Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 111.
CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER
Subchapter B. OUTDOOR BURNING
30 TAC §111.209
The Texas Commission on Environmental Quality (TCEQ or commission)
proposes an amendment to §111.209.
The amended section and corresponding revisions to the Texas state implementation
plan will be submitted to the United States Environmental Protection Agency.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
A bill from the 77th Legislature, 2001 amended Texas Occupations Code, §801.361,
Disposal of Animal Remains. This bill allowed the burning of animal remains
if the burning occurred in a county with a population of less than 10,000,
on property owned by the veterinarian, and the veterinarian did not charge
for disposal. This bill did not allow the burning of medical waste associated
with animal remains.
This rulemaking implements a subsequent amendment to Texas Occupations
Code, §801.361. Senate Bill (SB) 216, 78th Legislature, 2003, amended
Texas Occupations Code, §801.361, by allowing veterinarians to burn animal
remains and associated medical waste. Associated medical waste includes: animal
waste, blood, gloves, sleeves, newspapers, and plastic bags, but does not
include sharps. SB 216 also changes the conditions under which a veterinarian
may burn waste. The proposed amendment revises paragraph (3) by replacing
the current language with a reference to amended Texas Occupations Code, §801.361.
This would provide an exception to the prohibition of outdoor burning by veterinarians
in accordance with Texas Occupations Code, §801.361.
In compliance with House Bill 3061, 78th Legislature, 2003, this rule has
been developed in cooperation with and was approved by the Texas Animal Health
Commission on December 2, 2003. The commission simultaneously proposes in
this issue of the
Texas Register
the amendment
to 30 TAC §330.4, Permit Required.
SECTION DISCUSSION
The proposed amendment to §111.209, Exception for Disposal Fires,
is necessary to make the burning revisions provided by SB 216 consistent with
TCEQ rules. The proposed amendment revises paragraph (3) by removing the current
language and replacing it with a reference to amended Texas Occupations Code, §801.361.
This amendment will modify the exception to the prohibition of outdoor burning
relating to burning by veterinarians to make it consistent with Texas Occupations
Code, §801.361.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jan Washburn, Program Specialist in the Grants and Strategic Planning Section,
determined that for the first five-year period the proposed amendment is in
effect, there will be no fiscal implications for the agency or any other unit
of state government. The amendment implements the legislative directive of
SB 216, 78th Legislature, 2003, which took effect September 1, 2003. Current
rule language allows veterinarians to burn or bury animal remains under three
conditions: 1) the property is owned by the veterinarian; 2) the activity
occurs only in counties with a population of less than 10,000; and 3) the
veterinarian does not charge for the burning or burial. The proposed rule
will allow veterinarians to burn or bury medical waste associated with the
remains of an animal, as well. However, this activity must now occur on property
that is outside the corporate boundaries of a municipality or within the corporate
boundaries of a municipality as a result of an annexation that occurred on
or after September 1, 2003, and the veterinarian may charge for the disposal.
Ms. Washburn also determined that there will be no fiscal impact to units
of local government as a result of the proposed amendment.
PUBLIC BENEFITS AND COSTS
Ms. Washburn also determined that for the first five years the proposed
amendment is in effect, the anticipated public benefit will be minimal as
the amendment will only apply to property outside the corporate boundaries
of a municipality. This rule is expected to benefit veterinarians because
they may dispose of animals on their own property, which will save them approximately
$25 to $250 per animal.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Ms. Washburn also determined that there will be no significant fiscal implications
to small or micro-businesses as a result of implementation of the proposed
amendment for the first five years it is in effect. The proposed amendment
will allow veterinarians to dispose of medical waste associated with the animal
by burning or burying, which may be a benefit to those businesses. However,
the veterinarian's property must now be outside the corporate boundaries of
a municipality or within the corporate boundaries of a municipality as a result
of an annexation that occurred on or after September 1, 2003. This may exclude
some veterinarians in counties of less than 10,000 from burning or burying
animals who were previously allowed to burn or bury before SB 216, 78th Legislature,
2003 was enacted.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the proposed rulemaking is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
that statute. The proposed amendment to §111.209 is only intended to
make existing commission rules consistent with the new legislative changes
made to the Texas Occupations Code, and the proposed rule will not adversely
affect in a material way the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state. Therefore, the proposed amendment does not qualify as a "major environmental
rule." Furthermore, the analysis required by §2001.0225(c) does not apply
because the proposed rule does not meet any of the four applicable requirements
of a major environmental rule. The proposed rule does not exceed a standard
set by federal law, exceed an express requirement of state law, exceed a requirement
of a delegation agreement, or adopt a rule solely under the general powers
of the agency. The rule is proposed specifically to make commission rules
consistent with SB 216 and does not exceed the requirements of that bill.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rule and performed an assessment
of whether the proposed rule constitutes a takings under Texas Government
Code, Chapter 2007. The specific purpose of the proposed rule is to make existing
commission rules consistent with the new legislative changes made to the Texas
Occupations Code by SB 216. The proposed rule will substantially advance this
purpose by replacing existing language with a reference to the Texas Occupations
Code amended by SB 216. Promulgation and enforcement of the proposed rule
will be neither a statutory nor a constitutional taking of private real property.
Specifically, the proposed rule will not affect private real property rights
because it will not burden, restrict, or limit an owner's property rights
which would otherwise exist in the absence of the regulation. The proposed
rule will actually expand the allowable uses of a veterinarian's private real
property except those veterinarians in a municipality that is within a county
of 10,000 or fewer people. The proposed rule does not meet the definition
of a takings under Texas Government Code, §2007.002(5).
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the proposal
is subject to the Coastal Management Program (CMP) in accordance with the
Coastal Coordination Act, Texas Natural Resources Code, §§33.201
The CMP goals applicable to the proposed rule include: to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of coastal natural resource areas; to ensure sound management of all coastal
resources by allowing for compatible economic development and multiple human
uses of the coastal zone; to ensure and enhance planned public access to and
enjoyment of the coastal zone in a manner that is compatible with private
property rights and other uses of the coastal zone; and to balance these competing
interests.
CMP policy applicable to the proposed rule is 31 TAC §501.14(q), which
states that TCEQ rules under Texas Health and Safety Code, Chapter 382, governing
emissions of air pollutants, shall comply with regulations in Code of Federal
Regulations, Title 40, adopted in accordance with Clean Air Act, 42 United
States Code Annotated, §§7401,
et seq
,
to protect and enhance air quality in the coastal area so as to protect coastal
natural resources areas and promote the public health, safety, and welfare.
Promulgation and enforcement of the rule will not violate or exceed any
standards identified in the applicable CMP goals and policies. The proposed
rule is consistent with these CMP goals and policies. The rule does not create
or have a direct or significant adverse effect on any coastal natural resource
areas.
Written comments on the consistency of this rulemaking may be submitted
to the contact person at the address listed under the SUBMITTAL OF COMMENTS
section of this preamble.
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 131E, located at 12100 Park 35 Circle. The hearing will be
structured for the receipt of oral or written comments by interested persons.
Individuals may present oral statements when called upon in order of registration.
There will be no open discussion during the hearing; however, an agency staff
member will be available to discuss the proposal 30 minutes prior to the hearing
and will answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Commission on Environmental Quality,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Project Number 2004-003-330-WS. Comments must
be received by 5:00 p.m., June 28, 2004. For further information, please contact
Phil Harwell of the Policy and Regulations Division at (512) 239-1517 or Emily
Barrett of the Policy and Regulations Division at (512) 239-3546.
STATUTORY AUTHORITY
The amendment is proposed under Texas Health and Safety Code, Texas Clean
Air Act (TCAA), §382.011, which authorizes the commission to administer
the requirements of the TCAA; §382.012, which provides the commission
the authority to develop a comprehensive plan for the state's air; §382.017,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the TCAA; §382.018, which authorizes the commission to
control outdoor burning; and §382.085, which prohibits unauthorized air
emissions; and Texas Water Code, §5.103, which authorizes the commission
to adopt rules.
The proposed amendment implements Texas Health and Safety Code, §382.002,
concerning Policy and Purpose; §382.011, concerning General Powers and
Duties; §382.012, concerning State Air Control Program; §382.017,
concerning Rules; §382.018, concerning Outdoor Burning of Waste and Combustible
Material; Texas Water Code, §5.103, concerning Rules; and Texas Occupations
Code, §801.361, concerning Disposal of Animal Remains.
§111.209.Exception for Disposal Fires.
Outdoor burning shall be authorized for
the following.
[
(1) - (2)
(No change.)
(3)
Veterinarians in accordance with Texas Occupations
Code, §801.361, Disposal of Animal Remains.
[
(4) - (6)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 14, 2004.
TRD-200403268
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 239-6087
Subchapter A. GENERAL INFORMATION
:
]
Animal remains
burning by a veterinarian if the burning is conducted on property owned by
the veterinarian; the property is in a county with a population of less than
10,000; and the veterinarian does not charge for the burning. Animal remains
refer to an animal that dies in the care of the veterinarian and does not
include any other type of medical waste.
]
Chapter 330.
MUNICIPAL SOLID WASTE