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 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 1. Library Development Library Services and Construction Act Annual Program and Long Range Plan 13 TAC sec.1.21 The Texas State Library and Archives Commission adopts an amendment to sec.1.21, concerning the federal Library Services and Construction Act Long Range Plan and Annual Program, without changes to the proposed text as published in the September 8, 1992, issue of the Texas Register (17 TexReg 6173). The amendment is adopted to comply with the Code of Federal Regulations, Title 34, Part 770, Subpart C, which relates to the Library Services and Construction Act, 20 United States Code 351 et seq. The amendment revises the federal Library Services and Construction Act Long Range Plan and Annual Program to describe the types of financial assistance and services that will be provided to libraries and systems of libraries. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 441, sec.009, which provides the Texas State Library and Archives Commission with the authority to adopt a state plan for the improvement of library service in Texas. 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 March 1, 1993. TRD-9319791 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: March 24, 1993 Proposal publication date: September 8, 1992 For further information, please call: (512) 463-5440 Standards for Accreditation of a Major Resource System of Libraries in the Texas Library System 13 TAC sec.1.63 The Texas State Library and Archives Commission adopts an amendment to sec.1.63, concerning proposal requirements and cash reserves for regional library system, without changes to the proposed text as published in the September 8, 1992, issue of the Texas Register (17 TexReg 6173). The Government Code, Chapter 441.135 empowers the Texas State Library and Archives Commission to establish a program of grants, including system operation grants for major resource systems and regional library systems. In this rule, the Commission articulates the requirements for a non-profit corporation or a business to qualify for a regional library system grant. This amendment adds a requirement for a detailed business plan, including cash flow analysis, cash flow management plan, verification of lines of credit or cash reserves, risk analysis, risk management plan, and verification of insurance coverage. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 441, sec.136, which provides the Texas State Library and Archives Commission with the authority to adopt rules for the administration of the Library Systems 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 March 1, 1993. TRD-9319794 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: March 24, 1993 Proposal publication date: September 8, 1992 For further information, please call: (512) 463-5440 13 TAC sec.1.64 The Texas State Library and Archives Commission adopts the repeal of sec.1. 64, concerning cash reserves for regional library systems, without changes to the proposed text as published in the September 8, 1992, issue of the Texas Register (17 TexReg 6174). The Government Code, Chapter 441.135 empowers the Texas State Library and Archives Commission to establish a program of grants, including system operation grants for major resource systems and regional library systems. In this rule, the Commission had articulated one requirement for a non-profit corporation or a business to qualify for a regional library system grant. This repeal deletes a requirement for a 25% cash reserve. This is being done because the Commission is also proposing an amendment to sec.1.63 which includes the requirement for a detailed business plan, including cash flow analysis, cash flow management plan, verification of lines of credit or cash reserves, risk analysis, risk management plan, and verification of insurance coverage; these documents will enable the Commission to assess the financial viability of a non- profit corporation or business, without requiring a specific cash reserve. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, Chapter 441, sec.136, which provides the Texas State Library and Archives Commission with the authority to adopt rules for the administration of the Library Systems 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 March 1, 1993. TRD-9319795 Raymond Hitt Assistant State Librarian Texas State and Library and Archives Commission Effective date: March 24, 1993 Proposal publication date: September 8, 1992 For further information, please call: (512) 463-5440 TITLE 22. EXAMINING BOARDS Part VIII. Texas Appraiser Licensing and Certification Board Chapter 153. Provisions of the Texas Appraiser Licensing and Certification Act 22 TAC sec.153.9 The Texas Appraiser Licensing and Certification Board adopts an amendment to sec.153.9, concerning Applications, with changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 33). The amendment adopts changes to the Adoption by Reference material. However, sec.153.9 is not being adopted with changes from the proposed. The amendment modifies the application forms for a state certification or license, and for approval as an appraiser trainee. In addition to editorial changes, the amendment requires notarized signatures, and incorporates into the application form a statement concerning the possible non-renewal of a license, certification, or approval issued from that application for those who are in default on TGSLC loans, pursuant to sec.153.17(h) and the Texas Education Code, sec.57.491. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Appraiser Licensing and Certification Act, Texas Civil Statutes, Article 6573a.2, which provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules and regulations necessary for the performance of its duties. sec.153.9. Applications. (a) (No change.) (b) The Texas Appraiser Licensing and Certification Board adopts by reference the following forms approved by the board in 1991 and 1993, and published by and available from the board, P.O. Box 12188, Austin, Texas 78711-2188: (1) TALCB Form 1.1, Application for Appraiser Certification or Licensing and Examination; (2)-(3) (No change.) (4) TALCB Form 4.2, Application for Approval as an Appraiser Trainee; (5)-(8) (No change.) (c)-(f) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 3, 1993. TRD-9319861 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: April 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 465-3950 22 TAC sec.153.17 The Texas Appraiser Licensing and Certification Board adopts an amendment to sec.153.17, concerning Renewal of Certification, License or Trainee Approval; Appraiser Continuing Education, without changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 33). Subsection (g), Renewal of Licenses for Servicemen in Active Duty Outside the State, is necessary for the board to comply with House Bill 1393, 72nd Legislature, 1991. The subsection permits a licensee on active military duty to renew an expired license by documenting active duty outside the state, applying for renewal within 90 days after the active duty ends, paying the renewal fee in effect when the license expired, and satisfying any education or experience requirements that would have been imposed for a timely renewal. Subsection (h), Denial of Licensing and Certification of Person who are in Default on TGSLC Loans, provides that license and certification renewals are subject to the Texas Education Code, sec.57.491, and that the board must give notice and opportunity for a hearing prior to declining to renew a license or certification for defaulting on a TGSLC loan or a repayment agreement. The subsection also requires the board to advise licensees of the effect of a default on subsequent license or certification renewals. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Appraiser Licensing and Certification Act, Texas Civil Statutes, Article 6573a.2, which provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 3, 1993. TRD-9319862 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: April 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 465-3950 22 TAC sec.153.19 The Texas Appraiser Licensing and Certification Board adopts an amendment to sec.153.19, concerning Licensing and Certification of Persons with Criminal Backgrounds, with changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 34). The proposed section prohibits those who are incarcerated from obtaining or renewing a license or certification; provides for the suspension or revocation of an existing license or certification because of a conviction of a felony or misdemeanor; provides the rationale for honesty, trustworthiness, and reliability to protect the public; provides factors which the Board may consider in determining the fitness of a person to become licensed or certified; and requires the applicant to be responsible for securing and providing the Board with necessary information for the Board's determination. No written comments were received; however, a representative of the Texas Appraisers Coalition of Texas (FACT) presented oral comments at a public hearing on the proposed amendment. The Board agreed with the comments on sec.153.19. The amendment is adopted under the Texas Appraiser Licensing and Certification Act, Texas Civil Statutes, Article 6573a.2, which provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules and regulations necessary for the performance of its duties. sec.153.19. Licensing and Certification of Persons with Criminal Backgrounds. (a) No currently incarcerated individual will be eligible to obtain or renew an appraiser license or certification. (b) As provided in Texas Civil Statutes, Article 6252-13c, the Board may suspend or revoke an existing valid license or certification, disqualify an individual from receiving a license or certification, or deny to a person the opportunity to be examined for a license or certification because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of the licensed or certified occupation. The Board shall revoke the license or certification of an individual upon his felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision. (c) The Texas Appraiser Licensing and Certification Board considers it very important that persons who are licensed or certified, persons who are candidates to be licensed or certified, and persons who are training to be licensed or certified, be honest, trustworthy, and reliable. The public necessarily reposes a great deal of trust and reliance upon licensed and certified appraisers because of the complex nature of appraisal valuation, and such relationship should not be undermined. When entering onto another's business or residential property or when representing the interests of another, an appraiser must have the ability to conduct himself or herself with honesty, trustworthiness, reliability, and integrity. Thus, the Board deems the following felonies and misdemeanors directly related to the occupation of licensed or certified appraisers or appraiser trainees: (1) offenses involving fraud or misrepresentation; (2) offenses against real or personal property belonging to another, if committed knowingly or intentionally; (3) offenses against public administration; (4) offenses involving the sale or other disposition of real or personal property belonging to another without authorization of law; (5) offenses involving moral turpitude; and (6) offenses of attempting or conspiring to commit any of the foregoing offenses. (d) In determining whether a criminal offense is directly related to an occupation, the Board shall consider the following factors: (1) the nature and seriousness of the crime; (2) the relationship of the crime to the purposes for requiring a license or certification to engage in the occupation; (3) the extent to which a license or certification might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and (4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed or certified occupation. (e) In addition to the factors that may be considered under subsection (b) of this section, the Board, in determining the present fitness of a person who has been convicted of a crime, shall consider the following evidence: (1) the extent and nature of the person's past criminal activity; (2) the age of the person at the time of the commission of the crime; (3) the amount of time that has elapsed since the person's last criminal activity; (4) the conduct and work activity of the person prior to and following the criminal activity; (5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and (6) other evidence of the person's present fitness including letters of recommendations from: prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the convicted person. (f) It shall be the responsibility of the applicant to the extent possible to secure and provide the Board the recommendations of the prosecution, law enforcement, and correctional authorities; the applicant shall also furnish proof in such form as may be required by the Board that he or she has maintained a record of steady employment and has supported his or her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted. 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 March 3, 1993. TRD-9319863 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: April 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 465-3950 22 TAC sec.153.20 The Texas Appraiser Licensing and Certification Board (TALCB) adopts new sec.153.20, concerning Guidelines for Revocation and Suspension; Investigation, with changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 35). The section defines specific actions by licensees which may be cause for suspension or revocation of a license or certification; provides for Board discretion in determining appropriate penalties but restricts some infractions to specific penalties; provides that provisions of this rule do not relieve a licensee from civil liability or criminal prosecution; provides for complaints and investigations; prohibits undercover or covert investigations and anonymous complaints; holds Board members and employees harmless with respect to disclosures made to the Board in connection with any complaints; and provides for notice and referral of contested cases to the State Office of Administrative Hearings. Written comments were received from the Independent Bankers Association of Texas (IBAT), Texas Bankers Association (TBA), National Association of Master Appraisers (NAMA), and five individuals. Additionally the Foundation Appraisers Coalition of Texas (FACT) presented oral comments at the public hearing. Comments included: redefining a consumer as the person who pays the appraisal fee; specific note requiring appraisals to conform to USPAP; concern about the terminology of "timely or agreed upon manner" in subsection (a)(4) and (5), and "negligent misrepresentation of material fact" in paragraph (8); changing "timely" to "an agreed upon manner" in subsection (a); revisiting penalties for specific offenses and for all offenses; clarifying who may file a complaint; various other items requiring clarification; preparing a user friendly complaint form; requiring language on an appraisal report referring the user to the TALCB; and some editorial changes. The Board agreed with many of the comments and made a number of changes to the proposed rules reflecting those comments. The Board disagreed, however, with several comments because they were outside the Board's jurisdiction, or were judged to be less desirable than the adopted rules for meeting the statutory responsibilities of the Board. The new section is adopted under the Texas Appraiser Licensing and Certification Act, Texas Civil Statutes, Article 6573a.2, which provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules and regulations necessary for the performance of its duties. sec.153.20. Guidelines for Revocation and Suspension; Investigation. (a) The Texas Appraiser Licensing and Certification Board (the Board) may suspend or revoke a license or certification issued under provisions of the Texas Appraiser Licensing and Certification Act (the Act) at any time when it has been determined that the person holding the license or certification: (1) has been convicted of a felony; (2) has disregarded or violated a provision of the Act or of the Rules of the Texas Appraiser Licensing and Certification Board; (3) has acted or held himself or herself or any other person out as a licensed or certified real estate appraiser under the Act when not so licensed or certified; (4) has accepted payment for appraisal services and has failed to deliver the agreed service in the agreed upon manner; (5) has refused to refund payment received for appraisal services when he or she has failed to deliver the appraisal service in the agreed upon manner; (6) has accepted payment for services contingent upon a minimum, maximum, or pre-agreed value estimate when such action would interfere with the appraiser's obligation to provide an independent and impartial opinion of value; (7) has offered to perform appraisal services or has agreed to perform such services when employment to perform such services is contingent upon a minimum, maximum, or pre-agreed value estimate when such action would interfere with the appraiser's obligation to provide an independent and impartial opinion of value; (8) has made a willful or grossly negligent misrepresentation or any willful or grossly negligent omission of material fact; (9) has had a license or certification as an appraiser revoked, suspended, or otherwise acted against by any other jurisdiction for an act which is an offense under Texas law; (10) is confined in any county jail, post adjudication; is confined in any state or federal prison or mental institution; or through mental disease or deterioration, can no longer safely be entrusted to deal with the public or in a confidential capacity; (11) has procured license or certification pursuant to the Act by making false or fraudulent representation; (12) has failed to actively, personally, and diligently supervise an appraiser trainee under his or her sponsorship or any person not licensed or certified under the Act who assists the licensee or certificate holder in performing real estate appraisals; (13) has had a final civil judgment entered against him or her on grounds of fraud or willful or grossly negligent misrepresentation in the making of an appraisal of real estate. (b) The Board has discretion in determining the appropriate penalty for any violation under subsection (a) of this section with the following restrictions: (1) Penalty for an offense under subsection (a)(1) of this section shall be immediate revocation of license or certification pursuant to Texas Civil Statutes, Article 6252-13c(4)(e). (2) Penalty for an offense under subsection (a)(3) of this section shall be suspension or withholding of license or certification for a period not to exceed two years. (3) Penalty for a first violation under subsection (a)(4) of this section shall be suspension of license or certification for a period not to exceed 60 days. (4) Penalty for a second violation under subsection (a)(4) of this section shall be suspension of license or certification for a period not to exceed one year. (5) Penalty for a third violation under subsection (a)(4) of this section shall be suspension of license or certification for a period not to exceed three years. (6) Penalty for an offense of either subsection (a)(6) or (7) of this section shall be suspension of license or certification not to exceed a period of three years. (c) The provisions of this section do not relieve a person from civil liability or from criminal prosecution under the Act or under the laws of this State. (d) The Board may direct the commissioner, on signed complaint in writing or upon the Board's own motion, to investigate the actions and appropriate records of a state licensed real estate appraiser, a state certified real estate appraiser, or an appraiser trainee. (e) The commissioner may ask for inspection of an appraiser's books and records relative to a specific complaint or investigation. The appraiser must produce the specified documents within 60 days of the request. (f) The Board may not investigate under this section a complaint submitted more than two years after the date of discovery of the incident involving the state licensed real estate appraiser, state certified real estate appraiser, or appraiser trainee that is the subject of the complaint. (g) Notwithstanding any other provision of the Act, there shall be no undercover or covert investigations conducted by authority of the Act. No investigations of licensees or certificate holders or any other actions against licensees or certificate holders shall be initiated on the basis of anonymous complaints whether in writing or otherwise, but shall be initiated only upon the Board's own motion or a signed written complaint. Upon the adoption of such a motion by the Board or upon receipt of such complaint, the licensee or certificate holder shall be notified promptly and in writing unless the Board itself, after due consideration, determines otherwise. (h) All Board members, officers, directors, and employees of this agency shall be held harmless with respect to any disclosures made to the Board in connection with any complaints filed with the Board. (i) If the board determines to take further action, notice of a hearing shall be given in accordance with sec.151.17 of this title (relating to Notice of Hearing); and any further proceedings shall be considered to be a contested case and to be governed by the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. The hearing shall be conducted by the State Office of Administrative Hearings pursuant to Texas Civil Statutes, Article 6252-13f, and Chapter 155 of this title (relating to Standards of Practice). 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 March 3, 1993. TRD-9319864 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: April 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 465-3950 Part XVI. Texas State Board of Physical Therapy Examiners Chapter 331. Endorsement Licensure 22 TAC sec.331.1 The Texas State Board of Physical Therapy Examiners adopts an amendment to sec.331.1, concerning reporting of test scores, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7568). The new grading system will further ensure the safety of the public by establishing a basic level of knowledge that must be demonstrated on the examination by persons desiring licensure in this state. The new grading system will assist the board in ensuring the safety of the public by licensing only qualified applicants. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512e, sec.3(e), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with the Texas Physical Therapy Practice Act to carry out its duties in administering the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1993. TRD-9319881 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: March 26, 1993 Proposal publication date: October 27, 1993 For further information, please call: (512) 443-8202 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.7.51 The State Board of Insurance of the Texas Department of Insurance adopts an amendment to sec.7.51, concerning forms and instructions for preparing and filing of tax returns for insurers and other entities required to file tax returns with the department for the 1991 calendar year, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8266). The amending section is necessary to delete an instruction on: a form identified as the Instructions for Filing and Preparing the 1992 Texas Annual Tax Return for Domestic, Foreign and Alien Carriers Transacting Life, Health and Accident Business; a form identified as the Instructions for Filing and Preparing the 1991 Texas Annual Tax Return for Domestic, Foreign, and Alien Carriers Transacting Property and Casualty Business; and a form identified as the Instructions for Filing and Preparing the 1991 Texas Annual Tax Return for Health Maintenance Organizations; in order to be in compliance with the exemptions from premium tax allowed institutions of higher education as provided in the Insurance Code, Articles 3.50-2 and 3.50-3 and the legislative intent of House Bill 2, enacted during the Regular Session of the 72nd Legislature of Texas. An amendment to House Bill 2 authorized the consolidation of higher education insurance under the Employee Retirement System and allowed a one-year transition period to transfer higher education insurance administration to the Employee Retirement System. The amendments to House Bill 2 did not include or address the exemptions from premium tax for institutions of higher education for the one-year transition period. The amended instructions will continue the historical exemption from premium tax for certain insurance business written for Texas institutions of higher education during the one year transition period. Timely and accurate payment of taxes is necessary for support of regulatory functions of the department. The forms and instructions include requirements for information respecting gross premium taxes, maintenance taxes, and other taxes, and certain incidental fees and provide a form to be used in determining and reporting the amount owed. The department has filed copies of these forms and instructions with the Secretary of State's Office, Texas Register Section. Persons desiring copies of the forms and instruction can obtain copies from Tax Administration, Texas Department of Insurance, Tower 1, Room 860, 333 Guadalupe Street, Austin. Section 7.51 concerns an amendment to certain instructions relating to premium tax exemptions for the 1991 tax year. The instructions issued for this tax year failed to reflect the legislative intent of Articles 3.50-2, 3.50-3 and House Bill 2 enacted during the Regular Session of the 72nd Legislature of Texas relating to institutions of high education. Instead, these instructions reflected the language of House Bill 2, which did not address the exemptions for higher education during a year transition period during which higher education insurance administration would be consolidated under the Employee Retirement System. The amendment to 7.51 adopts by reference certain instruction forms for the preparation of annual tax returns of insurers and other entities subject to premium taxes. The new section provides insurers and other entities with the necessary instructions for filing tax returns as required by statute. There were no comments received. The amendment is proposed under the Insurance Code, Articles 1.10, sec.9, 1. 35B, 4.10, 4.11, 4.11B, 4.11C, 4.17, 5.12, 5.24, 5.49, 5.68, 9.46, 20A.22, 20A. 33, 23.08 and 1.04; and Texas Civil Statutes, Article 6252-13a, sec.4, sec.5, and Articles 8308-2.22 and 8308-11.09. Articles 20A.22 and 20A.33 have been referenced to previously in the rules as the Texas Health Maintenance Organization Act, sec.22 and sec.33. Article 1.10, sec.9, requires the department to furnish to companies required to report to the department, statement blanks for the statements required. Article 1.35B imposes an assessment for support of the Office of Public Insurance Counsel. Article 4.07 specifies the charges for certain fees. Articles 4.10, 4.11, 4.11B, 4.11C, and 20A.33; and Texas Civil Statutes, Articles 8308-2.22, and 8308-11.09 require payment of taxes on gross premiums by entities regulated by the department or on gross amounts of similar revenue by health maintenance organizations. Articles 4.17, 5.12, 5.24, 5.49, 5.68, 9.46, 20A.33, and 23.08, require the payment of maintenance taxes by certain entities regulated by the department. Articles 4.10, 4.11, and 20A. 22 give the board rulemaking authority. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, require and authorize each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and prescribe the procedures for adoption of rules by a state administrative agency. Article 1.04(b), authorizes the State Board of Insurance to determine rules in accordance with the laws of this state for uniform application. 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 March 4, 1993. TRD-9319871 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 25, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 463-6327 Chapter 15. Surplus Lines Insurance Subchapter B. Surplus Lines Stamping Office of Texas 28 TAC sec.15.101 The Texas Department of Insurance adopts an amendment to sec.15.101 concerning the plan of operation of the Surplus Lines Stamping Office of Texas, without changes to the proposed text as published in the January 26, 1993, issue of the Texas Register (18 TexReg 459). The section defines terms, sets standards of operation, and provides guidelines for the discharge of responsibilities of the Surplus Lines Stamping Office of Texas in accordance with the Insurance Code and the rules and regulations of the State Board of Insurance. The amendment is necessary to clearly define the number of directors on the Board of Directors, to encourage general public membership, and to eliminate restrictive qualifications for membership to the Board of Directors. New sec.15.101 adopts changes to the Plan of Operation of the Surplus Lines Stamping Office of Texas. The new section provides for the makeup of Board of Directors and sets minimum standards for Board members, with specific reference to the number of and experience of public representatives. This will allow for membership from the general public. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Articles 1.14-2 and 1.04. Article 1.14-2, 3A, provides that the Texas Department of Insurance may promulgate rules to enforce Article 1.14-2, and provides that the Texas Department of Insurance shall monitor the activities of surplus lines to the extent necessary to protect the public interest; and Article 1.04 authorizes the Texas Department of Insurance to determine rules in accordance with the laws of this state. Article 6552-13a, 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 and rules by a state administrative agency. 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 March 4, 1993. TRD-9319872 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 25, 1993 Proposal publication date: January 26, 1993 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 15. Coastal Area Planning Subchapter E. Interim Approval of Local Government Dune Protection and Beach Access Plans 31 TAC sec.sec.15.70-15.79 The General Land Office adopts new sec.sec.15.70-15.79, concerning the approval of the Nueces County and Cameron County dune protection and beach access plans, the identification and preservation of critical dune areas, and the preservation and enhancement of public beach access in those counties as required by recent amendments to state law, with one change to the proposed text published in the October 9, 1992, issue of the Texas Register (17 TexReg 7045). The change drops the May 31, 1993, expiration date that appeared in proposed sec.15.72(a), and makes it clear that Nueces County and Cameron County will have to resubmit their plans for approval under the Management of the Beach/Dune System rules recently adopted by the General Land Office at 31 TAC sec.sec.15.1- 15.10. The Management of the Beach/Dune System rules require that all coastal counties, including Nueces County and Cameron County, submit their plans to the General Land Office by August 2, 1993. Amendments to the Dune Protection Act and the Open Beaches Act require any local government with dune complexes and public beaches within its jurisdiction to manage development and other land uses in the beach/dune system through issuance of permits and certificates. The geographic scope of this authority generally includes an area extending landward 1,000 feet from the mean high tide line, though in some cases it extends beyond that to the closest public road. The legislation also addresses local government's adoption of beach traffic ordinances and beach user fees. The legislation places the General Land Office in an oversight role and gives local governments new powers to manage dunes and beaches. It requires the General Land Office to promulgate rules that local governments must observe in exercising these new management. Nueces County and Cameron County have preceded the General Land Office in developing beach/dune system management programs. These counties have worked in close cooperation with the General Land Office and the Attorney General's Office. They have developed interim plans that basically meet the spirit and intent of the Open Beaches Act and Dune Protection Act. Because of the leadership role that Nueces County and Cameron County have played by pursuing early development of beach access and dune protection plans, and because their plans serve the purposes set out by the Texas Legislature, the General Land Office will grant interim approval of the plans. Approval is granted on an interim basis because the plans will require further refinements and may also need revisions to be consistent with the Management of the Beach/Dune System rules. These permanent rules took effect on February 3, 1993, and require local governments to submit plans by August 2, 1993. Nueces County and Cameron County will resubmit their interim plans, with changes, if any, for certification under the permanent rules by that time. The General Land Office received no comments on the proposed rules. The new sections are adopted under the Texas Natural Resources Code, sec.sec.61.011, 61.015(b), and 63.121, which provides the General Land Office with the authority to identify and protect critical dune areas and to preserve and enhance public beach access, as well as the Texas Natural Resources Code, sec.33.601, which provides the General Land Office with the authority to adopt rules on erosion; and the Texas Water Code, sec.16.321, which provides the General Land Office with the authority to adopt rules on coastal flood protection. sec.15.72. Administration. (a) Approval of Nueces County and Cameron County plans. This rule applies only to those areas regulated under the Nueces County and Cameron County dune protection and beach access plans. In this rule the General Land Office is approving the Nueces County dune protection and beach access plan, adopted by order of the Nueces County Commissioners' Court on March 25, 1992, and the Cameron County dune protection and beach access plan, adopted by order of the Cameron County Commissioners' Court on August 3, 1992. Both the Nueces County and Cameron County plans will be subject to revision in accordance with the Management of the Beach/Dune System rules adopted by the General Land Office. The revised plans must be submitted to the General Land Office by August 2, 1993, as required by the Management of the Beach/Dune System rules. (b) Integration of dune protection and beach access programs. The Dune Protection Act and the Open Beaches Act require certain local governments to adopt and implement programs for the preservation of dunes and the preservation and enhancement of use of and access to public beaches. These Acts provide for regulation of generally the same activities and the same geographic areas, and their requirements are scientifically and legally related. Local governments required to adopt dune protection and beach access programs shall integrate them into a single plan consisting of procedural and substantive requirements for management of the beach/dune system within their jurisdiction. Such plans shall be consistent with the requirements of the Open Beaches Act, the Dune Protection Act, and this subchapter and each shall, whenever possible, incorporate the local government's ordinary land use planning procedures. (c) Dune protection lines and critical dune areas. The commissioner of the General Land Office, as trustee of the public land of Texas, has the responsibility to identify and protect Texas' critical dune areas that are essential to the protection of coastal public land, public roads, public beaches, and other public resources. Local governments have the responsibility to establish dune protection lines for the purpose of preserving sand dunes within their jurisdiction. The Dune Protection Act, sec.63.121 and sec.63.012 respectively limit the geographic scope of critical dune areas and the location of the dune protection line to that portion of the beach within 1,000 feet of mean high tide of the Gulf of Mexico. (d) Beachfront construction certification areas. The General Land Office, in conjunction with the Attorney General's Office, has the responsibility to protect the public's right to use and access the public beach and to provide standards to the local governments certifying construction on land adjacent to the open Gulf of Mexico consistent with such public rights. The Open Beaches Act, sec.61.011(d)(6), limits the geographic scope of the beachfront construction certification area to the land adjacent to and landward of public beaches and lying in the area either up to the first public road or the area up to 1,000 feet of mean high tide, whichever distance is greater. (e) Establishment of dune protection lines. Local governments shall establish dune protection lines which preserve, at a minimum, the dunes within the critical dune areas as defined in this subchapter. Local governments shall notify the General Land Office of the establishment of dune protection lines and any subsequent change in a line. Upon notification of the establishment or change in the location of the dune protection line, the General Land Office shall review the location of the line. If the General Land Office is satisfied that all critical dune areas are seaward of the dune protection line, the General Land Office will notify the local government of this finding in writing. If the local government does not locate the dune protection line landward of critical dune areas, the General Land Office will assist and advise the local government in adjusting the line. Local governments are required to file a map and description of their dune protection lines with the clerk of the county or municipality establishing the line and with the General Land Office. (f) Notice of establishment of a dune protection line. Local governments shall provide notice of a public hearing to consider establishing a dune protection line by publishing such notice at least three times in the newspaper with the largest circulation in the county. The notice shall be published not less that one week nor more than three weeks before the date of the hearing. Notice shall be given to the General Land Office not less than one week nor more than three weeks before the hearing. (g) Local government authority. Local governments shall include in the plans submitted to the General Land Office and the Attorney General's Office all policies and ordinances which demonstrate the authority of the local government to implement and enforce the plan in a manner consistent with the requirements of this subchapter. Local government plans shall also demonstrate the coordination, on the local level, of the dune protection, beach access, erosion response, and flood protection programs. Local governments shall integrate these programs into one plan. The General Land Office will provide written guidance on the form and content of plans upon written request by a local government. (h) Submission of local government plans to state agencies. Local governments shall submit dune protection and beach access plans to the General Land Office for review, comment, and certification as to compliance with the policies and rules of this subchapter and to the Attorney General's Office for review and comment. The local government's governing body must formally approve the plan prior to submission to the state agencies. The General Land Office shall either grant or deny certification of a local government's proposed dune protection and beach access plan within 60 days of receipt of the plan. In the event of denial, the General Land Office shall send the proposed plan back to the local government with a statement of specific objections and the reasons for denial, along with suggested modifications. On receipt, the local government shall revise and resubmit the plan for state agency review as provided in this section. The General Land Office shall grant or deny certification of a local government's revised plan within 60 days of receipt of the plan. The General Land Office's certification of local government plans shall be by adoption into the rules authorized under the Texas Natural Resources Code, sec.61.011. (i) Areas exempt from local government plans. Local government dune protection and beach access plans shall not include the following areas, which are exempt from regulation by local governments: (1) lands owned by the federal government, unless federal law provides otherwise; (2) state parks, wildlife refuges, or other areas owned by the state for conservation purposes; (3) areas not accessible by public road or common carrier ferry for as long as that condition exists. (j) State-owned land not exempt from local government plans. Local government plans shall apply to all state-owned land other than parks and refuges subject to the provisions of the Natural Resources Code, sec.sec.31.161, et seq. (k) Acts prohibited without a dune protection permit or beach access certificate. An activity requiring a dune protection permit will typically also require a beachfront construction certificate and vice versa. Local governments shall, whenever possible, issue permits and certificates concurrently. (1) Acts prohibited without a dune protection permit. Unless a dune protection permit is properly issued by Nueces County or Cameron County authorizing the conduct, no person shall: (A) damage, destroy, or remove a sand dune or a portion of a sand dune seaward of a dune protection line or within a critical dune area; or (B) kill, destroy, or remove in any manner any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune area. (2) Activities exempt from permit requirements. Pursuant to the Texas Natural Resources Code, sec.63. 052, the following activities are exempt from the requirement for a dune protection permit, but are subject to the requirements of the Open Beaches Act and the rules promulgated under the Open Beaches Act: (A) production of oil and gas and reasonable and necessary activities directly related to that production; (B) grazing livestock and reasonable and necessary activities directly related to grazing; and (C) private recreational activities of the person owning the land and the social guests of the owner. Private recreational activities include, but are not limited to, hiking, sunbathing, and camping for less than 21 days. Operation of recreational vehicles is not exempt. (3) Acts prohibited without a beachfront construction certificate. No person shall cause, engage in, or allow construction in Nueces County or Cameron County landward of a public beach and within 1,000 feet of mean high tide or up to the first public road, whichever distance is greater, in a manner that affects or may affect public access to and use of the public beach unless the construction is properly certified by the appropriate county as consistent with this subchapter and the Open Beaches Act. (4) Permit and certificate application requirements. Nueces County and Cameron County shall require that all permit and certificate applicants fully disclose in the application all items and information necessary for the local government to determine whether it should grant or deny a permit or certificate. Nueces County and Cameron County may require more information, but they shall require that applicants for dune protection permits and beachfront construction certificates provide, at a minimum, the following items and information: (A) the name, address, phone number, and, if applicable, fax number of the applicant; (B) a detailed description of the proposed construction and the construction site including, but not limited to: (i) a legal description of the lot; (ii) the total acreage or square footage of the lot; (iii) the total acreage of the subdivision if the applicant is the owner of the subdivision; (iv) existing and finished elevation range; (v) the number of structures, and, in the case of multiple dwellings, the number of units proposed; (vi) the number of parking spaces; (vii) the approximate percentage of existing and finished open space; (viii) the type of building material and the type of construction (floor plan and view); (ix) blueprints; (x) plats; (xi) site/location maps identifying: (I) the subdivision, block, and lot of the proposed construction; (II) the location of any seawalls or any other structures on the property or within 300 feet of the boundaries of the property; and (III) the location and extent of any reconstructed dunes, dune promotion efforts, fill activities, or any other preexisting human modifications to the beach/dune system; (xii) a description of any existing or proposed walkways or dune walkovers; (xiii) a copy of the community's most recent flood insurance rate map identifying the site of the proposed construction; and (xiv) a grading and layout plan identifying the existing and the finished elevation of the site; (C) photographs of the site which clearly show the current location of the vegetation line, the existing dunes, and all areas on the site which will be affected by the proposed activity; (D) a copy of any topographical survey of the site, if the applicant has had such a survey performed; (E) the name and address of any contractor(s) hired to perform the activity; (F) approximate duration of the construction; (G) alternatives to the proposed activity, site, or methods; (H) a comprehensive mitigation plan which includes a detailed description of the methods which will be used to avoid, minimize, and compensate for any damage to dunes or dune vegetation; (I) a detailed description of the following: (i) the proposed activity's impact on the natural drainage pattern of the site and the adjacent lots; (ii) the cumulative and indirect impact of the proposed activity on public beach use and access; (iii) the cumulative and indirect impact of the proposed activity on the beach/dune system which cannot be avoided should the proposed activity be permitted, including, but not limited to, damage to dune vegetation and alteration of dune size and shape; (iv) any irreversible and irretrievable loss of natural resources which would be caused by the proposed activity; (v) the local historical erosion rate and the activity's impact on coastal erosion; and (vi) the activity's impact on flood protection and protection from storm surge. In addition to the requirements in clauses (i)-(v) of this subparagraph, each beachfront construction application shall describe how the proposed beachfront construction complies with and promotes the local government's beach access policies and requirements, particularly the dune protection and beach access plan's provisions relating to ingress/egress, off-beach parking, and avoidance of reduction in the size of the public beach due to erosion. (5) Preliminary land use planning approvals. Local governments having approval authority of preliminary land use or construction plans such as plats, site plans, beach maintenance programs, and zoning for land uses permitting construction shall determine whether the plan will subsequently require a dune protection permit or a beachfront construction certificate. When considering approval of preliminary land use or construction plans, Nueces County and Cameron County shall consider the following factors: (A) the applicant's ability to mitigate effects on dunes and dune vegetation and effects on beach use and access throughout the construction; (B) the overall purpose of the plan; (C) whether any component of the plan will subsequently require a dune protection permit or a beachfront construction certificate, such as an application for plat approval locating roads or utilities intended to service structures to be located in critical dune areas or seaward of the local government's dune protection line. If any preliminary land use or construction plan will preclude alternatives to locating the structures in the critical dune areas or seaward of the dune protection line, the local government shall not issue approval of the plan without requiring a dune protection permit or beachfront construction certificate. (6) State agency comments. (A) A person proposing to conduct an activity for which a permit or certificate is required shall submit a complete application to the appropriate local government. The local government shall forward the complete application, including any associated materials, to the General Land Office. The local government shall forward a copy of all complete beachfront construction certificate applications to the Attorney General's Office. The applications, any documents associated with the applications and a copy of the notice of the public hearing must be received by the General Land Office and the Attorney General's Office no later than 10 working days before the public hearing at which the local government is first scheduled to consider the permit or certificate. Local governments shall not issue a permit or certificate if the General Land Office and the Attorney General's Office have not received the applications for those permits and certificates at least 10 working days before the local government is first scheduled to consider the permit or certificate. (B) The General Land Office and the Attorney General's Office may submit comments on the proposed activity to the local government. The authority of the General Land Office and the Attorney General's Office to enforce any provision of this subchapter is not affected by either state agency failing to comment on the proposed construction. (7) Local government review. When determining whether to approve a proposed activity, a local government shall review and consider: (A) the permit or certificate applications; (B) this subchapter; (C) any other law which affects the activity under review; (D) the comments of the General Land Office and the Attorney General's Office; and (E) any other information the local government may consider useful to determine consistency with the local government's dune protection and beach access plan. Local governments shall not issue a dune protection permit or beachfront construction certificate that is inconsistent its plan, this subchapter, and other state, local, and federal laws related to the requirements of the Dune Protection Act and Open Beaches Act. (l) Term and renewal of permits and certificates. (1) A local government's dune protection permits or beachfront construction certificates shall only be valid for one year from the date of issuance. Local governments may renew a dune protection permit and beachfront construction certificate if the permittee provides the information required in the original permit or certificate application supplemented by additional information indicating any changes to the original information provided by the applicant. A permittee must apply for a new permit or a certificate if the permittee changes one or more of the following: the construction methods and materials; the scope or purpose of the construction; the location of any structure; and the access ways to the construction site. Each renewal of a permit and certificate shall be valid for no more than one year. A local government shall issue only two renewals for a permit or certificate. After the local government issues two renewals, the permittee must apply for a new permit or certificate. (2) Any permit or certificate issued by a local government shall be void if inconsistent with the local government's plan or this subchapter or if a material change occurs after the permit or certificate is issued or if a permittee fails to disclose any material fact in the application. (3) A local government shall require that a permittee apply for a new permit or certificate in the event of any material changes. Material changes include human or natural conditions which have impacted dunes, dune vegetation, or beach access and use that either: (A) did not exist at the time the permittee prepared the original permit or certificate application; or (B) which were not considered by the local government making the permitting decision because the permittee failed to provide information regarding the site condition in the original application for a permit or certificate. (4) A permit or certificate automatically terminates in the event the certified construction comes to lie within the boundaries of the public beach by action of storm, wind, water, or other naturally influenced causes. Nothing in the certificate shall be construed to authorize the construction, repair, or maintenance of any construction within the boundaries of the public beach at any point in time. (m) Administrative record. (1) Local governments shall compile and maintain an administrative record which demonstrates the basis for each decision made regarding the issuance of a dune protection permit or beachfront construction certificate. The administrative record shall include copies of the following: (A) all materials the local government received from the applicant as part of or regarding the permit or certificate application; (B) the minutes of the local government's meetings during which the decision to issue the permit or certificate was made; and (C) all comments received by the local government regarding the permit or certificate. (2) Local governments shall keep the administrative record for a minimum of two years from the date of a final decision on a permit or certificate. Local governments shall send a copy of the administrative record to the General Land Office or the Attorney General's Office upon request by either agency. The record must be received by the appropriate agency no later than 10 working days after the local government receives the request. 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 March 5, 1993. TRD-9319961 Garry Mauro Commissioner General Land Office Effective date: March 29, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-5725 Part IX. Texas Water Commission Chapter 334. Underground and Aboveground Storage Tanks Subchapter H. Interim Reimbursement Program 31 TAC sec.sec.334.302, 334.306, 334.308, 334.310 334.313, 334. 314, 334.319, 334.321, 334.322 The Texas Water Commission (Commission) adopts amendments to sec.sec.334.302, 334.306, 334.308, 334.310, 334.313, 334.314, 334.319, 334.321 and 334.322, concerning the interim reimbursement program. Sections 334.308, 334.310, and 334.322 are adopted with changes to the proposed text as published in the January 26, 1993, issue of the Texas Register (18 TexReg 462). Sections 334.302, 334.306, 334.313, 334.314, 334.319, and 334.321 are adopted without changes and will not be republished. The amendments are adopted to implement necessary changes to the commission's reimbursement program including limitations and requirements for eligibility, provisions regarding the contents of reimbursement applications, review of applications, fund payment reports, and allowable costs. Section 334.302 provides that for a release to be eligible for reimbursement, it must result in contamination that is above action levels rather than background levels. This change will preserve the Petroleum Storage Tank Remediation (PSTR) Fund for sites with serious environmental problems that require corrective action. Section 334.302 has also been amended to require certification affidavits to be submitted with applications for reimbursement. Section 334.302 has been amended to allow payment of funds to a person, other than the owner or operator, if certain conditions are met and to require the execution of a contract of subrogation prior to the disbursement of payment. Section 334.306 has been amended to require certain signatures on applications for reimbursement. Section 334.308 has been amended to delete the allowance of costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common carrier railroad; to disallow for reimbursement interest on the monies expended for an item of corrective action; and to specify certain conditions for spent oil tank and/or hydraulic lift systems to be eligible for reimbursement. Several provisions under sec.334.308(c) have been renumbered to accommodate the deletion of proposed paragraph (13) which related to tank removals and was not included in this adoption. The issue of the reimbursability of the costs associated with tank removals, removal of piping, pumps and dispensers, and abandonment of tanks in place will be addressed in soon-to-be proposed amendments to Subchapter H and new Subchapter M of Chapter 334. Those proposals will provide that for any work performed on or after the publication date of proposal of those rules, the costs associated with tank removals, removal of piping, pumps and dispensers, and abandonment of tanks in place will not be allowable costs under the commission's reimbursement program. Section 334.310 has been amended to require corrective action plans to be pre- approved in writing by the executive director prior to implementation of the plan to be eligible for reimbursement. The second line in this provision which was contained in the proposal has not been adopted so that the intent of the rule will be more clear. Section 334.313 has been amended to state that an application for reimbursement or supplemental application shall be subject to an audit by the executive director. Section 334.314 has been amended to state that the applicant's consent form for the executive director's fund payment report may be required by the executive director to include the submission of a signed subrogation contract. Section 334.319 has been amended to state a lender is not liable as an owner or operator if the lender has a security interest in a personal property or in a fixture that is not attached to the real estate or a lienhold interest on the real estate or fixture that is attached to the real estate. Section 334.321 has been amended to address the situation where the Commission may undertake corrective action if the owner or operator of the underground or aboveground storage tank demonstrates his/her financial inability to the executive director to take the corrective action necessary to protect the public health and safety or the environment. Section 334.322 has been amended to define action level, application preparer, contract of subrogation, corrective action, corrective action plan, initial abatement measures, prime contractor, and prime corrective action specialist. Public comment on the proposed amendments was received in writing or verbally at the four public comment meetings from the following groups: ERM-Southwest, Inc., Industrial Council Environment, Chambers Pump Service, Inc., Independent Pump Service, Inc., McCulley, Frick & Gilman, Inc., S.W. Bell Telephone Company, S. T. Marshall and Son Construction, Inc., Mc3 Environmental Service, T.E.A.R. Inc., Rauhut & Associates, City of Houston, Environmental Instruments Co., LSI Services Co., Texas Association of Storage Tank Professionals, Veritech, Baker Environmental Services, Inc., John Meyers Pump Service of Texas Ins., Ryder Truck Rental, Petro Containment Services, Inc., Baker & Botts, Landmark Environmental, Inc., Browning Ferris Industries. Several more comments were received by individuals regarding the proposed amendments. Several commenters expressed concern regarding the necessity and scope of the proposed subrogation agreement requirement. The commission responds that this new rule will be implementing by rule existing Commission policy of requiring subrogation agreements. These agreements are important mechanisms which enable the Commission to carry out its statutory mandate of ensuring the most efficient use of the funds in the Petroleum Storage Tank Remediation Fund. Subrogation contracts will be required even though corrective action activities will be preapproved to ensure that unnecessary work is not being done. The subrogation clause does not allow the commission to pursue contractors except for those causes of action that the responsible party would otherwise be entitled. The language used in the subrogation contract was developed to enable the commission to carry out its fiduciary duty in administering the fund. Some commenters expressed confusion regarding the preapproval of corrective action plans. The commission responds that a responsible party may elect anytime to proceed with corrective action. The preapproval process does not guarantee full or partial reimbursement. It does work toward the goal of ensuring that proper methods of remediation are being used at a site. Comments were made regarding what items should be reimbursed. The commission responds that the reimbursement program by statute is limited to provide reimbursement only for work that is necessary for corrective action. Some concerns were raised regarding the definition of a Corrective Action Plan. In response, the definition has been reworded to make it more clear. Further, there is a new guidance pamphlet entitled Remedial Action Plans that defines the requirements set forth in a Corrective Action Plan. This pamphlet is available from the Commission at no charge. One commenter raised concerns regarding the certification affidavit. The commission responds that this affidavit is to certify that the work performed by the signatory is to the best of their knowledge, accurate and complete. Individuals who sign the affidavit are only certifying the work that they performed. Some commenters requested that the commission allow interest payments, subcontractor markup and attorneys fees as part of the costs which can be reimbursed to responsible parties. Another commenter expressed concern about the significant demand that would be placed on the fund if the commission were to reimburse the cost of tank removals and associated costs and that these costs are not directly related to corrective action. The commission at this time does not allow attorney's fees or interest since those expenses are not statutorily required and are not directly associated with corrective action. The commission believes that this approach is necessary to preserve the fund for those expenses directly tied to corrective action and cleanup of contaminated sites. With regard to the comment concerning allowance for markup of subcontractor's work, the commission responds that mark- up is allowed for subcontractor's work. The commission has not adopted the proposed language which would have affected tank removals. The commission is currently developing rules to address the tank removal issue as well as all other costs for which responsible parties may seek reimbursement. These will be in the form of reimbursable cost guidelines which will be published in the Texas Register on March 12, 1993. The commission is also developing amendments to this subchapter which will reflect the allowable costs set forth in the guidelines. The guidelines and associated regulations are significant provisions for the commission's petroleum storage tank reimbursement fund since the cost of tank removals places a significant demand on the fund and the savings resulting from not reimbursing for tank pulls would allow more efficient and effective use of the limited money in the fund. Some commenters expressed concerns about a disparity between the responsible parties who do their own work and those who go in the state lead program. The commission responds that no real comparison between a responsible party under the state lead program and a responsible party who does his own work can be made because the state lead program is only available to responsible parties who pass the financial inability threshold. Many commenters requested that there be a specified turnaround time for commission review of corrective action plans. The commission responds that while it is currently reviewing corrective action plans as timely as its resources allow, the commission will continue looking for new ways to expedite the review process. One commenter commented on the fiscal ramifications of administering the program under the new rules. The commission responds that while the upfront costs of administering the changes adopted under this section may initially be higher, the overall savings of this more efficient program will make up for these costs in the long run. A few comments were received regarding the commission's priorities on human health, safety, and the environment. The commission responds that protection of the environment is a fundamental priority and the Commission believes it is carrying out its responsibility of protecting the environment as best as its resources allow. Comments were received that contractors would like to receive payment directly from the TWC. The commission responds that the current practice of not making direct payments to contractors is important because it keeps responsible parties directly involved in transactions relating to cleanup of their sites. A few comments were received regarding the new reimbursement application form. The commission responds that the application contains the necessary provisions to enable the commission to properly carry out its responsibilities of review of each reimbursement application. Commenters expressed concern about the fact that action levels will be determined by the executive director on a site-by-site basis. The commission responds that it is developing risk-based guidelines using information from the United States Environmental Protection Agency, among other sources, which will ensure a consistent determination of cleanup levels and will be made widely available to the public. The amendments are adopted under the authority of House Bill 1588 (71st Legislature, 1989) and House Bill 1214 (72nd Legislature, 1991), which require the Commission to establish a groundwater protection program, and to implement a reimbursement program to responsible parties who clean-up sites on their own initiative; and Texas Water Code (Code), sec.5.103 and sec.5.105, which provides the Commission with the authority to adopt any sections necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the Commission. sec.334.308. Allowable Costs-Interim Period. (a)-(b) (No change.) (c) Allowable costs shall include, but not be limited to, the following: (1)-(11) (No change.) (12) removal, transport, and disposal of the components of the underground or aboveground tank, excluding associated piping, pumps, and dispensers, in accordance with applicable law when connected with a corrective action measure; (13) permanent abandonment in place of a tank system where abandonment in place rather than tank system removal is deemed by the executive director to be necessary to avoid destruction of substantial or significant surface improvements; (14) temporary relocation of utility structures when necessary to the performance of corrective action; (15) preparation of technical reports required pursuant to the requirements of Subchapter D of this chapter (relating to Reporting of Releases and Corrective Action); (16) the fair market value of access to property outside of the facility boundaries where such access is necessary for the performance of corrective action; (17) the reasonable value of necessary time spent by the applicant in planning and administering his own corrective action plan; (18) performance of any corrective action measure which is specifically required by an order of the Commission or a written request or confirmation of the executive director on or after September 1, 1987; (19) state and federal sales taxes applicable to items which are otherwise allowable costs under this section; and (20) any other costs determined by the executive director to be allowable in accordance with the provisions of this subchapter. (d) The following types of costs are those which will not be considered allowable costs under this subchapter: (1)-(2) (No change.) (3) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when removed prior to October 1, 1992; (4) loss of income or profits, including without limitation, the loss of business income arising out of the review, processing, or payment of an application or request for assistance under this subchapter; (5) decreased property values; (6) bodily injury or property damage; (7) attorney's fees; (8) any costs associated with preparing, filing, and prosecuting an application for reimbursement or assistance under this subchapter; (9) the costs of making improvements to the facility beyond those that are required for corrective action; (10) costs associated with corrective action performed for any purpose where no release of petroleum above action levels is discovered, except when the corrective action has been ordered by the Commission; (11) costs of compiling and storing records relating to costs of corrective action; (12) costs of corrective action taken in response to the release of a substance which is not a petroleum product as defined in sec.334.322 of this title (relating to Subchapter H Definitions); (13) costs of tank integrity testing when it is not specifically required by this chapter, requested by the executive director, or ordered by the Commission; (14) costs of any corrective action incurred by an owner or operator on or after the date that the executive director commences corrective action at the owner's or the operator's facility pursuant to sec.334. 321 of this title (relating to Corrective Action by the Commission-Interim Period), unless authorized in writing by the executive director; (15) costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common carrier railroad; (16) any activities, including those required by this chapter, which are not conducted in compliance with applicable state and federal environmental laws or laws relating to the transport and disposal of waste; and (17) interest on the monies expended for an item of corrective action. (e) The costs of abating the release from the petroleum storage tank and the costs of removal, transport, and disposal of the petroleum storage tank, including (on or after October 1, 1992) associated piping, pumps, and dispensers, are the only allowable costs in situations where: (1)-(2) (No change.) (B) (No change.) (f) The costs of abating the release from the hydraulic lift system and the costs of removal, transport, and disposal of the tank, including (on or after October 1, 1992) associated piping and equipment, are the only allowable costs in situations where: (1) a release of hydraulic fluid occurs near the location of a release of any other substance other than: (A) petroleum products from a petroleum storage tank; (B) spent oil from a tank located at a vehicle service and fueling facility; or (C) another substance which the claimant can prove was contained in the hydraulic lift system; and (2) the contamination from the substance which is a hydraulic fluid could not reasonably be remediated under a separate and distinct corrective action plan from the substance which is not a hydraulic fluid. (g) The costs of abating the release from the spent oil tank and the costs of removal, transport, and disposal of the tank, including (on or after October 1, 1992) associated piping and equipment, are the only allowable costs in situations where: (1) a release of spent oil occurs near the location of a release of any other substance other than: (A) petroleum products from a petroleum storage tank; (B) hydraulic fluid from a hydraulic lift system; or (C) another substance which the claimant can prove was contained in the spent oil tank; and (2) the contamination from the substance which is a spent oil could not reasonably be remediated under a separate and distinct corrective action plan from the substance which is not a spent oil. (h) In addition to other requirements, no corrective action costs connected with the release of spent oil shall be allowable unless the spent oil was released from a tank located at a vehicle service and fueling facility, nor shall any costs connected with the release of hydraulic fluid be allowable unless the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility. The spent oil tank and/or hydraulic lift system must have been used in conjunction with and contemporaneously with a vehicle service and fueling facility. sec.334.310. Requirements for Eligibility-Interim Period. (a) In order for a person to be an eligible owner or operator under this subchapter the following requirements must be met. (1) He/she must meet the other requirements of this chapter and must be: (A)-(C) (No change.) (D) a lender who has a bona fide security or lienhold interest in or mortgage lien on any property where a tank described in subparagraph (A) of this paragraph is or was located and who performed corrective action in response to a release of petroleum products from such tank; (E) a lender who forecloses and becomes the owner of property contaminated by a release of petroleum products from a tank described in subparagraph (A) of this paragraph, and who performed corrective action in response to a release of petroleum products from such tank; and (F) an adjacent landowner who can clearly prove that the land has been contaminated by a release of petroleum products from a tank described in subparagraph (A) of this paragraph which is not located on said land, and who performed corrective action in response to a release of petroleum products from such tank, and either: (i) performed emergency abatement actions by completing all the following: (I) notifying the executive director within 24 hours of discovery that the emergency condition exists; (II) notifying the local Fire Marshall (or State Fire Marshall if no local authority is available) within 24 hours; (III) taking actions necessary to protect against imminent danger to human health and safety by mitigating fire, explosion, and vapor hazards, by removing phase-separated product from structures, basements, sumps, etc., or performing other actions as deemed necessary by the executive director. Restoration of site to preexisting conditions, cost of relocating utility structures, site assessment, and remediation are not considered part of emergency abatement activities. Any expenses incurred after 48 hours from commencement of the action must be approved by the executive director in writing; and (IV) having the release and threat ultimately confirmed by the executive director; or (ii) committed to undertake the entire cleanup of the leak and contamination from the tank on his property and on all other property by: (I) obtaining prior approval in writing from the executive director; (II) performing a site assessment to define the extent of the vertical and horizontal contamination at the time of the agreement; (III) entering into a legal agreement with the owner of the tank whereby the adjacent landowner agrees to indemnify and hold harmless the owner, operator, and other affected landowners for any corrective action or third party liability effective from the date of the agreement; and (IV) performing all corrective action in conformance with this chapter, and all other applicable rules and regulations. The applicable deductible for reimbursement under sec.334.312 of this title (relating to Owner/Operator Contribution) for cleanups undertaken by adjacent landowners under this subsection shall be the same as that applicable to the registered owner of the tank. (2) All underground and aboveground storage tanks which they own or operate and which are required to be registered pursuant sec.334.7 of this title (relating to Underground Storage Tanks) or sec.334.123 of this title (relating to Aboveground Storage Tanks) must be registered with the executive director on or before the date on which the Application for Reimbursement is filed except for those tanks which the owner or operator, upon reasonable inquiry, could not have known existed; (3) All annual facility fees due since September 1, 1987, pursuant to sec.334.21 of this title (relating to Fee Assessment), and since September 1, 1989, pursuant to sec.334.124 of this title (relating to Aboveground Storage Tank Fees) for all underground and aboveground storage tanks which they own or operate must be paid to the executive director, except for those tanks which the owner or operator, upon reasonable inquiry, could not have known existed. All fees which come due up until the time that reimbursement funds are released to the claimant must be paid. (4) Any release on which a claim under this subchapter is based must be reported to and confirmed by the executive director. (b)-(e) (No change.) (f) Unless otherwise approved by the executive director, all remedial activities proposed in corrective action plans must be approved in writing by the executive director prior to implementation of the plan. For reimbursement of emergency, initial abatement measures and phase-separated product recovery as required by sec.334.77 of this title (relating to Initial Abatement Measures and Site Check), approval by the executive director is not required prior to implementation, unless the emergency action extends beyond 48 hours, then written approval will be required for all activities with the exception of continuous free-product recovery. sec.334.322. Subchapter H Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Aboveground storage tank-A non-vehicular device with a capacity of more than 1,100 gallons, and all connecting piping both above- and below-ground, that is made of non-earthen materials; located on or above the surface of the ground or on or above the surface of the floor of a structure below ground, such as a mineworking basement, or vault; and designed to contain an accumulation of petroleum. Action level-A level of contamination determined on a site by site basis by the executive director to be adequately protective of public health and safety and the environment. If the action level is exceeded, the executive director may require corrective action. Application preparer -As used in this subchapter, means any person responsible for preparing the application for reimbursement. Contract of subrogation-As used in this subchapter, means a document of agreement between the executive director and the eligible tank owner and operator which authorizes the executive director to recover costs reimbursed from persons who performed corrective action activities at LPST sites. Corrective action -Any assessment and remedial activities undertaken to investigate the extent of and remediate contamination. Corrective action plan (remedial action plan) -As used in this subchapter, means a detailed plan developed to address site remediation of soil and/or groundwater contamination that provides for adequate protection of human health, safety, and the environment. The selection of the most effective and efficient remedial method will be dictated by the nature and location of the release, the site soils, hydrogeological conditions, and the required degree of remediation. The remedial method selection should take into consideration such factors as cost, time, and state compliance requirements with each method. The title of any report which contains a corrective action plan must include the designation "remedial action plan." Initial abatement measures-As used in this subchapter, means the mitigation of all existing or potential fire, explosion, or vapor hazards including the removal of phase separated product to provide adequate protection of human health, safety, and the environment in emergency situations or other situations where emergency actions must be implemented to prevent further impacts to the environment. Prime contractor -As used in this subchapter, means any natural person, firm, or any entity responsible for the contracting of any corrective action services. Prime corrective action specialist-As used in this subchapter, means a natural person, consulting firm, or any entity engaging in corrective action services, or acting as coordinator of others engaged in corrective action services. This agency hereby certifies that the amended sections have been reviewed by legal counsel and found to be within the agency's authority to adopt. 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 March 4, 1993. TRD-9319870 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: March 25, 1993 Proposal publication date: January 26, 1993 For further information, please call: (512) 463-8069 Subchapter K. Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Soil The Texas Water Commission adopts the repeal of sec.334.481 and sec.334.482 and adopts new sec.sec.334.481-334.510 concerning storage, treatment, and reuse procedures for petroleum-substance contaminated soils. This subchapter will provide rules for registering storage and treatment facilities for petroleum- substance contaminated soils. Sections 334.481-334.510 were adopted with changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 553). Grammatical changes were made to the proposed text to make the sections read more clearly. The new rules will replace the current subchapter K which were adopted as an emergency rule and published in the October 2, 1992, issue of the Texas Register (17 TexReg 6714). The commission received a number of comments during the statutory comment period which expired at 5 p.m. on March 1, 1993. Although the majority of the commenters suggested modifications that were cosmetic in nature, the commission did receive a few substantive suggestions. One commentor objected to the analytical requirements applicable to owners and operators of facilities which take soil from out of state generators. These requirements are set forth in sec.334.497(c)(2). The commission responds that these requirements are necessary to ensure that only non-hazardous, petroleum substance contaminated soils are received for treatment by facilities registered under this subchapter. The same commentor also objected to the reuse requirements set forth in sec.334.501(c)(3)(B). According to the comment received, these standards are too stringent when applied to hot-mix asphalt batching plants. In response, the commission has added a provision that will allow the executive director the discretion to grant a variance for the requirements of this section if the applicant can show that the requirements are not necessary for the protection of human health and the environment. A number of other commentors suggested that the 10-day notice requirement (pertaining to public meetings), set forth in the proposed text of sec.334.490, is inadequate. The commission agrees that the requirement, as proposed, does not provide all interested parties sufficient notice, that they may plan to attend public meetings. By modifying sec.334.490 to require an applicant to provide published and mailed notice 30 days prior to a scheduled meeting, the commission has increased the opportunities for maximum public participation. Some additional changes were made to the proposed text in response to the comments received. However, the additional modifications were all grammatical alterations, inserted to make the rule read more clearly. Among the organizations commenting on the proposed rules were: TPS Technologies, Inc.; Exxon Company USA; Colonial Pipeline Company; the South Plains Earth Awareness Connection; the United States Air Force; Ford and Ferraro LLP; the University of Texas Medical Branch at Galveston; Baker and Botts LLP; and the law firm of Clark, Thomas, Winters and Newton. Subchapter K provides guidance for persons responsible for soil contamination resulting from underground and aboveground storage tanks, as well as for persons who are in the business of operating soil treatment, storage, and recycling facilities. Subchapter K establishes criteria for the registration of such facilities, and prescribes minimum operating standards for the facilities. These rules were prompted by three concerns. There is a growing problem statewide concerning the ultimate disposition of the contaminated soils when a responsible party performs corrective action at a leaking petroleum storage tank site. Soil surrounding an underground tank or aboveground tank is almost always contaminated. TWC rules normally require cleanup of contaminated soils. If cleanup cannot be accomplished by treating the contaminated soil in place, then the soil is usually hauled to a landfill. But merely taking the problem from point A to point B is no solution. Not only are the costs of hauling soil to landfills increasing, once at the landfill, the contaminated soil is not treated. Thus the environmental hazard remains. Subchapter K provides a mechanism for reducing the environmental hazard by allowing responsible parties to clean the contaminated soil. This subchapter is intended to allow public input into the process by which soil treatment, storage and recycling facilities are registered. Members of the public have legitimate concerns about the location of soil treatment facilities and the standards to which such facilities must adhere. The new Subchapter K rules require persons who apply for registration certificates for soil treatment facilities to hold public meetings prior to Commission consideration of their applications. The purpose of the public meeting is twofold: it is informational, intending to give interested individuals background on the nature of the problem associated with petroleum contaminated soils, and a description of the proposed solution; and, the public meeting is also an open forum, where citizens may voice their concerns about the applicant's facility, including the treatment standards, and the impact of the facility on their community. 31 TAC sec.334.481, sec.334.482 The repeals are adopted under the Texas Water Code, sec. sec.26.341-26.359, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish a program to regulate underground and aboveground storage tanks and to assess and collect fees for deposit to the storage tank fund, and under the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 3, 1993. TRD-9319820 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: March 25, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 463-8069 31 TAC sec.sec.334.481-334.510 The new sections are adopted under the Texas Water Code, sec.sec.26.341-26. 359, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish a program to regulate underground and aboveground storage tanks and to assess and collect fees for deposit to the storage tank fund, and under the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. sec.334.481. Definitions. Except as provided in this subsection, the following words and terms, when used in this subchapter, shall have the meanings prescribed in sec.334.2 of this chapter (relating to Definitions), unless the word or term is redefined in this subchapter or unless the context clearly indicates otherwise. Aboveground storage tank-A nonvehicular device (including any associated piping) that is made of nonearthen materials: located on or above the surface of the ground, or on or above the surface of the floor of a structure below ground, such as a mineworking, basement, or vault; and designed to contain an accumulation of petroleum products. Active life-The period from the initial receipt of waste at the facility until the executive director receives certification of final closure. Active portion -That portion of a facility where treatment, or storage operations are being or have been conducted and which is not a closed portion. (See also "closed portion" and "inactive portion.") Activities associated with the exploration, development, and production of oil or gas or geothermal resources-Activities associated with: (A) the drilling of exploratory wells, oil wells, gas wells, or geothermal resource wells; (B) the production of oil or gas or geothermal resources, including: (i) activities associated with the drilling of injection water source wells that penetrate the base of usable quality water; (ii) activities associated with the drilling of cathodic protection holes associated with the cathodic protection of wells and pipelines subject to the jurisdiction of the Texas Railroad Commission to regulate the production of oil or gas or geothermal resources; (iii) activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants; (iv) activities associated with any underground natural gas storage facility, provided the terms "natural gas" and "storage facility" shall have the meanings set out in the Texas Natural Resources Code, sec.91.173; (v) activities associated with any underground hydrocarbon storage facility, provided the terms "hydrocarbons" and "underground hydrocarbon storage facility" shall have the meanings set out in the Texas Natural Resources Code, sec.91.173; and (vi) activities associated with the storage, handling, reclamation, gathering, transportation, or distribution of oil or gas prior to the refining of such oil or prior to the use of such gas in any manufacturing process or as a residential or industrial fuel; (C) the operation, abandonment, and proper plugging of wells subject to the jurisdiction of the Texas Railroad Commission to regulate the exploration, development, and production of oil or gas or geothermal resources; and (D) the discharge, storage, handling, transportation, reclamation, or disposal of waste or any other substance or material associated with any activity listed in subparagraphs (A)-(C) of this paragraph, except for waste generated in connection with activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants if that waste is a hazardous waste as defined by the administrator of the United State Environmental Protection Agency pursuant to the Federal Solid Waste Disposal Act, as amended (42 United State Code, sec.6901 et seq). Active geologic processes-Any natural process which alters the surface and/or subsurface of the earth, including, but not limited to, erosion (including shoreline erosion along the coast), submergence, subsidence, faulting, karst formation, flooding in alluvial flood wash zones, meandering river bank cutting, and earthquakes. Application-Commission forms or other commission-approved writing on which an executive director registration is requested. Aquifer-A geologic formation, group of formations, or part of a formation capable of yielding groundwater to wells or springs. Area subject to active shoreline erosion -A coastal area where shoreline erosion has been documented within historic time. Areal expansion of an existing facility -The enlargement of a land surface area of an existing petroleum-substance waste management facility from that described in a petroleum-substance waste registration. Areas of direct drainage-Those land areas from which surface water runoff could flow into a lake or other surface water used to supply public drinking water. Authorized-Allowed in writing, by executive director registration, by order, by permit, by license, or by rule. Authorized Representative -The person designated by the owner or operator to represent the facility or the person designated by the waste generator as the generator's representative. Class A facility -A facility which will at any time store or treat petroleum-substance contaminated soils generated from more than one LPST site. Class B facility -A mobile treatment unit which will treat petroleum- substance soils from only one LPST site at a time at that LPST site. The petroleum-substance soils treated at that site shall have originated from that site. Class C facility -A facility located elsewhere than the LPST site but which will store or treat petroleum-substance soils generated from only that one LPST site. Class D facility -A facility located at the LPST site which will store or treat the petroleum-substance soils generated from only that site. Clean fill standard -Soil which is no longer considered waste, e.g. soil cleaned to less than .5 mg/kg for each constituent of BTEX, and less than 10 mg/kg for TPH. Closed portion -That portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements. (See also "active portion" and "inactive portion.") Contingency plan -A document setting out an organized, planned, and coordinated course of action to be followed in case of a fire, explosion, or release of waste or waste constituents which could threaten human health and safety or the environment. Critical habitat of a endangered species -An area that is determined by the United States Fish and Wildlife Service to be a critical habitat for an endangered species. Designated facility -The authorized storage, treatment, or disposal facility that has been designated on the petroleum-substance waste affidavit by the generator. Discharge-The accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of waste into or on any land or water. Disposal-The discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste (whether containerized or noncontainerized) into or on any land or water so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into or adjacent to any waters, including groundwater. Disposal facility -A facility or part of a facility at which waste is intentionally placed into or on any land or water or adjacent to any water, and at which such waste will remain. Effective substitute -A substance which may be used in the place of another substance for the same purpose without creating adverse environmental conditions. Erosion-The group of natural processes, including weathering, deterioration, detachment, dissolution, abrasion, corrosion, wearing away, and transportation, by which earthen or rock material is removed from any part of the earth's surface. Executive Director -The executive director of the Texas Water Commission, or its successor agency, or the executive director's designee. Existing Portion -That land surface area of an existing waste management unit, on which wastes have been placed prior to the issuance of a registration. Existing facility -Any petroleum substance contaminated soil storage, treatment or recycling facility registered under and in compliance with this subchapter on or prior to the effective date of this subchapter. Facility-Includes structures, other appurtenances, and improvements on the land for storing or treating petroleum-substance waste. A facility may consist of several storage or treatment operational units. A facility may also be a mobile treatment unit. Facility Operator -The person responsible for the overall operation of a facility or an operation unit (i.e., part of facility), e.g., the plant manager, superintendent, or person of equivalent responsibility for the regulated activity. Facility Owner -The person who owns a facility or part of a facility. Final closure-The closure of all waste management units at the facility in accordance with all applicable closure requirements so that waste management activities are no longer conducted at the facility unless subject to the provisions of this title. Generator-Any person who produces petroleum-substance waste; any person who stores or treats petroleum-substance waste; any person who possesses petroleum- substance waste to be shipped to any other person; or any person whose act first causes the petroleum-substance waste to become subject to regulation under this subchapter. Groundwater-Water below the land surface in a zone of saturation. Hazardous waste -Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency (EPA) pursuant to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 United States Code, 6901 et seq. as amended. Inactive portion -That portion of a facility which is not operated. (See also "active portion" and "closed portion.") In operation-Refers to a facility which is treating or storing petroleum- substance waste. In-situ treatment -The reduction of contaminant levels in soil or groundwater which is conducted without removing the contaminated media from the ground. Interim registration -Authorization for a storage or treatment facility received by the facility up to September 25, 1992. Land disposal facility-Any landfill, surface impoundment, waste pile, injection well, or other facility at which waste is finally disposed. Land surface treatment facility-A facility, unit, or part of a facility at which waste is applied onto a liner on the soil surface during treatment. Leaking petroleum storage tank (LPST) site -A site at which a confirmed release of a petroleum substance from an underground or aboveground storage tank has occurred. Petroleum-substance contamination which results from multiple sources may be deemed as one LPST site by the executive director. Liner-A continuous layer of man-made materials, beneath and on the sides of a surface area which restricts the downward and lateral escape of waste, waste constituents, or leachate. Management-The systematic control of the collection, storage, transportation, processing, reuse, treatment, recovery, and disposal of waste. New petroleum-substance waste management facility-Any facility to be used for the storage or treatment of petroleum-substance waste and which is not an existing petroleum substance waste management facility. One hundred-year floodplain-Any land area which is subject to a 1.0% or greater chance of flooding in any given year from any source. On-site-The same or geographically contiguous property which may be divided by public or private rights-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which that person controls and to which the public does not have access, is also considered on-site property. Operator-Any person in control of or having responsibility for, the daily operation of an underground or aboveground storage tank system. Owner-Any person who currently holds legal possession or ownership of a total or partial interest in the petroleum storage tank system. For the purposes of this chapter, where the actual ownership of an UST system or AST system is either uncertain, unknown, or in dispute, the fee simple owner of the surface estate where the UST or AST is located shall be considered the system owner, unless the owner of the surface estate can demonstrate by appropriate documentation (deed reservation, invoice, bill of sale, etc.) or by other legally-acceptable means that the system is owned by others. "Owner" does not include a person who holds an interest in an UST system or AST system solely for financial security purposes unless, through foreclosure or other related actions, the holder of such security interest has taken legal possession of the UST system or AST system. PST-Waste Manifest -The form furnished by the executive director to accompany shipments of petroleum-substance waste in order to track the movement and transference of petroleum-substance waste. Partial closure -The closure of a petroleum-substance waste management unit in accordance with the applicable closure requirements at a facility that contains other active petroleum-substance waste management units. Person-Any individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association or any other legal entity. Personnel or facility personnel-All persons who work at or oversee the operations of a waste management facility, and whose actions or failure to act may result in noncompliance with the requirements of this subchapter. Petroleum substance -A crude oil or any refined or unrefined fraction or derivative of crude oil which is liquid at standard conditions of temperature and pressure. For the purposes of this subchapter, a "petroleum substance" shall be limited to one or a combination of the substances or mixtures in the following list except for any listed substance regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42 United States Code, sec.6921, et seq): (A) basic petroleum substances-Crude oils, crude oil fractions, petroleum feedstocks, and petroleum fractions; (B) motor fuels-see definition for "motor fuel" in sec.334.2 of this chapter (relating to Definitions); (C) aviation gasolines-Grade 80, Grade 100, and Grade 100-LL; (D) aviation jet fuels-Jet A, Jet A-1, Jet B, JP-4, JP-5, and JP-8; (E) distillate fuel oils-Number 1-D, Number 1, Number 2-D, and Number 2; (F) residual fuel oils-Number 4-D, Number 4-light, Number 4, Number 5-light, Number 5-heavy, and Number 6; (G) gas-turbine fuel oils-Grade O-GT, Grade 1-GT, Grade 2-GT, Grade 3-GT, and Grade 4-GT; (H) illuminating oils-Kerosene, mineral seal oil, longtime burning oils, 300 oil, and mineral colza oil; (I) solvents-Stoddard solvent, petroleum spirits, mineral spirits, petroleum ether, varnish makers' and painters' napthas, petroleum extender oils, and commercial hexane; (J) lubricants-automotive and industrial lubricants; (K) building materials-liquid asphalt and dust-laying oils; (L) insulating and waterproofing materials-transformer oils and cable oils; (M) used oils-see definition for "used oil" in sec.334.2 of this chapter (relating to Definitions); (N) any other petroleum-based material having physical and chemical properties similar to the above materials and receiving approval by the executive director for designation as a petroleum substance. Petroleum substance waste-Any waste, excluding hazardous waste and liquid wastes, which is generated as a result of a release of a petroleum substance from an underground storage tank or a petroleum product from an aboveground storage tank regulated by the commission pursuant to the Texas Water Code, Chapter 26, Subchapter I. Public water system-A system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly services an average of at least 25 individuals daily at least 60 days out of the year. Registration-Written authorization issued by the executive director, which, by its conditions, may authorize the registrant to construct, install, modify, or operate a petroleum-substance waste storage or treatment facility or unit in accordance with specified limitations. Representative sample -A sample of a universe or whole (e. g., waste pile, groundwater) which can be expected to exhibit the average properties of the universe or whole. Reuse of petroleum-substance wastes-The process by which a petroleum- substance waste is utilized as an effective substitute for a commercial product, such as the proper use as a component of stabilized road base or use as fill for LPST tankholds. Run-off-Any rainwater, leachate, or other liquid that drains over or into land from any part of a facility, land surface treatment unit, or stockpile. Run-on-Any rainwater, leachate, or other liquid that drains over land onto or into any part of a facility, land surface treatment unit, or stockpile. Saturated zone or zone of saturation-That part of the earth's crust in which all voids are filled with water. Secondary containment -A system designed and constructed to collect rainfall run-on and to contain spills, leaks, or discharges within the facility until such waste can be removed. Shipment-Any action involving the conveyance of petroleum-substance waste by any means to or from a site. Sole-source aquifer -An aquifer designated pursuant to the Safe Drinking Water Act of 1974, sec.1424(e), which solely or principally supplies drinking water to an area, and which, if contaminated, would create a significant hazard to public health. The Edwards Aquifer has been designated a sole-source aquifer by the United States Environmental Protection Agency. The Edwards Aquifer Recharge and Transition Zones are specifically those areas delineated on maps in the offices of the executive director. Spill-The spilling, leaking, pumping, emitting, emptying, or dumping of wastes or materials which, when spilled, become wastes into or on any land or water. Storage-The holding of petroleum-substance waste for a temporary period, prior to the final treatment, disposal of, reuse, or storing of the waste elsewhere. Stockpile-A soil storage area from which all petroleum-substance wastes are removed for treatment or final disposition and from which all wastes are removed at the time of closure of the facility. Thermal treatment unit-An enclosed device using controlled flame combustion, microwave, UV, infrared, or other thermal treatment process. Treatment-Methods which are designed to change, by physical, chemical, or biological means, the levels of contamination of the waste in order to render the waste suitable for reuse or disposal. The term treatment does not include the reduction of contaminant levels by dilution. Treatment facility -A facility or unit which treats or reuses petroleum- substance wastes. Transporter-Any person who conveys or transports petroleum-substance waste by truck, ship, pipeline, or other means. Underground storage tank-Any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is 10% or more beneath the surface of the ground. Unsaturated zone or zone of aeration-The zone between the land surface and the water table. Uppermost aquifer -The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected within the facility's property boundary. Waste management area-Any area on which one or more waste management units resides. Waste management unit-A contiguous area of land on or in which petroleum substance waste is placed, or a structure or machine used to store or treat waste pursuant to a registration issued under this subchapter. Examples of waste management units include a waste stockpile, a land surface treatment area, a thermal treatment unit, a stockpile, a tank and its associated piping and underlying containment system, and a container storage area. Wetlands-Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. sec.334.482. General Prohibitions. (a) No person may cause, suffer, allow, or permit the storage, treatment, or disposal of petroleum-substance waste in such a manner so as to cause: (1) the discharge or potential threat of discharge into or adjacent to the waters in the state without obtaining specific written authorization for such discharge from the Texas Water Commission; (2) the creation and maintenance of a nuisance; (3) unauthorized releases of contaminants to the air; or (4) the endangerment of the public health and welfare. (b) No person may conduct storage or treatment of contaminated media that is not a petroleum-substance waste at a Class A or Class B facility except as authorized by the executive director or by other appropriate regulations. Any wastes accepted at the facility pursuant to the appropriate authorization shall be managed, stored, and treated separately from the petroleum-substance wastes. sec.334.483. Disposal by Generator. A generator of petroleum-substance waste may not finally dispose of petroleum-substance waste at a site or facility unless the site or facility is authorized to receive such wastes pursuant to one of the following. (1) permit issued by the commission pursuant to Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) or Chapter 330 (relating to Municipal Solid Waste Management); (2) authorization issued jointly by the Texas Railroad Commission and the commission for a facility currently permitted by the Railroad Commission; or (3) sec.334.501 of this title (relating to Reuse of Petroleum-Substance Waste). sec.334.484. Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities. (a) A person shall submit the required application and receive the appropriate registration issued after the effective date of these rules prior to storing or treating petroleum-substance wastes at a new Class A facility or treating soil utilizing a new Class B waste management facility. (b) A person may not commence physical construction of a new Class A or utilize a Class B petroleum-substance waste management facility without first having submitted the required application and received the appropriate registration unless otherwise authorized by the executive director. (c) Any person who intends to store or treat petroleum-substance waste at a Class A or Class B facility after the effective date of this subchapter shall submit an application for registration on a form approved by the executive director. Such person shall submit information to the executive director which is sufficiently detailed and complete to enable the commission to determine whether such storage or treatment is compliant with the terms of this subchapter. Such information shall include, at a minimum: (1) information concerning the location of the facility; (2) identification of the facility owner, facility operator, and landowner; (3) the job descriptions of all key operating personnel; (4) documentation on the proposed access routes to the facility, proposed daily volumes of traffic associated with the facility, and confirmation on the suitability of roads leading to the facility; (5) waste storage, management, handling, and shipping methods; (6) waste treatment methods; (7) waste sampling and analytical methods; (8) disposition or reuse documentation; (9) recordkeeping requirements; (10) security and emergency procedures; (11) facility closure specifications; (12) facility plans and specifications; (13) site maps and vicinity maps; (14) documentation on the land use in the vicinity of the facility; (15) identification of all potential contaminant receptors in the vicinity, including any water wells within 1,000 feet; (16) documentation on the financial assurance required; (17) documentation on all required restrictive easements; (18) the geology and hydrogeology where the facility is located; (19) documentation on the effectiveness of the treatment method; (20) documentation of the receipt of any additional authorization required by any other federal, state, or local regulatory agency; and (21) any other information as the executive director may deem necessary to determine whether the facility and operation thereof will comply with the requirements of this subchapter. The application shall be submitted to the executive director of the commission, and a copy shall be submitted to the commission's field office in the district where the proposed facility will be located. (d) If the applicant is other than an individual, the application shall be signed by the owner or operator of the facility, the president or chief executive officer of the company, or all the partners of the company. (e) Any person who stores or treats petroleum-substance waste shall have the continuing obligation to immediately provide written notice to the executive director of any changes or additional information concerning the information submitted to the commission or activities authorized in any registration within 15 days of the change or from the date the additional information was acquired. (f) Any information required by this subsection shall be submitted to the executive director's office in Austin and to the appropriate district office. (g) A registration under this subchapter shall expire five years from the date of issuance. (h) The facility owner or operator shall submit a renewal application at least 60 days prior to the end of the five-year registration period on forms approved by the executive director. (i) The registration is not transferable to any other facility or facility owner. Any transfer of ownership shall require a change in registration of the facility. However, a change in registration of a facility shall not relieve the transferor of any liability. Which may have been incurred prior to the change in registration. sec.334.485. Authorization for Class C and Class D Facilities. Authorization for Class C and Class D facilities is issued by the executive director when the LPST site is subject to a corrective action plan involving storage and treatment activities pursuant to sec.334.81 of this title (relating to Corrective Action Plan). Executive director approval of the corrective action plan for the storage or treatment activities shall constitute authorization for the Class C or Class D facility. A Class C or Class D storage or treatment facility shall remain in operation only as long as is necessary to store or treat the soil from that one LPST site and it shall not accept soil from any other site at any time. The underground or aboveground storage tank owner or operator shall ensure that the approved storage and treatment activities comply with the following applicable provisions of this title: sec.334.482 of this title (relating to General Prohibitions); sec.334.483 of this title (relating to Disposal by Generator); sec.334.487 of this title (relating to Notification and Mobilization Requirements for Class B Facilities); sec.334.492 of this title (relating to Closure and Facility Expansion); sec.334.494 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste); sec.334.495 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators); sec.334.496 of this title (relating to Shipping Requirements for Transporters of Petroleum-Substance Waste); sec.334.497 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); sec.334.498 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); sec.334.499 of this title (relating to Additional Reports); sec.334.500 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units); sec.334. 501 of this title (relating to Reuse of Petroleum-Substance Waste); sec.334.503 of this title (relating to Security); sec.334.504 (relating to Contingency Plan) ; and sec.334.505 of this title (relating to Emergency Procedures). sec.334.486. Exemptions. The following are exempt from the requirements of this subchapter. (1) facilities which operate under the jurisdiction of the Texas Railroad Commission or for the purpose of disposal, facilities permitted or regulated under other commission rules promulgated under the Solid Waste Disposal Act, Chapters 361, 363, or 371, Texas Health and Safety Code (Vernon Supplement); and (2) LPST sites which treat petroleum-substance contaminated media if the media is treated in-situ in accordance with the provisions of Subchapter D of this chapter (relating to Release Reporting and Corrective Action.) Such sites, however, are not exempt from the provisions of sec.334.482 of this title (relating to General Prohibitions). sec.334.487. Notification and Mobilization Requirements for Class B Facilities. In addition to the required registration pursuant to sec.334. 484 of this title (relating to Registration Required for Petroleum-Substance Waste Storage and Treatment Facilities). (1) The owner or operator of a Class B facility shall notify the appropriate commission district field office at least 48 hours in advance of moving the treatment unit to the LPST site. (2) The owner or operator of the Class B facility shall notify the local fire marshal or other appropriate fire official at least 48 hours in advance of moving the treatment unit to the LPST site. (3) The owner or operator of the underground or aboveground storage tank who intends to utilize a Class B facility at a particular LPST site shall obtain executive director approval pursuant to sec.334.81 of this title (relating to Corrective Action Plan). (4) The Class B facility shall remain at the LPST site for only the time period necessary to complete the treatment, but no longer than 30 days unless written authorization is obtained from the executive director. (5) The Class B facility owner or operator shall provide notice to the public by means of posting signs at the LPST site at least fourteen days prior to moving the treatment unit onto the LPST site or within another timeframe as approved by the executive director. The signs shall be legible from a distance of at least 25 feet and shall be posted at all entrances to the facility. The signs shall state "Public Notice of Petroleum-Substance Contaminated Soil Treatment," the name and phone number of the treatment facility owner, the name and phone number of the tank owner or operator, the registration number of the treatment facility, the type of soil treatment to be conducted, and the date(s) the treatment will be conducted. (6) The Class B facility owner or operator shall produce upon demand the registration certificate issued by the TWC under this subchapter as well as any other permit or authorization required by law. sec.334.488. Effect on Existing Facilities. Existing facilities are not required to re-register as new facilities under these rules. sec.334.489. Notice to Owners or Operators. (a) Written notice shall be provided in accordance with this section to any person, including the tank owner and operator, with any offer to perform any services of storage, treatment or reuse of petroleum-substance contaminated soil proposed after the effective date of these rules. (b) The notice shall contain the following: (1) the facility registration number issued pursuant to this subchapter's registration requirements; (2) the following disclaimer reproduced in its entirety: "The registration of a storage or treatment facility by the Texas Water Commission does not constitute endorsement, licensing, or promotion of any storage or treatment facility. Registration does not imply that the Texas Water Commission guarantees the quality of the work performed or that the cost of the work will be reimbursed. " sec.334.490. Public Notice. The Class A facility owner or operator shall provide notice to the general public regarding the location, construction, operation, and potential impacts of the storage or treatment facility. (1) The facility owner or operator shall provide notice of the facility to the general public by means of a notice by publication and a notice by mail. (2) The notice shall contain, at a minimum, the following information in accordance with forms approved by the executive director: (A) the name, address, phone number, and contact person for the owner of the facility; (B) the name, address, phone number, and contact person for the operator of the facility; (C) the name, address, phone number, and contact person for the landowner (if different from the facility owner); (D) the address and the physical description for the location of the facility; (E) the date, time, and location of the public meeting to be held pursuant to sec.334. 491 of this title (relating to Public Meetings); (F) notice that an application for registration has been filed with the Texas Water Commission and notice of the application for any necessary permits or exemptions with the Texas Air Control Board or its successor agency; (G) a complete description of the activities which will be conducted at the facility, including details on the construction of the facility, the soil storage methods, the soil treatment methods, the final disposition of the treated soils, and documentation on any points of discharge; (H) the method for obtaining additional information on the facility. (3) The notice by publication shall be published in a newspaper published daily, if available, and generally circulated in the county or area where the proposed facility is to be located and within each county or area wherein persons reside who would be affected by the facility. The notice shall be published at least 30 calendar days prior to the public meeting utilizing the form provided by the executive director. (4) The notice by certified mail, return receipt requested, shall be sent to the following persons at least 30 calendar days prior to the public meeting: (A) all adjacent landowners and all owners of property within 1000 feet of the facility; (B) the mayor and health authorities of the city in which the facility will be located, if applicable; (C) the county judge and county health authority of the county in which the facility will be located; (D) the appropriate state senator and representative for the area encompassing the facility; (E) the Executive Director of the Texas Air Control Board (effective until September 1, 1993); and (F) all persons or organizations who have requested the notice or expressed interest in the facility. The executive director may designate persons or organizations in addition to those specified by the facility owner or operator. (5) The facility owner or operator shall provide copies of each notice sent by mail, copies of the published notice, and copies of the signed publisher's affidavits for the notices to the commission's Austin office and to the appropriate commission district field office within two calendar days of publication and mailing. sec.334.491. Public Meetings for Class A Facilities. The Class A facility owner or operator, at their expense, shall schedule and hold a public meeting at a time and place which are convenient for the general public affected by the facility. The forum chosen for the meeting shall be accessible to persons who are mobility impaired. Prior to scheduling of the meeting, the applicant shall coordinate the scheduling of the meeting with commission personnel to ensure the availability of commission personnel for the meeting. The applicant shall confirm with the executive director the date, time, and location of the meeting not less than 15 days prior to the meeting. The meeting shall be open to the public to provide information on the proposed facility and to allow for comments by the public. The executive director will consider all comments relating to the requirements of this subchapter when determining the outcome of the registration application. The applicant shall again confirm with the executive director on the time and place of the meeting at least 72 hours prior to the meeting. sec.334.492. Closure and Facility Expansion. A person who stores or treats petroleum-substance waste at a Class A or B facility shall notify the executive director in writing of any closure activity or facility expansion not specifically stated in the original application for registration at least 30 days prior to conducting such activity. Such person shall submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether such activity is compliant with this subchapter and whether additional public notice should be conducted. Any information provided under this subsection shall be submitted to the executive director's office in Austin and to the appropriate district field office. sec.334.493. Location Standards for Class A Petroleum-Substance Waste Storage or Treatment Facilities. (a) The commission shall not issue a registration for a Class A petroleum- substance waste management facility unless it finds that the proposed site, when evaluated in light of proposed design, construction, and operational features, reasonably minimizes possible contamination of surface water and groundwater. In making this determination, the commission shall consider the following factors: (1) flooding or active geologic processes such as erosion, subsidence, submergence and faulting; (2) groundwater conditions such as groundwater flow rate, groundwater quality, length of flow path to points of discharge and aquifer recharge or discharge conditions; (3) soil conditions such as stratigraphic profile, stratigraphic complexity, and hydraulic conductivity of strata; (4) separation distance from the facility to the aquifer and to points of discharge to surface water; and (5) climatological conditions. (b) Class A storage or treatment facilities shall not be located: (1) in the 100-year floodplain; (2) in wetlands; (3) on the recharge or transition zone of a sole-source aquifer; (4) within 1,000 feet of an established residence, church, hospital, school, licensed day-care center, or dedicated public park; (5) within 1000 feet of any property owned by a person other than the facility owner unless the applicant obtains a variance from the executive director pursuant to subsection (d) of this section relating to variances; (6) in areas of direct drainage within one-half mile of any surface water if the surface water is used to supply public drinking water through a public water system, unless it is designed, constructed, operated, and maintained to prevent any releases of contaminants from the facility; (7) in the critical habitat of an endangered species of plant or animal; or (8) in an area where the roads leading to the facility which will be utilized to transport soil are not adequate to handle the anticipated traffic volume and load. (c) Nothing in this subchapter shall be construed to require the executive director to issue a registration. In addition to an applicant's compliance with location requirements, the executive director will consider public comment on the proposed facility, surrounding land uses, past performance record if any, and enforcement history with the TWC and other state agencies, when determining whether or not to register an applicant under this subchapter. (d) The executive director may, in his discretion, grant a variance of the requirements of subsection (b) of this section, relating to location requirements for Class A Facilities. Before the executive director may issue a variance under this subsection, he shall require the applicant to demonstrate that the provisions of subsection (b) of this section are not necessary to ensure adequate protection of human health and the environment. sec.334.494. Shipping Procedures Applicable to Generators of Petroleum- Substance Waste. (a) No generator shall transport petroleum-substance waste from the generating site unless the waste has been properly sampled in order to determine the levels of all possible contaminants in the waste. Necessary documentation shall, at a minimum, consist of documentation on the sampling, handling, chain-of-custody documentation, and copies of signed laboratory reports on samples collected from the specified wastes that contain results of analysis for: (1) the major components of the petroleum-substance waste such as benzene, toluene, ethylbenzene, total xylenes, and total petroleum hydrocarbons or the major components of total petroleum hydrocarbons; and (2) any other contaminants as specified by the executive director based on specific conditions of the generating site. (b) No generator of petroleum-substance waste within the State of Texas shall allow the transport of such wastes to an off-site waste storage, treatment, reuse, or disposal facility unless the following requirements are met: (1) a Texas Water Commission (TWC) petroleum-substance affidavit is initiated, to include all applicable information, by the generator; (2) the generator designates on the affidavit at least one facility or area legally authorized to receive the waste. A generator may also designate one alternate facility or area which is legally authorized to receive the waste in the event an emergency prevents delivery of the waste to the primary designated facility. If the transporter is unable to deliver the waste to either the designated facility or the alternate facility, the generator shall either immediately designate another facility for receipt or instruct the transporter to immediately return the waste. Upon such redesignation by the generator, the generator shall immediately prepare an amended waste affidavit. (c) No generator of petroleum-substance waste from outside of the State of Texas shall allow transport of waste into the State of Texas unless the following requirements are met: (1) a TWC petroleum-substance affidavit is initiated by the generator to include all applicable information; (2) the affidavit shall accompany the waste to the receiving facility; (3) the waste is classified as nonhazardous by the state in which it is generated. (d) At the time of waste transfer, the generator or generator's authorized representative shall: (1) sign the affidavit by hand; (2) obtain the handwritten signature of the initial transporter and date of acceptance on the affidavit; (3) retain one copy, in accordance with sec.334.495 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators); and (4) give the transporter the remaining copies of the affidavit. sec.334.495. Recordkeeping and Reporting Procedures Applicable to Generators. Each generator, excluding transporters and shippers, of petroleum-substance waste shall comply with the following. (1) The generator shall keep records of all petroleum-substance waste activities regarding the quantities generated and shipped off-site for storage, treatment, or disposal and which, at a minimum, includes the information described in paragraphs (1)-(5) of this section. The maintained records shall be retrievable, legible, and immediately available for inspection and copying by commission personnel. The required records shall be sufficiently detailed and complete to support any contentions or claims made by the generator with respect to the following: (A) the description, character and classification of each waste; (B) the quantity of waste and the date(s) it was generated; (C) identification of the generating location and the tank owner or operator; (D) the methods of storage, treatment, or disposal; (E) the quantity and date(s) the waste was shipped off-site for storage, treatment, or disposal including the name, address and location of each off-site facility and transporter receiving shipments. (2) The generator shall retain a legible copy of each waste affidavit required by sec.334.494 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste) for a minimum of five years from the date of shipment by the generator. (3) A generator of petroleum-substance waste shall keep records of all test results, waste analyses, or other determinations made for at least five years from the date that the waste was last sent to an off-site storage, treatment, disposal, or reuse area or facility. (4) A generator who does not receive a copy of the affidavit with the handwritten signature of the owner or operator of the designated facility within 35 days from the date the waste was accepted by the initial transporter shall contact the transporter and/or the owner or operator of the designated facility to determine the status of the petroleum-substance waste. (5) A generator shall submit an exception report to the executive director if the generator has not received a copy of the affidavit with the handwritten signature of the owner or operator of the designated facility within 45 days of the date that the waste was accepted by the initial transporter. The exception report shall be retained by the generator for at least five years from the date the waste was accepted by the initial transporter and shall include: (A) a legible copy of the affidavit for which the generator does not have confirmation of delivery; and (B) a legible copy of a letter signed by the generator or his authorized representative explaining the efforts taken to locate the waste and the results of those efforts. (6) The periods of record retention required by this subsection may be extended by the executive director during the course of any unresolved enforcement action regarding the regulated activity. sec.334.496. Shipping Requirements Applicable to Transporters of Petroleum- Substance Waste. (a) No transporter shall ship petroleum-substance waste to an off-site storage, treatment, or disposal facility, unless the transporter: (1) obtains an affidavit initiated by the generator in accordance with sec.334.494 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste); and (2) upon receipt and prior to shipment, signs, and dates the affidavit acknowledging the acceptance of waste from the generator where appropriate. (b) The transporter shall ensure that the affidavit accompanies the petroleum- substance waste. (c) No transporter shall deliver a shipment of petroleum-substance waste to another transporter designated on the affidavit, unless the delivering transporter: (1) obtains the date of delivery and the handwritten signature of the accepting transporter on the affidavit; and (2) gives the legible copies of the affidavit to the accepting transporter. (d) No transporter shall deliver a shipment of petroleum-substance waste to a storage, treatment, or disposal facility, unless the transporter: (1) obtains the date of delivery and the handwritten signature on the affidavit of the owner or operator of the facility designated on the affidavit; and (2) gives the copies of the affidavit to the owner or operator of the storage, treatment or disposal facility designated on the affidavit. (e) The transporter shall deliver the entire quantity of petroleum-substance waste which the transporter has accepted from a generator or a transporter to: (1) the designated facility listed on the affidavit; (2) the alternate designated facility if the waste cannot be delivered to the designated facility because an emergency prevents delivery; or (3) the next designated transporter. (f) If the transporter cannot deliver the waste in accordance with subsection (e) of this section, the transporter shall immediately contact the generator for further directions and shall revise the affidavit according to the generator's instructions. sec.334.497. Shipping Requirements Applicable to Owners or Operators of Storage, Treatment or Disposal Facilities. (a) No owner or operator of a storage, treatment, or disposal facility may accept delivery of petroleum-substance waste for storage, treatment, or disposal unless: (1) a TWC PST-Waste Manifest accompanies the shipment which designates that facility to receive the waste; (2) the facility owner or operator signs the PST-Waste Manifest and immediately gives at least one copy of the signed PST-Waste Manifest to the transporter; (3) retains one copy of the PST-Waste Manifest in accordance with sec.334.498 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities); and (4) within 30 days after receipt of the waste, sends a copy of the PST-Waste Manifest to the generator. (b) When a facility or reuse area receives petroleum-substance waste accompanied by a PST-Waste Manifest, the facility owner or operator, or his agent, or the owner or operator of the property designated for the reuse area shall note any significant discrepancies on each copy of the PST-Waste Manifest. (1) Significant discrepancies are differences between the quantity or type of waste designated on the PST-Waste Manifest and the quantity or type of waste a facility actually received. Significant discrepancies in type of waste are obvious differences which can be discovered by inspection or waste analysis. (2) Upon discovering a significant discrepancy, the facility owner or operator shall attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the facility owner or operator shall, within five days, submit to the executive director a letter describing the discrepancy and attempts to reconcile it, and a copy of the PST- Waste Manifest at issue. The facility owner or operator shall ensure that the waste is a petroleum-substance waste eligible for acceptance by the facility pursuant to this subchapter and shall report any unreconciled discrepancies discovered during any analyses or evaluation. (c) No owner or operator of a storage, treatment, or disposal facility in Texas shall accept wastes from an out-of-state generator or location unless the following requirements are met: (1) the waste is accompanied by legible copies of the signed TWC waste PST- Waste Manifest for all wastes received pursuant to sec.334.494 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Wastes); (2) the facility owner or operator obtains documentation that the wastes contain only petroleum-substance contamination, have been generated from an underground or aboveground storage tank as defined in this chapter, and are classified as nonhazardous in the state where generated. This documentation shall consist of documentation on the sampling methods, sample handling, chain- of-custody documents, and legible copies of signed laboratory reports on samples collected from the specified wastes. The number of samples shall be sufficient to characterize the entire quantity of wastes. The analyses shall include: (A) volatiles and Semi-Volatiles by EPA Methods 8240 and 8270, respectively; (B) TC-listed constituents as specified in 40 Code of Federal Regulations, Part 261; (C) Organochlorine Pesticides and PCBs by EPA Method 8080; and (D) any other analyses necessary to characterize the wastes or as specified by the executive director; and/or (3) the facility owner or operator obtains documentation from the appropriate governing agency in the originating jurisdiction that the wastes are classified as nonhazardous and meet the definition of petroleum-substance wastes, (as such wastes are defined in sec.334.2 of this chapter (relating to definitions), and provides such documentation to the executive prior to receiving the out of state soils. (d) The facility owner or operator shall not accept any wastes for storage, treatment, or disposal from an in-state generator or location which contain any contaminants above natural background levels other than petroleum substances as defined in this subchapter, unless otherwise approved by the executive director. Documentation of the contaminants in the waste shall consist of a sufficient number of samples to characterize the waste and the samples shall be analyzed for all contaminants that may occur in that waste. sec.334.498. Recordkeeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities. (a) All records required by this subchapter shall be retained by the facility owner or operator for a minimum of five years from the date of receipt of the waste. The records shall be maintained in a secure location on the premises of the storage, treatment, or disposal facility and shall be immediately accessible by the facility owner and operator. In the event that copies of the required records cannot reasonably be maintained on the premises of the facility, then such records may be maintained at a readily-accessible alternate site, provided that the following conditions are met. (1) If the facility is in operation, the records shall be readily accessible for reference by the facility owner and operator. (2) The records shall be readily accessible and available for inspection and copying upon request by commission personnel. (3) The facility owner or operator shall provide the following information in writing to the executive director and to the commission's appropriate district office: (A) the specific location where the required records are maintained; and (B) the name, address, and telephone number of the authorized custodian of the records. (4) The written information required in paragraph (3) of this subsection shall be submitted with the application for registration and within 15 days after the records are moved to an alternate site from that specified in the registration. (b) For facilities which have completed the closure requirements and are no longer in service, the facility owner may submit the appropriate records required by this subchapter to the executive director in lieu of maintaining the records on the premises or at an alternate site, provided that the following conditions are met: (1) the facility owner shall provide written justification adequate to explain why the records cannot be maintained at a readily-accessible alternate site; and (2) the records shall be submitted at one time in one package for each facility, and the records shall be appropriately labeled with the facility identification number and location information. (c) A facility owner or operator who initiates a shipment of petroleum- substance waste from a treatment or storage facility shall comply with the generator standards contained in sec.334.494 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste) and sec.334.495 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators) and this subsection. (d) The periods of record retention required by this subsection may be extended by the executive director during the course of any unresolved enforcement action regarding the regulated activity. (e) The following information, at a minimum, shall be maintained by the facility owner or operator: (1) documentation on all shipments of contaminated media received at the facility as specified on the waste affidavit; (2) the method(s) of storage or treatment for all media received; (3) the method of reuse or disposal of all wastes removed from the facility including: (A) the location of final disposition; (B) the quantity and contaminant levels of wastes placed at any and every location; (C) the name, work address, and work phone number of the authorized representative for the receiving facility or location. If the receiving facility cannot be identified by street address, then other specifics shall be included to adequately identify the exact location; (D) the name, work address, and work phone number of the authorized representative for the landowner at the receiving location; (E) documentation on the soil sampling and analytical methods, chain-of- custody, and all analytical results for the soil received at the facility and transported off-site or reused on-site; (F) a detailed description of the reuse methods; (G) the date(s) of transport off-site and the dates of reuse; (H) legible copies of the authorization from the landowner at the receiving location pursuant to sec.334. 501 of this title (relating to Reuse of Petroleum- Substance Waste); (4) documentation on the operations at the facility, including: (A) information on the actual treatment efficiency of the unit; (B) documentation on the results of all air emissions monitoring; (C) any changes in the operations at the facility; (D) documentation on any releases, fires, or explosions and the measures taken to abate the situation; (5) monitoring data under sec.334.502 of this title (relating to Contaminant Assessment Program and Corrective Action) when required; (6) a summary of the types and volumes of any petroleum-substance waste received without affidavits. This documentation shall include the following information: (A) the dates the facility received the wastes; (B) the LPST or other identification number of the generating facility, and the names and addresses of the tank owner or operator and the transporter, if available; (C) a description and the quantity of each petroleum-substance waste the facility received which was not accompanied by a PST-waste affidavit; (D) the method of storage and/or treatment for each petroleum-substance waste; (7) any other information deemed necessary by the executive director. sec.334.499. Additional Reports. The owner or operator of a Class A or Class B facility shall report to the executive director within 24 hours of the occurrence any releases, fires, explosions, breakdowns, shutdowns, releases, or spills which result or may result in the discharge of any contaminants to the ground, surface water, or groundwater. sec.334.500. Design and Operating Requirements of Stockpiles and Land Surface Treatment Units. (a) A stockpile or land surface treatment unit located at any storage or treatment facility or at any LPST site shall have an appropriate means of preventing any discharge or release of petroleum-substance waste or petroleum- substance waste constituents into any media. This shall be accomplished with: (1) a synthetic, impermeable liner that is designed, constructed, and installed to prevent any migration of petroleum-substance wastes out of the stockpile or land surface treatment unit into the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the stockpile, or land surface treatment unit. The liner shall be constructed of materials that do not allow petroleum-substance waste or petroleum-substance waste constituents to migrate into the liner itself or into the adjacent subsurface soil, groundwater, or surface water during the active life of the facility. The liner shall: (A) be constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the hydrocarbons or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operations; (B) be placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, tearing or uplift; (C) be installed to cover all surrounding earth likely to be in contact with the petroleum-substance waste or leachate; and (D) contain a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate and rainwater from the stockpile or land surface treatment unit. The facility owner and operator shall specify the design and operating conditions which will ensure that the leachate depth over the liner does not exceed the depth of soil on the liner. The leachate collection and removal system shall be constructed of materials that are: (i) chemically resistant to the hydrocarbons managed in the pile and the leachate expected to be generated; and (ii) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying petroleum-substance wastes, petroleum-substance waste cover materials, and any equipment used at the stockpile or treatment unit; and (iii) designed and operated to function without clogging through the scheduled life of the stockpile or land surface treatment unit; or (2) an alternate design or operating practice that is effective in preventing any release or discharge and is approved by the executive director. The facility owner or operator shall demonstrate that the alternate design or operating practices, together with location characteristics, will prevent the migration of any petroleum-substance waste constituents into the soil, groundwater or surface water at any future time. In deciding whether to approve the alternate design, the executive director will consider: (A) the nature and quantity of the wastes; (B) the proposed alternate design and operation; (C) the hydrogeologic setting of the facility, including a tentative capacity and thickness of the liners and soils present between the stockpile or land surface treatment unit and groundwater or surface water; and (D) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to soil, groundwater or surface water. (b) The facility owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the stockpile or land surface treatment unit. (c) The facility owner or operator shall design, construct, operate, and maintain a run-off management system to prevent flow from a stockpile or land surface treatment unit. (d) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems shall be emptied and managed expeditiously in accordance with applicable state and federal requirements after storms to maintain design capacity of the system. (e) If the stockpile or land surface treatment unit contains any particulate matter which may be subject to wind dispersal, the facility owner or operator shall cover or otherwise manage the stockpile or land surface treatment unit to control wind dispersal. (f) The executive director may specify other design and operating practices that may be necessary to ensure that the requirements of this subsection are satisfied. (g) The facility owner or operator shall ensure that treatment is initiated on stockpiled soil within 90 days from the date of receipt at the facility and that the treated soil is removed from the facility for final disposition within 90 days after completing treatment. (h) In addition to the requirements specified in subsections (a)-(g) of this section, the facility owner or operator shall design, construct, operate, and maintain the land surface treatment unit to maximize the degradation, transformation, or immobilization of petroleum-substance waste constituents in the treatment area. At a minimum, the facility owner or operator shall specify the following items, if applicable, in the facility registration application: (1) the rate and method of petroleum-substance waste application to the treatment area; (2) measures to control soil Ph; (3) measures to enhance microbial or chemical reactions (e.g., fertilization); and (4) measures to control the moisture content of the treatment area. (i) The facility owner or operator shall inspect the unit weekly and after storms to detect evidence of: (1) deterioration, malfunctions, or improper operation of run-on and run-off control systems; and (2) improper functioning of wind dispersal control measures. sec.334.501. Reuse of Petroleum-Substance Waste. (a) Wastes that are intended for reuse are subject to all the applicable provisions of this subchapter, including but not limited to the following requirements: sec.334.482 of this title (relating to General Prohibitions), sec.334.494 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste), sec.334.495 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators), sec.334.496 of this title (relating to Shipping Requirements for Transporters of Petroleum- Substance Waste), sec.334.497 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities), sec.334.498 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities), and sec.334.500 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units). (b) Recordkeeping and reporting requirements for any person who intends to reuse petroleum-substance wastes shall require that person to maintain records and provide to the executive director when requested such information deemed necessary by the executive director to ensure compliance with the requirements of this subsection. This information shall include, but is not limited to: (1) identification, address, and name of the authorized representative of the generating facility; (2) identification, address, and name of the authorized representative for the receiving facility or location; (3) identification of the landowner of the receiving location or facility; (4) the quantity, type, and contaminant levels of the reused wastes; (5) documentation of the reuse methods and dates of reuse; (6) documentation that asphalt mix or roadbase mix meets the specifications required by the final user; (7) documentation that the landowner of the receiving location has approved the use of the reused wastes on his property; (c) Reuse requirements. (1) Any person who intends to utilize petroleum-substance wastes for reuse shall obtain written approval from the landowner of the land on which the wastes will be placed. The landowner's approval shall be submitted to the executive director upon demand. (2) Petroleum-substance wastes shall be reused only in manners which are in accordance with sec.334.482 (relating to General Prohibitions) and at contaminant levels as specified by the executive director. (3) Petroleum-substance wastes may be reused under the following conditions. (A) Petroleum-substance wastes may be utilized in cold-mix-emulsion bituminous paving at a cold-mix asphalt-producing facility registered under the terms of this subchapter. The petroleum-substance waste shall be mixed with aggregate or other suitable materials at a rate which will result in a mixture meeting or exceeding the specifications required by the final user. The petroleum-substance waste shall contain less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes prior to mixing. Authorization for the facility shall also be obtained from all other appropriate federal, state, or local governing agencies. Authorization from the owner of the road or other area where the asphalt is to be utilized shall be obtained prior to laying the asphalt. (B) Petroleum-substance wastes may be utilized in asphalt mix at hot-mix asphalt-producing facilities registered under this subchapter. The petroleum- substance waste shall contain less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes prior to mixing. The petroleum- substance waste shall be mixed with aggregate at a rate which will result in a mixture meeting or exceeding the specifications required by the final user. Authorization for the facility shall also be obtained from all other appropriate federal, state, or local governing agencies. Authorization from the owner of the road or other area where the asphalt is to be utilized shall be obtained prior to laying the asphalt. (C) Petroleum-substance wastes may be utilized in roadbase or parking lot stabilized base when the base will be covered with concrete or asphalt if the contaminant levels of the soil prior to mixing into the stabilized base are less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes, and less than 500.0 mg/kg total petroleum hydrocarbons or at contaminant levels otherwise specified by the executive director. The base shall be mixed according to the specifications required by the final user. Soil which is not mixed into stabilized roadbase shall meet the criteria for clean soil as specified by the executive director in order to be spread on a road or parking lot. The generator shall obtain prior written consent for the placement of the soil from the owner of the road (if different from the landowner). (D) Petroleum-substance wastes may be utilized in roadbase or parking lot stabilized base when the base will not be covered with asphalt or concrete if the contaminant levels are less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes, and less than 200 mg/kg of total petroleum hydrocarbons or at contaminant levels otherwise specified by the executive director. The base shall be mixed according to the specifications required by the final user. The base shall be professionally mixed by a facility registered under the terms of this subchapter. Soil which is not mixed into stabilized roadbase shall meet the criteria for clean soil in order to be spread on a road or parking lot. The generator shall obtain prior written consent for the placement of the soil from the owner of the road (if different from the landowner). (E) Petroleum-substance wastes will be considered clean, and may be used as fill in another LPST site tankhold if the contaminant levels do not exceed 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes, and 10.0 mg/kg total petroleum hydrocarbons. Other contaminant levels may be considered by the executive director if documentation indicates that there is no threat to public health or safety and if there is no threat of groundwater contamination at the receiving site. The owner of the underground storage tanks at the receiving facility, and the landowner (if different from the tank owner) shall give written consent for this activity. The soil shall not be utilized in a tankhold in which a new tank installation will occur. (F) Petroleum-substance waste may be reused by alternative methods or contaminant levels deemed appropriate and as authorized by the executive director. The generator shall obtain authorization, including authorization pursuant to the requirements of this subchapter, from the executive director prior to reusing the waste by alternative methods. (G) The executive director may, in his discretion grant a variance for the pre-treatment requirements set forth is subparagraphs (A)-(E) of this subsection. It shall be the burden of the applicant to apply for a variance under this subparagraph. sec.334.502. Contaminant Assessment Program and Corrective Action. (a) The facility owner or operator shall conduct an assessment when, in the opinion of the executive director, there exists a possibility of migration of contaminants into or adjacent to waters in the state. The assessment shall be capable of determining: (1) whether petroleum-substance waste or petroleum-substance waste constituents have entered the groundwater, surface water, or soils; (2) the rate and extent of migration of any petroleum-substance waste or petroleum-substance waste constituents in the soil, groundwater, or surface water; and (3) the concentrations of petroleum-substance waste or petroleum-substance waste constituents in the soil, groundwater or surface water. (b) The owner or operator of the facility shall conduct corrective action at the facility when, in the opinion of the executive director, petroleum-substance waste constituents exist in the soil, groundwater, or nearby surface water at levels which are harmful to human health and safety or the environment. (c) The corrective action program shall be capable of preventing the migration of contaminants and shall prevent the contaminants from exceeding the levels determined by the executive director. (d) The facility owner or operator shall ensure that the corrective action measures under this subsection shall be initiated and completed within a reasonable period of time as determined by the executive director considering the extent of contamination. The executive director may issue additional directives should the corrective action activities prove to not be effective in reducing the contaminant levels at a sufficient rate. (e) The facility owner or operator shall report in writing to the executive director the effectiveness of the corrective action program. The facility owner or operator shall submit these reports to the commission's Austin office and to the appropriate commission district office upon request by the executive director. sec.334.503. Security. (a) The facility owner or operator shall prevent unauthorized entry by persons or animals onto the facility. (b) A facility shall have: (1) a 24-hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or (2) an artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and (3) a means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility). (c) A sign with the legend, "Caution-Unauthorized Personnel Keep Out" shall be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to the active portion. The legend shall be written in English and in any other language predominant in the area surrounding the facility, and shall be legible from a distance of at least 25 feet. Existing signs with a legend other than "Caution- Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous. (d) The owner or operator of the facility shall submit details of the proposed security measures in the application for registration. sec.334.504. Contingency Plan. (a) Each facility owner or operator shall have a contingency plan for each facility. The contingency plan shall be designed to minimize hazards to human health or the environment from fires, explosions, or any release of petroleum- substance waste or petroleum-substance waste constituents to air, soil, groundwater, or surface water. (b) The provisions of the plan shall be carried out immediately whenever there is a fire, explosion, or release of petroleum-substance waste or petroleum- substance waste constituents which could threaten human health or the environment. (c) The contingency plan shall describe the actions facility personnel shall take in order to respond to fires, explosions, or any release of petroleum- substance waste or petroleum-substance waste constituents to air, soil, groundwater, or surface water at the facility. (d) The plan shall list names, addresses, and phone numbers (office and home) of all persons qualified to act as facility emergency coordinators and this list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and others shall be listed in the order in which they will assume responsibility as alternates. (e) The plan shall include a list of all emergency equipment at the facility, such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external). This list shall be kept up to date. In addition, the plan shall include the location and a physical description of each item on the list, and a brief outline of its capabilities. (f) The plan shall include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan shall describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by release of petroleum-substance waste or fires). (g) A legible copy of the contingency plan and all revisions to the plan shall be: (1) submitted to the executive director with the application for registration; (2) maintained at the facility; and (3) submitted to all local fire departments or emergency response officials that may be called upon to provide emergency services. (h) The contingency plan shall be reviewed, and immediately amended, if necessary, whenever: (1) the facility registration is revised; (2) the plan fails in an emergency; (3) the facility changes its design, construction, operations, maintenance, or other circumstances in a way that materially increases the potential for fires, explosions, or release of petroleum-substance waste or petroleum-substance waste constituents, or changes the response necessary in an emergency; (4) the list of emergency coordinators changes; or (5) the list of emergency equipment changes. sec.334.505. Emergency Procedures. (a) At all times, there shall be at least one employee either on the facility premises or on call (i.e. , available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator shall be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person shall have the authority to commit the resources needed to carry out the contingency plan. (b) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) shall immediately: (1) activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and (2) notify appropriate state or local agencies with designed response roles if their help is needed. (c) Whenever there is a release, fire, or explosion, the emergency coordinator shall immediately identify the character, exact source, amount, and areal extent of any released materials. The emergency coordinator may do this by observation or review of facility records or affidavits, and, if necessary, by chemical analysis. (d) Concurrently, the emergency coordinator shall assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment shall consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that re-generated, or the effects of any surface water run- off from water or chemical agents used to control fire and heat-induced explosions). (e) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health or the environment outside the facility, the emergency coordinator shall report his findings as follows: (1) if the emergency coordinator's assessment indicates that evacuation of local areas may be advisable, the emergency coordinator shall immediately notify appropriate local authorities. The emergency coordinator shall be available to help appropriate officials decide whether local areas should be evacuated; and (2) the emergency coordinator shall immediately notify either the government official designated as the on-scene coordinator for that geographical area, the Texas Emergency Response Center at (512) 463-7727, or the National Response Center (using their 24-hour toll free number 1 (800) 424-8802). The report shall include: (A) name and telephone number of reporter; (B) name and address of facility; (C) time and type of incident (e.g., release, fire); (D) name and quantity of material(s) involved, to the extent known; and (E) the possible hazards to human health or the environment outside the facility. (f) During an emergency, the emergency coordinator shall take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other petroleum-substance waste at the facility. These measures shall include, where applicable, stopping processes and operations, collecting and containing released waste, and removing or isolating containers. (g) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator shall monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate. (h) Immediately after an emergency, the emergency coordinator shall provide for treating, storing, and/or disposing of recovered water, contaminated soil and surface water, and any other material that results from a release, fire or explosion at the facility. (i) The emergency coordinator shall ensure that, in the affected area(s) of the facility, all emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed. (j) The facility owner or operator shall notify the executive director and appropriate State and local authorities that the facility is in compliance with subsection (h) of this section before operations are resumed in the affected areas(s) of the facility. (k) The facility owner or operator shall note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, the facility owner or operator shall submit a written report on the incident to the executive director. The report shall include: (1) name, address, and telephone number of the facility owner or operator; (2) name, address, and telephone number of the facility; (3) the facility's registration number; (4) date, time, and type of incident (e.g. fire, explosion); (5) name and quantity of material(s) involved; (6) the extent of injuries, if any; (7) an assessment of actual or potential hazards to human health or the environment, where this is applicable; and (8) estimated quantity and disposition of recovered material that resulted from the incident. sec.334.506. Closure Requirements Applicable to Class A and Class B Facilities. (a) Except as provided in this subsection, the facility owner or operator shall submit his closure plan to the executive director for approval with the application for registration. (b) In the closure plan the facility owner or operator shall address the following objectives and indicate how they will be achieved: (1) removal and decontamination of all structures, equipment, or improvements which will no longer be utilized at the facility; (2) removal and proper disposal or treatment and reuse of all petroleum- substance wastes from the facility; and (3) removal or treatment of any petroleum-substance waste and petroleum- substance waste constituents which exist above the established cleanup levels that have been released from the facility into the soil, groundwater, or surface water. (c) During the closure period the facility owner or operator of a petroleum- substance treatment facility shall: (1) continue the contaminant assessment or corrective action at the facility as directed by the executive director; (2) maintain the run-on and run-off control systems required under sec.334.500 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units); (3) control wind dispersal of particular matter which may be subject to wind dispersal. (d) When closure is completed the facility owner or operator shall submit to the executive director for approval certification both by the facility owner or operator and by an independent qualified hydrogeologist, geologist, or an independent registered professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan. (e) The facility owner or operator shall prepare a written estimate, in current dollars, of the cost of closing the facility in accordance with the closure plan as specified in sec.334.507 of this title (relating to General Requirements for Financial Assurance). The closure cost estimate shall equal the cost of closing at the point in the facility's operating life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan. The closure cost estimate shall be based on the costs to the facility owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary for the facility owner or operator. Notwithstanding other closure costs, such estimate shall also include the costs associated with third party removal, shipment off-site, and treatment or disposal off-site of the following wastes to an authorized storage, treatment, or disposal facility: (1) maximum inventory of wastes in storage and/or treatment units; (2) any contaminated soils, groundwater, or surface water generated as a result of releases at the site; (3) wastes generated as a result of closure activities; (4) contaminated stormwater or leachate. (f) The closure cost estimate may not incorporate any salvage value that may be realized by the sale of petroleum-substance wastes, facility structures or equipment, land or other facility assets at the time of partial or final closures. The facility owner or operator may not incorporate a zero cost for petroleum-substance waste that might have economic value. (g) The facility owner or operator shall adjust the closure cost estimate for inflation within 30 days after each anniversary of the date on which the first closure cost estimate was prepared. The adjustment shall be made as specified in paragraphs (1) and (2) of this subsection, using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business . The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year. (1) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate. (2) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor. (h) The facility owner or operator shall revise the closure cost estimate whenever a change in the closure plan increases the cost of closure. The revised closure cost estimate shall be adjusted for inflation as specified in this subsection. (i) The facility owner or operator shall keep the following at the facility during the operating life of the facility: the latest closure cost estimate prepared in accordance with subsections (e) and (f) of this section and, when this estimate has been adjusted in accordance with subsection (g) of this section, the latest adjusted closure cost estimate. sec.334.507. General Requirements for Financial Assurance. An owner or operator of a Class A or B petroleum-substance waste storage or treatment facility shall establish financial assurance for the closure of each Class A or B facility. (1) The financial assurance shall be in the amount specified in the cost estimate for closure pursuant to sec.334.506 of this title (relating to Closure Requirements Applicable to Class A and Class B Facilities). (2) The financial assurance shall consist of one or more of the mechanisms pursuant to sec.334.508 of this title (relating to Financial Assurance Mechanisms). (3) An owner or operator of an existing Class A or Class B facility shall submit documentation of the effective financial assurance within 60 days of the effective date of this subchapter. An owner or operator of a new Class A or Class B facility shall submit documentation of financial assurance with the application for registration pursuant to sec.334. 484 of this title (relating to Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities). (4) All mechanisms for financial assurance shall be prepared on forms, or utilize wording, approved by the executive director. (5) Whenever the current closure cost estimate changes, the owner or operator shall compare the new estimate with the amount in the financial assurance mechanism. If the value of the mechanism is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, shall either increase the amount in the mechanism so that its value after the increase at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference. The owner or operator shall submit evidence of such increase to the executive director. Whenever the current cost estimate decreases, the value of the mechanism may be reduced to the amount of the current closure estimate following written approval by the executive director. (6) If the value of the financial assurance mechanism is greater than the total amount of the current closure cost estimate, or if an owner or operator substitutes another financial assurance mechanism as specified in this section for all or part of the initial mechanism, the owner or operator may submit a written request to the executive director to decrease the amount of the mechanism to the current closure cost estimate. The owner or operator shall obtain written approval from the executive director for the decrease. (7) An owner or operator who utilizes a surety bond guaranteeing payment into a closure trust fund, a surety bond guaranteeing performance of a closure, or a closure letter of credit, shall also establish a standby trust fund. Under the terms of the mechanism, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the executive director. This standby trust fund shall meet the wording specified on forms approved by the executive director except that: (A) an originally signed duplicate of the trust agreement shall be submitted to the executive director with the surety bond; and (B) until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations: (i) payments into the trust fund as specified in this section; (ii) annual valuations as required by the trust agreement; and (iii) notices of nonpayment as required by the trust agreement. (8) The executive director will give written consent to termination of the financial assurance mechanism when: (A) an owner or operator substitutes and receives approval from the executive director for alternate financial assurance as specified in this section; or (B) the executive director releases the owner or operator from the requirements of this section in accordance with sec.334.507(8) of this title (relating to General Requirements for Financial Assurance). (9) Following a determination that the owner or operator has failed to perform final closure in accordance with the closure plan and other regulatory requirements when required to do so, the executive director shall utilize the mechanism to complete the site closure. (10) Within 60 days after receiving certifications from the owner or operator and an independent qualified hydrogeologist, geologist, or independent registered professional engineer, that closure has been accomplished in accordance with the closure plan, the executive director will notify the owner or operator in writing that he is no longer required by this section to maintain financial assurance for closure of the facility, unless the executive director has reason to believe that closure has not been in accordance with the closure plan. sec.334.508. Mechanisms for Financial Assurance. A facility owner or operator shall utilize one or more of the following mechanisms for financial assurance. (1) Closure trust fund. For the use of a closure trust fund, the following items apply in addition to the requirements pursuant to sec.334.507 of this title (relating to General Requirements for Financial Assurance). (A) The trustee of the fund shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or state agency. (B) After beginning final closure, an owner or operator or any other person authorized to perform closure may request reimbursement for closure expenditures by submitting itemized bills to the executive director. Within 60 days after receiving bills for closure activities, the executive director will determine whether the closure expenditures are in accordance with the closure plan or otherwise justified, and if so, will instruct the trustee to make reimbursement in such amounts as the executive director specifies in writing. If the executive director has reason to believe that the cost of closure will be significantly greater than the value of the trust fund, the executive director may withhold reimbursement of such amounts as deemed prudent until it is determined, in accordance with sec.334.507 of this title (relating to General Requirements for Financial Assurance), that the owner or operator is no longer required to maintain financial assurance for closure. (2) Surety bond guaranteeing payment into a closure trust fund. For the use of a surety bond guaranteeing payment into a closure fund, the following items apply in addition to the requirements pursuant to sec.334.507 of this title (relating to General Requirements for Financial Assurance). (A) The bond shall, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the United States Department of Treasury. (B) The bond shall guarantee that the owner or operator will: (i) fund the standby trust fund in an amount equal to the penal sum of the bond before beginning closure of the facility; or (ii) fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin closure is issued by the executive director or a United States district court or other court of competent jurisdiction; or (iii) within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the bond from the surety, provide alternate financial assurance as specified in this section, and obtain the executive director's written approval of the assurance provided. (C) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. (D) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the executive director. Cancellation may not occur, however, during 120 days beginning on the date of the receipt of the notice of cancellation by both owner or operator and the executive director as evidenced by the returned receipts. (E) The owner or operator may cancel the bond if the executive director has given prior written consent based on his receipt of evidence of alternate financial assurance as specified in this section. (3) Surety bond guaranteeing performance of closure. For the use of a surety bond guaranteeing performance of closure, the following items apply in addition to the requirements pursuant to sec.334.507 of this title (relating to General Requirements for Financial Assurance). (A) The bond shall, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the United States Department of Treasury. (B) The bond shall guarantee that the owner or operator will: (i) perform closure in accordance with the closure plan and other requirements of the registration for the facility whenever required to do so; or (ii) within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the bond from the surety, provide alternate financial assurance as specified in this section, and obtain the executive director's written approval of the assurance provided. (4) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a determination by the executive director that the owner or operator has failed to perform closure in accordance with the closure plan and other registration requirements when required to do so, under terms of the bond the surety will perform closure as guaranteed by the bond or will deposit the amount of the penal sum into the standby trust fund. (5) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the executive director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the executive director, as evidenced by the return receipts. (6) The surety will not be liable for deficiencies in the performance of closure by the owner or operator after the executive director releases the owner or operator from the requirements of this section in accordance with sec.334.507(h) of this title (relating to General Requirements for Financial Assurance). (d) Closure letter of credit. For the use of a Closure letter of credit, the following items apply in addition to the requirements pursuant to sec.334.507 of this title. (1) The issuing institution shall be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency. (2) The letter of credit shall be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the TWC facility identification number, name, and address of the facility, and the amount of funds assured for closure of the facility by the letter of credit. (3) The letter of credit shall be irrevocable and issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the executive director by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the executive director have received the notice, as evidenced by the return receipts. (4) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the executive director will draw on the letter of credit. The executive director may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension, the executive director will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the executive director. (e) Closure insurance. For the use of closure insurance, the following items apply in addition to the requirements pursuant to sec.334. 507 of this title (relating to General Requirements for Financial Assurance). (1) At a minimum, the insurer shall be chartered and licensed in at least one state and authorized to engage in the business of insurance. (2) The closure insurance policy shall be issued for a face amount at least equal to the current closure estimate, except as provided in sec.334. 508(g) of this section. The term "face amount" means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments. (3) The closure insurance policy shall guarantee that funds will be available whenever final closure occurs. The policy shall also guarantee that once closure begins, the issuer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the executive director, to such party or parties as the executive director specifies. (4) After beginning closure, an owner or operator or any other person authorized to perform closure may request reimbursement for closure expenditures by submitting itemized bills to the executive director. Within 60 days after receiving bills for closure activities, the executive director will determine whether the closure expenditures are in accordance with the closure plan or otherwise justified, and if so, he will instruct the insurer to make reimbursement in such amounts as the executive director specifies in writing. If the executive director has reason to believe that the cost of closure will be significantly greater than the face amount of the policy, he may withhold reimbursement of such amounts as he deems prudent until he determines, in accordance with sec.334.507 of this title, that the owner or operator is no longer required to maintain financial assurance for closure of the facility. (5) The owner or operator shall maintain the policy in full force and effect until the executive director consents to termination of the policy by the owner or operator as specified in sec.334.507(f) of this title. Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a significant violation of these regulations, warranting such remedy as the executive director deems necessary. Such violation will be deemed to begin upon receipt by the executive director of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration. (6) The policy shall provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the executive director. Cancellation, termination, or failure to renew may not occur, however, during 120 days beginning with date of receipt of the notice by both the executive director and the owner or operator, as evidenced by the return of receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration: (A) the executive director deems the facility abandoned; or (B) the registration is terminated or revoked or a new registration is denied; or (C) closure is ordered by the executive director or a United States district court or other court of competent jurisdiction; or (D) the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code; or (E) the premium due is paid. (f) Financial test and corporate guarantee for closure. For the use of a financial test and corporate guarantee for closure, the following items apply in addition to the requirements pursuant to sec.334.507 of this title. (1) To pass this test the owner or operator shall meet the either of the following criteria: (A) the owner or operator shall have: (i) two of the following three ratios: A ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and (ii) net working capital and tangible net worth each at least six times the sum of the current closure cost estimate and liability coverage requirements for petroleum-substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test; and (iii) tangible net worth of at least $10 million; and (iv) assets in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current closure cost estimate and liability coverage requirements for petroleum-substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test; (B) the owner or operator shall have: (i) a current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and (ii) tangible net worth at least six times the sum of the current closure cost estimate and liability coverage requirements for petroleum-substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test; and (iii) tangible net worth of at least $10 million; and (iv) assets located in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current closure cost estimates and liability coverage requirements for petroleum- substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test. (2) To demonstrate that he meets this test, the owner or operator shall submit the following items to the executive director: (A) a letter signed by the owner's or operator's chief financial officer and worded as specified in forms approved by the executive director; and (B) a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and (C) special report from the owner's or operator's independent certified public accountant to the owner or operator stating that: (i) he has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and (ii) in connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted. (3) After the initial submission of items specified in paragraph (2) of this subsection, the owner or operator shall send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information shall consist of all items specified in paragraph (2) of this subsection. (4) If the owner or operator no longer meets the requirements of paragraph (2) of this subsection, he shall send notice to the executive director of intent to establish alternate financial assurance as specified in this section. The notice shall be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within 120 days after the end of such fiscal year. (5) The executive director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (2) of this subsection, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (2) of this subsection. If the executive director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (2) of this subsection, the owner or operator shall provide alternate financial assurance as specified in this section within 30 days after notification of such a finding. (6) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements. An adverse opinion or disclaimer of opinion will be cause for disallowance. The executive director will evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance. (7) An owner or operator may meet the requirements of this section by obtaining a written guarantee, hereafter referred to as "corporate guarantee." The guarantee shall be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantee shall meet the requirements for owners or operators in paragraphs (1)-(5) of this subsection and shall comply with the terms of the corporate guarantee. The wording of the corporate guarantee shall be on forms approved by the executive director. The corporate guarantee shall accompany the items sent to the executive director as specified in paragraph (2) of this subsection, and if the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, the letter shall describe this "substantial business relationship" and the value received in consideration of this corporate guarantee. The terms of the corporate guarantee shall provide that: (A) if the owner or operator fails to perform closure of the facility covered by the corporate guarantee in accordance with the closure plan and other registration requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in subsection (a) of this section in the name of the owner or operator; (B) the corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and the executive director, as evidenced by the return receipts. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the executive director, as evidenced by the return receipts; (C) if the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator. (g) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this section by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds, letters of credit, and insurance. The mechanisms shall be as specified in subsections (a), (b), (d), and (e), respectively, of this section, except that it is the combination of mechanisms, rather than the single mechanism, which shall provide financial assurance for an amount at least equal to the adjusted closure cost. If an owner or operator uses a trust fund in combination with a surety bond or letter of credit, the owner or operator may use that trust fund as the standby trust fund for the other mechanisms. A single standby trust may be established for two or more mechanisms. The executive director may invoke any or all of the mechanisms to provide for closure of the facility. (h) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the executive director shall include a list showing, for each facility, the TWC Identification Number, name, address, and the amount of funds for closure assured by the mechanism. The amount of funds available through the mechanism shall be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for closure of any of the facilities covered by the mechanism, the executive director may direct only the amount of funds designated for that facility, unless the owner or operator agrees to use additional funds available under the mechanism. sec.334.509. Liability Requirements for Class A and B Facilities. (a) Coverage for Sudden Accidental Occurrences. An owner or operator of a Class A or B petroleum-substance waste facility shall establish financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator shall have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs. For new petroleum-substance waste storage or treatment facilities, documentation of the required financial security shall be submitted with the application for registration. The owners or operators of existing authorized facilities shall obtain and submit to the executive director financial assurance within 60 days of the effective date of these rules. The owner or operator shall choose from the options as specified in subsections (d)(1)-(6) of this section. (b) An owner or operator shall notify the executive director in writing within 30 days: (1) whenever a claim for bodily injury or property damages caused by the operation of a petroleum-substance waste storage or treatment facility is made against the owner or operator or an instrument providing financial assurance for liability coverage under this section and (2) whenever the amount of financial assurance for liability coverage under this section provided by a financial instrument authorized by subsection (d)(1)- (6) of this section is reduced. (c) Within 60 days after receiving certifications from the owner or operator and an independent qualified hydrogeologist, geologist, or an independent registered professional engineer, that final closure has been completed in accordance with the approved closure plan, the executive director will notify the owner or operator in writing that he is no longer required by this section to maintain liability coverage for that facility, unless the executive director has reason to believe that closure has not been in accordance with the approved closure plan. (d) Acceptable mechanisms for liability coverage. (1) Trust fund for liability coverage. (A) An owner or operator may satisfy the requirements of this section by establishing a trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the executive director. (B) The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency. (C) The trust fund for liability coverage shall be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the fund, shall either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this section to cover the difference. For purposes of this paragraph, "the full amount of liability coverage to be provided" means the amount of coverage for sudden occurrences required to be provided less the amount of liability coverage being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator. (D) The wording of the trust fund shall be on forms approved by the executive director. (2) Surety bond for liability coverage. (A) An owner or operator may satisfy the requirements of this section by establishing a surety bond which conforms to the requirements of this paragraph and submitting a copy of the bond to the executive director. (B) The surety company issuing the bond shall be among those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the United States Department of the Treasury. (3) Letter of credit for liability coverage. (A) An owner or operator may satisfy the requirements of this section by establishing an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting a copy of the letter of credit to the executive director. (B) The financial institution issuing the letter of credit shall be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency. (C) The wording of the letter of credit shall be on forms approved by the executive director. (4) Financial test for liability coverage. (A) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To meet this test the owner or operator shall meet the criteria of clause (i) or (ii) of this subparagraph: (i) the owner or operator shall have: (I) two of the following three ratios: A ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0. 1; and a ratio of current assets to current liabilities greater than 1.5; and (II) net working capital and tangible net worth each at least six times the sum of the current closure cost estimate and liability coverage requirements for petroleum-substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test; and (III) tangible net worth of at least $10 million; and (IV) assets in the United States amounting to at least 90% of his total assets or at least six times the sum of the current closure cost estimate and liability coverage requirements for petroleum-substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test; (ii) the owner or operator shall have: (I) a current rating for the owner's or operator's most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and (II) tangible net worth at least six times the sum of the current closure cost estimate and liability coverage requirements for petroleum-substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test; and (III) tangible net worth of at least $10 million; and (IV) assets located in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current closure cost estimates and liability coverage requirements for petroleum- substance waste facilities and any other financial assurance obligations under other EPA or state environmental regulations assured by a financial test. (B) To demonstrate that the owner or operator meets this test, the owner or operator shall submit the following items to the executive director: (i) a letter signed by the owner's or operator's chief financial officer and worded as specified in forms approved by the executive director; and (ii) a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and (iii) a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that: (I) he has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and (II) in connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted. (C) After the initial submission of items specified in paragraph (4)(B) of this paragraph, the owner or operator shall send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information shall consist of all three items specified in paragraph (4)(B) of this paragraph. (D) If the owner or operator no longer meets the requirements of paragraph (4)(A) of this paragraph, he shall send notice to the executive director of intent to establish alternate financial assurance as specified in this section. The notice shall be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within 120 days after the end of such fiscal year. (E) The executive director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (4)(A) of this paragraph, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (4)(B) of this paragraph. If the executive director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (4)(A) of this paragraph, the owner or operator shall provide alternate financial assurance as specified in this section within 30 days after notification of such a finding. (F) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements. An adverse opinion or disclaimer of opinion will be cause for disallowance. The executive director will evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance. (G) The owner or operator is no longer required to submit the items specified in paragraph (4)(B) of this paragraph when: (i) an owner or operator substitutes alternate financial assurance as specified in this section; or (ii) the executive director releases the owner or operator from the requirements of this section in accordance with sec.334.509(c) of this title (relating to Liability Requirements for Class A and Class B Facilities). (5) Guarantee for liability coverage. (A) An owner or operator may meet the requirements of this section by obtaining a written guarantee, hereafter referred to as "corporate guarantee." The guarantor shall be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantee shall meet the requirements for owners or operators in paragraphs (4) (A)-(G) of this paragraph and shall comply with the terms of the corporate guarantee. (B) The wording of the corporate guarantee shall be on forms approved by the executive director. The corporate guarantee shall accompany the items sent to the executive director as specified in paragraph (4)(B) of this paragraph. If the guarantor's parent corporation is also the parent corporation of the owner or operator, this letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter shall describe this "substantial business relationship" an the value received in consideration of this corporate guarantee. The terms of the corporate guarantee shall provide the following. (i) If the owner or operator fails to satisfy a judgement based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage. (ii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator. (6) Insurance for liability coverage. (A) An owner or operator may satisfy the requirements of this section by obtaining insurance which conforms to the requirements of this paragraph and submitting a copy of the certificate or endorsement to the executive director. (B) Each policy shall be amended by attachment of the Petroleum-Substance Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The owner or operator shall submit a signed duplicate original of the endorsement or certificate of insurance to the executive director. If requested by the executive director, the owner or operator shall provide a signed duplicate original of the insurance policy. (C) The wording of the endorsement and the certificate of insurance shall be on forms approved by the executive director. (D) Each insurance policy shall be issued by an insurer that at a minimum, shall be chartered and licensed in at least one state and authorized to engage in the business of insurance. (7) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this section by establishing more than one financial mechanism. The required liability coverage may be demonstrated through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated shall total at least the minimum amount required by this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this paragraph, the owner or operator shall specify at least one such assurance as "primary" coverage and shall specify other assurance as "excess." sec.334.510. Incapacity of Owners or Operators, Guarantors, or Financial Institutions. (a) An owner or operator shall notify the executive director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming the owner or operator as debtor, within 10 business days after the commencement of the proceeding. A guarantor of a corporate guarantee as specified in sec.334.507(f) and sec.334.508(d)(5) of this title (relating to General Requirements for Financial Assurance and Liability Requirements for Class A and Class B Facilities) shall make such a notification if he is named as debtor, as required under the terms of the guarantee. (b) An owner or operator who fulfills the requirements of sec.334.507 or sec.334.508 of this title by obtaining a letter of credit, surety bond, or insurance policy will be deemed to be without the required financial assurance or liability coverage in the event of bankruptcy, insolvency, or a suspension or revocation of the license or charter of the issuing institution. The owner or operator shall establish other financial assurance or liability coverage within 60 days after such an event. 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 March 3, 1993. TRD-9319821 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: March 25, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 463-8069 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 461. General Administration Subchapter B. Powers and Duties of the Board 37 TAC sec.sec.461.41, 461.43, 461.45, 461.47, 461.49, 461.51, 461.53, 461.55, 461.57, 461.59, 461.61 The Texas Commission on Fire Protection adopts the repeal of sec.sec.461.41, 461.43, 461.45, 461.47, 461.49, 461.51, 461.53, 461.55, 461.57, 461.59, and 461.61, concerning the powers and duties of the Fire Department Emergency Board, without changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 9020). The commission has determined that these repeals will allow for the adoption of new sections relating to the duties of the Funds Allocation Advisory Committee. The sections adopted for repeal will be replaced by new sections relating to the duties of the Funds Allocation Advisory Committee. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, Title 4, Subtitle B, Chapter 419, Subchapter C, sec.419.053(3), which provides the Texas Commission on Fire Protection with the authority to adopt rules for the administration of the Fire Department Emergency 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 March 8, 1993. TRD-9319943 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 29, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 873-1700 Chapter 463. Criteria Subchapter B. Application Requirements 37 TAC sec.sec.463.31, 463.33, 463.35 The Texas Commission on Fire Protection adopts the repeal of sec.sec.463.31, 463.33, and 463.35, concerning the powers and duties of the Fire Department Emergency Board, without changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 9021). The commission has determined that these repeals will allow for the adoption of new sections relating to the duties of the Funds Allocation Advisory Committee. These sections adopted for repeal have been replaced by new sections relating to the duties of the Funds Allocation Advisory Committee. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, Title 4, Subtitle B, Chapter 419, Subchapter C, sec.419.053(3), which provides the Texas Commission on Fire Protection with the authority to adopt rules for the administration of the Fire Department Emergency 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 March 8, 1993. TRD-9319944 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 29, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 873-1700 Subchapter C. Applications Procedures 37 TAC sec.sec.463.51, 463.53, 463.55, 463.57, 463.59, 463.61, 463.63 The Texas Commission on Fire Protection adopts the repeal of sec.sec.463.51, 463.53, 463.55, 463.57, 463.59, 463.61, and 463.63, concerning the powers and duties of the Fire Department Emergency Board without changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 9021). The commission has determined that these repeals will allow for the adoption of new sections relating to the duties of the Funds Allocation Advisory Committee. These sections adopted for repeal have been replaced by new sections relating to the duties of the Funds Allocation Advisory Committee. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, Title 4, Subtitle B, Chapter 419, Subchapter C, sec.419.053(3), which provides the Texas Commission on Fire Protection with the authority to adopt rules for the administration of the Fire Department Emergency 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 March 8, 1993. TRD-9319945 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 29, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 873-1700 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part IX. Texas Department on Aging Chapter 255. State Delivery Systems Area Agency Designation 40 TAC sec.255.37 The Texas Department on Aging adopts the repeal of sec.255.37 concerning contracting and reimbursement methodology for aging services provided under the Older Americans Act, without changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 49). Section 255.37 has been revised in its entirety and resubmitted for proposed adoption under this chapter dealing with area agency on aging program development. Without adoption of this repeal, recodification of these rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.101 which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 5, 1993. TRD-9319877 Mary Sapp Executive Director Texas Department on Aging Effective date:March 26, 1993 Proposal publication date:January 1, 1993 For further information, please call:(512) 444-2727 The Texas Department on Aging adopts new sec.255.37 concerning policies and procedures for approval of area agency on aging program development, without changes to the proposed text as published in the January 1, 1993, issue of the Texas Register (18 TexReg 49). The new section was revised in its entirety and promulgates policies and procedures for approval of program development applications by area agencies on aging. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 5, 1993. TRD-9319877 Mary Sapp Executive Director Texas Department on Aging Effective date: March 26, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 444-2727 Part XIX. Texas Department of Protective and Regulatory Services Chapter 736. Memoranda of Understanding with Other State Agencies Memoranda of Understanding for Child Protective Services 40 TAC sec.736.902 The Texas Department of Protective and Regulatory Services (TDPRS) adopts an amendment to sec.736.902, without changes to the proposed text as published in the January 26, 1993, issue of the Texas Register (18 TexReg 466). Section 736.902 adopts 37 TAC sec.341.21 (relating to MOU on Service Delivery to Runaways) by reference. The Texas Juvenile Probation Commission (TJPC) adopted an amendment to 37 TAC sec.341.21 effective October 14, 1992. The TJPC's notice of adoption of the amendment to 37 TAC sec.341.21 was published in the October 2, 1992, issue of the Texas Register (17 TexReg 6795). The amendment eliminates the need for annual revision of the MOU in order to update the formula for determining when the number of runaways in a given county is high enough to require services under the MOU. The justification for this amendment is to ensure that sec.736.902 remains current in two respects. First, by adopting 37 TAC sec.341.21 as amended effective October 14, 1992, the amendment incorporates TJPC's recent amendment to the MOU. And second, the amendment specifies that TDPRS has assumed the responsibilities assigned to the Texas Department of Human Services (TDHS) in the MOU. TDPRS has assumed those responsibilities in accordance with the provisions of House Bill (H.B.) 7, Article 1, sec.1.06, as passed by the 72nd Texas Legislature. H.B. 7 transferred all functions, programs, and activities related to TDHS's child protective services program from TDHS to TDPRS. TDPRS has also assumed the responsibilities set forth in the MOU in accordance with TDPRS's own agreement to provide services to runaways and at-risk youth on behalf of TDHS until the Texas Legislature has an opportunity to formally transfer the responsibility for providing such services to TDPRS. The amendment will function by improving local coordination of services to runaway children. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services (TDHS) to the Texas Department of Protective and Regulatory Services; and under the Human Resources Code, Title 2, Chapter 141, which authorizes TDHS to enter into a memorandum of understanding with the Texas Juvenile Probation Commission regarding service delivery to runaway children. 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 March 8, 1993. TRD-9319938 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1993 Proposal publication date: January 26, 1993 For further information, please call: (512) 450-3765