TITLE rule-review

The Texas Commission on Human Rights has reviewed Chapters 321-333, the agency's procedural rules regarding employment, in accordance with the Appropriations Act, Article IX, Section 167. The agency proposes that these rules be readopted, as the reason the rules were originally adopted continues to exist.

Comments on this proposal may be submitted to Brooks Wm. (Bill) Conover, III, General Counsel, Texas Commission on Human Rights, P.O. Box 13493, Austin, Texas 78711.

TRD-9903911

Brooks WM. Conover, III

General Counsel

Texas Commission on Human Rights

Filed: June 30, 1999

Texas Department of Licensing and Regulation

Title 16, Part IV

The Texas Department of Licensing and Regulation (Department) files this notice of intent to review and consider for re-adoption, revision, or repeal, Title 16, Texas Administrative Code, Chapter 62, Career Counseling Services. This review and consideration is being conducted in accordance with the General Appropriations Act, House Bill 1, Article IX, §167, 75th Legislature, 1997.

An assessment will be made by the department as to whether the reasons for adopting or readopting these rules continue to exist. Each rule will be reviewed to determine whether it is obsolete, whether the rule reflects current legal and policy considerations, and whether the rule reflects current procedures of the Department.

As required by §167, any questions or written comments pertaining to this rule review may be submitted to Theda Lambert, General Counsel/Director of Legal Services, P. O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail-theda.lambert@license.state.tx.us. The deadline for comments is 30 days after publication in the Texas Register .

Any proposed changes to these rules as a result of the rule review will be published in the Proposed Rule Section of the Texas Register . The proposed rules will be open for public comment prior to final adoption or repeal by the Department, in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, Chapter 2001.

§62.1. Authority.

§62.10. Definitions.

§62.20. Certificate of Authority Requirements.

§62.21. Certificate of Authority Application Process.

§62.40. Security Requirements.

§62.60. Responsibilities of the Department.

§62.70. Responsibilities of the Certificate Holder.

§62.71. Responsibilities of the Certificate Holder-Consumer Complaints.

§62.80. Fees-Original Certificate of Authority.

§62.90. Sanctions-Administrative Sanctions/Penalties.

§62.91. Sanctions-Revocation, Suspension or Denial because of a Criminal Conviction.

TRD-9904042

Rachelle A. Martin

Executive Director

Texas Department of Licensing and Regulation

Filed: July 6, 1999

The Texas Department of Licensing and Regulation (Department) files this notice of intent to review and consider for re-adoption, revision, or repeal, Title 16, Texas Administrative Code, Chapter 63, Personnel Employment Services. This review and consideration is being conducted in accordance with the General Appropriations Act, House Bill 1, Article IX, §167, 75th Legislature, 1997.

§63.1. Authority.

§63.10. Definitions.

§63.20. Certificate of Authority Requirements.

§63.21. Certificate of Authority Application Process.

§63.40. Security Requirements.

§63.60. Responsibilities of the Department.

§63.70. Responsibilities of the Certificate Holder-General.

§63.80. Fees-Original Certificate of Authority.

§63.81. Fees-Renewal Certificate of Authority.

§63.82. Fees-Duplicate Certificate of Authority.

§63.90. Sanctions-Administrative Sanctions.

§63.91. Sanctions-Revocation, Suspension or Denial because of a Criminal Conviction.

TRD-9904043

Rachelle A. Martin

Executive Director

Texas Department of Licensing and Regulation

Filed: July 6, 1999

Texas Natural Resource Conservation Commission

Title 30, Part I

The Texas Natural Resource Conservation Commission (commission) proposes the review of 30 TAC Chapters 39, 50, 55 and 80, concerning Public Notice, Action on Applications, Request for Contested Case Hearing; Public Comment and Contested Case Hearings. This review is in accordance with the General Appropriations Act, Article IX, §167, 75th Legislature, 1997.

The General Appropriations Act, Article IX, §167, requires state agencies to review and consider for readoption rules adopted under the Administrative Procedure Act. The reviews must include, at a minimum, an assessment that the reason for the rules continues to exist.

The reason for originally adopting Chapters 39, 50, 55, and 80 was to provide opportunities for public participation in the processes of the commission by providing procedures for public notice of applications for commission action, procedures for actions on applications, commenting on applications, requesting contested case hearings and conducting a contested case hearing. The commission has reviewed the rules in Chapters 39, 50, 55 and 80, has determined that the reason for the rules continues to exist, and proposes their readoption.

Concurrently with this review, the commission is proposing to amend Chapters 39, 50, 55, and 80 to implement the provisions of House Bill 801, 76th Legislature, 1999.

Comments on the commission's review of Chapters 39, 50, 55, and 80 and its proposed readoption may be mailed to Casey Vise, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log Number 99030- 039. Comments must be received by August 16, 1999. For further information, please contact Ray Austin, Policy and Regulations Division, at (512) 239-6814.

TRD-9903996

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Filed: July 5, 1999

Adopted Rule Reviews

Texas Natural Resource Conservation Commission

Title 30, Part I

The Texas Natural Resource Conservation Commission (commission) adopts the review of the rules in Chapter 101, General Rules. This review complies with the General Appropriations Act, Article IX, §167, 75th Legislature, 1997. The proposed notice of review was published in the January 29, 1999 edition of the Texas Register (24 TexReg 608).

The commission readopts the rules contained in Chapter 101, General Rules as required by the General Appropriations Act, Article IX, §167. Section 167 requires state agencies to review and consider for readoption rules adopted under the Administrative Procedure Act. The review must include, at a minimum, an assessment that the reason for the rules continues to exist. The commission has reviewed the rules in Chapter 101, and determined that the reasons for the rules continue to exist. The chapter contains rules that apply to air pollution sources statewide and includes requirements that are applicable to a variety of sources regardless of the particular air contaminant. These definitions and procedures are necessary for the continued implementation of the commission's permitting, air quality planning, and enforcement programs under the Texas Clean Air Act (TCAA). The rules apply to the following subjects: definitions, multiple air contaminant sources or properties, circumvention of pollution controls, nuisances, traffic hazards, reporting of source upsets and maintenance, sampling procedures and terminology, emission inventory compilation, exemptions from rules and regulations, use and effect of rules, variances, transfer of permits, cumulative remedies resulting from judicial procedures, severability of regulations, compliance with United States Environmental Protection Agency (EPA) regulations, effective date of the General Rules, alternate emission reductions, inspection and emission fees, fees for registration of non-permitted facilities, fuel oil surcharges, emissions banking, and conformity of state and federal actions to state implementation plans (SIPs).

The commission identified a number of definitions for deletion or amendment, as well as additional rule changes, as a result of its review of these rules. The rule changes will include: deletion of definitions duplicated in other rules of the commission; amending the definition of "incinerator" to clarify when and how specific regulations concerning these devices are applied; amending the definition of "control device" to delete unnecessary and potentially confusing language; amending the definition of "nonattainment area" to reflect recent classification actions by the EPA; amendment of the definition of "volatile organic compound" (VOC) to include additional compounds that are exempted from that definition and regulatory reform measures to combine definitions and eliminate those no longer necessary; clarification of procedures for regulating multiple air contaminant sources; application of a single set of equivalent or more stringent requirements to permitted sources subject to multiple, duplicative regulatory requirements; and codification of statutory authority related to emission inventories and exemptions from rules. The commission is concurrently proposing rule amendments addressing these issues in separate rulemaking. During this review, the commission also received extensive comments on procedures concerning the reporting of upset and maintenance of air pollution sources. These issues will also be addressed in a separate rulemaking scheduled for late summer of 1999.

During the public comment period, which closed March 1, 1999, the commission received comments from the Texas Chemical Council (TCC), the Texas Industrial Project (TIP), and Bracewell and Patterson (Bracewell). A summary of those comments follow.

TCC commented that the commission should clarify the conditions, under which it is appropriate, to designate a single account number for emission fee assessment purposes and referred to an alleged incident at a major chemical plant where the commission desired separation of a single account into multiple accounts for fee purposes. TCC also suggested that sources operated by the same company be considered under common control for purposes of the definition of "account." It asked that the commission state that all properties under common control, located in the same county, and separated by five miles or less, and the facilities on all properties that are operated together as a single fully integrated plant or operation can be designated by a single account number.

Section 101.27, Emission Fees, prohibits the commission from initiating combination or separation of accounts solely for fee assessment purposes. The commission is not aware of the alleged incident concerning separation of accounts and needs more specifics to evaluate TCC's statement.

The commission would combine facilities under a single account number if the facilities are major, located on contiguous or adjacent properties, and under common ownership or control. This policy would be in accordance with the definition of "account." Minor facilities fitting the contiguous or adjacent property and ownership/control criteria of the definition could combine accounts at their discretion.

The commission bases its definitions of "account" in Chapter 101 and "site" in 30 TAC Chapter 122 on EPA's definition of "major source," and the fact that EPA views a site as an integrated permit situation. The commonality of definitions allows easy interchange of information concerning the site. This exchange of information is particularly important because the commission has been delegated authority to evaluate sites and issue federal operating permits under Title V of the Federal Clean Air Act (FCAA) Amendments. Finally, recently passed legislation allows the commission to develop the requirements for issuance of a multiple plant site permit for multiple plant sites owned or operated by the same person or persons under common control. The commission is initiating rulemaking to incorporate the requirements of this legislation.

Bracewell commented that the current definition of "particulate matter emissions" should be changed because it requires counting material caught in the impinger train of an EPA Method 5 sampling apparatus. They stated that material caught in the apparatus is comprised of gases which do not exist as particulate matter in the atmosphere. Bracewell believes that this causes an artificially high count of particulate matter for enforcement and permitting purposes and is inconsistent with EPA test methods.

Material caught in the impinger train of an EPA Method 5 apparatus includes material that is very fine particulate matter and material that is liquid at standard conditions. When testing with this method shows non-compliance, it is a common and accepted practice to conduct additional analysis on the material in the impinger train to subtract the mass of the material that would not be a solid or liquid at standard conditions. This approach is consistent with 40 Code of Federal Regulations (CFR) 51, Appendix M, Method 201. The commission would also adjust the total mass in the impinger to correct data entered into computer models used to determine compliance with particulate concentration standards in 30 TAC §111.155. Consequently, the commission chooses to retain the current definition.

The following comments relate to the reporting and recording of facility upset or maintenance. Issues related to upset and maintenance, including these comments, will be addressed in a separate rulemaking that should be proposed by late summer of calendar year 1999.

Addressing the definition of "reportable quantity" (RQ) in §101.1, TCC commented that the commission should modify its list of RQs to contain the following general compounds with an RQ of 5,000 pounds: butanes, pentanes, pentenes, heptenes, hexenes, octanes, decanes, and ethanol. It also suggested that the commission raise its default RQ from 100 pounds to 5,000 pounds. This is the highest RQ for hazardous substances on the RQ list under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The default value of 100 pounds applies to air contaminants not found on the CERCLA hazardous substance list. TIP recommended removing the 100-pound default from the rules or in the alternative, raising the default RQ to 5,000 pounds. In addition to the substances suggested by the TCC to be added to the list, TIP recommended adding the following substances with a 5,000-pound RQ: butyl acrylate, hexanes, isopropyl alcohol, methyl acrylate, mineral spirits, octenes, and unspeciated VOC. TIP also suggested that the commission solicit input from industry for additional substances.

TCC commented that the commission should delete recordkeeping requirements for non- reportable upsets. A non-reportable upset is one that results in a release of air contaminants less than a reportable quantity. It commented that the current upset/maintenance rule has been in place for over one year, and the commission has had adequate time to collect information regarding non-reportable upsets. In addition, elimination of this requirement would reduce the recordkeeping burden on industry.

TIP commented that the commission should make an exception to recordkeeping for releases only slightly above authorized amounts. It suggested that amounts that are less than a certain percentage (for example, 10%) of an RQ above an authorized emission be exempted from recordkeeping or set a non-recordkeeping level at less than one pound above authorized limits for substances with an RQ at ten pounds or higher.

TIP requested that the commission consider some mechanism to authorize routine emissions resulting from start-up, shutdown, and maintenance. It stated that while such emissions are episodic, the vast majority do not pose a threat requiring immediate response and request the opportunity to discuss this situation further with the staff. Additionally, the commission should consider exempting start-up, shutdown, and maintenance emissions in compliance with an EPA-required start-up, shutdown, and maintenance plan. TIP also requested that the commission incorporate into the upset/maintenance rules the reduced reporting obligations for continuous releases under CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA). These are routine and predictable emissions resulting from start-up, shutdown, and maintenance. Finally, TIP pointed out what appear to be typographical errors in §101.7(b) resulting in incorrect references to "upset" when the subject of the section is start-up, shutdown, and maintenance.

The commission adopted amendments to the upset/maintenance rules in the summer of 1997. At that adoption, the commission directed the staff to further evaluate the rules after two years. The staff has initiated that review, and will consider and respond to all of these comments concerning upset/maintenance and the definition of "reportable quantity" as part of that review. That evaluation has been accelerated following discussion with the EPA concerning the conformity of the commission's upset/maintenance rules with EPA guidance on the subject. The commission will consider upset/maintenance rules for possible amendment, including administrative changes, after the evaluation is completed. Proposed rulemaking resulting from the evaluation would likely be scheduled by late summer of 1999.

TIP requested that the commission add an additional exception to the definition of "solid waste" to clarify that biomass material generated as by-products in the silvicultural, pulp/paper, and wood products industries that is used for fuel to generate process heat or steam is not solid waste. A related definition of biomass would also be required.

The commission is aware that there are process steam generators within the state that use scrap or waste wood as an exclusive fuel. Under the current definition structure, these devices would be classified as incinerators and could be subject to dual regulation as an incinerator and as a boiler. The commission has evaluated the practice of burning waste wood for process steam through the permitting process and determined that it is a safe practice, producing low levels of non-hazardous emissions. However, a change to the definition of "solid waste" would require additional amendments in the rules concerning solid waste and could lead to complications in the application of those regulations. The commission chooses instead to amend the definition of "incinerator" in Chapter 101 to exclude devices burning clean waste wood for heat recovery from that definition. This will allow wood fired boilers and process steam generators to operate under regulations concerning boilers and will eliminate the possibility of dual regulation. The commission is concurrently proposing amendments to the definition of "incinerator."

The commission agrees that executive director approval of single property requests is appropriate and efficient for many cases. The commission has the authority to delegate to the executive director the authority to issue petition approvals and also has authority to place conditions on the approval of a petition to avoid a condition of air pollution or ensure compliance with state and federal regulations. In concurrent rulemaking, the commission is proposing an amendment to §101.2 delegating this authority to the executive director. However, consistent with commission policy regarding action which must be taken by the commission rather than the executive director, the executive director is prohibited from acting on the petition if new issues that require interpretation of commission policy are raised.

Typically, air permit applicants need only provide a plot plan that is sufficient to identify the property location and boundary; a legal description of the property is not usually necessary for commission purposes. Petitioners can make their own choice as to whether to include a legal description of the property with their petition that is acceptable for filing in the real property records, and then file a copy of the commission approval in the real property records. The commission does not see a need to require approvals of single property designations to be filed in the real property records.

In concurrent rulemaking, the commission is proposing to amend Chapter 101 to address the concerns of TIP and Bracewell. The amendments would require that all property owners within the property, leaseholders, and those with property or fee interests consent to and sign an agreement concerning single property designation.

The commission agrees that §101.2(b)(2) is advisory but serves the purpose of clarifying what properties are eligible for single property designation and has, therefore, decided to retain the paragraph.

TCC commented that emission inventory requirements should be modified to require inventories biennially rather than annually. TCC recognized that the emission inventory (EI) is used for compliance certification and suggested using the Title V requirements to certify compliance annually. It also recommended that agency SIP planners identify future key years and require inventory intervals based on those years. Companies should be given the option of completing annual inventories if they believe their emission fees will vary significantly from the previous year. TIP recommended that the commission delete the requirement to update the inventory annually and also recommended using a biennial inventory. TIP expressed its concern that this emission information may not be protected under the Texas Open Records Act. It suggested that §101.10, Emission Inventory Requirements, be streamlined to reflect the information the commission is authorized to collect under the TCAA. Bracewell commented that §101.10 should be amended to clarify that special inventories may be required only after emission factors, sampling, and measurement systems have been adopted by EPA and after EPA has required the state to develop an inventory for the air pollutant under 40 CFR 52.

EPA is currently examining the frequency of EI reporting requirements. The results will be incorporated into the EPA's Consolidated Emissions Reporting Rule which will likely be proposed in the summer of 1999. Because EI requirements are closely tied to meeting state implementation plan requirements, the commission will review changes in the reporting frequency once EPA has taken final action on its proposal. Additionally, the commission assesses emission fees based on annual updates of the inventory. Where available, the commission uses Title V compliance data to help compile emission inventories. The commission is also developing methods and data links to achieve automatic sharing of data among staff divisions and to eliminate duplicate submission of data.

The amount of emissions contained in EI data is a public record. Process information that a company submits to the commission in compliance with TCAA, §382.041, Confidential Information, is maintained in confidential files and not made available for public review. If a request for this information is made under the Public Information Act (PIA), Government Code, Chapter 552, the commission is required to send the information, marked confidential, to the Texas Attorney General's Office for a determination of whether the information may be withheld from disclosure under the PIA. Companies are able to provide arguments to the Attorney General on why the specific information should be protected under the PIA. The commission recognizes the sensitive nature of process information, but such information is necessary for the commission to have a complete EI.

The commission is preparing proposed amendments to §101. 10, Emission Inventory Requirements, that provide greater detail on the type of emission related data the commission is authorized to collect, particularly from smaller sources. The commission has authority under the Texas Health and Safety Code, §382.014 to "...require a person whose activities cause emissions of air contaminants to submit information to enable the commission to develop an emission inventory of air contaminants in this state." The commission uses more specific language in §101.10 to clarify which sources must report and with what frequency. In general, the commission collects EI data to develop SIPs, control strategies, and fee assessments. This requires that data be collected from large stationary sources, smaller and more numerous sources, and mobile sources. The commission is aware of the reporting requirements and the efforts required of companies to provide the data, but does not believe the information required is excessive or without merit.

Special inventories are used to analyze sources that do not have a specified EI reporting frequency or method. If available and applicable, the commission will use approved EPA systems and methods. If methods are not available, the commission would then act on its authority under the Texas Health and Safety Code, §382.014 to address specific situations. In the past, the commission has used this authority to collect sample data from small businesses to improve the accuracy of the area source inventory. Where EPA methods are available, the commission uses them to develop inventories. However, the commission wishes to retain the option to develop inventories to deal with unanticipated situations and chooses not to specifically define methods and circumstances for special inventories. If and when the commission needs to require a special inventory, the commission will work with the affected groups to ensure that only necessary information is submitted to the commission.

TCC commented that actual emissions used as a basis for fee assessments should be verifiable through equations where a key element of the equation is measurable, for example, fuel usage. It further stated that the intent of the current language in §101.27, Emission Fees, is that fees be based on measurable quantities used in calculations, but the existing language has caused some confusion. In general, TCC believes that the commission should assess fees collected under §101.27 only as needed to run the air program.

The commission requires that actual emissions be verifiable, either through direct measurement of vent gases or fuel use. The commission applies measured fuel use data through equations containing emission factors to calculate emissions not directly measured. Section 101.27 allows the use of continuously measured quantities in calculations to determine emissions from stacks and vents. Also, actual emission rates may be based on calculations for fugitive sources, flares, and storage tanks provided these calculations are supported by throughput and measurement records. TCC's comment concerning measurable quantities used in equations reflects the current practice of the commission under §101.27. The language in §101.27 is worded generally to indicate that measured quantities used in emission calculations are acceptable, provided those measurements can be verified. The commission gives examples in the rule language but cannot specify exactly which measurements will be acceptable in specific cases. Therefore, the commission believes the current language concerning measured quantities is appropriate and declines to make the changes recommended by the TCC.

Regarding TCC's comment that the commission should assess fees under §101.27 only as needed to run the air program, the Texas Health and Safety Code, §382.0621, Operating Permit Fee, requires the commission to collect an annual fee based on emissions from sources that are subject to either the federal permitting programs under Title IV or V of the FCAA. The Texas Health and Safety Code, §382.0622(c), states that fees collected under §382.0621(a) may only be appropriated to cover costs of developing and administering the Title IV and V permit programs. Section 101.27 implements the fee collection requirements for both the Title IV and V permit programs. The commission assesses fees only as required or allowed by law.

TRD-9903943

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Filed: July 1, 1999

Teacher Retirement System of Texas

Title 34, Part III

The Teacher Retirement System of Texas (TRS) adopts the review of Title 34, Part III, Texas Administrative Code, Chapter 25. The review and consideration were in accordance with the General Appropriations Act, House Bill 1, 75th Legislature, Article IX, §167.

In accordance with the agency rule review plan published in the August 21, 1998, issue of the Texas Register , the Policy Committee of the Board of Trustees conducted an initial review of Title 34, Part III, Texas Administrative Code, Chapter 25. The review was conducted in an open meeting and included an assessment of whether the reasons for adopting the rules continued to exist. In accordance with notice published in the April 2, 1999, issue of the Texas Register (24TexReg2748), the full Board reviewed Chapter 25 to make a determination as to whether the reasons for adopting or readopting these rules continued to exist. No comments were received regarding this Chapter. The final review was completed at the Board Meeting on June 25, 1999. This completes the review of all TRS rules in accordance with the General Appropriations Act, House Bill 1, 75th Legislature, Article IX, §167.

TRS finds that the reasons for adopting Chapter 25 continue to exist. As part of this review process, TRS has adopted amendments to §§ 25.1, 25.2, and 25.10 concerning service eligible for membership, §25.46 concerning unreported service, §§ 25.61, 25.64, and 25.66 concerning military service, §, 25.75 concerning veteran's service credit, §§25.82, 25.84, 25.85, and 25.87 concerning the purchase of credit for out of state service, §25.113 concerning the transfer of credit between TRS and ERS, §§25.121-25.123 concerning the verification of service, §§25.131-25.133 concerning creditable time and school year, § 25.151 concerning developmental leave, and §25.183 and §25.185 concerning installment payments to purchase service credit.

Also as a result of the review process, TRS has adopted the repeal of §§25.7, 25.8, 25.51-25.55, 25.62, 25.63, 25.65, 25.83, 25.103-25.105, 25.109-25.112, 25.125, and 25.161. TRS readopted §§25.3-25.6, 25.21, 25.22, 25.25, 25.26, 25.28, 25.30-32, 25.41-25.45, 25.61, 25.64, 25.67, 25.71-25.74, 25.81, 25.86, 25.124, 25.152, 25.171, 25.172, 25.181, 25.182, 25.184, 25.186-25.190 with no changes.

TRD-9903942

Charles Dunlap

Executive Director

Teacher Retirement System of Texas

Filed: July 1, 1999