STATE OF TEXAS OFFICE OF THE GovERNOR GEORGE W. BCSH



### Mr. Gregg A. Cooke Regional Administrator, Region 6 U.S. EnvironmentalProtectionAgency 1445 Ross Avenue Dallas, TX 75202-2733 DearMr. Cooke: February5, 1999

Enclosed are amendments to 30 TAC Chapter 113 and to the StateImplementationPlanresulting from the TexasNaturalResource Conservation Commission'sregulationreform initiative. These amendments, which the TNRCC adopted onJanuary 13, 1999,repeal certain lead emissionrules covering sourcesinDallas andEl Paso counties. Theremaining active lead emitting sourcein El Paso (acopperprocess) is undertightpermit control, andno other operational lead smelters are located oranticipated to locate in ElPaso orDallas counties. These amendments are submitted as aproposed SIPrevisionbydeletingthe rules and attainment date from the SIP. Also enclosed is apublic hearing certification, acompleterecord ofthe public hearings, and the accompanying order. I lookforward to yourexpeditious approval ofthis revisionto theTexas SIP.

Enclosures

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

# - -RobertJ. Huston, Chairman R. B. "Ralph"Marquez, Commissioner JohnM. Baker, Commissioner JeffreyA. Saitas, ExecutiveDirector 

## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Protecting Texas byReducingandPreventingPollution



### THE STATE OFTEXAS § COUNTY OFTRAVIS §

This is to certifythatthe attached aretrue and correctcopies ofrevisionsto 30TAC Chapter 113 and to the Texas State ImplementationPlan, adopted onJanuary 13, 1999pursuantto 40 Code ofFederal Regulations (CFR), §51.104. Priorto the adoptionoftheserevisions, publichearingswereheldpursuant
to 40 CFR, §51.102(a), and notice ofthe hearings was givenwhichconformed to the requirements of40 CFR, §51.102(d). I am the custodian ofthe records ofthe Commission.

To certify which, witness my hand and the seal ofthe Texas Natural Resource Conservation Commission, this the 13th day ofJanuary, 1999.

Tex· Natural Resource Conservation Commission

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internetaddress: www.tnrcc.state.tx.us printed on recycled paperusingsoy·ba.sed ink

# - TEXAS NATURALRESOURCE 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 onSeptember 8, 1998 and in El Paso on September 9, 1998 with the commentperiodclosing on September 14, 1998 to considerproposed revisions to 30 TAC Chapter 113 and to the State ImplementationPlan (SIP), concerning NESHAPs for RadonEmissions. Due to

anerror infulfilling all public hearing notificationrequirements for SIPs an additionalpublic hearing

was held in Austin on October 26, 1998 with the commentperiod closing onthe same day.



### New §113.55, concerning Radon Emissions, was also adopted during this rulemaking. While the
text ofthis rule and referencestothis rule are included in some ofthe enclosed documents, this section is not being submitted as a proposed revision tothe SIP.

All testimony and comments have beenreviewed and seriously considered. This volume contains a complete record ofthe public hearing and is divided into the following four sections:

o Public Notification and Proposals

o Written and Oral Testimony

o Evaluation ofTestimony

o StaffRecommendations

Additional copies ofthis hearing record are maintained at the commission's central oftice at 12100 North IH-35, Building F, Austin, Texas 78753. Forfurther information, contactMr. Phil Harwell at (512) 239-1517 or Mr. AlanHenderson at (512) 239-1510.

# PUBLIC NOTIFICATION AND PROPOSAL

# -

- PUBLIC NOTIFICATION

Notification to the public ofthe proposed revisions was conductedby the following procedures:

1. Publication ofthe notice ofpublic hearing for the proposed rules appeared in the following
newspapers on the dates listed: 

### DallasMorning News; August 2, 1998 

### ElPaso Times; August 5, 1998


### Houston Chronicle; August 3, 1998

2. Publication ofthe initialhearing notice and proposed rules in the 

### Texas Register on August 14. 1998. Publication ofthe second public hearing notice in the 

### Texas Rep.ister on September 25. 1998.

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

Arkansas Department ofPollution Control and Ecology City ofEl Paso City ofVictoria Planning Department Dallas Department ofHealth and Human Services
El Paso City-County Health District Federal Highway Administration
FortWorth Public Health Department Galveston County Health District Harris County Pollution Control Department
Houston Department ofHealth and Human Services Houston-GalvestonArea Council

### Louisiana Department ofEnvironmental Quality
New Mexico Air Quality Bureau NorthCentralTexas Council ofGovernments Oklahoma State Department ofHealth South EastTexas Regional Planning Commission
Texas DepartmentofTransportation
Texas Transportation Institute
U. S. Environmental Protection AgencyEXAMPLE OF NEWSPAPER CLASSIFIED AD ElPaso 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 1 new 113.55, concerning 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 1o: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. atthe 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 discussthe 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 contactthe 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 OFFACILITY: 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 7.0pounds per square inch absolute; and 30TAC §114.100(a) and the THSC, §382.085(b), by supplying and/ ordispensing gasoline for use as a motor vehicle fuel whichfailed to meet the minimum oxygen content of2.7% 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, ElPaso County, Texas; TYPEOFFACILITY: vehicle rental store; RULEVIOLATED: 30TAC §114.100(a) and the THSC, §382.085(b),by supplying and/ordispensing gasoline foruse 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 enjoymentofanimal life, vegetation, orproperty, 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 emissionunits at the site withoutafederal 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 OFFACILITY: 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: 1101 EastArkansas 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; DOCKETNUMBER: 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),byfailing to conductaperformance test; 30TAC §101.4. §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 30TAC §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 ofPublic 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 ofFederal Regulations (CFR), §51.102 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 AirPollutants (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 anotherpublic hearing. The additional public hearing will be held in Austin onOctober26, 1998, at 10:00 a.m. in BuildingF, 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



### INADDITION September 25, 1998 23 TexReg9853interested.•persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not occur during the hearing: however, anagency staffmemberwill 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, orfaxed 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. Forfurther information, please contact Phil Harwell, Air Policy and Regulations Division, Office ofPolicy 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, SubchapterB, Chapter2001, and theTexas Health and Safety Code, §382.017, theTexas 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 ofthe 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 ofa permit to require the owner ofan 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 clustertype system and expanded the definition oflocalgovernmental 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 ofproprietary treatment systems. A public hearing on the proposal will be held October 22, 1998, at 10:00 a.m. in Room 254-S ofTNRCC Building E, located at 12100 Park 35 Circle, Austin. Thehearing is structuredfor thereceiptoforal or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not occurduring thehearing; however, an agency staff member willbe available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. Writtencomments 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 maybefaxed 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 GulfStates Marine Fisheries Meeting The Gulf States Marine Fisheries Commission will hold its 49th AnnualFallMeeting 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 GulfStates 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 fromtheEndangered SpeciesAct)must concern a species (or a suite ofspecies) that is federally listed as threatened or endangered orthatis a speciesofconcernfor listing. ForFY99, weareestimating up to $80,000 in new project money. Due to the reduced amount

### crt· new project funds available, most (but not all} ofthe 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 concerningit, whethertheprojectwill accomplishsignificantrecovery for the species, and whether the project will have benefit to more than one species. To assist in developing relevant proposals. please see A PlanforAction 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 TexReg9854 September25, 1998 Texas Register 

# -Texas78711-3087 and must be receivedby5:00p.m. onSeptember 12, 1998. Written comments may also be sent by facsimile machine to the attorney at (512) 239-3434. TheTNRCC 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 ofintersection ofFarm-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 wastewaterdisposal records; Permit Number03263, 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 wastewaterfrom a wastewater storage pond into oradjacent 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 ofPublic Hearings Notice is hereby given that under the requirements ofTexas 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. Thecommissionproposes therepeal 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 ofauthority 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, 40CFR 61). Public hearings on the proposal will be held in Austin on September 8, 1998, at I0:00a.m. in Building F, Room 2210 ofthe Texas Natural Resource Conservation Commissioncomplex, located at 12100North IH-35, Park 35 Technology Center; and in El Paso on September 9, 1998, at 7:00p.m. at the City ofEl 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, orfaxed to (512) 239-4808. Allcomments 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 SafetyCode 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 StatesEnvironmentalProtection 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. Theproposedrevisions are required bytheFederalClean Air Act. Ifthe revisions are not adopted, the nonattainment/maintenance areas ofthe state may be subject to EPA highway sanctions resulting in a loss offederal 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 ofregistration. 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



### INADDITION August14, 1998 23 TexReg 8577.•(2)• a specific description of each act alleged to have**~.·-.ed** the statutoryor regulatory provision(s) identified in paragraph 1• • this subsection;

:md 

### ill a precise statement of the relevant facts: (4) an identification ofthe issue or issues to be resolved; 

### ill argument and authorities in support of the protest; J.§l a statement that copies ofthe 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) Ifthe Manager determines that a \'iolation ofthe 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 orhis designee. Such request must bein writing and mustbe received :n the Purchasing Section no laterthan 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. Therequest shallbe limitedto review oftheManager'sdetermination. 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 executivedirectorunder subsection (f) ofthis section andhas 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 practicesorprocedures, 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 ofthe mle are filed in the Texas Natural Resource ConservationCommission's (TNRCC)Library, locatedat 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: October21, 1998 Forfurther 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 toctLange 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 AmbientAir QualityStandard 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 plantare 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 ofthe 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 implementany Radionuclide NESHAP. Part61, Subpart R, Radon Emissions from Phosphogypsum Stacks, is actually one of seven standards that apply to various types offederal orindustrial 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 enforcementof 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 industrysubjectto the standards; however, no additional economic impact to affected owners and operators is anticipated due to the state's adoption ofthe 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 impactthat 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 notchange the current level of protection ofthe 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 notadversely 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 August14, 1998 23 TexReg 8361TAKINGS 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 ofthis 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 alreadyexist 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 agencyat (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 ofthefollowing sectionsproposedfor reperzl willnot bepublished. T11e sections may be examined in the offices of the Texas Natural Resource Comervation Commission or in the Texas Registeroffice. Room 245. James Earl RudderBuilding, 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 notimplementany new state orfederal requirement, and are part of the regulatory reform effort. §113.31. §113.32. §113.33. §113.34. §113.35. §113.36. Maintenrznce and Operation ofControl Equipmellt. .4reasAccessible to the General Public. Control ofFugitive Dust. Materials Handling and Transfer. Smelting of Lerzd. Smelting ofCopperand Zinc. §113.37. Lead EmissionsLimitsfor 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 ofthefollowing sectionsproposedfor repeal will notbepublished. The sectionsmay be examined in the offices of the Texrzs Natural Resource Conservation Commission or in the Texas Registeroffice, Room 245, James Earl RudderBuilding, 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 notimplementany newstate orfederal requirement, and are part of the regulatory reform effort. §113.41. Maintenance and Operation ofComrol Equipmellt. §113.42. Storage of Lead-ContainingMaterials. §113.43. Transport of Materials. §113.44. Fugitive Emissionsfrom LeadProcesses. §113.45. Battery orLead Reclaiming Operatiom. §113.46. Lead Emission Limit.1 for**Re~·erheratory** Fumace.1 and Blast Furnaces. §113.47. Control ofFugitive Du.1t. §113.48. AdditionalMeasures to Reduce LeadEmiuimzs. 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-9812104 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 ofthefollowing**section.~**proposed for repeal H'illnot bepublished. T7ze sections may be examined in the offices of the Texas Natural Resource Conservation Commission orin the Texas Registeroffice, Room 245, James Earl R11dderBuilding, 1019Brazos 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 notimplementany new state orfederal requirement, and are part of the regulatory reform effort. §113.51. AlternateMeans ofControl in El Paso County. §113.52. AlternateEmission Reductiom in ElPaso County. §113.53. AlternateMeans ofControl in Dallas County. §113.54. AlternateEmission 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-9812105 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 authorityto 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 airemission 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 airwhich 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-9812106 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 Require

# ·- r 

### ts 30 TAC §§113.61-113.68 (Editor'.fnote: The lex/ofthefollowing sec/ionsproposedfor repeal willno/bepublished. The sec/ions maybe examined in the offices of the Texas NamralResource Conservation Commission or in the Texas Registeroffice, Room245, James Earl RudderBuilding, 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 notimplementany newstate orfederal requirement, and are part of the regulatory reform effort. §11 3.61. Compliance with OtherRules in El Paso County. §113.62. Dalesfor ControlPlan Submission and for Final Compliance in £1 Pa.w County. §113.63. ConlmlPlan Procedure in £1 Paso County. §11 3.64. Reporting Procedure in ElPaso Cowzl)'. §113.65. Compliance with OtherRules in Dallas County. §I13.66. Datesfor Crmlml Plan Submission and for Final Complimzce in Dallas County.**~- .67.**  ControlPlan 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-9812107 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 ofAir 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 aproposed 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) orthe Federal TransitAdministration (FTA). Emissions estimates of transportation plans, programs. and projects must be found to conform with their corresponding emissions estimatesorbudgets 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, 1998. 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 mustbe 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 §93.102(d) and §93.105. Section 93.102(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 theirown consultation procedures subject to EPA guidelines. Chapter 114, §114.260 establishes the interagency and public consultation procedures consistent with the EPA guidelines. Mostof 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 JeffreyA. Saitas, ExecutiveDirector 

## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Protecting Texas byReducingandPreventingPollution


### NOTICE OFPUBLIC HEARINGSBYTHE TEXAS NATURAL RESOURCE CONSERVATIONCOMMISSION ON PROPOSEDREVISIONS TO30TAC CHAPTER 113 AND THESTATEIMPLEI\1ENTA TIONPLAN

Notice is hereby given that under the requirements of Texas Health and Safety Code, §382.017; Texas GovernmentCode, SubchapterB, Chapter 2001; and 40 Code ofFederal Regulations (CFR), §51.102 ofthe 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 30TAC Chapter 113. Thecommissionproposes the repeal of§§113.31- 113.68, concerning Lead from Stationary Sources, and new §113.55, concerningRadon 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 ofauthority to implement one ofthe 40 CFR, Part 61, National Emissions Standards for Hazardous Air Pollutants. In addition, the commissionproposes 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 ofthe Texas Natural Resource Conservation Commission complex, located at 12100 NorthIH-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 whencalled upon in order ofregistration. Open discussion will not occur during the hearings; however, an agency staffmember willbe available to discuss the proposal 30minutesprior to eachhearing 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 ofPolicy and Regulatory Development, (512) 239-1517.
Persons with disabilities who have special communication or other accommodation needs who areplanning to attend the hearing should contactthe agency at (512) 239-4900. Requests should be made as far in advance aspossible. Issued in Austin, Texas, onJuly 29, 1998.

Texas Natural Resour,ce Conservation Commission

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

- R. B. "Ralph"Marquez, Commissioner John M. Baker, Commissioner JeffreyA. Saitas, ExecutiveDirector 

## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Protecting Texas byReducingandPreventingPollution



### NOTICE OFPUBLIC 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 ofTexas Health and Safety Code, §382.017; Texas Government Code, SubchapterB, Chapter2001; and 40Code ofFederal Regulations (CFR), §51.102 of the United States Environmental Protection Agency regulations concerning State Implementation Plans (SIP), the Texas Natural Resource ConservationCommission(commission) will conduct apublichearing to receive testimony concerning revisions to 30 TAC Chapter 113 and to the SIP. Thecommissionproposes 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 commissionproposesrenamingSubchapterBto NationalEmissionStandardsfor HazardousAirPollutants (NESHAPs) (FCAA §112, 40 CFR 61). This proposal was originally taken to hearing onSeptember 8 and 9, 1998. However, due to anerror in fulfilling allpublichearingnotificationrequirementsforSIPs,thecommissionhas scheduledanotherpublic hearing. The additional public hearing will be held in Austin on October 26, 1998, at 10:00 a.m. in Building F, Room 2210 ofthe 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 writtencommentsbyinterestedpersons. Individualsmaypresentoralstatementswhen calleduponinorder ofregistration. Opendiscussionwill not occur during the hearing; however, anagency staffmemberwill be available to discuss the proposal 30minutes priorto the hearing and answer questionsbefore and after the hearing. Written comments may be submitted to Heather Evans, Office ofPolicy 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 ofPolicy and Regulatory Development, (512) 239-1517.
Personswithdisabilitieswhohave specialcommunicationorotheraccommodationneedswhoareplanning 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 ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI Page 1

The commissionproposes 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, 40CFR 61).

EXPLANATION OF PROPOSED RULES This proposal is part ofthe regulatory reform effort. Regulatory reform**projec~s** 

### identify rules and regulations which need clarificationfor the benefit ofthe public; are outdated; impose regulatory requirements in excess oftheir contributionto the commission's mission; or are duplicated, unnecessary,

or inconsistent. This proposal is also a request for delegation ofauthority to implement one ofthe Title 40, Code ofFederal 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 ofa 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 emittingprocess (a copper process) in the El Paso facility is under very rigid permitcontrol (New Source Review (NSR) permitnumber 20345) for lead emissions.Texas Natural Resource ConservationCommission Chapter 113

- Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI Page 2

Fugitive lead emissions from the ASARCO plant are effectively controlled by existingparticulate rules 

### in Chapter 111 (concerning Control ofAir Pollutionfrom 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 30TAC §111.143, concerning Materials Handling. The fugitive lead emissions from the grounds and roads ofthe 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 ofthe 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 inDallas (Murph Metals, Incorporated, a subsidiary ofRSR 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.

Theproposed repeal ofthe existing Subchapter B, concerning Lead from Stationary Sources will be

concurrent with aproposed new Subchapter B, concerning National Emission Standards for Hazardous Air Pollutants (FCAA §112, 40CFR 61). The new Subchapter Bwill complement the existing Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR 63), which are requirements ofthe 1990 Federal CleanAir Act Amendments. Unlike other
Part 61 NESHAPs, Texas was not automatically delegated authority to implement any Radionuclide NESHAP. Part 61, SubpartR, RadonEmissions from Phosphogypsum Stacks, is actually one ofseven standards that apply to various types offederal or industrial facilities which have potential emissions of radioactive substances (radionuclides). TheUnited States Environmental ProtectionAgency (EPA) has requested that Texas take delegation ofSubpartR. For the existing facilities to be 

### incompliance under

### Texas Natural Resource ConservationCommission Chapter 113

- Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI Page 3

Part 61, Subpart R, the commissionwouldbe notified in advance ofa Radon test so it may be observed. Ninety days after the test, the report wouldbe sentto 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 boththe EPA and the appropriate commissionregional 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 ofadministration or enforcement ofthe rules. All leadprocesses in Dallas County and El Paso County have been shut down and therefore the need for Subchapter Bno 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. Theproposed new Subchapter B, concerning Radon Emissions from Phosphogypsum Stacks, will require review ofexisting records at facilities alreadybeing inspected by regional offices.

PUBLIC BENEFIT
Mr. Minickhas also determinedthat for eachyear ofthe first five years the proposed sections are in effect, the public benefit anticipated from enforcement ofand compliance with these sections will be a reduction in the emission ofhazardous air pollutants, increasedconsistency between federal and state air quality regulations, and more cost effective implementation and enforcement ofair quality standards. The economic impact ofcomplying 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 ofthe federal requirements or the delegation of

### Texas Natural Resource ConservationCommission Chapter 113

- Control ofAir 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 ofsmallbusiness as defined in Texas Government Code, §2006.002. The Radon Emissions from Phosphogypsum Stacks (40 CFR 61, subpart R) rule has beenenforced 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.

DRAFTREGULATORY IMPACTANALYSIS The commissionhas reviewed the proposed rulemaking in light ofthe 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 definitionofa "majorenvironmental rule" as defined in the act, and it does not meet any ofthe four applicabilityrequirements listed in §2001.0225(a). The repeal ofthe Subchapter Brules will not change the current level ofprotection ofthe environment. The proposed new rule does protect the environment and reduces risks to human health from environmental exposure, but does not meet the definition ofa major environmental rule because the obligationshave already been establishedby federal law and thus are notnew requirements. The repeals andproposednew rule should
not adversely affect the economy in amaterial way because the identified affected facilities are currently meeting the federal standardbeing enforcedbyEPA. Therefore, this does not meetthe definition ofa "major" environmental rule.

TAKINGS IMPACT ASSESSMENT

# - Texas Natural Resource Conservation Commission Chapter 113 -Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI Page 5

The commissionhas prepared a TakingsImpact Assessment for this proposal under Texas Goverrunent Code, §2007.043. The following is a summaryofthat assessment. The specific purpose ofthis rulemaking is to repeal lead rules because there is no longer a need due to the shut down and dismantling ofthe affected facilities. The adoption by reference of40 CFR 61, Subpart R will give Texas the authority

to enforce the federal standard. Promulgationand enforcement ofthis rulemaking will not affect private real propertybecause the rules being proposed for repeal apply to non-existent ordecommissioned facilities, and the rules being proposed for adoption already exist at the federal level and are currently enforcedby EPA.

COASTAL MANAGEMENT PLAN The commissionhas 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 CoordinationAct 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 ofthe lead rules should not relate due to the nonexistence ofapplicable sources in Texas. 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 ofthe CMP. The commission has reviewed this proposed action for consistency with the CMP goals andpolicies in accordance with the rules ofthe Coastal Coordination Council andhas determined that the proposed action is consistent with the applicable CMP goals andpolicies. The CMPpolicy 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 coastalTexas Natural Resource Conservation Commission Chapter 113 -Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI Page 6

area (31 TAC §501.14(q)). Thisproposal does not change existing requirements which already comply with regulations in40 CFR, and is therefore consistent with this policy. Interestedpersons may submit

comments on the consistency ofthe proposed rules with the CMP during the public commentperiod.

PUBLIC HEARING
Apublic hearing onthe proposal will be held in Austin on September 8, 1998 at 10:00 a.m. in Building F,
Room 2210 ofthe Texas Natural Resource Conservation Commission complex, located at 12100 North IH-35, Park 35 Technology Center, Austin. The hearing is structured for the receipt oforal or written

commentsby interestedpersons. Individuals maypresent oral statements whencalled upon in order of registration. Opendiscussion withinthe audience will not occur during the hearing; however, an agency staffmember will be available to discuss the proposal 30 minutes priorto the hearing and answer questions before and after the hearing.

SUBMITTAL OF COMMENTS Writtencomments may be submitted to Heather Evans, Office ofPolicy 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 contactPhil Harwell ofthe Air Policy and Regulations Division, Office of Policy and Regulatory Development, (512) 239-1517.

# ·- Texas Natural Resource Conservation Commission Chapter 113

- Control ofAir Pollutionfrom 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 contactthe agency at (512) 239-4900. Requests shouldbe made as far in advance as possible.

### Texas Natural Resource Conservation Commission Chapter 113

- Control ofAir Pollutionfrom Toxic Materials Rule Log Number 98006-113-AI

STATUTORY AUTHORITY The repeals are proposed under the Texas Health and Safety Code, Texas CleanAir Act (TCAA), Page 8

§382.017, which provides the commissionwith the authority to adopt rules consistentwith the policy and
purpose ofthe TCAAbecause the primary purposes ofthis rulemaking are to repeal a subchapterwhich contains an air emission standard applicable to nonexisting sources and to propose the adoption by reference ofa federal standard.

The proposed repeals do not implement any new state orfederal requirement, and are part ofthe regulatory reform effort.

# - Texas Natural Resource ConservationCommission Chapter 113

- Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI

SUBCHAPTERB : LEADFROM STATIONARY SOURCES 

### 1. NONFERROUS SMELTERSINELPASO COUNTY §§113.31

- 113.37



### §113.31. Maintenance and Operation ofControl Equipment. §113.32. Areas Accessible to the General Public. §113.33. Control ofFugitive Dust. §113.34. Materials Handling and Transfer. §113.35. Smelting ofLead. §113.36. Smelting ofCopper and Zinc. §113.37. Lead Emissions Limits for Stacks. Page 9

### Texas Natural Resource ConservationCommission Chapter 113

- Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI

SUBCHAYI'ER B :LEADFROM STATIONARY SOURCES 2. LEAD SMELTERS INDALLAS COUNTY §§113.41 - 113.48



### STATUTORY AUTHORITY The repeals are proposed under the Texas Health and SafetyCode, Texas Clean Air Act (TCAA), Page 10

§382.017, which provides the commissionwith the authority to adopt rules consistent with the policy and
purpose ofthe TCAA because the primarypurposes ofthis rulemaking are to repeal a subchapter which contains an air emission standard applicable to nonexisting sources and to propose the adoptionby reference ofa federal standard.

The proposed repeals do not implement any new state or federal requirement, and are part ofthe regulatory reform effort.

§113.41. Maintenance and OperationofControl Equipment. §113.42. Storage ofLead-Containing Materials. §113.43. Transport ofMaterials. §113.44. Fugitive Emissions from Lead Processes. §113.45. Battery or Lead Reclaiming Operations. §113.46. Lead Emission Limits for Reverberatory Furnaces and BlastFurnaces. §113.47. Control ofFugitive Dust. §113.48. Additional Measures to Reduce Lead Emissions.Texas Natural Resource ConservationCommission Chapter 113

- Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI

SUBCHAPTERB : LEADFROMSTATIONARYSOURCES 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, whichprovides,the commissionwith the authority to adopt rules consistent with the policy and
purpose ofthe TCAAbecause the primarypurposes ofthis rulemaking are to repeal a subchapter which contains an air emission standard applicable to nonexisting sources and to propose the adoptionby reference ofa federal standard.

Theproposedrepealsdo not in1plement any new state or federal requirement, and are part ofthe regulatory reform effort.

§113.51. Alternate Means ofControl in El Paso County. §113.52. Alternate EmissionReductions in El Paso County. §113.53. Alternate Means ofControl in Dallas County. §113.54. Alternate EmissionReductions in Dallas County.

### •Texas Natural Resource ConservationCommission Chapter 113 -Control ofAir Pollutionfrom Toxic Materials Rule Log Number 98006-113-AI



### SUBCHAPTERB: NATIONAL EMISSIONSTANDARDS FORHAZARDOUS AIR POLLUTAl'II'TS CFCAA §112. 40 CFR 61)

RADIONUCLIDE NESHAPS

STATUTORY AUTHORITY Page 12

The new sectionis proposed under the Texas Health and Safety Code, Texas CleanAir Act (TCAA), §382.017, which provides the commission withthe authority to adopt rules consistentwith the policy and
purposes ofthe TCAA because the primarypurposes ofthis rulemaking are to repeal a subchapter which contains an air emission standard applicable to nonexisting sources and propose the adoptionbyreference ofa federal standard. The new section is also proposed under the TCAA, §382.011, which provides the commissionwith the authority to controlthe quality ofthe state's air which the new proposed rule will accomplishby regulating emissions from phosphogypsum stacks. Under TCAA, §382.012, which provides for the commission to prepare and develop a general, comprehensive planfor the proper control ofthe state's air, the new proposed rule is one ofmany national standards developed for the overall control ofhazardous air pollutants in the United States. The new rule is also proposed under TCAA, §382.016, which authorizes the commissionto require monitoring requirements and examinationofrecords and therefore is consistent withthe referenced requirements.

The authority for delegation of40 CFR Part61 for both the implementation and enforcementofNESHAPs is contained 

### in §112(1) ofthe 1990 Federal CleanAir Act Amendments and40 CFR 63, Subpart E, Approval ofState Programs and Delegation ofFederalAuthorities.

### •Texas NaturalResource ConservationCommission Chapter 113

- Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI



### §113.55. RadonEmissions from Phosphogypsum Stacks (40 CFR 61, SubpartR). Page 13

The National Emissions Standards for Radon Emissions from**Phospho~ypsum** 

### Stacks as specified in 40 CFR 61. SubpartR. as promulgated on June 3. 1992. are incorporatedby reference.•Texas Natural Resource Conservation Commission Chapter 113 -Control ofAir Pollution from Toxic Materials Rule Log Number 98006-113-AI



### SUBCHAPTERB : LEAD FROMSTATIONARY SOURCES 4. COMPLIANCE AND CONTROLPLANREQUIREMENTS §§113.61

- 113.68

STATUTORYAUTHORITY
The repeals areproposed under the Texas Health and Safety Code, Texas CleanAir Act (TCAA), Page 14

§382.017, which provides the commission with the authority to adopt rules consistentwith the policy and
purpose ofthe TCAAbecause theprimarypurposes ofthis rulemaking are to repeal a subchapter which
contains an air emission standard applicable to nonexisting sources and to propose the adoptionby
reference ofa federal standard.

Theproposed repeals do not implement any new state or federal requirement, and are partofthe regulatory reform effort.

§113.61. Compliance with Other Rules in El Paso County. §113.62. Dates for Control PlanSubmission and for Final Compliance in El Paso County. §113.63. Control Plan Procedure inEl 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 PlanProcedure 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 behalfofASARCO, 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. HeatherEvans September 14, 1998

Office ofPolicy andRegulatory Development, MC-205 TexasNatural Resource ConservationCommission 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



### VIAHANDDELIVERY

Re: ProposedRepeal ofCertainLead Control Provisions [23 Tex. Reg. 8360 (Aug. 14, 1998)] --RuleLogNo. 98006-113-AI.
Dear Ms. Evans: On behalfofASARCOIncorporated ("Asarco"), I am submittingthe following comments regardingtheCommission'sproposedrepealof30Tex.Admin.Code§§ 113.31-.37, 113.51- .52,and 113.61-.64concerningthecontrolofleadfromstationarysourcesinElPasoCounty, Texas. As the proposed repeal correctly points out, Asarco has permanently shut down its lead smelting operations at the El Paso site. Nootherprimary lead smeltingoperations exist in El Paso County. TheremainingAsarcoprocesswhichhas apotentialto emitlead attheEl Paso site (aprimary copper smelter) operates under strictpermitconditions (TNRCC Air QualityPermitNos.4151 and20345)andCommissionrulesforparticulatematteremissions in the El Paso area (30 Tex. Admin. Code Chapter 111). Together,theseprovisions insure thatpotentialemissionsofleadintotheatmospheredonotposeathreattohumanhealthand the environment. Asarco,therefore,supportstheCommission'sproposedrepealoftheleadrulesinsofarasthey apply to the El Paso area. This actionwill remove unnecessaryrules andresult in a more efficientallocationofthe Commission'sresources. Appropriately, theCommissionhasalsoproposedtorequestthatU.S.EPArevisethe State implementation plan ("SIP") to be consistent with the State regulations. Asarco recommends that the Commission'srequest also include a request for a conforming repealBRACEWELL 

### & PATTERSON. L.L.P. A REOISTEQED LIMITED LIABILITY PABTNERSHlP

• AITOR..'fEYS AT l..t..w 

### Ms. HeatherEvans 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)referenceinformationsubmittedbyTexasrelevanttotheEl Paso arealead SIP (e.g., dust control plans).
Tofurther ensureconsistencyintheCommission'sregulations,theCommissionshouldalso administratively void the following administrativeapprovals and programs: 1. dust control programs submittedunder§ 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 ofcontrol approvedunder§ 113.51; 5. any control plans submittedunder§ 113.62; and 6. anycontrolplans submittedunder§ 113.63. 

## * * * * *
Asarco appreciates the opportunityto provide commentto the Commission regarding this proposedrule change. Ifyoushouldhave anyquestionsregarding these comments,please do nothesitateto contactmeat 512.472.7800. Verytruly yours,

RCJ/sv
286!9.2



### cc: Mr. BuddyHenderson, AirPolling & 

### Regulations Division,lNRCC MC-205 Mr. TomMartin,EnvirorunentalManager, AsarcoIncorporated Mr.EricGroten

### INDEX OF ORALTESTIMONY

Reference Number Submitted by

(Austin- September 8, 1998)

No oral testimony was received at this hearing

(El Paso- September 9, 1998)

No oraltestimony was received at this hearing.

(Austin

- October 26, 1998)

No oraltestimony was received at this hearing.

# EVALUATION OF

TESTIMONY

# T_exas NaturalResour£e Conservation Commission

To:

Thru:

From: INTEROFFICE MEMORANDUM

Commissioners

LaDonna Castafiuela ChiefClerk Date: December 23, 1998

HerbertW. Williams, 

### Jr., Acting Deputy Director 

# l

# ~I**ill{~~~** Office ofPolicy 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, LeadSmeltersinDallasCounty, AlternateControls, and Complianceand ControlPlan Requirements whichincludes Sections 113.31-113.68; the renaming ofSubchapter B to National Emission Standards for Hazardous Air Pollutants (NESHAPs) (FCAA, Section 112,40CFR61); andthe additionofanew Section 113.55, concerningRadon Emissions from Phosphogypsum Stacks (40 CFR 61, Subpart R). 

### If adopted, the repeals would revise the State Implementation Plan (SIP) and would eliminate lead ruleswhich applyto inactive lead sources. Ifadopted, the new divisioninSubchapter B would not revise the SIP, but would request delegation ofauthority to implement one ofthe Title 40, Code ofFederal Regulations, Part 61 NESHAPs. The proposal waspublished inthe August 14, 1998, issue ofthe 

### TexasRegister(23 TexReg 8360). (Phil Harwell) (Rule Log No. 98006-113-AI).

Whatthe Adopted Rules Would Do: The repeals will eliminate lead rules which were adopted to controllead 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 veryrigid permitcontrol for lead emissions. There are no other operational lead smelters located, oranticipatedtobelocated, withinElPasoorDallasCounty; 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. Therenamed Subchapter B will complement the existing Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories. Section 113.55 is added inresponseto arequestfrom the United States EnvironmentalProtection Agency (EPA) that Texas take delegation of40 CFR 61, SubpartR, concerning radonemissions 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, whichprovides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; and §382.017, which providesthe commissionwiththe authorityto adoptrules consistentwith the policy and purposes

### Cornmissioners Page 2 December23, 1998 Re: Docket No. 98-0755-RUL

oftheTCAA. Theprimarypurposes ofthisrulemakingareto repeal a subchapterwhichcontains 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 ofrecords. The authority for delegation of40 CFRPart61 for both the implementation and enforcement of NESHAPs is contained 

### in §112(1) of the 1990 Federal Clean Air Act Amendments and 40 CFR63, SubpartE, Approval ofState Programs and Delegation ofFederal Authorities.
Reason Rules are Needed:
The lead rules for El Paso and Dallas were adopted as aresult ofemissions from aprimary lead smelter (ASARCO) located 

### inElPaso County, andtwo secondary leadsmelters(batteryrecycling facilities) located inDallas 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 shutdown and the equipment dismantled. A remaining lead emitting source (acopperprocess) inElPasoisunderveryrigidpermitcontrolfor leademissions. FugitiveleademissionsfromgroundsaroundtheexistingASARCOp!antareeffectivelycontrolled by existing particulate rules in Chapter 111, which apply throughout El Paso. Outdoor storage piles are controlledby New Source Review (NSR) permitconditions as well as controls found in 30TAC §111.143,concerningMaterialsHandling. Fugitive lead emissionsfromthegrounds 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 repealedunderthe commission's regulation reform initiative. Unlike other Part 61 NESHAPs, Texas was not automatically delegated authority to implement any Radionuclide NESHAP. Part61, SubpartR, RadonEmissionsfrom PhosphogypsumStacks, is actually one of seven standards that apply to various types offederal or industrial facilities which have potential emissions ofradioactive substances (radionuclides). To obtain delegation, the commission will need to adopt the ruleby reference and request delegation from EPA. Pan 61, Subpart R, requires existing facilities to notify the commission inadvance ofany 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 mustbe submittedtoboth the EPA and the appropriate commissionregional 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. Thecommentperiodfor the 40 CFRSubpartR NESHAP in§113.55 closed on September 14, 1998. There were no comments received concerning the adoption ofthe new §113.55. In orderto ensure that the public hearing requirements for SIPrevisions in accordance with 40 CFR 51 were met, the commission scheduled another hearing in Austinwhich was held on October 26, 1998, and extended the commentperiod for the leadrules and corresponding SIP revision until October 26, 1998. One commenter, Bracewell & 

### Patterson, L.L.P., submitted written comments on behalfofASARCO. ASARCO supported the proposed repeal ofthe lead rules insofar as they applied to the El Paso area. ASARCOalsorequestedthatthecommissionamendthe administrativeprovisionsoftheSIP which applied tothe ElPaso area. Thecommission agrees thatmany ofthe non-rule components oftheTexas lead SIP need to be repealed, however, not all ofthe suggested repeals canbe made through this rulemakingproject. This rulemaking only involves the rescission oflead rules in 30TAC Chapter 113 andnotthelead nonattainmentdesignationorthe attainmentdemonstration. 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: Therewillbe no significantchangeto the affected public withregard tocontrol oflead emissions in Dallas and El Paso Counties, attainment ofthe NAAQS for lead, and compliance with the requirements ofthe Radon Emissions from Phosphogypsum Stacks NESHAP. Regulatory Impact Assessment The commission has reviewed the rulemaking in light ofthe 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 ofa "majorenvironmental rule" as defined in the Act. Itdoes notmeetthe definitionofa 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, arecurrently meeting the federal standard beingenforcedby EPA. This rulemaking action will not, therefore, change the current level ofprotection ofthe environment.

### Cornmissioners Page 4 December23, 1998 Re: Docket No. 98-0755-RUL
Takings ImpactAssessment: The commission has conducted a Takings Impact Assessment for these rules under Texas Government Code, §2007.043. Promulgation and enforcement ofthese rules will not create a burdenonprivaterealpropertybecausethe level ofcontroloflead andphosphogypsum stacks will not change. Coastal ManagementProgram Consistency Review The commission has reviewed this rulemaking for consistency with the Coastal Management Program(CMP)goals andpolicies in accordancewiththeregulations oftheCoastalCoordination Council, and has determinedthattherulemakingis consistentwiththe applicable CMPgoals and policies. Theadoption of40 CFR,SubpartRNESHAPis consistentwithCMPgoals andpolicies relating to adoption offederal standards and the repeal is not applicable within the CMP zone. Affected Agency Programs: The repeal ofSubchapterBshould have no impact on agency programs. The Houston Regional Oftice, specificallythe Air Program, willbe aftected by delegation ofthe 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 ofPolicy and Regulatory Development, 239-1517. Alan Henderson, Oftice ofPolicy and Regulatory Development, 239-1510. Terry Blodgett, Oft1ce ofCompliance and Enforcement, 239-1740. Kevin Jung, Legal Division, 239-0575.

cc: 7 copies to the ChiefClerkfor distribution

### Thecommission 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 ofSubchapter 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 ofthe 

### Texas Register (23 TexReg 8360).

EXPLANATION OF ADOPTED RULES This rulemaking is part ofthe regulatory reform etfort. Regulatory reform projects identify rules and regulations that need clarificationfor the benefit ofthe public and the regulated community; are outdated; impose regulatory requirements 

### in excess oftheir contributionto the commission's mission;

or are duplicative, unnecessary, or inconsistent. This action is also a request for delegation of authority to implement one ofthe Title 40, Code ofFederal 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 (batteryrecycling facilities), all ofwhich caused these counties

to exceed the National AmbientAir Quality Standard for lead. Subsequently, the lead processes in all three facilities were shut down and the equipment dismantled. A remaining lead emittingpoint source (a copper process) in the El Paso facility is under very rigidpermitcontrol (New Source Review

-- (NSR) PermitNumber 20345) for lead emissions. Fugitive lead emissions from the ASARCO plant

### are effectively controlled by existingparticulate rules in Chapter Ill (concerning Control ofAir Pollution from Visible Emissions and Par-ticulate Matter) which apply throughout the City ofEl Paso. The fugitive lead emissions from outdoor storage piles are controlled by NSR Permit Number 4151, as well as controls found in 30TAC §111. 143, concerning Materials Handling. The fugitive lead emissions from the grounds and roads ofthe plant are controlled by NSR Permit Number 20345 as well as controls found in 30TAC §111.147(a)(l), concerning Roads, Streets, and Alleys. One ofthe sites in Dallas (known as the Dixie Metals Company or the Exide Corporation) has been remediated underthe federal Superfund program, and the other site in Dallas (Murph Metals, Incorporated, a subsidiary ofRSR 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 ofthe 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 Bwill complement the existing Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutant<; for Source Categories (FCAA §112, 40 CFR 63), which are requirements ofthe 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 ofseven standards that apply to various types offederal or industrial facilities which have potential emissions ofradioactive 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, Part61, SubpartR. Title 40 CFR Part61, Subpart R, requires existing facilities to notify the commission in advance ofany 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 reportto the commission. Annual reports must be submitted to both the EPA and the appropriate commission regional oftice.

FINALREGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking in light ofthe regulatory analysis requirements ofTexas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition ofa "major environmental rule" as defined in the Act. Itdoes

not meet the definition ofa 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 enforcedby EPA. This rulemaking action will not, therefore, change the

current level ofprotection ofthe environment.

TAKINGS IMPACT ASSESSMENT The commissionhas prepared a Takings ImpactAssessmentfor this adoptionunderTexas Government Code, §2007.043. The following is a summary ofthat assessment. The specitic purpose ofthis rulemaking is to repeal lead rules because there is no longer a need due to the shut down and dismantling offacilities formerly subjectto the rules. The adoption by reference of40 CFR 61, Subpart R will give Texas the authority to enforce the federal standard. Promulgation and enforcement ofthis rulemaking will not affectprivate real property because the rules beingrepealed applied to decommissioned facilities, and the rule being adopted already exists at the federal level and is currently enforced by EPA.



### 3

## .. . COASTAL MANAGEMENTPLAN
The commission has determined thatthe portion ofthis rulemaking concerningrepeal ofthe lead rules is not subject to the Texas Coastal Management Plan (CMP) because these rules affect only sources outside ofthe Coastal Management Zone. The commission has determined that the portion ofthis 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
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, commissionrules governing airpollutant emissions must be consistent with the applicable goals and policies ofthe CMP. The commission has reviewed this action for consistency with the CMP goals and policies in accordance with the rules ofthe Coastal Coordination Council, and has determined that the action is consistent with the applicable CMP goals and policies. The CMPpolicy 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
CFR61, SubpartR. Therefore the adoption is consistent with 40 CPR. No persons commented on the consistency ofthe proposed rules with the CMP during the public commentperiod.

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 commentperiod for the 40 CPR Subpart R NESHAP in §113.55 closed September 14, 1998. There were no comments received concerning the adoption ofthe new 

### §113.55.
In order to ensure compliance withpublic hearingrequirements 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 commentperiod for the lead rules and corresponding SIP revision until October 26, 1998. One commenter, Bracewell & 

### Patterson, L.L.P., submitted written comments on behalfofASARCO.

ANALYSIS OF TESTIMONY General Comments ASARCO supported the proposed repeal ofthe lead rules insofar as they applied to the El Paso area. ASARCO also requested that the commission amend the administrative provisions ofthe SIP which applied to the El Paso area.

Administrative SIPRevisions ASARCO recommended that the commission submit a request to EPA for a conforming repeal ofall the non-rule components ofthe Texas lead SIP, specitically 40 CFR §§52.2270(c)(41), (56), and (65). ASARCO also stated thatto 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 ofcontrol approved under §113.51, and any controlplans submitted under §113.62 and §113.63.

The commission agreesthatmany ofthe non-rule components oftheTexas lead SIP need to be repealed; however, not all ofthe suggested repeals were proposed throughthis 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 ofvarious counties throughout the stateas attainment, nonattainment, or unclassified; and typical lead point sources which may cause the lead standard to be exceeded in

areas ofpublic exposure. It 

### also identified, and addressed stationary sources ofinorganic lead in El Paso, Collin, Denton, Dallas, and Harris Counties, aswell as stationary and mobile sources of organic lead in major metropolitan areas ofthe state. The SIPalso addresses the state's air quality surveillance network for lead. The SIP submission cited in 40 CFR 52.2270(c)(65) addressesthe control strategy necessary for the El Paso areato achieve attainment. Because this rulemaking only deals withthe rescission oflead rules in 30 TAC Chapter 113 and not with nonattainment designation orthe attainment demonstration, the commission cannot request EPA
to repealthese 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 CFR52.2270(c)(56) coversthe initial control strategy for El Paso

as defined in the lead rule sections of30TAC Chapter ll3. EPA took no action on several ofthe sections and on the attainment date for El Paso. Becausethis 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 thatthe rulesreferenced in 40 CFR 52.2270(c)(56) be administratively deleted from the SIP. In addition, becausethe attainment date on which no action was taken was later resubmitted and approved in 40 CFR52.2270(c)(65), the commission will also requestthatthe referenceto the attainment date be administratively deleted from 40 CFR52.2270(c)(56).



### 6STATUTORY 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 ofthe TCAA, because the primary
purposes ofthis 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 INEL PASO COUNTY §§113.31 - 113.37

§113.31. Maintenance and Operation ofControl Equipment. §113.32. Areas Accessible to the General Public. §113.33. Control ofFugitive Dust. §113.34. Materials Handling and Transfer. §113.35. Smelting ofLead. §113.36. Smelting ofCopper and Zinc. §113.37. Lead Emissions Limits for Stacks.

1

### SUBCHAPTER B :LEADFROM STATIONARY SOURCES 2. LEAD SMELTERS IN DALLAS COUNTY §§113.41- 113.48



### STATUTORY AUTHORITY
The repeals are adoptedunder the Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.012, whichprovides for the commissionto prepare and develop a general, comprehensive plan for the proper control ofthe state's air, and §382.017, whichprovides the commission with the authority to adopt rules consistent with the policy and purpose ofthe TCAA because the primary
purposes ofthis 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 ofControl Equipment. §113.42. Storage ofLead-Containing Materials. §113.43. Transport ofMaterials. §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 ofFugitive Dust. §113.48. Additional Measures to Reduce Lead Emissions.

2

### SUBCHAPTER B: LEAD FROMSTATIONARY 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 ofthe state's air, and §382.017, which provides the commission with the authority to adopt rules consistentwith the policy and purpose ofthe TCAA because the primary
purposes ofthis rulemaking are to repeal a subchapter which contains an air emission standard applicable to nonexisting sources and to adopt by reference a federal standard.

§113.51. Alternate Means ofControl in El Paso County. §113.52. Alternate Emission Reductions in El Paso County. §113.53. Alternate Means ofControl in Dallas County. §113.54. Alternate Emission Reductions in Dallas County.

3

### SUBCHAPTER B: LEAD FROMSTATIONARY SOURCES 4. COMPLIANCEAND CONTROL PLAN REQUIREMENTS §§113.61- 113.68

STATUTORYAUTHORITY The repeals are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, which provides the commission withthe authority to adopt rules consistent with the policy and purpose ofthe TCAAbecause theprimary purposes ofthis rulemaking are to repeala subchapter which contains an air emission standard applicable tononexisting 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 andfor 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 oflead rules;. DocketNo. 1998-0755-RUL WHEREAS, onJanuary 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, pursuantto the Texas Health and Safety Code Annotated, §382.017; Texas Government CodeAnnotated, Subchapter B, Chapter 2001; and 40 Code ofFederal Regulations, §51.102, the staffofthe Commission, afterproper notice, conductedpublic hearings on September 8 and 9, 1998, and October 26, 1998 to considerproposed amendments to 30 TAC Chapter 113 and to the SIP; and WHEREAS, the Commission duly circulated to interested persons, the Regional Administrator ofthe U.S. Environmental ProtectionAgency (EPA), and all applicable local air pollution control agencies hearing notices ofits intended action; and WHEREAS, interestedpersons were invited to submitdata, views, and recommendations on the proposed amendments, either orally orinwriting, atthe hearings; and WHEREAS, copies ofthe proposed amendments were available for public inspection atthe Commission's central office and regional offices priorto the scheduled hearings; and WHEREAS, data, views, and recommendations ofinterested persons were submittedtothe Commission staffat the hearings and were consideredby the Commission staffas reflected inthe attached analysis oftestimony; and WHEREAS, the Commission fmds that said analysis oftestimony includes the names ofall interested groups or associations offering comment onthe amendments and theirposition concerning theproposed amendments; and WHEREAS, the Texas Health and Safety CodeAnnotated, §382.017 gives the Commission authority to make rules and regulations consistent with the policies and purposes ofthe Texas Clean Air Act; and WHEREAS, the Commission fmds thatthe reasonedjustification and factuaJ bases for the proposed amendments are fully setoutin the analysis oftestimony; and

# -

,,........... 

### DOCKETNO. 

### 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 ofthe Commission's legal authority; NOW, THEREFORE, BE IT ORDERED BY THE COMlVIISSION THAT:
I. The amendments to 30TAC Chapter II3 and to the SIP appended to this Order are hereby adopted and promulgated; and 2. On behalfofthe Commission, the Chairman should transmit a certitied copy ofthis Order, together with the adopted amendments, to the Governor ofTexas for submittal to the Regional Administrator ofEPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, §II0, as amended. 3. The Executive Director is instructed to file a certitied copy ofthe adopted amendments to 30TAC Chapter I13 with the Secretary ofState pursuant to the Administrative Procedure Act.

Issued date: 

# JAN 2

# 21999 TEXAS NATURAL RESOURCE CONSERVATION COMMISSION ..,.. • • 1(1997), implements certain mandated coverage for a dependentchild 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, implementsmandated 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 childbirthbenefits. 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 andchildbirth benefits are necessary to meet the minimum requirements of federal law. The Insurance Code Articles 26.04 and3.95-15, 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 Leadfrom 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 HazardousAir Pollutants (FCAA §112, 40 CFR 61). The new Subchapter B will complement the existing Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants forSource 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 varioustypes of federal or industrial facilities which have potential emissions of radioactive substances (radionuclides). Section 113.55is 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 requiresa statistical sampling approach which is unique from other requirements associated with air regulations. Ninety days afterthe 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 hasreviewed the rulemaking in light of the regulatory analysis re

### ADOPTED RULES January 29, 1999 24 TexReg 577quirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225because it does not meet the definition of a "major environmental rule" as defined in the Act. It does not meet the definitionof 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 underTexas 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 repealof 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 40CFR 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 theCoastal 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 40CFR. 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 ofthe 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 repealof all the non-rule components of the Texas lead SIP, specifically 40 CFR §§52.2270(c)(41), (56), and (65). ASARCOalso stated that to ensure consistency in the commission regulations, the commission should administratively void the dustcontrol 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 meansof 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 abroad 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 thestate’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 leadrules in 30 TAC Chapter 113 and not with nonattainment designation or the attainment demonstration, the commission cannotrequest 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 RegisterSTATUTORY 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 areto 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 theTCAA, §382.011, which provides the commission with the authority to control the quality of the state’s air which the newrule 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 thecommission 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 iscontained 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 579Proposal publication date: August 14, 1998 For further information, please call: (512) 239–1970 

### ♦♦♦ Subchapter B. Lead from Stationary SourcesDivision 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 RulesThe 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 ANALYSISThe 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 amaterial way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health andsafety of the state or a sector of the state. The intent of this rulemaking is to repeal the licensing program for water well drillersand 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 stateand 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