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 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 172. Rural Economic Development Fund 10 TAC sec.sec.172.1-172.4, 172.6, 172.9, 172.10 The Texas Department of Commerce adopts amendments to sec. sec.172.1-172.4, 172.6, 172.9, and 172.10, concerning the administration of the rural economic development fund, without changes to the proposed text as published in the September 25, 1992, issue of the Texas Register (17 TexReg 6589). These changes reflect legislative changes to the Rural Economic Development Fund Program. The rule changes will work to expand the Rural Economic Development Fund Program to serve more eligible participants, change the loan review process to allow for more timely response to applicants, and encourage minority applicants to participate in the program. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.481.021(a)(1) , which provides the Texas Department of Commerce with the authority to promulgate rules necessary to administer the Rural Economic Development Fund 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 November 4, 1992. TRD-9214971 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: November 27, 1992 Proposal publication date: September 25, 1992 For further information, please call: (512) 320-9666 Chapter 182. Small Business Assistance Subchapter B. Disadvantaged Businesses 10 TAC sec.sec.182.50-182.56 The Texas Department of Commerce adopts the repeal of sec. sec.182.50-182.56, concerning the certification of disadvantaged businesses and the development of a disadvantaged business directory, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6525). The repeals are justified because the agency promulgated new rules to govern the Historically Disadvantaged Business Program. The repeals are adopted under the Texas Government Code, sec.481.021, which provides Commerce with the authority to adopt and enforce necessary rules. 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 November 4, 1992. TRD-9214970 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: November 27, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 320-9666 Subchapter B. Historically Underutilized Businesses 10 TAC sec.sec.182.50-182.57 The Texas Department of Commerce adopts new sec.sec.182.50-182.57, concerning the process by which the state certifies historically underutilized businesses (women and minority owned businesses). Section 182.50 is adopted with changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6525). Sections 182.51-182.57 are adopted without changes and will not be republished. Texas Civil Statutes, Article 601b, sec.1.03, require Commerce to certify historically underutilized businesses, sometimes called disadvantaged businesses, and to create a directory of these businesses for use by state agencies in the procurement of state purchases and public works contracts. The legislature delegated the same duties that were given to Commerce to the General Services Commission by rider in the Appropriations Act. These new rules reflect the culmination of and agreement among the state agencies involved in the certification of historically underutilized businesses. The section will function to establish rules for the self certification of historically underutilized businesses. Several comments were received. One private company, Corrigan Consulting, Inc., of Seabrook, complained that the self certification process proposed in the rules would allow for fraud, and suggested that the state spend the time to investigate all applicants and their abilities to ensure true compliance. The company also encouraged support for a set-aside program and urged that special accommodations be given to HUBs so that they would not have to endure the large cost of accounting and invoicing requirements. Finally, this company suggested that only those companies with a net worth below a certain amount be certified as HUBs. The agency rejected these proposals. As explained in the preamble to the rules, the burdens of a more elaborate system of certification, which would put HUBs and the state to great expense and time, would not outweigh the little benefit to be derived by HUBs. State agencies, for the most part, will still be bound by competitive bidding, with the lowest responsible bidder prevailing. Other recommendations by Corrigan, Inc. would require legislative action and, thus, cannot be accommodated by rule. Several state agencies offered comments on the new rules. The Texas Department of Transportation (TxDOT) submitted comments complaining that the proposed rules do not define "contract" or limit the scope of the rules to Article 601b contracts. The agency explained that TxDOT is required by statute to have its own disadvantaged business certification program for the awarding of all state or federally funded contracts, and that its certification program must approximate the federal process. The agency agreed with this position and made appropriate changes to sec.182.50(c) to accommodate TxDOT's concerns. The Texas Department of Criminal Justice and the University of Texas System submitted comments relating to how they would revise sec.182.57, which deals with state agency reporting requirements. Their suggested changes included: emphasizing the responsibility of each state agency to report their own HUB activity, reporting by object codes, and establishing a measure for HUB subcontracts and a system for documentation and verification for HUB subcontractors. After some discussion with Commerce and the General Services Commission, these agencies determined that it would be best to work through these issues without altering the proposed rules. The new sections are adopted under the Texas Government Code, Chapter 481, which gives the Texas Department of Commerce the authority to promulgate rules. Also, the rules are authorized under Article 601b, sec.sec.1.02-1.04 and House Bill 1, 72nd Legislature, Article V, sec.106, which provides the Department of Commerce and the General Services Commission with the authority to prescribe the process by which businesses receive certification as historically underutilized businesses. sec.182.50. General Provisions. (a) Introduction. Pursuant to Texas Civil Statutes, Article 601b, sec.sec.1.02-1.04; the General Appropriations Act for the 1991-1993 biennium, sec.106; a memorandum of understanding between the Texas Department of Commerce and the General Services Commission; and the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, the Texas Department of Commerce in partnership with the General Services Commission prescribe the following sections regarding the process by which businesses receive certification as historically underutilized businesses, also known as disadvantaged businesses, in the State of Texas. (b) Purpose. It is the purpose of the historically underutilized business program to identify as many historically underutilized businesses as possible to increase contracting and business opportunities for such businesses in state government. The new sections provide streamlined application procedures for certification as a historically underutilized business, provide information on the directory of certified historically underutilized businesses, and explain the reporting requirements on the amount of usage of certified historically underutilized businesses by state agencies. (c) Scope. The self certification process set forth in these rules shall apply to all state purchases and public works contracts for which state appropriations are used. Provided, however, these rules shall not apply to contracts let by state agencies which have a specific statutory mandate to establish a certification program for historically underutilized or disadvantaged businesses which would conflict with the certification process set forth in this chapter. In those circumstances, the commission will automatically certify under this chapter those businesses certified by such state agencies. (d) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Applicant-A corporation, sole-proprietorship, partnership, or joint venture that applies to the commission as a historically underutilized or disadvantaged business. (2) Application-A written request for certification as a historically underutilized or disadvantaged business in the required format submitted to the commission. (3) Commission-General Services Commission. (4) Department-Texas Department of Commerce. (5) Directory-The Texas Certified Historically Underutilized Business Directory. (6) Disadvantaged business-A historically underutilized business as defined in paragraph (7) of this subsection. (7) Historically underutilized (also known as disadvantaged) business- (A) a corporation formed for the purpose of making a profit in which at least 51% of all classes of the shares of stock or other equitable securities are owned by one or more persons who have been historically underutilized (socially disadvantaged) because of their identification as members of certain groups, including Black Americans, Hispanic Americans, women, Asian Pacific Americans, and American Indians, who have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control; (B) a sole proprietorship for the purpose of making a profit that is 100% owned, operated, and controlled by a person described by subparagraph (A) of this paragraph; (C) a partnership for the purpose of making a profit in which 51% of the assets and interest in the partnership is owned by one or more persons described by subparagraph (A) of this paragraph. Those persons must have a proportionate interest in the control, operation, and management of the partnership's affairs; (D) a joint venture in which each entity in the joint venture is a historically underutilized (disadvantaged) business under this paragraph; or (E) a supplier contract between a historically underutilized (disadvantaged) business under this subsection and a prime contractor under which the historically underutilized (disadvantaged) business is directly involved in the manufacture of distribution of the supplies or materials or otherwise warehouses and ships the supplies. (8) State-State of Texas. (9) State agency-An agency or institution of state government that receives an appropriation for the 1992-1993 biennium. 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 November 4, 1992. TRD-9214972 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: November 27, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 320-9666 TITLE 22. EXAMINING BOARDS Part II. State Board of Barber Examiners Chapter 51. Practice and Procedure Barber Colleges, Schools, and Students 22 TAC sec.51.16 The State Board of Barber Examiners adopts an amendment to sec.51.16, concerning equipment for students, without changes to the proposed text as published in the August 25, 1992, issue of the Texas Register (17 TexReg 5781). The amendment specifies a time period concerning the issuance of textbooks and tools for students and updates required and optional equipment. Students will have the necessary equipment to provide advertised services. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8407a, sec.28(a) , which provide the State Board of Barber Examiners with the authority to adopt rules and regulations for the transaction of business. 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 November 6, 1992. TRD-9215022 Jo King McCrorey Executive Director State Board of Barber Examiners Effective date: November 30, 1992 Proposal publication date: August 25, 1992 For further information, please call: (512) 835-2040 Informal Hearing Disposition 22 TAC sec.51.131 The State Board of Barber Examiners adopts new sec.51.131, concerning hearing dispositions, without changes to the proposed text as published in the August 25, 1992, issue of the Texas Register (17 TexReg 5781). The new section specifies informal board hearing procedures as required by Senate Bill 430. Individuals will have the opportunity to show compliance of the law. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 8407a, sec.28(a), which provide the State Board of Barber Examiners with the authority to adopt rules and regulations for the transaction of business. 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 November 6, 1992. TRD-9215023 Jo King McCrorey Executive Director State Board of Barber Examiners Effective date: November 30, 1992 Proposal publication date: August 25, 1992 For further information, please call: (512) 835-2040 Part XXV. Structural Pest Control Board Chapter 599. Treatment 22 TAC sec.599.11 The Structural Pest Control Board adopts an amendment to sec.599.11 concerning structural fumigation requirements, with changes to the proposed text as published in the September 25, 1992, issue of the Texas Register (17 TexReg 6591). The amendment is adopted in response to changes in the labels for use of chemicals registered for fumigation. The change is adopted in response to comments that the proposed regulation was unclear about how long the guard must be present. The amendment decreases the amount of time a guard must be present while increasing the total amount of time that the structure must be secured. The section also requires the local authorities with jurisdiction over hazardous materials to receive primary notification. Consumers Union was opposed to the change making fire departments, the primary receiver of notification. Consumers Union also proposed the amendment clarifying the length of time the guard must be posted which was adopted. Chemical Connection opposed both changes. Tex Pest Control Association and pest control companies generally supported the changes. Commenting in favor of the amendment was the Texas Pest Control Association. Commenting against the amendment was the Chemical Connection Consumers Union. The changes in notification clarifies who must be notified in instances where fire, police, and health departments are not all available or ascertainable allowing for more rapid notification. The shortening of guard posting is counterbalance by the overall lengthening of the time the structure must be secured. The amendment is adopted under Texas Civil Statutes, Article 135b-6, which provide the Structural Pest Control Board with the authority to regulate persons engaged in performing structural pest control services. sec.599.11. Structural Fumigation Requirements. (a)-(c) (No change.) (d) Local fire authorities or, when not available, local police authorities, shall be notified prior to introduction of the fumigant and at the time the structure is released for occupancy. (e)-(h) (No change.) (i) The licensee shall also post a person or persons at the location from the time the fumigant is introduced until all tarpaulins and seals are removed and the label concentration for Aeration is reached. The licensee shall then secure all entrances to the structure in such a manner as to prevent entry by anyone other than the licensee or an agent of the licensee. The structure shall remain secured until the concentration indicated by the fumigant label for release for occupancy is reached. (j) For the purpose of maintaining proper safety and establishing responsibility in handling the dangerous gases used in fumigation, the licensee shall compile and retain for a period of at least two years a report for each fumigation job and/or treatment. The report for each fumigation job or treatment shall contain the following information: (1)-(13) (No change.) (14) the date and hour fire or police authorities were notified. 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 November 4, 1992. TRD-9214947 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: November 27, 1992 Proposal publication date: September 25, 1992 For further information, please call: (512) 835-4066 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 7. Corporate and Financial Regulation Subchapter A. Examination and Corporate Custodian and Tax 28 TAC sec.7.31 The State Board of Insurance of the Texas Department of Insurance adopts new sec.7.31, without changes to the proposed text as published in the July 28, 1992, issue of the Texas Register (17 TexReg 5261). The new section concerns the annual statement instructions used by farm mutual insurance companies regarding the filing of an actuarial opinion. New sec.7.31 is necessary to implement amendments to the Insurance Code, Article 1. 11, occasioned by passage of House Bill 2, 72nd Legislature, effective September 1, 1991. The new section requires farm mutual insurance companies whose direct and assumed premiums are in excess of $750,000 during a calendar year to file an actuarial opinion. Those farm mutual insurance companies with less than $750, 000 in direct and assumed premiums are not required to file an actuarial opinion unless requested to do so by the commissioner. No comments were received regarding adoption of the new section. The new section is adopted under the Insurance Code, Articles 1.11 and 1.04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. The Insurance Code, Article 1.11, requires an actuarial opinion to be filed as part of the annual statement. Article 1.04(b) authorizes the State Board of Insurance to determine rules in accordance with the laws of this state for uniform application. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures, and prescribe the procedures for adoption of rules of a state administrative agency. The new section affects the filing of an actuarial opinion with the annual statement by farm mutual insurers under the Insurance Code, Article 1.11. 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 November 9, 1992. TRD-9215018 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: November 30, 1992 Proposal publication date: July 28, 1992 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste Subchapter A. Industrial Solid Waste and Municipal Hazardous Waste Management in General 31 TAC sec.sec.335.1, 335.6, 335.9, 335.10 The Texas Water Commission adopts amendments to sec.sec.335.1, 335.6, 335.9, and 335.10, concerning industrial solid waste and municipal hazardous waste management in general, the repeal of sec.335.62, concerning standards applicable to generators of hazardous waste, new sec.335.62, and new sec.sec.335. 501- 335.515, concerning waste classification. Sections 335.6, 335.501-335.503, 335.505-335.515 as well as Appendix 1, 2, 3, and 4 are adopted with changes to the proposed text as published as in the August 18, 1992, issue of the Texas Register (17 TexReg 5630). Sections 335.1, 335.9, 335.10, 335.62, and 335.504 are adopted without changes and will not be republished. The adopted sections would establish criteria by which a generator could classify and code his own wastes. Comments received during the 30-day comment period following publication and at a public hearing were overwhelmingly supportive of the proposal. Based upon an evaluation of the comments received, several minor changes were made to the proposed rules. The following is a discussion of the comments received on and changes made to the August 18, 1992 proposal. Commenters on sec.335.1 included ASARCO Incorporated; Tischler/Kocurek; Texas Chemical Council; and Exxon Company, USA. Concerning sec.335.1(A)(ii) of this title (relating to Definitions), several comments were received regarding the language relating to fill material. These comments related to the commission limiting the exemption for these types of materials as provided by the legislature. One commenter suggested that by adding the qualifier "uncontaminated" in the exemption, the commission would imply that uncontaminated soil is a solid waste if it does not fit the fill material definition. The commission disagrees with this comment since this exclusion only applies to materials which first meet the definition of solid waste. As provided in the definition, soil, dirt, etc. are not solid wastes unless they are discarded materials. This qualifier is intended to protect generators who could mistakenly believe that fill material is exempt regardless of any contaminants contained in the material. In addition, the clarification language for this exemption does not limit the statutory exemption, nor does it make uncontaminated soil, dirt, etc. regulated as a Class 3 waste. The commission is not attempting to regulate uncontaminated soil, rocks, dirt, or other natural materials as wastes and does not consider these as waste materials. In regards to sec.335.1(A) "solid waste", comments received indicated that there is apparently some confusion over the status of materials exempt under sec.335.1(A) "solid waste" and a Class 3 waste designation. Any material which qualifies for this exemption is not a waste and therefore need not be classified. Wastes which do not qualify under this exemption must be classified. Wastes with a Class 3 designation require only minor regulatory oversight, but are still considered wastes. The commission periodically receives inquiries as to what materials are exempted under the statutory language. Consistent with the spirit of the self-classification rules, the additional language added in today's rule simply provides clarification and guidance to the regulated community on the commission's interpretation of the statutory exemption. In regards to sec.335.1 (A) "solid waste", some commenters also stated that by adding the deed recordation requirement for land which is sold prior to construction of surface improvements the commission was going beyond the statutory definition of solid waste and was involved in regulating real estate transactions rather than waste handling. The language was added under the commission's general powers under the Texas Water Code, Chapter 26, sec.5.103, and its necessary and convenient powers under the Texas Solid Waste Disposal Act, sec.361.017, to carry out its waste management responsibilities. The fill material exemption only applies where the object of the fill is to make the land suitable for the construction of surface improvements. This language insures that the purchaser of property where fill material has been deposited is on notice that this material is on site and that surface improvements must be constructed in order to qualify for the exemption. It should also be noted that "surface improvements" may be broadly interpreted to include many types of fill material usages such as structure foundation, roads, soil erosion control, soil stabilization, flood protection, etc. Commenters on sec.335.5 of this title (relating to Deed Recordation) included Tyler Pipe. Several commenters expressed concern over the deed recordation requirements for nonhazardous waste recycling activities involving placement upon the ground. The commission notes these concerns; however, the new self classification rules address the classification of wastes, not their management. Changes to the recycling requirements for the various classes of industrial waste would need to be addressed in a separate rule making process. Commenters on sec.335.6 of this title (relating to Notification Requirements) included ASARCO Incorporated; Texas Chemical Council; Exxon Company, USA; and Texas Mid-Continent Oil & Gas Association. Two commenters suggested that the commission define "de minimis" levels of industrial solid waste and exempt this category of waste from the reporting and notification requirements under these regulations. Defining "de minimis" amounts of waste is not within the scope of these rules and may not be in the best interest of protection of the environment. A few commenters suggested that an annual update to a Notice of Registration would be adequate. A survey, which the commission used to base the changes to the sec.335.6 Notification Requirements, indicated that more frequent updates were required to assure protection of human health and the environment. Results of the survey and the survey itself are available in the Central Files of the Industrial and Hazardous Waste Division which are located at the commission. The survey results and input from the Notification Advisory Committee were also used in the formation of the new draft Notice of Registration document. This information, along with further input from the Notification Advisory Committee, will be the basis for the final Notice of Registration document which the commission plans to begin using upon promulgation of these rules. An effort will be made by the commission to contact generators and supply them with these forms upon their finalization. In regard to sec.335.6(b), a commenter requested that storage, processing, and disposal facilities be allowed 90 days in which to notify the commission of changes in waste management activities as is provided under sec.335.6(c). The commenter indicated that this amount of time is required because many storage, processing, and disposal facilities are also generators who must reclassify their wastes. These changes will be incorporated in the final rule. In regard to sec.335. 6(b), a commenter requested clarification on what was meant by the terms "immediate" and "change" in the provision requiring a person who stores, processes, or disposes of municipal hazardous waste or industrial waste to "immediately" provide written notice of any "changes" concerning waste composition, waste management methods, facility engineering plans and specifications, and the site's geology. In this context, the commission views the term "immediate" to mean at the time of change. A change requiring notification includes any change other than those which do not significantly alter in any way the meaning, value, intent, composition, plans, designs, specifications, or geology of the applicable facility. In regard to sec.335.6(c), one commenter wanted to change the 90-day notification requirement to 30 days to facilitate compliance. The 90-day period has been retained since the emphasis is on immediate documentation on site and subsequent timely notification of the commission. The immediate documentation provision allows the commission to monitor compliance. In regards to sec.335.6(c), a suggestion was made to delete the requirement that generators submit information on the composition of their wastes. This information is considered pertinent, key information for the commission at this time. This information will also be used in initial screenings for auditing purposes. Comments on sec.335.502 of this title (relating to Conversion to New Waste Notification and Classification System) included ASARCO Incorporated; Brown & Root, Incorporated; Texas Chemical Council; McGinnis, Lochridge & Kilgore; Exxon Company, USA; Exxon Chemical Americas; Texas Mid-Continent Oil & Gas Association; and Texas Eastman Division, Eastman Chemical Company. Several commenters expressed concern over the conversion deadlines and time frames for complying with the new rule. Of main concern seemed to be the relatively short period of time between adoption of the rule, the date self-classification criteria would be utilized by regulated community, and updating generators' notices of waste management activities. Concerns also included the possibility that the commission may not have ample time to update its reporting and recordkeeping systems. Since the adoption of these sections are encroaching on the time available for compliance by the regulated community, the commission will extend the dates as follows: Effective Date: January 1, 1993 (Newly generated waste must be classified in accordance with the self classification rules). Update to Notices: July 1, 1994 (On or before this date, generators will provide the commission notification information on both hazardous and nonhazardous wastes which they began generating prior to the January 1, 1993 implementation date. Note: By January 1, 1995, all waste streams must utilize the 8-digit coding system of the self classification rules). Commission Notice: October 1, 1994 (Unchanged). Full Implementation: January 1, 1995 (Unchanged) (Note: Until this date, generators have the option of utilizing the classification and waste code issued to their wastes prior to January 1, 1993 or reclassifying and recording those wastes. After this date, all wastes must be managed in accordance with the new classification system. Further discussion of this issue is discussed in the next few paragraphs). The major changes to this section involve the addition of a specific effective date for the rule and a change in the deadline for updating hazardous waste stream notifications. The January 1, 1993 implementation date will allow the regulated community opportunity to prepare for changes associated with the adoption of the new sections. Generators are not required to update their hazardous waste stream notifications by January 1, 1993, but instead have until July 1, 1994, which is the same deadline for nonhazardous notification updates. The commission had originally intended to use this hazardous waste data to submit waste summary data to the Environmental Protection Agency (EPA); however, computer systems anticipated to facilitate this operation require additional development time. Several commenters expressed concern over the use of the 6-digit waste code versus the 8-digit waste code for wastes which they generated prior to January 1, 1993. In explanation of the use of the new waste codes, a generator may begin to use the new waste code immediately upon reclassifying a waste. However, if the generator ships a waste using the new 8-digit waste code, the generator must continue using the new 8-digit waste code and may not ship using the old 6-digit waste code thereafter. Also, if a generator begins a calendar year using the 6- digit waste code, then reclassifies a waste and begins shipping under the new 8- digit waste code, the generator must report the activities for both waste codes in any reports required by the commission for that generator for that calendar year. (For example, if a generator shipped 60 pounds of a particular waste under the 6-digit code and 100 pounds of the same waste under the 8-digit code, he would report the shipment of the 60 pounds under the 6-digit code and the shipment of the 100 pounds under the 8-digit code.) The commission is in the process of finalizing a computer tracking system and forms which will allow the tracking of both the 6-digit and 8-digit waste code. A few commenters suggested that the commission assign new waste codes to all hazardous waste streams rather than requiring the generator to reevaluate his or her hazardous waste streams. In accordance with these sections, generators must reevaluate each of their own waste streams. The generator is to do the reevaluation because this reevaluation may lead to multiple new 8-digit waste codes replacing an old 6-digit waste code and the generator will be supplying the unique 4-digit sequence numbers for the waste codes. (This increase in waste codes may be explained by the limited number of waste codes (and corresponding descriptors) under the old notification system which may have caused differing wastes to receive the same waste code number.) Also, the commission may have insufficient information to provide accurate form codes for each of the generator's hazardous wastes. In order to provide generators some relief in the reevaluation and renotification process, the commission has moved the deadline for updating all hazardous waste information to July 1, 1994. However, since the commission will require certain information it does not currently have on hazardous waste streams prior to July 1, 1994 for the EPA required Biennial Report, it will be collecting additional data by means other than the hazardous waste notification updating process. One commenter suggested that few if any waste classifications would change under the new rules; therefore, wastes need not be reevaluated for classification purposes. The commenter also suggested that if the commission felt reclassification was warranted, the generator be allowed to utilize information already obtained under the requirements of SARA Title III, involving "waste characteristics, raw materials components, and discharges from industrial processes" in lieu of "comprehensive data on raw materials, process, laboratory testing." Due to the more defined nature of the classification criteria, the commission feels that there may be more than just a few changes in waste classifications. Because of this and the need for uniformity, the commission feels that reevaluation is warranted. The commission has no objections to allowing generators to utilize information obtained under the requirements of SARA Title III when performing their classification evaluations. The commission would note however, that the generator is responsible for determining if any additional information would be required to properly evaluate a waste. Depending upon the type of waste and the information obtained under SARA Title III, additional information, including, but not limited to, analytical testing, may or may not be required. As a note, the commission would like to state that a generator always has the option of classifying a nonhazardous waste as a Class 1 waste without evaluating it for the other nonhazardous classifications criteria. Several commenters requested information on and had suggestions for the forms to be utilized in providing the commission original and updated waste generation notifications. Several commenters suggested that these forms be evaluated by the Notification Advisory Committee. The notification form format, which is in draft stage, has been evaluated by interested members of the Notification Advisory Committee. Although the information is in draft form, it will not be available far in advance of the publication date of the new rules. It is expected that this will not affect most generators since generators will not need to update their notifications of existing waste streams until January 1, 1994. Generators of new wastes will be required to begin use of the new form on January 1, 1993. Concerning sec.335.502(b)(3), commenters questioned the meaning of "electronic means" for data submittal. This language will be changed to "electronic data transmission" which does not mean transmittal by voice over the telephone. The commission, with the aid of members of the regulated community, is working on reporting formats which will enable reports to be submitted by computer. The commission hopes that in the future a generator, using a standard personal computer with software or programming provided by the commission, will be able to transmit required information using a modem (telephone connection between the commission computer and the personal computer of the report sender). Although this electronic reporting mechanism is briefly mentioned in the proposed rules, it is not yet available. Mention of "electronic data transmission" is worded such that the rules will encompass this possibility without requiring amendment or addendum of the rule when electronic means is commonly available. Concerning sec.335.502(f), the commission received comments questioning the rationale behind allowing the new waste classification and coding rules to take effect if the commission fails to provide public notice concerning the impact of the rules by October 1, 1994 and did not undertake rule writing to delay the effective date of the rules. This provision was intended to allow the commission the time necessary to effectively evaluate capacity in the state. Without this provision, there is the threat that generators will be required to revert back to the old classification system and waste code numbers if an unforeseen circumstance delays the commission's evaluation of the impact of these rules on disposal capacity in the state. The Notification Advisory Committee agreed that the commission needed a safety net in the case that insufficient information delayed the final public notice required by these sections. Regarding sec.335.502(g), a concern was expressed regarding compliance dates after a "rule amendment or other change in classification criteria which caused the reclassification" of the waste. The commenter was concerned that any change in classification had to be made through the rule making process; therefore, there should be no "other change." The language in the proposed sections was oriented toward the reason for the change in the Texas rule. The change could be the result of a federal rule change or "other change" which prompted a Texas classification rule change. However, to avoid this confusion this subsection has been rewritten. Commenters on sec.335.503 of this title (relating to Waste Classification and Waste Coding Required) included Texas Instruments; ASARCO Incorporated; Red Star Yeast & Products; Kohler Company; Tischler/Kocurek; Texas Chemical Council; Exxon Company, USA; Exxon Chemical Americas; Safety-Kleen Corporation; General Dynamics Fort Worth Division; and Texas Eastman Division, Eastman Chemical Company. Concerning sec.335.503, the commission received a general comment that the state should begin using separate manifest systems for hazardous and nonhazardous wastes. Currently, the EPA is sponsoring regulation negotiations on the uniform hazardous waste manifest rules, with a proposed date of June 1, 1993 for having draft regulations and form (s) published. With this knowledge of impending modifications to the current manifest system, the commission will postpone spending its resources negotiating changes to the current form or system. A general concern expressed by many commenters was a perception that all nonhazardous waste streams would require subsequent sampling similar to that required by the change from Extraction Procedure Toxicity Characteristic (EP Tox) to Toxicity Characteristic Leaching Procedure (TCLP) as the test method to define what is a hazardous waste. One commenter stated that "this change required widespread and expensive sampling and testing efforts on the part of industry to acquire the TCLP data required by EPA." The commission contends that most, if not all, of that toxicity data may now be used in conjunction with process knowledge to classify a waste stream. Duplication of effort is not likely to be necessary if such past information is available. The commission will not certify that all past sample analysis and testing will be adequate since each generator must determine if past analytical data still characterizes the current waste stream. Concerning sec.335.503(a), one commenter put forth the following question. "A waste is likely to have a different classification following dilution, processing, or mixing. If a generator is required to classify the waste before and after these steps, how would this waste be identified on the Notice of Registration (NOR)? As it stands now, a waste has only a single classification on the NOR." The requirement that a generator provide notification information for each waste generated has not changed. Under the old notification system, the generator provided the notification information to the commission. The commission then evaluated the information provided in the notification and assigned the waste classifications and wastes codes to the wastes. The waste codes were then added to the NOR. Due to the limited number of waste descriptors associated with each waste code, under certain circumstances, differing wastes could have received the same waste code number, making it appear that the differing wastes were actually considered one waste by the commission. The new system will allow for the identification of the various wastes on the NOR. Prior to the enactment of these rules, this information was obtained through a review of the commission files on a particular generator. Also, requirement that notification information be provided on each waste generated provides information on the overall waste management (including generation) activities of a site. If a generator was only to provide information on the wastes which were ready for final disposition, an incomplete picture of the site's waste management activities would exist. This lack of information and incompleteness increases the possibility that mismanagement could occur. sec.In regard to sec.335.503(a), many commenters were concerned that they would be required to provide additional notifications under the new self classification rule. The requirement that industrial generators provide it notification information on all wastes generated has not changed. Therefore, if generators have properly notified the commission of all their wastes under the previous waste classification system, they would provide the same number of notifications under the new waste classification system. Some commenters requested guidance on when a waste stream had changed sufficiently enough to warrant identification as a new waste. If a waste stream is treated (including processing, neutralization, dewatering, stabilization....) the characteristics of the waste have been altered such that a new waste has been formed. Any time a waste's physical state has been altered, a new waste has been formed. Any time the composition of a particular waste stream changes, it is potentially a new waste particularly if its waste classification changes. In certain waste generation processes, the composition of waste streams may vary due to a variety of reasons. The commission acknowledges this fact and notes that slight changes in composition, unless these impact the waste's classification or form code, do not require notification of an additional waste. For example, a generator whose paint waste sludge varies in its toluene and acetone concentration may not need to provide more than one notification on the sludge, unless its classification changes or the information submitted in the original notification changes. In many instances, this variance in composition can be addressed in the original notification submittal or subsequent notifications on the same waste. The commission also notes that significant compositional changes in a generating process's waste stream may not impact the waste's classification or form code; however, due to the significant change in composition, a new waste notification is warranted. For specific guidance on specific waste streams, it is suggested that the generator contact the commission. The commission would like to reiterate that the management of wastes may result in the formation of a new waste or wastes. Section 335.503(a)(1) has been reworded to indicate that all solid waste must be classified at the time of generation. Also, several commenters expressed concerns over the word "dilution" in the last sentence. These sections in no way allows dilution of waste to obtain a lower classification. In order to avoid any confusion on this issue, the word "dilution" has been removed from the last sentence of sec.335.503(a)(1). Several commenters felt that the commission was potentially being overly restrictive in its prohibition of dilution to obtain a lower classification since EPA, in its land disposal restriction program, allows for the dilution of certain hazardous wastes involved in certain waste management activities (i. e., if a treated waste is subject to a Clean Water Act discharge permit and if a waste is to be disposed of by injection well disposal). Commenters also noted that EPA allows certain type of hazardous waste treatment activities to occur without a permit. The dilution prohibition prohibits the addition of materials to a waste in order to reduce the characteristics of the waste to such a level that it would no longer be considered a Class 1 waste just to avoid classification as a Class 1 waste. The commission did not restrict the management of the waste. During certain treatment processes, the total volume of the waste may increase and the waste characteristics could change. Entities which treat waste should be aware that the treatment of a waste generally results in the formation of a new waste or wastes. For example, the stabilization of sludge may require the addition of stabilization compounds. The addition of the stabilization compounds may result in a waste which has characteristics and a classification differing from the original sludge waste. The generator producing the unstabilized sludge has the obligation to classify it and to provide the commission notification information on it. The generator producing the stabilized sludge has the obligation to classify it and to provide the commission notification information on it. In the situation where a generator is stabilizing his own waste sludge, he would classify and provide notification information on both the unstabilized sludge (the original waste) and the stabilized sludge (waste resulting from treatment). Section 335.503(a)(4)(A) and sec.335.503(a)(4)(B) contained incorrect cotatopms and have been corrected. Regarding sec.335.503(b), several commenters indicated that, for large industrial generators, the 7-digit waste code may not provide a sufficient number of waste codes (999) due to the reevaluation of current waste streams. Commenters indicated that large industrial generators may require 4-digit sequence numbers (9999) within the proposed lifetime of their facilities. The waste code has been modified to include a 4-digit sequence number, rather than a 3-digit number. Section 335.503(b) has been revised to indicate that assistance on assigning waste code numbers, not just waste form numbers, is available from the commission. Also, the phone number for the commission has been removed since the commission is in the process of moving and the number will be incorrect shortly after the anticipated rule publication. In response to several comments, sec.335.503(b) was expanded to clarify and explain the new waste coding system. In accordance with the rules, all industrial waste and municipal hazardous waste generated, stored, processed, transported, or disposed of in the state after the effective date of the rule shall be coded with an 8-digit waste code number which shall include a four-digit waste sequence number followed by a three-digit form code followed by a one-digit classification code (either H, 1, 2, or 3). A sequence number (the first four positions in the waste code) is a numeric string (unless otherwise indicated in these sections) used as an internal numbering system determined by each generator. The sequence number of a waste may range from 0001 to 9999. Form codes (positions 5 through 7 in the waste code) are provided in Appendix 3 of Subchapter R. A form code is a numeric code which is linked to a general description of the form of a waste (i.e., organic liquid, inorganic solid, organic sludge, etc.). Most of the codes in Appendix 3 are EPA defined form codes. Form codes which may only be used for nonhazardous wastes are indicated as such in the waste description, or may be distinguished as such by commission staff and through training. The classification code (position 8) is the final character in the 8-digit string, and it will indicate the classification of the waste (i.e., H for hazardous, 1 for Class 1, 2 for Class 2, or 3 for Class 3). Procedures for assigning waste code numbers are listed following and are available from the commission at the address listed in Appendix 2 of this subchapter. A sequence number or code is an arbitrary tracking identifier which is placed in the first four digits of the waste code. In-state generators will assign a unique 4-digit sequence number to each individual waste. These sequence numbers will range from 0001 to 9999. They need not be assigned in sequential order. An in-state registered generator may choose to request the commission assign a sequence number to a specific waste which is not regularly generated by a facility and is being shipped as a one-time shipment rather than adding that waste to the regular sequence numbers on a notice of registration. Sequence numbers provided by the commission may be a combination of alpha and numeric characters. In-state unregistered generators will be provided a 4-digit sequence number by the commission for each regulated waste it generates. Sequence numbers provided by the commission may be a combination of alpha and numeric characters. Generators of wastes resulting from a spill must obtain a sequence number for the spill related wastes from the commission's Emergency Response Section. Out-of-state generators will use the sequence code "OUTS" in the first four digits of the waste code. The resulting waste code would be represented by the 8-digit character string: OUTS + form code + classification code (H, 1, 2, or 3). Municipal Conditionally Exempt Small Quantity Generators will use "CESQ" in the first four digits of the waste code. The resulting waste code would be represented by the 8-digit character string: CESQ + form code + classification code (H, 1, 2, or 3). A facility which receives a waste and consolidates that waste with other like waste (thus not changing the form code of the waste stream or its composition), or stores a waste without treating or changing the form or composition of that waste may ship that waste to a storage, treatment, or disposal facility using "TSDF" in the first four digits sequence position of the waste code. For example, Company A receives, at one location, wastes from the various site locations of Company A. All of the like wastes from all Company A's sites are consolidated and then shipped to a disposal facility in compliance with all applicable storage and transport regulations. When Company A ships the consolidated wastes, the manifest would list the sequence number of that consolidated waste stream as "TSDF." Since the wastes are like wastes, the form codes and classification codes for the wastes from the various sites would be the same and they would be utilized in the shipment of the consolidated wastes. The sequence number "TSDF" will be used by a facility which must transport a waste which it received for storage, processing, or disposal, but which must be shipped to another facility after being handled or consolidated. This does not pertain to wastes which are treated or altered. This "TSDF" designation is only to be used by facilities that store and/or accumulate a quantity of wastes from more than one site for subsequent shipment to a treatment or disposal facility. Using these generic sequence identifiers (OUTS, CESQ, and TSDF) will simplify the process for many industries in the three mentioned categories; however, it also effectively ends the tracking mechanisms of the commission at the shipping facility. In the case of any future potential of being identified as a responsible party in a remediation, the burden to identify the source of such waste will be on the facility using these generic sequence code(s). Concerning sec.335.503(b), a commenter asked the following question: "If you have several sites but all of them do not generate the same number of wastes, can you skip sequence numbers so that the same wastes at different sites will have the same sequence number?" Yes. The generator can assign sequence numbers in any order as long as they are only utilized once. Commenters on sec.335.505 of this title (relating to Class I Waste Determination) included ASARCO Incorporated; Brown & Root, Incorporated; Texas Chemical Council; Exxon Chemical Americas; Exxon Company, USA; and Texas Mid- Continent Oil & Gas Association. Concerning sec.335.505 and sec.335.508, one commenter noted that the preamble for the proposed rules indicated that the criteria for identification of a waste as a Class 1 industrial waste was crafted around health based figures. The values found in Table 1 of Appendix 1 were based on health based values; however, some of the other criteria used for the Class 1 designation are based on factors such as the National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos, the Toxic Substances Control Act (TSCA) for polychlorinated biphenyls, or potential harm to the environment or human health if the waste is mismanaged. Concerning sec.335.505, a commenter noted that some of the maximum leachable concentration values in Table 1 of Appendix 1 have the same values as found in 40 Code of Federal Regulations (CFR), sec.261.24 (listing for leachable toxicity characteristics of hazardous wastes). The commenter expressed concern that since the values found in 40 CFR, sec.261.24 were based on a health risk assessment, if the leachable concentration of a constituent in an industrial solid waste does not exceed the specific health risk based value, then that industrial waste should not pose a threat to human health or the environment and would not require a Class 1 designation. These values were included in the Class 1 criteria because there are some industrial wastes which are excluded from being identified as hazardous waste even if they leach above the maximum leachable concentration listed in 40 CFR, sec.261.24. Examples of excluded wastes include bottom ash, fly ash, drilling fluids, certain chromium containing wastes, buffing dusts from leather tanning and finishing industry, some wastewater treatment sludges, cement kiln dust, and certain wood products containing arsenic. Those wastes with constituent concentrations exceeding or equaling the maximum leachable concentrations found in Table 1 of Appendix 1 and which are not hazardous by virtue of exemption or exclusion would be Class 1 wastes under the provisions of sec.335.505. (If the waste were a hazardous waste under the provisions of 40 CFR, Part 261, then the waste could not be considered for a nonhazardous classification.) If the leachable concentration of a constituent in a particular nonhazardous waste is less than the maximum concentration listed in Table 1 of Appendix 1, then the waste would not be a Class 1 waste based on that concentration for that constituent. However, other constituents or properties could cause the waste to be a Class 1 waste. Section 335.505(1) references to Appendix 1 have been revised to correctly read "Table 1 of Appendix 1." Several commenters expressed concern that each time matrix interferences were to result in a detection limit higher than the Maximum Concentration limit, a demonstration to the executive director would need to be made. The language of the section has been changed to indicate that a demonstration need not be submitted to the executive director every time an achievable practical quantitation limit exceeds the Maximum Concentration limit. However, it is noted that the generator is to maintain documentation of why the practical quantitation limit could not be achieved as well as a description of the measures taken to achieve the lowest achievable practical quantitation limit. This documentation should be in a written format and should be sufficient to demonstrate the claims made by the generator. In regard to sec.335.505(2)(A), several commenters suggested that the rule be revised to eliminate the provision that a waste have a flash point "greater than or equal to 60.0 degrees Celsius (140 degrees Fahrenheit)" before it could be considered a Class 1 waste since it is possible for some wastes with a flash point of less than 60 degrees Celsius to be considered nonhazardous. Another commenter suggested changing the term "ignitable" be changed to "flammable." The reference to 60.0 degrees Celsius is deleted as suggested. However, based upon experience in other program areas, the change in terminology from "ignitable" to "flammable" would add confusion as to what test to perform in order to evaluate the characteristic. Concerning sec.335.505(2)(B), one commenter noted that some of the materials listed in Table 2 of Appendix 1 would be considered listed Resource Conservation and Recovery Act (RCRA) hazardous wastes. If the material is present in a commercial or technical grade and identified 40 CFR, sec.261.33, then the material would be a hazardous waste if discarded. In some cases, the presence of a specific compound or the presence of several of the compounds in a waste could cause the waste to have the properties cited in the 505(2)(B) and yet not be considered a RCRA hazardous waste. In such cases, the waste would be considered Class 1 ignitable under the provisions of sec.335.505(2)(B); however, the mere presence of compound listed in Table 2 of Appendix 1 does not make the waste a Class 1 ignitable waste. The physical characteristics of the waste will be the determining factor in whether or not it is a Class 1 ignitable waste. In regard to sec.335.505(2)(B), several commenters requested clarification on the percentage levels of constituents found in Table 2 of Appendix 1 which would make a waste a Class 1 ignitable waste. The section does not establish acceptable percentage levels as these may vary from waste to waste depending upon the composition of the waste; rather, it provides examples of Class 1 ignitable wastes by way of Table 2 and defines the physical characteristics which would characterize a Class 1 ignitable waste. Also, the section does not limit the types of Class 1 ignitable wastes to those listed in Table 2 of Appendix 1. Language has been added to Table 2 of Appendix 1 to clarify this issue. This section was also changed to indicate only non- hazardous materials are involved. In regard to sec.335.505(3), several commenters suggested that the commission include a provision stating that neutralization was an acceptable means of treating Class 1 wastes to obtain a Class 2 or 3 classification. As noted elsewhere in this preamble, these regulations pertain to the classification of wastes and do not address the treatment of waste other than to note that treatment may result in the generation of a new waste or wastes. Commenters on sec.335.506 of this title (relating to Class 2 Waste Determination) included the Texas Chemical Council. A commenter requested a provision allowing a generator to classify a Class 3 waste as Class 2. The proposed sec.335.506 had no provision to allow a generator to conservatively designate a potential Class 3 waste as Class 2. Section 335.506 has been revised to allow this designation. The requirements for extensive "process knowledge" or waste analysis for Class 3 wastes was expressed as a concern by several commenters. It is by design that the least regulated waste requires the most extensive proof of its lack of substantial risk. The lesser requirements for management of Class 3 wastes also prompted the commission to note that 100% of all Class 3 wastes will be audited. After a generator has accomplished a hazardous waste determination, Class 1 evaluation, and a Class 2 evaluation, that generator may choose to go no further and classify a waste as a Class 2 to circumvent the cost of further required analysis. The commission has no knowledge of this ability to voluntarily classify a waste at a more stringently regulated classification creating a capacity shortage in the Class 2 and Class 3 waste disposal arena. The evaluation of the commission as noted in sec.335.502(e) will assess the impact of this and other hazardous and nonhazardous waste management practices on waste disposal facilities in Texas. Commenters on sec.335.507 of this title (relating to Class 3 Waste Determination) included ASARCO Incorporated; Texas Chemical Council; Exxon Chemical Americas; Exxon Company, USA; Electric Reliability Council of Texas (ERCOT); and Texas Mid-Continent Oil & Gas Association. A commenter recommended deleting the phrase "and poses no threat to human health and/or the environment" from the description of a Class 3 waste. The commenter was concerned that the standard was ambiguous and harsh enough to convince some generators to never risk a Class 3 assignment on waste. The commission chooses to retain this language based on the fact that a Class 3 waste is only subject to minimal regulation and should only be assigned a Class 3 designation if it is in fact not a threat to human health or the environment. Several commenters felt that the requirements for a Class 3 designation were excessive and would be very costly. Since a Class 3 designation would result in minimal regulatory control over the waste, the commission believes that the criteria necessary to achieve a Class 3 designation should be very strict. One commenter requested the commission identify specific wastes as Class 3 wastes. The wastes cited were those associated with construction/demolition activities rather than with industrial production processes. The commenter noted that commercial/institutional facilities may routinely discard these wastes in municipal landfills. The rules allow naturally occurring materials to be designated Class 3 if the constituent which would cause a higher listing can be shown to be naturally occurring at a background level in that material. Man-made materials which contain contaminants in excess of specific maximum levels should be managed in accordance with standards used for other materials containing those constituents. The contaminants may be related to the composition of the material itself or may be due to contamination from industrial processes. In cases where a generator feels a waste classification is unreasonably stringent, a variance may be sought. The provisions of sec.335.514(2) regarding variances were included for this purpose. There are several clean-up operations going on in the state due to exposure of the public to wastes and contaminated soils previously designated as Class 2 or 3. Concerning sec.335.507(4), the term "insoluble" was changed to "essentially insoluble" since this is the definition used in the chapter's definitions. Concerning sec.335.507(4)(A)(i), several commenters expressed concern that criteria for Total Dissolved Solids (TDS) is not referenced in 40 CFR, Part 141 Subparts B or G. The commenters also questioned the rationale for analysis for such constituents as nitrates and nitrites. The commission has corrected the rule to note that TDS can be found in 40 CFR, Part 143. The commission has also corrected the rule to note that when analyzing an extract from the Seven-Day Distilled Water Leachate Test, nitrate and nitrite (along with several other of the Drinking Water Standards) need not be evaluated. This change was felt appropriate because several of the standards were originally derived for the monitoring of public water systems and not the mobility of a waste. A listing of the Drinking Water Standards which are to be evaluated has been added as Table 3 of Appendix 1 for clarification of requirements for a Class 3 designation. Appendix 1 of Table 3 delineates which constituents of the maximum contaminant levels shall be considered by generators rather than directing generators to another federal regulation for the information. Concerning sec.335.507(4)(A)(iii), some commenters objected to using "less than detectable levels for TPH" as a criteria for Class 3. The commenters correctly noted that many types of non-polar hydrocarbons may be responsible for elevated TPH values including asphalt, natural decomposition products from vegetation, etc.. The commission recognizes the limitations and potential errors of the TPH analysis and the wide range of hydrocarbons which can contribute to the measurement. Some of the hydrocarbons would not pose a threat; however, some are known to be toxic or are suspected carcinogens. The test is, however, relatively inexpensive and much less costly than a complete, comprehensive chemical analysis for specific compounds. This is true, especially when the contamination comes from a petroleum product which was produced to meet certain physical specifications rather than to meet a strict chemical composition. The classification variance provisions of sec.335.514 are available to generators who would like to demonstrate that their specific wastes are not appropriately classified. Concerning sec.335.507(4)(A)(ii), (iii) and (iv), some commenters expressed concern about the variability of detection limits as related to test methods and sample matrix. A concern was expressed that, as analytical methodology improves, the detection limit would be a continually smaller number leading to changes in waste classification. The example of detection in the parts per quadrillion (ppq) range was cited. At present, ppq detection limits are applicable only to relatively clean water samples. The commission does acknowledge the possibility of shrinking detection limits. The commission would evaluate a generator's classification based on the probable detection limits attainable at the time the classification was made. A new subparagraph (C) has been added to clarify this point. Concerning sec.335.507(4)(A)(iii), a commenter interpreted the effect of the classification requirements on petroleum contaminated soil as requiring treatment or landfill disposal at municipal or Class 1 nonhazardous landfills. The disposal of hydrocarbon contaminated soils is not in the best interests of the state nor is it consistent with the legislative mandate that landfill disposal is the least desirable option for the management of solid wastes. As landfill disposal costs increase under mandated federal regulations it is predicted that the cost differential for alternative treatment will become less, existing alternative treatment methods will be improved, and additional alternative treatment methodologies will be developed. Some industrial generators could decide to use their hydrocarbon contaminated soils on-site as part of construction projects. Concerning sec.335.507(4)(A)(iv), one commenter noted that although the preamble to the proposed rules indicated that PCB contaminated materials with a PCB concentration of less than 50 mg/kg may be considered for Class 2 or Class 3 designation, the rule as proposed requires that a Class 3 waste not exhibit detectable levels of PCBs. The preamble statement was in error. Wastes containing PCBs which are not subject to regulation under the Toxic Substances Control Act regulations could be designated as Class 2 industrial wastes. In some cases, a spill of a PCB contaminated material not subject to regulation under TSCA could result in material with non-detectible concentrations of PCBs. That material could, if all other requirements were satisfied, be designated a Class 3 waste. A comment was made that sec.335.507(4)(B) was unclear. The language has been clarified in this section. Commenters on sec.335.508 of this title (relating to Classification of Specific Industrial Solid Wastes) included Delnosa, S.A. de C.V.; ASARCO Incorporated; Motorola Incorporated; Red Star Yeast & Products; Brown & Root, Incorporated; 3M Company; Amoco Oil Company; Tischler/Kocurek; Texas Shredders Committee; Texas Chemical Council; McGinnis, Lochridge & Kilgore; Exxon Company, USA; Texas Mid- Continent Oil & Gas Association; and General Dynamics Fort Worth Division. Concerning sec.335.505 and sec.335.508, one commenter questioned the portion of the preamble that stated the criteria for identification of a waste as a Class 1 industrial waste was crafted around health based figures. The values found in Table 1 of Appendix 1 were based on health based values, however, some of the other criteria used for the Class 1 designation are based on factors such as the National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos, the Toxic Substances Control Act (TSCA) for polychlorinated biphenyls, or potential harm to the environment or human health if the waste is mismanaged. Concerning sec.335.505 and sec.335.508, one commenter also noted that EPA considers a mixture of a listed hazardous waste and another waste to be nonhazardous if the listed hazardous waste was solely listed because it exhibited a characteristic of a hazardous waste and the resultant mixture no longer exhibits a characteristic. Regarding sec.335.508, one commenter expressed concern that the commission was being overly rash in that, in comparison to EPA, it did not provide a provision to allow Specific Industrial Solid Wastes to be classified to a lower classification if they did not qualify as a Class 1 waste by any other Class 1 criteria. The commission has not identified any Specific Industrial Solid Wastes by a criteria analogous to EPA's criteria for listing certain hazardous waste solely because they exhibit a hazardous waste characteristic. Therefore, it does not see the relevancy of these comments. If a waste meets the definition of a particular classification, it is classified as such. Section 335.508 was changed to indicate only non-hazardous materials are involved. In regard to sec.335.508(1), a commenter asked how the commission would distinguish between friable and non-friable asbestos. The commission would like to note that the rules identify, as Class 1 waste, nonhazardous Regulated Asbestos Containing Material (RACM) as defined in 40 CFR, Part 61. RACM is defined as friable asbestos material; Category I nonfriable asbestos containing material that has become friable; Category I nonfriable asbestos containing material that has been subjected to sanding, grinding, cutting, or abrading; or Category II nonfriable asbestos containing material that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course or demolition or renovation operations. Friable asbestos material means any material containing more than 1.0% asbestos as determined using the method specified in Appendix A, Subpart F, 40 CFR, Part 763, Section 1 Polarized Light Microscopy, that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure. If the asbestos content is less than 10% as determined by a method other than point counting by polarized light microscopy, verification of the asbestos content must be made by point counting using polarized light microscopy. A Category I nonfriable asbestos containing material means asbestos containing packings, gaskets, resilient floor coverings, and asphalt roofing products containing more than 1.0% asbestos as determined using the method specified in appendix A, Subpart F, 40 CFR, Part 763, Section 1 Polarized Light Microscopy. A Category II nonfriable asbestos containing material means any material, excluding Category I nonfriable asbestos containing material, containing more than 1.0% asbestos as determined using the method specified in Appendix A, Subpart F, 40 CFR, Part 763, Section 1 Polarized Light Microscopy that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure. In regard to sec.335.508(1), one commenter asked if asbestos waste from an office building at an industrial facility was automatically considered a Class 1 waste or could it be considered a Class 2 waste since the actual point of generation is from an office building and not from an industrial process? All wastes from an industrial facility are regulated under the industrial regulation regardless of whether they came from the production process or the office. In determining the classification of the asbestos waste, one would have to first determine if the waste was a hazardous waste. If it was hazardous, it would be considered a Hazardous Waste. If it was not hazardous, then it could automatically be considered a Class 1 waste without further evaluation if the generator so chose. If the asbestos waste was nonhazardous and met the definition of a Regulated Asbestos Containing Material (RACM) as defined in 40 CFR, Part 61, it would be considered a Class 1 waste. If the waste was nonhazardous and was not a RACM yet it could be identified as a Class 1 waste under the Specific Industrial Solid Waste criteria of sec.335.508, it would be considered a Class 1 waste. If the waste was nonhazardous, not a RACM, and not identified as a Class 1 waste under the Specific Industrial Solid Waste criteria of sec.335.508, it would still be considered a Class 1 waste if it met any of the Class 1 waste criteria of sec.335.505. If the asbestos waste was nonhazardous, not a RACM, not identified as a Class 1 waste under the Specific Industrial Solid Waste criteria of sec.335.508, and did not met any of the Class 1 waste criteria of sec.335.505, it would be considered a Class 2 waste, unless the generator decided to classify it as a Class 1 waste. In regard to sec.335.508(2), a commenter questioned whether a container which held a Class 2 waste could be classified as a Class 3 waste after it is sufficiently cleaned to pass the Class 3 requirements. The Notification Advisory Committee had lively discussion on this topic. The outcome of the discussion centered on the fact that the majority of containers are plastic, metal, or cardboard. The commission, in an effort to promote recycling, hesitates giving a blanket Class 3 classification to empty containers. As well, some containers (i.e., metal and cardboard containers) are not nonputrescible in accordance with the Class 3 waste classification requirements. Another factor was the likelihood that many of these containers could end up as container to hold drinking water or as shelters in the poor and border regions of the state if they are not properly manage. Finally, the Notification Advisory Committee agreed that this matter could be satisfied with a variance in some cases. In regard to sec.335.508(2), commenters questioned the necessity to regulate small, empty containers as Class 1 wastes. The commenters argued that small containers would contain minimal amounts of waste residue and would minimally impact the environment. The commenters also noted that most facilities utilize five gallon or greater containers for holding materials whose residues could be considered Hazardous or Class 1 wastes. After discussing the issue with the Notification Advisory Committee, the commission has decided to classify nonhazardous containers which are less than five gallons in size and which are empty such that no more than 2.5 centimeters (one inch) of residue remains on the bottom of the containers or inner liner as Class 2 wastes. Also, aerosol cans, which have been depleted of their inner pressure and contents (except for residues adhering to the can) have been identified as Class 2 wastes. In addition, clarifying language has been added to further define the type of residues referenced in the rule. Also, containers which are sent to a reconditioner for reuse as containers are not considered wastes and are therefore not subject to this classification criteria. On the other hand, containers sent to a metals reclaimer are considered waste and are subject to the classification criteria of this subchapter. Concerning sec.335.508(3)(a), a commenter expressed concern regarding the classification, identification as Plant Production Refuse, and disposal of sorbent materials placed around machinery to collect oil drips or other sorbent materials used to cleanup small oil leaks. These materials are subject to the classification requirements of Chapter 335. It is likely that they would contain an elevated total petroleum hydrocarbon concentration and thus require, if nonhazardous, classification as a Class 1 waste under sec.335.508(5). The wastes could be considered Supplemental Plant Refuse as long as the facility met the requirements for utilizing that designation for those wastes. Instead of landfill disposal of these wastes, generators should consider bioremediation, reuse, and other waste management options. Regarding sec.335.508(3)(a), concern was expressed about the provision that allowed any Class 2 waste to be designated as "plant refuse" as long as the volume of the individual waste did not exceed 20% of the total "plant refuse volume." Commenters were concerned that the proposed rules allowed the volume of the Class 2 wastes to be included with the total volume of "plant refuse." This being the case, eventually a generator could identify all Class 2 waste as "plant refuse." This was not the intent of the rule. The intent was to provide relief for generators, who generated very small quantities of certain Class 2 wastes, from having each of those very small quantity wastes on their Notice of Registration. The commission felt it was not necessary to have these very small quantity wastes identified as separate wastes on the Notice of Registration. Regarding sec.335.508(3)(a), concern was also expressed that under the proposed rule, if all Class 2 waste were identified as "plant refuse," the means of identifying the various Class 2 wastes would be lost. Since the commission intends to audit 10% of all Class 2 wastes, it could potentially end up auditing 10% of the "plant refuse" streams or, because so many stream would be included in the "plant refuse" stream, audit all "plant refuse stream. " Regarding sec.335.508(3)(a), concern was also expressed that the proposed rule discouraged volume reduction of waste in that volume rather than weight was utilized in determining the amount of Class 2 waste which could be designated "plant refuse." Concern was expressed that a generator could, under the proposed rules, fill 10 roll-off boxes with uncrushed, unfolded empty cardboard containers and qualify to have two roll-off bins of Class 2 waste designated as "plant refuse." Concern was expressed that under this scenario, it would be possible for a generator to have all his waste identified as "plant refuse." The intent of the rules was to provide relief for the generator from having very small quantities of Class 2 waste individually identified on his Notice of Registration, not to provide a blanket category for all Class 2 wastes. The commission has provided further clarification on "plant refuse" designations in the rule. Under the rules, the category of "plant refuse" has been subdivided in three categories. They are: "plant production refuse," "plant office refuse" (waste from the office or cafeteria area), and "supplemental plant production refuse." Any Class 2 waste from production, manufacturing, or laboratory operations can be designated as "supplemental plant production refuse" as long as the volume or weight of the individual waste does not exceed 20% of the total "plant production refuse" volume or weight (whichever is the more restrictive). The commission would also like to reiterate that, in order for a material to be considered for the "supplemental plant production refuse" designation, it must first be classified as a Class 2 waste. If it is not a Class 2 waste, it can not be designated as "supplemental plant production refuse." Several changes were made in sec.335.508(5) to clarify the meaning of "materials containing petroleum hydrocarbons," and to clarify grammar. In regards to sec.335.508(5), one commenter suggested that any solid material that has become petroleum contaminated and which is being recycled should be exempt from the provision classifying wastes with 1,500 ppm Total Petroleum Hydrocarbons (TPH) as Class 1. The commission would like to note that in developing the self classification rules, the classification criteria was based upon waste characteristics, not upon proposed waste management scenarios. If a waste were to be exempt from a Class 1 designation due to the fact that it was to be recycled, a mechanism for ensuring the management aspect of the waste would need to be developed due to the fact that the regulatory oversight of Class 2 and Class 3 wastes is very limited. The commission felt that this type of mechanism would provide additional complexity to the system without additional protection of human health and the environment. In regards to sec.335.508(5), one commenter asked if, under the proposed rule," would metal shavings or scrap metal being salvaged and recycled become a Class 1 waste if contaminated with greater that 1,500 ppm total petroleum hydrocarbons?" Under the given scenario, if the material were a nonhazardous waste, it would be considered a Class 1 waste. Regarding sec.335.508(5), one commenter stated the following. "The criteria for Total Petroleum Hydrocarbon is inconsistent with the criteria for all other constituents listed in Table 1. Table 1 constituents require analysis following a TCLP extraction for the leachable levels, whereas TPH is a total analysis. Therefore, to be consistent, the TPH analysis should be conducted on the TCLP extract, also." The TCLP extraction fluid is sodium citrate. The TPH extraction fluid specified in TPH Method 418.1 from EPA-600 Methods is freon. The commission cannot modify EPA methods without extensive testing and validation. Most of the hydrocarbons included in TPH will not be soluble in sodium citrate; therefore, if a TPH analysis is attempted on the TCLP extract, it may show up non-detect. Method 418.1 is the only acceptable method for TPH, and the extraction procedure is specifically described for water samples. For soil and waste samples, labs utilize the sample preparation procedures of Method 3550 or 3540 from SW-846, using, again, freon as the solvent. Regarding sec.335.508(5), one commenter stated the following. "TPH contains at least four constituents that are also listed in Table 1. Examples are benzene, toluene, ethylbenzene, and xylenes (BTEX). These constituents are components of gasoline and may contribute a high total value to TPH. However, only the leachable levels were tested for in Table 1. A generator with a TPH waste could do a TCLP for benzene, pass it, then go on to fail the TPH criteria of 1,500, solely due to benzene (or the other components or BTEX). You're applying two criteria to the same constituents. This is inconsistent." It is true that these constituents have two separate criteria. TPH includes hundreds of hydrocarbons from the small, volatile components of gasoline (such as BTEX), to the middle distillates of diesel fuel, jet fuel, and kerosene, to the large, heavy hydrocarbons of oil. While the TPH method is capable of detecting a huge range of hydrocarbons, it has its major drawbacks. The main one being that most of the small, volatile components of gasoline (such as BTEX) are completely lost during concentration of the sample. A generator with a BTEX containing waste or a benzene containing waste shall first do the TCLP extraction, then analyze the sample by Method 8020 for volatile organics. This will give a true BTEX value. It is highly unlikely that BTEX will contribute heavily to the TPH concentration. If, however, it does contribute enough to give a value of 1,500 ppm or greater, the waste is Class 1. Regarding sec.335.508(6) and in response to a comment regarding the applicability of the proposed rules (specifically the TPH criteria) for wastes generated by the mechanical shredding of automobiles, appliances, or other items of scrap, used or obsolete metals; the provisions set forth in the Texas Solid Waste Disposal Act, Health and Safety Code, sec.361.019, allow the disposal of these wastes without specific authorization (and classification) provided the waste contains no free liquids, is not a hazardous waste, and satisfies other criteria that may be established by commission rule. Since the commission has not developed specific standards for the management of these wastes, the wastes may be disposed of at any facility that has previously been authorized to accept and has accepted Class I nonhazardous industrial solid wastes or Class II industrial solid wastes. So long as the waste is not hazardous and contains no free liquids, neither the total petroleum hydrocarbon concentration nor other waste classification criteria outlined in this subchapter would apply to this waste. Specific criteria for classification/management of these wastes would be subject to the rulemaking procedures required by the Administrative Procedure and Texas Register Act. Concerning sec.335.508(7), several commenters questioned the need to require generators to seek commission approval for Class 2 or Class 3 classifications for wastes associated with the production of new chemical substances as defined by the federal Toxic Substances Control Act, 15 United States Code Annotated, sec.2602(9). The commenters argued that many times, these new designations were due to a minor change in composition which did increase the waste's potential to cause harm. The rules have been revised to allow generators of wastes associated with the production of new chemical substances to classify their wastes as Class 2 or Class 3 if the waste meets the remainder of the classification requirements. The rules also note that the generators of this type of waste shall provide notice of this type of waste (including documentation supporting the classification) 120 days prior to shipment and/or disposal of this waste if it is classified as a Class 2 or Class 3 waste. In addition, the rules require the generator to notify the commission 10 days prior to the expiration of the 120-day notice. This second notice is to assure that the commission has received the original notice and that the commission is reminded of the fact that the 120-day period is coming to a close. In the interest of protection of human health and the environment and with the agreement of the membership of the Notification Advisory Committee this mechanism was inserted in the rule. Although the generator will be required to store the waste while awaiting concurrence by the commission, this should not be a hardship due to the less stringent storage requirements and time frames for Class 2 and 3 wastes. Concerning sec.335.508(8), several commenters questioned the limitations placed on out-of-state waste. There was a concern that limiting non-hazardous out-of- state waste to a Class 1 designation was expensive to the generator, burdensome on Class 1 landfill sites, and was possibly a violation of the United States Constitution's Interstate Commerce clause. One commenter also questioned the value of classifying United States owned Maquiladoras as out-of-state waste generators. The proposal to classify all out-of-state generated wastes as Hazardous or Class 1 was not to prohibit disposal of out-of-state wastes, but to ensure that any waste entering the state for treatment, storage, processing, or disposal was managed and tracked under the more stringent requirements for Class 1 wastes since the wastes' classifications could not be verified by inspection of out-of- state facilities and only Hazardous and Class 1 wastes require manifesting and reporting. The commission reiterates its concerns over wastes being shipped into the state since the facilities generating these wastes are not subject to the same inspection, record review, documentation, and enforcement provisions as in- state facilities. For these same reasons, and the fact that EPA identifies them as foreign waste generators, the commission maintains its position on classifying Maquiladoras as out-of-state generators. However, the commission agrees that mechanisms should be available to generators of out-of-state waste to classify legitimate Class 2 and Class 3 waste appropriately. Therefore, sec.335.308(8) is being changed to allow out-of- state generators to designate qualifying wastes as Class 2 or 3, but only after supporting documentation has been submitted and approved by the commission. Concerns over conflict with the Interstate Commerce clause should also be allayed by this provision. Also, since all out-of-state wastes that are to be disposed of at municipal landfills meet the definition of "special wastes" in sec.330.5, all Texas municipal landfills will require the written approval of the commission to accept an out-of-state waste. An out-of-state waste shipped into Texas as a Class 2 or a Class 3 waste requires generator specific/waste specific/disposal site specific approval (tracking of the waste shipment). The evaluation of supporting documentation for Class 2 and Class 3 classifications will ensure that such wastes may be managed according to the proper classification of the waste and only at appropriate disposal sites if shipped into Texas for disposal. In regard to sec.335.508(8), the reference to the classification of wastes transported "through" Texas was intended to address wastes entering Texas for treatment, storage, or processing before leaving Texas for further treatment, storage, processing, or disposal. The commission does not intend to require generators of waste shipments that are only passing through Texas to classify their wastes. Changes to sec.335.509(c) seek to clarify the provision that, upon request of the executive director, the generator shall provide additional information necessary for the executive director to review alternative methods for waste analysis. Commenters on sec.335.511 of this title (relating to Use of Process Knowledge) included ASARCO Incorporated; and McGinnis, Lochridge & Kilgore. In regards to sec.335.511, a commenter requested a clarification on whether the only choice for a classification evaluation was either analytical data or process knowledge. New wording in the rules indicates that process knowledge can be used in conjunction with analytical data to classify a waste. Concerning sec.335.511, a commenter stated that the description of process knowledge excluded process knowledge being used to classify spill waste. This comment was specifically oriented to sites where a spill may have been caused by someone other than the current owner, and this generator may not have all information necessary to satisfy the process knowledge requirements. The commission acknowledges that the current generator may not possess this information, but would argue that this is a valid reason for requiring analytical data to accurately classify the waste. Process knowledge may be used for spill waste, however, the generator must have access to the indicated information to use this provision. Concerning sec.335.511, one commenter noted that in certain remediation activities (i.e., when generators were not owners of contaminated sites when materials were first released), process knowledge may not include such things as Material Safety Data Sheets and precise knowledge of the process generating the waste. The generator goes on to state that in a remediation activity, process knowledge may include such things as preliminary testing and screening. The commission agrees with the commenter in that certain testing procedures (i.e., preliminary testing and screening activities) may be utilized in conjunction with other available knowledge (i.e., past site history and types of operations) in developing a sampling plan for the classification of the waste. Based upon a combination of information sources (such as a site history evaluation, preliminary testing, screening tests, closure activities....) it may be possible to reduce the number of characteristics and/or samples that the generator will need to analyze for classification purposes. The commission also acknowledges that through the implementation of closure plans and remediation plans the commission has approved, it is possible that the generator will have substantial information on the waste and the process generating it. The proposed rules do not prohibit a generator from utilizing a combination of process knowledge (as defined in the rules) and preliminary testing and screening in developing a sampling and analytical plan for its waste classification evaluation. Therefore, a change to the proposed rules would be justified under this reasoning. Commenters on sec.335.512 of this title (relating to Executive Director Review) included ASARCO Incorporated; Exxon Company, USA; and Texas Mid-Continent Oil & Gas Association. Regarding sec.335.512(a), several commenters expressed concern over "extenuating circumstances" and waste reclassification by the executive director. Concerning executive director oversight of these rules, the commission reserved the right to review and audit the generator's classification. The commission could attempt to define every meaning of what constitutes an "extenuating circumstance" which could prompt the upgrade of a classification of a waste. Such a definition would prove to be constraining to both the commission and generators, and could serve to require the commission to take action in cases which do not justify such action. The act of specifying what would prompt an upgrade would result in a rigid and unrealistic attempt by the commission to overregulate. The commission has built mechanisms into this rule to assure that the generator has the ability to appeal any upgrade in classification of a waste, as well as a provision for variance if a generator has evidence that a waste is being overregulated with regard to risk based information. Concerning sec.335.512(b), a commenter asked for clarification on whose classification of a waste applies during a generator's appeal of the commission's reclassification of a waste. The commenter also suggested that the generator's classification should apply. Subsection (a) of this section gives the executive director the right to reclassify a waste based on misclassification or extenuating circumstances. Subsection (b) allows the generator to appeal the executive director's reclassification. Therefore, the executive director's classification shall apply during the appeal stage. Commenters on sec.335.513 of this title (relating to Documentation Required) included ASARCO Incorporated; Texas Chemical Council; Exxon Company, USA; Texas Mid-Continent Oil & Gas Association; General Dynamics Fort Worth Division; and Texas Eastman Division, Eastman Chemical Company. Concerning sec.335.513, several commenters asked for provisions protecting confidential information and trade secrets submitted to the agency. The commission can neither add to nor take away from existing rights regarding confidentially claims provided under the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a. In regard to sec.335.513(a), a commenter suggested that it would be helpful to indicate that a generator must also provide the information required under sec.335.9 relating to recordkeeping. This suggestion has been incorporated. In regard to sec.335.513(b), a commenter was concerned that the rules implied that documentation could be required each time a waste was generated. Revised language has been provided which should address this concern. Documentation only need be provided within 90 days of the initial generation and prior to any shipment or disposal of the waste. In regard to sec.335.513(b), a commenter pointed out that the documentation required should include the initial date of waste generation for inspection purposes. This has been added as a new paragraph "(2)" under sec.335.513(b). Concerning sec.335.513(b), several commenters requested clarification as to whether the requirement for data submission implied that the generator must wait for commission approval of the Class 3 designation before management or disposal of the waste. The purpose of the self-classification rule is to allow a generator to classify his own waste under specific guidelines without waiting for commission review and classification. The prior approval or agreement of the commission is not required except for out-of-state wastes which are designated as Class 2 or Class 3. (The reasoning behind the commission's desire to review all out-of-state wastes designated as Class 2 or Class 3 is provided elsewhere in this preamble). The commission intends to audit the classification of all wastes designated as Class 3 because the management standards for a Class 3 waste are minimal. That is the reason for requiring the submission of the information for Class 3 industrial wastes. The commission also intends to audit 10% of the Class 2 classifications. In those cases, the data will be specifically requested by the commission. If the commission finds that a waste has been incorrectly classified, appropriate enforcement action may be taken against the generator. In regard to sec.335.513(c), a commenter noted that waste may remain on site for many years after a facility ceases generating that waste. The commenter expressed concern that because the proposed section limited the documentation requirements to these wastes for five years after the waste is no longer generated, relevant and important information concerning the waste could be lost. The commission shares this concern and has reworded the rule to note that waste stream documentation is to be maintained on site for a minimum of five years after the waste is no longer generated or stored or until site closure is achieved. The commission considered including language which would also specifically address disposal; however, this documentation is addressed in the deed recordation requirements of sec.335.5. Concerning sec.335.513(d), a commenter objected to the requirement for a generator to submit information requested by the commission for audit within 10 days of request receipt. This time frame was reached through compromise in Notification Advisory Committee rule formulation sessions. The commission wanted all information pertaining to analysis, and quality assurance/quality control submitted with every classification. Generators wanted to submit information only when requested by the commission. The resulting compromise is a short submittal time frame for the generator, but less work if a waste is not chosen for audit by the commission. With respect to sec.335.514 of this title (relating to Variances), the commission has clarified the provision by providing the specific factors relevant in determining whether a variance to certain rules is justified. Commenters on sec.335.515 of this title (relating to Enforcement) included Sony Microelectronics. Concerning sec.335.515, one commenter expressed concern over the standard of review in enforcement actions involving a waste misclassification, and asked that the commission specifically define what constitutes a knowing or gross violation. The procedures for classifying a waste supported by the required documentation as outlined in the rules provide sufficient guidance for determining compliance in civil enforcement actions. Standards for establishing whether a knowing or gross violation of an environmental regulation has occurred already exist as provided in applicable caselaw and statutes and are used in the criminal prosecutions. Concerning sec.335.515, a commenter noted that the rules would put "the majority of the burden for classification of a waste on the generator." The commission acknowledges that the intent of the rules is to allow generators to classify their own wastes and to hold them accountable for those classifications. This intent is consistent with the current federal hazardous waste determination requirements under the RCRA. The commission also feels that the accountability aspect helps insure and encourage the proper classification of waste. Without the accountability aspect of the rules, the incentive to properly classify a waste diminishes. Concerning sec.335.515, a commenter also noted that, under the self classification rules, generators may make some "judgment" calls in determining the classification of wastes. The commenter felt that these "judgment calls" could be second guessed and requested additional guidance be provided to the generating community. Many generators will utilize process knowledge when evaluating a waste for classification purposes and acknowledged this in its draft rules. By knowing all aspects of a waste generation process, a generator will be able to characterize the waste and determine what characteristics for which to test. Generators are responsible for knowing the details of their waste production processes if they intend to utilize process knowledge for waste classification purposes. These details include possible sources of contamination. If generators do not have the details of their waste production processes, including possible contaminants, then they do not have sufficient information to utilize process knowledge. Generators who are not able to document, in writing, that they have considered every possible aspect of their waste generation processes and have claimed the use of process knowledge in classifying their waste, run the risk of enforcement action, especially if results from analytical testing demonstrate that the waste exhibits characteristics of a higher classification. The commission is hesitant to publish specific rules pertaining to enforcement actions involving the misclassification of wastes. Current rules regarding Chapter 337 of this title (relating to Enforcement) are sufficient to allow for case-by-case consideration of the circumstances involving any waste classification violation. The commission has no objections to providing guidance in the area of self classification. In fact, the commission is at this time working on preparing such guidance for the regulated community in the form of documents and training seminars. Therefore, the commission does not feel that any changes to the intent of the enforcement aspect of the rule would be appropriate. In discussing potential enforcement actions, it should also be noted that the classification of a waste as a Class 2 or Class 3 does not prohibit the commission from seeking enforcement action should those classes of waste be managed in such a way that they threaten, or potentially threaten, the waters of the state. It is the generators responsibility to ensue that his wastes are properly manage. Commenters on Table 1 of Appendix 1 included Brown & Root, Incorporated; Texas Chemical Council; Exxon Company, U.S.A.; Dow Chemical Company; and Texas Eastman Division, Eastman Chemical Company. In regard to Table 1 of Appendix 1, one commenter questioned the commission's decision to utilize the water action levels identified in the July 27, 1990, Federal Register in establishing the Maximum Leachable Concentration limits. The same commenter felt that some type of risk assessment, which would include a fate and transport model, would have been more appropriate. The same commenter felt that, in establishing the criteria, the commission should have included the various landfill designs. In establishing the Class 1 criteria of Table I, Appendix I, the commission considered ways that waste could become a threat to human health and the environment. To be a threat, the harmful portions of the waste must be able to reach a human or an environmental receptor. The most likely way for this to occur is for the harmful constituent of the waste to become mobile. Therefore, the commission decided that the potential leachability of the harmful constituent should be evaluated. This type approach would give a more realistic evaluation of the potential for harm than the utilization of action levels in soils. The commission also considered the question "at what concentrations would the leachable constituents be of potential concern?" In determining these concentrations, the commission utilized the water action levels identified in the July 27, 1990, Federal Register. In many cases the mobilized material would have to migrate some distance through some media to reach a potential receptor. Since the conditions of all disposal sites are not uniform, the commission utilized the dilution/attenuation factor of 100 fold that EPA had utilized in establishing its Toxicity Characteristics. It is inappropriate to utilize specific disposal site information in determining a waste's potential to cause harm if mismanaged. Several commenters noted discrepancies and potential typographical errors in Table 1 of Appendix 1. Corrections to the table has been made. These include Chlordane is listed as 0.3, but TCLP value is 0.03; 2,4-Dinitrophenol should be 7; Thiosemicarbizide should be 20; 2,3-Dinitrotoluene should be 2,4- Dinitrotoluene; Endrin was inadvertently left out. Commenters expressed concern that Cadmium has a Maximum Contaminant Level (MCL) of 0.01. When multiplied by 100, this number equals one; however, Table 1 lists Cadmium as 0.5. Several of the TCLP constituents have MCL's that are not strictly health-based. Lead, cadmium, and arsenic are examples. The health-based values originally proposed for these compounds for hazardous waste were increased as a result of public comments, due to economic factors, treatment technologies, etc. The commission chooses to utilize health-based levels, when available for Class 1 waste criteria. Therefore, for these compounds, other sources, besides the July 27, 1990, Federal Register have been utilized. Integrated Risk Information Systems (IRIS), EPA, is one source. The rule has been changed to include a listing of these sources Table 1's heading. Commenters noted that 2,4-Dichlorophenoxyacetic acid is listed in 40 CFR, Part 261 as 2,4-D; 2,4, 5-Trichlorophenoxypropionic acid is also called 2,4,5-TP (Silvex); and Tribromomethane is also called bromoform. The commission has altered the rule such that common short names such as 2, 4-D and Silvex will be included in parentheses in the table. Otherwise, the commission will use the standard International Union of Pure and Applied Chemistry name and not the Latin or common name. Commenters noted that vanadium should be changed to vanadium pentoxide as listed in the July 27, 1990, Federal Register. It was noted that some vanadium compounds are not as potentially harmful as vanadium pentoxide. The commission originally proposed the identification of vanadium as opposed to vanadium pentoxide since, during routine vanadium analysis, no distinction would be made between the differing anions to which it could be bound. The commission has decided to rewrite the rule to identify vanadium pentoxide as the constituent of concern rather than vanadium. The commission does not wish to overly regulate those materials which may not pose a substantial threat to human health or the environment. Commenters noted that the following compounds are listed in Table 1 but not in the July 1990 Federal Register : p-Phenylene diamine; Polychlorinated dibenzo-p- dioxins (PCDDs); Polychlorinated dibenzofurans (PCDFs); 2,3,7, 8-Tetrachlor- dibenzo-p-dioxin (TCDD). Commenters also noted that "available data indicate that only those PCDDs and PCDFs with chlorine atoms at the 2,3,7,8 positions are likely to be important toxicologically" and provided references for this data. The commenter also stated that numerical criteria had been established in the Texas Surface Water Quality Standards for the 2,3,7,8 tetra, penta, and hexa isomers of polychlorinated dioxins and furans. When deriving the criteria of a Class 1 waste, the commission attempted to be as all-inclusive as possible in order to provide the most protection to human health and the environment. Upon evaluation of the information noted by the commenters and reevaluation of its own data, the commission has decided to leave the p-phenylene diamine criteria as proposed in its draft proposal of the rules; however, it has decided to limit the number of dioxins and furans it has identified as constituents of concern. Concerning Appendix 2, the phrase "Capitol Station" was taken out of the mailing address for the agency since this is no longer a part of the address. Commenters on Appendix 3 (Form Codes) included the Electric Reliability Council of Texas (ERCOT). Concerning Appendix 3, form codes have been modified. These modifications account for the regulation of PCB wastes under the Toxic Substance Control Act (TSCA) and provide for additional form codes for wastes which the commission feels it needs to track but would not be able to if they were designated as various "other" waste. The three types of "plant trash" have also been put into a separate category titled "Plant Trash." Also, to avoid confusion, the form codes identified under the category of "Other" have been incorporated into the other categories of waste. Most of the form codes identified in the rules originate from reporting requirements to EPA. The addition of form codes to those identified by EPA was restricted by the commission's ability (or inability) to report on that particular type of waste under the established EPA types of waste. In identifying additional form codes, the commission had to determine if the proposed form code could be described by more than one form code already established by EPA. If it could be described by more than one form code, the commission could not reasonably utilize the proposed additional form code. Regarding Appendix 4, the quantities of sample and water proposed for use in the extraction procedure were insufficient to provide enough extract for testing purposes. Therefore, these quantities have been increased. In addition, the procedures were changed to state that appropriate analysis should be performed on the leachate. Commenters on the potential impacts on waste management activities included Sony Microelectronics, and Tyler Pipe. Several commenters inquired about the impact of the proposed rule on other waste management considerations such as recycling provisions, existing permits, disposal requirements, etc. The waste classification rules serve only to identify the category of a waste. Once the waste has been identified as a Hazardous, Class 1, Class 2, or Class 3 waste, other waste management rules dictate subsequent handling of the waste. In some cases a waste will require different handling after it is reclassified under today's rules, however, these rules should not affect any recycling exemptions, and no permit modifications or amendments are required simply because of a change in waste codes. One commenter expressed concern over the permitting status of facilities that manage nonhazardous waste that may be classified as Class 1 and Class 2 wastes. The purpose of the proposed rules was to provide a means for generators to classify their nonhazardous wastes in accordance with the definitions of the three categories of nonhazardous waste, not to alter the management requirements for the categories of nonhazardous waste. The determination as to whether or not a recycling facility managing nonhazardous Class 1 and/or Class 2 wastes would require a permit should be determined through current regulations for those categories of wastes, not through today's rule. The commission supports one commenter's suggestion that "good guidance" on recycling should be provided; however, the commission does not feel that this "guidance" should come in the form of a self classification rule. The commission proposed the self classification rule in an attempt to provide generators the ability to evaluate their wastes for classification purposes, not to develop recycling guidelines. Some comments stated that if waste contaminated with petroleum are classified as Class 1 wastes, recyclers may be discouraged from managing these wastes. Several commenters also expressed concern that the rules could prohibit or discourage a generator from utilizing wastes on-site (such as contaminated soils, concrete, ceramics, or river water silt). The purpose of the proposed regulations were not to discourage waste recycling activities, but to provide for the classification of the waste. The classification criteria was based, in part, upon the definition of a Class 1 waste which considers the potential of the waste to "pose a substantial present or potential danger to human health or the environment when improperly processed, stored, transported, or disposed of or otherwise manage." That definition does not provide for the management of the waste as a criteria in its classification since the criteria is based upon the potential for mismanagement. The commission acknowledges that some recycling facilities may be hesitant to manage nonhazardous Class 1 waste. This hesitancy may come from the definition of a Class 1 waste which indicates that the waste poses a "substantial present or potential danger to human health or the environment." The commission does not feel that a substantial amount of reluctance to recycle nonhazardous Class 1 wastes will be resultant from the current recycling regulations for nonhazardous industrial waste (31 Texas Administrative Code (TAC) 335.24(h)) as these rules provide for very limited regulation (i.e., notification of recycling activities, general prohibitions against polluting the waters of the state, and, if required by the commission, shipping and reporting requirements). Also, containers which are sent to a reconditioner for reuse as containers are not considered wastes and are therefore not subject to this classification criteria. On the other hand, containers sent to a metals reclaimer are considered waste and are subject to the classification criteria of this subchapter. The commission feels that recycling activities could best be encouraged through means other than waste classification. Several commenters suggested that the commission include a provision stating that neutralization was an acceptable means of treating Class 1 wastes to obtain a Class 2 or 3 classification. As noted elsewhere in this preamble, this rule pertains to the classification of wastes and does not address the treatment of waste other than to note that treatment may result in the formation of a new waste or wastes. Commenters on the potential impacts on permits included Texas Instruments and the Texas Chemical Council. Several commenters expressed concerns about facilities which currently have a permit with waste codes referenced in it. In discussions with key staff in the Industrial and Hazardous Waste Permit Section, it was decided that the permittee would not be required to take any action to modify its permit since the new waste codes do not change the actual waste authorized to be managed under that permit. One commenter asked "can municipal facilities accept all Class 2 wastes?" Although this comment is not directly related to the classification and notification criteria of the proposed rules for which comment was being sought, the commission felt it necessary to note that not all municipal landfill facilities can accept all types of Class 2 wastes. There are various types of municipal landfills throughout the state. Many have been built to various design criteria and therefore have differing acceptance criteria. Also, certain types of wastes must be evaluated prior to their acceptance in any municipal landfill in accordance with Chapter 330 of this title (relating to Municipal Solid Waste). One commenter asked the following question. "How does the current 600 ppm TPH rule presently restricting disposal of TPH contaminated soil come into play with the new classification scheme?" There appears to be a 900 ppm gap between 600 ppm restriction on disposal (at a municipal facility) and the 1, 500 ppm Class 2 TPH classification." Many municipal landfills currently in use were not designed or constructed with the intent of receiving industrial waste; therefore, incoming wastes are carefully scrutinized to determine they are acceptable into those facilities. Also, because of the concern over future landfill capacity, the state has been encouraging on-site treatment and reuse rather than disposal in a municipal landfills. Commenters on the federal re-authorization of RCRA included Kohler Company. One commenter expressed concern over the impact the proposed self classification rules and the anticipate 1993 re-authorization of the Resource Conservation and Recovery Act (RCRA) would have on Texas industry. The commenter suggested that the commission "should consider the timetable for implementation of these proposed rules in light of the projected (anticipated) compliance deadline for RCRA authorization, thereby avoiding duplication of effort and unnecessarily burdensome effects on Texas industry." The commission acknowledges the commenters concern that if, shortly after the implementation of the proposed rules for classification of nonhazardous waste, the definition of a hazardous waste was to substantially change to include many wastes which are currently considered nonhazardous, a generator could possibly be required to perform two evaluations on the impacted wastes within a relatively short time frame. However, the commission feels that the present delays in waste shipment and disposal activities associated with the current waste classification and coding system requires the commission to provide, within a relatively short period of time, generators of nonhazardous industrial waste and generators of hazardous waste a means of classifying and coding their own wastes. At least two commenters addressed the general lack of guidance in defining an industrial versus a municipal generator for specific types of businesses. The commission has noted the confusion and is working on such guidance for generators. In the interim, the staff of the commission is initiating a concurrence processes within the agency which will promote consistency in these determinations by the commission. The current and long term policy of the commission is that a waste generated on an industrial facility should be managed as an industrial waste regardless of where on the industrial facility it is generated. Commenters on unevaluated waste notification included the Texas Chemical Council. One commenter suggested that the procedure for generators to withdraw their unprocessed "waste classification paper work" from the commission should be reviewed by the Notification Advisory Committee. In the proposed preamble, it was stated that an agreement was reached in the Notification Advisory Committee which would allow a generator the option to withdraw existing waste classification paperwork from the commission backlog. At this point, the commission staff feel that there may not be a backlog upon promulgation of these sections. If the commission fails to complete the processing of the backlog in time for this rule, the commission will attempt to contact generators via the United States mail. During rule development meetings, members of the Notification Advisory Committee suggested such a mailing should be sent to all registered generators which have waste classification requests in house and in a backlog within 45 days of rule promulgation. Red Star Yeast & Products; Texas Chemical Council; Exxon Chemical Americas. Several commenters believed that TWC's estimate of $1,300 for analysis of a waste for classification purposes was unrealistically low. Analytical costs vary greatly from lab to lab. According to commission calculations, an entire Table 1 analysis could cost from $2,000-5,000, depending on where the waste is analyzed, and what type of waste it is. If the generator chose to do TPH, and the Seven-Day Distilled Water Leachate Test for all constituents, the cost would be even greater. However, most generators responsible for waste management and characterization know their wastes and, as a result, are capable of utilizing process knowledge to eliminate (with justification) many analytical tests. For example, in a controlled generation process, a generator may know that pesticides could not be a component in his waste; therefore, he would not analyze the waste for pesticides. A generator may conduct all tests listed in Subchapter R of this chapter if the generator discovered a waste and had no knowledge of its source or its composition and wanted to classify it as Class 3. If this were the case, the generator might consider obtaining the results from the hazardous waste determination testing and Table 1 analysis before ordering any more tests. The amendments are adopted under the Texas Water Code, sec.5.103 and sec.26. 011, which provides the commission with 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 Texas Solid Waste Disposal Act, sec.361.017, which provides the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and all other powers necessary or convenient to carry out its responsibilities. sec.335.6. Notification Requirements. (a)-(b) (No change.) (c) Any person who generates municipal hazardous waste in quantities equal to or greater than 1,000 kilograms in a calendar month or quantities of acute municipal hazardous waste in excess of quantities specified in sec.335.78 of this title (relating to Special Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity Generators) in a calendar month, or generates any quantities of industrial solid waste, shall notify the executive director of such activity on forms furnished or approved by the executive director. Such person shall also submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether the storage, processing, or disposal is compliant with the terms of this chapter. Notifications submitted pursuant to this section shall be in addition to information provided in any permit applications required by sec.335.2 of this title (relating to Permit Required), or any reports required by sec.335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators), sec.335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste), and sec.335.13 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste). Any person who provides notification pursuant to this subsection shall have the continuing obligation to immediately document any changes or additional information with respect to such notification and within 90 days of the occurrence of such change or of becoming aware of such additional information, provide written notice to the executive director of any such changes or additional information, to that reported previously. If waste is recycled on-site or managed pursuant to sec.335.2(d) of this title (relating to Permit Required), the generator must also comply with the notification requirements specified in subsection (h) of this section. The information submitted pursuant to the notification requirements of this subchapter and to the additional requirements of sec.335. 503 of this title (relating to Waste Classification and Waste Coding Required) shall include, but is not limited to: (1)-(5) (No change.) (d) Persons generating more than 100 kilograms but less than 1,000 kilograms of hazardous municipal waste in any calendar month shall notify the executive director of such activity on forms provided by the executive director. Such person shall also submit to the executive director upon request such information as may be reasonably required to enable the executive director to determine whether the storage, processing, or disposal of such waste is compliant with the terms of these sections. Notifications submitted pursuant to this section shall be in addition to any information provided on any permit application required by sec.335.2 of this title (relating to Permit Required), or any reports required by 335.9 of this title (relating to Shipping and Reporting Procedures Applicable to Generators), sec.335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste), and sec.335.13 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste). Any person who provides notification pursuant to this subsection shall have the continuing obligation to immediately document any changes or additional information with respect to such notification and within 90 days of the occurrence of any such change or of becoming aware of such new information provide written notice to the executive director of any such changes or additional information to that reported previously. (e)-(i) (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 November 6, 1992. TRD-9215008 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: November 27, 1992 Proposal publication date: August 18, 1992 For further information, please call: (512) 463-8069 Subchapter C. Standards Applicable to Generators of Hazardous Waste 31 TAC sec.335.62 The repeal is adopted under the Texas Water Code, sec.5.103 and sec.26.011, which provides the commission with 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 Texas Solid Waste Disposal Act, sec.361.017, which provides the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and all other powers necessary or convenient to carry out its responsibilities. 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 November 6, 1992. TRD-9215009 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: November 27, 1992 Proposal publication date: August 18, 1992 For further information, please call: (512) 463-8069 The new section is adopted under the Texas Water Code, sec.5.103 and sec.26.011, which provides the commission with 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 repealed under the Texas Solid Waste Disposal Act, sec.361.017, which provides the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and all other powers necessary or convenient to carry out its responsibilities. 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 November 6, 1992. TRD-9215010 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: November 27, 1992 Proposal publication date: August 18, 1992 For further information, please call: (512) 463-8069 Subchapter R. Waste Classification 31 TAC sec.sec.335.501-335.515 The new sections are adopted under the Texas Water Code, sec.5.103 and sec.26.011, which provides the commission with 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 Texas Solid Waste Disposal Act, sec.361.017, which provides the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and all other powers necessary or convenient to carry out its responsibilities. sec.335.501. Purpose, Scope, and Applicability. Person who generates industrial solid waste or municipal hazardous waste shall comply with the provisions of this subchapter. Persons who generate wastes in Texas shall classify their own waste according to the standards set forth in this subchapter and may do so without any prior approval or communication with the commission other than notification of waste generation activities pursuant to sec.335.6 of this title (relating to Notification Requirements) and submittal of required documentation pursuant to sec.335.513 of this title (relating to Documentation Required). This subchapter will: (1) provide a procedure and time schedule for implementation of a new Texas waste notification system; and (2) establish standards for classification of industrial solid waste and municipal hazardous waste managed in Texas. sec.335.502. Conversion to New Waste Notification and Classification System. (a) These rules relating to waste classification are effective as outlined below. The rules shall be implemented as defined in subsections (b)-(g) of this section, which are summarized as follows: (1) effective date of rules adoption-after this date all waste classifications involving new waste streams and existing unclassified waste streams shall be classified according to the requirements of this subchapter; (2) January 1, 1993-on and after this date all waste classifications involving new waste streams and existing unclassified waste streams shall be classified according to the requirements of this subchapter; (3) July 1, 1994-this is the completion deadline for updating all hazardous and nonhazardous waste stream notifications; (4) October 1, 1994-this date is the deadline for the commission to provide notice in Texas Register concerning final implementation of rules; (5) January 1, 1995-the rules shall fully implemented on or before the date. All waste must be managed according to the classification assigned under this subchapter. (b) Waste notification information as required under sec.335.6 of this title (relating to Notification Requirements) and waste codes required under sec.335.10(b) of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste) shall be assigned by the generator and provided to the commission as provided by this chapter and all other applicable laws. (1) All waste notification information provided to the commission after the effective date of this subchapter shall be provided in a format defined by the commission. (2) All existing waste notification information on file with the commission shall be updated to the new format by the generator no later than July 1, 1994. (3) All waste notification information may be submitted on paper or by electronic data transmission. (4) Forms and format information for submitting notice of registration information on paper or by electronic means may be obtained by contacting the commission at the address listed in Appendix 2 of this subchapter. (c) All industrial solid waste and municipal hazardous waste managed in the state shall be classified by the generator according to the provisions of this subchapter. (1) After the effective date of this subchapter, all new waste streams and waste streams not previously classified shall be classified and managed pursuant to the provisions of this subchapter. (2) All generators that have existing waste streams classified as Class 1, Class 2, or Class 3 under any previous system are required to reevaluate the waste under the provisions of this subchapter and to submit the updated information to the commission pursuant to subsection (b) of this section. However, generators of waste classified under a previous waste classification system may continue to manage and dispose of that waste under the existing classification until the effective management date provided in subsection (d) of this section. If a generator chooses to continue to manage waste under a previous waste classification system the existing waste code shall be used when shipping, storing, disposing or otherwise managing the waste. The generator shall use the new waste code when the waste is to be managed under the new classification designation. Once a waste is reclassified and the waste is managed based on the new classification and using the new waste code, the generator may not return to managing the waste under the old classification system. (d) The effective date for management of wastes under these rules is January 1, 1995. On and after this date, all solid waste generated or otherwise handled in the state shall be classified and accordingly managed pursuant to this subchapter. This effective date may be revised by subsection (e) of this section. (e) Not later than October 1, 1994, the commission shall assess the impact of the implementation of these rules. The commission shall evaluate waste capacity issues, costs to the regulated community and the state, personnel and staffing levels of the commission, and review the applicability of the rules themselves. The commission may use information from any source necessary to assess the impact. Based on this evaluation, by October 1, 1994, the commission shall give public notice in the Texas Register that either: (1) these waste classification requirements take full force and effect on January 1, 1995; or (2) implementation of these waste classification requirements shall be delayed. If implementation is delayed, the commission shall provide a revised implementation date and give additional information as necessary to guide the regulated community until the revised effective date. (f) If the commission fails to give public notice in the Texas Register as required in subsection (e) of this section, these rules take full force and effect on January 1, 1995. (g) After the effective management date of these rules as provided in subsection (d) of this section, future reclassification of a waste may be required because of changes in classification criteria. A generator whose waste stream is reclassified to a more stringent waste classification after the effective management date of this subchapter as provided in subsection (d) of this section must reclassify the waste and begin managing the waste according to the more stringent classification requirements according to the following schedule: (1) if mandated by a federal or state law, as specified in that law; (2) if a date is provided in the adoption of the amendment, as required in that rule adoption; (3) if not otherwise specified, within 180 days of the effective date of the rule amendment adopting the new classification criteria; (4) in situations where a compliance date creates an unusual hardship a generator may request a different implementation time under the variance provisions of sec.335.514 of this title (relating to Variance from Waste Classification Provisions). sec.335.503. Waste Classification and Waste Coding Required. (a) All industrial solid and municipal hazardous waste generated, stored, processed, transported, or disposed of in the state shall be classified according to the provisions of this subchapter. (1) All solid waste shall be classified at the point of generation of the waste. A generator may not dilute a waste to avoid a Class 1 classification; however, combining waste streams for subsequent legitimate processing, storage, or disposal does not constitute dilution and is acceptable. Wastes shall be classified prior to, and following any type of processing or mixing of the waste. (2) All industrial solid and municipal hazardous waste shall be classified as either: (A) hazardous; (B) Class 1; (C) Class 2; or (D) Class 3. (3) A person who generates a solid waste shall first determine if that waste is hazardous pursuant to sec.335.504 of this title (relating to Hazardous Waste Determination). (4) After making the hazardous waste determination as required in paragraph (3) of this subsection, if the waste is determined to be nonhazardous, the generator shall then classify the waste as Class 1, Class 2, or Class 3, pursuant to sec. sec.335. 505-335.507 of this title (relating to Class 1 Waste Determination, Class 2 Waste Determination, and Class 3 Waste Determination) using one or more of the following methods: (A) use the criteria for waste classification as provided in sec.sec.335.505- 335.507 of this title (relating to Waste Classification); (B) use process knowledge as provided in sec.335.511 of this title (relating to Use of Process Knowledge); (C) classify the waste as directed under sec.335.508 of this title (relating to Classification of Specific Industrial Wastes); or (D) choose to classify a nonhazardous waste as Class 1 without any analysis to support that classification. However, documentation (analytical data and/or process knowledge) is necessary to classify a waste as Class 2 or Class 3, pursuant to sec.335.513 of this title (relating to Documentation Required). (b) As required under the schedule provided in sec.335.502 (relating to Conversion to New Waste Notification and Classification System), all industrial solid waste and municipal hazardous waste generated, stored, processed, transported, or disposed of in the state shall be coded with an eight-digit waste code number which shall include a four-digit waste sequence number, a three-digit form code, and a one-character classification (either H, 1, 2, or 3). Form codes are provided in Appendix 3 of this subchapter. Procedures for assigning waste code numbers and sequence numbers are outlined below and available from the commission at the address listed in Appendix 2 of this subchapter. (1) A waste code is represented by the following 8-digit character string: sequence number + form code + classification code (H, 1, 2, or 3). (2) In-state generators will assign a unique four digit sequence number to each individual waste. These sequence numbers will range from 0001 to 9999. They need not be assigned in sequential order. An in-state registered generator may choose to request the commission assign a sequence number to a specific waste which is not regularly generated by a facility and is being shipped as a one- time shipment rather than adding that waste to the regular sequence numbers on a notice of registration. Sequence numbers provided by the commission may be a combination of alpha and numeric characters. (3) In-state unregistered generators will be provided a four digit sequence number by the commission for each regulated waste it generates. Sequence numbers provided by the commission may be a combination of alpha and numeric characters. (4) Generators of wastes resulting from a spill must obtain a sequence number for the spill related wastes from the commission's Emergency Response Section. (5) Out-of-state generators will use the sequence code "OUTS" in the first four digits of the waste code. (6) Municipal Conditionally Exempt Small Quantity Generators will use "CESQ" in the first four digits of the waste code. (7) A facility which receives a waste and consolidates that waste with other like waste (thus not changing the form code of the waste stream or its composition), or stores a waste without treating or changing the form or composition of that waste may ship that waste to a storage, treatment or disposal facility using "TSDF" in the first four digits sequence position of the waste code. This does not pertain to wastes which are treated or altered. This "TSDF" designation is only to be used by facilities that store and/or accumulate a quantity of wastes from more than one site for subsequent shipment to a treatment or disposal facility. sec.335.505. Class 1 Waste Determination. A non-hazardous industrial solid waste is a Class 1 waste if: (1) it contains specific constituents which equal or exceed the levels listed in Table 1 of Appendix 1 of this subchapter as determined by the methods outlined in this section. A nonhazardous waste is a Class 1 waste if, using the test methods described in 40 Code of Federal Regulations Part 261, Appendix II, or equivalent methods approved by the executive director under the procedures set forth in sec.335.509 of this title (relating to Waste Analysis), the extract from a representative sample of the waste contains any of the contaminants listed in Appendix 1 at a concentration equal to or greater than the maximum concentration given in that table. Information on representative samples is set forth in sec.335.509 of this title (relating to Waste Analysis). Where matrix interferences of the waste cause the Practical Quantitation Limit (PQL) of the specific analysis to be greater than the Maximum Concentration listed in Appendix 1, then the achievable PQL becomes the Maximum Concentration, provided that the generator maintains documentation which would satisfactorily demonstrate to the executive director that lower levels of quantitation of a sample are not possible. A satisfactory demonstration includes the results from the analysis of the waste for that specific analyte by a laboratory utilizing an appropriate EPA SW-846, EPA- 600, "Standard Methods for the Examination of Water and Wastewater", or ASTM Standard Methods, or an equivalent method approved by the executive director under procedures set forth in sec.335.509 of this title (relating to Waste Analysis); (2) it is Class 1 ignitable. A nonhazardous waste is Class 1 ignitable if a representative sample of the waste has any of the following properties: (A) it is liquid and has a flash point less than 65.6 degrees Celsius (150 degrees Fahrenheit), as determined by a Pensky-Martens Closed Cup Tester, using the test method specified in ASTM Standard D-93-79 or D-93-80, or a Setaflash Closed Cup Tester, using the test method specified in ASTM Standard D-3278-78 or as determined by an equivalent test method approved by the executive director under procedures set forth in sec.335.509 of this title (relating to Waste Analysis); or (B) it is a physical solid or semi-solid under which conditions normally incident to storage, transportation, and disposal is liable to cause fires through friction, retained heat from manufacturing or processing, or which can be ignited readily, and when ignited burns so vigorously and persistently as to create a serious hazard. Included in this class are spontaneously combustible and water-reactive materials, including, but not necessarily limited to, the substances listed in Table 2 of Appendix 1; (3) it is Class 1 corrosive. A nonhazardous waste is Class 1 corrosive if a representative sample of the waste is a semi-solid or solid which, when mixed with an equivalent weight of ASTM Type II laboratory distilled or deionized water, produces a solution having a pH less than or equal to 2 or greater than or equal to 12.5. Solidified, stabilized, encapsulated, or otherwise chemically- bound wastes are not subject to this requirement provided the waste is solidified such that when a representative sample of the waste is subjected to the paint filter test (SW-846 Method 9095) it exhibits no free liquids. An equivalent method approved by the executive director under procedures set forth in sec.335.509 of this title (relating to Waste Analysis) may be utilized; (4) there is an absence of analytical data and/or documented process knowledge which proves a waste is Class 2 or Class 3; (5) it is identified as a Class 1 waste in sec.335. 508 of this title (relating to Classification of Specific Industrial Solid Wastes); or (6) it is not a hazardous waste pursuant to sec.335.504 of this title (relating to Hazardous Waste Determination) and a generator chooses to classify the waste as Class 1. sec.335.506. Class 2 Waste Determination. (a) An industrial solid waste is a Class 2 waste if: (1) it is not a hazardous waste pursuant to sec.335.504 of this title (relating to Hazardous Waste Determination); (2) it is not a Class 1 waste pursuant to sec.335.505 of this title (relating to Class 1 Waste Determination); and (3) it is not a Class 3 waste because: (i) it cannot qualify as a Class 3 waste pursuant to sec.335.507 of this title (relating to Class 3 Waste Determination); or (ii) a generator chooses not to classify the waste as a Class 3 waste. (b) Any waste designated as a Class 2 waste under sec.335.508 of this title (relating to Classification of Specific Industrial Solid Wastes) is a Class 2 waste. sec.335.507. Class 3 Waste Determination. An industrial solid waste is a Class 3 waste if it is inert and essentially insoluble, and poses no threat to human health and/or the environment. Class 3 wastes include, but are not limited to, materials such as rock, brick, glass, dirt, and certain plastics and rubber, which are not readily decomposable. An industrial solid waste is a Class 3 waste if it: (1) is not a hazardous waste pursuant to sec.335.504 of this title (relating to Hazardous Waste Determination); (2) does not meet any of the Class 1 waste criteria set forth in sec.335.505 of this title (relating to Class 1 Waste Determination); (3) is inert. Inertness refers to chemical inactivity of an element, compound, or a waste. Ingredients added to mixtures chiefly for bulk and/or weight purposes are normally considered inert; and (4) is essentially insoluble. (A) Essential insolubility is established: (i) when, using the test methods specified in Appendix 4 (7-Day Distilled Water Leachate Test), the extract from a representative sample of the waste does not leach greater than the maximum contaminant levels listed in Table 3 of Appendix 1 of this subchapter; (ii) using the test methods described in 40 Code of Federal Regulations Part 261, Appendix II, or equivalent methods approved by the executive director under the procedures set forth in sec.335.509 of this title (relating to Waste Analysis), the extract from a representative sample does not exhibit detectable levels of constituents found in Table 1. This excludes the constituents listed in 40 Code of Federal Regulations Part 141, Subparts B and G, which were addressed in clause (i) of this subparagraph; (iii) when using an appropriate test method, a representative sample of the waste does not exhibit detectable levels of total petroleum hydrocarbon (TPH). Petroleum substance wastes as defined in sec.334.481 of this title (relating to Definitions) are not subject to this subsection; and (iv) when using an appropriate test method, a representative sample of the waste does not exhibit detectable levels of polychlorinated biphenyls (PCB's). (B) Subparagraph (A) of this paragraph does not apply to naturally occurring material, i.e., soil, rock, etc., if the generator can demonstrate that the levels present in the waste are naturally occurring in the background of that particular material. (C) If the detection level submitted by the generator is challenged by the commission, and for other enforcement purposes, the burden is on the generator to demonstrate that the detection level was reasonable for the material in question and for the technology in use at the time the waste was classified. sec.335.508. Classification of Specific Industrial Solid Wastes. The following non-hazardous industrial solid wastes shall be classified no less stringently than according to the provisions of this section. (1) Industrial solid waste containing asbestos material identified as Regulated Asbestos Containing Material (RACM), as defined in 40 Code of Federal Regulations Part 61, shall be classified as a Class 1 waste. (2) Empty containers that are a solid waste as defined in sec.335.1 of this title (relating to Definitions) shall be subject to the following criteria. (A) A container which has held a hazardous substance as defined in 40 CFR Part 302, a hazardous waste, a Class 1 waste, or a material which would be classified as a hazardous or Class 1 waste if disposed, and is empty per sec.335.41(f)(2) of this title (relating to Purpose, Scope, and Applicability) concerning empty containers: (i) shall be classified as a Class 1 waste; (ii) may be classified as a Class 2 waste if the container has a capacity less than five gallons and has held a non-hazardous waste; or (iii) may be classified as a Class 2 waste if the container has a capacity of five gallons or more and: (I) the residue has been completely removed either by triple rinsing with a solvent capable of removing any waste, by hydroblasting, or by other methods which adequately remove the residue; and (II) the container has been crushed, punctured, or subjected to other mechanical treatment which renders the container unusable. (B) A container which has held a Class 2 waste shall be classified as a Class 2 waste. (C) Aerosol cans that have been depleted of their contents, such that the inner pressure of the can equals atmospheric pressure and minimal residues remain in the can, may be classified as a Class 2 wastes. (3) Paper, cardboard, food wastes, and general plant trash shall be subject to the following classification criteria. (A) Paper, cardboard, linings, wrappings, paper packaging materials, or absorbants shall be subjected to sec.335.504 of this title (relating to Hazardous Waste Determination), and if non-hazardous, to the criteria listed in sec.335.505 of this title (relating to Class 1 Waste Determination). Paper or cardboard containers may be classified as Class 1 or 2 under the provisions of paragraph (2) of this section. (B) Paper, cardboard, linings, wrappings, paper packaging materials, food wastes, glass, aluminum foil, plastics, styrofoam, and food packaging, that are produced as a result of plant production, manufacturing or laboratory operations and that are classified as Class 2 waste shall be designated "plant production refuse". Plant production refuse shall not include oils, lubricants of any type, oil filters, contaminated soils, sludges, or wastewaters. (C) Paper, cardboard, linings, wrappings, paper or wood packaging materials, food wastes, glass, aluminum foil, plastics, styrofoam, and food packaging, that come from general office, cafeteria, or food service operations, that are classified as Class 2 wastes, shall be designated "plant office refuse." (D) Any Class 2 Waste from production, manufacturing, or laboratory operations can be designated as "supplemental plant production refuse" as long as the total amount of the supplemental plant production refuse does not exceed 20% of the total plant production refuse volume or weight, whichever is less. Individual wastes which have been designated supplemental plant production refuse may be designated by the generator at a later time as a separate waste in order to maintain the supplemental plant production refuse at a level below 20% of the appropriate plant production refuse amount. For any waste stream redesignated, the generator must provide the notification information required pursuant to this subchapter. (E) Wastes associated with first aid station, medical emergencies, or other non surgical medical treatment shall be designated as Class 2 wastes and are subject to the provisions of sec.sec.330. 1004-330.1009. (4) Media contaminated by a material containing greater than or equal to 50 parts per million total polychlorinated biphenyls (PCBs) and wastes containing greater than or equal to 50 ppm PCBs shall be classified as Class 1. (5) Waste containing petroleum hydrocarbon concentration greater than 1500 parts per million total petroleum hydrocarbon (TPH) shall be classified as Class 1. Wastes resulting from the cleanup of leaking underground storage tanks (USTs) which are regulated under Chapter 334 Subchapter K of this title (relating to Petroleum Substance Waste) are not subject to classification under this subchapter. (6) Wastes generated by the mechanical shredding of automobiles, appliances, or other items of scrap, used or obsolete metals shall be handled according to the provisions set forth in Texas Solid Waste Disposal Act, Health and Safety Code, sec.361. 019 (Vernon Pamphlet 1992), until the commission develops specific standards for the classification of this waste and assures adequate disposal capacity. (7) If a nonhazardous industrial solid waste is generated as a result of commercial production of a "new chemical substance" as defined by the federal Toxic Substances Control Act, 15 United States Code, sec.2602(9), the generator shall notify the commission prior to the processing or disposal of the waste and shall submit documentation requested under sec.335.513(b) and (c) of this title (relating to Documentation Required) for commission review. The waste shall be managed as a Class 1 waste, unless the generator can provide appropriate analytical data and/or process knowledge which demonstrates that the waste is Class 2 or Class 3, and the commission concurs. If the generator has not received concurrence from the commission within 120 days from the date of the request for review, the generator may manage the waste according to the requested classification, but not prior to giving 10 working days written notice to the commission. (8) All nonhazardous industrial solid waste generated outside the State of Texas and transported into or through Texas for processing, storage, or disposal shall be classified as: (A) Class 1; or (B) may be classified as a Class 2 or Class 3 waste if: (i) the material satisfies the Class 2 or Class 3 criteria as defined in sec.sec.335.506, 335.507, or 335.508 of this title (relating to Class 2 Waste Determination; Class 3 Waste Determination; Classification of Specific Industrial Solid Wastes); and (ii) a request for Class 2 or Class 3 waste determination is submitted to the commission accompanied by all supporting analytical data. Waste generated out- of-state may be assigned a Class 2 or Class 3 classification only after approval by the commission. sec.335.509. Waste Analysis. (a) Generators who use analytical methods to classify their waste must use methods described in "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods," SW-846, "Methods for Chemical Analysis of Water and Wastes," EPA-600, "Standard Methods for the Examination of Water and Wastewater," or American Society for Testing and Materials (ASTM) Standard Methods, or may request in writing that the commission review and approve an alternate method. The generator must also choose representative sample(s) of their waste, as described in Chapter 9 of SW-846. A generator who proposes to use an alternate method must validate the alternate method by demonstrating that the method is equal to or superior in accuracy, precision, and sensitivity to the corresponding SW-846, EPA-600, Standard Method, or ASTM method. (b) The generator proposing an alternate method shall provide the commission with the following information: (1) a full description of the proposed method including all equipment used; (2) a description of the types of wastes and waste matrices analyzed; (3) comparative results of the proposed method and the corresponding SW-846 method; (4) a complete assessment of any factors which may interfere with the method; and (5) a description of the quality control procedures necessary to ensure the sensitivity, accuracy, and precision of the proposed method. (c) Upon request of he executive director, generator shall provide additional information as necessary to enable the executive director to adequately review the alternate methods proposed by the generator. sec.335.510. Sampling Documentation. (a) Generators who use analytical data to classify their Class 2 and Class 3 wastes pursuant to sec.335.509 of this title (relating to Waste Analysis) must maintain documentation of their sampling procedures. (b) The sampling documentation must, at a minimum, include the following: (1) dates samples were collected; (2) a description of the site or unit from which the sample is taken and sampling location(s) at the site unit; (3) methods and equipment utilized; and (4) description of sample handling techniques, including containerization, preservation, and chain of custody. (c) Generators shall document all the information listed in subsection (b) of this section, and retain copies on- site for a minimum of five years after waste is no longer generated or upon site closure, pursuant to sec.335.513 of this title (relating to Documentation Required). (d) Generators who have existing sampling documentation, which includes the information listed in subsection (b) of this section, do not need to prepare any new documentation specifically for this section. sec.335.511. Use of Process Knowledge. (a) Generators may use their existing knowledge about the process to classify or assist in classifying a waste as Hazardous, Class 1, Class 2, or Class 3. Process knowledge must be documented and maintained on site pursuant to sec.335.513 of this title (relating to Documentation Required). Material safety data sheets, manufacturers' literature, and other documentation generated in conjunction with a particular process may be used to classify a waste provided that the literature provides sufficient information about the waste and addresses the Class 1 criteria set forth in sec.335.505 of this title (relating to Class 1 Waste Determination). A generator must be able to demonstrate requisite knowledge of his or her process by satisfying all of the following. (1) The generator must have a full description of the process, including a list of chemical constituents that enter the process. Constituents listed in Appendix 1 of this subchapter must be addressed in this description. (2) The generator must have a full description of the waste, including a list of chemical constituents likely to be in the waste. This list should be based on paragraph (1) of this subsection. (3) The generator may develop a subset of Appendix 1 constituents by which to evaluate the waste utilizing the information from paragraphs (1) and (2) of this subsection. (4) Documentation of the waste classification must be maintained, and provided to the commission if required, pursuant to sec.335.513 of this title. (b) If a total analysis of the constituents the generator chooses to evaluate demonstrates that individual analytes are not present in the waste, or that they are present but at such low concentrations that the appropriate maximum leachable concentrations could not possibly be exceeded, the TCLP extraction procedure discussed in sec.335.505(1) of this title need not be run. If an analysis of any one of the liquid fractions of the TCLP extract indicates that a regulated constituent is present at such high concentrations that, even after accounting for dilution from the other fractions of the extract, the concentration would be equal to or greater than the maximum leachable concentration for that constituent, then the waste is Class 1, and it is not necessary to analyze the remaining fractions of the extract. sec.335.512. Executive Director Review. (a) The executive director may review the generator's classification of any waste to determine if it is appropriately classified. If the executive director determines that a waste has been classified incorrectly according to the standards set forth in this subchapter, or if the executive director determines that extenuating circumstances that may result in threat of harm to human health or the environment warrant an upgrading of the classification, the executive director may reclassify the waste to the more stringently regulated classification. The executive director shall provide the generator with written notice of his determination and reclassification. (b) A person who believes that the commission staff has inappropriately classified a waste pursuant to this section may appeal that decision. Such appeal must be filed within 30 days of the date of the receipt of the executive director's determination. The person shall file an appeal directly with the executive director requesting a review of the waste classification. If the person is not satisfied with the decision of the executive director on the appeal, the person may request an evidentiary hearing to determine the appropriateness of the classification by filing a request for hearing with the commission. sec.335.513. Documentation Required. (a) Documentation on each waste stream is required to be maintained by the generator in accordance with the requirements of this subchapter and in accordance with sec.335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators). (b) The following documentation shall be submitted by the generator to the commission prior to waste shipment or disposal and not later than 90 days of initial waste generation: (1) description of waste; (2) date of initial waste generation; (3) description of process that generated the waste; (4) hazardous waste determination; (5) all analytical data and/or process knowledge allowed under sec.335.511 of this title (relating to Use of Process Knowledge) used to characterize Class 3 wastes, including quality control data; and (6) waste classification determination. (c) The following documentation shall be maintained by the generator on site immediately upon waste generation and for a minimum of five years after the waste is no longer generated or stored or until site closure: (1) all information required under subsection (b) of this section; (2) all analytical data and/or process knowledge allowed under sec.335.511 of this title (relating to Use of Process Knowledge) used to characterize Hazardous, Class 2 and Class 3 wastes, including quality control data. (d) The executive director may request that a generator submit all documentation listed in subsections (b) and (c) of this section for auditing the classification assigned. Documentation requested under this section shall be submitted within 10 working days of receipt of the request. (e) Any changes to the information required in subsections (b) and (c) of this section shall be maintained or submitted according to the timing requirements of this section. sec.335.514. Variance from Waste Classification Provisions. (a) The executive director may determine on a case-by-case basis the merits of the following types of variances: (1) compliance with timing requirements under sec.335.502 of this title (relating to Conversion to New Waste Notification and Classification System); (2) appropriateness of a particular waste classification resulting from application of the classification criteria; and (3) other matters requiring special attention by the commission. (b) Factors to be considered in determining whether a variance should be granted include, but are not limited to, circumstances which were reasonably unforeseeable and beyond the reasonable control of the generator, or the use of alternating classification criteria or procedures which meet or exceed the requirements and intent of these rules. The burden of justifying the need for a variance is on the requestor, and the requestor must submit information sufficient to clearly indicate the issues involved, the reason(s) for the request, and both positive and negative impacts that may result from the granting of the variance. Prior to approval for the variance must be obtained before any change is authorized. (c) A person who feels that the executive director has inappropriately denied a request for variance may appeal that decision. The person shall file an appeal directly with the executive director requesting a review of the variance. If the person is not satisfied with the decision of the executive director, he or she may request an evidentiary hearing to determine the appropriateness of the variance, by filing a request for hearing with the chief hearings examiner of the Texas Water Commission. sec.335.515. Enforcement. (a) It is a violation of commission rules if a waste is not properly classified according to the provisions of this subchapter. (b) Where violations of this subchapter occur, the executive director may initiate formal enforcement action and may seek administrative penalties and order corrective actions, as prescribed under Chapter 337 of this title (relating to Enforcement), or pursue any other remedy available at law. (c) When establishing corrective actions and penalty amounts involving violations of this subchapter, the executive director should consider circumstances which mitigate the nature or extent of the violations in accordance with applicable rules and statutes. [graphic] 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 November 6, 1992. TRD-9215007 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: November 27, 1992 Proposal publication date: August 18, 1992 For further information, please call: (512) 463-8069 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Texas Department of Insurance, 333 Guadalupe, Austin.) The State Board of Insurance, on October 14, 1992, as requested in a petition filed on behalf of the Texas Automobile Insurance Service Office, adopted amendments to the Texas Automobile Rules and Rating Manual. The Board's action deletes TE 23 14 and TE 23 15, Truckers endorsements concerning the Equipment Interchange Association; amends Endorsements 502 (to become 502A) and 503 (to become 503A) which concern uninsured/underinsured motorists coverage; and amends Rule 45 which concerns short rate cancellation and Rule 58 which governs the use of the two Truckers endorsements. The amendments are adopted effective December 15, 1992. For further information or to request copies of the Board Order, please contact Angie Arizpe at (512) 322-4147. Refer to Reference Number A-0892-49. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register 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 November 6, 1992. TRD-9215015 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: December 15, 1992 For further information, please call: (512) 463-6327