STATE OF TEXAS 

OFFICE OF THE GovERNOR 

GEORGE W. BCSH 

Mr. Gregg A. Cooke 

Regional Administrator, Region 6 

U.S. Environmental Protection Agency 

1445 Ross A venue 

Dallas, TX 75202-2733 

Dear Mr. Cooke: 

February 5, 1999 

Enclosed are amendments to 30 TAC Chapter 113 and to the State Implementation Plan resulting 

from the Texas Natural Resource Conservation Commission's regulation reform initiative. 

These amendments, which the TNRCC adopted on January 13, 1999, repeal certain lead 

emission rules covering sources in Dallas and El Paso counties. The remaining active lead 

emitting source in El Paso (a copper process) is under tight permit control, and no other 

operational lead smelters are located or anticipated to locate in El Paso or Dallas counties. 

These amendments are submitted as a proposed SIP revision by deleting the rules and attainment 

date from the SIP. Also enclosed is a public hearing certification, a complete record of the 

public hearings, and the accompanying order. I look forward to your expeditious approval of this 

revision to the Texas SIP. 

Enclosures 

PoST Oma Box 12428 AusnN, TEXAS 78711 (512) 463-2000 (VOia)/(512) 475-3165 (1DD) 
-

-Robert J. Huston, Chairman 

R. B. "Ralph" Marquez, Commissioner 

John M. Baker, Commissioner 

Jeffrey A. Saitas, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

This is to certify that the attached are true and correct copies of revisions to 30 T AC Chapter 113 

and to the Texas State Implementation Plan, adopted on January 13, 1999 pursuant to 40 Code of Federal 

Regulations (CFR), §51.104. Prior to the adoption of these revisions, public hearings were held pursuant 

to 40 CFR, §51.102(a), and notice of the hearings was given which conformed to the requirements of 40 

CFR, §51.102(d). I am the custodian of the records of the Commission. 

To certify which, witness my hand and the seal of the Texas Natural Resource Conservation 

Commission, this the 13th day of January, 1999. 

Tex· Natural Resource Conservation Commission 

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

printed on recycled paper using soy·ba.sed ink 
-

TEXAS NATURAL RESOURCE 

CONSERVATION COMMISSION 

PUBLIC HEARINGS 

SEPTEMBER 8 AND 9, 1998 

OCTOBER 26, 1998 

REVISIONS TO CHAPTER 113 AND TO 

THE STATE IMPLEMENTATION PLAN 

(NESHAPs FOR RADON EMISSIONS) 

3-1~ 
·-

INTRODUCTION 

Public hearings were held in Austin on September 8, 1998 and in El Paso on September 9, 1998 with 

the comment period closing on September 14, 1998 to consider proposed revisions to 30 TAC Chapter 

113 and to the State Implementation Plan (SIP), concerning NESHAPs for Radon Emissions. Due to 

an error in fulfilling all public hearing notification requirements for SIPs an additional public hearing 

was held in Austin on October 26, 1998 with the comment period closing on the same day. 

New §113.55, concerning Radon Emissions, was also adopted during this rulemaking. While the 

text of this rule and references to this rule are included in some of the enclosed documents, this 

section is not being submitted as a proposed revision to the SIP. 

All testimony and comments have been reviewed and seriously considered. This volume contains a 

complete record of the public hearing and is divided into the following four sections: 

o Public Notification and Proposals 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations 

Additional copies of this hearing record are maintained at the commission's central oftice at 12100 

North IH-35, Building F, Austin, Texas 78753. For further information, contact Mr. Phil Harwell at 

(512) 239-1517 or Mr. Alan Henderson at (512) 239-1510. 
PUBLIC

NOTIFICATION AND

PROPOSAL
-

-

PUBLIC NOTIFICATION 

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

1. Publication of the notice of public hearing for the proposed rules appeared in the following 

newspapers on the dates listed: 

Dallas Morning News; August 2, 1998 

El Paso Times; August 5, 1998 

Houston Chronicle; August 3, 1998 

2. Publication of the initial hearing notice and proposed rules in the Texas Register on August 14. 

1998. Publication of the second public hearing notice in the Texas Rep.ister on September 25. 1998. 

3. Correspondence forwarding the notice of public hearing to the following officials and agencies: 

Arkansas Department of Pollution Control and Ecology 

City of El Paso 

City of Victoria Planning Department 

Dallas Department of Health and Human Services 

El Paso City-County Health District 

Federal Highway Administration 

Fort Worth Public Health Department 

Galveston County Health District 

Harris County Pollution Control Department 

Houston Department of Health and Human Services 

Houston-Galveston Area Council 
Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

North Central Texas Council of Governments 

Oklahoma State Department of Health 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

U. S. Environmental Protection Agency 
EXAMPLE OF 

NEWSPAPER CLASSIFIED AD 

El Paso Times 

August 5, 1998 

NOTICE OF PU8LIC: 

HEARINGS BY THE. TEXAS NATURAL RE- SOURCE CONSERVATION COMMISSION ON 

PROPOSED REVISIONS 

TO 30 TAC CHAPTER 113 AND THE STATE IM- PLEMENTATION PLAN 

Notice is hereby given 

that under the require- ments of Texas Health 

and Safety Code, 382.017; 

Texas Government Code, 

Subchapter B, Chapter 

2001; and 40 Code of Federal Regulations (CFR), 51.102 of the United States 

Environmental Protection 

Agency regulations con- cerning State Implementation Plans (SIP), the 

Texas Natural Resource 

Conservation Commission 

(commission) will conduct 

public hearings to receive 

testimony concerning re- visions to 30 TAC Chapter 113. 

The commission proposes 1 the repeal of 113.31-113.68, 

concerning Lead from 

Stationary Sources,· and new 113.55, concerning 1 

Radon Emissions· from 1 

Phosphogypsum Stacks. 

The proposed repeals will eliminate lead rules which no longer apply to active 

lead sources, and the new section will request for 

delegation of authority to implement one of the 40 ' CFR, Part 61, National 

Emissions Standards for 

Hazardous Air Pollutants. In addition, the comfl'liSSIOn proposes renammg 

Subchapter B to National 

Emission Standards for 

Hazardous Air Pollutants 

(NESHAPs)(FCAA 112.40 CFR 61). 

Public hearings on the 

proposal will be held in Austin on September 8, 

1998, at 1 o:oo a.m. ' in Building F, Room 2210 of 

the Texas Natural Re- source Conservation 

Commission comPlex, le>-

cated at 12100 North IH- 35, Park 35 Technology Center; and in El Paso on September 9, 1998, at 7:00 p.m. at the City of El Paso 

Council Chambers, 2 Civic 

Center Plaza, 2nd Floor. 

The hearings are struc- tured for the receipt of 

oral or written comments by interested persons. In- dividuals may Present 

oral statements when 

called upon in order of 

registration. Open discussion will not occur during the hearings; however, an agency staff member will be available to discuss the 

proposal 30 minutes prior to each hearing and an- swer questions before and 

after the hearings. 

Written comments may I be submitted to Heather 1 

Evans, office of Policy and Regulatory Development, MC 205, P.O. Box 

13087, Austin, Texas 

78711-3087, or faxed to (512) 239-4808. All com- ments should reference 

~1~At ~o~:;:~~fs ~~~ I 

be received bY 5:00 p.m., 

September 14, 1998. For 

further information, 

please contact Phil Harwell, Air Policy and Regulations Division, Office of 

Policy and Regulatory 

Development, (512) 239-1517. 

Persons with disabilities 

who have special com- munication or other ac- commodation ·needs who are planning to attend the 

hearing should contact the 

agency at (512) 239-4900. 

Requests should be made as far in advance as pos- sible. · 

Issued in Austin, Texas, on July 29, 1998. 

Is/ Kevin McCalla 

Director, Legal Division 

Texas Natural Resource 

Conservation Commission T: 8/5, 1998 (5#190938) 
-

-

239.-1405; REGIONAL OFFICE: 3870 Eastex Freeway, Suite 110, 

Beaumont, Texas 77703-1892, (409) 898-3838. 

(7) COMPANY: FFP Operating Partners, L. P.; DOCKET NUMBER: 98-0546-AIR-E; IDENTIFIER: Account Number EE-1608-N; 

LOCATION: El Paso, El Paso County, Texas; TYPE OF FACILITY: 

gasoline dispensing site; RULE VIOLATED: 30 TAC §115.252(1) 

and the THSC, §382.085(b), by placing, storing, or holding in a 

stationary tank, reservoir. or other container gasoline which may ultimately be used in a motor vehicle in the El Paso area with a Reid 

Vapor Pressure greater than 7.0 pounds per square inch absolute; and 

30 TAC §114.100(a) and the THSC, §382.085(b), by supplying and/ 

or dispensing gasoline for use as a motor vehicle fuel which failed to 

meet the minimum oxygen content of 2.7% by weight; PENALTY: 

$2,500; ENFORCEMENT COORDINATOR: Stacey Young, (512) 

239-1899; REGIONAL OFFICE: 7500 Viscount Boulevard, Suite 

147, El Paso, Texas 79925-5633, (915) 778-9634. 

(8) COMPANY: The Hertz Corporation; DOCKET NUMBER: 98-

0525-AIR-E; IDENTIFIER: Account Number EE-1145-J; LOCATION: El Paso, El Paso County, Texas; TYPE OF FACILITY: vehicle 

rental store; RULE VIOLATED: 30 TAC §114.100(a) and the THSC, 

§382.085(b), by supplying and/or dispensing gasoline for use as a motor vehicle fuel which failed to meet the minimum oxygen content of 

2.7% by weight; PENALTY: $600; ENFORCEMENT COORDINATOR: Stacey Young, (512) 239-1899; REGIONAL OFFICE: 7500 

Viscount Boulevard, Suite 147, El Paso, Texas 79925-5633, (915) 

778-9634. 

L9) COMPANY: Houston Chemical Distributors, L.L.C.; DOCKET 

NUMBER: 98-0277-AIR-E; IDENTIFIER: Account Number GB0122-E; LOCATION: Algoa, Galveston County, Texas; TYPE OF 

FACILITY: \\' ter treQtment chemical mixing pbnt; RULE VIOLATED: 30 TAC §101.4, §101.5, and the THSC, §382.085(a) and 

(b), by relea;ing vapors from an aqua ammonia spill that were in 

such concentration and of such duration as to be or tend to be injurious to or to adversely affect human health or welfare, animal life, 

vegetation, or property. as to interfere with the normal use and enjoyment of animal life, vegetation, or property, and as to cause a traffic hazard or interference with normal road use: PENALTY: $5,000; 

ENFORCElvlENT COORDINATOR: Miriam Hall, (512) 239-1044; 

REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 

77023-1486, (713) 767-3500. 

(10) COMPANY: Medina Electric Cooperative, Inc.; DOCKET 

NUMBER: 98-0466-AIR-E; IDENTIFIER: Account Number FJ0012-P; LOCATION: Pearsall, Frio County, Texas; TYPE OF 

FACILITY: fossil-fuel-fired steam generators; RULE VIOLATED: 

30 TAC §122.121 and the Act, §382.054 and §382.085(b), by 

operating emission units at the site without a federal operating permit; 

and 30 TAC § 122.130La) and the Act, §382.054 and §382.085(b), 

by failing to submit a timely federal operating permit application; 

PENALTY: $10,000; ENFORCEMENT COORDINATOR: David D. 

Turner, (210) 490-3096; REGIONAL OFFICE: 140 Heimer Road, 

Suite 360, San Antonio, T~xas 78232-5042, (210) 490-3096. 

(11) COMPANY: Bauke Mulder; DOCKET NUMBER: 98-0356-

AGR-E; IDENTIFIER: Enforcement Identification Number 12380; 

LOCATION: near Hico, Hamilton County, Texas; TYPE OF FACILITY: dairy; RULE VIOLATED: The Code, §26.121, by allowing an 

unauthorized discharge of wastewater from the facility; PENALTY: 

$3,125; ENFORCEMENT COORDINATOR: Claudia Chaffin, (512) 

239-4717; REGIONAL OFFICES: 1 101 East Arkansas Lane, Arlington, Texas 76010-6499, (817) 469-6750 and 6801 Sanger Avenue, 

Suite 2500, Waco, Texas 76710-7826, (254) 751-0335. 

(12) COMPANY: Price Construction, Incorporated; DOCKET NUMBER: 98-0292-AIR-E; IDENTIFIER: Account Numbers 92-1169-G 

and 91-6664-N; LOCATION: Eagle Pass, Maverick County, Texas; 

TYPE OF FACILITY: rock crushing and asphalt concrete plants; 

RULE VIOLATED: 30 TAC §116.115(a), §111.11l(a)(8), Permit 

Numbers 21169 and T-17532, and the THSC, §382.0S5(b), by failing to control dust emissions from the rock crusher and asphalt plants 

at or below permitted levels; 30 TAC §116.115(a). Permit Number 

T-17532, and the THSC, §382.085(b). by failing to obtain written -

site approval prior to construction of the asphalt concrete plant; 30 

TAC §116.115(a), §101.20(1). Permit Nnmb~r 21169, ~tnd th~ THSC. 

§382.085(b), by failing to conduct a performance test; 30 TAC § 10 1.4. 

§101.5. and the THSC, §382.085(a) and (b), by failing to control dust 

emissions causing a nuisance condition to adjacent property and a 

traffic hazard on a nearby federal highway; and 30 TAC § 116.116(a), 

Permit Number 21169, and the THSC, §382.085(b), by failing to 

construct the rock crusher as represented in the permit application 

by installing a crusher with a higher production rate; PENALTY: 

$9,360; ENFORCEMENT COORDINATOR: David D. Turner, (210) 

490-3096; REGIONAL OFFICE: 140 Heimer Road, Suite 360, San 

Antonio, Texas 78232-5042, (210) 490-3096. 

(13) COMPANY: Southwest Com·enience Stores. Incorporated; 

DOCKET NUMBER: 98-0522-AIR-E; IDENTIFIER: Account 

Number EE-1007-W; LOCATION: El Paso, El Paso County, Texas; 

TYPE OF FACILITY: convenience store; RULE VIOLATED: 30 

TAC §114.100(a) ancl the THSC, *382.085(b). by offering for sale 

gasoline for use as a motor vehicle fuel which failed to meet the 

minimum oxygen content of 2.7% by weight; PENALTY: $600; 

ENFORCEMENT COORDINATOR: Stacey Young, (512) 239-1899; 

REGIONAL OFFICE: 7500 Viscount Boulevard, Suite 147, El Paso, 

Texas 79925-5633. (915) 778-9634 

TAD-9814557 

Paul Sarahan 

Director, Legal-Litigation Division 

Texas Natural Resource Conservation Commission 

Filed: September 15, 1998 

+ • • 

Notices of Public Hearing 

Notice is hereby given that under the requirements of Texas Health 

and Safety Code, §382.017; Texas Government Code, Subchapter B. 

Chapter 2001; and 40 Code of Federal Regulations (CFR), §51.1 02 

of the United States Environmental Protection Agency regulations 

concerning State Implementation Plans (SIP), the Texas Nantral 

Resource Conservation Commission (commission) will conduct a 

public hearing to receive testimony concerning revisions to 30 TAC 

Chapter 113 and to the SIP. 

The commission proposes the repeal of§§ 113.31-113.68. concerning 

Lead from Stationary Sources. The proposed repeals will eliminate 

lead rules which no longer apply to active lead sources. In addition, the commission proposes renaming Subchapter B to National 

Emission Standards for Hazardous Air Pollutants (NESHAPs) (FCAA 

§112, 40 CFR 61). 

This proposal was originally taken to hearing on September 8 and 

9, 1998. However, due to an error in fulfilling all public hearing 

notification requirements for SIPs, the conunission has scheduled 

another public hearing. The additional public hearing will be held in 

Austin on October 26, 1998, at 10:00 a.m. in Building F, Room 5108 

of the Texas Natural Resource Conservation Commission complex, 

located at 12100 North IH-35, Park 35 Technology Center. The 

hearing is structured for the receipt of oral or written comments by 

IN ADDITION September 25, 1998 23 TexReg 9853 
interested .• persons. Individuals may present oral statements when 

called upon in order of registration. Open discussion will not occur 

during the hearing: however, an agency staff member will be available 

to discuss the proposal 30 minutes prior to the hearing and answer 

questions before and after the hearing. 

Written comments may be submitted to Heather Evans, Office of 

Policy and Regulatory Development, MC 205, P.O. Box 13087, 

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

should reference Rule Log Number 98006-113-Al. Comments must 

be received by 5:00p.m., October 26, 1998. For further information, 

please contact Phil Harwell, Air Policy and Regulations Division, 

Office of Policy and Regulatory Development, (512) 239-1517. 

Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearing should 

contact the agency at (512) 239-4900. Requests should be made as 

far in advance as possible. 

TRD·9814673 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Filed: September 16, 1998 

• • • 

Notice is hereby given that under the requirements of the Texas 

Government Code, Subchapter B, Chapter 2001, and the Texas Health 

and Safety Code, §382.017, the Texas Natural Resource Conservation 

Commission (TNRCC or commission) will conduct a public hearing 

to receive testimony concerning 30 TAC Chapter 285, relating to the 

on-site sewage facilities. 

These proposed amendments will bring this chapter into conformity 

with House Bill (HB) 3059, passed by the 75th Legislature (1997), 

which amended Chapter 366 of the Health and Safety Code related to 

on-site sewage disposal systems. HB 3059 established that for single 

family residences in counties with a total population of less than 

-10,000, the regulatory authority for on-site sewage facilities may not 

condition the issuance of a permit to require the owner of an aerobic 

treatment system to have a maintenance contract. The proposed 

amendment reflects that in such situations the owner, after receiving 

the appropriate training, may either maintain the facility personally 

or enter into a maintenance contract. Also, HB 3059 modified the 

definition for on-site sewage disposal systems to allow for the use of 

cluster type system and expanded the definition of local governmental 

entity to allow public health districts to become authorized agents 

under this program. Finally, these amendments reflect the latest 

version of the National Sanitation Foundation International (NSF) 

criteria for the testing of proprietary treatment systems. 

A public hearing on the proposal will be held October 22, 1998, at 

10:00 a.m. in Room 254-S of TNRCC Building E, located at 12100 

Park 35 Circle, Austin. The hearing is structured for the receipt of oral 

or written comments by interested persons. Individuals may present 

oral statements when called upon in order of registration. Open 

discussion will not occur during the hearing; however, an agency staff 

member will be available to discuss the proposal 30 minutes prior to 

the hearing and answer questions before and after the hearing. 

Written comments on the proposal should mention Rule Log Number 

97150-285-WT and may be submitted to Lutrecia Oshoko, Office 

of Policy and Regulatory Development, MC 201, P.O. Box 13087, 

Austin, Texas 78711-3087, (512) 239-4640. Comments may be faxed 

to (512) 239-5687, but must be followed up with the submission and 

receipt of the written comments within three working days of when 

they were faxed. Written comments must be received by 5:00p.m., 

October 26, 1998. For further information or questions concerning 

this proposal, please contact Wanen Samuelson, Certification and 

Compliance Division, (512) 239-4799. 

Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearing should 

contact the agency at (512) 239-4900. Requests should be made as 

far in advance as possible. 

TRD-9814634 

Margaret Hoffman 

Environmental Law Division 

Texas Natural Resource Conservation Commission 

Filed: September 16, 1998 

• • • 

Texas Parks and Wildlife Department 

Gulf States Marine Fisheries Meeting 

The Gulf States Marine Fisheries Commission will hold its 49th 

Annual Fall Meeting October 12-16, 1998. Texas is the host state and 

arrangements have been made to convene at the Four Points Hotel 

Riverwalk North, 110 Lexington Avenue, San Antonio, TX (210) 

223-9461. All persons interested in the Gulf States Marine Fisheries 

Commission are invited to attend. For additional information please 

call Virginia K. Herring (601) 875-5912. 

TRD-9814396 

Bill Harvey, Ph.D. 

Regulatory Coordinator 

Texas Parks and Wildlife Department 

Filed: September 10, 1998 

• 

Request for Proposals 

• 

The Texas Parks & Wildlife Department (TPWD) is requesting 

proposals for fiscal year 1999. The Section 6 grants (money allotted 

to states from the Endangered Species Act) must concern a species (or 

a suite of species) that is federally listed as threatened or endangered 

or that is a species of concern for listing. For FY 99, we are estimating 

up to $80,000 in new project money. Due to the reduced amount crt· new project funds available, most (but not all} of the money will fund 

TPWD projects. 

General TPWD priorities for proposal selection include: projects 

that contribute to conservation solutions with an emphusis on public 

lands: projects that contribute technical assistance information that 

can be used by landowners and managers; and projects that generate 

new education and outreach materials and programs to r.oach th.: 

Texas public. Within the general priorities listed above, a variety 

of criteria are used to select projects, including the rarity of the 

species, the degree of threat, whether a void of information exists 

concerning it, whether the project will accomplish significant recovery 

for the species, and whether the project will have benefit to more 

than one species. To assist in developing relevant proposals. please 

see A Plan for Action to Conserve Rare Resources in Texas which 

includes priority ranks and species conservation needs for each major 

taxonomic group. The Plan is available from TPWD. Additio~al 

guidance may be obtained from recovery actions listed in U.S. Fish 

and Wildlife Service recovery plans. 

The amount of funding available for individual projects varies; 

however, most projects average $10,000 to $20,000 per year and 

1-4 years in length (private consultant contracts are limited to less 

than $10,000 per year). Section 6 funds are made available on 3:1 

23 TexReg 9854 September 25, 1998 Texas Register 

-
Texas 78711-3087 and must be received by 5:00p.m. on September 

12, 1998. Written comments may also be sent by facsimile machine 

to the attorney at (512) 239-3434. The TNRCC attorneys are available 

to discuss the AOs and/or the comment procedure at the listed phone 

numbers; however, §7.075 provides that comments on the AOs should 

be submitted to the TNRCC in writing. 

(!)COMPANY: Nicki Hicks dba Hicks Dairy; DOCKET NUMBER: 

96-1906-AGR-E; ACCOUNT NUMBER: 03263; LOCATION: approximately two miles west of intersection of Farm-to-Market Roads 

219 and 2303 in Erath County, Texas; TYPE OF FACILITY: confined animal feeding operation; RULES VIOLATED: Permit Number. 

03263, Special Provision 2.6 by failing to maintain adequate waste 

and wastewater disposal records; Permit Number 03263, Special Provision 2.2.5 and 30 TAC §321.35(a) by failing to properly maintain the wastewater storage pond; Texas Water Code, §26.12l(a), 30 

TAC §321.35, and Permit Number 03263 by discharging waste and 

wastewater from a wastewater storage pond into or adjacent to water 

in the state without authorization; Texas Water Code, §26.039 and 

Permit Number 03263 by failing to give oral notice to the TNRCC 

Arlington Regional Office within 24 hours and written noti~e to t?e 

TNRCC Central Office within five days of the unauthonzed discharge of waste and wastewater from the wastewater storage pond; 

PENALTY: $8,120; STAFF ATTORNEY: Lisa Z. Hernandez, Litigation Support Division, MC 175, (512) 239-0612; REGIONAL OFFICE: 1101 East Arkansas Lane, Arlington, Texas 76010-6499, (817) 

469-6750. 

TRD-9812389 

Margaret Hoffman 

Director, Legal-Environmental Law Division 

Texas Natural Resource Conservation Commission 

Filed: August 5, 1998 

• • • 

Notices of Public Hearings 

Notice is hereby given that under the requirements of Texas Health 

and Safety Code, §382.017; Texas Government Code, Subchapter B, 

Chapter 2001; and 40 Code of Federal Regulations (CFR), §51.102 

of the United States Environmental Protection Agency regulations 

concerning State Implementation Plans (SIP), the Texas Natural Resource Conservation Commission (commission) will conduct public 

hearings to receive testimony concerning revisions to 30 TAC Chapter 113. 

The commission proposes the repeal of §§113.31- 113.68, concerning 

Lead from Stationary Sources, and new § 113.55, concerning Radon 

Emissions from Phosphogypsum Stacks. The proposed repeals 

will eliminate lead rules which no longer apply to active lead 

sources, and the new section will request for delegation of authority 

to implement one of the 40 CFR, Part 61, National Emissions 

Standards for Hazardous Air Pollutants. In addition, the commission 

proposes renaming Subchapter B to National Emission Standards for 

Hazardous Air Pollutants (NESHAPs) (FCAA §112, 40 CFR 61). 

Public hearings on the proposal will be held in Austin on September 

8, 1998, at I 0:00a.m. in Building F, Room 2210 of the Texas Natural 

Resource Conservation Commission complex, located at 12100 North 

IH-35, Park 35 Technology Center; and in El Paso on September 9, 

1998, at 7:00p.m. at the City of El Paso Council Chambers, 2 Civic 

Center Plaza, 2nd Floor. The hearings are structured for the receipt 

of oral or written comments by interested persons. Individuals may 

present oral statements when called upon in order of registration. 

Open discussion will not occur during the hearings; however, an 

agency staff member will be available to discuss the proposal 30 

minutes prior to each hearing and answer questions before and after 

the hearings. 

Written comments may be submitted to Heather Evans, Office of 

Policy and Regulatory Development, MC 205, P.O. Box 13087, 

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

should reference Rule Log Number 98006-113-Al. Comments must 

be received by 5:00 p.m., September 14, 1998. For further 

information, please contact Phil Harwell, Air Policy and Regulations 

Division, Office of Policy and Regulatory Development, (512) 239-

1517. 

Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearing should 

contact the agency at (512) 239-4900. Requests should be made as 

far in advance as possible. 

TRD-9812113 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Filed: July 31, 1998 

• • • 

Notice is hereby given that pursuant to the requirements of the 

Texas Health and Safety Code Annotated, §382.017 (Vernon's 1992); 

Texas Government Code Annotated, Subchapter B, Chapter 2001 

(Vernon's 1993); and 40 Code of Federal Regulations, §51.102, of 

the United States Environmental Protection Agency (EPA) regulations 

concerning State Implementation Plans (SIP), the Texas Natural 

Resource Conservation Commission (commission) will conduct a 

public hearing to receive testimony regarding revisions to 30 TAC 

Chapter 114 and to the SIP concerning Transportation Conformity. 

The proposed rule and associated SIP revisions would incorporate 

recent EPA changes to the federal transportation conformity rule, 

which requires all transportation plans, programs, and projects in 

nonattainment or maintenance areas to conform to the SIP. Other 

proposed amendments would simplify transportation control measure 

requirements and clarify the transportation conformity determination 

process. The proposed revisions are required by the Federal Clean Air 

Act. If the revisions are not adopted, the nonattainment/maintenance 

areas of the state may be subject to EPA highway sanctions resulting 

in a loss of federal highway funding. 

This proposal was originally taken to hearing on May 13, 1998. 

Based on the significant nature of some comments received at that 

time, a decision was made to incorporate changes suggested by the 

commenters and schedule a new hearing. Persons who submitted 

comments during the first hearing and comment period will not 

be required to resubmit their comments, because the evaluation of 

testimony will include comments from both hearings and comment 

periods. Those persons may, however, submit additional comment if 

they so desire. 

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

September 8, 1998, at 2:00 p.m. in Building F, Room 2210, at the 

commission complex, located at 12100 North IH-35, Park 35 Circle, 

Austin, Texas. Individuals may present oral statements when called 

upon in order of registration. Open discussion will not occur 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. 

Written comments may be mailed to Ms. Heather Evans, Office 

of Policy and Regulatory Development, MC 205, P.O. Box 13087, 

Austin, Texas 78711-3087, or faxed to (512) 239-4808. Comments 

IN ADDITION August 14, 1998 23 TexReg 8577 
.• (2) • a specific description of each act alleged to have 

~.·-.ed the statutory or regulatory provision(s) identified in paragraph 

1 • • this subsection; 

:md 

ill a precise statement of the relevant facts: 

(4) an identification of the issue or issues to be resolved; 

ill argument and authorities in support of the protest; 

J.§l a statement that copies of the protest have been mailed 

or delivered to other identifiable interested persons. 

@ The Manager may settle and resolve the dispute concerning the solicitation or award of a contract bv mutual agreement with 

the protesting person. The Manager may solicit written responses to 

:he protest from other interested persons. 

(e) If the protest is not resolved bv mutual agreement, the 

\·fanal!er will issue a written determination on the protest. 

ill If the Manager determines that no violation of rules 

or statutes has occurred. he or she shall inform the protesting person 

:md other interested persons by letter which sets forth the reasons for 

the determination. 

(2) If the Manager determines that a violation of the 

mles or statutes has occurred in a case wher.: a contract has not 

s~en awarded. he or she shall inform the protesting person and 

other interested persons by letter that sets forth the reasons for the 

determination and the appropriate remedial action. 

(3) If the Manager determines that a \'iolation of the rules 

or statutes has occurred in a case where a contract has been awarded, 

he or she shall inform the protesting person and other interested 

~ons by letter which sets forth the reasons for the determination, 

~ '1 may include ordering the contract void. 

ill After the Manager's determination has been made, the 

aggrieved person or interested persons may request reconsideration 

of the Manager's determination to be made bv the executive director 

or his designee. Such request must be in writing and must be received 

:n the Purchasing Section no later than ten working days after the date 

of the Manager's determination, which shall be calculated from the 

Jate the Manager's letter is hand-delivered. delivered by a nationally 

recognized courier service, or mailed by certified or registered mail. 

The request shall be limited to review of the Manager's determination. 

Copies of the request must be mailed or delivered by the aggrieved 

person to other interested persons. The request must contain an 

affidavit that such copies have been provided. 

.(g} The executive director shall either: 

ill issue a final determination on the protest within 15 

days after receipt of the aggrieved person's request for reconsideration: or 

@ in his discretion, refer the matter to the commission 

for its consideration at a regularly scheduled open meeting. 

(h) When a request for reconsideration has been received by 

the executive director under subsection (f) of this section and has been 

referred to the commission by the executive director under subsection 

(g) of this section, the following requirements shall apply. 

ill The request for reconsideration and responses of 

interested persons, if any, shall be filed with the chief clerk by the 

executive director. 

-

23 TexReg 8360 August 14, 1998 Texas Register 

(2) Copies of all documents filed with L!-Je chief clerk 

shall be mailed to the executive director. the appealinl! partv. <JmJ all 

other interested persons, no later than the day of filinl!. 

ill All interested persons who wish to make an oral 

presentation at the open meeting shall complete a public participo.Jtion 

form and deliver it to the chief clerk's representative at the meetin!.!. 

ill The commission may consider oral presentations and 

written documents presented by staff and interested persons. 

(5) The commission's determination of the appeal shall 

be by commission order. 

(i) Unless good cause for delay is shown or the Mana,ger 

or executi\·e director determines that a protest or appeal raises issues 

significant to procurement practices or procedures, a protest or appeal 

that is not filed timely will not be considered. 

ill A decision issued in response to a request for reconsideration. either by the commission. or in writin~.: by the executive 

director. shall be the final administrative action of the commission. 

(k) In the event of a protest. all documents collected by the 

commission as part of a solicitation. evalu:~tion, ancJJor award of a 

contract shall be retained by the commission for a period of four 

years to include the current fiscal year and three additional fiscal 

years. 

§.l.L.I_ Bid Opening and Tabulation. 

(a) The commission adopts by reference the rules of the 

Texas General Services Commission in I TAC §113.5(b) (relating 

to Bid Submission. Bid Opening. and Tabulation) effective April 20. 

1993. 

(b) The adoption of this rule is required by Texas Government Code. §2156.005(d). 75th Legislature. 1997. 

ill Copies of the mle are filed in the Texas Natural Resource 

Conservation Commission's (TNRCC) Library, located at 12100 Park 

35 Circle. Building A. Austin. and at all TNRCC regional offices. 

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 July 31, 1998. 

TRD-9812099 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: October 21, 1998 

For further information, please call: (512) 239-1966 

• • • 

Chapter 113. Control of Air Pollution From 

Toxic Materials 

Subchapter B. Lead From Stationary Sources 

The commission proposes the repeal of §§ 113.31-113.37, 

113.41-113.48,113.51-113.54, and 113.61-113.68, concerning 

Lead from Stationary Sources and a proposed revision to the 

State Implementation Plan (SIP) concerning these repeals. The 

commission also proposes new §113.55, concerning Radon 

Emissions from Phosphogypsum Stacks {40 CFR 61, Subpart 

R); a new division concerning Radionuclide National Emission 

Standards for Hazardous Air Pollutants (NESHAPs); and to 
ctLange the title of Subchapter B from "Lead from Stationary 

Sources" to "National Emission Standards for Hazardous Air 

Pollutants (FCAA § 112, 40 CFR 61 ). 

EXPLANATION OF PROPOSED RULES 

This proposal is part of the regulatory reform effort. Regulatory reform projects identify rules and regulations which need 

clarification for the benefit of the public; are outdated; impose 

regulatory requirements in excess of their contribution to the 

commission's mission; or are duplicated, unnecessary, or inconsistent. This proposal is also a request for delegation of 

authority to implement one . of the Title 40, Code of Federal 

Regulations, Part 61 (40 CFR 61) NESHAPs. 

The proposed repeals will eliminate lead rules which no longer 

apply to active lead sources. The lead rules for El Paso were 

adopted February 17, 1984, and for Dallas were adopted May 

18, 1984, as a result of a primary lead smelter (ASARCO) located in El Paso County, and two secondary lead smelters (battery recycling facilities) located in Dallas County, which caused 

the counties to violate the National Ambient Air Quality Standard 

for lead. Subsequently, the lead processes in all three facilities 

were shut down and the equipment dismantled. The remaining 

lead emitting process (a copper process) in the El Paso facility 

is under very rigid permit control (New Source Review (NSR) 

permit number 20345) for lead emissions. Fugitive lead emissions from the ASARCO plant are effectively controlled by existing particulate rules in Chapter 111 (concerning Control of Air 

Pollution from Visible Emissions and Particulate Matter) which 

apply throughout El Paso. The fugitive lead emissions from outdoor storage piles are controlled by NSR permit number 4151 

as well as controls found in 30 TAG § 111.143, concerning Materials Handling. The fugitive lead emissions from the grounds 

and roads of the plant are controlled by permit number 20345 

as well as controls found in 30 TAG§ 111.147(a)(1 ), concerning 

Roads, Streets, and Alleys. One of the sites in Dallas (known as 

the Dixie Metals Company or the Exide Corporation) has been 

remediated under the federal Superfund program, and the other 

site in Dallas (Murph Metals, Incorporated, a subsidiary of RSR 

Corporation) is proposed for a state and federally supported 

remediation. There are no other operational lead smelters located, or anticipated to be located, within El Paso or Dallas 

County: therefore, the subject rules are being proposed for repeal under rule streamlining. 

The proposed repeal of the existing Subchapter B, concerning Lead from Stationary Sources will be concurrent with a 

proposed new Subchapter B, concerning National Emission 

Standards for Hazardous Air Pollutants (FCAA §112, 40 CFR 

61 ). The new Subchapter B will complement the existing Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 

CFR 63), which are requirements of the 1990 Federal Clean 

Air Act Amendments. Unlike other Part 61 NESHAPs, Texas 

was not automatically delegated authority to implement any Radionuclide NESHAP. Part 61, Subpart R, Radon Emissions from 

Phosphogypsum Stacks, is actually one of seven standards that 

apply to various types of federal or industrial facilities which have 

potential emissions of radioactive substances (radionuclides). 

The United States Environmental Protection Agency (EPA) has 

requested that Texas take delegation of Subpart R. For the existing facilities to be in compliance under Part 61, Subpart R, 

the commission would be notified in advance of a Radon test 

so it may be observed. Ninety days after the test, the report 

would be sent to the commission. The test requires a statistical 

sampling approach which is unique from other requirements associated with air regulations. The operators will also submit an.-, 

annual report to both the EPA and the appropriate commission 

regional office. 

FISCAL NOTE 

Stephen Mi~ick, Strategic Planning and Appropriations Division, 

has determ1ned that for the first five-year period the proposed 

revisions are in effect there will be no significant fiscal implica-· 

lions for state or local government as a result of administration 

or enforcement of the rules. All lead processes in Dallas County 

and El Paso County have been shut down and therefore the 

need for Subchapter B no longer exists. Only a copper process 

which emits lead remains in an El Paso facility and is under 

very rigid permit control for lead emissions. The proposed new 

Subchapter B, concerning Radon Emissions from Phosphogypsum Stacks, will require review of existing records at facilities 

already being inspected by regional offices. 

PUBLIC BENEFIT 

Mr. Minick also has determined that for each year of the first 

five years the proposed sections are in effect, the public benefit 

anticipated from enforcement of and compliance with these 

sections will be a reduction in the emission of hazardous air 

pollutants, increased consistency between federal and state air 

quality regulations, and more cost effective implementation and 

enforcement of air quality standards. The economic impact of 

complying with the standards as they are promulgated will vary 

for each standard and for each industry subject to the standards; 

however, no additional economic impact to affected owners and 

operators is anticipated due to the state's adoption of the federal 

requirements or the delegation of enforcement to the state. 

There are no additional anticipated economic costs to persons ....., 

or small businesses required to comply with the sections as 

proposed. All known facilities that the Radionuclide NESHAP 

would be applicable under do not meet the definition of small 

business as defined in Texas Government Code, §2006.002. 

The Radon Emissions from Phosphogypsum Stacks (40 CFR 

61, subpart R) rule has been enforced by the EPA since 1992 

and the state is only seeking delegation through this rule. Any 

financial impact that would be expected from this rule would be 

minimal. The repeal is removing requirements and therefore 

should have no economic impacts. 

DRAFT REGULATORY IMPACT ANALYSIS 

The commission has reviewed the proposed rulemaking in light 

of the regulatory analysis requirements of Texas Government 

Code, §2001.0225, and has determined that the rulemaking 

is not subject to §2001.0225 because it does not meet the 

definition of a "major environmental rule" as defined in the act, 

and it does not meet any of the four applicability requirements 

listed in §2001.0225(a). The repeal of the Subchapter B rules 

will not change the current level of protection of the environment. 

The proposed new rule does protect the environment and 

reduces risks to human health from environmental exposure, 

but does not meet the definition of a major environmental 

rule because the obligations have already been established by 

federal law and thus are not new requirements. The repeals 

and proposed new rule should not adversely affect the economy 

in a material way because the identified affected facilities 

are currently meeting the federal standard being enforced by 

EPA. Therefore, this does not meet the definition of a "major" 

environmental rule. 

-· 

PROPOSED RULES August 14, 1998 23 TexReg 8361 
TAKINGS IMPACT ASSESSMENT 

- commission has prepared a Takings Impact Assessment 

11 ... this proposal under Texas Government Code, §2007.043. 

The following is a summary of that assessment. The specific 

purpose of this rulemaking is to repeal lead rules because there 

is no longer a need due to the shut down and dismantling of 

the affected facilities. The adoption by reference of 40 CFR 61, 

Subpart R will give Texas the authority to enforce the federal 

standard. Promulgation and enforcement of this rulemaking 

will not affect private real property because the rules being 

proposed for repeal apply to non-existent or decommissioned 

facilities, and the rules being proposed for adoption already exist 

at the federal level and are currently enforced by EPA. 

COASTAL MANAGEMENT PLAN 

The commission has determined that the proposed rulemaking 

concerning the 40 CFR 61, Subpart R NESHAP relates to an 

action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination 

Act of 1991, as amended (Texas Natural Resource Code, 

§§33.201 et. seq.), and the commission's rules in 30 TAG 

Chapter 281, Subchapter B, concerning Consistency with the 

Texas Coastal Management Program. The repeal of the lead 

rules should not relate due to the nonexistence of applicable 

sources in Texas. As required by 31 TAG §505.11 (b)(2) and 

30 TAG §281.45(a)(3), relating to actions and rules subject to 

the CMP, commission rules governing air pollutant emissions 

must be consistent with the applicable goals and policies of 

the CMP. The commission has reviewed this proposed action 

for consistency with the CMP goals and policies in accordance 

with the rules of the Coastal Coordination Council and has 

~!ermined that the proposed action is consistent with the 

· 'licable CMP goals and policies. The CMP policy applicable 

·~ this rulemaking action is the policy that commission rules 

comply with regulations at 40 CFR, to protect and enhance air 

quality in the coastal area (31 TAG §501.14(q)). This proposal 

does not change existing requirements which already comply 

with regulations in 40 CFR, and is therefore consistent with 

this policy. Interested persons may submit comments on the 

consistency of the proposed rules with the CMP during the 

public comment period. 

PUBLIC HEARING 

Public hearings on the proposal will be held in Austin on 

September 8, 1998 at 10:00 a.m. in Building F, Room 

2210 of the Texas Natural Resource Conservation Commission 

complex, located at 12100 North IH-35, Park 35 Technology 

Center, Austin; and in El Paso on September 9, 1998, at 7:00 

p.m. at the City of El Paso Council Chambers, 2 Civic Center 

Plaza, 2nd Floor. The hearings are structured for the receipt 

of oral or written comments by interested persons. Individuals 

may present oral statements when called upon in order of 

registration. Open discussion within the audience will not occur 

during the hearings; however, an agency staff member will 

be available to discuss the proposal 30 minutes prior to each 

hearing and answer questions before and after each hearing. 

SUBMITTAL OF COMMENTS 

Written comments may be submitted to Heather Evans, Office 

of Policy and Regulatory Development, MC 205, P.O. Box 

13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. 

All comments should reference Rule Log No. 98006-113-AI. 

..e . ..,mments must be received by 5:00p.m. September 14, 1998. 

23 TexReg 8362 August 14, 1998 Texas Register 

For further information, please contact Phil Harwell of the Air 

Policy and Regulations Division, Office of Policy and Regulatory 

Development, (512) 239-1517. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact the agency at (512) 239-4900. Requests 

should be made as far in advance as possible. 

Division 1. NonfeiTous Smelters in El Paso County 

30 TAC §§113.31-113.37 

(Editor's note: The text of the following sections proposedfor reperzl 

will not be published. T11e sections may be examined in the offices of 

the Texas Natural Resource Comervation Commission or in the Texas 

Register office. Room 245. James Earl Rudder Building, 1019 Brazos 

Street. Austin.) 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.017, which provides 

the commission with the authority to adopt rules consistent 

with the policy and purpose of the TCAA because the primary 

purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting 

sources and to propose the adoption by reference of a federal 

standard. 

The proposed repeals do not implement any new state or federal 

requirement, and are part of the regulatory reform effort. 

§113.31. 

§113.32. 

§113.33. 

§113.34. 

§113.35. 

§113.36. 

Maintenrznce and Operation of Control Equipmellt. 

.4reas Accessible to the General Public. 

Control of Fugitive Dust. 

Materials Handling and Transfer. 

Smelting of Lerzd. 

Smelting of Copper and Zinc. 

§113.37. Lead Emissions Limits for Strzcks. 

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 July 31, 1998. 

TRD-9812103 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: November 18, 1998 

For further information, please call: (512) 239-1970 

+ + + 

Division 2. Lead Smelters in Dallas County 

30 TAC §§113.41-113.48 

(Editor's note: The text of the following sections proposed for repeal 

will not be published. The sections may be examined in the offices of 

the Texrzs Natural Resource Conservation Commission or in the Texas 

Register office, Room 245, James Earl Rudder Building, 1019 Brazos 

Street, Austin.) 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.017, which provides 
th~ .-commiSSIOn with the authority to adopt rules consistent 

with the policy and purpose of the TCAA because the primary 

purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting 

sources and to propose the adoption by reference of a federal 

standard. 

The proposed repeals do not implement any new state or federal 

requirement, and are part of the regulatory reform effort. 

§113.41. Maintenance and Operation of Comrol Equipmellt. 

§113.42. Storage of Lead-Containing Materials. 

§113.43. Transport of Materials. 

§113.44. Fugitive Emissions from Lead Processes. 

§113.45. Battery or Lead Reclaiming Operatiom. 

§113.46. Lead Emission Limit.1 for Re~·erheratory Fumace.1 and 

Blast Furnaces. 

§113.47. Control of Fugitive Du.1t. 

§113.48. Additional Measures to Reduce Lead Emiuimzs. 

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 July 31, 1998. 

TRD-98121 04 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: November 18, 1998 

For further information, please call: (512} 239-1970 

• • 

Division 3. Alternate Controls 

30 TAC §§113.51-113.54 

• 

(Editor's note: The text of the following section.~ proposed for repeal 

H'illnot be published. T7ze sections may be examined in the offices of 

the Texas Natural Resource Conservation Commission or in the Texas 

Register office, Room 245, James Earl R11dder Building, 1019 Brazos 

Street, Austill.) 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.017, which provides 

the commission with the authority to adopt rules consistent 

with the policy and purpose of the TCAA because the primary 

purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting 

sources and to propose the adoption by reference of a federal 

standard. 

The proposed repeals do not implement any new state or federal 

requirement, and are part of the regulatory reform effort. 

§113.51. Alternate Means of Control in El Paso County. 

§11 3.52. Alternate Emission Reductiom in El Paso County. 

§113.53. Alternate Means of Control in Dallas County. 

§113.54. Alternate Emission Reductions in Dallas County. 

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 July 31, 1998. 

TRD-98121 05 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: November 18, 1998 

For further information, please call: (512) 239-1970 

• • • 

Subchapter B. National emission Standards for 

Hazardous Air Pollutants (FCAA ~ 112.40 CFR 61) 

1. Radionuclide NESHAPs 

30 TAC § 113.55 

STATUTORY AUTHORITY 

The new section is proposed under the Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.017, which provides 

the commission with the authority to adopt rules consistent with 

the policy and purposes of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter which contains an air emission standard applicable to nonexisting sources 

and propose the adoption by reference of a federal standard. 

The new section is also proposed under the TCAA, §382.011, 

which provides the commission with the authority to control the 

quality of the state's air which the new proposed rule will accomplish by regulating emissions from phosphogypsum stacks. 

Under TCAA, §382.012, which provides for the commission to 

prepare and develop a general, comprehensive plan for the 

proper control of the state's air, the new proposed rule is one 

of many national standards developed for the overall control of 

hazardous air pollutants in the United States. The new rule 

is also proposed under TCAA, §382.016, which authorizes the 

commission to require monitoring requirements and examination of records and therefore is consistent with the referenced 

requirements. 

The authority for delegation of 40 CFR Part 61 for both the 

implementation and enforcement of NESHAPs is contained in 

§112(1) of the 1990 Federal Clean Air Act Amendments and 40 

CFR 63, Subpart E, Approval of State Programs and Delegation 

of Federal Authorities. 

§!13.55. Radon Emissions (rom Phosphoqwuwn Stncb- r40 CFR 

61, Subpart R). 

The National Emissions Standards for Radon Emissions from Phosphogypsum Stacks as specified in 40 CFR 61. Subpart R. as promull!ated on June 3. 1992, are incorporated by reference. 

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 July 31, 1998. 

TRD-98121 06 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: November 18, 1998 

For further information, please call: (512) 239-1970 

• • • 

Subchapter B. Lead From Stationary Sources 

PROPOSED RULES August 14, 1998 23 TexReg 8363 
Division 4. Compliance and Control Plan Requirer ·- ts 

30 TAC §§113.61-113.68 

(Editor'.f note: The lex/ of the following sec/ions proposed for repeal 

will no/ be published. The sec/ions may be examined in the offices of 

the Texas Namral Resource Conservation Commission or in the Texas 

Register office, Room245, James Earl Rudder Building, 1019 Brazos 

Street, Austilz.) 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), §382.017, which provides 

the commission with the authority to adopt rules consistent 

with the policy and purpose of the TCAA because the primary 

purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting 

sources and to propose the adoption by reference of a federal 

standard. 

The proposed repeals do not implement any new state or federal 

requirement, and are part of the regulatory reform effort. 

§1 1 3.61. Compliance with Other Rules in El Paso County. 

§ 113.62. Dales for Control Plan Submission and for Final Compliance in £1 Pa.w County. 

§113.63. Conlml Plan Procedure in £1 Paso County. 

§1 1 3.64. Reporting Procedure in El Paso Cowzl)'. 

§ 113.65. Compliance with Other Rules in Dallas County. 

§I 13.66. Dates for Crmlml Plan Submission and for Final Complimzce in Dallas County. 

~- .67. Control Plan Pmcedure in Dallas County. 

~~ ,3.68. Reporting Pmcedure in Dallas Cowzl)·. 

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 July 31, 1998. 

TRD-98121 07 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: November 18, 1998 

For further information, please call: (512) 239-1970 

• • • 

Chapter 114. Control of Air Pollution From Motor Vehicles 

Subchapter G. Transportation Planning 

30 TAC §114.260 

The commission withdraws the proposed amendments to Chapter 114, Subchapter G, §114.260, concerning Transportation 

Conformity, and a proposed revision to the State Implementation 

Plan (SIP) concerning Transportation Conformity as published 

in the April 24, 1998 issue of the Texas Register (23 TexReg 

4134). The commission also proposes a new set of amendments to Chapter 114, Subchapter G. §114.260, concerning 

,lwnsportation Conformity, and a new proposed revision to the 

' concerning Transportation Conformity. 

23 TexReg 8364 August 14, 1998 Texas Register 

EXPLANATION OF PROPOSED RULE 

The Texas transportation conformity rule (§114.260) and its associated SIP were adopted on October 19, 1994, in response 

to the Federal Clean Air Act (FCAA) requirements. The FCAA 

required states to submit a revision to their SIP no later than 

November 25, 1994 establishing enforceable criteria and procedures for making conformity determinations for metropolitan 

transportation plans, transportation improvement programs, and 

projects funded by the Federal Highway Administration (FHWA) 

or the Federal Transit Administration (FTA). Emissions estimates 

of transportation plans, programs. and projects must be found 

to conform with their corresponding emissions estimates or budgets contained in the applicable SIP before they are approved 

or funded by the U. S. Department of Transportation or the 

Metropolitan Planning Organizations (MPOs) in nonattainment 

and maintenance areas. Failure to demonstrate transportation 

conformity will result in a partial loss of federal highway funding. The Texas transportation conformity SIP and rule were 

approved by the U. S. Environmental Protection Agency (EPA) 

on November 8, 1995. Since their initial promulgation, EPA 

has amended the federal transportation conformity rules three 

times; on August 7, 1995, November 14, 1995, and August 15, 

1997. As a result of the August 15, 1997 amendments, Texas 

is required to amend the SIP and state transportation conformity rule to incorporate the federal amendments by August 15, 

1998. 

The proposed amendments were initially published in the April 

24, 1998 issue of the Texas Register (23 TexReg 4134), and 

a public hearing was held on May 13, 1 998. Six persons 

attended the hearing and one person presented oral testimony. 

In addition, there were a total of two persons who provided 

written comments. As part of their testimony, EPA stated that 

the rule as proposed did not include all the requirements of 

40 CFR §93.105(c)(4) regarding the responsibilities of nonfederal entities to report the design or construction plans, or 

changes to the existing plans, to the MPO. Due to the fact 

that the original proposal did not include the responsibilities for 

these non-federal entities, the rule must be reproposed through 

the Texas Register. In addition, the suggested changes from 

other commenters were incorporated into the new proposal. 

All comments previously submitted will be addressed in the 

analysis of testimony after the second hearing and comment 

period. Therefore, persons who submitted comments for the 

first proposal do not have to resubmit those comments for the 

second proposal. 

The proposed amendments will incorporate, by reference, the 

August 15, 1997, amendments to the federal transportation 

conformity rule (40 CFR, Part 51 Subpart T and Part 93 Subpart 

A) with the exception of §93.1 02(d) and §93.1 05. Section 

93.1 02(d) established a grace period for new nonattainment 

areas and has been disallowed as a result of the Sierra 

Club versus EPA federal court case on November 4, 1997. 

Section 93.105 requires states to develop their own consultation 

procedures subject to EPA guidelines. Chapter 114, §114.260 

establishes the interagency and public consultation procedures 

consistent with the EPA guidelines. 

Most of the amendments to the federal transportation conformity 

rule are organizational changes or are slightly less stringent in 

nature. However, the amendment that requires a nonattainment 

area to demonstrate transportation conformity to a nitrogen 

oxides (NO.) motor vehicle emissions budget, regardless of the 

area's NO, waiver status, is more stringent than the current 
-

Barry R. McBee, Chairman 

R. B. "Ralph" Marquez, Commissioner 

John M. Baker, Commissioner 

Jeffrey A. Saitas, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARINGS BY THE 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 113 

AND THE STATE IMPLEI\1ENT A TION PLAN 

Notice is hereby given that under the requirements of Texas Health and Safety Code, §382.017; Texas 

Government Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations (CFR), §51.102 of the 

United States Environmental Protection Agency regulations concerning State Implementation Plans (SIP), the 

Texas Natural Resource Conservation Commission (commission) will conduct public hearings to receive 

testimony concerning revisions to 30 TAC Chapter 113. 

The commission proposes the repeal of §§113.31- 113.68, concerning Lead from Stationary Sources, and new 

§113.55, concerning Radon Emissions from Phosphogypsum Stacks. The proposed repeals will eliminate lead 

rules which no longer apply to active lead sources, and the new section will request for delegation of authority 

to implement one of the 40 CFR, Part 61, National Emissions Standards for Hazardous Air Pollutants. In 

addition, the commission proposes renaming Subchapter B to National Emission Standards for Hazardous Air 

Pollutants (NESHAPs) (FCAA §112, 40 CFR 61). 

Public hearings on the proposal will be held in Austin on September 8, 1998, at 10:00 a.m. in 

Building F, Room 2210 of the Texas Natural Resource Conservation Commission complex, located at 12100 

North IH-35, Park 35 Technology Center; and in El Paso on September 9, 1998, at 7:00p.m. at the City of 

El Paso Council Chambers, 2 Civic Center Plaza, 2nd Floor. The hearings are structured for the receipt of 

oral or written comments by interested persons. Individuals may present oral statements when called upon 

in order of registration. Open discussion will not occur during the hearings; however, an agency staff member 

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

the hearings. 

Written comments may be submitted to Heather Evans, Office of Policy and Regulatory Development, 

MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments 

should reference Rule Log Number 98006-113-AI. Comments must be received by 5:00 p.m., 

September 14, 1998. For further information, please contact Phil Harwell, Air Policy and Regulations 

Division, Office of Policy and Regulatory Development, (512) 239-1517. 

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

to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance 

as possible. 

Issued in Austin, Texas, on July 29, 1998. 

Texas Natural Resour,ce Conservation Commission 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tnrcc.state.tx.us 
!Jarry R:· McBee, Chainnan 

- R. B. "Ralph" Marquez, Commissioner 

John M. Baker, Commissioner 

Jeffrey A. Saitas, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARINGS BY THE 

TEXAS NATURAL RESOURCE CO~SERVATION CO~'lMISSION 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 113 

Ai\'D THE STATE IMPLEMENTATION PLAN 

Notice is hereby given that under the requirements of Texas Health and Safety Code, §382.017; Texas 

Government Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations (CFR), §51.102 of 

the United States Environmental Protection Agency regulations concerning State Implementation Plans 

(SIP), the Texas Natural Resource Conservation Commission (commission) will conduct a public hearing 

to receive testimony concerning revisions to 30 T AC Chapter 113 and to the SIP. 

The commission proposes the repeal of §§113.31-113.68, concerning Lead from Stationary Sources. The 

proposed repeals will eliminate lead rules which no longer apply to active lead sources. In addition, the 

commission proposes renaming Subchapter B to National Emission Standards for Hazardous Air Pollutants 

(NESHAPs) (FCAA §112, 40 CFR 61). 

This proposal was originally taken to hearing on September 8 and 9, 1998. However, due to an error in 

fulfilling all public hearing notification requirements for SIPs, the commission has scheduled another public 

hearing. The additional public hearing will be held in Austin on October 26, 1998, at 10:00 a.m. in 

Building F, Room 2210 of the Texas Natural Resource Conservation Commission complex, located at 

12100 North IH-35, Park 35 Technology Center. The hearing is structured for the receipt of oral or 

written comments by interested persons. Individuals may present oral statements when called upon in order 

of registration. Open discussion will not occur during the hearing; however, an agency staff member will 

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

the hearing. 

Written comments may be submitted to Heather Evans, Office of Policy and Regulatory Development, 

MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments 

should reference Rule Log Number 98006-113-AI. Comments must be received by 5:00 p.m., 

October 26, 1998. For further information, please contact Phil Harwell, Air Policy and Regulations 

Division, Office of Policy and Regulatory Development, (512) 239-1517. 

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

to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in 

advance as possible. 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tnrcc.state.tx.us 
·-

Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

Page 1 

The commission proposes the repeal of §§113.31-113.37, 113.41-113.48, 113.51-113.54, and 113.61-

113.68, concerning Lead from Stationary Sources and a proposed revision to the State Implementation 

Plan (SIP) concerning these repeals. The commission also proposes new §113.55, concerning Radon 

Emissions from Phosphogypsum Stacks (40 CFR 61, Subpart R); a new division concerning Radionuclide 

National Emission Standards for Hazardous Air Pollutants (NESHAPs); and to change the title of 

Subchapter B from "Lead from Stationary Sources" to "National Emission Standards for Hazardous Air 

Pollutants (FCAA §112, 40 CFR 61). 

EXPLANATION OF PROPOSED RULES 

This proposal is part of the regulatory reform effort. Regulatory reform projec~s identify rules and 

regulations which need clarification for the benefit of the public; are outdated; impose regulatory 

requirements in excess of their contribution to the commission's mission; or are duplicated, unnecessary, 

or inconsistent. This proposal is also a request for delegation of authority to implement one of the Title 

40, Code of Federal Regulations, Part 61 (40 CFR 61) NESHAPs. 

The proposed repeals will eliminate lead rules which no longer apply to active lead sources. The lead 

rules for El Paso were adopted February 17, 1984, and for Dallas were adopted May 18, 1984, as a result 

of a primary lead smelter (ASARCO) located in El Paso County, and two secondary lead smelters (battery 

recycling facilities) located in Dallas County, which caused the counties to violate the National Ambient 

Air Quality Standard for lead. Subsequently, the lead processes in all three facilities were shut down and 

the equipment dismantled. The remaining lead emitting process (a copper process) in the El Paso facility 

is under very rigid permit control (New Source Review (NSR) permit number 20345) for lead emissions. 
Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

Page 2 

Fugitive lead emissions from the ASARCO plant are effectively controlled by existing particulate rules in 

Chapter 111 (concerning Control of Air Pollution from Visible Emissions and Particulate Matter) which 

apply throughout El Paso. The fugitive lead emissions from outdoor storage piles are controlled by NSR 

permit number 4151 as well as controls found in 30 TAC §111.143, concerning Materials Handling. The 

fugitive lead emissions from the grounds and roads of the plant are controlled by permit number 20345 as 

well as controls found in 30 TAC §111.147(a)(l), concerning Roads, Streets, and Alleys. One of the sites 

in Dallas (known as the Dixie Metals Company or the Exide Corporation) has been remediated under the 

federal Superfund program, and the other site in Dallas (Murph Metals, Incorporated, a subsidiary of RSR 

Corporation) is proposed for a state and federally supported remediation. There are no other operational 

lead smelters located, or anticipated to be located, within El Paso or Dallas County; therefore, the subject 

rules are being proposed for repeal under rule streamlining. 

The proposed repeal of the existing Subchapter B, concerning Lead from Stationary Sources will be 

concurrent with a proposed new Subchapter B, concerning National Emission Standards for Hazardous Air 

Pollutants (FCAA §112, 40 CFR 61). The new Subchapter B will complement the existing Subchapter C, 

concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA 

§112, 40 CFR 63), which are requirements of the 1990 Federal Clean Air Act Amendments. Unlike other 

Part 61 NESHAPs, Texas was not automatically delegated authority to implement any Radionuclide 

NESHAP. Part 61, Subpart R, Radon Emissions from Phosphogypsum Stacks, is actually one of seven 

standards that apply to various types of federal or industrial facilities which have potential emissions of 

radioactive substances (radionuclides). The United States Environmental Protection Agency (EPA) has 

requested that Texas take delegation of Subpart R. For the existing facilities to be in compliance under 
Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

Page 3 

Part 61, Subpart R, the commission would be notified in advance of a Radon test so it may be observed. 

Ninety days after the test, the report would be sent to the commission. The test requires a statistical 

sampling approach which is unique from other requirements associated with air regulations. The operators 

will also submit an annual report to both the EPA and the appropriate commission regional office. 

FISCAL NOTE 

Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year 

period the proposed revisions are in effect there will be no significant fiscal implications for state or local 

government as a result of administration or enforcement of the rules. All lead processes in Dallas County 

and El Paso County have been shut down and therefore the need for Subchapter B no longer exists. Only 

a copper process which emits lead remains in an El Paso facility and is under very rigid permit control for 

lead emissions. The proposed new Subchapter B, concerning Radon Emissions from Phosphogypsum 

Stacks, will require review of existing records at facilities already being inspected by regional offices. 

PUBLIC BENEFIT 

Mr. Minick has also determined that for each year of the first five years the proposed sections are in 

effect, the public benefit anticipated from enforcement of and compliance with these sections will be a 

reduction in the emission of hazardous air pollutants, increased consistency between federal and state air 

quality regulations, and more cost effective implementation and enforcement of air quality standards. The 

economic impact of complying with the standards as they are promulgated will vary for each standard and 

for each industry subject to the standards; however, no additional economic impact to affected owners and 

operators is anticipated due to the state's adoption of the federal requirements or the delegation of 
Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Lng Number 98006-113-AI 

Page 4 

enforcement to the state. There are no additional anticipated economic costs to persons or small businesses 

required to comply with the sections as proposed. All known facilities that the Radionuclide NESHAP 

would be applicable under do not meet the definition of small business as defined in Texas Government 

Code, §2006.002. The Radon Emissions from Phosphogypsum Stacks (40 CFR 61, subpart R) rule has 

been enforced by the EPA since 1992 and the state is only seeking delegation through this rule. Any 

fmancial impact that would be expected from this rule would be minimal. The repeal is removing 

requirements and therefore should have no economic impacts. 

DRAFT REGULA TORY IMPACT ANALYSIS 

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

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

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

and it does not meet any of the four applicability requirements listed in §2001.0225(a). The repeal of the 

Subchapter B rules will not change the current level of protection of the environment. The proposed new 

rule does protect the environment and reduces risks to human health from environmental exposure, but 

does not meet the definition of a major environmental rule because the obligations have already been 

established by federal law and thus are not new requirements. The repeals and proposed new rule should 

not adversely affect the economy in a material way because the identified affected facilities are currently 

meeting the federal standard being enforced by EPA. Therefore, this does not meet the definition of a 

"major" environmental rule. 

TAKINGS IMPACT ASSESSMENT 
-

Texas Natural Resource Conservation Commission 

Chapter 113 -Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

Page 5 

The commission has prepared a Takings Impact Assessment for this proposal under Texas Goverrunent 

Code, §2007 .043. The following is a summary of that assessment. The specific purpose of this 

rulemaking is to repeal lead rules because there is no longer a need due to the shut down and dismantling 

of the affected facilities. The adoption by reference of 40 CFR 61, Subpart R will give Texas the authority 

to enforce the federal standard. Promulgation and enforcement of this rulemaking will not affect private 

real property because the rules being proposed for repeal apply to non-existent or decommissioned 

facilities, and the rules being proposed for adoption already exist at the federal level and are currently 

enforced by EPA. 

COASTAL MANAGEMENT PLAN 

The commission has determined that the proposed rulemaking concerning the 40 CPR 61, Subpart R 

NESHAP relates to an action or actions subject to the Texas Coastal Management Program (CMP) in 

accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Code, 

§§33.201 et. seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning 

Consistency with the Texas Coastal Management Program. The repeal of the lead rules should not relate 

due to the nonexistence of applicable sources in Texas. As required by 31 TAC §505.11(b)(2) and 30 

T AC §281.45(a)(3), relating to actions and rules subject to the CMP, commission rules governing air 

pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission 

has reviewed this proposed action for consistency with the CMP goals and policies in accordance with the 

rules of the Coastal Coordination Council and has determined that the proposed action is consistent with 

the applicable CMP goals and policies. The CMP policy applicable to this rulemaking action is the policy 

that commission rules comply with regulations at 40 CPR, to protect and enhance air quality in the coastal 
Texas Natural Resource Conservation Commission 

Chapter 113 -Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

Page 6 

area (31 TAC §501.14(q)). This proposal does not change existing requirements which already comply 

with regulations in 40 CFR, and is therefore consistent with this policy. Interested persons may submit 

comments on the consistency of the proposed rules with the CMP during the public comment period. 

PUBLIC HEARING 

A public hearing on the proposal will be held in Austin on September 8, 1998 at 10:00 a.m. in Building F, 

Room 2210 of the Texas Natural Resource Conservation Commission complex, located at 12100 North 

IH-35, Park 35 Technology Center, Austin. The hearing is structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral statements when called upon in order of 

registration. Open discussion within the audience will not occur during the hearing; however, an agency 

staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions 

before and after the hearing. 

SUBMITTAL OF COMMENTS 

Written comments may be submitted to Heather Evans, Office of Policy and Regulatory Development, 

MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should 

reference Rule Log No. 98006-113-AI. Comments must be received by 5:00p.m. September 14, 1998. 

For further information, please contact Phil Harwell of the Air Policy and Regulations Division, Office of 

Policy and Regulatory Development, (512) 239-1517. 
·-

Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

Page 7 

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

to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in 

advance as possible. 
Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

Page 8 

§382.017, which provides the commission with the authority to adopt rules consistent with the policy and 

purpose of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting sources and to propose the adoption by 

reference of a federal standard. 

The proposed repeals do not implement any new state or federal requirement, and are part of the 

regulatory reform effort. 
-

Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

SUBCHAPTER B : LEAD FROM STATIONARY SOURCES 

1. NONFERROUS SMELTERS IN EL PASO COUNTY 

§§113.31 - 113.37 

§113.31. Maintenance and Operation of Control Equipment. 

§113.32. Areas Accessible to the General Public. 

§113.33. Control of Fugitive Dust. 

§113.34. Materials Handling and Transfer. 

§113.35. Smelting of Lead. 

§113.36. Smelting of Copper and Zinc. 

§113.37. Lead Emissions Limits for Stacks. 

Page 9 
Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

SUBCHAYI'ER B :LEAD FROM STATIONARY SOURCES 

2. LEAD SMELTERS IN DALLAS COUNTY 

§§113.41 - 113.48 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

Page 10 

§382.017, which provides the commission with the authority to adopt rules consistent with the policy and 

purpose of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting sources and to propose the adoption by 

reference of a federal standard. 

The proposed repeals do not implement any new state or federal requirement, and are part of the 

regulatory reform effort. 

§113.41. Maintenance and Operation of Control Equipment. 

§113.42. Storage of Lead-Containing Materials. 

§113.43. Transport of Materials. 

§113.44. Fugitive Emissions from Lead Processes. 

§113.45. Battery or Lead Reclaiming Operations. 

§113.46. Lead Emission Limits for Reverberatory Furnaces and Blast Furnaces. 

§ 113.4 7. Control of Fugitive Dust. 

§113.48. Additional Measures to Reduce Lead Emissions. 
Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

SUBCHAPTER B : LEAD FROM STATIONARY SOURCES 

3. ALTERNATE CONTROLS 

§§113.51 - 113.54 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

Page 11 

§382.017, which provides ,the commission with the authority to adopt rules consistent with the policy and 

purpose of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting sources and to propose the adoption by 

reference of a federal standard. 

The proposed repeals do not in1plement any new state or federal requirement, and are part of the 

regulatory reform effort. 

§113.51. Alternate Means of Control in El Paso County. 

§113.52. Alternate Emission Reductions in El Paso County. 

§113.53. Alternate Means of Control in Dallas County. 

§113.54. Alternate Emission Reductions in Dallas County. 
• Texas Natural Resource Conservation Commission 

Chapter 113 -Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

SUBCHAPTER B: NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR 

POLLUTAl'II'TS CFCAA §112. 40 CFR 61) 

RADIONUCLIDE NESHAPS 

STATUTORY AUTHORITY 

Page 12 

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

§382.017, which provides the commission with the authority to adopt rules consistent with the policy and 

purposes of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting sources and propose the adoption by reference 

of a federal standard. The new section is also proposed under the TCAA, §382.011, which provides the 

commission with the authority to control the quality of the state's air which the new proposed rule will 

accomplish by regulating emissions from phosphogypsum stacks. Under TCAA, §382.012, which 

provides for the commission to prepare and develop a general, comprehensive plan for the proper control 

of the state's air, the new proposed rule is one of many national standards developed for the overall control 

of hazardous air pollutants in the United States. The new rule is also proposed under TCAA, §382.016, 

which authorizes the commission to require monitoring requirements and examination of records and 

therefore is consistent with the referenced requirements. 

The authority for delegation of 40 CFR Part 61 for both the implementation and enforcement of NESHAPs 

is contained in §112(1) of the 1990 Federal Clean Air Act Amendments and 40 CFR 63, Subpart E, 

Approval of State Programs and Delegation of Federal Authorities. 
• Texas Natural Resource Conservation Commission 

Chapter 113 - Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

§113.55. Radon Emissions from Phosphogypsum Stacks (40 CFR 61, Subpart R). 

Page 13 

The National Emissions Standards for Radon Emissions from Phospho~ypsum Stacks as specified 

in 40 CFR 61. Subpart R. as promulgated on June 3. 1992. are incorporated by reference. 
•Texas Natural Resource Conservation Commission 

Chapter 113 -Control of Air Pollution from Toxic Materials 

Rule Log Number 98006-113-AI 

SUBCHAPTER B : LEAD FROM STATIONARY SOURCES 

4. COMPLIANCE AND CONTROL PLAN REQUIREMENTS 

§§113.61 - 113.68 

STATUTORY AUTHORITY 

The repeals are proposed under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

Page 14 

§382.017, which provides the commission with the authority to adopt rules consistent with the policy and 

purpose of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter which 

contains an air emission standard applicable to nonexisting sources and to propose the adoption by 

reference of a federal standard. 

The proposed repeals do not implement any new state or federal requirement, and are part of the 

regulatory reform effort. 

§113.61. Compliance with Other Rules in El Paso County. 

§113.62. Dates for Control Plan Submission and for Final Compliance in El Paso County. 

§113.63. Control Plan Procedure in El Paso County. 

§113.64. Reporting Procedure in El Paso County. 

§113.65. Compliance with Other Rules in Dallas County. 

§113.66. Dates for Control Plan Submission and for Final Compliance in Dallas County. 

§113.67. Control Plan Procedure in Dallas County. 

§113.68. Reporting Procedure in Dallas County. 
WRITTEN AND 

ORAL TESTIMONY
Reference Number 

W-1 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Rodman Johnson, Bracewell & 

Patterson (on behalf of ASARCO, Inc.) 
BRACEWELL & PATTERSON, L.L.P. W-1 

A REGISTERED LIMITED LIABILITY PARTNERSHIP 

ATTORNEYS AT LAw SOUTH TOWER PENNZ01 L PLACE 

711 LOUISIANA ST STE 2900 

HOUSTON TX 77002-2781 

713 223 2900 

Ill CONGRESS AVE STE 2300 

AUSTIN TX 78701-4052 

512 472 7800 

FAX Sl2 472 9123 

Ms. Heather Evans 

September 14, 1998 

Office of Policy and Regulatory Development, MC-205 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 

Austin, Texas 78711-3087 

LINCOLN PLAZA 

SOON AKARD ST STE 4000 

DALLAS TX 7S201-3387 

214 740 4000 

2000 K STREET NW STE SOO 

WASHINGTON DC 20006-1872 

202 828 S800 

33 DAVIES ST 

LONDON WIY 28L ENGLAND 

44 171 355 3330 

VIA HAND DELIVERY 

Re: Proposed Repeal of Certain Lead Control Provisions [23 Tex. Reg. 

8360 (Aug. 14, 1998)] --Rule Log No. 98006-113-AI. 

Dear Ms. Evans: 

On behalf of ASARCO Incorporated ("Asarco"), I am submitting the following comments 

regarding the Commission's proposed repeal of30 Tex. Admin. Code§§ 113.31-.37, 113.51-

.52, and 113.61-.64 concerning the control oflead from stationary sources in El Paso County, 

Texas. 

As the proposed repeal correctly points out, Asarco has permanently shut down its lead 

smelting operations at the El Paso site. No other primary lead smelting operations exist in 

El Paso County. The remaining Asarco process which has a potential to emit lead at the El 

Paso site (a primary copper smelter) operates under strict permit conditions (TNRCC Air 

Quality Permit Nos. 4151 and 20345) and Commission rules for particulate matter emissions 

in the El Paso area (30 Tex. Admin. Code Chapter 111). Together, these provisions insure 

that potential emissions oflead into the atmosphere do not pose a threat to human health and 

the environment. 

Asarco, therefore, supports the Commission's proposed repeal of the lead rules insofar as they 

apply to the El Paso area. This action will remove unnecessary rules and result in a more 

efficient allocation of the Commission's resources. 

Appropriately, the Commission has also proposed to request that U.S. EPA revise the State 

implementation plan ("SIP") to be consistent with the State regulations. Asarco 

recommends that the Commission's request also include a request for a conforming repeal 
BRACEWELL & PATTERSON. L.L.P. 

A REOISTEQED LIMITED LIABILITY PABTNERSHlP 

• AITOR..'fEYS AT l..t..w 

Ms. Heather Evans 

September 14, 1998 

Page 2 

of all the non-rule components of the Texas ·lead SIP. Specifically, 40 CFR 

§§ 52.2270(c)( 41),(56) and (65) reference information submitted by Texas relevant to the El 

Paso area lead SIP (e.g., dust control plans). 

To further ensure consistency in the Commission's regulations, the Commission should also 

administratively void the following administrative approvals and programs: 

1. dust control programs submitted under§ 113.33(a)(3)(A); 

2. any alternate schedules for equipment measurements approved under 

§ 113.35(7)(8); 

3. any designs for secondary hoods and control plans approved under 

§ 113.36(1) and (3); 

4. any alternate means of control approved under§ 113.51; 

5. any control plans submitted under§ 113.62; and 

6. any control plans submitted under§ 113.63. 

* * * * * 

Asarco appreciates the opportunity to provide comment to the Commission regarding this 

proposed rule change. If you should have any questions regarding these comments, please 

do not hesitate to contact me at 512.4 72.7800. 

Very truly yours, 

RCJ/sv 

286!9.2 

cc: Mr. Buddy Henderson, Air Polling & Regulations Division, lNRCC MC-205 

Mr. Tom Martin, Envirorunental Manager, Asarco Incorporated 

Mr. Eric Groten 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

(Austin- September 8, 1998) 

No oral testimony was received at this hearing 

(El Paso- September 9, 1998) 

No oral testimony was received at this hearing. 

(Austin - October 26, 1998) 

No oral testimony was received at this hearing. 
EVALUATION OF

TESTIMONY
T_exas Natural Resour£e Conservation Commission 

To: 

Thru: 

From: 

INTEROFFICE MEMORANDUM 

Commissioners 

LaDonna Castafiuela 

Chief Clerk 

Date: December 23, 1998 

Herbert W. Williams, Jr., Acting Deputy Director l ~I ill{~~~ Office of Policy and Regulatory Development L'fiJJ 

Subject: Docket No. 98-0755-RUL. Consideration for adoption of the repeal of 30 TAC 

Chapter 113, Subchapter B divisions titled Nonferrous Smelters in El Paso County, 

Lead Smelters in Dallas County, Alternate Controls, and Compliance and Control Plan 

Requirements which includes Sections 113.31-113.68; the renaming of Subchapter B 

to National Emission Standards for Hazardous Air Pollutants (NESHAPs) (FCAA, 

Section 112, 40 CFR 61); and the addition of a new Section 113.55, concerning Radon 

Emissions from Phosphogypsum Stacks (40 CFR 61, Subpart R). If adopted, the 

repeals would revise the State Implementation Plan (SIP) and would eliminate lead 

rules which apply to inactive lead sources. If adopted, the new division in Subchapter 

B would not revise the SIP, but would request delegation of authority to implement 

one of the Title 40, Code of Federal Regulations, Part 61 NESHAPs. The proposal 

was published in the August 14, 1998, issue of the Texas Register (23 TexReg 8360). 

(Phil Harwell) (Rule Log No. 98006-113-AI). 

What the Adopted Rules Would Do: 

The repeals will eliminate lead rules which were adopted to control lead sources in Dallas and El 

Paso Counties which are no longer active. A remaining lead emitting source (a copper process) 

in El Paso is under very rigid permit control for lead emissions. There are no other operational 

lead smelters located, or anticipated to be located, within El Paso or Dallas County; therefore, the 

rules are being repealed under the commission's regulation reform initiative. 

Repeal of the existing Subchapter B will be concurrent with adopting a new Subchapter B, 

concerning NESHAPs. The renamed Subchapter B will complement the existing Subchapter C, 

concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories. 

Section 113.55 is added in response to a request from the United States Environmental Protection 

Agency (EPA) that Texas take delegation of 40 CFR 61, Subpart R, concerning radon emissions 

from phosphogypsum stacks. 

Applicable Law: 

The repeals and new section are being adopted under the Texas Health and Safety Code, Texas 

Clean Air Act (TCAA), §382.012, which provides for the commission to prepare and develop a 

general, comprehensive plan for the proper control of the state's air; and §382.017, which 

provides the commission with the authority to adopt rules consistent with the policy and purposes 
C ornmissioners 

Page 2 

December 23, 1998 

Re: Docket No. 98-0755-RUL 

of the TCAA. The primary purposes of this rulemaking are to repeal a subchapter which contains 

an air emission standard applicable to sources which no longer exist and to adopt by reference a 

federal standard. The new section is also adopted under the TCAA, §382.011, which provides 

the commission with the authority to control the quality of the state's air; and §382.016. 

concerning monitoring requirements and examination of records. 

The authority for delegation of 40 CFR Part 61 for both the implementation and enforcement of 

NESHAPs is contained in §112(1) of the 1990 Federal Clean Air Act Amendments and 

40 CFR 63, Subpart E, Approval of State Programs and Delegation of Federal Authorities. 

Reason Rules are Needed: 

The lead rules for El Paso and Dallas were adopted as a result of emissions from a primary lead 

smelter (ASARCO) located in El Paso County, and two secondary lead smelters (battery recycling 

facilities) located in Dallas County, which caused the counties to violate the national ambient air 

quality standard (NAAQS) for lead. Subsequently, the lead processes causing the NAAQS 

violations in all three facilities were shut down and the equipment dismantled. A remaining lead 

emitting source (a copper process) in El Paso is under very rigid permit control for lead emissions. 

Fugitive lead emissions from grounds around the existing ASARCO p !ant are effectively controlled 

by existing particulate rules in Chapter 111, which apply throughout El Paso. Outdoor storage 

piles are controlled by New Source Review (NSR) permit conditions as well as controls found in 

30 TAC § 111.143, concerning Materials Handling. Fugitive lead emissions from the grounds and 

roads of the plant are controlled by permitjonditions as well as particulate matter control 

requirements found in 30 TAC §111.147(a)(l), concerning Roads, Streets, and Alleys. One of 

the sites in DaUas has been remediated under the federal Superfund program, and the other site 

in Dallas is proposed for a state and federally supported remediation. There are no other 

operational lead smelters located, or anticipated to be located, within El Paso or Dallas County: 

therefore, the rules are being repealed under the commission's regulation reform initiative. 

Unlike other Part 61 NESHAPs, Texas was not automatically delegated authority to implement 

any Radionuclide NESHAP. Part 61, Subpart R, Radon Emissions from Phosphogypsum Stacks, 

is actually one of seven standards that apply to various types of federal or industrial facilities 

which have potential emissions of radioactive substances (radionuclides). To obtain delegation, 

the commission will need to adopt the rule by reference and request delegation from EPA. Pan 

61, Subpart R, requires existing facilities to notify the commission in advance of any Radon test 

so it may be observed. The test requires a statistical sampling approach unique from other 

requirements associated with air regulations. Ninety days after the test, affected facilities must 

provide a report to the commission. Annual reports must be submitted to both the EPA and the 

appropriate commission regional oftice. 
-

-

Commissioners 

Page 3 

December 23, 1998 

Re: Docket No. 98-0755-RUL 

Public Comment: 

Public hearings on the proposal were held in Austin on September 8, 1998 and in El Paso on 

September 9, 1998. The comment period for the 40 CFR Subpart R NESHAP in§ 113.55 closed 

on September 14, 1998. There were no comments received concerning the adoption of the new 

§ 113.55. In order to ensure that the public hearing requirements for SIP revisions in accordance 

with 40 CFR 51 were met, the commission scheduled another hearing in Austin which was held 

on October 26, 1998, and extended the comment period for the lead rules and corresponding SIP 

revision until October 26, 1998. One commenter, Bracewell & Patterson, L.L.P., submitted 

written comments on behalf of ASARCO. 

ASARCO supported the proposed repeal of the lead rules insofar as they applied to the El Paso 

area. ASARCO also requested that the commission amend the administrative provisions of the SIP 

which applied to the El Paso area. The commission agrees that many of the non-rule components 

of the Texas lead SIP need to be repealed, however, not all of the suggested repeals can be made 

through this rulemaking project. This rulemaking only involves the rescission of lead rules in 

30 TAC Chapter 113 and not the lead nonattainment designation or the attainment demonstration. 

The commission plans to initiate a redesignation SIP revision to have both El Paso and Dallas 

declared attainment areas for the lead standard. 

Affected Public: 

There will be no significant change to the affected public with regard to control of lead emissions 

in Dallas and El Paso Counties, attainment of the NAAQS for lead, and compliance with the 

requirements of the Radon Emissions from Phosphogypsum Stacks NESHAP. 

Regulatory Impact Assessment 

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

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

§200 1.0225 because it does not meet the definition of a "major environmental rule" as defined in 

the Act. It does not meet the definition of a major environmental rule because outdated rules are 

being removed and because a new NESHAP requirement will not adversely affect the economy 

in a material way. The identitied facilities affected by the NESHAP, already established by 

federal law, are currently meeting the federal standard being enforced by EPA. This rulemaking 

action will not, therefore, change the current level of protection of the environment. 
C ornmissioners 

Page 4 

December 23, 1998 

Re: Docket No. 98-0755-RUL 

Takings Impact Assessment: 

The commission has conducted a Takings Impact Assessment for these rules under Texas 

Government Code, §2007 .043. Promulgation and enforcement of these rules will not create a 

burden on private real property because the level of control of lead and phosphogypsum stacks will 

not change. 

Coastal Management Program Consistency Review 

The commission has reviewed this rulemaking for consistency with the Coastal Management 

Program (CMP) goals and policies in accordance with the regulations ofthe Coastal Coordination 

Council, and has determined that the rulemaking is consistent with the applicable CMP goals and 

policies. The adoption of 40 CFR, Subpart R NESHAP is consistent with CMP goals and policies 

relating to adoption of federal standards and the repeal is not applicable within the CMP zone. 

Affected Agency Programs: 

The repeal of Subchapter B should have no impact on agency programs. The Houston Regional 

Oftice, specifically the Air Program, will be aftected by delegation of the NESHAPs because all 

facilities are in Harris and Galveston Counties. The NSR Permitting and Operating Permits 

Divisions will be responsible for including the standard in existing or new permits. 

Agency Contacts: 

Phil Harwell, Oft1ce of Policy and Regulatory Development, 239-1517. 

Alan Henderson, Oftice of Policy and Regulatory Development, 239-1510. 

Terry Blodgett, Oft1ce of Compliance and Enforcement, 239-1740. 

Kevin Jung, Legal Division, 239-0575. 

cc: 7 copies to the Chief Clerk for distribution 
The commission adopts the repeal of §§113.31-113.37, 113.41-113.48, 113.51-113.54, and 

113.61-113.68, concerning Lead from Stationary Sources and a revision to the State Implementation 

Plan (SIP) concerning these repeals. The commission also adopts a change to the title of Subchapter B 

from "Lead from Stationary Sources" to "National Emission Standards for Hazardous Air Pollutants 

(FCAA §112, 40 CFR 61);" a new division concerning Radionuclide National Emission Standards for 

Hazardous Air Pollutants (NESHAPs); and a new §113.55, concerning Radon Emissions from 

Phospho gypsum Stacks ( 40 CFR 61, Subpart R). All sections are adopted without changes to the 

proposed text as published in the August 14, 1998 issue of the Texas Register (23 TexReg 8360). 

EXPLANATION OF ADOPTED RULES 

This rulemaking is part of the regulatory reform etfort. Regulatory reform projects identify rules and 

regulations that need clarification for the benefit of the public and the regulated community; are 

outdated; impose regulatory requirements in excess of their contribution to the commission's mission; 

or are duplicative, unnecessary, or inconsistent. This action is also a request for delegation of 

authority to implement one of the Title 40, Code of Federal Regulations, Part 61 (40 CFR 61) 

NESHAPs. 

The lead rules for El Paso County were adopted on February 17, 1984 to control emissions from a 

primary lead smelter operated by ASARCO, Inc., and for Dallas County on May 18, 1984 to control 

lead from two secondary lead smelters (battery recycling facilities), all of which caused these counties 

to exceed the National Ambient Air Quality Standard for lead. Subsequently, the lead processes in all 

three facilities were shut down and the equipment dismantled. A remaining lead emitting point source 

(a copper process) in the El Paso facility is under very rigid permit control (New Source Review 

-- (NSR) Permit Number 20345) for lead emissions. Fugitive lead emissions from the ASARCO plant 
are effectively controlled by existing particulate rules in Chapter Ill (concerning Control of Air 

Pollution from Visible Emissions and Par-ticulate Matter) which apply throughout the City of El Paso. 

The fugitive lead emissions from outdoor storage piles are controlled by NSR Permit Number 4151, as 

well as controls found in 30 T AC § 111. 143, concerning Materials Handling. The fugitive lead 

emissions from the grounds and roads of the plant are controlled by NSR Permit Number 20345 as 

well as controls found in 30 TAC § 111.147(a)(l), concerning Roads, Streets, and Alleys. One of the 

sites in Dallas (known as the Dixie Metals Company or the Exide Corporation) has been remediated 

under the federal Superfund program, and the other site in Dallas (Murph Metals, Incorporated, a 

subsidiary of RSR Corporation) is proposed for a state and federally supported remediation. There are 

no other operational lead smelters located, or anticipated to be located, within El Paso or Dallas 

County; therefore, the rules are being repealed under the commission's regulatory reform initiative. 

Repeal of the existing Subchapter B, concerning Lead from Stationary Sources, is adopted concurrently 

with a new Subchapter B, concerning National Emission Standards for Hazardous Air Pollutants 

(FCAA §112, 40 CFR 61). The new Subchapter B will complement the existing Subchapter C, 

concerning National Emissions Standards for Hazardous Air Pollutant<; for Source Categories (FCAA 

§ 112, 40 CFR 63), which are requirements of the 1990 Federal Clean Air Act Amendments. Unlike 

other Part 61 NESHAPs, Texas was not automatically delegated authority to implement any 

Radionuclide NESHAPs. Part 61, Subpart R, Radon Emissions from Phosphogypsum Stacks, is 

actually one of seven standards that apply to various types of federal or industrial facilities which have 

potential emissions of radioactive substances (radionuclides). Section 113.55 is added in response to a 

request from the United States Environmental Protection Agency (EPA) that Texas take delegation of 

40 CFR, Part 61, Subpart R. Title 40 CFR Part 61, Subpart R, requires existing facilities to notify the 

commission in advance of any Radon test so it may be observed. The test requires a statistical 

2 
--

-

sampling approach which is unique from other requirements associated with air regulations. Ninety 

days after the test, affected facilities must provide a report to the commission. Annual reports must be 

submitted to both the EPA and the appropriate commission regional oftice. 

FINAL REGULATORY IMPACT ANALYSIS 

The commission has reviewed the rulemaking in light of the regulatory analysis requirements of Texas 

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

because it does not meet the definition of a "major environmental rule" as defined in the Act. It does 

not meet the definition of a major environmental rule because outdated rules are being removed and 

because a new NESHAP requirement will not adversely affect the economy in a material way. The 

identified facilities affected by the NESHAP, already established by federal law, are currently meeting 

the federal standard being enforced by EPA. This rulemaking action will not, therefore, change the 

current level of protection of the environment. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a Takings Impact Assessment for this adoption under Texas Government 

Code, §2007.043. The following is a summary of that assessment. The specitic purpose of this 

rulemaking is to repeal lead rules because there is no longer a need due to the shut down and 

dismantling of facilities formerly subject to the rules. The adoption by reference of 40 CFR 61, 

Subpart R will give Texas the authority to enforce the federal standard. Promulgation and enforcement 

of this rulemaking will not affect private real property because the rules being repealed applied to 

decommissioned facilities, and the rule being adopted already exists at the federal level and is currently 

enforced by EPA. 

3 
.. . 

COASTAL MANAGEMENT PLAN 

The commission has determined that the portion of this rulemaking concerning repeal of the lead rules 

is not subject to the Texas Coastal Management Plan (CMP) because these rules affect only sources 

outside of the Coastal Management Zone. The commission has determined that the portion of this 

rulemaking concerning 40 CPR 61, Subpart R NESHAP does relate to an action or actions subject to 

the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 

1991, as amended (Texas Natural Resource Code, §§33.201 et. seq.), and the commission's rules in 30 

T AC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management 

Program. As required by 31 T AC §505.11 (b )(2) and 30 TAC §281.45(a)(3), relating to actions and 

rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with 

the applicable goals and policies of the CMP. The commission has reviewed this action for 

consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination 

Council, and has determined that the action is consistent with the applicable CMP goals and policies. 

The CMP policy applicable to this rulemaking action is the policy that commission rules comply with 

regulations at 40 CFR, to protect and enhance air quality in the coastal area (31 TAC §501.14(q)). 

This adoption does not change existing requirements because the same requirements are codified in 40 

CFR 61, Subpart R. Therefore the adoption is consistent with 40 CPR. No persons commented on the 

consistency of the proposed rules with the CMP during the public comment period. 

HEARING AND COMMENTERS 

Public hearings on the proposal were held in Austin on September 8, 1998, and in El Paso on 

September 9, 1998. The comment period for the 40 CPR Subpart R NESHAP in §113.55 closed 

September 14, 1998. There were no comments received concerning the adoption of the new § 113.55. 

In order to ensure compliance with public hearing requirements for SIP revisions, in accordance with 

4 
40 CFR 51, the commission scheduled another hearing in Austin, held on October 26, 1998, and 

extended the comment period for the lead rules and corresponding SIP revision until October 26, 1998. 

One commenter, Bracewell & Patterson, L. L.P., submitted written comments on behalf of ASARCO. 

ANALYSIS OF TESTIMONY 

General Comments 

ASARCO supported the proposed repeal of the lead rules insofar as they applied to the El Paso area. 

ASARCO also requested that the commission amend the administrative provisions of the SIP which 

applied to the El Paso area. 

Administrative SIP Revisions 

ASARCO recommended that the commission submit a request to EPA for a conforming repeal of all 

the non-rule components of the Texas lead SIP, specitically 40 CFR §§52.2270(c)(41), (56), and (65). 

ASARCO also stated that to ensure consistency in the commission regulations, the commission should 

administratively void the dust control programs submitted under §ll3.33(a)(3)(A), any alternate 

schedules for equipment measurements approved under §113.35(7)(B), any designs for secondary 

hoods and control plans approved under §113.36(1) and (3), any alternate means of control approved 

under §113.51, and any control plans submitted under §113.62 and §113.63. 

The commission agrees that many of the non-rule components of the Texas lead SIP need to be 

repealed; however, not all of the suggested repeals were proposed through this rulemaking 

project. 

5 
The SIP submissions cited in 40 CFR 52.2270(c)(41) covered a broad spectrum of lead issues; such 

as the designation of various counties throughout the state as attainment, nonattainment, or 

unclassified; and typical lead point sources which may cause the lead standard to be exceeded in 

areas of public exposure. It also identified, and addressed stationary sources of inorganic lead in 

El Paso, Collin, Denton, Dallas, and Harris Counties, as well as stationary and mobile sources of 

organic lead in major metropolitan areas of the state. The SIP also addresses the state's air 

quality surveillance network for lead. The SIP submission cited in 40 CFR 52.2270(c)(65) 

addresses the control strategy necessary for the El Paso area to achieve attainment. Because this 

rulemaking only deals with the rescission of lead rules in 30 TAC Chapter 113 and not with 

nonattainment designation or the attainment demonstration, the commission cannot request EPA 

to repeal these sections at this time. The commission does plan to initiate a redesignation SIP 

revision to have both El Paso and Dallas declared attainment areas for the lead standard. 

The SIP submission cited in 40 CFR 52.2270(c)(56) covers the initial control strategy for El Paso 

as defined in the lead rule sections of 30 TAC Chapter ll3. EPA took no action on several of the 

sections and on the attainment date for El Paso. Because this rulemaking rescinds all the lead 

rule sections in 30 T AC Chapter 113 regarding El Paso, including those sections on which EPA 

took no action, the commission will request that the rules referenced in 40 CFR 52.2270(c)(56) be 

administratively deleted from the SIP. In addition, because the attainment date on which no 

action was taken was later resubmitted and approved in 40 CFR 52.2270(c)(65), the commission 

will also request that the reference to the attainment date be administratively deleted from 

40 CFR 52.2270(c)(56). 

6 
STATUTORY AUTHORITY 

The repeals are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

§382.012, which provides for the commission to prepare and develop a general, comprehensive plan 

for the proper control of the state's air, and §382.0 17, which provides the commission with the 

authority to adopt rules consistent with the policy and purpose of the TCAA, because the primary 

purposes of this rulemaking are to repeal a subchapter which contains an air emission standard no 

longer applicable and to adopt by reference a federal standard. 

7 
STAFF

RECOMMENDATIONS
SUBCHAPTER B : LEAD FROM STATIONARY SOURCES 

1. NONFERROUS SMELTERS IN EL PASO COUNTY 

§§113.31 - 113.37 

§113.31. Maintenance and Operation of Control Equipment. 

§113.32. Areas Accessible to the General Public. 

§ 113.33. Control of Fugitive Dust. 

§ 113.34. Materials Handling and Transfer. 

§113.35. Smelting of Lead. 

§ 113.36. Smelting of Copper and Zinc. 

§113.37. Lead Emissions Limits for Stacks. 

1 
SUBCHAPTER B :LEAD FROM STATIONARY SOURCES 

2. LEAD SMELTERS IN DALLAS COUNTY 

§§113.41- 113.48 

STATUTORY AUTHORITY 

The repeals are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

§382.012, which provides for the commission to prepare and develop a general, comprehensive plan 

for the proper control ofthe state's air, and §382.017, which provides the commission with the 

authority to adopt rules consistent with the policy and purpose of the TCAA because the primary 

purposes of this rulemaking are to repeal a subchapter which contains an air emission standard 

applicable to nonexisting sources and to adopt by reference a federal standard. 

§ 113.41. Maintenance and Operation of Control Equipment. 

§ 113.42. Storage of Lead-Containing Materials. 

§ 113.43. Transport of Materials. 

§113.44. Fugitive Emissions from Lead Processes. 

§ 113.45. Battery or Lead Reclaiming Operations. 

§ 113.46. Lead Emission Limits for Reverberatory Furnaces and Blast Furnaces. 

§ 113.47. Control of Fugitive Dust. 

§ 113.48. Additional Measures to Reduce Lead Emissions. 

2 
SUBCHAPTER B: LEAD FROM STATIONARY SOURCES 

3. ALTERNATE CONTROLS 

§§ 113.51 - 113.54 

STATUTORY AUTHORITY 

The repeals are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

§382.012, which provides for the commission to prepare and develop a general, comprehensive plan 

for the proper control of the state's air, and §382.017, which provides the commission with the 

authority to adopt rules consistent with the policy and purpose of the TCAA because the primary 

purposes of this rule making are to repeal a subchapter which contains an air emission standard 

applicable to nonexisting sources and to adopt by reference a federal standard. 

§ 113.51. Alternate Means of Control in El Paso County. 

§113.52. Alternate Emission Reductions in El Paso County. 

§113.53. Alternate Means of Control in Dallas County. 

§113.54. Alternate Emission Reductions in Dallas County. 

3 
SUBCHAPTER B: LEAD FROM STATIONARY SOURCES 

4. COMPLIANCE AND CONTROL PLAN REQUIREMENTS 

§§113.61- 113.68 

STATUTORY AUTHORITY 

The repeals are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), 

§382.0 17, which provides the commission with the authority to adopt rules consistent with the policy 

and purpose of the TCAA because the primary purposes of this rulemaking are to repeal a subchapter 

which contains an air emission standard applicable to nonexisting sources and to adopt by reference a 

federal standard. 

§113.61. Compliance with Other Rules in El Paso County. 

§ 113.62. Dates for Control Plan Submission and for Final Compliance in El Paso County. 

§ 113.63. Control Plan Procedure in El Paso County. 

§ 113.64. Reporting Procedure in El Paso County. 

§113.65. Compliance with Other Rules in Dallas County. 

§ 113.66. Dates for Control Plan Submission and for Final Compliance in Dallas County. 

§113.67. Control Plan Procedure in Dallas County. 

§113.68. Reporting Procedure in Dallas County. 

4 
--

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

AN ORDER adopting amendments to 30 TAC Chapter 113 

and to the State Implementation Plan (SIP) 

regarding the repeal of lead rules;. Docket No. 

1998-0755-RUL 

WHEREAS, on January 13, 1999, the Texas Natural Resource Conservation Commission 

(Commission) considered amendments to 30 TAC Chapter 113 and to the SIP which eliminate lead 

rules which were adopted to control lead sources in Dallas and El Paso Counties that are no longer 

active; and 

WHEREAS, pursuant to the Texas Health and Safety Code Annotated, §382.017; Texas 

Government Code Annotated, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, 

§51.1 02, the staff of the Commission, after proper notice, conducted public hearings on September 8 

and 9, 1998, and October 26, 1998 to consider proposed amendments to 30 TAC Chapter 113 and to 

the SIP; and 

WHEREAS, the Commission duly circulated to interested persons, the Regional Administrator 

of the U.S. Environmental Protection Agency (EPA), and all applicable local air pollution control 

agencies hearing notices of its intended action; and 

WHEREAS, interested persons were invited to submit data, views, and recommendations on 

the proposed amendments, either orally or in writing, at the hearings; and 

WHEREAS, copies of the proposed amendments were available for public inspection at the 

Commission's central office and regional offices prior to the scheduled hearings; and 

WHEREAS, data, views, and recommendations of interested persons were submitted to the 

Commission staff at the hearings and were considered by the Commission staff as reflected in the 

attached analysis of testimony; and 

WHEREAS, the Commission fmds that said analysis of testimony includes the names of all 

interested groups or associations offering comment on the amendments and their position concerning 

the proposed amendments; and 

WHEREAS, the Texas Health and Safety Code Annotated, §382.017 gives the Commission 

authority to make rules and regulations consistent with the policies and purposes of the Texas Clean 

Air Act; and 

WHEREAS, the Commission fmds that the reasoned justification and factuaJ bases for the 

proposed amendments are fully set out in the analysis of testimony; and 
-

,,........... 

DOCKET NO. 1998-0755-RUL; 

PAGE. TWO 

-·~· 

WHEREAS, the Commission hereby certities that the amendments, as adopted, have been 

reviewed by legal counsel and found to be a valid exercise of the Commission's legal authority; 

NOW, THEREFORE, BE IT ORDERED BY THE COMlVIISSION THAT: 

I. The amendments to 30 T AC Chapter II3 and to the SIP appended to this Order are hereby 

adopted and promulgated; and 

2. On behalf of the Commission, the Chairman should transmit a certitied copy of this Order, 

together with the adopted amendments, to the Governor of Texas for submittal to the Regional 

Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, 

§II 0, as amended. 

3. The Executive Director is instructed to file a certitied copy of the adopted amendments to 

30 T AC Chapter I13 with the Secretary of State pursuant to the Administrative Procedure Act. 

Issued date: JAN 2 2 1999 TEXAS NATURAL RESOURCE 

CONSERVATION COMMISSION 

. .,.. • • 1 
(1997), implements certain mandated coverage for a dependent

child who is 21 years of age or older and a student at an educational institution. The Insurance Code Article 21.53F (SENATE BILL 258) as added by the 75th Legislature, implements

mandated coverage for prostate cancer examinations. The Insurance Code Article 21.53D (SENATE BILL 54), as added by

the 75th Legislature, implements mandated coverage for female

enrollees by providing the right to select an OB/GYN in addition

to a primary care physician. The Insurance Code Article 21.53F

(HOUSE BILL 102), as added by the 75th Legislature, implements mandated coverage for inpatient maternity and childbirth

benefits. The minimum requirements of federal law for inpatient maternity benefits are contained in HIPAA, as amended

by the Newborns’ and Mothers’ Health Protection Act of 1996.

Inclusion of small employer plans in the inpatient maternity and

childbirth benefits are necessary to meet the minimum requirements of federal law. The Insurance Code Articles 26.04 and

3.95-15, as amended by the 75th Legislature, instruct the commissioner to adopt rules to meet the minimum requirements of

federal law and regulations. The Insurance Code Article 1.03A

provides that the Commissioner of Insurance may adopt rules

and regulations to execute the duties and functions of the Texas

Department of Insurance only as authorized by statute.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the

agency’s legal authority.

Filed with the Office of the Secretary of State on January 13,

1999.

TRD-9900202

Lynda H. Nesenholtz

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: February 2, 1999

Proposal publication date: December 4, 1999

For further information, please call: (512) 463–6327

♦♦♦

TITLE 30. ENVIRONMENTAL QUALITY

Part I. Texas Natural Resource Conservation Commission

Chapter 113. Control of Air Pollution from Toxic

Materials

The commission adopts the repeal of §§113.31-113.37, 113.41-

113.48, 113.51-113.54, and 113.61-113.68, concerning Lead

from Stationary Sources and a revision to the State Implementation Plan (SIP) concerning these repeals. The commission

also adopts a change to the title of Subchapter B from "Lead

from Stationary Sources" to "National Emission Standards for

Hazardous Air Pollutants (FCAA §112, 40 CFR 61);" a new

division concerning Radionuclide National Emission Standards

for Hazardous Air Pollutants (NESHAPs); and a new §113.55,

concerning Radon Emissions from Phosphogypsum Stacks (40

CFR 61, Subpart R). All sections are adopted without changes

to the proposed text as published in the August 14, 1998 issue

of the Texas Register (23 TexReg 8360).

EXPLANATION OF ADOPTED RULES This rulemaking is part

of the regulatory reform effort. Regulatory reform projects

identify rules and regulations that need clarification for the

benefit of the public and the regulated community; are outdated;

impose regulatory requirements in excess of their contribution

to the commission’s mission; or are duplicative, unnecessary,

or inconsistent. This action is also a request for delegation

of authority to implement one of the Title 40, Code of Federal

Regulations, Part 61 (40 CFR 61) NESHAPs.

The lead rules for El Paso County were adopted on February

17, 1984 to control emissions from a primary lead smelter

operated by ASARCO, Inc., and for Dallas County on May

18, 1984 to control lead from two secondary lead smelters

(battery recycling facilities), all of which caused these counties

to exceed the National Ambient Air Quality Standard for lead.

Subsequently, the lead processes in all three facilities were

shut down and the equipment dismantled. A remaining lead

emitting point source (a copper process) in the El Paso facility

is under very rigid permit control (New Source Review (NSR)

Permit Number 20345) for lead emissions. Fugitive lead

emissions from the ASARCO plant are effectively controlled by

existing particulate rules in Chapter 111 (concerning Control

of Air Pollution from Visible Emissions and Particulate Matter)

which apply throughout the City of El Paso. The fugitive lead

emissions from outdoor storage piles are controlled by NSR

Permit Number 4151, as well as controls found in 30 TAC

§111.143, concerning Materials Handling. The fugitive lead

emissions from the grounds and roads of the plant are controlled

by NSR Permit Number 20345 as well as controls found in

30 TAC §111.147(a)(1), concerning Roads, Streets, and Alleys.

One of the sites in Dallas (known as the Dixie Metals Company

or the Exide Corporation) has been remediated under the

federal Superfund program, and the other site in Dallas (Murph

Metals, Incorporated, a subsidiary of RSR Corporation) is

proposed for a state and federally supported remediation. There

are no other operational lead smelters located, or anticipated to

be located, within El Paso or Dallas County; therefore, the rules

are being repealed under the commission’s regulatory reform

initiative.

Repeal of the existing Subchapter B, concerning Lead from Stationary Sources, is adopted concurrently with a new Subchapter B, concerning National Emission Standards for Hazardous

Air Pollutants (FCAA §112, 40 CFR 61). The new Subchapter B will complement the existing Subchapter C, concerning

National Emissions Standards for Hazardous Air Pollutants for

Source Categories (FCAA §112, 40 CFR 63), which are requirements of the 1990 Federal Clean Air Act Amendments.

Unlike other Part 61 NESHAPs, Texas was not automatically

delegated authority to implement any Radionuclide NESHAPs.

Part 61, Subpart R, Radon Emissions from Phosphogypsum

Stacks, is actually one of seven standards that apply to various

types of federal or industrial facilities which have potential emissions of radioactive substances (radionuclides). Section 113.55

is added in response to a request from the United States Environmental Protection Agency (EPA) that Texas take delegation

of 40 CFR, Part 61, Subpart R. Title 40 CFR Part 61, Subpart R,

requires existing facilities to notify the commission in advance

of any Radon test so it may be observed. The test requires

a statistical sampling approach which is unique from other requirements associated with air regulations. Ninety days after

the test, affected facilities must provide a report to the commission. Annual reports must be submitted to both the EPA and

the appropriate commission regional office.

FINAL REGULATORY IMPACT ANALYSIS The commission has

reviewed the rulemaking in light of the regulatory analysis reADOPTED RULES January 29, 1999 24 TexReg 577
quirements of Texas Government Code, §2001.0225, and has

determined that the rulemaking is not subject to §2001.0225

because it does not meet the definition of a "major environmental rule" as defined in the Act. It does not meet the definition

of a major environmental rule because outdated rules are being removed and because a new NESHAP requirement will not

adversely affect the economy in a material way. The identified

facilities affected by the NESHAP, already established by federal

law, are currently meeting the federal standard being enforced

by EPA. This rulemaking action will not, therefore, change the

current level of protection of the environment.

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this adoption under

Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of this rulemaking is to repeal lead rules because there is no longer a need due

to the shut down and dismantling of facilities formerly subject

to the rules. The adoption by reference of 40 CFR 61, Subpart

R will give Texas the authority to enforce the federal standard.

Promulgation and enforcement of this rulemaking will not affect

private real property because the rules being repealed applied

to decommissioned facilities, and the rule being adopted already

exists at the federal level and is currently enforced by EPA.

COASTAL MANAGEMENT PLAN The commission has determined that the portion of this rulemaking concerning repeal

of the lead rules is not subject to the Texas Coastal Management Plan (CMP) because these rules affect only sources outside of the Coastal Management Zone. The commission has

determined that the portion of this rulemaking concerning 40

CFR 61, Subpart R NESHAP does relate to an action or actions subject to the Texas Coastal Management Program (CMP)

in accordance with the Coastal Coordination Act of 1991, as

amended (Texas Natural Resource Code, §§33.201 et. seq.),

and the commission’s rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC §505.11(b)(2) and 30

TAC §281.45(a)(3), relating to actions and rules subject to the

CMP, commission rules governing air pollutant emissions must

be consistent with the applicable goals and policies of the CMP.

The commission has reviewed this action for consistency with

the CMP goals and policies in accordance with the rules of the

Coastal Coordination Council, and has determined that the action is consistent with the applicable CMP goals and policies.

The CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations at 40 CFR,

to protect and enhance air quality in the coastal area (31 TAC

§501.14(q)). This adoption does not change existing requirements because the same requirements are codified in 40 CFR

61, Subpart R. Therefore the adoption is consistent with 40

CFR. No persons commented on the consistency of the proposed rules with the CMP during the public comment period.

HEARING AND COMMENTERS Public hearings on the proposal were held in Austin on September 8, 1998, and in El Paso

on September 9, 1998. The comment period for the 40 CFR

Subpart R NESHAP in §113.55 closed September 14, 1998.

There were no comments received concerning the adoption of

the new 113.55.In order to ensure compliance with public hearing requirements for SIP revisions, in accordance with 40 CFR

51, the commission scheduled another hearing in Austin, held

on October 26, 1998, and extended the comment period for

the lead rules and corresponding SIP revision until October 26,

1998. One commenter, Bracewell & Patterson, L.L.P., submitted written comments on behalf of ASARCO.

ANALYSIS OF TESTIMONY General Comments ASARCO

supported the proposed repeal of the lead rules insofar as they

applied to the El Paso area. ASARCO also requested that

the commission amend the administrative provisions of the SIP

which applied to the El Paso area.

Administrative SIP Revisions ASARCO recommended that the

commission submit a request to EPA for a conforming repeal

of all the non-rule components of the Texas lead SIP, specifically 40 CFR §§52.2270(c)(41), (56), and (65). ASARCO

also stated that to ensure consistency in the commission regulations, the commission should administratively void the dust

control programs submitted under §113.33(a)(3)(A), any alternate schedules for equipment measurements approved under

§113.35(7)(B), any designs for secondary hoods and control

plans approved under §113.36(1) and (3), any alternate means

of control approved under §113.51, and any control plans submitted under §113.62 and §113.63.

The commission agrees that many of the non-rule components

of the Texas lead SIP need to be repealed; however, not all of

the suggested repeals were proposed through this rulemaking

project.

The SIP submissions cited in 40 CFR 52.2270(c)(41) covered a

broad spectrum of lead issues; such as the designation of various counties throughout the state as attainment, nonattainment,

or unclassified; and typical lead point sources which may cause

the lead standard to be exceeded in areas of public exposure.

It also identified, and addressed stationary sources of inorganic

lead in El Paso, Collin, Denton, Dallas, and Harris Counties, as

well as stationary and mobile sources of organic lead in major

metropolitan areas of the state. The SIP also addresses the

state’s air quality surveillance network for lead. The SIP submission cited in 40 CFR 52.2270(c)(65) addresses the control

strategy necessary for the El Paso area to achieve attainment.

Because this rulemaking only deals with the rescission of lead

rules in 30 TAC Chapter 113 and not with nonattainment designation or the attainment demonstration, the commission cannot

request EPA to repeal these sections at this time. The commission does plan to initiate a redesignation SIP revision to have

both El Paso and Dallas declared attainment areas for the lead

standard.

The SIP submission cited in 40 CFR 52.2270(c)(56) covers the

initial control strategy for El Paso as defined in the lead rule

sections of 30 TAC Chapter 113. EPA took no action on several

of the sections and on the attainment date for El Paso. Because

this rulemaking rescinds all the lead rule sections in 30 TAC

Chapter 113 regarding El Paso, including those sections on

which EPA took no action, the commission will request that the

rules referenced in 40 CFR 52.2270(c)(56) be administratively

deleted from the SIP. In addition, because the attainment

date on which no action was taken was later resubmitted

and approved in 40 CFR 52.2270(c)(65), the commission will

also request that the reference to the attainment date be

administratively deleted from 40 CFR 52.2270(c)(56).

Subchapter B. Lead from Stationary Sources

Division 1. Nonferrous Smelters in El Paso

County

30 TAC §§113.31–113.37

24 TexReg 578 January 29, 1999 Texas Register
STATUTORY AUTHORITY The repeals are adopted under the

Texas Health and Safety Code, Texas Clean Air Act (TCAA),

§382.012, which provides for the commission to prepare and

develop a general, comprehensive plan for the proper control of

the state’s air, and §382.017, which provides the commission

with the authority to adopt rules consistent with the policy

and purpose of the TCAA, because the primary purposes of

this rulemaking are to repeal a subchapter which contains an

air emission standard no longer applicable and to adopt by

reference a federal standard.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the

agency’s legal authority.

Filed with the Office of the Secretary of State on January 15,

1999.

TRD-9900267

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: February 4, 1999

Proposal publication date: August 14, 1998

For further information, please call: (512) 239–1970

♦♦♦

Division 2. Lead Smelters in Dallas County

30 TAC §§113.41–113.48

STATUTORY AUTHORITY The repeals are adopted under the

Texas Health and Safety Code, Texas Clean Air Act (TCAA),

§382.012, which provides for the commission to prepare and

develop a general, comprehensive plan for the proper control of

the state’s air, and §382.017, which provides the commission

with the authority to adopt rules consistent with the policy and

purpose of the TCAA because the primary purposes of this

rulemaking are to repeal a subchapter which contains an air

emission standard applicable to nonexisting sources and to

adopt by reference a federal standard.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the

agency’s legal authority.

Filed with the Office of the Secretary of State on January 15,

1999.

TRD-9900268

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: February 4, 1999

Proposal publication date: August 14, 1998

For further information, please call: (512) 239–1970

♦♦♦

Division 3. Alternate Controls

30 TAC §§113.51–113.54

STATUTORY AUTHORITY The repeals are adopted under the

Texas Health and Safety Code, Texas Clean Air Act (TCAA),

§382.012, which provides for the commission to prepare and

develop a general, comprehensive plan for the proper control of

the state’s air, and §382.017, which provides the commission

with the authority to adopt rules consistent with the policy and

purpose of the TCAA because the primary purposes of this

rulemaking are to repeal a subchapter which contains an air

emission standard applicable to nonexisting sources and to

adopt by reference a federal standard.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the

agency’s legal authority.

Filed with the Office of the Secretary of State on January 15,

1999.

TRD-9900269

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: February 4, 1999

Proposal publication date: August 14, 1998

For further information, please call: (512) 239–1970

♦♦♦

Subchapter B. National Emission Standards for

Hazardous Air Pollutants (FCAA §112, 40 CFR

61)

Division 1. Radionuclide NESHAPs

30 TAC §113.55

STATUTORY AUTHORITY The new section is adopted under

the Texas Health and Safety Code, Texas Clean Air Act (TCAA),

§382.017, which provides the commission with the authority

to adopt rules consistent with the policy and purposes of the

TCAA because the primary purposes of this rulemaking are

to repeal a subchapter which contains an air emission standard applicable to nonexisting sources and adopt by reference

a federal standard. The new section is also adopted under the

TCAA, §382.011, which provides the commission with the authority to control the quality of the state’s air which the new

rule will accomplish by regulating emissions from phosphogypsum stacks. Under TCAA, §382.012, which provides for the

commission to prepare and develop a general, comprehensive

plan for the proper control of the state’s air, the new rule is one

of many national standards developed for the overall control of

hazardous air pollutants in the United States. The new rule

is also adopted under TCAA, §382.016, which authorizes the

commission to require monitoring requirements and examination of records and therefore is consistent with the referenced

requirements. The authority for delegation of 40 CFR Part 61

for both the implementation and enforcement of NESHAPs is

contained in §112(l) of the 1990 Federal Clean Air Act Amendments and 40 CFR 63, Subpart E, Approval of State Programs

and Delegation of Federal Authorities.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the

agency’s legal authority.

Filed with the Office of the Secretary of State on January 15,

1999.

TRD-9900270

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: February 4, 1999

ADOPTED RULES January 29, 1999 24 TexReg 579
Proposal publication date: August 14, 1998

For further information, please call: (512) 239–1970

♦♦♦

Subchapter B. Lead from Stationary Sources

Division 4. Compliance and Control Plan Requirements

30 TAC §§113.61–113.68

STATUTORY AUTHORITY The repeals are adopted under the

Texas Health and Safety Code, Texas Clean Air Act (TCAA),

§382.017, which provides the commission with the authority

to adopt rules consistent with the policy and purpose of the

TCAA because the primary purposes of this rulemaking are to

repeal a subchapter which contains an air emission standard

applicable to nonexisting sources and to adopt by reference a

federal standard.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the

agency’s legal authority.

Filed with the Office of the Secretary of State on January 15,

1999.

TRD-9900271

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: February 4, 1999

Proposal publication date: August 14, 1998

For further information, please call: (512) 239–1970

♦♦♦

Chapter 238. Water Well Drillers Rules

The Texas Natural Resource Conservation Commission (commission) adopts the repeal of 30 Texas Administrative Code

(TAC) §§238.1, 238.2, 238.31, 238.32, 238.41-238.51, 238.60,

238.61, 238.70, and 238.80-238.83, concerning Water Well

Drillers Rules. The repeals are adopted without changes to

the proposed text as published in the October 30, 1998, issue

of the Texas Register (23 TexReg 11077) and will not be republished.

This action also constitutes the commission’s adoption of the

review of the rules contained in 30 TAC Chapter 238. This

review was in accordance with the General Appropriations Act,

Article IX, §167, 75th Legislature, 1997. The adopted rule

review can be found in the Review of Agency Rules section

in this edition of the Texas Register.

EXPLANATION OF ADOPTED RULES

This repeal will remove current Chapter 238, as part of the

commission’s implementation of Senate Bill (SB) 1955, 75th

Legislature, 1997. Legislative action amended Chapters 32

and 33, Texas Water Code (TWC), requiring the transfer of

the water well drillers programs previously administered by

the commission to the Texas Department of Licensing and

Regulation (TDLR). TDLR is authorized to adopt rules under

Chapters 32 and 33, and the commission adopts the repeal

of this chapter in response to the TDLR’s adoption of 16 TAC

Chapter 76, regarding Water Well Drillers and Water Well Pump

Installers.

FINAL REGULATORY IMPACT ANALYSIS

The commission has reviewed the repeal in light of the regulatory impact analysis requirements of Texas Government Code,

§2001.0225 and has determined that the rulemaking is not subject to §2001.0225, which applies only to certain major environmental rules that have at least one of four results. "Major

environmental rule" means a rule the specific intent of which

is to protect the environment or reduce risks to human health

from environmental exposure and that may adversely affect in a

material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and

safety of the state or a sector of the state. The intent of this rulemaking is to repeal the licensing program for water well drillers

and pump installer requirements under Chapter 238. These responsibilities have been transferred to TDLR as a result of legislative action. This repeal will result in only minimal changes

to the regulations as they currently exist. This rule does not

meet the definition of a "major environmental rule" and does

not meet any of the four results that would trigger applicability

of §2001.0225.

First, the proposal does not exceed a standard set by federal

law. There are no specific federal laws that require or provide

for the licensing of water well drillers or for the establishment

of water well construction standards for wells which are not

used for public drinking water supply. Therefore, the proposal

does not exceed a standard set by federal law. Moreover,

even if the rule did exceed a standard set by federal law, this

proposal is specifically required by state law, which required

the commission, and now requires TDLR to license drillers and

establish standards for the drilling of water wells (Chapter 32 of

the TWC) and is exempt from §2001.0025’s applicability.

Second, this proposal does not exceed an express requirement

of state law. The proposal is designed to carry out the

commission’s statutory responsibility to control the quality of

water in the state, including groundwater, pursuant to §§26.011,

and 26.046, and 28.011 of the TWC. The proposal is intended

to comply with the stated requirements of state law and not

exceed them in any way.

Third, 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 is not covered by any delegation agreement or contract between the state and an agency

or representative of the federal government to implement a state

and federal program.

Finally, this proposal does not adopt a rule solely under the

general powers of the agency instead of under a specific state

law. While this proposal repeals a rule under general powers of

the agency, it was also adopted and now proposed for repeal

under specific state laws regarding the licensing and standards

for water well drillers under Chapter 32 and §28.011 of the TWC.

TAKINGS IMPACT ASSESSMENT

The commission prepared a Takings Impact Assessment for

these rules pursuant to Texas Government Code §2007.043.

The following is a summary of that assessment. Promulgation

of the repeal of Chapter 238 will not burden private real property

which is the subject of the rules. The specific purpose of the rule

is to repeal Chapter 238 of the commission’s rules to implement

the transfer of the licensing requirements for water well drillers

and pump installers program to the TDLR. The commission’s

24 TexReg 580 January 29, 1999 Texas Register