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 19. EDUCATION Part II. Texas Education Agency Chapter 33. Investment of the Permanent School Fund 19 TAC sec.33.105 The Texas Education Agency (TEA) adopts an amendment to sec.33.105 concerning guarantee program for school district bonds, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4442). The amendment includes changes made to the guarantee program by House Bill 2885, 72nd Legislature, which allows bonds issued under Texas Civil Statutes, Article 717k, to be included in the guarantee program. The amendment also updates the section to include current policy related to the eligibility of school district bonds. The amendment was adopted on an emergency basis in the July 26, 1991, issue of the Texas Register (16 TexReg 4043). Justification for the amendment will be compliance with legislation included in House Bill 2885, 72nd Legislature, concerning the guarantee program and policies relating to the eligibility of school district bonds. The amendment will function by allowing school districts using the guarantee program to save the cost of private bond insurance and some interest cost. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.20.904, which provides the commissioner of education with the authority to approve bonds for guarantee by the corpus and income of the permanent school fund. 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 18, 1991. TRD-9112914 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Chapter 67. Instructional Resources Subchapter A. State Textbook Program Special Textbooks 19 TAC sec.67.131 The Texas Education Agency (TEA) adopts an amendment to sec.67.131 concerning special textbooks to be made available, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4443). The amendment implements legislation included in House Bill 2277, 72nd Legislative Session, pertaining to the production of Braille textbooks. The amendment requires publishers of newly adopted books in literary subjects to provide Braille organizations with appropriate computer diskettes no later than 30 days after adoption of textbooks by the State Board of Education. It also defines the term "literary subjects" as those subjects in which textbooks can be converted into Braille without the use of special music, foreign language, mathematics, science, or computer science Braille codes. Justification for the amendment will be compliance with legislation included in House Bill 2277, 72nd Legislative Session, pertaining to the production of Braille textbooks. The amendment will function by requiring publishers of newly adopted books in literary subjects to provide Braille organizations with appropriate computer diskettes no later than 30 days after adoption of textbooks by the State Board of Education, and defining the term "literary subjects." No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.12.03, which provides the State Board of Education with the authority to acquire, purchase, or contract for textbooks. 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 18, 1991. TRD-9112915 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Chapter 75. Curriculum Subchapter G. Other Provisions 19 TAC sec.75.174 The Texas Education Agency (TEA) adopts an amendment to sec.75.174 concerning students with dyslexia and related disorders, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4444). Subsection (e) of the section does not comport with the requirements of the federal law prohibiting discrimination against persons with handicaps (the Rehabilitation Act, sec.504, 1973). School districts are required by implementing federal regulations to provide a hearing by an impartial hearing officer whose decision can be appealed to the court. Therefore, subsection (e) is being deleted from the section. Justification for the amendment will be compliance with the requirements of the Rehabilitation Act, sec.504, 1973, that prohibits discrimination against persons with handicaps. The amendment will function by ensuring that school districts provide a hearing by an impartial hearing officer whose decision can be appealed to the court. No comments were received regarding adoption of the amendment. The amendment is adopted under the Rehabilitation Act, 1973, and the Texas Education Code, sec.21.924, which provides the State Board of Education and the Central Education Agency with the authority to develop rules and standards necessary to administer the program for students with dyslexia and related disorders. 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 18, 1991. TRD-9112916 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Chapter 89. Adaptations for Special Populations Subchapter B. Remedial and Compensatory Instruction 19 TAC sec.89.41 The Texas Education Agency (TEA) adopts an amendment to sec.89.41, with changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4444). Several legislative bills have been enacted that change the fiscal and programmatic requirements of Texas Education Code, sec.16.152 and sec.21.557. House Bill 2885 amended sec.16.152 of the Code to delete the word "supplemental" and required instead that state compensatory education funds be used to "improve and enhance programs and services funded under the regular education program." The proposed amendment to the section implements these legislative requirements. Justification for the amendment will be compliance with legislation included in House Bill 2885 and Senate Bill 351, 72nd Legislature. The amendment will function by implementing requirements that state compensatory education funds be used to improve and enhance programs and services funded under the result education program. Comments were received regarding adoption of the amendment from the Region 19 Education Service Center Regional Advisory Committee and the Regional Texas Association of School Administrators. The following includes a description of the comments and the responses of the agency. The commenters expressed concern that sec.89.41(b) included the words "currently offered" in relation to courses or subjects. It was suggested that the words be removed from the subsection because they do appear in the current law and may significantly restrict school districts in the use of these funds when "currently offered" is used in conjunction with the meaning of "standard approach to courses and subjects." The State Board of Education agrees and the section has been changed to eliminate the words "currently offered." The commenters recommended that agency staff meet with school district officials to collaboratively develop an operational definition for "standard approach" in subsection (b). The agency agreed and additional wording has been added to subsection (b) that is intended to convey to school districts that improved student results should guide the districts' choice of programs and course offerings. The amendment is adopted under the Texas Education Code, sec.16.152 and sec.21. 557, which provides the State Board of Education with the authority to develop rules relating to the compensatory and remedial instruction. sec.89.41. Definition of Remedial and Compensatory Instruction. (a) (No change.) (b) Compensatory funds are to be used to improve and enhance the regular school program so that identified students can achieve success in school and meet the desired student outcomes, such as attaining grade level proficiency, performing satisfactorily on the state assessment instruments and graduating from school. Special instruction that satisfies basic program requirements may be funded provided it is specifically designed to meet the needs of students identified for these programs and is not a standard approach to courses or subjects. The special instruction must be restructured if results show that the courses are not successful in helping students achieve the desired student outcomes. (c) A student eligible to be served by this program is one that meets one or more of the criteria specified in the Texas Education Code, sec.21.557(b) and (c) or who is identified as at-risk of dropping out of school according to local board policy in accordance with Texas Education Code, sec.11.205(c), relating to Dropout Reduction Program. (d) Districts may use up to 15% of state compensatory education funds for general administrative costs. (e) Each school district shall allocate a percentage of the district's state compensatory education funds for remedial and support programs specifically for students at risk of dropping out of school as required in the Texas Education Code, sec.16.152(e), relating to Compensatory Education Allotment. This targeted allotment shall be: (1)-(2) (No change.) (f) Remedial and support programs and services for students at risk of dropping out of school as determined by subsection (c) of this section shall include: (1)-(4) (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 18, 1991. TRD-9112919 Criss Cloudt Director, Planning Coordination Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Subchapter G. Special Education Clarification of Provisions in Federal Regulations and State Law 19 TAC sec.89.221 The Texas Education Agency (TEA) adopts an amendment to sec.89.221 concerning the admission, review, and dismissal (ARD) committee, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4445). The amendment adds language to the subsection governing the 10-day provision granted to parents who disagree with the decision of the ARD committee. The language only changes the section for ARD committees convened for the purpose of making disciplinary decisions under 19 TAC sec.133.28 concerning the discipline of students with handicaps, to prevent a student who presents a danger of welfare to himself or other individuals, from returning to school during a 10-day recess. Justification for the amendment will be the implementation of policies governing the 10-day provision granted to parents who disagree with the decision of the ARD committee in school districts. The amendment will function by preventing a student who presents a danger of welfare to himself or other individuals from returning to school during the 10- day recess. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.21.5041, which provides the State Board of Education with the authority to develop by rule alternate methods for ARD committees to develop an individualized education program. 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 18, 1991. TRD-9112917 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 19 TAC sec.89.233 The Texas Education Agency (TEA) adopts an amendment to sec.89.233 concerning comprehensive individual assessment, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4445). The amendment implements legislation included in House Bill 2885, sec.62, 72nd Legislature, that deletes the requirement for an assessment of an individual's intellectual functioning unless the assessment is required to establish eligibility for special education services. The amendment also deletes the requirement for a State Board of Education list of approved assessment instruments. Justification for the amendment will be compliance with legislation included in House Bill 2885, sec.62, 72nd Legislature. The amendment will function by eliminating the requirements for assessing an individual's intellectual functioning unless the assessment is required to establish eligibility for special education services. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.21.911, as amended by House Bill 2885, sec.62, 72nd Legislature, which provides the State Board of Education with the authority to develop rules relating to testing pupils for assignment to special education classes. 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 18, 1991. TRD-9112918 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Chapter 97. Planning and Accreditation Subchapter A. General Provisions 19 TAC sec.97.10 The Texas Education Agency (TEA) adopts an amendment to sec.97.10 concerning state operated school districts, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4447). Senate Bill 351 changed the ability of the commissioner to suspend the powers of local district trustees for school districts rated academically unaccredited from two years to one year. The amendment to sec.97.10 modifies the section to reflect this change. The amendment was adopted on an emergency basis in the August 16, 1991, issue of the Texas Register (16 TexReg 4439). Justification for the amendment will be compliance with legislation included in Senate Bill 351 concerning the ability of the commissioner to suspend the powers of local district trustees for school districts rated academically unaccredited from two years to one year. The amendment will function by reflecting new statutory requirements and allowing the commissioner of education to suspend the powers of local district trustees of academically unaccredited school district for a shorter period of time. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.21.758, which provides the commissioner of education with the authority to order the suspension of powers of the board of trustees of local school districts. 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 18, 1991. TRD-9112920 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Chapter 141. Teacher Certification Subchapter A. Certification of Teachers in General 19 TAC sec.141.2 The Texas Education Agency (TEA) adopts an amendment to sec.141.2, concerning classes of certificates, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4448). House Bill 1679, sec.1, provides that teachers who are hearing impaired, as specified in the Texas Education Code, sec.13.050(d)(1) of that bill, are temporarily exempt from the tests specified in the Texas Education Code, sec.13. 032(e) (the Texas Academic Skills Program and the Examination for the Certification of Educators in Texas tests) and in the Texas Education Code, sec.13.316 (the Texas Master Teacher Examination), until the tests can be modified, pilot tested, and determined reliable and valid for these teachers. The amendment designates the procedure for individuals affected by this law to obtain their temporary exempt certificates. The amendment was adopted on an emergency basis in the August 16, 1991, issue of the Texas Register (16 TexReg 4439). Justification for the amendment will be compliance with legislation included in House Bill 1679 concerning the temporary exemption of teachers who are hearing impaired from tests specified in the Texas Education Code, sec.13.032(e) (the Texas Academic Skills Program and the Examination for the Certification of Educators in Texas tests) and in the Texas Education Code, sec.13.316 (the Texas Master Teacher Examination). The amendment will function by reflecting new statutory requirements and designating the procedure for hearing impaired teachers to obtain their temporary exempt certificate. Comments were received regarding adoption of the amendment from faculty members of Lamar University. The following includes a comment relating to sec.141. 2 as well as the response of the agency. Additional comments were received from the faculty members regarding sec.141.421 which was proposed in a separate submission. Those comments will be addressed in the adoption for that section. Comment: The faculty members are concerned that the term "temporary exemption certificate" might be considered by some to have negative connotations and seek to have the certificate called something else, such as "Class A Certificate." Response: The term is supplied by statute and should be maintained in accordance with the statutory language. The information on the certificate itself will be similar to all other certificates except under the column designated "Expiration Date." Instead of "Life" or a specified length of time (which appears on some certificates), individuals who receive a temporary exemption certificate will simply have the legal citation [TEC 13.050(c)] shown in lieu of an expiration date. The amendment is adopted under House Bill 1679, sec.1, 72nd Legislature, Regular Session, which provides the State Board of Education with the authority to adopt rules regarding the certification of teachers who are hearing impaired. 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 18, 1991. TRD-9112912 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 Subchapter S. Testing Program General Provisions 19 TAC sec.141.421 The Texas Education Agency (TEA) adopts an amendment to sec.141.421 concerning testing requirements, without changes to the proposed text as published in the August 16, 1991, issue of the Texas Register (16 TexReg 4448). House Bill 1679, sec.1, provides that teachers who are hearing impaired, as specified in the Texas Education Code, sec.13.050(d)(1) of that bill, are temporarily exempt from the tests specified in the Texas Education Code, sec.13. 032(e) (the Texas Academic Skills Program and the Examination for the Certification of Educators in the Texas tests) and in the Texas Education Code, sec.13.316 (the Texas Master Teacher Examination), until the tests can be modified, pilot tested, and determined reliable and valid for these teachers. The amendment designates the procedure for individuals affected by this law to obtain their temporary exempt certificate. The amendment was adopted on an emergency basis in the August 16, 1991, issue of the Texas Register (16 TexReg 4440). Justification for the amendment will be compliance with legislation included in House Bill 1679 concerning the temporary exemption of teachers who are hearing impaired from tests specified in the Texas Education Code, sec.13.032(e) (the Texas Academic Skills Program and the Examination for the Certification of Educators in Texas tests) and in the Texas Education Code, sec.13.316 (the Texas Master Teacher Examination). The amendment will function by reflecting new statutory requirements and designating the procedure for hearing impaired teachers to obtain their temporary exempt certificate. Comments were received regarding adoption of the amendment from faculty members of Lamar University. The following includes a description of the comments as well as the responses of the agency. Comment: The faculty members are concerned with the clarity of the definition "hearing impaired" set forth in the section. They requested an alternative definition. Response: The definition of "hearing impaired" set forth in the section is taken from the Texas Education Code, sec.13.050(d)(1). The language in the Texas statute was taken from a definition of hearing impaired in federal law. The federal definition has not appeared to cause any confusion in the field and this is the reason that the definition was selected. Comment: The faculty members advocated a state administered test of sign language competence for all income teachers. Response: The "1987 Standards for Teacher Education" (19 TAC sec.137.555(a)(1)(F)) requires that each teacher education institution which is approved to offer the certificate for teaching hearing impaired students include course(s) which ensure that teacher trainees have competence in "manual communication (finger spelling, signed English and American Sign Language)." To date, the agency has not received resources to develop such a test. The amendment is adopted under House Bill 1679, sec.1, 72nd Legislature, Regular Session, which provides the State Board of Education with the authority to adopt rules regarding the certification of teachers who are hearing impaired. 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 18, 1991. TRD-9112913 Criss Cloudt Director, Planning Coordination Texas Education Agency Effective date: November 8, 1991 Proposal publication date: August 16, 1991 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARD Part XXII. Texas State Board of Public Accountancy Chapter 511. Certification as CPA Educational Requirements 22 TAC sec.511.52 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 52, concerning recognized colleges and universities, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4130). This amendment is necessary in order to ensure that educational institutions are of high quality. This amendment established consistent standards for evaluating educational institutions. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a) which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to education requirements. 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 15, 1991. TRD-9112925 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: November 8, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 CPA Examination 22 TAC sec.511.90 The Texas State Board of Public Accountancy adopts new sec.511.90, concerning proctoring candidates from another licensing jurisdiction, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4136). This new rule is necessary to allow persons temporarily in Texas to receive proctoring services without cost to Texas taxpayers. The new rule will establish guidelines for allowing candidates from other jurisdictions to take the examination in Texas. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. 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 15, 1991. TRD-9112926 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: November 8, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Chapter 521. Fee Schedule 22 TAC sec.521.2 The Texas State Board of Public Accountancy adopts an amendment to sec.521.2, concerning examination fees, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4139). This amendment is necessary in order to ensure that the burden on taxpayers is reduced. This amendment will institute a nonrefundable filing fee of $50 for examination applications, and it increases the fees for taking the examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to fee schedule. 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 15, 1991. TRD-9112928 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: November 8, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.521.4 The Texas State Board of Public Accountancy adopts an amendment to sec.521.4, concerning registration fees for foreign accountants, without changes to the proposed text as published in July 30, 1991, issue of the Texas Register (16 TexReg 4139). The amendment will require foreign accountants to pay their own costs of regulation, which will lessen the financial burden of Texas taxpayers. The amendment will increase the registration fees for foreign accountants. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to fee schedule. 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 15, 1991. TRD-9112929 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: November 8, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.521.10 The Texas State Board of Public Accountancy adopts new sec.521.10, concerning out-of-state proctoring fee, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4140). This rule is necessary in order to ensure that the financial burden for proctoring services will be borne by the persons who benefit from the services. The rule establishes fees for proctoring examinations for nonresidents temporarily in Texas. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to fee schedule. 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 16, 1991. TRD-9112924 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: November 8, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Part XXVII. Board of Tax Professional Examiners Chapter 628. Ethical Conduct 22 TAC sec.sec.628.1-628.7 The Board of Tax Professional Examiners adopts new sec. sec.628.1-628.7, concerning ethical conduct, without changes to the proposed text as published in the September 17, 1991, issue of the Texas Register (16 TexReg 5128). The new sections expand upon and make more specific the general ethical rules in the assessor's code of ethics. The sections will provide valuable guidance to public officials who perform sensitive and highly visible public functions related to the levying and collecting of taxes, and will assure the public that such functions are performed in a fair and ethical manner. These rules will be distributed to each person registered with the board for individual guidance on avoidance of complaints from the public and guidance for particular and common situations related to public service ethics. No comments were received regarding adoption of the new sections. The new sections are 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. 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 18, 1991. TRD-9112879 Sam H. Smith Executive Director Board of Tax Professional Examiners Effective date: November 8, 1991 Proposal publication date: September 17, 1991 For further information, please call: (512) 329-7981 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 281. Application Processing 31 TAC sec.281.26 The Texas Water Commission (TWC) adopts new sec.281.26, concerning applications processing, without changes to the proposed text as published in the August 2, 1991, issue of the Texas Register (16 TexReg 4208). The new section is adopted in order to incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), Chapter 361, Texas Health and Safety Code, sec.361. 109 (Vernon 1991), recently promulgated by the legislature in Senate Bill 1099, Texas Senate Bill 1099, 72nd Legislature (1991). A written comment concerning proposed new sec.281.26 was submitted by the law firm of Crain, Caton and James. In addition, comments concerning all of the TWC's proposed rules implementing the provisions of Senate Bill 1099 were received from citizens at public hearings conducted by the TWC in the following Texas cities: Abilene, Amarillo, Arlington, Austin, Dayton, El Paso, Fort Stockton, LaPorte, Midlothian, New Braunfels, Texas City, and Tyler. As proposed, new sec.281.26 prohibits the TWC from processing an permit application for a new commercial hazardous waste management facility until the applicant provides evidence or demonstrates emergency response or financial assurance required in sec.305.50(12)(C)(i) or (ii) (relating to Additional Requirements for an Application for a Solid Waste Permit). Thus an applicant for a new commercial hazardous waste management facility must provide or demonstrate either emergency response capabilities or financial assurance in order to satisfy the applications processing requirements of this section. One commenter suggests that in the interim between changes to the permit application forms and checklists by the TWC to reflect the new sec.281.26 requirements, existing permit applications be allowed to meet those new requirements at a hearing as a minor amendment to the application or through another processing mechanism as a matter of agency policy. This commenter also requests clarification as to whether the TWC will proceed with reviewing permit applications. The TWC believes that the statutory language of new sec.281.26 is sufficiently clear in this area. The TWC cannot process an application for a permit for a new hazardous waste management facility until the requirements of this new section are first met. Because this new section imposes requirements which are more stringent than previous permitting requirements, it is appropriate to treat the necessary additional permit application submittals as a minor amendment. However, if a hearing is in progress, it is likely that the staff of the executive director will request a continuance of the proceedings in order to afford time for the staff to thoroughly review the new information. This approach is intended to reduce the potential for confusion in an on-going hearing and to assure that the best possible staff recommendation can be presented to the commission. In cases where evidence discovery is in progress, the staff will ask that it not be required to provide information until it has had adequate time to review the new information. With regard to the question of whether the TWC will proceed with reviewing permit applications, the terms of Senate Bill 1099 state that the permit processing moratorium will be lifted upon adoption of the rules necessary to implement Article 1 of that legislative bill. The TWC believes that adoption of these rules will therefore result in termination of the moratorium. However, there may be individual cases in which the TWC would use its discretion over hearing procedures to hold the case in abeyance. For example, the TWC may decide to hold applications for disposal by salt dome injection in abeyance, pending a determination of what, if any, additional rules may be necessary to effectively regulate that activity. The new section is adopted under the Texas Water Code, sec.5.103 and sec.26.011, which gives the Texas Water Commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The section is also adopted under the TSWDA, sec.3 and sec.4, which gives the Texas Water Commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. 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 17, 1991. TRD-9112850 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Chapter 305. Consolidated Permits The Texas Water Commission (TWC) adopts amendments to sec. sec.305.49-305.50, 305.66, 305.101-305.103, and new sec.sec.305.107, 305.147, and 305.148, concerning permit requirements for solid waste management facilities. The amendments and new sections incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), Chapter 361, Texas Health and Safety Code. (Vernon's Supplement 1991) recently promulgated by the legislature in Senate Bill 1099, 72nd Legislature, 1991. Amendments to sec.sec.305.50, 305.66, and new sec.305.107 and sec.305.147 are adopted with changes, to the proposed text as published in the August 2, 1991, issue of the Texas Register (16 TexReg 4208). The amendments to sec.sec.305. 49, 305.101-305.103, and new sec.305.148 are adopted without changes and will not be republished. Section 305.50(4)(A) was incorrectly published as sec.305.50(A)(4). This subparagraph number has been corrected to read "305.50(4)(A)". The numerals for the following subparagraphs (A)-(E), remain the same. In addition, an introductory sentence has been added to sec.305.50(4) in order to conform to the Texas Registers format for rules. The preamble published on August 2, 1991, in the Texas Register (16 TexReg 4208) incorrectly described sec.305.50(4) (C) as allowing TWC to request additional information if the applicant fails to provide sufficient financial resource information. Due to a last-minute deletion, this proposed section itself intentionally did not include this provision; however, the preamble was not corrected before publication. Therefore, the sections as published on August 2, 1991, accurately reflected the TWC's intent with respect to these requirements, notwithstanding representations in the preamble. Similarly, the preamble cited to sec.305.43(4)(E); this section should have been sec.305.50(4)(E). In addition, sec.305.50(10)(E) has been corrected such that it references sec.305.50(4)(D), rather than sec.305.50(4)(E). Written comments to the proposed amendments and new sections pertaining to this title were submitted to the TWC by the following: the law firm of Akin, Gump, Strauss, Hauer & Feld; American Electronics Association, Texas Council, Environmental Policy Working Group (EPWG); the law firm of Blackburn and Carter; the law firm of Brown, Maroney & Oaks Hartline; The Chemical Connection; Chemical Waste Management, Inc., Citizens Aware and United for a Safe Environment (CAUSE); Clean Water Action; Councilmen of the City of New Braunfels; the law firm of Crain, Caton & James; Dupont-Gulf Coast Regional Manufacturing Services; Ethyl Corporation; F.I.S.T., Inc.; Gibraltar Chemical Resources, Inc.; Hardin-Simmons University; Public Interest Counsel; the law firm of Henry, Kelly & Lowerre; the law firm of Hutchinson & Grundy; IRI International; the law firm of Johnson & Gibbs; Kodak; the law firm of McGinnis, Lochridge & Kilgore; Monsanto; North Athens Council of Citizens (NACC); North Texas Cement Company; Securing a Future Environment (SAFE); Sierra Club-Dallas Regional Group; Sierra Club-Lone Star Chapter; the law firm of Small, Craig & Werkenthin; Texas Air Control Board; Texas Bar Historical Foundation; Texas Chemical Council; Texas Ecologists, Inc.; Texans United; the law firm of Thompson & Knight; Titus County Citizens and Endangered Species, Inc.; the United States Department of Commerce, National Oceanic and Atmospheric Administration; and several individuals. In addition, comments were received from citizens at public hearings conducted by the TWC in the following Texas cities: Abilene, Amarillo, Arlington, Austin, Dayton, El Paso, Fort Stockton, LaPorte, Midlothian, New Braunfels, Texas City and Tyler. Comments were received regarding sec.305.49 (Additional Contents of Application For an Injection Well Permit). One commenter stated that sec.305.49(c) needs to be revised to add references to paragraphs and subparagraphs of sec.305. 50 such as (4)(C) and (D), (9), (10), and (12)(C). In response, the Texas Water Commission (TWC) believes that it is unnecessary to add a reference to sec.305.50 (4)(C), since that subparagraph makes reference to information required to be disclosed under sec.305.50(4)(B). Thus, if sec.305.49(c) requires that information be disclosed pursuant to sec.305.50(4)(B), then that information would be subject to the protective provisions of sec.305.50(4)(C), making the additional reference unnecessary. Another commenter recommended that consideration should be provided for pending applications, allowing the financial assurance requirements to be met by information provided at a hearing via minor amendments, or through another acceptable processing mechanism. For pending applications, it is likely that such information would be reviewed as a minor amendment to the application. In general, all information necessary to demonstrate financial capability or assurance should be presented with the initial application. Comments were received on sec.305.50(2) (Additional Requirements for An Application For a Solid Waste Permit) in which the applicant is required to submit listings of all environmental violations by the applicant or permit holder in the preceding five years at the permitted site, listings of all environmental violations in the preceding five years at any site owned, operated or controlled by the applicant, a summary of the attempts by the permit holder to correct the environmental violations, and an indication of whether the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by the Texas Solid Waste Disposal Act or by any rule of the commission. Numerous comments were received which stated that only those environmental violations which resulted in a final determination should be included in this requirement. One commenter stated that only those environmental violations which resulted in a final determination that has resulted in harm to human health and the environment should be included. Several other commenters suggested that only significant environmental violations should be included in the compliance summary. Numerous other commenters suggested the compliance history should not be limited to a final determination, but rather, should include a notice of violation, inspection reports in which violations were found, and agreed orders or settlements of environmental violations. In response to these comments regarding compliance history, Senate Bill 1099 has provided, at sec.1.10 and sec.1.11, requirements for the types of violations which must be included in a compliance summary. Pursuant to the TSWDA, sec.361. 089(e), which is set forth at sec.1.11 of Senate Bill 1099, has been interpreted by the TWC to require a compilation by the applicant of all environmental violations by the permit holder at any site in the State of Texas. The TSWDA, sec.361.084(C), which is set forth at sec.1.10 of Senate Bill 1099, is interpreted by the TWC to require that, for all facilities owned outside the State of Texas by the applicant (or permit holder, in the case of an amendment or modification), evidence of a final determination of noncompliance with federal statutes or state statutes in the preceding five years concerning solid waste management shall be admissible as evidence in hearings. Section 305.50(2) has been changed to more accurately reflect this interpretation by the agency. Several commenters suggested that agreed orders be used as proof of noncompliance. It is the TWC's response that agreed orders may be included as part of the record of compliance on file with the TWC, but that such agreed orders may not be used as proof of a final determination of an environmental violation, if such orders make no such factual determination. Some commenters suggested that this section is overly burdensome to the applicant, and the information should be restricted only to the site for which a permit is sought. It appears, however, that Senate Bill 1099 requires evidence of compliance for all sites owned by the applicant. Several commenters have suggested that this particular section is outside the scope of Senate Bill 1099, since the TWC is required to compile the compliance history, not the applicant. The commenters suggested that the scope of the information required from the applicant is limited to environmental violations under the jurisdiction of the laws and regulations of the State of Texas. The commenters suggest that this regulation exceeds the agency's statutory authority, and the agency should delete this section. It is the agency's position that, while it may be charged with the duty of compiling a compliance history, it is within the authority of the TWC to include the applicant in the process by making it the responsibility of the applicant to provide this information to the agency when the applicant could benefit from receipt of a permit. Another commenter suggested that the section must state that the agency prepare the compliance history, since applicants should not be trusted to own up to their own compliance problems. In response, it should be noted that the TSWDA, sec.361.089(e)(3), provides that the commission may deny, suspend, or revoke an original or renewal permit if it is found, after notice and hearing, that the permit holder or applicant made a false or misleading statement in connection with an original or renewal application, either in the formal application or in any other written instrument relating to the application submitted to the agency, its officers, or its employees. Thus, if an applicant is found to have made false or misleading statements regarding their compliance history after notice and hearing, then the permit or amendment may be denied, revoked, or suspended. Numerous commenters had suggested that further rulemaking is necessary to clarify what is required under the compliance history section of these rules. The TWC anticipates that additional rulemaking will probably take place in the next few years, in order to flesh out areas such as this one in these "120-day rules." One commenter suggested that self-reported releases and violations should be given much less weight than failure to report, as it is in the public interest for self-reporting violations to occur. The commenter further suggested that, if self-reporting reveals a pattern of violations which are not addressed, failure to act to correct these violations should be relevant to permit denial. The commenter further suggests that failure to follow the groundwater monitoring requirements to the last detail should receive greatest attention, particularly if adjacent citizens are drinking groundwater. Failure to follow groundwater monitoring requirements should constitute "callous disregard" in situations where adjacent landowners are dependent on groundwater, wrote this commenter. The commenter further suggested that "paperwork" violations should not be discounted if the paperwork is relevant to the determination of performance of the hazardous waste management facility. The commenter also suggests that operation outside of the rules, failing to report, and continuing to operate incorrectly are of greater magnitude than operating within the system, making a mistake, reporting it and correcting it. The commenter also suggests that the rate of compliance may be considered as well as the specifics of compliance. The TWC believes that this commenter's analysis of compliance history is well taken and, while this analysis may not be included in today's rules, it may be considered for possible inclusion in any guidance manual or further rulemaking in this area. Moreover, the weight to be afforded these various considerations should depend on the merits of each case. Another commenter states that if evidence of compliance or noncompliance with agency rules, permits and other orders has been provided, then the "out-of- state" evidence is not necessary for the applicant to submit. The commenter asserts that, had the legislature meant for both to be provided, they would have used the word "and" instead of "or". This commenter requests that the rules be modified to adhere to its interpretation of the language in Senate Bill 1099. As previously stated, Senate Bill 1099 has provided, at sec.1.10 and sec.1. 11, requirements for the types of violations which must be included in a compliance summary. This issue has been addressed heretofore. Comments were also received concerning sec.305.50(2) (concerning information which would allow the executive director to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and local air, water, public health and solid waste statutes). One commenter suggested that the rules should explicitly require the permittee to provide a site- specific plan for environmental monitoring as part of the construction plans. This suggestion is worthy of serious consideration, but is not necessary to implement the provisions of Article 1 of Senate Bill 1099. It may, however, be the subject of future rulemaking. Comments were received concerning sec.305.50(4)(B), which requires that an application for a permit to store, process or dispose of hazardous waste shall also contain financial information sufficient to demonstrate to the satisfaction of the executive director that the applicant has sufficient financial resources to operate the facility in a safe manner and in compliance with the permit and all applicable rules, including, but not limited to, how an applicant intends to obtain financing for construction of the facility and to close the facility properly. Numerous commenters suggested that financial assurance should include cleanup of the facility. The TWC's position is that current rules are sufficient regarding financial assurance for closure and cleanup of a facility. Additionally, the provisions for financial assurance for construction and closure in sec.305.50(4)(B) do give some protection in this area. It should also be noted that the requirements for emergency response capabilities in sec.305. 50(12)(C) indirectly address this need. One commenter recommended that financial assurance by bonds or insurance should be such that those instruments would remain effective despite plant closures, bankruptcy, or changes in ownership. The TWC would similarly hope that such instruments would remain effective in spite of such events; the TWC would, therefore, stress the importance of the information required under sec.305.50(4) (B)(i)-(iv) with respect to determining the financial responsibility of an applicant or permit holder. Another commenter recommended that such financial assurance be in an amount which would cover the cost of closing the facility if a catastrophe occurred, which would include the cost of removing waste, decontamination, and disposal. Again, existing agency rules already impose this requirement. Another commenter suggested that financial responsibility must be demonstrated in perpetuity to insure that the original permit holder, and the intermediate permit holders, would be able to provide the funds in the event that a cleanup would be required. In response, the financial assurance rules regarding closure at sec.305.50(4) (B) address this suggestion to some extent; however, it does not appear that the agency has the authority, at the time of the permit application, to require the applicant to provide such financial assurance "in perpetuity". The rules are designed, however, to assure that necessary money is available at all times until closure and cleanup are complete. Another commenter requested that the TWC deny a permit to anyone who cannot prove financial responsibility pursuant to this regulation. Existing rules are sufficient to give TWC that authority. Additionally, such information may play a part in a denial, revocation, or suspension under sec.305.66, in which numerous other factors are considered by the TWC as the basis for such an action by the agency. Another commenter suggested that the amount of financial assurance required should be adjusted annually, in order to account for rising costs. The TWC currently has such a requirement, as the requirements of 40 Code of Federal Regulations, Part 264, Subpart H, Financial Requirements, have been adopted by reference in the agency's rules. Several other commenters requested clarification regarding what constitutes sufficient financial assurance. In response, pursuant to Senate Bill 1099, sec.305.50(4)(B) requires that an applicant provide sufficient information, by way of financial statements, that the applicant's financial position is strong enough to provide for construction and operation of the proposed facility. The TWC will consider the sufficiency of such financial assurance for closure on a case-by-case basis, which will include scrutiny of the applicant's costs to close its proposed facility in connection with its proposed financial assurance mechanisms. Another commenter suggested that, for a large corporation, the type of information required by this rule would be very costly for each proposed permit. This commenter suggested that this requirement apply only to "new" permits, and suggested that specific information may be required by the TWC on a case-by-case basis, including applications for amendments and modifications. In response, it should be noted that the language of sec.305.50(4)(B) is permissive, rather than mandatory, with respect to the type of financial assurance documents required to be provided. The commenter's argument that a large corporation would have too great a burden in this area does not appear to be well-founded, since most of the types of financial information listed which the applicant may provide to the TWC is already produced by the corporation under other laws and regulations, such as a Form 10-K annual report filed with the Securities and Exchange Commission. Numerous commenters suggested that this subsection be completely deleted and rewritten so that the chief financial officer of a corporation and an independent certified public accountant may demonstrate that the applicant has sufficient financial resources to operate the facility by establishment of a trust fund, surety bond, letter of credit, insurance, financial test/corporate guarantee, or any combination of the foregoing. These commenters further suggested that the Environmental Protection Agency requirements set forth in 40 Code of Federal Regulations, Part 264 are sufficient financial assurance criteria. These commenters further have stated that this subsection does not contain any objective standards by which to determine whether sufficient financial assurance has been provided by the applicant. One commenter suggested that the TWC may be understaffed to properly evaluate the financial information provided by the applicants pursuant to generally accepted accounting practices. This, plus lack of objective criteria, could become a major issue in contested case hearings, according to this commenter. This commenter suggested, therefore, that the TWC incorporate objective standards and tests for financial assurance with respect to the construction and operation of a facility in this regulation, and should rely solely on the EPA regulations for financial assurance for closure and post-closure care. In response to comments regarding the types of financial information required, the regulation states "such financial information may include, but is not limited to the following:". As such, the regulation does not require that the specific types of financial information be submitted; the regulation leaves open the possibility that there may be other types of information which may be sufficient. The rule does not eliminate the possibility that, for a given set of circumstances, compliance with 40 Code of Federal Regulations Part 264 may be sufficient. In addition, the various types of financial information listed by the commenters, i.e. trust fund, surety bond, letter of credit, insurance, financial test/corporate guarantee are already included in 40 Code of Federal Regulations Part 264 Subpart H, and are available to applicants or permit holders for use as financial assurance mechanisms to assure closure. This would include, in appropriate cases, the use of the "financial assets" method of proof. As to lack of objective criteria, the agency has provided applicants with a choice of as many different forms of financial information which they may provide as possible, so that there will be flexibility with respect to how the information is packaged. Criteria for meeting the test of "sufficient financial assurance" may be refined more in the future and included with later regulations or guidance manuals. Comments were received concerning sec.305.50(4)(B)(iii), which requests relevant information concerning investors and stockholders of a corporation. One commenter suggested that this regulation should include each member of a partnership, officers, and owners of the corporation. This commenter also suggested that major stockholders (those with over 5.0% interest in the corporation) and investors should also be listed in this regulation. In response, if an applicant chooses to provide such financial information about their investors and stockholders of a corporation, then they may wish to include the information suggested by the commenter. It should again be pointed out, however, that the information in sec.305.50(4)(B)(iii) is not required to be submitted by the applicant; it may be submitted as a form of financial information by the applicant, but it is not mandatory. Another commenter suggested that additional subsections should be added to require that the applicant include such information in its application as assets and liabilities at the time the application was submitted, documents indicating ownership interests, corporate minutes and minutes of board of directors meetings, feasibility studies for the proposed facility, communications with stockholders concerning feasibility, and any documents which relate to the financing of the activities proposed by the application. This commenter also recommended that this subsection should require the applicant to update the information within fifteen days of a change until the permit is issued or denied. Again, in response, the information in sec.305.50(4)(B)(i)-(iv) is not required to be submitted by the applicant; it may be submitted as a form of financial information by the applicant, but it is not mandatory. If, therefore, the applicant chose to include such information as this commenter has recommended, it would be reviewed by TWC as part of the applicant's financial assurance package. The TWC need not, however, include such items in the list of types of financial information which the applicant may choose to use, and does not find it necessary to impose such a requirement at this time. 305.50(4)(B), which requires that an application for commercial hazardous waste permits must "contain financial information sufficient to demonstrate to the satisfaction of the executive director that the applicant has sufficient financial resources to operate the facility in a safe manner and in compliance with the permit and all applicable rules," effectively allows a "pocket veto" to the commission's executive director. This commenter suggests, therefore, that the language be changed such that it would read "to the satisfaction of the commission", in order to insure that any applicant for a commercial hazardous waste management facility permit would be entitled to present its proof in support of its compliance with all regulatory requirements, subject to final decision by the three-member commission. The TWC disagrees with this commenter's analysis. If the applicant is in disagreement with the executive director's determination, then the applicant may request that the commission refer the matter to the office of hearings examiners for a hearing on the matter, and a determination by the commission. Several comments were submitted on sec.305.50(4)(D), concerning the requirement that an application for a modification or a permit which includes a capacity expansion of an existing hazardous waste management facility delineate all faults within 3,000 feet of the facility, together with a demonstration by the applicant. One commenter stated that delineating "all" faults within 3,000 feet would be technically impossible and instead suggested that the faults required to be delineated should be all "known" or "documented" faults. The TWC responds to the commenter by stating that the delineation of "all" faults within 3,000 feet of an existing hazardous waste management facility is identical to the legislative amendment of the TSWDA, sec.361.1011 (relating to Prohibition on Permit for Facility Affected by Fault). Therefore, any change to the delineating of "all" faults to a less stringent requirement of "known" or "documented" faults contravenes the legislative amendmentand must be accomplished by amending the legislation through the legislative process, and not by rule change. Two commenters pointed out the discrepancy between the proposed preamble language of sec.305.50(4)(D), which allows the TWC to request additional information if the applicant fails to provide sufficient financial resource information and the published sec.305.50(4)(D) rule concerning faults. The TWC agrees with the commenters and clarifies that the sec.305.50(4)(D) in the preamble concerning the TWC's request for additional financial information was erroneously published. The correct sec.305.50(4)(D) is the proposed rule as published in the Texas Register on August 2, 1991, which concerns the requirement that an application for a modification or a permit which includes a capacity expansion of an existing hazardous waste management facility delineate all faults within 3,000 feet of the facility, together with a demonstration by the applicant. Two commenters requested changes to the language of the proposed rule in order to state that the fault requirement of sec.305.50(4)(D) will not result in structural instability of the portion of the surface facility where treatment, storage, or disposal of hazardous waste will be conducted or provide for groundwater movement to the extent that there is irreversible endangerment to human health or safety from the surface facility where treatment, storage, or disposal of hazardous waste will be conducted. The TWC believes that the real issue is how to define the boundaries of the hazardous waste management facility. Once that is determined, this rule is relatively easy to implement. The TWC further believes that the sec.305.50(4)(D)(ii) provision stating that the fault, once delineated, will not provide for groundwater movement to the extent that there is endangerment to human health or the environment would be diminished by making this requirement applicable only to "irreversible endangerment" and would therefore not comport with the legislative mandate of Senate Bill 1099. One commenter suggested clarifying the language of sec.305.50(4)(D) such that a contemplated modification or amendment must be of a particular magnitude, such as a major amendment or a major modification, before the information set forth in this subsection will be required to be submitted by the permit applicant. This commenter also requested clarification of a class three modification for purposes of this subsection. The TWC believes that sec.305.50(4)(D) requires that any modification or amendment affecting capacity expansion of an existing hazardous waste management facility must meet the requirements of this subsection. Class three modifications are defined in existing agency rules. A commenter suggested that the TWC require the applicant to evaluate "subsidence-active" faults on proposed projects, both surface and subsurface. Under proposed sec.sec.305.50(4)(D), 305.50(10)(E), and 331.121(a)(2)(P), the requirement to delineate all faults does not preclude a requirement to identify "subsidence-active" faults. One commenter suggested that "sufficiently transmissive" should be defined by the TWC to eliminate guess work by the applicant. The phrase "sufficiently transmissive" is adequately descriptive to allow consideration of the merits of each affected application. The TWC believes that a precise permeability limit within the rules would not allow the commission the flexibility to consider each geological setting on a case-by-case basis and could result in inequities to certain applicants. Comments were received concerning sec.305.50(9), which sets forth the information to be provided by the applicant regarding sources, types, and volumes of waste to be stored, processed, or disposed of by the facility. One commenter suggested that the specific names of waste generators be included when naming specific sources of waste. In response, it should be noted that sec.1.13 of Senate Bill 1099 amends the TSWDA such that sec.361.0871(a) requires the applicant to identify the nature of any known specific sources, types, and volumes of waste to be stored, processed, or disposed of by the facility and to identify any other related information the commission may require. Assuming that the commenter is referring to commercial hazardous waste management facilities, then, if the applicant has knowledge of a specific source of waste at the time of the application, the applicant should provide that information as part of the requirements under this regulation. One commenter suggested that this subsection be amended to require community education and notification by the facility of potential threats to human health and the environment. This recommendation has merit but is not necessary to implement Article 1 of Senate Bill 1099. It will, however, be considered for future possible rulemaking. Another commenter recommended that the applicant be limited to specific new wastes which it can identify as needing management or wastes which the applicant can prove it will receive that are currently being managed by someone else. In the alternative, this commenter suggested that specific wastes and sources must be identified whenever possible. In response, it should be noted that Senate Bill 1099 provides for permit processing in which permits may be prioritized for processing according to the need for the type of waste management proposed by the applicant. Another commenter suggested that this rule should be modified to provide that the applicant submit the requested information to be the best of his or her knowledge. As it is written, it would be extremely difficult, if not impossible, for commercial facilities to provide this information, according to this commenter. At the time a permit application is filed, the commenter asserts that the market may not be known to the commercial facility. Another commenter states that commercial hazardous waste management facilities will not be able to provide "specific" information concerning sources and volumes and wastes to be managed. The commenter asserts that generators select commercial waste management facilities based on treatment and disposal capabilities, compliance history and economics. The commenter further asserts that the commercial waste management facility operator has no guarantee of receiving a particular waste stream from a particular generator. The commenter suggests that a more practical approach for commercial hazardous waste management facilities would be requiring the operator to show that a general need for the services of the facility existed. In response, it should again be noted that sec.1.13 of Senate Bill 1099 amends the TSWDA such that sec.361. 0871(a) requires that the applicant shall identify the nature of any known specific sources, types, and volumes of waste to be stored, processed, or disposed of by the facility and shall identify any other related information the commission may require. If an applicant for a permit for a commercial hazardous waste management facility has knowledge of a specific source of waste at the time of the application, then the applicant should provide that information as part of the requirements under this regulation. Comments were received concerning sec.305.50(10), which requires the applicant to provide various types of information pertaining to land use. Comments were received regarding sec.305.50(10)(A), which suggest that Senate Bill 1099, at sec.1.13 (TSWDA, sec.361.0871(b)), places the burden on the TWC to evaluate relevant land use plans, rather than on the applicant to provide such land use plans. The TWC's response is that it is the TWC's burden, under the relevant statute and regulation, to evaluate the land use plans submitted to the commission; furthermore, the statute at sec.361.0871(b) provides that the TWC shall adopt rules implementing this subsection. The TWC has, therefore, adopted rules which require the applicant to provide such information as will provide a factual basis on which the TWC may make a determination of land use compatibility pursuant to the applicable provisions of Senate Bill 1099. One comment was received in which the commenter suggested that the TWC should provide that facilities with pending applications may present the information required pursuant to sec.305.50(10) at a hearing or as a minor amendment. In response, the commenter has not defined "pending application." If the application has already gone to hearing, then the applicant may be permitted to submit the additional information required under sec.305.50(10) at the hearing. The staff, however, will seek a continuance to assure thorough review of the newly submitted information. Comments were received concerning sec.305.50(10)(B), which suggest that the identification of names and locations of facilities with TWC solid waste registration numbers within a half-mile of the facility be used, since the applicant does not have authority to determine whether these business generate industrial or other wastes. Several other commenters expressed a similar viewpoint. The TWC may accept a list of the facilities with TWC solid waste registration numbers within a half-mile or one-mile of the facility, as set forth in the regulation, in fulfillment of this requirement. Comments were received concerning sec.305.50(10)(D) in which the commenter suggested that the TWC should reconsider the five-mile land use mapping requirement. One commenter argued that two and a half miles would be sufficient, as it would then be consistent with the requirements of sec.305.50(12)-distance requirements. Another commenter suggested that the transportation impact analyses and land use assessments be based on review of activities occurring within one mile of the proposed new commercial hazardous waste management facility, consistent with sec.305.50(10)(B). Another commenter suggested that the TWC should require mapping of current and predicted land use character as well as locations of industrial waste generators as appropriate for the application, using a five-mile radius. The agency's response is that the five- mile requirement was deemed necessary in order properly consider land use compatibility, particularly with respect to transportation issues. This particular issue was discussed at length by Task Force 21, which advised the TWC concerning these rules, and the five-mile requirement evolved from those discussions. Two comments were received on the proposed amendment to sec.305.50(11), concerning the permit applicant's demonstration that the a proposed hazardous waste landfill, areal expansion of such landfill, or new commercial hazardous waste land disposal unit is not subject to inundation as a result of a 100-year flood event. Section 305.50(11) also requires that the applicant or any other party cannot rely solely on floodplain maps prepared by the Federal Emergency Management Agency (FEMA) or a successor agency to demonstrate that a proposed hazardous waste landfill, areal expansion of such landfill, or new commercial hazardous waste land disposal unit is not subject to inundation as a result of a 100-year flood event. One commenter stated that proposed sec.305.50(11) creates a loophole because the requirement does not have to be made for areal expansions or new commercial land disposal units in existing facilities and suggested closing the loophole by including a definition of "new" and "existing" hazardous waste management facilities. This commenter also stated that under proposed sec.305.50(11), hazardous waste injection wells, incinerators, and on-site hazardous waste disposal units do not have to demonstrate protection from a 100- year flood. The TWC disagrees with the commenter and believes that the amended requirements of sec.335.204 (relating to Unsuitable Site Characteristics) clarifies that an storage or processing facility, land treatment facility, waste pile, storage surface impoundment, and landfill may not be located in a 100-year floodplain unless designed, constructed, operated, and maintained to prevent physical transport of any hazardous waste from a 100-year flood event. Whether the hazardous waste management facility is "new" or "existing" is irrelevant because regardless of the type of facility involved, protection against inundation from a 100-year event must still be demonstrated to the TWC. The second commenter requested modification of sec.305.50(11) to provide guidance to the applicant as to what other information may be used other than floodplain maps prepared by FEMA to show protection from a 100-year flood event. At this time, the TWC believes that modification of sec.305.50(11) is unnecessary; since the burden is on the permit applicant, the applicant should have the flexibility to make the required demonstration in a manner that does not solely rely on floodplain maps prepared by FEMA. Comments were received concerning sec.305.50(12)(A), which suggested that this regulation exceeds the statutory authority by requiring the applicant to submit specified information regarding the burden imposed by a facility on public roadways. This commenter argues that the TSWDA, sec.361.109(b) found in sec.1.18 of Senate Bill 1099, does not require the applicant to submit such information, but places the burden on the TWC to determine what burden is placed on public roadways. In response, it is the TWC's burden under the relevant statute and regulation to determine the burden placed on public roadways by the proposed facility, based on information concerning planned usage and road conditions submitted to the commission. The TSWDA, sec.361.0871(b), provides that the TWC shall adopt rules implementing this subsection. The TWC has, therefore, adopted rules which require the applicant to provide such information as will provide a factual basis on which the TWC may make a determination concerning the burden which will be placed on public roadways by a proposed facility pursuant to the applicable provisions of Senate Bill 1099. One commenter suggested that the requirement that an applicant submit a letter from the relevant agency of the state having jurisdiction over roadways, which unequivocally states that the roads are adequate for the loads to be placed on them by the new facility is too broad. The commenter suggests that the entity which has jurisdiction over the public roadways may be opposed to the proposed facility and thus, would have little incentive to issue an unequivocal letter. Secondly, an applicant would have no control over whether the roadway entity would actually issue a letter. The commenter suggests that, if it is TWC's intention to facilitate coordination on this issue between the applicant and the roadway authority, then the applicant's duty should be discharged by advising the roadway authority of the pertinent facts, and requesting input from the roadway authority as to the adequacy of the roads. The commenter recommends, therefore, that this paragraph be revised to require an applicant request a letter from the relevant agency, the state, county, or municipality which has the authority to regulate and maintain roads, which states whether the roads to and from the facility are adequate for the loads to be placed on them by the proposed facility. Another commenter has requested clarification as to whether obtaining such a letter from the transportation agency in the locality where the facility is to be located is optional. One commenter suggested that such a letter gives the local transportation authority a "pocket veto" over the facility's application, and therefore should not be required. In response to these comments, it should be noted that this provision is entirely optional. The TWC has identified an error in the proposed sections as they were published by the Texas Register on August 2, 1991; the proposed sections provided to the Texas Register included the phrase "an applicant may submit", which was omitted from the text of this rule by the Texas Register. This phrase has been replaced in these sections, such that the regulation reads " (B) In addition to the requirements of subparagraph (A) of this paragraph, an applicant may submit a letter from the relevant agency of the state, county, or municipality which has the authority to regulate and maintain roads which states unequivocally that the roads to and from the facility are adequate for the loads to be placed on them by the proposed facility..." If, therefore, such a letter does not issue from the relevant agency which has the authority to regulate and maintain roads, the applicant may comply by satisfying the requirements of sec.305.50(12)(A)-which the applicant would have to do in any event. Another commenter has suggested that assurance regarding the road conditions should be sought later in the permit process, at a time close to construction and operation of the facility. In response, the TWC is required to make a determination as to whether a burden on public roadways would exist, and, if so, require the facility to pay for such improvements. This must be done as part of the permit process; it may, however, be included as part of the hearing process which takes place close to the time when a facility would be nearing construction and operation. Another commenter recommended that a permit be denied if the road improvements could not be made, for example in areas in which there was an environmentally sensitive recharge zone. Implicit in commission authority is to deny any permit which would result in harm to the environment. The perceived purpose of the provision of Senate Bill 1099 regarding burden on roads is to assure that a local governmental entity would not alone bear the cost of improving road which would benefit the applicant. Comments were received concerning sec.305.50(12)(c)(i), which states the types of information which the applicant must include in its application to demonstrate sufficient emergency response capabilities. Numerous commenters suggested that such emergency response capabilities be limited to the operations of the facility, within the confines of the facility. Other commenters suggested that the emergency response capabilities be extended to transportation of waste outside the facility. One commenter suggested that inclusion of the words "associated with" clearly indicates that risks which result from, or might not exist "but for" the operation of a proposed hazardous waste facility are contemplated with a limitation as to whether they occurred on-site. The commenter asserts that this term would clearly contemplate related activities, such as transportation risks. The commenter further asserts that transportation of wastes to the site would not occur "but for" operation of the facility, and is clearly "associated with" operation of the facility. The commenter states that emergency response issues and assurances are not intended to be limited within the confines of the facility, either by Senate Bill 1099 of by the proposed rules. It is the agency's position that the facility may be held responsible for providing emergency response capabilities for transportation accidents involving the transport of waste to or from this such a facility. After much discussion, Task Force 21 advised that TWC that such response within the county in which the facility would be located would be appropriate. The TWC, at this time, will have to evaluate each facility on a case-by-case basis; further rulemaking is likely to occur regarding this issue. Another commenter suggested that sec.305.50(12)(C)(i) be changed such that it shall read "such evidence must include, but it not limited to, the following:". The TWC intended for this information to be tailored to each facility, and thus allowed for selection of various criteria by the applicant which would show that such facility would provide sufficient emergency response capabilities to manage a reasonable worst-case emergency. One commenter suggested that specific requirements be included, such as evacuation times, response times, and so forth. Another commenter suggested that an applicant must show a coordinated readiness to respond to the worst case emergency in response, the TWC currently does not require such a coordinated readiness or inclusion of evacuation or response times; however, inclusion of such information would probably enhance the applicant's ability to show that it could provide sufficient emergency response capabilities to manage a reasonable worst-case emergency. Numerous commenters requested that the term "reasonable worst case emergency" be clarified. Senate Bill 1099 provided the TWC with little guidance as to how to interpret the term "reasonable worst case emergency." However, the agency will interpret such term to include what might be termed a reasonably foreseeable worst case emergency. Such an emergency would include such things as hurricanes, tornadoes, multiple tank explosions, fires, spills, and other emergencies which would be reasonably foreseeable due not only to the operation of the facility, but to the conditions which may exist in the geographical location of the facility. Comments were received concerning sec.305.50(12)(C)(i)(I), which suggested that the TWC should not require a contingency plan with facility evacuation drills, since this clause refers more to the applicant's activities than to whether emergency response capabilities are available in the area. In response, first of all, this provision is not a requirement; it is information which may be included, but is not mandatory for the applicant to provide. Secondly, emergency response capabilities are meant to be comprehensive, which would include such contingency plans as part of overall emergency response capabilities. Comments were received concerning sec.305.50(12)(C)(i)(III), which stated that the required weather data would be used to try to make such facilities pay for emergency response activities which were not related to their operations, such as general assistance for flooding; and therefore, this particular requirement should be omitted. In response, it should be noted that no such reading of this provision was intended by the TWC. The purpose for including weather data as yet another piece of optional information under sec.305.50(12)(C)(i) was because of the effect that weather has on such facilities, including the direction of prevailing winds in the event of a fire, explosion or other airborne event or the effect that rain and flooding might have on a spill, with respect to how and where the water might carry any contamination. This provision most emphatically was not intended for facilities to pay for general assistance for flooding. Comments were received concerning sec.305.50(12)(C)(i)(IV), which suggested that the language be revised to read "facility-specific worst case emergencies". In response, the legislature provided the TWC with the specific language of "reasonable worst case emergency associated with the operation of the facility" at sec.1.18 of Senate Bill 1099, which amends the TSWDA at sec.361.109(b). The same language, therefore, has been included in these sections. Another commenter suggested the reference to hurricanes should be omitted, since they can occur anywhere along the Texas coast. As stated in the previous paragraph, the legislature was concerned with the "reasonable worst case emergency associated with the operation of the facility." If a facility is proposed to operate anywhere along the Texas coast, it should logically follow that the facility should be prepared to respond to any hurricanes which may occur in the area, in order to prevent contamination of any water or soils in the area from waste managed at the facility. The reference to hurricanes, therefore, is believed to be well-founded by the agency. Comments were received concerning sec.305.50(12)(C)(i)(VIII) and (IX), which suggest that these clauses refer more to the applicant's activities than to whether or not appropriate emergency response is available, and, therefore, this information belongs in a contingency plan requirement, rather than in this particular section. In response, it should be noted that these provisions are optional, rather than mandatory. In addition, notification of state agencies which are charged with protection of the environment is an important part of the emergency response capability of a facility. Comments were received concerning sec.305.50(12)(C)(ii) with respect to financial assurance of the applicant's emergency response capabilities. One commenter suggested the wording of this particular subparagraph allows the commission's executive director a "pocket veto" with respect to the determination of the sufficiency of "personnel and equipment necessary to manage a worst case emergency condition associated with a facility". First of all, in response to this comment, this provision is but one of several options available to the applicant by which it may fulfill the requirements for emergency response capabilities. Secondly, if an applicant believes that it has been unfairly denied this option, by the executive director's determination, then the applicant may pursue review by the commission of this determination. Another commenter has provided a list of potential cost items to be used in determining how much financial assurance is required for a worst case emergency. The commenter provided no less than 15 different criteria for such financial assurance, including such things as materials and supplies that would be acquired, consumed and expended physically for the purpose of the worst case emergency response, employees' compensation, renting or leasing equipment, replacement costs for equipment, decontamination of equipment, special technical services, laboratory costs, and so forth. In response to this comment, the TWC would welcome such detail in a response from an applicant with respect to costs for emergency response capabilities. At this time, however, the provisions of sec.305.50(12)(C) provide the current requirements for such information. It is anticipated that, over time, more rulemaking may take place with respect to these requirements. Another commenter suggested that requiring long term studies in sec.305.50(12) (C)(ii)(I) by use of an environmental model in order to provide the amount of damages for which the facility is responsible is very unclear, particularly with respect to which models would be involved and what types of damage would be addressed. The commenter further suggested that such "long term studies" and modeling have the potential to be extremely controversial, complex, expensive and time consuming. The commenter recommends that, if the agency believes that such modeling was necessary, it should provide a list of approved or acceptable models and explain the specific purpose of the models in the context of this section. First, the TWC points out that this provision is permissive, rather than mandatory; an applicant may include this information in its application, but is not required to do so under this provision. Secondly, the provision was included because the potential damage caused by an accident at a facility, or by activities associated with the operation of a facility, can be difficult to predict on a short-term basis. TWC seeks to encourage facilities to conduct such long-term studies so that emergency response measures may be tailored to their surrounding environments, and the need for financial assurance may be better evaluated. Comments were received concerning sec.305.50(12)(D) in which the commenters requested clarification of the term "appropriate entity". One commenter suggested that the definition of "appropriate entity" should be further limited to be an entity that at the time of the application exists, possesses the necessary equipment for potential emergency responses, and has the necessary experience to respond to those types of emergencies. In response to this comment, the term "appropriate entity" should be read in context; the rule refers to "other appropriate entity such as professional organizations regularly doing business in the area of emergency and/or disaster response," which, at this particular time, would severely limit the number of organizations which would qualify under this rule. Comments were received concerning sec.305.50(12)(E) in which the commenter stated that this rule should not be used in a way which would penalize new technologies. Other commenters suggested that untried technology should not be accepted merely because it is new, but should meet all requirements of these rules. In response, this provision of the rules tracks the statutory language of Senate Bill 1099 exactly. It is unlikely that the legislature's intent was to penalize new technologies; nor is it the TWC's intent to penalize new technologies. The purpose of this provision is to require the applicant to go on record as to their experience, or lack thereof, in managing hazardous waste. It should further be noted that sec.305.66 precludes the TWC from denying a permit solely because the applicant stated that it has no experience in managing hazardous waste. Ten comments were submitted on proposed sec.305.66 (relating to Permit Denial, Suspension, and Revocation). One commenter proposed that 305.66(c) be changed to reflect that the TWC shall rather than may, deny, suspend for not more than 90 days, or revoke an original or renewal permit if the TWC finds any of the enumerated grounds to do so under this section. The TWC disagrees with the commenter and believes that "may" accords the TWC the discretion and flexibility to fairly examine all of the factors that might or might not lead to permit denial, suspension for not more than 90 days, or revocation of a permit. Another commenter suggested that all permits provide for changes, revocation, or suspension at any time and to re-evaluate each permit on a two year interval. The TWC's response is that such a suggestion is outside the scope of this rule and the legislative provisions of Senate Bill 1099. Through sec.305.66 (relating to Permit Denial, Suspension, and Revocation), the legislature has identified only those specific factors upon which the TWC may deny, suspend or revoke a permit. Four commenters focused on the lack of a definition for the words "environmental violations"found in sec.305.66(f)(1) and each offered suggestions as to what that definition should be. One commenter suggested that the definition of "environmental violation" mean "final adjudication and determination of noncompliance resulting in a fine, penalty, or other compliance order from the state or federal regulatory agency or court having jurisdiction over a site owned, operated or controlled by an applicant." Another commenter argued that the term "environmental violation" should not be expanded to include noncompliance of any site (including international locations of a multinational company) and any violation but instead should be limited to violations for which there has been a final determination of noncompliance in the United States. A third commenter argued that the term "environmental violation" should not include unadjudicated allegations issued by the executive director of the TWC and that the only final adjudicated decision is an order issued by the commission as a determination of noncompliance. The last commenter advocates deleting the term "environmental violation" in favor of stating that "the TWC may deny, suspend for not more than 90 days, or revoke an original or renewal permit if the commission finds after notice and hearing that the permit holder has a record of noncompliance with environmental federal statutes, Texas statutes, or statutes of any state in the preceding five years at the permitted site and at sites owned or operated by the permit holder that have resulted in irreversible harm to human health and the environment." The TWC believes that a definition of the term "environmental violation" is unnecessary but for purposes of clarification states that for the purposes of denial, suspension and revocation of a permit the term "environmental violations" includes the following: evidence of noncompliance by a permit holder or an applicant for a solid waste management facility permit with TWC rules such as a Notice of Deficiency, Notice of Violation, and any other notice of noncompliance whether or not Findings of Fact or Conclusions of Law were made within the preceding five years; or evidence of a final determination of noncompliance with federal statutes or statutes of any state such as an Order or Consent Decree made within the preceding five years; or any state or federal Order issued within the preceding five years against a facility not operating under a permit. Two comments were received concerning proposed sec.305.66(f)(3), which states that a permit may be denied, suspended or revoked if the permit holder or applicant made a false or misleading statement in connection with an original or renewal application. Other commenters suggested that sec.305.66(f)(3) be modified to state a requisite mental state of the applicant i.e. an intent to provide false or misleading information or "knowing" and "material" misleading statements or violations on the original or renewal application. The TWC believes that no requisite mental state is required to be stated in sec.305.66(f) (3) because under this section, the denial, suspension, or revocation of a permit requires a commission finding that the permit holder or applicant made false or misleading statements on an original or renewal application after the opportunity for notice and hearing has been accorded to that permit holder or applicant. At the conclusion of the presentation of factual evidence, the commission's finding as to whether to deny, suspend, or revoke a permit because of a permit holder's or applicant's false or misleading statement will either have been proven by the TWC or disproved by the permit holder or applicant. By not requiring the permit holder or applicant to possess a requisite mental state, the focus of the hearing will be on the entire facts in the case rather than on the sole burden of proving or disproving a permit holder or applicant's mental state. Moreover, sec.305.66(g) tends to provide the kind of safeguard sought by the commenter. Two commenters suggested that sec.305.66(f)(4) should be amended to refer only to taxes owed by an applicant or permit holder under the provisions of the Texas Health and Safety Code as the finding that the TWC must make in order to deny, suspend, or revoke an original or renewal permit. As proposed, sec.305.66(f)(4) nearly tracks the provisions of sec.361.089(e)(4), as set forth in sec.1.11 of Senate Bill 1099. The TWC notes, however, a discrepancy between the rule and the statute, and changes the rule such that it shall refer to taxes imposed "by Title 5, Sanitation and Environmental Quality, of the Texas Health and Safety Code (Vernon 1991), or by a rule of the commission." The TWC has similarly noted that sec.305.66(g)(2) required clarification with respect to the term "part", and has replaced the words "this part" with "Title 5, Sanitation and Environmental Quality, of the Texas Health and Safety Code (Vernon 1991)". Five comments concerned proposed sec.305.66(g), which states that before denying, suspending, or revoking a permit, the commission must find that a violation or violations are significant and that the permit holder or applicant has not made a substantial attempt to correct the violations or that the permit holder or applicant is indebted to the state for fees, payment of penalties or taxes imposed by this part or by rule of the commission. One commenter states that since the commission will determine what is and is not significant, a company should not be able to escape permit denial, suspension, or revocation of its permit just because it made an "attempt" to correct the violations. The TWC notes that the commission finding necessarily entails the opportunity for notice and hearing to the permit holder or applicant. What is or is not "significant" will therefore turn on the facts of each case as presented at the hearing and offers both the TWC and the permit holder or applicant the best avenue for fairness. Likewise, whether the permit holder or applicant made a "substantial attempt" to correct the violations will also depend on the facts of each case and is an element to be proven or disproved in the hearing to deny, suspend or revoke a permit. Another commenter suggests that the commission clarify what is meant by "substantial violation(s)" and "substantial attempt." The TWC believes that clarification of "substantial violation" and "substantial attempt" should be based on the particular facts of a case and should come from the finder of fact on a case-by-case basis at the hearing to determine whether to deny, suspend, or revoke a permit. An attempt to define these terms would invade the province of the fact finder and deprive the fact finder the flexibility and discretion required to render a fair finding. Two other commenters suggested revising sec.305.66(g)(1) to state "that a notice of final determination must have found that the noncompliance irreversibly or significantly harmed human health and the environment and the permit holder or applicant has not made a substantial attempt to correct the noncompliance status; or..." The TWC declines to modify sec.305.66(g)(1) because the commenter's proposed revision requires the commission to meet a higher burden of proof before the commission can make a finding to deny, suspend, or revoke a permit. Furthermore, the TWC believes that such a higher burden of proof for the commission is not contemplated by the legislative amendments to the Texas Health and Safety Code contained in Senate Bill 1099. Another commenter suggests that sec.305.66(g)(1) be deleted because an "environmental bad actor" could continue to operate even though it tried to correct problems leading to violations. The TWC declines to follow the commenter's suggestion because sec.305.66(g)(1) provides both the commission and the permit holder or applicant the criteria necessary to present or rebut facts at a hearing prior to the denial, suspension, or revocation of a permit. Three comments were received on sec.305.66(k)(1) concerning the definition of "permit holder" and "applicant." Two commenters questioned the positioning of this provision and argued that these definitions relate only to sec.305.66(f) and should therefore be repositioned there. The third commenter argued for the deletion of sec.305.66(k)(1). The TWC agrees with the two commenters to the extent that sec.305.66(k)(1) is incorrectly printed in the rule. Section 305.66(k) (1) is therefore revised to state sec.305.66(1) as the correct rule which should have been printed. The TWC disagrees with the commenters as to the applicability of sec.305.66(k)(1) because the enabling legislation of Senate Bill 1099 makes it clear that the definitions of "permit holder" and "applicant" apply throughout the section and are not confined solely to enhance or explain sec.305.66(f). Further, the definitions of "permit holder" and "applicant" are deemed necessary to this entire section because these definitions eliminate confusion as to the persons to whom sec.305.66 (relating to Permit Denial, Suspension, and Revocation) applies. Three commenters requested clarification of the proposed preamble language that explained sec.305.66(k). Two commenters stated that the proposed preamble was incorrect in stating that the TWC "shall not grant" a permit for a new commercial hazardous waste management facility if the applicant lacks experience in the particular technology. Section 305.66(k) states that a permit application for any new commercial hazardous waste management facility shall not be granted if all of the following three factors are present: the applicant is without experience in the particular hazardous waste management technology; the applicant has not conspicuously stated that lack of experience in the application; and the applicant has not provided a summary of its experience in hazardous waste management pursuant to sec.305.50(12)(D) of this title (relating to Additional Requirements for an Application for a Solid Waste Permit). As a result, a TWC denial of the permit application based solely on an applicant's lack of experience is disallowed by this section because lack of experience is but one factor, and not the sole factor, that the TWC is to consider in evaluating whether or not to deny the permit. One commenter suggested revising proposed sec.305.66(k) to read: "An applicant for a new commercial hazardous waste management facility permit shall provide a summary of its experience in hazardous waste management and in the particular hazardous waste management technology proposed in the application. Any applicant without experience in a particular hazardous waste management technology shall conspicuously state that a lack of experience in the application or permit shall not be granted." The commenter's proposed revision conspicuously omits the requirement that the applicant state the extent of its experience in the particular hazardous waste management technology. As previously stated, the lack of an applicant's experience in the particular hazardous waste management technology is but one factor, and not the sole factor, for the TWC to consider in denying a permit; therefore, the TWC believes that no revision to sec.305.66(k) is necessary. Two commenters requested that the TWC adopt rules which address transition provisions for applications which are pending processing with the TWC. This issue is addressed in the preamble to rules adopted for inclusion in Chapter 335 of the commission rules. The TWC received no comments concerning proposed amendments to sec.305.101. The TWC received no comments concerning proposed amendments to sec.305.102. The TWC received five comments concerning proposed amendments to sec.305.103. Two commenters requested that the notice of a public hearing should be mailed to those persons listed in subsection (f) within three miles of the new proposed solid waste management facility rather than one-half mile as proposed in the rule. One commenter requested that the radius be named as five miles. Another commenter requested a radius of two miles. The TWC will adopt the one-half mile radius as this was the radius mandated by the TSWDA, sec.361.081(a) as set forth in sec.1.06 of Senate Bill 1099. The second commenter requested underground water districts in which the facility is located be noticed by mail and automatically named as a party for hearings for new commercial hazardous waste management facility applications or applications for aerial expansions commercial hazardous waste facilities. The only parties automatically named at a hearing are those statutory parties designated pursuant to 31 TAC sec.267.2 and Senate Bill 1099 did not name additional statutory parties. Therefore, the TWC does not believe that underground water districts can be named as automatic parties to a hearing. The districts may see party status at the hearing. 31 TAC sec.267.1 states that persons or entities not named as statutory parties may see party status if they show that they have a justiciable interest in the matter being considered and appear at the proceeding to request admission to the hearing as a party. Persons who are not parties to a hearing may register protests or comments pertaining to the hearing pursuant to 31 TAC sec.267.4. The TWC received several comments regarding the proposed public meeting and notice requirements. One commenter requested that all data associated with the design, waste streams, transportation, storage, and emissions be made available to the public. Pursuant to the Texas Open Records Act, Texas Civil Statutes, Article 6252-17(a), (Vernon) all information submitted to the TWC is public data unless specifically exempted under the Act. This commenter also requested that the facilities be required to provide public education regarding the management of the facility. This requirement goes beyond the scope of Senate Bill 1099's mandates in the TSWDA, sec.361.0791 regarding public meeting requirements. One commenter requested that a public meeting be held annually by the operator to inform the local community of operations, modifications, and amendments. The TSWDA, sec.361.0791 mandated the TWC to require public meetings only for applications for new hazardous waste management facilities and, if requested by affected persons, for Class 3 modifications and major amendments. Therefore, the TWC will not broaden the application of sec.305.107. The TWC notes, as stated above, that all information submitted by a facility to the TWC is public information unless exempted by law. One commenter states that the definition of "affected person" in sec.305.107(d) should be changed so that a person need only demonstrate that they are being placed at risk by the facility, not that they have or will be damaged. Another commenter requested that the definition of "affected person" be broadened to include persons representing conservation issues. Another commenter requested that the definition state that "anyone affected by the emissions, transportation or presence of the hazardous waste burning facility shall be considered affected. " The TSWDA, sec.361.0791(a) as set forth in sec.1.04 of Senate Bill 1099 states that only a "person affected" may request a public meeting for a Class 3 modification or major amendment. The proposed sec.305.107(d) was based on the definition delineated in the TSWDA, sec.361.003. The TWC intends to delete sec.305. 107(d), as it was already defined in the act and caused unnecessary confusion. The TWC points out that a public meeting is mandatory for applications for a new hazardous waste management facility. One commenter asked that notice of a public meeting be published at least two weeks prior to the meeting. Section 305.107(c) already requires that the applicant published notice at least once a week for three weeks preceding the hearing. One commenter points out that a public meeting can be requested by an "affected person" only for Class 3 modifications and major amendments while the definition in sec.305.107(d) says that the affected person must reside, own land or be doing business in any county adjacent or contiguous to the county in which a new hazardous waste management facility is to be located. The TWC intends to delete the entire sec.305.107(d) as the definition of "affected person" is already defined in the TSWDA, sec.361.003. This should eliminate any confusion as to the term's meaning. One commenter requested that the TWC review public input from public meetings and hearings and provide a response to individual issues introduced by the community. The TSWDA, sec.361.0791, set forth in sec.1.04 of Senate Bill 1099 does not address the TWC's role in public meetings. The TWC views the public meeting as an opportunity for the applicant to discuss its proposed plans with the community and for the TWC to discuss its evaluation of the information submitted by the applicant. The TWC would certainly respond either verbally or in writing to comments raised by the citizens at this meeting. One commenter requested that notice of the public meeting be published in newspapers having circulation within a five mile radius of the facility. Another commenter asked that notice be given to local communities so that they may publish notice in the local newspapers. The TWC based the requirements of sec.305. 107 upon the mandates of the TSWDA, sec.361.0791, as set forth in sec.1.04 of Senate Bill 1099 which requires that notice be published in the newspaper having the largest general circulation within the county where the facility is located at least one a week three weeks preceding the public meeting. The TWC believes that the notice requirements will sufficiently convey information regarding the public meeting to citizens of the county where the facility is located or is to be located. One commenter requested that the rules be amended to require that the public meeting be held at a location as close to the proposed facility as possible and held in the evenings. The TSWDA, sec.361.0791, stated that the TWC shall hold the public meeting in the county where the facility is to be located. Section 305. 107 is based on the mandates of the TSWDA, sec.361.0791; however, it is the TWC's policy to schedule hearings at locations closest to a facility or proposed facility site which can adequately accommodate the hearing. This policy would apply to public meetings as well. One commenter stated that sec.305.147 should be changed as the scope of the environmental audit is left up to the decision of the facility. The TWC points out that sec.305.147(b) states that the scope of the audit may encompass any and all provisions of environmental permits required for the facility. This commenter also requests that the rules require that a maximum of five "affected citizens" be able to accompany the inspector during the audit. The TWC believes that this type of arrangement can be better addressed by the facility and the affected person(s) when they discuss the selection of the inspector. One commenter stated that a public meeting should be held after the audit to discuss the results of the inspection. The cost of providing notice of the meeting and the meeting itself should be borne by the facility, perhaps through a fund administered by the TWC into which the facility would pay fees to cover all the costs of the audit. Pursuant to sec.305.147(5), the results of the audit must be submitted to the TWC's executive director. Under the Texas Open Records Act, such information is public unless specifically excluded by law. The TWC believes that adding a requirement to sec.305.147(5) that the facility must mail a copy of the audit to those affected persons who participated in the inspector selection will address this commenter's concerns. One commenter requested that, in addition to the audit, if groundwater protection is an issue then monthly groundwater samples should be given by the facility to an independent laboratory for analysis. The TWC believes that this requirement goes beyond the scope of the TSWDA, sec.361.113 as set forth in sec.1. 19 of Senate Bill 1099. Section 361.113 requires only that an opportunity for an annual environmental audit be provided to assure compliance with the terms of the facility's permits. One commenter stated that the TWC should provide the inspectors rather than requiring the facilities to hire the auditors. This commenter also inquired as to what the TWC would do with the audits and if the facility would get an opportunity to respond to the audit. The TWC believes that the language of the TSWDA, sec.361.113 clearly places the burden of the audit on the facility as it is to be a required permit provision. The TWC believes that the results of the audit could possibly warrant an investigation by the TWC. Although the rules do not address responses by the facility to the audit, it is certainly the facility's prerogative to provide the TWC with data or information at any time. One commenter stated that affected persons should show good cause why they disagree with the facility's nominees as the affected person may disagree in an attempt to slow or hinder the permit process. The TWC does not believe a rule change is necessary as the provisions of sec.305.147 provide specific timeframes for the selection process, therefore, disagreement by the affected persons cannot intentionally affect the selection process. This commenter also stated that sec.305.147(1)(B) should be clarified to state what types of comments are required to warrant an audit. The TWC believes that sec.305.147(1)(B) simply requires that an interested affected person attend the meeting and request an audit. One commenter expressed approval of sec.305.147(E)(9) as written. One commenter requested that all parties should agree to the selection of the inspector and the affected persons should be allowed to split air and water samples. The TWC believes that the rules encourage agreement among the parties to the selection of an inspector, but recognizes that such agreement may not always be possible. Therefore, sec.305.147(2) was proposed to ensure that an audit would be held in case of disagreement among the parties. Reasonable confirmation of sample results can be accomplished by the splitting of samples among TWC, the facility operator, and the independent audit inspector. Two commenters requested that the TWC select the inspector. However, the TWC believes the intent of the TSWDA, sec.361.113 was to allow affected citizens the opportunity to participate in the selection of the inspector. One commenter requested that a selected inspector be required to be an Independent Registered Professional Engineer. The TWC believes that the intent of the TSWDA, sec.361.113 in Senate Bill 1099 was to allow affected persons the opportunity to select the inspector. The TWC believes the facility and affected person should be the parties deciding what qualifications for the inspector are desirable. This commenter stated that the rules should not require prior TWC approval if the facility voluntarily performs the audit. The TWC disagrees and believes that it should be allowed to determine if the inspector is qualified and does not have a conflict of interest with the facility. One commenter provided language which would make the audit mandatory, however, the process for selecting the inspector would be provided in the permit. The commenter stated that this is a less time-consuming process. The TWC believes that the process it has proposed better addresses the requirements of the TSWDA, sec.361.113 of Senate Bill 1099 as it allows the opportunity for participation in the selection process by interested affected persons. It also is less time- consuming as an audit is not required if interest is not expressed by affected persons. One commenter requested a deletion of the language in sec.305.147(1)(B), which allows interested affected persons to either agree to a nominated inspector or nominate their own inspectors. This commenter also requested that the audit address only those issues to which the TWC has jurisdiction. The TWC believes that interested affected persons should be allowed an active role in selecting the inspector. The TSWDA, sec.361.113(a) states that the audit is necessary to ensure compliance with the terms of the facility's respective permits, which the TWC interprets to mean all applicable permits. The TWC would, of course, be limited in its response by its jurisdiction. One commenter requested that a meeting not be held but rather written comments should be sent by affected persons to the facility. The TWC believes a face-to- face meeting, coupled with the time frames in sec.305.147, will encourage a more timely agreement on the selection of the inspector rather than responses back and forth by mail. One commenter requested a mandatory annual audit. The TWC has authority to require an annual audit pursuant to Senate Bill 1099. This commenter also stated that the inspector could not be used more than once in a three-year period. The TWC believes it should be left to the facility and the interested affected persons to first try to decide who is an acceptable inspector. One commenter asked who determines the expertise of the inspectors. The TWC's role is to ensure that the inspector has the necessary expertise to perform the audit and does not have a conflict of interest with any party involved in the selection. One commenter requested that a committee of inspectors selected by the facility, interested affected persons, and the TWC should perform the audit. This is one possible approach. One commenter requested that the TWC provide an approved list of inspectors or guidance for selecting inspectors. The TWC will assess what process is best used to assure that competent independent inspectors conduct the audit. This commenter also stated that the definition of "affected person" could be used to exclude participants in the case of a new facility. The TWC points out that the definition states that a person can demonstrate that she or he will suffer damage in the future. One commenter stated that the rule should allow for existing arrangements between the facility and local communities. The TWC is open to that idea so long as such arrangements address the specific mandates of Senate Bill 1099. This commenter also stated that the rules should require the TWC to select the inspector from the facility's nominee list or allow for oversight by a local community group. The TWC believes the process should, to the extent possible, be addressed by the facility and interested affected persons. One commenter requested that assisted citizen's reviews be conducted when hazardous waste activities in an area not currently having hazardous waste activity and when significant increases or emissions or discharges are proposed. The TWC believes that this is exactly what the provisions of Senate Bill 1099 are intended to provide. The TWC received several comments addressing fence line and ambient air quality monitoring requirements. At this time the TWC does not have any such requirements and, therefore, will not be addressing those comments at this time. However, such proposals are sure to be the subject of future rulemaking. One commenter asserted that sec.305.147 should only apply to new and renewed permits pursuant to the TSWDA, sec.361.113, as set forth in sec.1.19 of Senate Bill 1099. The TWC has required the annual audit requirements to additionally apply to amended, modified, transferred or extended permits. The TWC believes it is allowed to apply this requirement in a most stringent manner. The TWC also believes this arrangement results in the opportunity for annual audits to be applied in a manner which is fair for all parties involved. One commenter requested that sec.305.147(9) be revised to resemble the definition of "affected person" as stated in the Texas Health and Safety Code, sec.361.003 as amended. The TWC intends to delete paragraph (9) from sec.305.147 as the term is already defined in the Texas Health and Safety Code and may cause unnecessary confusion. One commenter requested the definition of "affected person" to include person representing conservation issues. The TWC believes the term "person affected" as stated in the Texas Health and Safety Code, sec.361.113 should reflect the definition delineated in the Texas Health and Safety Code, sec.361.003 as amended. This definition was not amended in the Senate Bill 1099 revisions to the Texas Health and Safety Code, Chapter 361 as amended. Subchapter C. Application for Permit 31 TAC sec.305.49, sec.305.50 The amendments are adopted under the Texas Water Code, sec.5.104 and sec.26. 011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also adopted under the TSWDA, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.305.50. Additional Requirements for an Application for a Solid Waste Permit. Unless otherwise stated, an application for a permit to store, process, or dispose of solid waste shall meet the following requirements. (1) (No change.) (2) Plans and specifications for the construction and operation of the facility and the staffing pattern for the facility shall be submitted, including the qualifications of all key operating personnel. Also to be submitted is the closing plan for the solid waste storage, processing or disposal facility. The information provided shall be sufficiently detailed and complete to allow the executive director to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and local air, water, public health and solid waste statutes. Also to be submitted are listings of evidence of non-compliances concerning solid waste management in the preceding five years at any site owned, operated, or controlled by the applicant in the State of Texas, a summary of the attempts of the permit holder to correct the environmental violations, and an indication of whether the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by the Texas Solid Waste Disposal Act or by any rule of the commission. For purposes of this subsection, the terms "permit holder" and "applicant" include each member of a partnership or association and, with respect to a corporation, each officer and the owner or owners of a majority of the corporate stock, provided such partner or owner controls at least 20% of the permit holder or applicant and at least 20% of another business which operates a solid waste management facility. (3) (No change.) (4) An application for a permit, permit amendment, or permit modification to store, process, or dispose of hazardous waste shall be subject to the following requirements, as applicable: (A) In the case of an application for a permit to store, process or dispose of hazardous waste, the application shall contain any additional information required by 40 Code of Federal Regulations, sec.270.13-270.21 and sec.270.23, except that closure cost estimates shall be prepared in accordance with 40 Code of Federal Regulations sec.264.142(a)(1), (3), (4), (b) and (c) and sec.335.178 of this title (relating to Cost Estimate for Closure). (B) An application for a permit to store, process or dispose of hazardous waste shall also contain financial information sufficient to demonstrate to the satisfaction of the executive director that the applicant has sufficient financial resources to operate the facility in a safe manner and in compliance with the permit and all applicable rules, including, but not limited to, how an applicant intends to obtain financing for construction of the facility, and to close the facility properly. Such financial information may include, but is not limited to the following: (i) current and two previous years audited financial statements prepared in accordance with generally accepted auditing standards, including an opinion as to the fairness of the financial statements and accompanying notes; (ii) current and two previous years Form 10-annual reports filed with the Securities and Exchange Commission; (iii) relevant information concerning investors and stock holders; and (iv) information required by Title 40, Code of Federal Regulations Part 264, Subpart H. (C) If any of the information required to be disclosed under sec.305.50(4)(B) would be considered confidential under applicable law, the information shall be protected accordingly. During hearings on contested applications, disclosure of confidential information may be allowed only under an appropriate protective order. (D) An application for a modification or amendment of a permit which includes a capacity expansion of an existing hazardous waste management facility shall also contain information delineating all faults within 3,000 feet of the facility, together with a demonstration, unless previously demonstrated to the commission or the United States Environmental Protection Agency, that: (i) the fault has not displacement within Holocene time, or if faults have had displacement within Holocene time, that no such faults pass within 200 feet of the portion of the surface facility where treatment, storage, or disposal of hazardous wastes will be conducted; and (ii) the fault will not result in structural instability of the surface facility or provide for groundwater movement to the extent that there is endangerment to human health or the environment. (E) At any time after the effective date of the requirements contained in Chapter 335, Subchapter F, of this title (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing or Disposal Facilities), the executive director may require the owner or operator of an existing hazardous waste management facility to submit that portion of his application containing the information specified in 40 Code of Federal Regulations sec.sec.270.14-270.21, and 270.23. Any owner or operator shall be allowed a reasonable period of time from the date of the request to submit the information. An application for a new hazardous waste management facility must be submitted at least 180 days before physical construction of the facility is expected to commence. (5)-(8) (No change.) (9) In the case of an application for a permit to store, process, or dispose of hazardous waste at a new hazardous waste management facility, or an application for amendment or modification of a solid waste management facility permit to provide for capacity expansion, the application shall also identify the nature of any known specific and potential sources, types, and volumes of waste to be stored, processed, or disposed of by the facility and shall identify any other related information the executive director may require. (10) In the case of an application for a permit to store, process, or dispose of hazardous waste at a new hazardous waste management facility, the application shall also contain the following: (A) copies of any relevant land use plans, adopted pursuant to the Texas Local Government Code, Chapter 211 (Vernon's Supplement 1991), which were in existence before publication of the notice of intent to file a solid waste permit application or, if no notice of intent is filed, at the time the permit application is filed; (B) identification of the names and locations of industrial and other waste- generating facilities within one-half mile of the facility in the case of an application for a permit for a new on-site hazardous waste management facility, and within one mile of the facility in the case of an application for a permit for a new commercial hazardous waste management facility; (C) the approximate quantity of hazardous waste generated or received annually at those facilities described under subparagraph (B) of this paragraph; (D) descriptions of the major routes of travel in the vicinity of the facility to be used for the transportation of hazardous waste to and from the facility, together with a map showing the land-use patterns, covering at least a five-mile radius from the boundaries of the facility; and (E) the information and demonstrations concerning faults described under sec.305.50(4)(E) of this title (relating to Additional Requirements for an Application for a Solid Waste Permit). (11) In the case of an application for a permit to store, process, or dispose of hazardous waste, the application shall also contain information sufficient to demonstrate to the satisfaction of the commission that a proposed hazardous waste landfill, areal expansion of such landfill, or new commercial hazardous waste land disposal unit is not subject to inundation as a result of a 100-year flood event. An applicant or any other party may not rely solely on floodplain maps prepared by the Federal Emergency Management Agency or a successor agency to determine whether a hazardous waste landfill, areal expansion of such landfill, or commercial hazardous waste land disposal unit is subject to such an inundation. (12) In the case of an application for a permit to store, process, or dispose of hazardous waste at a new commercial hazardous waste management facility, the application shall also contain the following: (A) information sufficient to demonstrate whether a burden will be imposed on public roadways by vehicles travelling to and from the facility, including, at a minimum: (i) the average gross weight of the various types and sizes of such vehicles to be used for transportation of hazardous waste; (ii) the average number of such vehicles which would travel the public roadways; and (iii) identification of the roads to be used by vehicles travelling to and from the facility within a minimum radius of 2 1/2 miles from the facility. Such identification must include the major highways nearest the facility, even if they are located outside the 2 1/2 mile radius; (B) in addition to the requirements of subparagraph (A) of this paragraph, an applicant may submit a letter from the relevant agency of the state, county, or municipality which has the authority to regulate and maintain roads which states unequivocally that the roads to and from the facility are adequate for the loads to be placed on them by the proposed facility. Such letter will serve as prima facie evidence that the additional loads placed on the roadways caused by the operation of the facility would not constitute a burden and thus would not require that improvements be made to such roadways. Such letter does not, however, obviate the need to submit the information required under subparagraph (A) of this paragraph; (C) evidence sufficient to demonstrate that: (i) emergency response capabilities are available or will be available before the facility first receives waste, in the area in which the facility is located or proposed to be located, that has the ability to manage a reasonable worst- case emergency condition associated with the operation of the facility; such evidence may include, but is not limited to, the following: (I) in addition to the contingency plan required under 40 Code of Federal Regulations, sec.270.14(b)(7), provisions specifying procedures and timing of practice facility evacuation drills, where there is a possibility that evacuation of the facility could be necessary; (II) contracts with any private corporation, municipality, or county to provide emergency response; (III) weather data which might tend to affect emergency response; (IV) a definition of worst-case emergencies, e.g., fires, explosions, the Texas Design Hurricane, or the Standard Project Hurricane; (V) a training program for personnel for response to such emergencies; (VI) identification of first-responders; (VII) identification of local or regional emergency medical services and hospitals which have had hazardous materials training; (VIII) a pre-disaster plan, including drills; (IX) a mechanism for notifying all applicable government agencies when an incident occurs (i.e., TWC, Texas Parks and Wildlife, General Land Office, Texas Air Control Board, Texas Department of Health, and Texas Railroad Commission); (X) a showing of coordination with the Local Emergency Planning Committee and any local Comprehensive Emergency Management Plan; and (XI) any medical response capability which may be available on the facility property; or (ii) the applicant has secured bonding of sufficient financial assurance to fund the emergency response personnel and equipment determined to be necessary by the executive director to manage a reasonable worst-case emergency condition associated with the facility; such financial assurance may be demonstrated by providing information which may include, but is not limited to, the following: (I) long-term studies using an environmental model which provide the amount of damages for which the facility is responsible; and (II) costs involved in supplying any of the information included in or satisfying any of the requirements of clause (i) (I)(XI) of this subparagraph; (D) if an applicant does not elect to provide its own facilities or secure bonding to ensure sufficient emergency response capabilities pursuant to sec.335.183 of this title (relating to Emergency Response Capabilities Required for New Commercial Hazardous Waste Management Facilities), the applicant must provide prior to the time the facility first receives waste: (i) documentation showing agreements with the county and/or municipality in which the facility is located, or documentation showing agreements with an adjoining county, municipality, mutual aid association, or other appropriate entity such as professional organizations regularly doing business in the area of emergency and/or disaster response; or (ii) demonstration that a financial assurance mechanism in the form of a negotiable instrument, such as a letter of credit, fully paid in trust fund, or an insurance policy, with the limitation that the funds can only be used for emergency response personnel and equipment and made payable to and for the benefit of the county government and/or municipal government in the county in which the facility is located or proposed to be located; and (E) a summary of the applicant's experience in hazardous waste management and in the particular hazardous waste management technology proposed for the application location, and, for any applicant without experience in the particular hazardous waste management technology, a conspicuous statement of that lack of experience. 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 17, 1991. TRD-9112852 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Subchapter D. Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 31 TAC sec.305.66 The amendment is adopted under the Texas Water Code, sec.5.103 and sec.5.105, which provide the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.66. Permit Denial, Suspension, and Revocation. (a) A permit or other order of the commission does not become a vested right and may be suspended or revoked for good cause at any time by order of the commission after opportunity for a public hearing is given. Good cause includes, but is not limited to, the following: (1)-(9) (No change.) (b) (No change. ) (c) The commission may, for good cause, deny, amend, revoke, or suspend, after notice and hearing according to sec.305.68 of this title (relating to Action and Notice on Petition for Revocation and Suspension), any permit it issues or has authority to issue for a solid waste storage, processing or disposal facility, for good cause, for reasons pertaining to public health, air or water pollution, land use, or for violations of the Texas Solid Waste Disposal Act, or any other applicable laws or rules controlling the management of solid waste. (d)-(e) (No change.) (f) The commission may deny, suspend for not more than 90 days, or revoke an original or renewal permit if the commission finds after notice and hearing, that: (1) the permit holder has a record of environmental violations in the preceding five years at the permitted site; (2) the applicant has a record of environmental violations in the preceding five years at any site owned, operated or controlled by the applicant; (3) the permit holder or applicant made a false or misleading statement in connection with an original or renewal application, either in the formal application or in any other written instrument relating to the application submitted to the commission, its officers, or its employees; (4) the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by Title 5, Sanitation and Environmental Quality, of the Texas Health and Safety Code (Vernon 1991) or by a rule of the commission; (5) the permit holder or applicant is unable to ensure that the management of the hazardous waste management facility conforms or will conform to this title and the rules of the commission. (g) Before denying, suspending, or revoking a permit under this section, the commission must find: (1) that a violation or violations are significant and that the permit holder or applicant has not made a substantial attempt to correct the violations; or (2) that the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by this Title 5, Sanitation and Environmental Quality, of the Texas Health and Safety Code (Vernon 1991) or by rule of the commission. (h) The commission may not suspend a new commercial hazardous waste management permit on the basis of a failure of a county or a municipality to accept the funds and make the roadway improvements pursuant to sec.335.182 of this title (relating to Burden on Public Roadways by a New Commercial Hazardous Waste Management Facility). (i) For applications for new hazardous waste management facility permits, the commission may deny such an application if it determines that the facility is not compatible with local land use pursuant to sec.335.180 of this title (relating to Impact of New Hazardous Waste Management Facilities on Local Land Use). (j) For applications for new commercial hazardous waste management facility permits, the commission may not deny such an application on the basis of a failure of a county or a municipality to accept the funds and make the roadway improvements pursuant to sec.335.182 of this title (relating to Burden on Public Roadways by a New Commercial Hazardous Waste Management Facility). (k) For applications for any new commercial hazardous waste management facility permits, the commission shall not grant such an application if the applicant is without experience in the particular hazardous waste management technology and has not conspicuously stated that lack of experience in the application, and the commission shall not grant such an application unless the applicant provides a summary of its experience, pursuant to sec.305. 50(12)(D) of this title (relating to Additional Requirements for an Application for a Solid Waste Permit). The commission may not deny an application for a new commercial hazardous waste management facility permit solely on the basis of lack of experience of the applicant. (1) For purposes of this section, the terms "permit holder" and "applicant" include each member of a partnership or association and, with respect to a corporation, each officer and the owner or owners of a majority of the corporate stock, provided such partner or owner controls at least 20% of the permit holder or applicant and at least 20% of another business which operates a solid waste management facility. 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 17, 1991. TRD-9112853 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Subchapter E. Actions, Notice, and Hearing 31 TAC sec.sec.305.101-305.103, 305.107 The amendments and new sections are adopted under the Texas Water Code, sec.5.103 and sec.5.105, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.107. Public Meeting and Notice Requirements. (a) When public meeting is required. (1) The commission shall hold a public meeting on an application for a new hazardous waste management facility in the county in which the proposed hazardous waste management facility is to be located. (2) The commission, upon request of a person affected or as otherwise required by commission rule, shall hold a public meeting on an application for a Class 3 modification or on a major amendment to an existing facility's hazardous waste permit. (3) A public meeting held as part of a local review process pursuant to the Texas Solid Waste Disposal Act, sec.361. 063 (the Act), Chapter 361, Texas Health and Safety Code Annotated (Vernon's Supplement 1991) meets the requirement of paragraphs (1) and (2) of this subsection if notice is provided as required by subsection (c) of this section. (b) Public meeting not a contested case hearing. A public meeting under this section is not a contested case hearing under the Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a (Supplement 1991). (c) Notice requirements. If a public meeting is required under subsection (a) of this section or for applications involving hazardous waste under the Act and which are subject to the requirements of sec.305.101 of this title (relating to Notice of Hearing), then the applicant shall, not less than once each week during the three weeks preceding a public meeting, publish notice of the meeting in the newspaper of the largest general circulation that is published in the county in which the proposed facility is to be located or, if no newspaper is published in the county, in a newspaper of general circulation in the county. The applicant shall provide an affidavit to the commission which certifies that notice was provided as required by this section. Acceptance of such an affidavit by the commission shall create a rebuttable presumption that the applicant has complied with this section. (1) The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches and shall contain, at a minimum, the following information: (A) the permit application number; (B) the applicant's name; (C) the proposed location of the facility; and (D) the location and availability of copies of the permit application. (2) The applicant must pay the costs of the required notice. 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 17, 1991. TRD-9112854 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Subchapter G. Additional Conditions for Solid Waste Storage, Processing, or Disposal Permits 31 TAC sec.sec.305.147, 305.148 The new sections are adopted under the Texas Water Code, sec.5.103 and sec.5. 105, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.147. Monitoring of Commercial Hazardous Waste Management Facility Operations. Any issued, amended, modified, transferred, extended, or renewed commercial hazardous waste management facility permit shall include the following requirements. (1) Within the first year after commission action on the permit the facility owner or operator shall provide notice to affected persons of intent to have an independent annual environmental audit of the facility performed. The notice shall be issued in accordance with the following procedure. (A) The notice shall state the names of at least three independent inspectors nominated by the facility owner or operator to perform the environmental audit and shall be published in the newspaper of the largest general circulation that is published in the county in which the facility is located and all adjacent counties or, if no newspaper is published in the county, in a newspaper of general circulation in the county. The facility owner or operator shall not nominate an inspector who is employed or who has been employed by the facility. (B) The notice shall announce a meeting time and place, to be located near the facility location, be held within 15 days of the published notice in order for the facility to receive comments from and allow for participation by interested affected persons in the selection of the independent inspector. The interested affected persons may either agree to one of the nominated independent inspectors or nominate other independent inspectors if they do not approve of the nominee list. The selection of the independent inspector shall be agreed to by the facility owner or operator and the interested affected persons no later than 30 days from the date of the meeting. The name of the selected independent inspector shall be submitted to the commission no later than 15 days from the date of selection for the commission's approval. The commission shall approve the independent inspector after it has determined that the independent inspector has the necessary expertise to perform the audit and does not have a conflict of interest with any of the parties involved in the inspector selection. (C) The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches and shall contain, at a minimum, the following information: (i) the facility owner's or operator's name; (ii) the location of the facility; (iii) the facility permit number; (iv) the time and date of the scheduled annual environmental audit; (v) the names of at least three nominated independent inspectors; (vi) the date and time and location of the selection meeting; and (vii) the name and telephone number of a facility contact person. (D) The facility owner or operator shall provide a copy of the published notice to local jurisdictions where the facility is located. (E) The facility owner or operator shall provide the commission with an affidavit including a newspaper tear sheet of the published notice and sworn statement of the editor or publisher certifying that the notice was given as required by this section. Acceptance of the affidavit creates a rebuttable presumption that the applicant has complied with this section. (2) If the facility owner or operator and interested affected persons cannot agree on the selection of an independent inspector within the time frame specified in paragraph (1)(B) of this section, the commission shall select an independent inspector. The commission's selection, however, shall not be limited to either the facility owner or operator's nominee list or the interested affected persons' nominee list. The commission shall take steps necessary to assure that the independent inspector or entity selected to perform the audit has the necessary expertise to perform the audit, is not a business competitor of the facility, and does not have a conflict of interest with any of the parties involved in the inspector selection. (3) The facility owner or operator shall pay the cost of notice required to be provided under this section. (4) The facility owner or operator shall be responsible for the costs of an independent annual environmental audit. The facility owner or operator shall also maintain responsibility for procuring the selected independent inspector. The commission shall not be a party to such procurement nor warrant the workmanship of the selected inspector. (5) The facility owner or operator shall submit the results of an independent annual environmental audit in writing to the executive director and must mail a copy of the audit to those affected persons who participated in the selection of the independent inspector. (6) The scope of the independent annual environmental audit may encompass any and all provisions of environmental permits required for the facility and all relevant statutes and regulations regarding the management of the facility. (7) The facility is not required to perform the annual independent environmental audit if the facility does not receive any comments from affected persons. If the facility performs the independent audit despite lack of response, the facility must obtain the commission's approval of the selected independent inspector prior to the audit. (8) The facility shall provide for fence line and ambient air quality monitoring if and as required by the commission. 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 17, 1991. TRD-9112855 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Chapter 331. Underground Injection Control Subchapter G. Consideration Prior to Permit Issuance 31 TAC sec.331.121 The Texas Water Commission (TWC) adopts an amendment to sec.331.121, concerning Class I underground injection control well permitting standards, without changes to the proposed text as published in the August 2, 1991, issue of the Texas Register (16 TexReg 4215). The amendment to sec.331.121 is adopted in order to incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), Chapter 361, Texas Health and Safety Code, sec.361.1011 (Vernon 1991) , recently promulgated by the legislature in Senate Bill 1099, Texas Senate Bill 1099, 72nd Legislature (1991). Written comments concerning the amendment to sec.331.121 were submitted by the law firm of Blackburn & Carter, and the law firm of Crain, Caton & James. In addition, comments from citizens pertaining to the amendment of sec.331.121 were received at the August and Tyler public hearings conducted by the TWC. One commenter suggested the deletion of the words "together with a demonstration" from the proposed amendment to sec.331.121 as unnecessary because the permit applicant's many technical showings under applicable rules must be supported by information sufficiently persuasive to satisfy staff review, including the requirements of the proposed amendment to sec.331.121. Another commenter suggested replacing "demonstration" with the word "showing" because this change would remove the implication that the applicant has an active or physical display of transmissiveness or extensiveness of the fault. A third commenter suggested retaining the words "together with a demonstration" to make clear that the burden is on the applicant to demonstrate to the TWC that the fault is not sufficiently transmissive or vertically extensive to allow migration of hazardous constituents out of the injection zone. The TWC agrees with the third commenter and believes that retaining the words "together with a demonstration" clearly places the burden on the permit applicant to meet the requirements of the amendment to sec.331.121 in order to overcome the legislative prohibition on granting a permit for a Class I injection well affected by a fault. One commenter asked if the amendment to sec.331.121 referred to faults which penetrate the lower confining zone while another commenter suggested that the amendment to sec.331.121 does refer to faults that penetrate the lower confining zone because the amendment is concerned with all potential migration of hazardous waste. The TWC agrees with the second commenter that the amendment to sec.331.121 does refer to faults that penetrate the lower confining zone because the amendment to sec.331.121 concerns placing the burden on the permit applicant to demonstrate that the fault, once delineated to be within 2 1/2 miles from the proposed or existing wellbore or the area within the cone of influence of Class I injection well, whichever is greater, is not sufficiently transmissive or vertically extensive to allow migration of hazardous constituents out of the injection zone. A commenter suggested that the amendment to sec.331.121 should set out the detection method or detecting or delineating any and all faults within a geographic area. The TWC believes that referencing specific method for delineating or detecting faults in the rules is not considered necessary, particularly since such detailed requirements tend to stifle development of new and innovative techniques which may not otherwise be developed. Commenters also requested clarification of what specifically is meant by the terms "fault," "displacement," and "holocene time." These terms are not specifically defined by statute or regulation in state law. They are, however, defined by federal rule, as follows: Fault-A fracture along which rocks on one side have been displaced with respect to those on the other side; Displacement- The relative movement of any two sides of a fault measured in any direction; Holocene-The most recent epoch of the quaternary period, extending from the end of the pleistocene period to the present. The TWC does agree that defining these terms in state regulations would be appropriate, but does not believe it necessary to implement this provision of Senate Bill 1099. Such definition will therefore be the subject of future rulemaking activity. In the meantime, the staff to TWC will use the federal definitions, along with professional geological judgment, to fairly interpret the meaning of these words to effect purpose of Senate Bill 1099 in implementation of the rule adopted herein. The amended section is adopted under the Texas Water Code, sec.5.103, and sec.26.011, which gives the Texas Water Commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendment is also adopted under the TSWDA, sec.3, sec.4, which gives the Texas Water Commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. 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 17, 1991. TRD-9112851 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste The Texas Water Commission (TWC) adopts amendments to sec. sec.335.1, 335.2, 335.43, 335.202, 335.204-335.205, and adopts new sec.sec.335.180-335.183, concerning industrial solid waste and municipal hazardous waste. Sections 335. 180 and 335.205 are adopted with changes and amendments to sec.sec.335.1, 335.2, 335.43, 335.181-335.183, 335.202, and 335.204 are adopted without changes to the proposed text as published in the August 2, 1991, issue of the Texas Register (16 TexReg 4208), and will not be republished. These amended sections are adopted in order to incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), Chapter 361, Texas Health and Safety Code Annotated (Vernon's Supplement 1991) recently promulgated by the legislature in Senate Bill 1099, Senate Bill 1099, 72nd Legislature (1991). Written comments to the proposed amendments and new sections pertaining to this title were submitted to TWC by the following: the law firm of Akin, Gump, Strauss, Hauer & Feld; American Electronics Association, Texas Council, Environmental Policy Working Group EPWG); the law firm of Blackburn and Carter; the law firm of Brown, Maroney & Oaks Hartline; The Chemical Connection; Chemical Waste Management, Inc., Citizens Aware and United for a Safe Environment (CAUSE); Clean Water Action; Councilmen of the City of New Braunfels; the law firm of Crain, Caton & James; Dupont-Gulf Coast Regional Manufacturing Services; Ethyl Corporation; F.I.S.T., Inc.; Gibraltar Chemical Resources, Inc.; Hardin-Simmons University; the law firm of Henry, Kelly & Lowerre; the law firm of Hutchinson & Grundy; IRI International; the law firm of Johnson & Gibbs; Kodak; the law firm of McGinnis, Lochridge & Kilgore; Monsanto; North Athens Council of Citizens (NACC); North Texas Cement Company; Securing a Future Environment (SAFE); Sierra Club- Dallas Regional Group; Sierra Club-Lone Star Chapter; the law firm of Small, Craig & Werkenthin; Texas Air Control Board; Texas Bar Historical Foundation; Texas Chemical Council; Texas Ecologists, Inc.; Texans United; the law firm of Thompson & Knight; Titus County Citizens and Endangered Species, Inc.; and the United States Department of Commerce, National Oceanic and Atmospheric Administration. In addition, comments were received from citizens at public hearings conducted by TWC in the following Texas cities: Abilene, Amarillo, Arlington, Austin, Dayton, El Paso, Fort Stockton, LaPorte, Midlothian, New Braunfels, Texas City, and Tyler. Three comments were received on proposed sec.335.1 concerning definitions. Two commenters argued that the definitions in general and "hazardous waste management unit" in particular are narrower than and conflicted with the federal regulations and could therefore result in the compromise of state delegation of federal authority. TWC disagrees that this definition is narrower than the federal rule. However, even if it were, under the federal authorization program the state may be more stringent in its regulatory rules and requirements provided the state can justify the need for the more stringent or narrower requirement to the federal program. Thus, the state may diverge from the federal program provided sufficient justification is provided. Viewing the impact of these definitions in the scheme of managing all industrial solid waste and municipal hazardous waste, TWC believes it can justify these definitions to the federal program and thereby not compromise state authorization. Finally, and most importantly, the proposed definition tracks verbatim the definition established by Senate Bill 1099 for inclusion in the statute. Another commenter requested clarification of the definition of "facility" as to whether it means the landfill or the 40 acres on which the facility sits. A facility is all the contiguous land, including structures, appurtenances, and other improvements on the land, used for processing storing, or disposing of hazardous waste. TWC believes that this definition of facility is consistent with sec.335.1 (relating to definitions) and the legislative language contained in Senate Bill 1099. TWC wishes to make clear that the purpose of the regulations is to regulate hazardous and industrial solid waste. The term "facility" should not be taken to include property which is not fairly to be considered part of the hazardous waste management facility. For example, a military base generally segregates its hazardous waste management activities in discreet locations. It would not be appropriate to designate the boundaries of the entire military base as the "facility" for the purpose of these rules. Commenters also requested clarification of what specifically is meant by the terms "fault," "displacement," and "Holocene time." These terms are not specifically defined by statute or regulation in state law. They are, however, defined by Federal rule, as follows: "fault" means a fracture along which rocks on one side have been displaced with respect to those on the other side. "displacement" means the relative movement of any two sides of a fault measured in any direction. "holocene" means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene period to the present. TWC does agree that defining these terms in state regulations would be appropriate, but does not believe it necessary to implement this provision of Senate Bill 1099. Such definition will, therefore, be the subject of future rulemaking activity. In the meantime, the staff of TWC will use the federal definitions, along with professional geological judgment, to fairly interpret the meaning of these words to effect the purpose of Senate Bill 1099 in implementation of the rule adopted herein. Comments were received on sec.335.180 (Impact of New Hazardous Waste Management Facilities on Local Land Use) in which it was suggested that special consideration be given to the impact such a facility would have on recreational facilities or activities in the area. In response, it should be noted that the requirements set forth in sec.335.180 are minimum standards; if there are special recreational uses in a given area, then those may be considered, as well, in determining compatibility of land use. One commenter suggested including not only the amounts of hazardous waste generated by certain facilities, but also the hazardous materials produced by those facilities. This commenter also suggested that TWC consider whether the industrial or commercial uses in the area predate residential uses. TWC responds that this agency is charged with the regulation of solid waste. Hazardous materials which may be produced by a facility are generally not within the purview of TWC's authority; the waste produced by a facility, however, may be regulated by TWC. Thus, TWC will not add hazardous materials produced by other facilities to the items which must be included by the applicant. TWC further believes that, at the time of the applicant's filing, it would appear to have little relevance as to which came first, the residential uses or the commercial uses. What would be relevant is the proposed facility's proximity to other uses and whether the facility would be compatible with local land use plans, zoning laws, ordinances, etc., at the time the application is made. One commenter suggested that the area considered be defined by a one-mile radius from the site boundary. Another commenter suggested that TWC should restrict analysis of population density and analysis of delivery routes to a five-mile radius from the site boundary. In response, TWC has not defined the area to be considered at this time. The proposed rules did not contemplate such a limitation; however, this may be an area in which more definitive rules will be considered for adoption. In actual practice, the impact of a proposed facility on local land use is likely to vary, depending on the nature of the land use, the nature of proposed waste management operations at the facility, and the size of the facility. At this time, TWC considers it most prudent to retain the ability to assess all pertinent factors without limiting its consideration to an arbitrarily established distance. One commenter has suggested that the exemptions in Senate Bill 2 for the one half-mile buffer zone are unconstitutional. This commenter further suggests that a rule on land use compatibility should be issued by TWC which recognizes that the one half-mile limit cannot be adopted for recycling facilities, but which does not ignore the land use problems associated with such facilities. In response to this comment, TWC receives its authority from the Texas legislature and presumes all acts of the legislature to be valid. The legislature specifically exempted certain types of recycling facilities from the provisions of Senate Bill 1099 and thus, these rules. TWC recognizes that there may be some land use issues associated with such recycling facilities; however, such issues are not specifically addressed by these particular rules. They may, however, be addressed through the application of rules which address operating requirements for such facilities. Comments were received concerning sec.335.180 which requested clear criteria for the permit process such that a proposed facility may be able to tell early on whether it will be blocked because of land use issues. Currently, the only such criteria are found in proposed amendments to sec.sec.335.204-335.206, which address siting issues. The applicant would also be able to review any land use plan adopted by a locality pursuant to the Texas Local Government Code, Chapter 211 (Vernon's Supplement 1991), or any local planning, zoning, or land use laws of such locality in order to determine whether its application for a permit would be blocked due to land use issues. TWC has convened an advisory panel, called Task Force 21. Among the recommendations expected of Task Force 21 is the kind of criteria requested by this comment. Therefore, such criteria may appear in a future rulemaking. Comments were received which suggested that the risks of certain land uses be considered when compared with existing risks and with the anticipated risks from a proposed facility. Comments were received which suggested that TWC consider which land use preceded other, perhaps conflicting, land uses existing in an area. Numerous commenters suggested that TWC consider the potential risk which already exists within an area from other facilities, and determine whether a proposed hazardous waste management facility presents any greater risk than already exists. Other commenters requested that TWC consider the cumulative risks involved where other hazardous waste management facilities already exist in a community. This particular situation has been envisioned in the rules. Section 305.50(1)(A) and (B) specifically provide for consideration of the location of industrial and other waste-generating facilities in the area, and the amounts of hazardous waste generated by those facilities. Comments were received which stated that sec.335.180(2)(C) provides no yardstick by which to judge various natural, scenic, historic, esthetics, or environmentally sensitive areas. Commenters have requested more specific language regarding this subsection, or deletion of this subsection. One commenter further suggested that, if no other objective standards can be developed, then sec.335.180(2)(C) and (D) should be deleted. TWC agrees that sec.335.180(2)(C) is vague and provides no helpful criteria for decision-making. It, therefore, is not adopted. Any practitioner wishing to make an argument on the basis of that kind of consideration can work with sec.335.180(2)(A) and sec.335.180(3) effectively, because there is no limitation to the kinds of risk those subsections discuss, as long as it pertains to local land use. TWC does not agree that sec.335.180(2)(D) should be deleted. The provision provides specific guidance and addresses issues raised by other commenters. One commenter expressed the belief that sec.335.180(2)(D) appears less appropriate in a land use consideration than in a geological or technical consideration of an application. This commenter further expressed the view that land use refers to the manners in which the public and private sectors have chosen to use land, not to the natural features of the land. This paragraph provides some consideration to TWC, in a land use context, with respect to potential flooding due to hurricanes. This paragraph exists here due to the effect that the facility's waste management might have on the surrounding land uses in the event of a hurricane or other high-water event. However, it may also be appropriate to include that consideration in rules pertinent to siting of facilities, found at sec.sec.335.201-335.206. Consideration is being given to doing so in future rulemaking. One commenter suggested that with respect to this subchapter, the term "new hazardous waste management facility" and "new commercial hazardous waste management facility" should be defined so as to include facilities which are permitted or proposed but which have not yet been constructed. The staff of TWC agrees that there are issues regarding what constitutes a new facility or unit will demand further clarification, which can be addressed by rule. Meanwhile any interpretation should give the greatest possible consideration to effecting the purposes of Senate Bill 1099. However, if a permit has been issued, the facility would not be considered new. If an undue length of time has passed since permit issuance, and the permittee has not begun and diligently pursued construction, the permit may be ripe for revocation. One commenter stated that compatibility with local land use plans should be based on local planning and approval processes. These processes include plat plan reviews, consistency with zoning ordinances, and site visits by local planning engineers and planning board members. The commenter suggests that the commission should use these evaluations and recommendations instead of creating additional permit review steps, such as those found at 31 Texas Administrative Code sec.sec.305.107, 335.206, and 335.180. The commenter suggested that sec.335. 180 should be rewritten to state that the local land use processes as well as the mechanisms provided in sec.305.107 and sec.335.206 are adequate to ensure that new hazardous waste management facilities and land uses in the area are compatible; thus, the commission would not need to conduct an independent review unless requested to do so in accordance with 31 TAC sec.335.206. It is the agency's understanding that some areas of the state are not covered by such a plan. The proposed rule gives TWC the flexibility to consider not only existing land use plans, but also other appropriate information. Another commenter has proposed that this section should recognize the buffer zone set forth in sec.335.204 as a component of the land use requirement. First of all, TWC responds that it is unnecessary to "recognize" the buffer zone set forth at sec.335.204 as a land use requirement. TWC is, further, directed by the provisions of Senate Bill 1099 to review any application with respect to local land use plans. Comments were received on sec.335.181 (Need for Specific Hazardous Waste Technologies) with respect to coordination with the requirements of the TSWDA, sec.361.0232. The commenter stated that it should be clarified that this rule will be effective only after the needs assessment under the TSWDA, sec.361.0232 has been completed. TWC responds that this regulation specifically states that the commission will determine the need for the specific technology proposed in the facility to manage new or increased volumes of waste generated in the state, in accordance with the TSWDA, sec.361.0232. By its terms, sec.361.0232(a) requires the commission to assess the need for commercial hazardous waste management capacity by not later than January 1, 1992. It is, therefore, unlikely that this needs assessment will cause delay to any pending or contemplated permit application. Comments were received concerning sec.335.182 (Burden on Public Roadway by a New Commercial Hazardous Waste Management Facility), particularly with respect to distance from the facility. More than one commenter suggested that TWC's review of the proposed facilities impact on such roadways be conducted within a 2 1/2 mile radius of the proposed facility. Some commenters suggested that this review be limited to public roadways within the county. Another commenter suggested that the burden on the roadways be limited to that created by the applicant's facility. Commenters have further suggested that any determination by TWC concerning an impact on roadways shall be consistent with the Federal Hazardous Waste Materials Transportation Act and any regulations promulgated there under. This particular section was discussed at length by Task Force 21. The task force recommended that a specific distance might not be appropriate, since it was determined that the roadways between the facility and the nearest highway were those which should be subject to this provision. Therefore, a specific distance has not been set. In addition, this rule is concerned with the wear and tear on roads, as well as additional traffic loads, placed on a public roadway by heavy trucks and other equipment necessitated by the facility's existence. This rule does not seek to superimpose regulations on trucks which are subject to Department of Transportation Regulations concerning hazardous materials. Another commenter suggested that TWC's use of highway guidelines as standards seems inappropriate, and suggest that coordination efforts be made between TWC and the Highway Department to determine which factors should be considered in reducing or mitigating a burden on public roadways. The highway guidelines and standards included in sec.335.182 were provided to TWC by the Texas State Department of Highways and Public Transportation. It is anticipated that there will be coordination between TWC and the TSDHPT in determining a burden on public roadways and reducing or mitigating such burden. Another commenter suggested that TWC deny the permit if road improvements cannot be made, such as where the road improvements would be required to be made in an environmentally sensitive aquifer recharge zone. Such considerations may be made by TWC on a case-by-case review of facts. Comments were received on portions of sec.335.183 (Emergency Response Capabilities Required for New Commercial Hazardous Waste Management Facilities). Numerous comments were received with respect to the area for which the facility must be responsible for emergency response. Some commenters urged that TWC limit this responsibility to the area inside the facility. Others commented that the facility should be responsible for transportation, at least as far as the county line. One commenter argued that the statutory language "associated with the operation of a facility" does not include hauling of waste to the facility. Other commenters urged that TWC expand application of this rule to all facilities which are currently in existence as well as new facilities. Several commenters urged that TWC require a facility to coordinate community emergency response drills for emergency preparedness. One commenter suggested that sec.335. 183(D)(1), (2), (3) and (11) be deleted, as the commenter believed that geology, drainage patterns, and wind patterns may effect facilities operations but they have little to do with a determination of whether the hospital or fire station has adequate equipment and personnel to handle complex chemical reactions. This commenter stated that, while efficiency and safety of an evacuation plan have a bearing on the safety of the facility, such information is not relevant to a consideration of whether adequate emergency response capabilities exist in the area. It is TWC's position that the facility may be held responsible for providing emergency response capabilities for transportation accidents involving the transport of waste to or from such a facility. Task Force 21, after much discussion, advised TWC that such response would be appropriate within the county in which the facility would be located. The safety and efficiency of an evacuation plan have an impact on the emergency response required: the better the evacuation plan, the fewer the number of injuries which may be expected to occur, reducing the need for medical response. In addition, plant personnel who are uninjured may better assist and direct the emergency response team with respect to the status of the operation of the plant at the time of the emergency. Community emergency response is not required by these rules as long as other sufficient response capability exists, but would probably assist an applicant in making a case for having sufficient emergency response capabilities. Consideration of geology, drainage patterns and wind patterns by TWC when reviewing the proposed emergency response capabilities is necessary in order to determine whether there are any special features of the area which would make it necessary to have special equipment or skills to properly respond to an emergency in that location. One commenter suggested that, if an applicant elects to provide the financial assurance for emergency response capabilities set forth at sec.335.183(a)(2), that TWC require the bonds to remain in effect for 30 years after the closure of the facility. This commenter further suggested that the bond amount should be arbitrated during the application process and proposals for bonding should be open for public comment or party scrutiny. These requirements have not been contemplated in these rules, and would appear to be outside the scope of authority given to the agency for these rules. The purpose is not long-term bonding, but rather the assurance that emergency response is adequate at facility start up. Several other commenters expressed concern that the facility should be required to demonstrate a coordinated readiness to respond and to cooperate in the event of a worst case emergency at the facility. In response, such a demonstration of coordination would inure to the permit applicant's benefit when reviewing the application for emergency response capabilities. One commenter suggested that these rules should require that companies provide "hazardous assessments" which are studies of worst case accident scenarios. Numerous commenters further suggested that the commission adopt a rule which will provide objective criteria for determining a reasonable worst case emergency and guiding principles governing the analysis of those criteria. TWC responds that such hazard assessments, as described by the commenter, are not required under these rules. Such a study, however, might prove helpful in evaluating a reasonable worst case emergency associated with the facility. As discussed in a previous response, TWC is considering the statutory language to mean a "reasonably foreseeable worst case emergency" which might be associated with the facility's operations and its geographical location. Such emergencies might include multiple tank explosions, hurricanes, fires, tornadoes, high winds, or dust storms, depending upon the operations of the facility and its location. TWC may issue clarifying rules concerning this section in the future. Another commenter suggested adding criteria such as the design and operational parameters of the facility and the safety features of the facility to the requirements of this section. In response, these items are already required to be provided in other portions of the permit application, and need not be repeated here. With respect to the financial assurance requirements, one commenter suggested making the financial assurance sufficient to fund emergency response capabilities for one year as set forth in this section, and annually thereafter throughout the operational life of the facility. As stated earlier, the bond established by Senate Bill 1099 for emergency response is not a long-term bonding requirement. TWC views it as a one-time bond to assure that the local community has enough money to provide emergency response which is adequate at the time of a facility commencing operations. Two comments were received on the meaning of "residence" as used to delineate the buffer zone of an unsuitable site characteristic in sec.335.204(e)(6). TWC will be doing additional rulemaking concerning this definition in the very near future. TWC wishes to clarify that with regard to other structures mentioned in Senate Bill 1099-churches, schools, and day care centers-as well as public parks, the appropriate point for measuring "buffer zone" distance is the property line. This is justified by the fact that activities typical of such institutions is not confined to the building itself, and tends to occur throughout the property. Measurement to surface water bodies used for a public drinking water supply is not so clear cut. TWC will assess such distances based on the facts of each case, focusing on what part of a river, lake, or stream is used directly as a public water supply, and at what points a proposed facility may present a hazard. A commenter suggested that a "new" hazardous waste management facility be defined by TWC and TACB rules as "any facility that " has not received all of the necessary permits from TWC and TACB by the effective date of Senate Bill 1099 to operate as a hazardous waste management facility, except where specifically provided otherwise in Senate Bill 1099." TWC response is that generally, the terms "new" and "existing" will be evaluated in terms of a facility's status on the effective date of Senate Bill 1099. Further interpretations will be made on a case-by-case basis, in accordance with earlier statements made herein. Numerous comments were received on sec.335.204 (relating to Unsuitable Site Characteristics). Two commenters suggested revising sec.335. 204 to protect against flooding in a 500-year floodplain as opposed to the 100- year floodplain currently stated in the rule. The 100-year floodplain siting rule of sec.335.204 was taken directly from the legislative provisions of Senate Bill 1099. Thus, any change from the siting characteristics of a 100-year floodplain versus a 500-year floodplain must be enacted by the legislature before TWC can promulgate a rule changing the siting characteristics of this section. One commenter suggested that the applicant be required to evaluate the impact of flood phenomena known as "sheet flooding." TWC agrees with the commenter that "sheet flooding" is one factor to be taken into consideration by TWC in evaluating whether siting characteristics are suitable under this section. However, the applicant is still entitled to demonstrate to TWC that the design construction, operation, and maintenance of the hazardous waste management facility will prevent physical transport of any hazardous waste during a "sheet flooding" event. Another commenter suggested that TWC require existing and new hazardous waste facilities which are located in the coastal flood plain to design containment levees that would not breach even if overtopped by storm tide and surf. Since the proposed rule tracks the statutory language, any former restrictions or allowances in this area would be without statutory authorization. With regard to surge and other flooding considerations, existing rules are sufficient to show adequate protection against flood events, as required under the statute and rules. See, for example, 40 Code of Federal Regulations, 264.18, adopted at 31 TAC sec.335.152(a)(1); and to Code of Federal Regulations, sec.270.14(b)(11), referenced under 31 TAC sec.305.50(4). Another commenter argued that sec.335.204(b) would allow companies to site hazardous waste incinerators and injection wells in a 100-year floodplain without having to demonstrate protection from a 100-year event. TWC disagrees with the commenter because the definition of new commercial hazardous waste management facility contained in sec.335.1 (relating to Definitions) would make the unsuitable site characteristics provisions of sec.335.204 directly applicable to any new commercial hazardous waste incinerators and injection wells. One commenter questioned whether the applicant's demonstration required in sec.335.204(b)(1) that waste will not be transported in a flood event was adequately protective because such an applicant would always be able to demonstrate on paper that the waste would be protected against a 100-year flood event. The demonstration made by the applicant must be to the satisfaction of the commission. The applicant will need to have sufficient flexibility to make that demonstration to TWC. Thus, TWC's decision as to whether or not a site exhibits suitable characteristics need not be based on "paper" alone but may include on-site visual inspections and any other method that will provide satisfaction to TWC that an applicant has met the required demonstration. Another commenter suggested that the exemption contained in sec.335.204(b)(6) stating that siting requirements do not apply to any facility for which a notice of intent to file an application, or an application has been filed as of September 1, 1985, be stricken from the rules. TWC agrees with the commenter and notes that in published proposed rule that language was bracketed to indicate that it would be deleted from the final rule. Four commenters sought revisions to the measurement of distances requirement contained in sec.335.204(b)(6) and (e)(6). Two commenters suggested that the 1, 000 foot measurement for distance to a land treatment facility and landfill should begin at the boundary of the property of an established residence, church, school, day care center, surface water body used for a public drinking supply or dedicated public park or should be considered a "minimum setback with respect to "residence, church, drinking water supply" state that neither a land treatment facility or landfill 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. The measurement of distances is to be taken from a perimeter of the proposed new hazardous waste land treatment facility or proposed new hazardous waste landfill and the perimeter shall not be more than 75 feet from the edge of these proposed new units. Thus, the measurement of distances begins no more than 75 feet from the edge of the proposed new unit to 1,000 feet and none of the enumerated siting prohibitions must be located within that 1,000-foot distance. Two other commenters suggested that the perimeter requirements of sec.335.204(b)(6) and (e)(6) should be drawn as closely as possible to the unit, but in no event greater than 75 feet from the unit. TWC disagrees with the commenters because sec.335.204(b)(6) and (e)(6) requires that the perimeter must not be more than 75 feet from the edge of the proposed new hazardous waste land treatment unit and proposed new hazardous waste landfill unit. Under these subsections, the applicant's choice of where the perimeter begins or to draw the perimeter as far as possible from the proposed units is subject to review by TWC. Thus it is for TWC to ultimately determine whether the applicant has appropriately drawn the perimeter in accordance with these subsections. Another commenter suggested revising sec.335.204(f) to include a paragraph and subparagraph relating to injection well and salt dome waste containment cavern standards. TWC declines to amend sec.335.204(f) until such time that additional rules are proposed by TWC dealing with injection well and salt dome cavern standards. Many comments were received on sec.335.205, concerning prohibition of permit issuance. Thirteen commenters suggested that TWC expand the 1/2 mile (2,640 feet) location prohibition contained in sec.335.205(c) and (e) to longer distances ranging from one to 25 miles. TWC responds to the commenters by stating sec.335. 205(c) and (e) mirrors the 1/2 mile (2,640 feet) requirement that was enacted by the legislature in Senate Bill 1099. Any change to the 1/2 mile (2,640 feet) location requirement would be more appropriate if established by the state legislature through the legislative process rather than by rule amendment. Three commenters suggested that the measurement requirements of sec.335.205(c) as to whether a proposed facility violates the 1/2 mile restriction should be taken from the boundary of the property line of an established residence, church, school, day care center, surface water body used for a public drinking supply, or dedicated public park in order to protect outside use by people at these locations. Section 335.205(c) prohibits the location of a new commercial hazardous waste management facility or its subsequent areal expansion, if the boundary is to be located within 1/2 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. Section 335.205(g) further requires that the measurement of distances must be taken from a perimeter around the proposed hazardous waste management unit which must not be more than 75 feet from the edge of the proposed hazardous waste management unit. Thus, to comply with the requirements of sec.335.205(c) and (g), a new commercial hazardous waste management facility must begin its measurement from not more than 75 feet of a proposed hazardous waste management unit to a distance of 1/2 (2,640 feet) mile. No such structure, water supply, or park must be located within that 1/2 mile distance. The measurement of this distance has been addressed earlier in this preamble. A commenter suggested that sec.335.205(c) be amended to give wetlands a buffer of 500 feet. Wetlands are beyond the scope of this section and must first be addressed by the state legislature before TWC can implement such a requirement. Two commenters suggested that the applicant either be required to identify any wetland areas on a proposed site or ban hazardous waste facilities from wetland areas. Another commenter suggested that the United States Army Corps of Engineers be contacted and the proposed site evaluated by them for a possible Section 404 Permit, in the event that wetlands exist on the proposed site. In addition, this commenter also suggested that TWC evaluate the project impact on area waterfowl and their habitat. Current rules of the agency already address protection of wetlands and endangered species habitats which is why those issues were not addressed directly by this rule proposal. Another commenter suggested that sec.335.205 be modified to clearly require the applicant to submit data necessary to establish the location of the subject facilities in relation to the distance limitations imposed by Senate Bill 1099, but to permit the commission staff to consider information from other sources, including its own files and that provided by interested persons. TWC believes that modification of sec.335.205 is unnecessary because of the strict permit prohibition on a structure, water body, or park located within 1/2 mile of a proposed facility and the requirement that the applicant satisfy TWC that adequate safeguards have been demonstrated to exist in order to permit a facility that is greater than 1/2 mile. Two commenters requested clarification as to what is the triggering event for the siting requirements of sec.335.205 to apply i.e. is the triggering event for existing facilities when such facilities seek interim status by filing a Part A permit application or is it at the time the notice of intent to file a permit application is filed, or if no such notice is filed, at the time the permit application is filed with TWC. TWC believes that the siting considerations should be triggered when the notice of intent to file a permit application is filed, or if no such notice is filed, at the time that the Part A permit application is filed seeking interim status, or at the time that the permit application is filed with TWC. One commenter was concerned that the phrase "areal expansion of such a facility" as used in sec.335.205(c) would mean that the prohibition applies only to areal expansion of commercial waste facilities that are newly permitted after these regulations are promulgated. TWC believes that "the areal expansion of such a facility" stated in sec.335.205(c) applies to the status of all pending and new permit applications as of the effective date of Senate Bill 1099. Thus, if a new commercial hazardous waste management facility is seeking areal expansion of its facility as of the effective date of Senate Bill 1099, then the requirements of sec.335.205(c) apply. A commenter requested clarification on the procedure to be followed if an established residence, church, school, day care center, surface water body used for public drinking supply, or dedicated park is later built near an existing hazardous waste management unit which then decides to request a permit modification. This commenter argued that since the hazardous waste unit was already in existence, the construction of these units in the vicinity should not inhibit future permit modifications. TWC believes that should the scenario described by the applicant occur, the distance requirements that must be met is going to depend on whether the applicant falls within the provisions of sec.335. 205(c) or (e). Another commenter requested clarification of sec.335.205(c) regarding the location of a surface water body used for public drinking water supply. This commenter felt that a river which is used for drinking water only, upstream of the hazardous waste management facility should not inhibit the facility's location or expansion. Nor did this commenter feel that a stream which does not supply drinking water until a significant distance downstream, should restrict the location or expansion of the facility. This issue was discussed earlier. TWC believes that whether a facility is within the 1/2 mile prohibition will involve considerations of whether the water body is used as a public drinking supply; the distance from the facility to the water body used as a public drinking supply; and any other factors that merit evaluation as to whether TWC is prohibited from issuing the permit under sec.335.205. One commenter suggested that detailed definitions as to what constitutes an established residence, church, school, day care center, surface water body used for public drinking water supply and dedicated park contained in sec.335.205(c) should be provided by TWC because a detailed definition of these terms would prevent confusion and delays during the permitting process. TWC agrees and these matters were addressed earlier. One commenter suggested that in order to be consistent with sec.335.205(c) the words "established" and "public" should be inserted in sec.335.205(d) and (e) to indicate established residence and dedicated public park. TWC agrees with the commenter and in order to provide consistency adds "established" and "public" to sec.335.205(d) and (e). The omission of "established" and "public" to sec.335. 205(d) and (e) was an oversight because TWC's intention was to use the same wording as the statute. Another commenter suggested that even if a residence under sec.335.205(d) is not in place at the time of the permit application, property owners should be compensated for a diminished value or use of their property which is obvious. TWC believes that such compensation is beyond the requirements of sec.335.204(d) and must be enacted through legislative amendment rather than by rule change. Four comments were received concerning sec.335.205(e) concerning a prohibition of permit issuance to a new commercial hazardous waste management facility that is proposed to be located greater than 1/2 mile (2,640 feet). One comment asked how an applicant demonstrates that a facility will be operated so as to safeguard public health and welfare and protect physical property and the environment, at any distance beyond the facility's property boundaries. TWC believes that sec.335.205(e) places the burden of proof on the applicant to make such a demonstration to the satisfaction of TWC. Unless TWC is convinced that the applicant has made a satisfactory demonstration, the issuance of the permit is prohibited by this section. This will involve a thorough examination, including opportunity for public hearing, of the proposals to construct and operate the facility. Another commenter suggested that TWC should prohibit facilities beyond the 1/2 mile prohibited area, if the facility will impact a larger area. As part of the permit review process TWC believes that it can consider the impact a proposed facility will have on a larger area in order to determine whether to grant or prohibit the issuance of a permit. A third commenter suggested that the language in sec.335.205(e) is too ambiguous and should be revised to state "... unless the applicant demonstrates to the satisfaction of the commission that the facility will be operated so that no one can be injured at any distance beyond the facility's property boundaries." TWC disagrees with the commenter because "injured" is not specific enough as to the type of harm sought to be protected in sec.335.205(e). TWC feels that sec.335.205(e) places the public and the applicant on sufficient notice of the types of harm sought to be protected against. Two other commenters suggested changing the wording of sec.335.205(e) to read "all applicants must demonstrate to the satisfaction of the commission that the facility will be operated so as to safeguard the public health and welfare, the physical property, and the environment." TWC believes that the commenters' proposed language is not necessary. The requirement of an applicant to safeguard public health and welfare and protect physical property and the environment necessarily extends at any distance beyond the facility's property boundaries, to the extent that the facility may affect a given area. One commenter suggested deleting sec.335.205(f) on the basis that employee homes, day care centers, and drinking water supply should have the same protection as public facilities. TWC feels that sec.335.205(f) cannot be deleted because such deletion would contravene the legislative provisions of Senate Bill 1099. For deletion of sec.335.205(f) to occur. The legislature must first abrogate or change the legislative language of Senate Bill 1099. This same commenter recommends that strict liability be imposed for any injury which may occur to property, human health and welfare, or the environment that is caused by hazardous waste generators, transporters, and management facilities. Such an inclusion into this rule is beyond the scope of the proposed rule published in August 2, 1991, issue of the Texas Register (16 TexReg 4220) and also without legislative authority under Senate Bill 1099. The legislature did not enact provisions dealing with strict liability and TWC is thus, without the statutory authority to implement such a requirement. Five comments were received concerning sec.335.205(h) concerning prohibition of issuance of a permit for a Class I injection well, a proposed hazardous waste management facility other than a Class I injection well, or a capacity expansion of an existing hazardous waste management facility affected by a fault. One commenter requested clarification as to the magnitude of the modification or amendment that would trigger the requirements of sec.335.205(h). TWC's response is that any permit modification or amendment that seeks to expand an existing facility's capacity must comply with sec.335.205(h). Another commenter addressed the geotechnical problems arising from the sec.335. 205(h) requirements and moved to obviate the less-quantitative phrasing in the provision which states that "the fault will not result in structural instability of the surface facility." TWC feels that any geotechnical problems that might arise from the implementation of sec.335.205(h) are best left to be resolved by technological innovation in the geological field. In this manner, TWC would have the flexibility to examine all of the available alternatives to resolve any geotechnical problems that might arise under this section. Further, qualification of the phrase "structural instability" would prove to be too rigid and would also deny TWC the flexibility to adequately evaluate the permit application. Two commenters suggest revising sec.335.205(h)(1) to state that the methodology of measuring distances will be from those areas within a facility (other than a Class I injection well) where treatment, storage, or disposal will be conducted. This issue is addressed by proposed sec.335.205(h)(2). A commenter further suggested that sec.335.205(h)(2)(A) be amended to state that "the fault has not had displacement within Holocene time or if faults have had displacement within Holocene time..." This comment is a correct reading of Senate Bill 1099 and identifies a clerical error in the proposed rule which is corrected upon adoption. One comment was received regarding sec.335.205(i). This commenter suggested deleting the entire provision and substituting it with an entirely new section proposed by the commenter. The commenter's proposed new section would establish TWC's review and hearing procedures for applications which fail to meet the location requirements of sec.335.205 (relating to Prohibition of Permit Issuance). Such a revision of sec.335.205(i) is not necessary. Section 335.205(i) simply states that even if an applicant meets the requirements of site selection to protect groundwater or surface water and has suitable site characteristics TWC is not required to issue the permit. TWC's decision not to issue the permit is tantamount to a denial and triggers the notice and hearing provisions of Chapter 305 (relating to Permit Denial, Suspension, and Revocation). Thus, there is no need to elaborate on a review and hearing process in sec.335.205(i). A. Industrial Solid Waste and Municipal Hazardous Waste Management 278>31 TAC sec.335.1, sec.335.2 The amendments are adopted under the Texas Water Code, sec.5.103 and sec.26.011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also adopted under the TSWDA, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. 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 17, 1991. TRD-9112856 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Subchapter B. Hazardous Waste Management General Provisions 31 TAC sec.335.43 The amendment is adopted under the Texas Water Code, sec.5.104 and sec.26.011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also adopted under the TSWDA, sec.3, sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. 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 17, 1991. TRD-9112857 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Subchapter F. Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities 31 TAC sec.sec.335.180-335.183 The new sections are adopted under the Texas Water Code, sec.5.104 and sec.26. 011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also adopted under the TSWDA, sec.3 and sec.4, which give the commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.180. Impact of New Hazardous Waste Management Facilities on Local Land Use. In evaluating an application for a new hazardous waste management facility permit, the commission shall assess the impact of the proposed facility on local land use in the area, including any relevant land use plans in existence before publication of the notice of intent to file a solid waste permit application, or, if no notice of intent is filed, at the time the permit application is filed. (1) In determining whether a new hazardous waste management facility is compatible with local land use, the commission shall consider, at a minimum: (A) the location of industrial and other waste-generating facilities in the area; (B) the amounts of hazardous waste generated by those facilities; (C) the risks associated with the transportation of hazardous waste to the facility; and (D) compatibility of the application with any land use plan adopted pursuant to the Texas Local Government Code, Chapter 211 (Vernon's Supplement 1991) or with local planning, zoning, or land use laws and ordinances, in existence before publication of the notice of intent to file a solid waste permit application, or, if no notice of intent is filed, at the time the permit application is filed. (2) In addition, the commission may consider any of the following criteria in determining compatibility of a facility with local land use: (A) the risk of fires or explosions from improper storage and disposal methods; (B) the distance from the site boundary to existing structures; and (C) location of the facility in relation to high-hazard areas such as 100-year hurricane flood zones. (3) Based on its assessment of the application with respect to local land use, the commission may deny an application in accordance with sec.305.66(i) of this title (relating to Revocation and Suspension) or impose permit conditions deemed necessary to minimize or mitigate detrimental impacts on local land use, in accordance with sec.305.148 of this title (relating to impact of New Hazardous Waste Management Facilities on Local Land Use). 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 17, 1991. TRD-9112858 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 Subchapter G. Additional Conditions for Solid Waste Storage, Processing, or Disposal Permits 31 TAC sec.sec.335.202, 335.204, 335.205 The amendments are adopted under the Texas Water Code, sec.5.103, and sec.26. 011, which gives the Texas Water Commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendments are also adopted under the TSWDA, sec.3 and sec.4, which gives the Texas Water Commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.205. Prohibition of Permit Issuance. (a)-(b) (No change. ) (c) No permit shall be issued for a new commercial hazardous waste management facility as defined in sec.335.202 of this title (relating to Definitions) 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 1/2 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. (d) For a subsequent areal expansion of a new commercial hazardous waste management facility that is required to comply with subsection (c) of this section, distances shall be measured from an established 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. (e) No permit shall be issued for a new commercial hazardous waste management facility that is proposed to be located at a distance greater than 1/2 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 unless the applicant demonstrates to the satisfaction of the commission that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment, at any distance beyond the facility's property boundaries. (f) The measurement of distances required in subsections (a), (c), (d), and (e) 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 commission or, if no notice of intent is filed, when the permit application is filed with the commission. The restrictions imposed by subsections (a), (c), (d), and (e) of this section do not apply to an established residence, church, school, day care center, surface water body used for a public drinking supply, or dedicated public park located within the boundaries of a commercial hazardous waste management facility, or property owned by the permit applicant. (g) The measurement of distances required in subsections (a), (c), (d), and (e) of this section shall be taken from a perimeter around the proposed hazardous waste management unit. The perimeter shall be not more than 75 feet from the edge of the proposed hazardous waste management unit. (h) No permit shall be issued for a Class I injection well, a proposed hazardous waste management facility other than a Class I injection well, or a capacity expansion of an existing hazardous waste management facility if a fault exists within 2 1/2 miles from the proposed or existing wellbore of the Class I injection well or the area within the cone of influence whichever is greater, or if a fault exists within 3,000 feet of the proposed hazardous waste management facility other than a Class I injection well or of the capacity expansion of an existing hazardous waste management facility unless the applicant demonstrates to the satisfaction of the commission unless previously demonstrated to the commission or to the United States Environmental Protection Agency that: (1) in the case of Class I injection wells, that the fault is not sufficiently transmissive or vertically extensive to allow migration of hazardous constituents out of the injection zone; or (2) in the case of a proposed hazardous waste management facility other than a Class I injection well or for a capacity expansion of an existing hazardous waste management facility, that: (A) the fault has not had displacement within Holocene time, or if faults have had displacement within Holocene time, that no such faults pass within 200 feet of the portion of the surface facility where treatment, storage, or disposal of hazardous waste will be conducted; and (B) the fault will not result in structural instability of the surface facility or provide for groundwater movement to the extent that there is endangerment to human health or the environment. (i) Nothing in this subchapter shall be construed to require the commission to issue a permit notwithstanding a finding that the proposed facility would satisfy the requirements of sec.335.203 of this title (relating to Site Selection to Protect Groundwater or Surface Water) and notwithstanding the absence of site characteristics which would disqualify the site from permitting pursuant to sec.335.204 of this title (relating to Unsuitable Site Characteristics). 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 17, 1991. TRD-9112859 Jim Haley Director, Legal Division Texas Water Commission Effective date: November 7, 1991 Proposal publication date: August 2, 1991 For further information, please call: (512) 463-8069 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part IX. Texas Department on Aging Chapter 259. Board on Aging Policies and Procedures 40 TAC sec.sec.259.2-259.4, 259.6, 259.7 The Texas Department on Aging adopts amendments to sec. sec.259.2-259.4, 259.6 and 259.7, concerning board on aging policies and procedures, without changes to the proposed text as published in the June 4, 1991, issue of the Texas Register (16 TexReg 302). These amendments align the board's responsibilities and activities with the department's enabling legislation. These sections will function to provide explicit guidance to the board regarding their prerogatives, duties, responsibilities, and authority. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. 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 17, 1991. TRD-9112969 Polly Sowell Executive Director Texas Department on Aging Effective date: November 8, 1991 Proposal publication date: June 4, 1991 For further information, please call: (512) 444-2727 Chapter 261. Citizen's Advisory Council on Aging Policies and Procedures 40 TAC sec.sec.261.1, 261.3, 261.5, 261.9, 261.13 The Texas Department on Aging adopts amendments to sec. sec.261.1, 261.3, 261.5, 261.9, and 261.13, concerning citizen's advisory council on aging policies and procedures, without changes to the proposed text as published in the June 10, 1991, issue of the Texas Register (16 TexReg 3347). These amendments change the advisory council's selection procedures, terms of office, and the duties of the council. These sections will function to provide advisory council members with specific instruction regarding composition numbers, terms of office, and their duties. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. 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 16, 1991. TRD-9112967 Polly Sowell Executive Director Texas Department on Aging Effective date: November 8, 1991 Proposal publication date: June 10, 1991 For further information, please call: (512) 444-2727