Adopted Sections
An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice.
If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes.
TITLE 1. ADMINISTRATION
Part IV. Office of the Secretary of State
Chapter 97. Business Opportunity
Fees and General Information
1 TAC sec.97.27, sec.97.28
The Office of the Secretary of State adopts new sec.97.27 and sec.97.28, 
concerning business opportunity without changes to the proposed text as 
published in the August 20, 1991, issue of the Texas Register (16 TexReg 4535).
New sec.97.27 defines what causes a registered seller to be delinquent in 
required update filings. New sec.97.28 delineates the steps to be taken in order 
to administratively terminate the business opportunity seller's registration.
No comments were received regarding adoption of the new sections.
The new sections are adopted under Texas Civil Statutes, Article 5069-16.08(b) , 
which provide the secretary of state with the authority to adopt rules 
pertaining to delinquent update filings for registered business opportunity 
sellers and Texas Civil Statutes, Article 6252-13a, which provide the secretary 
of state with the authority to adopt rules necessary to carry out his ministered 
duties.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 27, 1991.
TRD-9112004
Lorna Wassdorf
Special Assistant
Office of the Secretary of State
Effective date: October 21, 1991
Proposal publication date: August 20, 1991
For further information, please call: (512) 463-3081
       
TITLE 16. ECONOMIC REGULATION
Part IV. Texas Department of Licensing and Regulation
Chapter 60. Texas Commission of Licensing and Regulation
Subchapter B. Organization of the Commission of Licensing and Regulation
16 TAC sec.60.25
The Texas Commission of Licensing and Regulation adopts an amendment to 
sec.60.25, with changes to the proposed text as published in the August 30, 
1991, issue of the Texas Register (16 TexReg 4718).
The section was added so our agency can screen applicants that have committed a 
felony and have applied for a license or registration on statutes we regulate. 
Rules are regulated by Texas Civil Statutes, Articles 6252-13c and 6252-13d.
The agency will use this as a guideline to consider a licensee or registrant who 
commits a felony. We can deny a license or registration to someone that has a 
criminal background. Also, the rights of the applicant are addressed and the 
procedures to follow are set forth in Texas Civil Statutes, Articles 6252-13c 
and 6252-13d.
No comments were received regarding adoption of the amendment.
The amendment is adopted on under Texas Civil Statutes, Article 9100 which 
provide the Texas Commission of Licensing and Regulation with the authority to 
adopt rules of requirements for statutes that we regulate.
sec.60.25. General Powers and Duties of Commission.
(a)-(e) (No change.)
(f) Denial of license or registration: criminal background.
(1) The following criteria shall be utilized to determine whether an applicant 
shall be issued a license or registration if that applicant states in his or her 
application for said license or registration that he or she has previously been 
or is presently under conviction for a criminal offense:
(A) the nature and seriousness of the crime;
(B) the relationship of the crime to the purpose of requiring a license or 
registration to engage in the occupation or industry;
(C) the extent to which a license or registration might offer an opportunity to 
engage in further criminal activity of the same or similar type as that in which 
the applicant previously had been involved;
(D) the relationship of the crime to the ability, capacity, or fitness required 
to perform the duties and discharge the functions and responsibilities of the 
licensed or registered occupation or industry.
(2) In addition to the factors that may be considered in paragraph (1) of this 
subsection, the department, in Texas determining the present fitness of a person 
who has been convicted of a crime, may consider the following:
(A) the extended nature of the person's past criminal activity;
(B) the age of the person at the time of the commission of the crime;
(C) the amount of time that has elapsed since the person's last criminal 
activity;
(D) the conduct and work activity of the person prior to and following the 
criminal activity;
(E) evidence of the person's rehabilitation or attempted rehabilitation effort 
while incarcerated or following release; and
(F) other evidence of the person's present fitness including letters of 
recommendation from prosecution, law enforcement, and correctional officers who 
prosecuted, arrested, or had custodial responsibility for the person, the 
sheriff and chief of police in the community where the person resides, and any 
other persons in contact with the convicted person.
(3) It shall be the responsibility of the applicant to the extent possible to 
secure and provide to the licensing or registering authority the recommendations 
of the prosecution, law enforcement, and correctional authorities as required by 
these rules.
(4) The applicant should also furnish proof in any form, as may be required by 
the licensing or registering authority, that he or she has maintained a record 
of steady employment and has otherwise maintained a record of good conduct and 
has paid all outstanding court costs, supervision fees, fines, and restitution 
as may have been ordered in all criminal cases in which the applicant has been 
convicted.
(5) If the department denies a person a license or registration or the 
opportunity to be examined for a license or registration in accordance with 
these rules because of the person's prior conviction of a crime and the 
relationship of the crime to the license or registration, the department shall:
(A) notify the person in writing stating reasons for denial or disqualification;
(B) use the review procedure provided by Texas Civil Statutes, Article 6252-13c 
and Article 6252-13d.
(6) The department will be concerned with those offenses defined as crimes of 
moral turpitude by statute or common law; Class A misdemeanors to first, second, 
and third degree felonies carrying fines and/or imprisonment or both. Special 
emphasis shall be given to crimes of robbery, burglary, theft, embezzlement, and 
conversion.
(g) The reasonable and necessary fees, authorized by Texas Civil Statutes, 
Article 9100, to cover the costs of administering the programs and activities of 
the department, are set as outlined in Subchapter C of this chapter (relating to 
Fees). The fees are based on a cost management procedure which aids in 
determining with reasonable accuracy the cost to the department of each program 
and activity.
(h) Citizens who do not speak English or who have a physical, mental, or 
developmental disability will be provided reasonable access to the commission 
itself and to the commission's programs in that:
(1)-(5) (No change.)
(i) Consumers and service recipients will be notified of the name, mailing 
address, and telephone number of the department for purposes of directing 
complaints to the department. The notification shall be included on:
(1)-(4) (No change.)
(j) In a contested case, administrative penalties may be assessed against the 
respondent(s) and formal orders will be issued by the commission as outlined in 
Texas Civil Statutes, Article 9100, sec.17.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 25, 1991.
TRD-9112014
Larry E. Kosta
Executive Director
Texas Department of Licensing and Regulation
Effective date: October 22, 1991
Proposal publication date: August 30, 1991
For further information, please call: (512) 463-3127
       
TITLE 22. EXAMINING BOARDS
Part XXVII. Board of Tax Professional Examiners
Chapter 629. Penalties, Sanctions, and Hearings
22 TAC sec.629.6
The Board of Tax Professional Examiners adopts an amendment to sec.629.6, with 
changes to the proposed text as published in the March 29, 1991, issue of the 
Texas Register  (16 TexReg 1868).
The adjustment is imperative. It brings the board rules into compliance with the 
Open Meetings Act.
The type of meetings held under Chapter 626 of the board rules have always been, 
and will continue to be, open meetings, in compliance with the Open Meetings 
Act. The word "closed" has written into the rules in error. This change to 
"open" corrects that error.
Comments received from individuals pointed out that the second part of the 
sentence (after "the public") should be omitted since these sessions, under law, 
are open in any case; therefore "subject to... in writing" is deleted.
The amendment is adopted under Texas Civil Statutes, Article 8885, as amended by 
68th Legislature, which provide the Board of Tax Professional Examiners with the 
authority to make and enforce all rules and regulations necessary for the 
performance of its duties.
sec.629.6. Hearing Procedure (Suspension or Revocation).
(a)-(h) (No change.)
(i) All suspension and revocation hearings shall be open to the public.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on April 18, 1991.
TRD-9111978
Sam H. Smith
Executive Director
Board of Tax Professional Examiners
Effective date: October 21, 1991
Proposal publication date: March 29, 1991
For further information, please call: (512) 329-7981
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 1. Texas Board of Health
Procurement of Professional Services
25 TAC sec.1.181
The Texas Department of Health (department) adopts new  sec.1.181, with changes 
as proposed in the August 20, 1991, issue of the Texas Register (16 TexReg 
4529).
The section implements the provisions of Senate Bill 693, 72nd Legislature, 
1991, which requires the Board of Health to adopt by rule a list of categories 
of licensed, certified, registered, or otherwise authorized providers to whom 
the department may award a grant or contract for professional services. The 
section defines "professional services," lists the categories of professional 
services, and establishes the procedure for selecting providers, including an 
emergency selection procedure.
Several comments were received on the proposed new section. The commenters 
recommended that the following categories be added to the list: veterinary 
services; professional sanitarian services; hearing aid dispensers; emergency 
medical services personnel; and occupational therapy. The department agrees with 
the commenters and has added the categories.
The new section is adopted under the Health and Safety Code (Code), sec.12. 
0121, which provides the Board of Health with the authority to adopt by rule 
requirements for contracting with and awarding grants to providers of 
professional health services; and sec.12.001, with provides the board with the 
authority to adopt rules to implement every duty imposed by law on the board, 
the department, and the commissioner of health. The new section affects the 
Code, sec.12.0121.
1.181. Grants and Contracts for Professional Services.
<p (a) Purpose. The purpose of this section is to define the professional 
services or which the Department of Health (department) will award grants and 
execute contracts; list the categories of providers who may receive grants from 
the department or execute contracts with the department; and describe the 
procedures for selecting providers.
(b) Definition. Professional Services means those services performed by an 
individual who is licensed, certified, registered, or otherwise authorized under 
state law and who acts within the scope of the individual's license, 
certification, registration, or other authorization as defined by state law, in 
the practice of his or her health or allied health profession.
(c) Categories of providers. This subsection covers the categories of licensed, 
certified, registered, or otherwise authorized providers under state law to whom 
the department may award a grant for professional services or with whom the 
department may contract or otherwise engage to perform professional services. 
The categories of providers, as described by the scope of their practice, are 
listed as follows:
(1) athletic training;
(2)  audiology;
(3) chiropractic services;
(4) dentistry;
(5) massage therapy;
(6) medicine;
(7) nursing;
(8) nutrition;
(9) optometry;
(10) pharmacy;
(11)  physical therapy;
(12) professional counseling;
(13)  psychology;
(14) radiographic technology;
(15) respiratory therapy;
(16) social work;
(17) speech-language pathology;
(18) emergency medical services;
(19) veterinary services;
(20) professional sanitarian services;
(21) hearing aid dispensers; and
(22) occupational therapy.
(d) Procedures for selection of providers.
(1) The department may award a grant, enter into a contract, or otherwise engage 
an individual or a group or association of individuals to perform professional 
services selected on the basis of competitive proposals submitted for the grant, 
contract, or services to be performed.
(2) The department also may make the selection on the basis of:
(A)  demonstrated competence and qualifications for the type of professional 
services to be performed; and
(B) whether the fees for the professional services to be performed are fair, 
reasonable, and consistent with and not higher than the usual and customary fees 
for the services to be performed and do not exceed any maximum provided by state 
law.
(e) Emergency selection procedure. The department may award a grant, enter into 
a contract, or otherwise engage an individual or a group or association of 
individuals to perform professional services without complying with subsection 
(d) of this section if the commissioner of health (commissioner) by order 
ratified by the Board of Health at its next regular meeting determines that an 
emergency exists that necessitates the use of different procedures. A grant, 
contract, or engagement under this subsection is effective only for the period 
specified by the commissioner's order.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 30, 1991.
TRD-9112001
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 21, 1991
Proposal publication date: August 20, 1991
For further information, please call: (512) 458-7236
       
Chapter 25. Medical Facilities Planning
Construction and Modernization of Hospitals and Other Medical Facilities
25 TAC sec.sec.25.1-25.3
The Texas Department of Health (department) adopts the repeal of sec.sec.25. 1-
25.3, without changes to the proposed text as published in the July 30, 1991, 
issue of the Texas Register (16 TexReg 4141).
The department is repealing the sections concerning construction and 
modernization of hospitals and other medical facilities because they are 
obsolete and the department no longer uses them.
No comments were received regarding adoption of the repeals.
The repeal is adopted under the Health and Safety Code,  sec.12.001, which 
provides the Board of Health with the authority to adopt rules for the 
performance of each duty imposed by law on the board.

This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 30, 1991.
TRD-9111998
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: October 21, 1991
Proposal publication date: July 30, 1991
For further information, please call: (512) 458-7538
       
Chapter 97. Communicable Diseases
Control of Communicable Diseases
25 TAC sec.97.16
The Texas Department of Health (department) adopts an amendment to sec.97.16, 
with changes to the proposed text as published in the July 26, 1991, issue of 
the Texas Register  (16 TexReg 4053).
The section implements the provisions of Health and Safety Code, sec.85.041 
(Senate Bill 959, Article III, 71st Legislature, 1989), concerning the 
establishment of an HIV medication program in Texas. The program assists 
hospital districts, local health departments, public or nonprofit hospitals and 
clinics, nonprofit community organizations, and HIV infected individuals in the 
purchase of medications approved by the board that have been shown to be 
effective in reducing hospitalizations due to HIV related conditions. Generally, 
the section covers eligibility for participation; medication coverage; priority 
of treatment; application process; confidentiality; payment for approved 
medications; participating pharmacies; and an appeal procedure to resolve any 
eligibility or funding disputes. The first part of the amendment expands 
medication coverage to reimburse the Tuberculosis Control Division for drugs 
used to treat atypical mycobacterial infections and include Erythropoietin and 
IV-Gamma Globulin to persons younger than 18 years of age. The second part of 
the amendment to  sec.97.16 expands coverage of the program, pending available 
funding, to include HIV positive patients with a CD4 cell count of 500 or less 
and to include individuals younger than 18 years of age with a diagnosis of HIV 
infection.
The department received a comment which recommended that the wording of 
subsection (b) concerning eligibility, be clarified by inserting the word "or" 
between paragraphs (1) and (2) and the word "and" between paragraphs (2) and 
(3). This change has been made. No other comments were received; however, the 
department made an editorial change to subsection (d)(5) for clarification.
The amendment is proposed under Senate Bill 959, Article III, 71st Legislature, 
1989, which provides the Texas Board of Health with the authority to adopt rules 
concerning a Texas HIV Medication Program; and Health and Safety Code, 
sec.12.001, which provides the Texas Board of Health with the authority to adopt 
rules for the performance of every duty imposed by law on the Texas Board of 
Health, the Texas Department of Health, and the commissioner of health.
sec.97.16. Texas HIV Medication Program.
(a) (No change.)
(b) Eligibility. A Texas resident is eligible to participate if he or she:
(1) is younger than 18 years of age and has a diagnosis of HIV infection; or
(2) has a positive HIV antibody test and is classified in Group III or IV 
according to the Centers for Disease Control classification system, or pending 
available funding, classified in Group I or II with a CD4 cell count of 500 or 
less; and
(3) is under the care of licensed physician who prescribes the medications; and
(4) meets the financial eligibility criteria of the program.
(c) (No change.)
(d)  Medication coverage.
(1)-(3) (No change.)
(4)  Erythropoietin and IV-Gamma Globulin will be provided to eligible clients 
younger than 18 years of age.
(5) The Texas HIV Medication Program will reimburse the Texas Department of 
Health's Tuberculosis Control Division for the following listed drugs used to 
treat atypical mycobacterial infections:
(A)  Amikacin-1 g vial;
(B) Capreomycin-1 g vial;
(C)  Ciprofloxacin-750 mg. tablets;
(D) Cycloserine-250 mg. capsules;
(E) Ethambutol-100 mg. tablets;
(F) Ethambutol-400 mg. tablets;
(G) Ethionamide-250 mg. tablets;
(H) Isoniazid (INH) syrup;
(I) Isoniazid (INH)-100 mg. tablets;
(J) Isoniazid (INH)-300 mg. tablets;
(K) Kanamycin-1 g vial;
(L)  Pyrazinamide-500 mg. tablets;
(M) Pyridoxine (Vit.B-6)-50 mg. tablets;
(N) Rifampin-300 mg./Isoniazid (INH) 150 mg. capsules;
(O) Rifampin-300 mg. capsules;
(P) Sodium P.A.S. tablets; and
(Q) Streptomycin-5 g.
(e)-(j) (No change.)
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 1, 1991.
TRD-9112032
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: October 22, 1991
Proposal publication date: July 26, 1991
For further information, please call: (512) 458-7500
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part III. Texas Air Control Board
Chapter 101. General Rules
31 TAC sec.101.1
The Texas Air Control Board (TACB) adopts an amendment to sec.101.1, concerning 
definitions, with changes to the proposed text as published in the July 26, 
1991, issue of the Texas Register (16 TexReg 4060). The proposed changes have 
been developed to satisfy the requirements of Senate Bill (S.B.) 1099, passed by 
the Texas State Legislature and signed by the Governor on June 6, 1991.
The amendment to sec.101.1 adds definitions for captured facility, commercial 
hazardous waste management facility, hazardous waste management facility, 
hazardous waste management unit, industrial furnace, and polychlorinated 
biphenyl compound. The new definitions will ensure consistency with other state 
environmental agencies in terminology concerning hazardous and solid waste 
facilities.
A public hearing was held on August 22, 1991, in Austin. Oral testimony was 
received from two commenters. Written testimony was received from two commenters 
on this section during the comment period which was extended from August 23 
until August 28, 1991.
The United States Environmental Protection Agency (EPA) recommended that 
"boiler" be added to the definition of a hazardous waste management unit in 
order to standardize it with the definition for a waste management facility. The 
staff agreed with EPA's suggestion and clarified the definition by adding boiler 
to the list of hazardous waste units.
Henry, Kelly & Lowerre recommended that a definition for "new" be added to apply 
to any exempt or grandfathered facility seeking a permit to operate as a 
hazardous waste management facility. The clarification of "new" would prevent an 
exempt or grandfathered facility from becoming a hazardous waste management 
facility, while retaining its exempt or grandfathered status. The staff does not 
believe that the classification definition is necessary because any major change 
in operation would require a permit and the facility would be considered as a 
new source.
The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017 
Texas Health and Safety Code (Vernon 1990), and sec.361.102 of the Solid Waste 
Disposal Act, Texas Health and Safety Code (Vernon 1990) as amended by Senate 
Bill 1099, 72nd Legislature, which provides the TACB with the authority to adopt 
rules consistent with the policy and purposes of the TCAA.
sec.101.1. Definitions.  Unless specifically defined in the Act or in the rules 
of the Board, the terms used by the Board have the meanings commonly ascribed to 
them in the field of air pollution control. In addition to the terms which are 
defined by the Texas Clean Air Act, the following words and terms when used in 
this part (31 TAC Part III) shall have the following meanings unless the context 
clearly indicates otherwise.
   Captured facility -A manufacturing or production facility that generates an 
industrial solid waste or hazardous waste that is routinely stored, processed, 
or disposed of on a shared basis in an integrated waste management unit owned, 
operated by, and located within a contiguous manufacturing complex.
   Commercial hazardous waste management facility-Any hazardous waste management 
facility that accepts hazardous waste or polychlorinated biphenyl compounds for 
a charge, except a captured facility which disposes only waste generated on-site 
or a facility that accepts waste only from other facilities owned or effectively 
controlled by the same person.
   Hazardous waste management facility-All contiguous land, including 
structures, appurtenances, and other improvements on the land, used for 
processing, storing, or disposing of hazardous waste. The term includes a 
publicly or privately owned hazardous waste management facility consisting of 
processing, storage, or disposal operational hazardous waste management units 
such as one or more landfills, surface impoundments, waste piles, incinerators, 
boilers, and industrial furnaces, including cement kilns, injection wells, salt 
dome waste containment caverns, land treatment facilities, or a combination of 
units.
   Hazardous waste management unit-A landfill, surface impoundment, waste pile, 
boiler, industrial furnace, incinerator, cement kiln, injection well, container, 
drum, salt dome waste containment cavern, or land treatment unit, or any other 
structure, vessel, appurtenance, or other improvement on land used to manage 
hazardous waste.
   Industrial furnace -Cement kilns, lime kilns, aggregate kilns, phosphate 
kilns, coke ovens, blast furnaces, smelting, melting, or refining furnaces, 
including pyrometallurgical devices such as cupolas, reverberator furnaces, 
sintering machines, roasters, or foundry furnaces, titanium dioxide chloride 
process oxidation reactors, methane reforming furnaces, pulping recovery 
furnaces, combustion devices used in the recovery of sulfur values from spent 
sulfuric acid, and other devices the Texas Water Commission may list.
   Polychlorinated biphenyl compound (PCB)-A compound subject to Title 40, Code 
of Federal Regulations, Part 761.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 30, 1991.
TRD-9112016
Lane Hartsock
Director, Planing and Development Program
Texas Air Control Board
Effective date: November 22, 1991
Proposal publication date: July 26, 1991
For further information, please call: (512) 908-1451
       
Chapter 116. Control of Air Pollution by Permits for New Construction or 
Modification
31 TAC sec.116.3
The Texas Air Control Board (TACB) adopts an amendment to sec.116.3, concerning 
control of air pollution by permits for new construction or modification, with 
changes to the proposed text as published in the July 26, 1991, issue of the 
Texas Register (16 TexReg 4060). The proposed changes have been developed to 
satisfy the requirements of Senate Bill (S.B.) 1099, passed by the Texas State 
Legislature and signed by the Governor on June 6, 1991.
The amendment to sec.116.3 adds certain distance prohibitions between new 
hazardous waste management facilities and any residence, church, school, day 
care center, surface water body used for a public drinking water supply, or 
dedicated public park before issuance of a construction or operating permit. 
These new distance restrictions shall reduce public exposure to hazardous waste 
and ensure consistency with the issuance of construction and operating permits 
from state environmental agencies.
A public hearing was held on August 22, 1991, in Austin. Two commenters 
presented oral testimony. Written testimony was received from six commenters on 
this section during the comment period which was extended from August 23-August 
28, 1991.
The Texas Chemical Council expressed concern that because the TACB has proposed 
changes to both Regulations VI and X, a separate permit application and a 
separate air permit for hazardous waste management facilities would be required. 
The staff does not concur. Major facilities covered by sec.116.3 would require a 
permit from the TACB only, since the facility would be covered by Part C or D of 
the Federal Clean Air Act (FCAA). The majority of hazardous waste management 
facilities would be governed by sec.120.12 and only a Texas Water Commission 
(TWC) permit would be issued which would include a permit provision concerning 
air emissions.
One individual commented that revisions to Regulation VI be deleted because 
Senate Bill 1099 amended the Texas Solid Waste Disposal Act and not the Texas 
Clean Air Act. The staff disagrees because some hazardous waste management 
facilities, such as incinerators or boilers burning hazardous waste fuels, fall 
under Part C or D of the FCAA and, therefore, TACB permitting jurisdiction. If 
the proposed revisions were not made to sec.116.3, then some hazardous waste 
management facilities would potentially not be subject to the distance 
requirements of Senate Bill 1099.
The Sierra Club suggested that permit applicants be required to prepare or 
provide the funds for the agency to prepare an extensive environmental and 
health effects analysis that will demonstrate beyond a reasonable doubt that the 
location and operation of the facility will meet the requirements of Senate Bill 
1099. The staff agrees with the intent; however, this provision is already 
addressed in sec.116.3(a)(15)(D) and sec.120.12(d).
Two commenters, the Sierra Club and Henry, Kelly & Lowerre, wanted an expansion 
of the one-half mile prohibition to a larger distance which would recognize the 
potential impact of the plume downwind. The Sierra Club also commented that the 
one-half mile restriction should be measured from the boundary of the grounds 
upon which an established residence, church, school, etc. is located and not 
from the structure(s) as proposed. In general, the staff agrees with the 
comment. Currently, all permit applicants are required to submit an impact 
analysis before final permit approval is granted, and sec.116.3(a)(15) (D) and 
sec.120.12(d) will safeguard public health, etc. at any distance beyond the 
facilities' property boundaries.
One individual wanted the TACB to clarify that land use is an issue for certain 
permits and also that the TACB would use an environmental assessment process to 
consider the risk that facilities pose to the environment. The TACB does not 
have the authority to consider land-use assessment. However, the TACB does 
perform an impact analysis on every permit application.
The United States Environmental Protection Agency recommended that the term "an 
established residence" and "a dedicated public park" be used throughout to 
eliminate confusion in the interpretation of paragraphs where the word 
"established" or "dedicated" were omitted. The staff agrees that the word 
"public" was an oversight and recommends the addition; however, the paragraphs 
in which "established" were omitted are properly written. It would be redundant 
to add the word "established" to the suggested paragraphs since the wording of 
the sentences indicates the residences, churches, schools, etc. had to be in 
place at the time of the application.
One individual representing the City of New Braunfels suggested that additional 
language be added to quickly reject any permit application which did not meet 
the distance requirement. The staff agrees with this concept. Presently, any 
permit that does not meet statutory requirements will be rejected as soon as a 
determination is made that a discrepancy exists. No additional rule language is 
necessary at this time to address this area.
Crain, Caton & James commented that distance requirements were ambiguous with 
respect to rivers which are used for drinking water supplies up or down stream 
from a facility where the water may not be used or may be brackish. The staff 
has referred this comment to the TWC for analysis.
The amendment is adopted under the Texas Clean Air Act (TCAA), sec.382.017, 
Texas Health and Safety Code (Vernon 1990), and the Solid Waste Disposal Act, 
sec.361.102, Texas Health and Safety Code (Vernon 1990) as amended by Senate 
Bill 1099, 72nd Legislature, which provides the TACB with the authority to adopt 
rules consistent with the policy and purposes of the TCAA.
sec.116.3. Consideration for Granting Permit to Construct and Operate.
(a) Permit to construct. In order to be granted a permit to construct, the owner 
or operator of the proposed facility shall submit information to the Texas Air 
Control Board (TACB) which will demonstrate that all of the following are met.
(1)-(14) (No change.)
(15) Permits for hazardous waste management facilities shall not be issued if 
the facility is to be located in the vicinity of specified public access areas 
under the following circumstances.
(A) No permit shall be issued for a new hazardous waste landfill or land 
treatment facility or an areal expansion of an existing facility if the boundary 
of the facility or expansion is to be located within 1, 000 feet of an 
established residence, church, school, day care center, surface water body used 
for a public drinking water supply, or dedicated public park.
(B) No permit shall be issued for a new commercial hazardous waste management 
facility or the subsequent areal expansion of such a facility or unit of that 
facility if the boundary of the unit is to be located within one-half mile 
(2,640 feet) of an established residence, church, school, day care cen- ter, 
surface water body used for a public drinking water supply, or dedicated public 
park.
(C) For a subsequent areal expansion of a new commercial hazardous waste 
management facility that is required to comply with subparagraph (B) of this 
paragraph, distances shall be measured from a residence, church, school, day 
care center, surface water body used for a public drinking water supply, or 
dedicated public park only if such structure, water supply, or park was in place 
at the time the distance was certified for the original permit.
(D) No permit shall be issued for a new commercial hazardous waste management 
facility that is proposed to be located at a distance greater than one-half mile 
(2,640 feet) from an established residence, church, school, day care center, 
surface water body used for a public drinking water supply, or dedicated public 
park, at any distance beyond the facility's property boundaries, unless the 
applicant demonstrates that the facility will be operated so as to safeguard 
public health and welfare and protect physical property and the environment.
(E) The measurement of distances required by subparagraphs (A), (B), (C), and 
(D) of this paragraph shall be taken toward an established residence, church, 
school, day care center, surface water body used for a public drinking water 
supply, or dedicated public park that is in use when the permit application is 
filed with the TACB. The restrictions imposed by subparagraphs (A) , (B), (C), 
and (D) of this paragraph do not apply to a residence, church, school, day care 
center, surface water body used for a public drinking water supply, a dedicated 
public park located within the boundaries of a commercial hazardous waste 
management facility or property owned by the permit applicant.
(F) The measurement of distances required by subparagraphs (A), (B), (C), and 
(D) of this paragraph shall be taken from a perimeter around the proposed 
hazardous waste management unit. The perimeter shall be no more than 75 feet 
from the edge of the proposed hazardous waste management unit.
(b)-(f)  (No change.)
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 30, 1991.
TRD-9112017
Lane Hartsock
Director, Planning and Development Program
Texas Air Control Board
Effective date: November 22, 1991
Proposal publication date: July 26, 1991
For further information, please call: (512) 908-1451
       
Chapter 120. Control of Air Pollution from Hazardous Waste or Solid Waste 
Management Facilities
31 TAC sec.120.12
The Texas Air Control Board (TACB) adopts new sec.120.12, concerning control of 
air pollution from hazardous waste or solid waste management facilities, with 
changes to the proposed text as published in the July 22, 1991, issue of the 
Texas Register (16 TexReg 4060). The proposed changes have been developed to 
satisfy the requirements of Senate Bill (S.B.) 1099, passed by the Texas State 
Legislature and signed by the Governor on June 6, 1991.
The new sec.120.12 adds certain distance prohibitions between new hazardous 
waste management facilities and any residence, church, school, day care center, 
surface water body used for a public drinking water supply, or dedicated public 
park before issuance of a construction or operating permit. These new distance 
restrictions shall reduce public exposure to hazardous waste and ensure 
consistency with the issuance of construction and operating permits from state 
environmental agencies.
A public hearing was held on August 22, 1991, in Austin. Two commenters 
presented oral testimony. Written testimony was received from two commenters on 
this section during the comment period which was extended from August 23 until 
August 28, 1991.
The Sierra Club suggested that permit applicants be required to prepare or 
provide the funds for the agency to prepare an extensive environmental and 
health effects analysis that will demonstrate beyond a reasonable doubt that the 
location and operation of the facility will meet the requirements of Senate Bill 
1099. The staff agrees with the intent; however, this provision is already 
addressed in sec.116.3(a)(15)(D) and sec.120.12(d).
Two commenters, the Sierra Club and Henry, Kelly & Lowerre, wanted an expansion 
of the one-half mile prohibition to a larger distance which would recognize the 
potential impact of the plume downwind. The Sierra Club also commented that the 
one-half mile restriction should be measured from the boundary of the grounds 
upon which an established residence, church, school, etc. is located and not 
from the structure(s) as proposed. In general, the staff agrees with the 
comment. Currently, all permit applicants are required to submit an impact 
analysis before final permit approval is granted, and sec.116.3(a)(15) (D) and 
sec.120.12(d) will safeguard public health, etc. at any distance beyond the 
facilities' property boundaries.
One individual wanted the TACB to clarify that land use is an issue for certain 
permits and also that the TACB would use an environmental assessment process to 
consider the risk that facilities pose to the environment. The TACB does not 
have the authority to consider land-use assessment. However, the TACB does 
perform an impact analysis on every permit application.
The United States Environmental Protection Agency recommended that the term "an 
established residence" and "a dedicated public park" be used throughout to 
eliminate confusion in the interpretation of paragraphs where the word 
"established" or "dedicated" were omitted. The staff agrees that the word 
"public" was an oversight and recommends the addition; however, the paragraphs 
in which "established" were omitted are properly written. It would be redundant 
to add the word "established" to the suggested paragraphs since the wording of 
the sentences indicates the residences, churches, schools, etc. had to be in 
place at the time of the application.
One individual representing the City of New Braunfels suggested that additional 
language be added to quickly reject any permit application which did not meet 
the distance requirement. The staff agrees with this concept. Presently, any 
permit that does not meet statutory requirements will be rejected as soon as a 
determination is made that a discrepancy exists. No additional rule language is 
necessary at this time to address this area.
Crain, Caton & James commented that distance requirements were ambiguous with 
respect to rivers which are used for drinking water supplies up or down stream 
from a facility where the water may not be used or may be brackish. The staff 
has referred this comment to the Texas Water Commission for analysis.
The new section is adopted under the Texas Clean Air Act (TCAA), sec.382.017, 
Texas Health and Safety Code (Vernon 1990), and sec.361.102 of the Solid Waste 
Disposal Act, Texas Health and Safety Code (Vernon 1990) as amended by Senate 
Bill 1099, 72nd Legislature, which provides the TACB with the authority to adopt 
rules consistent with the policy and purposes of the TCAA.
sec.120.12. Prohibition on Permit Issuance.
(a) No permit shall be issued for a new hazardous waste landfill or land 
treatment facility or an areal expansion of an existing facility if the boundary 
of the facility or expansion is to be located within 1,000 feet of an 
established residence, church, school, day care center, surface water body used 
for a public drinking water supply, or dedicated public park.
(b) No permit shall be issued for a new commercial hazardous waste management 
facility or the subsequent areal expansion of such a facility or unit of that 
facility if the boundary of the unit is to be located within one-half mile 
(2,640 feet) of an established residence, church, school, day care center, 
surface water body used for a public drinking water supply, or dedicated public 
park.
(c) For a subsequent areal expansion of a new commercial hazardous waste 
management facility that is required to comply with subsection (b) of this 
section, distances shall be measured from a residence, church, school, day care 
center, surface water body used for a public drinking water supply, or dedicated 
public park only if such structure, water supply, or park was in place at the 
time the distance was certified for the original permit.
(d) No permit shall be issued for a new commercial hazardous waste management 
facility that is proposed to be located at a distance greater than one-half mile 
(2,640 feet) from an established residence, church, school, day care center, 
surface water body used for a public drinking water supply, or dedicated public 
park, at any distance beyond the facility's property boundaries, unless the 
applicant demonstrates to the satisfaction of the Texas Water Commission (TWC) 
that the facility will be operated so as to safeguard public health and welfare 
and protect physical property and the environment.
(e) The measurement of distances required by subsections (a), (b), (c), and (d) 
of this section shall be taken toward an established residence, church, school, 
day care center, surface water body used for a public drinking water supply, or 
dedicated public park that is in use when the notice of intent to file a permit 
application is filed with the TWC or, if no notice of intent is filed, when the 
permit application is filed with the TWC. The restrictions imposed by 
subsections (a), (b), (c), and (d) of this section do not apply to an 
established residence, church, school, day care center, surface water body used 
for a public drinking water supply, a dedicated public park located within the 
boundaries of a commercial hazardous waste management facility, or property 
owned by the permit applicant.
(f) The measurement of distances required by subsections (a), (b), (c), and (d) 
of this section shall be taken from a perimeter around the proposed hazardous 
waste management unit. The perimeter shall be no more than 75 feet from the edge 
of the proposed hazardous waste management unit.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 30, 1991.
TRD-9112018
Lane Hartsock
Director, Planning and Development Program
Texas Air Control Board
Effective date: November 22, 1991
Proposal publication date: July 26, 1991
For further information, please call: (512) 908-1451
       
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 10. Family Self-support Services
Child Care Management Services Statewide Implementation
40 TAC sec.10.3412
The Texas Department of Human Services (DHS) adopts an amendment to sec.10. 
3412, without changes to the proposed text as published in the August 27, 1991, 
issue of the Texas Register (16 Tex Reg 4678).
Justification for the amendment is to clarify the policy concerning purchased 
child care services and to avoid duplication with policy stated in related 
sections.
The amendment will function by clarifying policies for child care services.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 44, which authorizes the department to administer public assistance and day 
care programs.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 2, 1991.
TRD-9112085
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Effective date: November 1, 1991
Proposal publication date: August 27, 1991
For further information, please call: (512) 450-3765