Texas Register, Volume 38, Number 9, Pages 1269-1452, March 1, 2013 Page: 1,369
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of this rulemaking is to increase protection of the environment
and reduce risk to human health, it is not expected that this
rulemaking will adversely affect in a material way the economy,
a sector of the economy, productivity, jobs, the environment, or
the public health and safety of the state or a sector of the state.
Therefore, no regulatory impact analysis is required.
Furthermore, even if the amendment constituted a major en-
vironmental rule, a regulatory impact analysis would not be
required because the rulemaking does not meet any of the four
applicability criteria for requiring a regulatory impact analysis
for a major environmental rule. Texas Government Code,
2001.0225 applies only to a major environmental rule that: 1)
exceeds a standard set by federal law, unless the rule is specif-
ically required by state law; 2) exceeds an express requirement
of state law, unless the rule is specifically required by federal
law; 3) exceeds 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; or 4) adopts a rule solely under the general powers of
the agency instead of under a specific state law. The rulemaking
does not meet any of the four applicability criteria listed in Texas
Government Code, 2001.0225 because: 1) the rulemaking
is designed to meet, not exceed the relevant standard set by
federal law; 2) parts of the rulemaking are directly required by
state law; 3) no contract or delegation agreement covers the
topic that is the subject of this rulemaking; and 4) the rulemaking
is authorized by specific sections of the THSC, Chapter 382
(also known as the Texas Clean Air Act), cited in the Statutory
Authority section of this preamble.
The purpose of the PBR amendment is to expand the applica-
bility of 106.141 to more facilities. Before the adoption of this
amendment, the PBR authorized batch mixer drums of five cu-
bic feet capacity and smaller. The amended PBR includes batch
mixing operations that use equipment larger than a five cubic
feet capacity drum but that the commission does not consider
concrete batch plants.
The commission invited public comment on the draft regulatory
impact analysis determination and received no comments during
the public comment period.
Takings Impact Assessment
The commission completed a takings impact assessment for this
rulemaking action under Texas Government Code, 2007.043,
Takings Impact Assessment. The primary purpose of the rule-
making is to expand a PBR authorization for batch mixers that
use equipment larger than a five cubic feet capacity drum but
that the commission does not consider concrete batch plants.
The expansion of the PBR authorization does not affect private
property in a manner that restricts or limits an owner's right to the
property that would otherwise exist in the absence of a govern-
mental action. This rulemaking will not revoke the authorizations
of previously authorized facilities. Consequently, this rulemaking
action does not meet the definition of a takings under Texas Gov-
ernment Code, 2007.002(5), Definitions.
Consistency with the Coastal Management Program
The commission reviewed the rulemaking and found that it is
subject to the Texas Coastal Management Program (CMP) in ac-
cordance with the Coastal Coordination Act, Texas Natural Re-
sources Code, 33.201, et seq., and therefore must be consis-
tent with all applicable CMP goals and policies. The commis-
sion conducted a consistency determination for the rule in ac-
cordance with Coastal Coordination Act Implementation Rules,
31 TAC 505.22, Consistency Required for New Rules and Rule
Amendments Subject to the Coastal Management Program, and
found the rulemaking is consistent with the applicable CMP goals
The CMP goal applicable to this rulemaking action is to balance
the benefits from economic development and multiple human
uses of the coastal zone, the benefits from protecting, preserv-
ing, restoring, and enhancing coastal natural resource areas, the
benefits from minimizing loss of human life and property, and
the benefits from public access to and enjoyment of the coastal
zone. The amendment will balance economic development with
other concerns by limiting batch mixer capacity, limiting engine
size, and requiring dust control measures.
The CMP policy applicable to this rulemaking action is the pol-
icy that commission rules comply with federal regulations in 40
Code of Federal Regulations, to protect and enhance air quality
in the coastal areas (31 TAC 501.32 Policies for Emission of Air
Pollutants). Therefore, in accordance with 31 TAC 505.22(e),
the commission affirms that this rulemaking action is consistent
with CMP goals and policies.
Promulgation and enforcement of this rule will not violate or ex-
ceed any standards identified in the applicable CMP goals and
policies because the rule is consistent with these CMP goals and
The commission invited public comment regarding the consis-
tency with the coastal management program and did not receive
comments during the public comment period.
Effect on Sites Subject to the Federal Operating Permits Pro-
Chapter 106 is an applicable requirement under 30 TAC Chapter
122, Federal Operating Permits Program. Owners or operators
subject to the federal operating permit program must, consistent
with the revision process in Chapter 122, include any changes
made using the amended Chapter 106, Permits by Rule require-
ments into their operating permit.
The commission held a public hearing on October 2, 2012. The
comment period closed on October 8, 2012. The commission
did not receive any comments.
The amendment is adopted under Texas Water Code, 5.103,
Rules, and 5.105, General Policy, which authorize the commis-
sion to adopt rules necessary to carry out its powers and du-
ties under the Texas Water Code; and under Texas Health and
Safety Code, 382.017, Rules, which authorizes the commis-
sion to adopt rules consistent with the policy and purposes of
the Texas Clean Air Act. The amended section is also adopted
under Texas Health and Safety Code, 382.002, Policy and Pur-
pose, which establishes the commission's purpose to safeguard
the state's air resources, consistent with the protection of public
health, general welfare, and physical property; 382.011, Gen-
eral Powers and Duties, which authorizes the commission to
control the quality of the state's air; 382.012, State Air Control
Plan, which authorizes the commission to prepare and develop
a general, comprehensive plan for the control of the state's air;
382.051, Permitting Authority of Commission; Rules, which au-
thorizes the commission to issue a permit by rule for types of
facilities that will not significantly contribute air contaminants to
the atmosphere; 382.05196, Permits by Rule, which authorizes
ADOPTED RULES March 1, 2013 38 TexReg 1369
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Texas. Secretary of State. Texas Register, Volume 38, Number 9, Pages 1269-1452, March 1, 2013, periodical, March 1, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth308911/m1/100/: accessed June 19, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.