code, which will be included byreference in this SIP revision. Ifyou have any questions regarding this response, please contactJoe Kordzi at ofmy staff at (214) 665-7186.

cc: Ms. EmilyC. Barrett (TCEQ) Ms. PatriciaDuron (TCEQ) 

# V Sincerely yours,

# ~,&),~ Thomas H. 

### Diggs Chief AirPlanning Section

Internet Address (URL) • http://www.epa.gov Recycled/Recyclable • Prtnted wKh Vegetable Oil Based Inkson 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 ofTexas 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""'-.1

# 1'1"1\li'**~­** 

### -**1:~-** 

### \,_;-"\:- --\.\...:!.



# arecordof excellence

1801 Lavaca · Suite 115 · Austin, Texas 78701 · 512·474-22332



### 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) 474-22333



### 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)474-22334



### 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)474-22335



### 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 perrnit 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: 

### 30TAC Chapter 111, 

### Controlof AirPollutionfrom Visible EmissionsandParticulate 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

__ INTEROFFICEMEMORANDUM



### To: Commissioners Date: October 8, 2004
Thru: LaDonna Castafiuela, ChiefClerk Glenn Shankle, Executive Director From: Randy Wood, Deputy Director 

# ./'J**~** Office ofEnvironmental Policy,

## A~d Assessment Docket No.: 2004-0006-RUL Subject: Commission Approval for Rulemaking Adoption Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter and Chapter 330, Municipal Solid Waste SB 216: VeterinarianDisposal ofAnimal Remains and Associated Medical Waste Rule Project No. 2004-003-330-WS Reasons for therule package: ·• Under what authority are we adopting these changes? TexasHealthandSafetyCode, §361.011, concerningCornmission'sJurisdiction: MunicipalSolid Waste; §361.024, concerning Rules and Standards; §382.011, concerning General Powers and Duties; §382.012, concerningStateAirControlProgram; §382.017,concerningRules; §382.018, concerning Outdoor Burning ofWaste and Combustible Material; Texas Water Code, §5.013, concerningGeneralJurisdictionofCommission; §5.102,concerningGeneralPowers; and §5.103, concerning Rules.

• Is this

### rulemakingrequired 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.

• Arethereanylegaldeadlines bywhich theserulesmustbeproposed, adopted, oreffective? No deadline was specified in the statute.

• Whatissue(s) or problem(s) arewe trying to solve? This rulemaking will resolve inconsistencies between agency rules and state statute.

• Whyis.it importantthat we do this 

### rule package? To reflectcurrent 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 importantbackground or historical information. Aprevious statute fromthe 77thLegislatureallowedtheburningorburial ofanimal remains ifthe 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 thatthis statute prevails over any other law thatauthorizes a govenunental entity to prohibit or restrict outdoor burning or to abate public nuisance. Whatthe rulemaking will 

### do: • Project scope:**~** 

### This rulemaking will add a reference to Texas Occupations Code, §801.361 andremove language thatis inconsistentwith the statute from the rules. The referenced statute allows a veterinarian to 

### dispose ofanimal 

### 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) indrafting theserules. Staffhasbeenworking with Gene Snelson, General Counsel ofthe TAHC, to ensure thatthe TAHC approves ofthe draft rules. TAHC approved of the proposed rules at its May 25, 2004 commission meeting.

• Changesrequiredby federal rule: None.

• Changesrequiredby state statute:**~** 

### removing rule languagethatconflicts with currentstatute in §330.4, PermitRequiredand §111.209, Exception for Disposal Fires**~** 

### adding a reference to Texas Occupations Code, §801.361 in both ofthese sections

• Staffrecommendationsthatdifferfromorfall outside offederalrule orstatestatute: None. Impact ontheregulatedcommunity: • Whowill

### be affected? According to the statute, veterinarians located outside the corporate boundaries ofa municipality or within the corporate boundaries ofa municipality as a result ofannexation that occurs on or after September 1 , 2003 are allowed to dispose ofanimal remains and medical waste associated with the animal on their property.

• Does it create a group ofaffected persons who were notaffectedpreviously? How? Yes. Currentrules allow burying andburning ofanimal remains in counties withless than 10,000 residents without requiring an agency authorization and allow for restriction of this activity if nuisanceconditions occur. The new rules will reference a statutethatallows the burning orburial of veterinary medical waste associated with the ·animal outside the corporate boundary of a municipality, or within the corporate boundary ofa municipality as a result of annexation that occurs on or after September 1, 2003, regardless ofthe 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 ifnuisance conditions occur.

• Will therebea fiscal impact? Ifso, estimate. There are no significant fiscal impacts as a result ofthis rulemaking. Impactonthe public: • Who will be affected? The public living near locations where animal remains andveterinary medical waste are being burned or buriedmay be affected.

• Does it create a group ofaffected persons who were not affected previously? How? Yes, peoplelivingnearveterinarian-ownedpropertywherelegitimateburning andburyingactivity 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 simplyremoves regulatory requirements thatconflictwith currentstate statute. The effect ofthe statute may be thatproperties near a burning or burying activity may lose value if there is a real orperceived nuisance. Impacton agency programs: Air: FieldOperations will needto develop guidance onhandling complaints ifthe implementation ofthe legislationresults in anincrease incomplaints from citizensliving 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 CleanAir Actprohibitionagainstcreating a condition ofair pollution. Waste: The Municipal Solid Waste Permits Section would be primarily responsible for implementation. The Field Operations Programis responsible forverifying thatveterinarians are properly disposing ofthese 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 onrule being made into a rule? No. • What arethe consequences ifthis rulemaking is not approvedto 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 controversialmatters: Personsadjacenttotheseveterinarian-ownedpropertiesmaynotfavor the statute (to whichtherulerefers) because it does not allow governmental entities to abate public nuisances. 

### Publiccomment: The Texas Veterinary Medical Association (TVMA) commented at the June 24th hearing. During the public commentperiod, whichclosed onJune28,2004, the commission received writtencomments from TVMA, the United States Environmental Protection Agency (EPA), and Senator Judith Zaffirini. EPA statedneithersupportnorobjectiontotheamendments, whileTVMAopposedtheruleasproposedbecause it feels thattheneteffectoftherule will be toprecludethe burying ofcarcassesby veterinarians. TVMA further commented that §330.4 should exempt veterinarians from deed recordation. Senator Zaffirini expressed support ofthe TVMA·position and expressedconcern that the effect ofrequiring veterinarians to deed record will be that they do not choose to bury waste. Theteamrespondedto these comments by statingthatthis rulemaking does notpreventveterinarians from the activities thatare authorizedby SB 216. Further, this rulemaking does notmodifyorreferto the deed recordationrequirements in §330.7, and it implements SB 216 by referring directly to the statute, Texas Occupations Code, §801.361. 

### Significantchanges from proposal: None. 

### Agencycontacts: Emily Barrett, Rule Project Manager, 239-3546 Wayne Harry, Program Lead (Waste), 239-6619 Phil Harwell, ProgramLead (Air), 239-1517 Todd Galiga, StaffAttorney (Waste), 239-3578 Dan Long, StaffAttorney (Air), 239-5373 Patricia Duron, Texas Register Coordinator, 239-6087 Attachments

### Commissioners Page 5 October 8, 2004 Re: Docket 2004-0006-RUL

cc: ChiefClerk, 5 copies Executive Director's Office Brian·Christian Derek Seal BrentWade Ashley.K. Wadick Randolph Wood Jim 

### Muse Office ofGeneral Counsel Emily Barrett Patricia Duron

cc (without attachments): Wayne Harry, Program Lead (Waste) Phil Harwell, Program Lead (Air) Todd Galiga, StaffAttorney (Waste) Dan Long, StaffAttorney (Air) Kathy Vail, Regulation DevelopmentTeam 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 amendmentto §111.209. Section 111.209 is adopted 

### without change to the proposed text as published in the May 28, 2004 issue ofthe 

### 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 ofanimal remains ifthe 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 ofassociated medical waste.

This rulemaking implements a subsequent amendmentto Texas Occupations Code, §801.361. Senate Bill (SB) 216, 78th Legislature, 2003, amended Texas Occupations Code, §801.361, by allowingveterinarians 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 underwhich aveterinarian 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 bythe Texas Animal Health Commission on May 25, 2004. The commission simultaneously adopts in this issue ofthe 

### Texas Register an amendmentto 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 ofoutdoor burning relating to burning byveterinarians to make it consistent with Texas Occupations Code, §801.361.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the adopted rulemaking in light ofthe regulatory analysis requirements ofTexas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because itdoes not meet the definition ofa "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 notadversely affect in a material way the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. lherefore, the adopted amendment does notqualifyas a "major environmental rule." Furthermore, the analysis required by Texas Government Code, §2001.0225(c) does notapply because the rule does not meet any ofthe four applicable requirements ofa major environmental rule. The rule does not exceed a standard set byfederal law, exceed an express requirement ofstate law, exceed a

-2-requirement ofa delegation agreement, or adopt a rule solely underthe general powers ofthe agency. The rule is adopted specifically to make commission rules consistent with SB 216 and does not exceed the requirements ofthat bill.

TAKINGS IMPACT ASSESSMENT The commission evaluated the rule and performed an assessment ofwhether the rule constitutes a takings underTexas Government Code, Chapter 2007. The specific purpose ofthe 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 ofthe adopted rule is neither a statutory nora constitutional taking of private real property. Specifically, the rule does notaffect private real property rights because itdoes not burden, restrict, or limit an owner's property rights that would otherwise exist in the absence ofthe regulation. The rule actually expands the allowable uses ofaveterinarian's private real property except those veterinarians in a municipality that is within a county of 10,000 orfewer people. The adopted rule does not meetthe definition ofatakings underTexas 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 

### etseq., 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 ofcoastal natural resource areas; to ensure sound management ofall coastal resources by allowing for compatible economic development and multiple human uses ofthe coastal zone; to ensure and enhance planned publicaccess to and enjoyment ofthe coastal zone in a mannerthat is compatible with private property rights and other

uses ofthe coastal zone; and to balance these competing interests.

CMP policy applicable tothe rule is 31 TAC §501.14(q), which states that commission rules under Texas Health and Safety Code, Chapter 382, governing emissions ofair 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, 

### etseq., to protect and enhance air quality in the coastal area so as to protect coastal natural resources areas and promote the public health, safety, and welfare.

Promulgation and enforcement ofthe rule does notviolate 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 SenatorJudith Zaffirini. EPA stated no objection to the proposed amendmentto §111.209, TVMA stated support ofthe changes to Chapter 111, while Senator Zaffirini only commented on the amendmentto §330.4.

RESPONSE TO COMMENTS TVMA stated support ofthe 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 underTexas Health and Safety Code, Texas Clean AirAct (TCAA), §382.011, which authorizes the commission to administer the requirements ofthe 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 ofthe TCAA; §382.018, which authorizes the commission to control outdoor burning; and §382.085, which prohibits unauthorized air emissions; and Texas Water Code, §5.1 03, which authorizes the commission to adopt rules.



### -5-

# STAFF RECOMMENDATIONSCHAPTER 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 ofdomestic waste is not provided or authorized by the local governmental entity havingjurisdiction, and when the waste is generated only from that property. Provision ofwaste collection refers to collection at the premises where the waste is generated. The term "domestic waste" is defined in §101.1 ofthis title (relating to Definitions). Wastes normally resulting from the function 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 ofwastes notconsidered 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 ofdisease.

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



### -1-(4) On-site burning oftrees, 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 ofthistitle (relating to General Requirements for Allowable Outdoor Burning). When possible, notification of intentto burn should be made to the appropriate commission regional office priorto the proposed burn. For a single project entailing multiple days ofburning, an initial notice delineatingthe scope ofthe burn is sufficient ifthe scope does notconstitute circumvention ofthe rule for a continual burning situation. Commission notification orapproval 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 ofthis 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 priorto the proposed burn. Commission notification or approval is not required. This section is not applicable to crop residue burning covered by an administrative order.

(6) Brush, trees, and other plantgrowth causing a detrimental public health and safety condition may be burned by a county or municipal government at a site itowns upon receiving site and burn approval from the executive director. Such a burn can only be authorized when there is no practical alternative, and it may be done no more frequently than once every two months. Such burns cannot be conducted at municipal solid waste landfills unless authorized under§111.215 ofthis title (relating to Executive DirectorApproval ofOtherwise Prohibited Outdoor Burning), and shall be subject to the requirements of§111.219 ofthis title.



### -2-La.

.f!8**Ca~nuela, Chi~** 

### e1:ntalQuality 

### ORDER ADOPTING

## AMENiiJm~'1~ . REVISIONS TO THE STATE IMPLEMENTATIONPLAN

Docket No. 2004-0006-RUL On October 27, 2004, the Texas Commission on Environmental Quality (Commission), during apublic meeting, considered adoption ofamended §111.209 and §330.4. The commission adopts these amendments, in Title 30 TAC Chapter 111, concerning Control ofAir 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 (Vernon2001), the Commissionhas the authority to control the quality ofthe state's air and to issue orders consistent with the policies and purposes ofthe Texas Clean Air Act, Chapter 382 of the Texas Health & 

### Safety Code. In addition, under Texas Health & 

### Safety Code Ann. §361.011 and §361.024 (Vernon 2001), the Commissionhas 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 ofthe Texas Register 

### (29 TexReg 5276). Pursuant to Texas Health & 

### Safety Code Ann. §382.017 (Vernon 2001), Texas Government Code, Chapter2001 (Vernon2000 & 

### VernonSupp. 2001) and40CodeofFederal Regulations §51.102and afterproper notice, the Commissionconducted apublic hearing to considerthe amendments and revisions to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date ofthe hearing. A public hearing was held 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 commentperiod. Prior to the scheduled hearing, copies ofthe proposed amended rules and SIP revisions were available for public inspection at the Commission's central office and regional offices. Data, views, and recommendations ofinterestedpersons regarding the proposed amendedrules and SIP revisionswere submittedtotheCommissionduringthe commentperiod, andwereconsideredbytheCommission as reflected in the analysis oftestimony incorporatedby reference to this Order. The Commissionfinds 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 staffto make any non-substantive revisions to the rules necessary to comply with Texas Register 

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

### 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 SIPincorporatedby reference to this Orderarehereby adopted. The Commissionfurther 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 behalfofthe Commission, the Chairman should transmit a copy ofthis 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. ThisOrderconstitutesthe Orderofthe Commissionrequiredbythe AdministrativeProcedureAct, 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 ofany portion shall not affect the validity ofthe remaining portions.

Date issued: 

# NOV 0

# J2004 TEXAS COMMISSION ON ENVIRONMENTAL QUALITYBoard 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 herebycertifie thattheadoption hasbeen reviewed by legal counsel and found o be avalid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of State on November 1, 2004. TRD-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 VISIBLEEMISSIONS 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 totheTexas state implementationplan, whichwill be submittedto 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 outdoorburning byveterinarians in accordancewith Texas Occupations Code, §801.361. In compliance with House Bill 3061, 78th Legislature, 2003, this rule was developed in cooperation with and was approved bythe Texas Animal Health Commission on May 25, 2004. The commission simultaneouslyadopts in this issueofthe 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 modifiesthe 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 byTexas 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 underthe 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 madetothe 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



### ADOPTEDRULES November 12, 2004 29 TexReg 10515The commission reviewed the rulemaking and found that the adopted rule is subject tothe 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 forthe adopted rule in accordancewith Coastal Coordination Act Implementation Rules, 31 TAG §505.22 and found that the rulemaking is consistentwith 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 forcompatible economic development and multiple human uses of the coastal zone; to ensure and enhance planned public access to and enjoymentofthe coastal zone in a mannerthat iscompatible 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, §§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 enforcementofthe rule does notviolate orexceed 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 orsignificant 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 objectiontothe proposed amendmentto§111.209,TVMAstated supportofthe changesto Chapter 111, while Senator Zaffirini only commented on the amendment to §330.4. RESPONSE TO COMMENTS Comment TVMAstatedsupportofthe changes to Chapter 111. EPAstated 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 AirAct (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. Thisagencyherebycertifiesthattheadoption has been reviewed by legal counsel and found to be avalid 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. 

# • POLLUTIONFROMM OR VEHICLES SUBCHAPTER I. 

### NO ROAD ENGINES ·DIVISION 6. LAWN S RVICE EQUIPMENT OPERATING RESTRIC ONS 30TAC §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 revisionsto 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 nderthe Federal Clean Air Act Amendments of 1990 (42 Unit d States Code (USC), §§7401 etseq.), 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 dueto the magnitude of reductions needed for attain ent. The emission reduction requirements included as part of e December2000 SIP revision represent substantial, intensive 3fforts on the partof stakeholder coalitions in the HGB area to ajdress 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