Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 87. Notary Public Subpoenas 1 TAC sec.sec.87.50, 87.52, 87.54 The Office of the Secretary of State adopts new sec.sec.87.50, 87.52, 87.54, concerning the issuance of subpoenas, without changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2345). Adoption of the new rules will provide individuals and companies with a clarification of the minimum procedures that a notary public must follow in issuing a subpoena. No comments were received regarding adoption of the new rules. The new rules are adopted under Texas Civil Statutes, Article 6252-13a, sec.4(a)(1) and the Texas Government Code, sec.406.023, which provide the secretary of state with the authority to prescribe and adopt rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 12, 1993. TRD-9322873 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: June 12, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 463-5558 TITLE 22. EXAMINING BOARD Part V. Texas State Board of Dental Examiners Chapter 101. Dental Licensure General Qualifications 22 TAC sec.101.1 The Texas State Board of Dental Examiners adopts an amendment to sec.101.1, without changes to the proposed text as published in the April 6, 1993, issue of the Texas Register (18 TexReg 2283). The rule is adopted to ensure that applicants for dental licensure meet the highest standards and to assure that the people of the State of Texas receive the highest quality dental care. Also, to allow access to dental licensure to as many applicants as possible in order to serve the people of Texas. The rule states the general qualifications for any person desiring to practice dentistry in the State of Texas. The Texas Dental Association took a position that minimum dental education statutory requirements be met, and that foreign non-accredited graduates present evidence as to equivalency education and training. Comments were also received from the Texas Association of Orthodontists with minor word changes, but were in favor of the rule. Comments were also received from representatives from each of the Texas Dental Schools as to the procedures by which the rule would be implemented, such as bench exams by the schools. Each school commented that they were willing to conduct the bench exams necessary to implement this rule. Comments were received from individual dentists in favor of the rule. Comments were received from legislators in favor of the rule. The Texas Dental Association and the Texas Association of Orthodontists commented in favor of the adoption. The amendment is adopted under Texas Civil Statutes, Article 4544, sec.2, which provide the Texas State Board of Dental Examiners with the authority to adopt and enforce such rules and regulations not inconsistent with the laws of the state as may be necessary for the performance of its duties and/or to ensure compliance with the state laws relating to the practice of dentistry to protect the public health and safety. 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 May, 12, 1993. TRD-9322889 C. Thomas Camp Executive Director Texas State Board of Dental Examiners Effective date: June 2, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 463-6400 Licensure by Credentials-Dentists 22 TAC sec.101.7 The Texas State Board of Dental Examiners adopts new sec.101.7, with changes to the proposed text as published in the April 6, 1993, issue of the Texas Register (18 TexReg 2283). The rule is adopted to allow increased access to dental licensure, thereby increasing access to dental care to the people of Texas. The rule states that the Texas State Board of Dental Examiners may license applicants by credentials, without examination, who meet all TSBDE and State of Texas minimum applicant requirements and general licensure qualifications and all criteria as stated. Comments were received from the Texas Dental Association in favor of this rule. Comments were received in writing and in person at the adoption meeting from military dentists as to the proposed wording sec.101.7(4). The military dentists stated that the proposed wording might create problems for military dentists seeking licensure under this rule. The military dentist at the meeting commented favorably on the changes in wording which were adopted by the Board. Comments were made at the proposal meeting and the adoption meeting regarding the wording and intent of the last paragraph of sec.101.7. The wording was changed to clarify the Board's intent and the comments as to applicant's for licensure appearing before the Board. Both these changes adopted by the Board, to sec.101.7(4) and to the last paragraph of sec.101.7, affect no new parties, address no new subjects, are the result of comment and discussion at public meetings, and are well within the framework and intent of the proposed rule. The Texas Dental Association commented in favor of the adoption. The new section is adopted under Texas Civil Statutes, Article 4545a, which provide the Texas State Board of Dental Examiners with the authority to adopt and enforce such rules and regulations not inconsistent with the laws of the state as may be necessary for the performance of its duties and/or to ensure compliance with the state laws relating to the practice of dentistry to protect the public health and safety. 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 May, 12, 1993. TRD-9322890 C. Thomas Camp Executive Director Texas State Board of Dental Examiners Effective date: June 2, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 463-6400 TITLE 28 INSURANCE Part I. TEXAS DEPARTMENT OF INSURANCE Chapter 1. General Administration Subchapter C. Maintenance Taxes 28 TAC sec.1.413 The State Board of Insurance of the Texas Department of Insurance adopts new sec.1.413, concerning assessment of maintenance taxes which apply to workers' compensation insurance companies, without changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2351). The new rule is necessary to provide a method of assessment and to record the rate of assessment of taxes and surcharges due in 1993 on the basis of gross premium receipts for calendar year 1992 for workers' compensation insurance companies, as well as to provide insurers with a filing form and instructions for payment. Section 1.413 provides the assessment of maintenance taxes for the Texas Workers' Compensation Commission and the Texas Workers' Compensation Research Center as set by the Texas Workers' Compensation Commission, assessment of a maintenance tax surcharge which will be used to service the bond debt for the Texas Workers' Compensation Insurance Fund, and a tax form with instructions for filing and paying the taxes. Annually, maintenance taxes and surcharges are set by the State Board of Insurance of the Texas Department of Insurance on behalf of the Texas Workers' Compensation Commission, the Texas Workers' Compensation Research Center, and Texas Workers' Compensation Insurance Fund in accordance with the Texas Workers' Compensation Act. No comments were received regarding adoption of the new rule. The new rule is proposed under the Insurance Code, Articles 5.76-5, 5.76-3, 5.68, and 1.04(b), and Texas Civil Statutes, Articles 8308-2.22, 8308-2.23, and 6252-13a, sec.4 and sec.5. The Insurance Code, Article 5.76-5, establishes the maintenance tax surcharge. Article 5.76-3 establishes the Texas Workers' Compensation Insurance Fund. Article 5.68 establishes the maintenance tax based on premiums for workers' compensation coverage. Article 1.04(b) authorizes the State Board of Insurance to determine rules and regulations in accordance with the laws of this state for uniform application. Texas Civil Statutes, Articles 8308-2.22 and 8308-2.23 establish the maintenance tax for workers' compensation insurance companies. Article 6252-13a, sec.4 and sec.5 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. The adopted section affects regulation relating to the workers' compensation insurance maintenance tax surcharge for 1993, under the Insurance Code, Article 5.76-5. 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 May 13, 1993. TRD-9322913 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: June 3, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 463-6328 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter A. Statewide Hunting and Fishing 31 TAC sec.sec.65.3, 65.9, 65.13, 65.26, 65.27, 65.31, 65.40, 65. 54, 65.62, 65.72, 65.78 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, March 25, 1993, adopted amendments to sec. sec.65.3, 65.9, 65.13, 65.26, 65.27, 65.31, 65.40, 65.54, 65.62, 65.72, and 65.78, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.3, 65.26, 65.40, 65.62, and 65. 72 were adopted with changes to the proposed text as published in the February 19, 1993, issue of the Texas Register (18 TexReg 1069). Sections 65.9, 65.13, 65.27, 65.31, 65.54, and 65.78 were adopted without changes and will not be republished. Changes made to the text as proposed are itemized as follows: Section 65.3 (Definitions-Designated urban lakes). Claiborne lake in Orange County was misspelled. Section 65.26 (Deer Management Plan). Text was added to this rule in several places to link the adopted Deer Management Plan with the previous named Wildlife Management Plan and to link the Wildlife Management Plan with a new system for taking antlerless deer under the Landowner Assisted Management Plan and Permitting System (LAMPPS). Text was deleted that referenced the expired herd management tag program. Section 65.40 (Deer: White-tailed and Mule Deer). This rule was substantially changed by staff to reflect public comments that deer populations in several areas of the state were being depleted by overharvest of the resource. The opening day of deer seasons will be the first Saturday in November rather than the second Saturday in November. Val Verde County south of U.S. Highway 90 was added to the south Texas deer season. An additional category of 16 days (sec.65.40(1)(D)(ii)) to take antlerless deer was added as a compromise between full season either-sex hunting for 58 days and a six-day season where antlerless deer may be taken without antlerless permits. Text was added to sec.65.40(1)(D)(i)-(viii) which clarifies that the bag limit may not include more than two antlerless deer. Text in subclause (III) of sec.65.40(1) (D)(ii)- (iv) was added to clarify the periods of time when antlerless deer may be taken by antlerless deer permit and when antlerless deer may be taken without an antlerless deer permit. Moore County was inadvertently omitted from sec.65.40(1)(D)(vi). Text was added to sec.65.40(2)(B) to clarify that only archery equipment may be used during this season. Section 65.65 (Turkey). This rule was changed to differentiate between the south Texas hunting season, the extended south Texas season, and the change in the turkey bag limit for Val Verde County below U.S. Highway 90. Cameron, Hidalgo, Starr, and Zapata Counties were inadvertently proposed for a fall turkey season. These four counties were deleted from sec.65.62(c)(1)(A) and (B). Section 65.72 (Fish). The proposed increase in red drum bag limits was withdrawn. This section was also changed to clarify where fish must be weighed by adding the phrase "Purtis Creek State Park," removal of text that is redundant concerning the exceptions for white bass, and removal of size requirements for jugline jugs. The rules as adopted have as their factual basis scientific studies and investigations which track wildlife resource populations and assess factors affecting those populations. The Texas Employment Commission in a reply dated February 26, 1993, indicated that the amendments would have no significant employment impact upon the state. The rules as adopted are necessary to appropriately manage wildlife resources through use of harvest (bag and possession) limits and clarify the rules for law enforcement purposes. The rules are designed to prevent depletion or waste and provide harvest opportunity of wildlife resources consistent with acknowledged fisheries and wildlife tenets. Comments were received from 1,599 persons who attended the 63 county public hearings. Additionally, the public made comments by letter and telephone. The most comments received concerned the proposed change in the opening date of the white-tailed deer general season. Over 1,300 comments were received concerning this issue, of which 962 (71%) were opposed to changing the opening date of deer season. Other issues the public commented on was concern for the general decline in deer populations; support for closing the antlerless deer season; supporting and opposing the addition of an extra deer tag to 14 south Texas counties and extending the end of the deer season by one week; support for reinstating antlerless deer permits to take antlerless deer; supporting the Landowner Assisted Management Program; opposition to the increase in red drum bag limits, opposing the size requirement for jugline jugs; and opposing the prohibition of chumming for striped bass. Comments made by the public at the county hearings, by correspondence, telephone calls, and at the Commission's public hearing are available for public inspection at the Texas Parks and Wildlife Department, Headquarters Complex, 4200 Smith School Road, Austin, Texas 78744. A State Senator supports the proposed amendments. Individuals from the Doss Wildlife Association, oppose opening deer season the first Saturday in November. An individual from Champion International, supports the proposed deer bag limits in east Texas. An individual from International Paper, supports the proposed amendments. An individual from Texas Wildlife Association, supports the proposed amendments. Two individuals from the Sportsmen Conservationists of Texas, support the proposed amendments. An individual from Lone Star Bow Hunters Association, support the proposed amendments. An individual from Texas Sportsmen's Association, opposes the deer bag limit changes. An individual from the National Rifle Association, supports the proposed amendments. The Texas Parks and Wildlife Commission disagreed with several comments received because they were judged not to be appropriate for wildlife resource management. In compliance with Texas Parks and Wildlife Code, sec.65.051, the Commission shall make findings of fact based on the studies and investigations of the department. Several of the comments were related to rules not proposed as amendments and will not be discussed. With respect to deer regulations, the department withdrew the proposal to open the white-tailed deer season beginning the second Saturday of November. As a result of public comments, deer bag limits in several counties in East Texas were further restricted by staff in order to reduce the threat of overharvest to antlerless deer. The South Texas increased deer bag limit and length of season was adopted, as these are biologically justifiable. Staff agreed with public comments to align that portion of Val Verde County south of U.S. Highway 90 with the later south Texas deer and turkey seasons. Staff agreed with the public that the size requirement for jugs attached to juglines need not be of a specific size. The proposed increase in the red drum bag limit was withdrawn due to the number of opposing public comments and the staff's desire to err on the side of a conservative harvest. The Commission after hearing and reviewing the public's comments and staff's response to the public's testimony made the following changes to the text as proposed. The opening date for the white-tailed deer season will begin the first Saturday in November rather than the second Saturday in November. Val Verde County south of U.S. Highway 90 will begin deer and turkey seasons on the second Saturday of November rather than the first Saturday in November. There will be no size requirement for jugs attached to juglines but color coding of jugs will become a requirement. The red drum bag limit will remain at three fish per day and six in possession. The amendments are adopted under the Texas Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the Texas Parks and Wildlife Commission with authority to establish wildlife resource regulations for this state. sec.65.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Chumming-To deposit into the water any fish, parts of fish, or other substances containing fish or fish parts that are not attached to a hook and line and used to attract fish or stimulate fish feeding activity. Coastal waters boundary-For purposes of Texas Parks and Wildlife Code, Chapters 61 and 66, all public waters east and south of the following boundary are considered coastal waters: Beginning at the International Toll Bridge in Brownsville, thence northward along U.S. Highway 77 to the junction of Paredes Lines Road (FM Road 1847) in Brownsville, thence northward along FM Road 1847 to the junction of FM Road 106 east of Rio Hondo, thence westward along FM Road 106 to the junction of FM Road 508 in Rio Hondo, thence northward along FM Road 508 to the junction of FM Road 1420, thence northward along FM Road 1420 to the junction of State Highway 186 east of Raymondville, thence westward along State Highway 186 to the junction of U.S. Highway 77 near Raymondville, thence northward along U.S. Highway 77 to the junction of FM Road 774 in Refugio, thence eastward along FM Road 774 to the junction of State Highway 35 south of Tivoli, thence northward along State Highway 35 to the junction of State Highway 185 between Bloomington and Seadrift, thence northwestward along State Highway 185 to the junction of FM Road 616 in Bloomington, thence northeastward along FM Road 616 to the junction of State Highway 35 east of Blessing, thence southward along State Highway 35 to the junction of FM Road 521 north of Palacios, thence northeastward along FM Road 521 to the junction of State Highway 36 south of Brazoria, thence northward along State Highway 36 to the junction of State Highway 332 in Brazoria, thence eastward along State Highway 332 to the junction of FM Road 2004 in Lake Jackson, thence northeastward along FM Road 2004 to the junction of Interstate Highway 45 between Dickinson and La Marque, thence northwestward along Interstate Highway 45 to the junction of Interstate Highway 610 in Houston, thence east and northward along Interstate Highway 610 to the junction of Interstate Highway 10 in Houston, thence eastward along Interstate Highway 10 to the junction of State Highway 73 in Winnie, thence eastward along State Highway 73 to the junction of U.S. Highway 287 in Port Arthur, thence northwestward along U.S. Highway 287 to the junction of Interstate Highway 10 in Beaumont, thence eastward along Interstate Highway 10 to the Louisiana State Line. The public waters north of the dam on Lake Anahuac in Chambers County; north and west of the junction of the north and south forks of the Guadalupe River in Calhoun and Refugio Counties; the waters of Taylor Bayou and Big Hill Bayou inland from the saltwater locks on Taylor Bayou in Jefferson County; the Galveston County Reservoir on State Highway 146 in Galveston County; Lakeview City Park Lake in Corpus Christi; Lake Burke-Crenshaw in Pasadena; Galveston County Reservoir in Galveston County; Galveston State Park ponds number one through seven in Galveston County; Lake Nassau in Harris County: Fort Brown Resaca in Cameron County; Resaca de la Guerra in Cameron County; Resaca de la Palma in Cameron County; Resaca de los Cuates in Cameron County; Resaca de los Fresnos in Cameron County; Resaca Rancho Viejo in Cameron County; and Town Resaca in Cameron County, are not considered coastal waters for purposes of this proclamation. Deer Management Plan-A written document provided to the landowner or agent and approved by a department biologist after an investigation is completed on a tract of land. Designated urban lakes-For purposes of the Texas Parks and Wildlife Code, Chapters 61 and 66, the following public waters listed by county and location, are considered designated urban lakes. Park Lake; Bexar-Espada; Hi-Lions; Live Oak City; Millers Pond; San Antonio River; Blanco-Blanco State Park #5; Five Mile Dam; Bowie-Spring Lake Park; Brazos-Cy Miller Pond; Gabbards Park; Cameron -Dixieland; Fort Brown Resaca; Harlingen City Lake; Harlingen Sports Complex; Collin-Bethany Park A; Bethany Park B; Bethany Park C; Bob Woodruff; Shawnee Park; Towne; Dallas-Kid Springs Park; Lakeside (Duncanville); Mesquite City Lake; Northwest Park Pond; (Irving) O'Bannon (Garland); Palos Verdes; Samuel Farm Pond A; Samuel Farm Pond #1; Samuel Farm Pond #4; Samuel Farm Pond #5; Denton-Flower Mound Rheudasill North Lake Park (Denton); South Lake Park (Denton); Fort Bend-Missouri City; Missouri City Community; Park Lake; Gillespie-LBJ State Park; Grayson-Pickens; Waterloo; Gregg-Teague Park Lake; Harris-Bane Park; Eisenhower City Park; Forest Lake; Hermann Park; Tom Bass 1; Lubbock-Canyon Lake Project 1; Maxey Park; Montgomery- Albert Sallas County Park; Orange -Claiborne West Park; Potter-Medical Center North; Medical Center South; Randall-Southeast Park; Smith-Camp Tyler A; Camp Tyler B; Camp Tyler C; Tarrant-Bedford Boys Ranch; Como; Echo; French; Hurst Chisolm Park; Oakland; Taylor-Nelson Park; Tom Green-Bell Street; Irving Street; Martin Luther King Park; Oak Street (San Angelo); Travis-Searight Park Lake #1; Wichita-Kid's Pond; Plum Lake (Softball Complex); Williams Park; Williamson- South San Gabriel River (Georgetown); Round Rock City Park; San Gabriel Park; Taylor City Lake #1; Taylor City Lake #2; Taylor City Lake #4. sec.65.26. Deer Management Plan and Required Permits. (a) A deer management plan (see sec.65.3 of this title relating to Definitions), previously entitled Wildlife Management Plan, shall include: (1) measurements of density, production, and sex composition of the deer population present on the property; (2) measurements of the number, sex, and where possible, age of the deer harvested from the property; (3) evaluation and appraisal of habitats determined by Texas Parks and Wildlife Department to be of significance to white-tailed deer; (4) the number of hunters on the property, the number of days that they hunted, and the dates that they harvest deer; and (5) descriptions of land management practices occurring on the property. (b) A deer management plan, previously entitled Wildlife Management Plan, shall: (1) specify the number of antlerless deer to be harvested from a given tract of land; (2) require each antlerless deer taken to be tagged with a permit issued under this section, or an antlerless deer permit issued under the authority of sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits), and in compliance with the Landowner Assisted Management Plan and Permitting System (LAMPPS); and (3) no permit is valid unless it has been issued, used, and possessed in accordance with this section and sec.65.31 of this title (relating to Antlerless Mule Deer Permits and White-tailed Deer Permits). sec.65.40. Deer: White-tailed and Mule Deer. No person, may take more than the aggregate total of six deer per license year; of which no more than two may be mule deer, only one of which may be a buck mule deer; no more than three white- tailed buck deer, or no more than six antlerless deer, both species combined. (1) White-tailed deer: general open seasons, bag, and possession limits shall be as follows. (A) In Bandera, Bexar, Blanco, Brewster, Brown, Burnet, Calhoun, Coke, Coleman, Comal, Concho, Crockett, Culberson, Edwards, Gillespie, Glasscock, Hays, Irion, Jeff Davis, Kendall, Kerr, Kimble, Kinney (only north of U.S. Highway 90), Llano, Mason, McCulloch, Medina (only north of U.S. Highway 90), Menard, Mills, Mitchell, Nolan, Pecos, Presidio, Reagan, Real, Reeves, Runnels, San Saba, Schleicher, Sterling, Sutton, Terrell, Tom Green, Travis, Upton (south of U.S. Highway 67 and east of state highway 349), Uvalde (only north of U.S. Highway 90), and Val Verde (only north of U.S. Highway 90 and/or west of Spur 239) Counties, there is an open season for white-tailed deer. (i) Open season: First Saturday in November through the first Sunday in January. (ii) Bag limit: Four white-tailed deer, no more than two bucks. (iii) Antlerless white-tailed deer may be taken without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). (B) In Aransas, Atascosa, Bee, Cameron, Hidalgo, Kinney (only south of U.S. Highway 90), Live Oak, Medina (only south of U.S. Highway 90), Nueces, Refugio, San Patricio, Starr, Uvalde (only south of U.S. Highway 90), Val Verde (only south of U.S. Highway 90 and east of Spur 239), and Willacy Counties, there is an open season for white-tailed deer. (i) Open season: Second Saturday in November through the second Sunday in January. (ii) Bag limit: Four white-tailed deer, no more than two bucks. (iii) Antlerless white-tailed deer may be taken without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). (iv) Special (South Texas) late season: In the counties listed in this subparagraph there is a special late antlerless only white-tailed deer season. (I) Open season: January 15-January 30, 1994. (II) Bag limit: Four antlerless white-tailed deer only. Antlerless white- tailed deer may be taken without an antlerless permit in compliance with clause (iii) of this subparagraph. The bag limit is not in addition to the general or archery only season bag limits. (C) In Brooks, Dimmit, Duval, Frio, Jim Hogg, Jim Wells, Kenedy, Kleberg, LaSalle, Maverick, McMullen, Webb, Zapata, and Zavala Counties, there is an open season for white-tailed deer. (i) Open season: Second Saturday in November through the third Sunday in January. (ii) Bag limit: Five white-tailed deer, no more than three bucks. (iii) Antlerless white-tailed deer may be taken without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). (iv) Special (South Texas) late season: In the counties listed in this subparagraph there is a special late antlerless only white-tailed deer season. (I) Open season: January 17-30, 1994. (II) Bag limit: Five antlerless white-tailed deer only. Antlerless white- tailed deer may be taken without an antlerless deer permit in compliance with clause (iii) of this subparagraph. The bag limit is not in addition to the general or archery only season bag limits. (D) No person may take or possess more than one white-tailed buck deer per license year from counties, in the aggregate, listed within this subparagraph. (i) In Bell, Bosque, Brazoria, Callahan, Comanche, Coryell, Eastland, Erath, Fort Bend, Goliad (south of U.S. Highway 59), Hamilton, Howard, Jackson (south of U.S. Highway 59), Lampasas, Matagorda, McLennan (west of Brazos River and IH 35), Palo Pinto, Shackelford, Stephens, Taylor, Throckmorton, Victoria (south of U.S. Highway 59), Wharton (south of U. S. Highway 59), and Williamson Counties, there is an open season for white-tailed deer. (I) Open season: First Saturday in November through the first Sunday in January. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless white-tailed deer may be taken without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). (ii) In Angelina, Hardin, Jasper, Liberty (only east of the Trinity River and north of U.S. Highway 90), Newton, Polk, and Tyler Counties, there is an open season for white-tailed deer. (I) Open season: First Saturday in November through the first Sunday in January. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless deer may be taken only during the first 16 days of the general season and without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). After the first 16 days, antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (iii) In Fisher (west of State Highway 70), Hemphill, Hood, Jack, Karnes, Kent (south of U.S. Highway 180), Parker (west of FM 51 and State Highway 171), Scurry, Somervell, Wheeler, Wilson, and Young Counties, there is an open season for white-tailed deer. (I) Open season: First Saturday in November through the first Sunday in January. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless deer may be taken only during the first six days of the general season and without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). After the first six days, antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (iv) In Archer, Baylor, Clay, Cooke, Denton, Hill, Johnson, McClennan (east of Brazos River and IH 35), Montague, Nacogdoches, Panola, Parker (east of FM 51 and State Highway 171), Rusk, Sabine, San Augustine, Shelby, Tarrant, and Wise Counties, there is an open season for white-tailed deer. (I) Open season: First Saturday in November through the first Sunday in January. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless deer may be taken only during the first two days of the general season and without an antlerless deer permit required by sec.65.27 of this title (relating to Permits) and sec.65.31 of this title (relating to Antlerless Mule Deer and White-tailed Deer Permits). After the first two days, antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (v) In Anderson, Armstrong, Austin, Bastrop, Borden, Bowie, Brazos, Briscoe, Burleson, Caldwell, Camp, Carson, Cass, Chambers, Cherokee, Childress, Collingsworth, Colorado, Cottle, Crane, Crosby, Delta, De Witt, Dickens, Donley, Ector, Ellis, Falls, Fannin, Fayette, Fisher (east of State Highway 70), Floyd, Foard, Franklin, Freestone, Garza, Goliad (north of U.S. Highway 59), Gonzales, Gray, Gregg, Grimes, Guadalupe, Hall, Hardeman, Harris, Harrison, Haskell, Hopkins, Houston, Hutchinson, Jackson (north of U.S. Highway 59), Jefferson, Jones, Kent (north of U.S. Highway 180), King, Knox, Lamar, Lavaca, Lee, Leon, Liberty (only west of the Trinity River and south of U.S. Highway 90), Limestone, Lipscomb, Loving, Madison, Marion, Midland, Milam, Montgomery, Morris, Motley, Navarro, Ochiltree, Orange, Rains, Randall, Red River, Roberts, Robertson, San Jacinto, Smith, Stonewall, Swisher, Titus, Upshur, Upton (north of U.S. Highway 67 and west of State Highway 349), Van Zandt, Victoria (north of U.S. Highway 59), Walker, Waller, Ward, Washington, Wharton (north of U.S. Highway 59), Wichita, Wilbarger, and Wood Counties, there is an open season for buck white-tailed deer only, except that antlerless deer may be taken only by the antlerless permit authorized by a Deer Management Plan (see sec.65.26 of this title (relating to Deer Management Plan)). (I) Open season: First Saturday in November through the first Sunday in January. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (vi) In Hartley, Moore, Oldham, and Potter Counties, there is an open season for buck white-tailed deer only, except that antlerless deer may be taken only by antlerless permit authorized by a Deer Management Plan (see sec.65.26 of this title (relating to Deer Management Plan)). (I) Open season: Saturday before Thanksgiving for 16 consecutive days. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (vii) In Hunt County, there is an open season for buck white-tailed deer only, except that antlerless deer may be taken only by antlerless permit authorized by a Deer Management Plan (see sec.65.26 of this title (relating to Deer Management Plan)). (I) Open season: First Saturday in November for nine consecutive days. (II) Bag limit: Three deer, no more than one buck and no more than two antlerless deer. (III) Antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (viii) In Henderson County, there is an open season for buck white-tailed deer only, except that antlerless deer may be taken only by antlerless permit authorized by a Deer Management Plan (see sec.65.26 of this title (relating to Deer Management Plan)). (I) Open season: First Saturday in November through the first Sunday in January. (II) Bag limit: Three white-tailed deer, no more than one buck and no more than two antlerless deer, antlerless deer may be taken only by antlerless permits authorized by sec.65.26 of this title (relating to Deer Management Plan). (III) Special Requirement: In that portion of Henderson County bounded on the north by the county line, on the east by U.S. Highway 175 and Tin Can Alley Road, on the south by State Highway 31, and on the west by State Highway 274, hunting, shooting, or taking of deer is restricted to shotguns with buckshot or longbow and arrows, and other game animals or game birds may be taken only with shotgun or longbow and arrows. (E) In Andrews, Bailey, Castro, Cochran, Collin, Dallam, Dallas, Dawson, Deaf Smith, El Paso, Gaines, Galveston, Grayson (except Hagerman National Wildlife Refuge), Hale, Hansford, Hockley, Hudspeth, Kaufman, Lamb, Lubbock, Lynn, Martin, Parmer, Rockwall, Sherman, Terry, Winkler, and Yoakum Counties, there is no general open season for white-tailed deer. (2) White-tailed deer: archery only open seasons, bag, and possession limits shall be as follows. (A) In Aransas, Atascosa, Bandera, Bee, Bexar, Blanco, Brewster, Brown, Burnet, Calhoun, Cameron, Coke, Coleman, Comal, Concho, Crockett, Culberson, Edwards, Gillespie, Glasscock, Hays, Hidalgo, Irion, Jeff Davis, Kendall, Kerr, Kimble, Kinney, Live Oak, Llano, Mason, McCulloch, Medina, Menard, Mills, Mitchell, Nolan, Nueces, Pecos, Presidio, Reagan, Real, Reeves, Refugio, Runnels, San Saba, San Patricio, Schleicher, Starr, Sterling, Sutton, Terrell, Tom Green, Travis, Uvalde, Val Verde, and Willacy Counties, there is an open season during which white-tailed deer may be taken only with longbow and arrows. (i) Open season: October 1-31. (ii) Bag limit: Four white-tailed deer, either sex, no more than two bucks. (B) In Brooks, Dimmit, Duval, Frio, Jim Hogg, Jim Wells, Kenedy, Kleberg, LaSalle, Maverick, McMullen, Webb, Zapata, and Zavala Counties, there is an open season during which white-tailed deer may be taken only with longbow and arrows. (i) Open season: October 1-31. (ii) Bag Limit: Five white-tailed deer, either sex, no more than three bucks. (C) No person may take or possess more than one white-tailed buck deer per license year from counties, in the aggregate, listed within this subparagraph. (i) In Anderson, Angelina, Austin, Bell, Borden, Bosque, Bowie, Brazoria, Brazos, Burleson, Callahan, Camp, Cass, Chambers, Cherokee, Colorado, Comanche, Coryell, Delta, DeWitt, Eastland, Erath, Falls, Fayette, Fisher, Fort Bend, Franklin, Freestone, Goliad, Gonzales, Gray, Grayson (only on the Hagerman National Wildlife Refuge) , Gregg, Grimes, Guadalupe, Hamilton, Hardin, Harris, Harrison, Haskell, Hemphill, Henderson, Hood, Hopkins, Houston, Howard, Hutchinson, Jack, Jackson, Jasper, Jefferson, Karnes, Kent, Lamar, Lampasas, Lavaca, Lee, Leon, Liberty, Limestone, Madison, Marion, Matagorda, McLennan, Milam, Montgomery, Morris, Nacogdoches, Navarro, Newton, Orange, Palo Pinto, Panola, Parker, Polk, Red River, Roberts, Robertson, Rusk, Sabine, San Augustine, San Jacinto, Scurry, Shackelford, Shelby, Smith, Somervell, Stephens, Taylor, Throckmorton, Titus, Trinity, Tyler, Upshur, Upton, Van Zandt, Victoria, Walker, Wharton, Wheeler, Williamson, Wilson, Wise, Wood, and Young Counties, there is an open season during which white-tailed deer may be taken only with longbow and arrows. (I) Open season: October 1-31. (II) Bag limit: Three white-tailed deer, no more than one buck and no more than two antlerless deer. (ii) In Archer, Armstrong, Bastrop, Baylor, Briscoe, Caldwell, Carson, Childress, Clay, Collingsworth, Cooke, Cottle, Crane, Crosby, Denton, Dickens, Donley, Ector, Ellis, Fannin, Floyd, Foard, Garza, Grayson (except on Hagerman National Wildlife Refuge), Hall, Hardeman, Hartley, Hill, Hunt, Johnson, Jones, Kaufman, King, Knox, Lipscomb, Loving, Midland, Montague, Moore, Motley, Ochiltree, Oldham, Potter, Rains, Randall, Stonewall, Swisher, Tarrant, Waller, Ward, Washington, Wichita, and Wilbarger Counties, there is an open season during which white-tailed buck deer may be taken only with longbow and arrows. (I) Open season: October 1-31. (II) Bag limit: One white-tailed buck deer. (D) In Andrews, Bailey, Castro, Cochran, Collin, Dallam, Dallas, Dawson, Deaf Smith, El Paso, Gaines, Galveston, Hale, Hansford, Hockley, Hudspeth, Lamb, Lubbock, Lynn, Martin, Parmer, Rockwall, Sherman, Terry, Winkler, and Yoakum Counties, there is no archery only open season for white-tailed deer. (E) The archery only season bag limit is not in addition to the general open season bag limits for white-tailed deer. (3)-(5) (No change.) sec.65.72. Fish. (a) (No change.) (b) Bag, possession, and length limits. (1)-(3) (No change.) (4) There are no bag, possession, or length limits on game or non-game fish, except as provided in these rules. (A) Statewide daily bag, possession, and length limits shall be as follows. [graphic] (B) Exceptions to Statewide daily bag, possession, and length limits shall be as follows: (i) (ii) Bag and possession limits for black drum, sheepshead and flounder do not apply to the holder of a valid Commercial Finfish Fisherman's License. (5) Bag, possession, and length limits for Cooper Lake in Delta and Hopkins Counties apply to all waters within the Corps of Engineers Lands on Cooper Lake; upstream from State Highway 19/154 and downstream from FM 71. (c) Freshwater devices, means, and methods. (1) (No change.) (2) It is unlawful for any person to take, attempt to take, or possess fish caught by any device, means, or method other than as authorized in these rules. (A) (No change.) (B) Trotline. Non-game fish, channel catfish, blue catfish, and flathead catfish may be taken by trotline. It is unlawful for any person to use a trotline: (i) -(vi) (No change.) (vii) in Gibbons Creek Reservoir in Grimes County, Lake Bastrop in Bastrop County, Fayette power project cooling pond in Fayette County, Pinkston Reservoir in Shelby County, Lake Burke-Crenshaw in Harris County, and Bright Lake in Williamson County, in reservoirs lying totally within boundaries of a state park or in designated urban lakes. (C) Jugline. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a jugline. It is unlawful for any person to use a jugline: (i) with invalid gear tags. Gear tags must be attached within six inches of the free floating device, are valid for 30 days after the date set out, and must include the number of the permit to sell non-game fish taken from public freshwater if applicable; (ii) for commercial purposes that is not marked with an orange free floating device; (iii) for non-commercial purposes that is not marked with a white free floating device; and (iv) in Lake Bastrop in Bastrop County, Lake Burke-Crenshaw in Harris County, Bright Lake in Williamson County, and in designated urban lakes. (D) Throwline. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a throwline. It is unlawful for any person to use a throwline in Lake Bastrop in Bastrop County, Lake Burke-Crenshaw in Harris County, Bright Lake in Williamson County, and in designated urban lakes. (E)-(M) (No change.) (N) Gill nets, trammel nets, and hoop nets. It is unlawful for any person to use gill nets, trammel nets, or hoop nets in the public freshwaters of this state without a permit in compliance with sec.sec.57.377-57. 386 of this title (relating to Permits to Sell Nongame Fish Taken from Public Freshwater). (O) Chumming. It is unlawful for any person to take or attempt to take fish by chumming in the waters of Lake Texoma in Cooke and Grayson Counties. (d) Saltwater devices, means, and methods. (1) (No change.) (2) Only the following means and methods may be used for taking fish. (A) Devices. (i) Pole and line (includes rod and reel), artificial and natural baits, trotline with the main fishing line and attached hooks and stagings under the water's surface, sail line, spear gun and spear, bow and arrow, perch trap, and gig may be used for taking fish. It is unlawful to take game fish on any gear except pole and line or rod and reel, except channel, blue, and flathead catfish may be taken by trotline, and red drum, sharks, and spotted seatrout may be taken by sail line. Cast nets not exceeding 14 feet in diameter and 20-foot minnow seines may be used for taking bait. Dip nets and gaffs may be used only in aiding to land fish caught on other legal devices except that gaffs may not be used to land fish below the minimum or above the maximum size limits. (ii)-(iv) (No change.) (B)-(D) (No change.) (e) (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 May 13, 1993. TRD-9322909 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: September 1, 1993 Proposal publication date: February 19, 1993 For further information, please call: 1-800-792-1112,, Ext. 4433 or (512) 389- 4433 Part IX. Texas Water Commission Chapter 305. Consolidated Permits Subchapter D. Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 31 TAC sec.305.69, sec.305.70 The Texas Water Commission (TWC) adopts amendments sec.305.69 and sec.305. 70. Section 305.70 is adopted with changes to the proposed text as published in the February 16, 1993, issue of the Texas Register (18 TexReg 1001). Section 305.69 is adopted without changes and will not be republished. The new and amended sections are adopted under the Texas Health and Safety Code, Chapter 361, which gives the commission the authority to carry out its responsibilities concerning the regulation and management of municipal solid waste. The amendment to sec.305.69 simply clarifies the fact that the provisions of that section apply to industrial and hazardous waste permit modifications only, and that municipal solid waste permit modifications are covered by new sec.305. 70. The new sec.305.70 allows for the administrative approval of specifically delineated municipal solid waste permit modifications. The permit modifications delineated are minor in nature, and maintain or improve environmental protection standards. In addition, sec.305.70 will allow those facilities that will have to comply with the recently promulgated federal regulations that call for stricter operation and management standards to implement the required modifications more expeditiously. The TWC received written comments on the proposed rules for a period of 30 days, from February 16, 1993, until March 18, 1993. A public hearing was held on March 11, 1993, to receive verbal comments. Comments on the proposed rules were received from the following persons: Blackburn and Carter, Houston, Texas; Browning-Ferris Industries, Inc., Houston, Texas; the City of Temple, Texas; Cooke-Joyce, Inc., Austin, Texas; Harris County Pollution Control, Houston, Texas; and John Butler, Austin, Texas. The TWC received one comment on sec.305.70(b), requesting that the notification requirement be sent out prior to the approval of the modification rather than 30 days after. The TWC believes the modifications that are listed are for minor changes to the site operations that will improve the operation of the facility and can be administratively approved based upon the technical merits of the proposed change. Those items which could adversely affect the public have been marked to require notice. The TWC received one comment on sec.305.70(e), stating that the automatic approval is not appropriate. The purpose of the automatic approval provision is to expedite the review process and not delay changes that improve or maintain the operations of a facility. This provision is consistent with a similar provision in 31 TAC sec.305.69, and will be retained. The TWC received one comment suggesting that the notification requirement be placed on several paragraphs of sec.305.70(g), specifically paragraphs (2), (10), (12), (13), (15), (16), and (20). The paragraphs cover items that are internal to the operation of the facility, that improve or maintain the operations of a facility, and when implemented will have a impact on the environment, and the TWC does not believe public notice is necessary. The TWC received two comments suggesting that the notification requirement be placed on sec.305.70(g)(22), which allows specific authorized projects not related to the permitted process to be conducted at the permitted facility. The TWC agrees with this comment and has changed the paragraph to add the superscript that stipulates that notification is required. The TWC received one comment on sec.305.70(g)(2), stating that the provision in this paragraph conflicted with 25 TAC sec.325.56 and that the public would be impacted by allowing disposal of wastes closer to the site boundaries. 25 TAC sec.325.56 was not recodified by the TWC when it obtained jurisdiction over the municipal solid waste program on March 1, 1992; therefore, no conflict exists between 31 TAC 325 and 31 TAC 330. The TWC does not believe that adverse impacts will be created by allowing waste to be placed closer to the site boundaries, because reshaping a trench does not allow waste to be placed within the buffer zone of a site. The TWC received one comment on sec.305.70(g)(3), suggesting that a limitation of ten feet horizontally be placed on the relocation of a monitor well instead of the no-change provision that was published. The TWC agrees that a slight change in the specific location of a damaged well is acceptable and has changed the paragraph to allow a horizontal movement of a damaged monitor well of up to 20 feet. The TWC received one comment on sec.305.70(g)(6) and (7), suggesting that the proposed modification for changes to the interior road location and design be granted by TWC district personnel. The TWC believes that the municipal solid waste permit staff should continue to review and approve permit modifications so that permit records can be maintained up-to-date. The TWC received one comment on sec.305.70(g)(10), stating that a change in a boundary requires a permit amendment under 25 TAC sec.325.56. The TWC notes that 25 TAC sec.325.56 was not recodified into 31 TAC Chapter 330 when the program was transferred to the TWC on March 1, 1992. The modification does not allow extension of the site boundaries but is sometimes needed to correct inaccurate metes and bounds descriptions. Therefore, the rule as proposed will not be changed. The TWC received one comment on sec.305.70(g)(14), suggesting that the paragraph be revised to include the installation of additional methane wells. The TWC agrees with this suggestion and has changed this paragraph to allow the installation of additional methane wells to an existing gas collection system, because the initial design would not necessarily account for increases in the production of methane gas that would require additional methane wells. The TWC received two comments on sec.305.70(g)(16), recommending that alternate daily cover be allowed on a full-time basis. The TWC believes that it is appropriate to maintain the test basis for sites that wish to initiate the procedure prior to the implementation of the new federal regulations which allow alternate daily cover on a full-time basis. Therefore, the rule will remain as proposed. The TWC received one comment on sec.305.70(g)(20), suggesting that language be added for the installation of sediment or stormwater control measures. The TWC believes that this paragraph already contains language that would include any and all drainage features. Therefore, the rule will remain as proposed. The TWC received one comment on sec.305.70(g)(20), suggesting that the owner/operator of a facility be allowed to make internal changes without approval or only with TWC district approval. The TWC believes that modifications to site drainage require engineering design changes that are best reviewed and approved by the municipal solid waste permitting staff. Therefore, this rule will remain as proposed. The TWC received one comment on sec.305.70(g)(20), stating that the addition of drainage features between the waste disposal limits and the boundary required a major permit amendment. The TWC disagrees with this comment because the current regulation, 31 TAC sec.330.65(b)(G)(iii), allows for the construction of permanent drainage features between the waste disposal limits and the site boundary. The TWC received three comments on sec.305.70(g)(22), suggesting changes that would, in the opinion of the commenters, clarify the paragraph because the proposed language implies that all the types of operations mentioned are required to be registered. The TWC agrees that the paragraph needs some clarification and a change has been made to distinguish which operations are registered and which are not registered. The intent of the paragraph is to require the owner/operator of a municipal solid waste facility to modify the site layout plan to show the location of the additional operation, whether the additional operation is registered or not. This keeps the file for the permitted municipal solid waste facility up-to-date. The TWC received one comment on sec.305.70(g)(23), suggesting that height increases for drainage be allowed only when the top slope is less than two percent, and that all other height increases be Class 3 modifications. The TWC believes that drainage problems can exist for top slopes greater than two percent, and the rules should allow flexibility to address them without arbitrary slope limits. Anything beyond a Class I modification requires a minor or major permit amendment as required by 31 TAC sec.305.62. The TWC received one comment on sec.305.70(g)(23), suggesting that a height increase be limited to a specified grade or be limited to one foot. The TWC believes that a one-foot height increase or a specified grade does not allow for an engineering redesign of the problems which necessitated the height increase, and therefore is too inflexible to solve these problems. This suggested change is not adopted. The TWC has received one comment on sec.305.70(g)(23), suggesting that a height increase greater than ten feet be allowed, provided that there is no increase in capacity or site life. The TWC agrees with this suggestion only to the extent that all or the portion of the facility affected by the ten-foot increase will formally close. A change has been made to this paragraph and to sec.305.70(h) that will allow height increases greater than ten feet on portions of a landfill if the capacity or site life is balanced by a reduction in the total area used. The TWC received one comment on sec.sec.305.70(g)(23), 305.70(g)(23)(B), and 305.70(g)(23)(C)(ii), disagreeing with the concept of a height increase because it allows an increase in capacity or height without a permit amendment. The TWC believes that there are specific case-by-case situations that warrant granting a height increase through administrative approval. Some of the reasons these situations have evolved are because of early closure of some sites due to the new federal subtitle D regulations; some sites were permitted without a final contour plan; because of delays in permitting new sites; and emergency conditions that developed due to the weather or some other natural disaster. Therefore, the provisions of this rule will remain as proposed. The TWC received two comments on sec.305.70(g)(24), disagreeing with this provision, stating that the conversion of a municipal solid waste Type I, II, or III landfill to a Type IV landfill should require demonstration that ground and surface waters are not affected by the facility and that the operations would require less controls, thereby needing public comment on the change. Current regulations allow a Type I landfill to have a separate Type IV disposal area and the new federal regulations do not specifically include Type IV waste in their definitions. This provision simply clarifies the fact that a Type I, II, or III landfill can already accept rubbish, brush, and construction demolition wastes. Conversion from a Type I, II, or III landfill to a Type IV landfill will eliminate disposal of putrescibles, and thus will be non-restrictive. In addition, the public will be notified of the change through a public notice. This suggested change is not adopted. The TWC received two comments on sec.305.70(i), one suggesting that the notification requirement be added to this subsection and one stating that all routine changes should require a major amendment. The TWC believes this to be unnecessary in most cases because these changes are minor changes to the site plans and the executive director is allowed under the proposed rules to require notification if deemed appropriate. The TWC received one comment on sec.305.70(j), stating that the 180-day time period for a temporary authorization is excessive. The TWC believes that the time period should remain at 180 days. This is a maximum time period which can be shortened if the executive director believes a shorter time is more appropriate. The new and amended sections are proposed under the Texas Health and Safety Code, Chapter 361, which gives the commission all powers necessary and convenient to carry out its responsibilities concerning the regulation and management of municipal solid waste. sec.305.70. Municipal Solid Waste Class I Modifications. (a) A permittee may put into effect a Class I modification to a MSW permit provided that the permittee has received prior written authorization for such Class I modification from the executive director. In order to receive prior written authorization, the permittee must submit a modification request to the executive director specifying the changes to be made to permit conditions or to supporting documents referenced by the permit, and explaining in detail why such changes are necessary. The permittee must submit two copies of the modification request in accordance with sec.305.44 of this title (relating to Signatories to Applications). Failure to submit the modification request with complete information shall constitute grounds for returning the request to the permittee without further action. (b) The permittee must send notice of the modification request by first-class mail to all persons listed in sec.305.103(b) of this title (relating to Notice by Mail) if the Class I permit modification identified in subsection (g) of this section is marked by a superscript 1. This notification must be made no later than 30 calendar days after the executive director acts upon the request. If the permittee fails to give notice as required, approval of the modification request is automatically revoked. (c) No later that 60 calendar days after receipt of the modification request, the executive director must: (1) approve the modification request, with or without changes, and modify the permit accordingly; (2) deny the request; (3) request additional information concerning the request from the permittee; or (4) determine that the modification request does not qualify as a Class I permit modification, and that the requested change requires a permit amendment pursuant to sec.305.62 of this title (relating to Amendment). (d) If a request for a Class I permit modification is denied by the executive director, the permittee must comply with the original permit conditions. Any change in a term, condition, or provision of a MSW permit that is not authorized by the executive director as a Class I permit modification requires a permit amendment pursuant to sec.305.62 of this title (relating to Amendment). (e) If after 60 days from receipt of a modification request that is specifically identified in subsection (g) of this section, the executive director fails to approve or deny the request or to notify the permittee that the requested modification requires a permit amendment pursuant to sec.305.62 of this title (relating to Amendment), the modification request shall be automatically approved. The executive director may extend this 60-day time period if necessary to review additional information submitted pursuant to subsection (c)(3) of this section. The length of the extension shall be equivalent to the amount of time necessary to review the additional information. (f) With the written consent of the permittee, the executive director may extend indefinitely or for a specified period the time periods set out in subsections (c) and (e) of this section. (g) The following is a list of possible Class I modifications to a MSW permit: (1) a change in the sequence of landfill development; (2) a change in the size and/or shape of a trench to obtain a 3:1 side slope, as long as there is no increase in capacity; (3) replacement of existing monitor wells that have been damaged or rendered inoperable, with no change to design or depth of the wells and a change in location of up to 20 feet horizontally; (4) changes in the location of marker systems (i.e., grid markers); (5) improvements to a fire protection plan; (6) changes to interior road location in order to prevent traffic through the disposal area; (7) changes in interior road design and construction materials; (8) increases in sampling frequency (e.g., for ground water, methane, etc.); (9) changes in excavation details, except for increases in depth that would change the SLQCP or increase the site life; (10) corrections to the metes and bounds description of the permit boundaries that do not increase the size of the facility; (11) upgrade of landfill liner design, installation, or quality control testing to reflect the requirements of revised regulations which provide for greater environmental protection; (12) installation of a leachate collection system; (13) installation of a methane gas monitoring system; (14) installation of a methane gas collection system or the installation of additional collection wells to an existing gas collection system; (15) changes in closure or post-closure care requirements to reflect the requirements of revised regulations which provide for increased environmental protection; (16) the use of alternate daily cover on a trial basis not to exceed six months with one six-month extension allowable; (17) changes regarding the use of alternate windblown waste control methods; (18) substitution of an equivalent financial assurance mechanism; (19) temporary changes in operating hours to address natural-disaster situations or to accommodate special community events; (20) changes in the drainage control plan that improve internal stormwater runon/runoff handling without impacting offsite drainage; (21) changes in the entry gate location or site layout that relocate gatehouse, office, or maintenance building locations, or add scales to the facility, so long as the changes do not alter access traffic patterns delineated in the site development plan and/or the permit; (22) changes to a site layout plan that add or delete a properly registered or exempted MSW facility-a used or scrap tire collection area, a recycling collection area, a sludge/grease/grit trap processing or stabilization facility, a petroleum contaminated soil stabilization area, a registered transfer station, a citizens' collection area, a pesticide container collection area, a composting operation, or other activity properly registered with the Commission; (23) subject to the limitation under subsection (h) of this section, an increase in landfill height that meets one of the following conditions: (A) the entire facility or a portion of the facility either ceases the receipt of solid waste within 365 days of executive director approval of the height increase and initiates formal closure of the entire facility or a portion of the facility, or has formally closed the facility or a portion of the facility; or (B) the facility has submitted a request for a major permit amendment pursuant to sec.305.62(c)(1) of this title (relating to Amendments) to increase the height of the landfill; or (C) the height increase is requested solely for the purpose of improving drainage from the filled area, and: (i) the waste disposal area is not expanded into the limits of the buffer zone or within easements that exist; and (ii) final contour elevations, including final cover, are no greater than ten feet above the maximum final contour elevation of the contiguous landfilled area or phase of landfill development. (24) a modification in the operation of a landfill that will change the incoming waste stream from a more restrictive waste stream to a less restrictive waste stream, i.e., a change from a Type I, II, or III landfill operation to a Type IV landfill operation may be granted, provided that the receipt of waste under the present operation has ceased and that the following conditions shall be satisfied. (A) Permanent closure of the filled portion of the landfill shall be initiated in accordance with the regulations for closure of municipal solid waste landfills. Completion may occur after the approval of the request to change the site operation. (B) The permittee shall provide a public notice of the proposed action to the general public by publishing the notice, within 15 days after the request, in a newspaper with general circulation in the area in which the landfill is located, and submitting a certified copy of the notice, within 15 days after publication, to the Executive Director as a record of this action. (C) The permittee shall conduct a public meeting in the local area, within 30 days after the request, to describe the proposed action to the general public and provide evidence, within 15 days after the meeting, to the Executive Director that the meeting was held. (D) The permittee shall submit, for approval and with the request for a change, documents that show the appropriate modifications to the Site Development Plan and Site Operating Plan to reflect the proposed change in operation. (h) Authorization to increase the height of a landfill, in accordance with subsection (g)(23) of this section, may only be granted one time as a Class I modification. Subsequent requests for an increase in height require a permit amendment. Height increases granted under subsection (g)(23) of this section that exceed 10 feet above the approved final elevations must be justified and the request must demonstrate that an increase in the capacity or life of the site will not occur. (i) In case of a request for a Class I modification for a change in a term, condition, or provision of a MSW permit not explicitly listed in subsection (g) of this section, the executive director shall make the determination as to whether the modification request may be processed as a Class I modification or whether the change requires a permit amendment pursuant to sec.305.62 of this title (relating to Amendment). In making this determination, the executive director shall consider the similarity of the requested change to those Class I modifications listed in subsection (g) of this section, as well as the following criteria. (1) Class I modifications apply to minor changes to the facility or its operation that are routine in nature. (2) Class I modifications do not substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment. (j) A temporary authorization may be granted by the executive director for a term of not more than 180 days for activities or events that will prevent disruption of solid waste management activities. The permittee must request a temporary authorization and must include in the request a specific description of the activities to be conducted and an explanation of why the temporary authorization is necessary, reasonable, and unavoidable. A temporary authorization may be reissued for an additional term of 180 days if the circumstances warrant additional time or if the permittee has applied for an amendment or modification to the permit. 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 May 17, 1993. TRD-9323044 Mary Ruth Holder Director, Legal Services Division Texas Water Commission Effective date: June 7, 1993 Proposal publication date: February 16, 1993 For further information, please call: (512) 463-8069 Chapter 334. Underground and Aboveground Storage Tanks Subchapter H. Interim Reimbursement Program 31 TAC sec.sec.334.301, 334.302, 334.305, 334.308-334.310, 334. 315, 334.317, 334.322 The Texas Water Commission ("Commission") adopts amendments to sec.sec.334. 301, 334.302, 334.305, 334.308-334.310, 334.315, 334.317, and 334.322, concerning reimbursement provisions of the Commission's Petroleum Storage Tank Program. Sections 334.308, 334.309, 334.315, and 334.322 are adopted with changes to the proposed text as published in the Texas Register (18 TexReg 1687). Sections 334.301, 334.302, 334.305, 334.310, and 334.317 are adopted without changes and will not be republished. The amendments are adopted to implement necessary changes to the commission's reimbursement program, including general conditions and limitations regarding reimbursement, allowable costs and restrictions on allowable costs, reimbursable costs, requirements for eligibility, protest of fund payment reports, and definitions. Section 334.301 provides a severability clause which would have the effect of severing from the entire subchapter any invalid provisions. Section 334.305 has been amended to correct a reference to the mailing address of the commission and clarify existing language. Section 334.308 has been amended to change the title and includes adopted subsections (d) and (e), which contain revised provisions relating to hydraulic fluid and spent oil; provides that subsection (c) is applicable unless otherwise specified in new subsection (g), which contains restrictions on allowable costs; updates the term "free-product" to "phase-separated product" to reflect common industry usage; provides that on or after March 12, 1993, costs associated with the removal of piping, pumps, and dispensers will not be reimbursable under the commission's reimbursement program; and would provide that permanent abandonment of tanks in place performed on or after March 12, 1993, will not be reimbursable under the commission's reimbursement program. The reimbursable cost associated with the removal of tanks on or after March 12, 1993, will be based on the size of the tank removed and will have a maximum reimbursable limit of $8,000 for each leaking petroleum storage tank site. Subsection (f) as adopted includes as an allowable cost, the costs of disposal or treatment of backfill material generated during the tank removal process and any associated cost such as additional analytical samples or reporting the commission may require. These costs are the only allowable costs in situations where the contamination levels exceed a level the Executive Director will permit the backfill material to be returned to the tankpit, or if specifically required by the Executive Director. Section 334.309 has been amended to reflect the commission's impending adoption of Reimbursable Cost Guidelines. Section 334.310 has been amended to require all corrective action activities, including activities proposed in corrective action plans, be approved in writing prior to implementation. Section 334.315 has been amended to state that petitions filed by applicants objecting to fund payment reports must be filed within 45 days of receipt of written notification from the Executive Director that informal negotiations have ceased and the final informal fund protest meeting has been held. Section 334.322 has been amended to include definitions for the terms abate, action level, backfill, commingled substance, corrective action plan, emergency, and tank removal. Public comment on the proposed amendments was received in writing during the 30-day comment period and at the seven public meetings from the following groups: Chambers Pump Service, Inc., CURA, East Texas Testing Labs, ERM- Southwest, Inc., Environmental Fuel Systems, G.L. Gibson Construction, Industry Council on the Environment, Landmark Environmental, Marshall and Son Construction, Methodist Hospital, Miller Tank Testing, National Convenience Stores, Parkhill Smith and Cooper, Inc., Petroleum Services, Petroleum Solutions, Inc., Rauhut and Associates, Susser Environmental Services, Texas Association of Storage Tank Professionals, Texas Automobile Dealers Association, Texas Oil Marketers Association, TU Services, Inc., and White's Pump Service. The commission received many comments on the issue of tank removals and the proposed definition of tank removal and corrective action. Many commenters suggested that tank removals are part of corrective action, and therefore, should be reimbursable. Another commenter suggested that the commission guarantee for reimbursement a specific amount for all tank pulls. Another commenter suggested that tank component removal and disposal costs be allowed as reimbursable costs when the TWC preapproves such costs in a remedial action plan. Similarly, it was suggested that tank removals be reimbursable when directed by the commission. A commenter suggested that the TWC reimburse tank removal costs where new tanks will not be installed and the owners or operators agree to file a lien to be effective for a set period of time for the costs of tank removal which would guarantee repayment of the lien amount prior to installation of any new tanks during the life of the lien. While many commenters opposed the deletion of tank removals from allowable costs, one organization expressed support for the concept of disallowing tanks removals and abandonment of tanks in place from reimbursable costs. The commission responds that the adopted rules will allow a specified portion of the costs associated with tank removals, when deemed by the executive director to be necessary for the performance of corrective action, to be eligible for reimbursement. The amount reimbursable will be based on the size of the tank removed and will have a maximum reimbursable limit per LPST site. Another organization expressed support for the deletion of tank removals from the allowable cost category, provided that soils removed from the tank hole, including backfill, be reimbursable if the soil exceeds levels which would allow it to be put back in the tank pit, the TWC directs the disposal of the soil, or the tank owner is replacing a tank. This organization also suggested that soil samples, lab analyses, and any TWC- required reports also be reimbursable. The commission agrees that if backfill material exceeds a standard for which the executive director will permit the backfill material to be returned to the original tank pit excavation, the treatment or disposal, any additional analytical samples collected and analyzed, or any reporting required because of the disposal or treatment of the backfill material will be allowable costs. However, if backfill material does not exceed such standard, and the responsible party makes an independent decision not to allow the soils to be returned to the original excavation, any costs incurred in management (treatment or disposal) of the material are not reimbursable. Another organization commented that the proposed definition for tank removal should include a statement that excavation activities outside the backfill should not be excluded from reimbursement by virtue of being associated with tank removals. The commission responds that the adopted definition of tank removal does not exclude from reimbursement any activities otherwise authorized for reimbursement by commission rules, including excavation of contaminated soil outside the tank pit excavation. Commenters also suggested that the proposed deletion of tank removals and excavation of backfill from allowable costs would be illegal and contrary to the purpose of the fund. The commission maintains that it has the discretion within statutory guidelines to administer the PSTR Fund in the manner it deems most efficient and that these adopted rules will carry out the stated purposes for the Fund. A commenter expressed a concern that the proposed rule deletes the mixed-plume provision, which authorizes payment of costs of abating releases from petroleum storage tanks and substances other than hydraulic fluid or spent oil where the contamination cannot reasonably be separated and remediated. Commenters urged that the cleanup of a release of a petroleum product that has become commingled with another substance is a corrective action measure in response to a release from a petroleum storage tank, and therefore is reimbursable. The commission believes that its regulations concerning mixed plumes are consistent with the statutory intent of the provisions establishing the Fund. One commenter suggested that the definition of "commingled substance" be further defined so as to exclude those substances which are clearly not eligible under the reimbursement program. The commission responds that the adopted definition clearly expresses its intent for the term "commingled," and does not believe that any changes to the definition are necessary. Commenters also suggested that the definition of corrective action not cover assessment activities, because corrective action activities require preapproval and assessment activities are not the type of activity that should have to wait for preapproval. Similarly, commenters expressed concern regarding the preapproval process specifically because of the delays that can occur under this process. Another commenter stated that since most projects are generally bid out, a problem could arise where TWC approval is not received timely. This commenter suggested that they should be allowed to assume that their costs are approved for reimbursement if they do not receive TWC approval within a certain period of time. The commission responds that the preapproval process is necessary in order for the commission to better able carry out its fiduciary responsibility to the Fund, but the commission's PST Division is committed to processing all requests to perform corrective action activities and plans as expeditiously as its resources allow. This commenter suggested that owners and operators should be able to proceed with work and take the risk that all of their assessment work may not be reimbursable. The commission responds that owners and operators may pursue soil and groundwater cleanup activities pursuant to commission rules, but in doing so, they may be jeopardizing the eligibility for reimbursement of those activities. A commenter suggests that the commission amend the proposed definition of "abate" to include a reference to the "impacted area" to reflect that in most cases the abatement activities occur outside the tank. The same commenter suggested that the definition of abate should allow for abatement of threats to the environment, in addition to human health and safety. The commission responds that it agrees with the suggestion to include a reference to the impacted area. The commission believes that the adopted definition addresses the concerns of this commenter with regard to environmental protection. Similarly, the suggestion was made to expand the definition of emergency to include any water resources rather than contamination of water supplies at the point of actual use. The commission responds that only situations that pose an imminent threat to human health and safety are defined as an emergency; however, the definition is broad enough to encompass all water resources to the extent they are a source of drinking water. One commenter suggested that the definition of emergency needs to include situations that could create third-party liability for owners and operators and should reimburse those costs incurred to minimize this potential. The commission responds that potential third-party liability actions might meet the criteria for an emergency to the extent that such situations pose an imminent threat to human health and safety. Commenters suggested that the provision regarding when to file a petition appealing a fund payment report should be changed so that it is clear to the applicant exactly when they need to file a petition. The proposed language provides that within 45 days after the last informal fund protest meeting, the applicant shall file a petition. Commenters suggested that the commission send the applicant a notice telling them when a meeting is the "last informal fund protest meeting" and that they have 45 days from that time to file a petition. The commission responds that the adopted provision regarding the deadline for filing of a petition provides that the executive director will issue a notice and instructions to the applicant as to when to file a petition. Some commenters expressed concerns regarding the cost savings figures cited in the preamble to the proposed rules for deleting tank removals from the allowable cost category. One commenter stated that the figures did not take into account the deductible amounts that should reduce the projected cost savings. The commission responds that the cost savings figure was an attempt to estimate the potential cost savings for disallowing tank removals as an allowable expense for reimbursement. The estimate was not intended as a precise calculation of the actual cost savings, as such a number would be impossible to calculate. The figure was developed by multiplying the projected number of tank removals for fiscal year 1993 by the market value of an average tank removal. The projected 1993 tank removal number was based on the actual construction notifications received for fiscal year 1992. The market value figure was derived from a survey conducted by commission staff of the PST industry including PST Task Force members. As stated in the preamble to the proposed rules, the $75 million figure is based on the projected number of tank pulls for the year, without regard to the balance of the Fund at any point in time. A projection of the savings incurred by eliminating tank removals should not be reduced by the amount of deductibles since there is no relationship between the two figures. The deductible amount an owner or operator would have to pay would remain the same regardless of whether the commission reimbursed for the tank removal. 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 for the cleanup of leaking petroleum storage tank sites, and the Texas Water Code ("Code"), sec.5.103 and sec.5.105, which provide the Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the Commission. sec.334.308. Allowable Costs and Restrictions on Allowable Costs-Interim Period. (a)-(b) (No change.) (c) Unless otherwise specified in subsection (g) of this section, allowable costs shall include, but not be limited to, the following: (1) (No change.) (2) removal of phase-separated product; (3) (No change.) (4) collection and analysis of surface and subsurface soil and water, phase- separated product, and vapor samples; (5) (No change.) (6) removal, storage, treatment, recycling, transport, and disposal of phase- separated product, sludges, vapors, contaminated soils, contaminated water, and other wastes and contaminated articles, in accordance with applicable laws; (7)-(9) (No change.) (10) design of plans for site assessment and remediation; (11) acquisition, installation, startup, operation, and maintenance of remediation systems, including monitoring; (12) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when necessary for performance of corrective action, and when removed after October 1, 1992 and before June 6, 1993; (13) tank removal (as defined in this subchapter) transport, and disposal of the components of the underground or aboveground tank, including compliance with applicable requirements pursuant to subchapter D of this chapter, in accordance with applicable law when necessary for the performance of corrective action and performed before March 12, 1993; (14) a portion of costs, as specified in this section, of tank removals, transport, and disposal of the components of the underground or aboveground tank, including compliance with applicable requirements pursuant to subchapter D of this chapter, when necessary for the performance of corrective action and performed on or after March 12, 1993. Reimbursement of tank removals performed on or after March 12, 1993 shall be based on the volume of the tank removed and shall have a maximum reimbursable limit of $8, 000 per LPST site. For underground storage tanks having a volume of 5,000 gallons or less, the portion of reimbursable costs of removal for each such tank is $1,000. For underground storage tanks having a volume of greater than 5,000 gallons, the portion of reimbursable costs of removal for each such tank is $2,000. (15) permanent abandonment, in-place, of a tank system, including compliance with applicable requirements pursuant to subchapter D of this chapter, 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 and conducted before June 6, 1993; (16) temporary relocation of utility structures when necessary to the performance of corrective action; (17) preparation of technical reports required pursuant to the requirements of subchapter D of this chapter (relating to Reporting of Releases and Corrective Action); (18) the fair market value of access to property outside of the facility boundaries where such access is necessary for the performance of corrective action; (19) the reasonable value of necessary time spent by the applicant in planning and administering his own corrective action plan; (20) 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; (21) state and federal sales taxes applicable to items which are otherwise allowable costs under this section; and (22) any other costs determined by the executive director to be allowable in accordance with the provisions of this subchapter. (d) The costs of abatement or corrective action taken in response to a release of hydraulic fluid from a hydraulic lift system are allowable costs in situations where: (1) a release of hydraulic fluid occurs near the location of a release of petroleum products from a petroleum storage tank; (2) the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility where the hydraulic lift system was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and (3) upon request by the executive director, the eligible owner or operator demonstrates that a release from the hydraulic lift system is not mixed with any substance except for petroleum products from a petroleum storage tank system, spent oil from a spent oil tank located at a vehicle service and fueling facility (or another substance contained in such spent oil tank), or another substance that was contained in the hydraulic lift system owned or operated by the person claiming reimbursement. (e) The costs of abatement or corrective action taken in response to a release of spent oil from a spent oil tank are allowable costs under the following: (1) a release of spent oil occurs near the location of a release of petroleum products from a petroleum storage tank; (2) the spent oil was released from a spent oil tank located at a vehicle service and fueling facility where the spent oil tank was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and (3) upon request by the executive director, the eligible owner or operator demonstrates that a release of spent oil is not mixed with any substance except for petroleum products from a petroleum storage tank system, or hydraulic fluid (or other substance that was contained in the hydraulic lift system), or another substance that was contained in the spent oil tank owned or operated by the person claiming reimbursement. (f) The costs of excavation, disposal, or treatment of backfill material generated during the tank removal process, any additional sampling and reporting required under subchapter D of this chapter because of the disposal or treatment of the backfill material are allowable costs where the concentration of constituents in the backfill material exceeds a standard for which the Executive Director will permit the backfill material to be returned to the original tank pit excavation and a prior written directive is obtained from the Executive Director prior to implementation. (g) 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, or on or after March 12, 1993; (4) tank removal (as defined in this subchapter) and transport, and disposal of the components of the underground or aboveground tank, unless otherwise specified in subsection (c)(13) and (14) of this section. (5) 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 when conducted on or after March 12, 1993; (6) 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; (7) decreased property values; (8) bodily injury or property damage; (9) attorney's fees; (10) any costs associated with preparing, filing, and prosecuting an application for reimbursement or assistance under this subchapter; (11) the costs of making improvements to the facility beyond those that are required for corrective action; (12) 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; (13) costs of compiling and storing records relating to costs of corrective action; (14) 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); (15) costs of tank integrity testing when it is not specifically required by this chapter, requested by the executive director, or ordered by the Commission; (16) 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; (17) costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common-carrier railroad; (18) 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; (19) interest on the monies expended for an item of corrective action; and (20) the cost of abatement or corrective action taken in response to a release of a commingled substance as that term is defined in sec.334.322 of this title (relating to subchapter H definitions), excluding subsections (d) and (e) of this section. sec.334.309. Reimbursable Costs -Interim Period. (a) The commission will utilize the Reimbursable Cost Guidelines to evaluate the reimbursability of claims related to the cleanup of leaking petroleum storage tank sites. (b) No cost shall be reimbursed unless it is also an allowable cost pursuant to sec.334.308 of this title (relating to Allowable Costs-Interim Period). sec.334.315. Protest of Fund Payment Report-Interim Period. (a) -(c) (No change.) (d) The applicant and the staff of the executive director shall attempt to resolve informally any disputes over the fund payment report. If no resolution is reached by the staff and the applicant, the applicant may file a petition requesting the commission to grant relief. Within 45 days of receipt of written notification from the Executive Director that informal negotiations have ceased and the final informal fund protest meeting has been held, the applicant shall file a petition as specified in sec.334.316 of this title (relating to Formal Petition-Interim Period). 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. Abate-To reduce in sufficient degree or intensity the source of the release or impacted area, and potential fire, explosion, or vapor hazards such that immediate threats to human health no longer exist. This includes the removal of all regulated substances from the aboveground or underground tank, and the removal of phase-separated products released from the tank. Action level-The concentration of constituents in the native soil or water at which corrective action will be required. Exceeding an action level warrants further assessment of the site, but does not mandate that site cleanup be required. Based upon the results of the site assessment, the need for site cleanup will then be determined and cleanup levels will be set. Action levels should not be used as cleanup levels; they are simply levels which signal the need for additional assessment. Application preparer -Any person responsible for preparing the application for reimbursement. Backfill-The volume of materials or soils surrounding the underground storage tank and bounded by the ground surface, walls, and floor of the tankpit. Commingled substance -A combination or mixture of a petroleum product and a non-petroleum product (excluding soil and/or water). Contract of subrogation-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. Unless otherwise approved by the executive director, written approval is required prior to implementation of any corrective action activity. Corrective action plan (remedial action plan) -A detailed plan developed to address site remediation of soil, groundwater, or surface water contamination that provides for adequate protection of human health and 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". Eligible operator -Any person in control of or having the responsibility for the daily operation of a petroleum storage tank who meets the eligibility requirements prescribed in sec.334.310 of this title (relating to Requirements for Eligibility -Interim Period). Eligible owner -Any person who meets the eligibility requirements prescribed in sec.334.310 of this title and who currently holds legal possession or ownership of a total or partial interest in a petroleum storage tank. For the purposes of this subchapter, where the actual ownership of the petroleum storage tank is either uncertain, unknown, or in dispute, the fee simple owner of the surface estate where the petroleum storage tank is located shall be considered the petroleum storage tank owner, unless it can be shown by appropriate documentation (deed reservation, invoice, bill of sale, etc.) or by other legally acceptable means that the petroleum storage tank is owned by another. "Owner" does not include a person who holds an interest in a petroleum storage tank solely for financial security purposes unless, through foreclosure or other related actions, the holder of such security interest has taken legal possession of the petroleum storage tank. For purposes of this subchapter, if it can be demonstrated that a petroleum storage tank has been "out of operation" as that term is defined in sec.334.2 of this title (relating to Definitions) for a period ten years, the tank shall be considered property of the owner of the surface estate (Legislature, Regular Session, Chapter 228, effective May 31, 1989). Emergency-Any existing or potential fire, explosion, or vapor hazards which pose an imminent threat to human health and safety, or any imminent threat use to drinking water supplies actually being used. Initial abatement measures-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 and safety and the environment in emergency situations or other situations where emergency actions must be implemented to prevent further impacts to the environment. Petroleum product -A product obtained from distilling and processing crude oil and that is capable of being used as a fuel for the propulsion of a motor vehicle or aircraft, including motor gasoline, gasohol, other alcohol blended fuels, aviation gasoline, kerosene, distillate fuel oil, and #1 and #2 diesel. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, or a petroleum product destined for use in chemical manufacturing or feedstock of that manufacturing. Prime contractor -Any natural person or firm, or any entity responsible for the contracting of any corrective action services. Prime corrective action specialist-A natural person or consulting firm, or any entity engaging in corrective action services, or acting as coordinator of others engaged in corrective action services. Tank removal-The physical removal of an underground storage tank from the subsurface. Tank removals include removal and replacement of surface material, excavation and disposal of backfill material, tank removal and disposal, backfilling and compaction of excavation, and any other activities typically associated with the tank removal process. 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 May 17, 1993. TRD-9323043 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: June 7, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 463-8069 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 531. Fire Alarm Rules 37 TAC sec.sec.531.1-531.23 The Texas Commission on Fire Protection adopts amendments to sec.sec.531. 1- 531.13 and 531.17-531.21 and new sec. sec.531.14, 531.15, 531.16, 531.22, and 531. 23, concerning regulation of the business of inspecting, planning, certifying, leasing, selling, servicing, testing, installing, monitoring, and maintaining fire alarm or fire detection devices and systems. Sections 531.6, 531.7, 531. 10, 531.11, and 531.21 are adopted with changes to the proposed text as published in the December 8, 1992 issue of the Texas Register (17 TexReg 8504). Sections 531.1-531.5, 531.8, 531.9, 531.12-531.20, 531.22 and 531.23 are adopted without changes and will not be republished. The definition of direct supervision in sec.531.6 has been changed. In Section 531.7, 1985 and later editions of the National Fire Protection Association Standard 101, as well as other nationally recognized codes, are adopted by reference. New language is added to sec.531.10(h)(1) which says a registered firm may not monitor a fire alarm system in the State of Texas for an unregistered firm. The words "selling and leasing" are deleted from sec.531.11. The words "adopted at the time of installation" are added to sec.531.21(c)(2). The amendments and new rules improve the quality of protection afforded property and lives by fire alarm equipment. They clarify the meaning of rules already in effect, and implement certain statutory amendments to the Texas Insurance Code, Article 5.43-2, made by the 72nd Legislature. The amendments and new rules provide direction for the businesses of inspecting, planning, certifying, leasing, selling, servicing, testing, installing, monitoring, and maintaining fire alarm or fire detection devices and systems. They are intended to insure strict conformity to adopted standards except where the rules allow exceptions to those standards. Written and oral comments received by the Commission and its staff included opposition to the proposed definition of direct supervision in sec.531.6, which would have required physical presence of a licensee during work on alarm equipment. Most commenters believed that such a requirement is overly stringent and unnecessary, and economically impractical. Other comments included opposition to the inclusion of NFPA 101 within the National Fire Protection Association standards adopted by reference in the proposed rules. Several commenters believed that NFPA 101, which addresses the kind of fire alarm equipment that is required in various kinds of occupancies, should not be included within a set of standards that generally relate to "how such equipment should be installed," if it is installed. Other comments urged that the effect of the inclusion of NFPA 101 was to require installation of alarm equipment that is not desired by some consumers, effectively forcing the sales of equipment and services that in some circumstances the buyer does not want to buy and the seller does not want to sell. Other commenters objected to a perceived intrusion by the Commission into the prerogatives of local governmental jurisdictions to control the kinds of alarm equipment used within those jurisdictions. Still other comments concerned the desire of some members of the fire alarm industry that the rules and incorporated standards should require enough consistency throughout the state so that the alarm industry would not be subjected to large variations in legal requirements on their businesses from local jurisdiction to local jurisdiction. Other comments related to the descriptions of the various kinds of licenses issued by the Commission contained in the proposed amendments to sec.531.11. Some comments urged that the effect of these descriptions of the licenses was to require the licensing of some alarm business employees who should not be required to have any license. The City of Houston Electrical Board Members commented on the qualification requirements for technicians involved in installation. The International Brotherhood of Electrical Workers Local Number 60, the International Brotherhood of Electrical Workers Local Number 301, the National Electrical Contractors Association, the South Texas Electrical Joint Apprenticeship and Training Committee, and the Texas State Association of Electrical Workers opposed the definition of "direct supervision" in sec.531.6. The Texas Burglar and Fire Alarm Association Incorporated commented on the definition of "fire alarm technician license" in sec.531.11. The Commission responded to the comments related to the definition of "direct supervision" by adopting a definition of the term that does not require the continuous physical presence of a licensee during the installation or repair of alarm equipment. The emphasis of the reworded definition, as finally adopted, is that a licensee should control the work to such an extent as to insure its' compliance with applicable standards, but does not have to be continuously present to see that this is done. Regarding the adoption of NFPA 101, the Commission voted to retain NFPA 101 because of its desire to continue to allow within the rules a standard which would provide some protection to occupancies in those areas of the state in which there is no municipal ordinance affording minimum standards or providing a minimum building code or fire code. However, the Commission decided to allow versions of NFPA 101 back to 1985, instead of adopting the most recent (1991) version in order to allow greater flexibility within those geographical areas where there are such municipal ordinances. The Commission also explicitly added provisions that provided that certain other model codes are acceptable: the Uniform Model Building Code and Uniform Fire Code; the SBCCI Building Code and SBCCI Fire Code; and the BOCA Building Code and BOCA Fire Code. All versions of these codes from 1985 and later are considered as acceptable in the rules as adopted. The Commission also slightly changed the general descriptions of the licenses in sec.531.11 of the rules, in response to the comments of the Texas Burglar and Fire Alarm Association. The amendments are proposed under the Insurance Code, Article 5.43-2, sec.sec.4, 4A, and 6, which provides the Texas Commission on Fire Protection with the authority to adopt rules necessary to its administration through the state fire marshal for the protection and preservation of life and property. sec.531.6. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Business-Inspecting, planning, certifying, leasing, selling, servicing, testing, installing, monitoring, or maintaining of fire alarm or fire detection devices and systems. Certificate-The certificate of registration issued by the state fire marshal. Certify-To attest to the proper planning or servicing, installing, or maintaining of fire detection and fire alarm devices and systems, including monitoring equipment, by attaching a completed installation/service record label and completing an installation certificate form or other additional form required by a governmental authority. Commission-The Texas Commission on Fire Protection. Direct supervision -The control of work, excluding the installation of conduit, raceways, junction boxes, back boxes, or similar electrical enclosures, as it is being performed on fire detection or fire alarm devices and systems by a licensed fire alarm technician or a licensed fire alarm planning superintendent. Firm-A person or an organization, as defined in the Insurance Code, Article 5.43-2. Local authority having jurisdiction-As used in the Texas Insurance Code, Article 5.43-2, sec.9(c), means a fire chief, fire marshal, or other designated official having statutory authority. Monitoring equipment -Equipment used to transmit and receive fire alarm, trouble, and supervisory signals from protected premises to a firm registered to monitor or one exempt from licensing by the Insurance Code, Article 5.43-2. NFPA-National Fire Protection Association, a nationally recognized standards-making organization. NICET-National Institute for Certification in Engineering Technologies. Plan-To lay out, detail, draw, calculate, devise, or arrange an assembly of fire alarm or detection devices, equipment, and appurtenances, including monitoring equipment, in accordance with standards adopted in this chapter. Repair-To restore to proper operating condition. Test-The act of subjecting a fire detection or alarm device or system, including monitoring equipment, to any procedure required by applicable standards or manufacturers' recommendations to determine whether it is properly installed or operates correctly. sec.531.7. Adopted Standards. (a) The commission adopts by reference those sections of the following copyrighted minimum standards, recommendations, and appendices concerning fire alarm, fire detection, or supervisory services or systems, except to the extent they are at variance to sections of this chapter, the Texas Insurance Code, Article 5.43-2, or other state statutes. The standards are published by and are available from the National Fire Protection Association, Quincy, Massachusetts. (1) NFPA 11-1988, Standard on Low Expansion Foam and Combined Agent Systems. (2) NFPA 11A-1988, Standard for Medium- and High-Expansion Foam Systems. (3) NFPA 12-1989, Standard for Carbon Dioxide Extinguishing Systems. (4) NFPA 12A-1989, Standard on Halon 1301 Fire Extinguishing Systems. (5) NFPA 12B-1990, Standard on Halon 1211 Fire Extinguishing Systems. (6) NFPA 13-1991, Standard for the Installation of Sprinkler Systems. (7) NFPA 13A-1987, Recommended Practice for the Inspection, Testing, and Maintenance of Sprinkler Systems. (8) NFPA 13D-1991, Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings and Mobile Homes. (9) NFPA 13R-1991, Standard for the Installation of Sprinkler Systems in Residential Occupancies up to Four Stories in Height. (10) NFPA 15-1990, Standard for Water Spray Fixed Systems for Fire Protection. (11) NFPA 16-1991, Standard on Deluge Foam-Water Sprinkler and Foam-Water Spray Systems. (12) NFPA 17-1990, Standard for Dry Chemical Extinguishing Systems. (13) NFPA 17A-1990, Standard on Wet Chemical Extinguishing Systems. (14) NFPA 25-1992. Standard for Inspection, Testing and Maintenance of Water Based Extinguishing Systems. (15) NFPA 70-1990, National Electrical Code. (16) NFPA 71-1989, Standard for the Installation, Maintenance, and Use of Signaling Systems for Central Station Service. (17) NFPA 72-1990, Standard for the Installation, Maintenance, and Use of Protective Signaling Systems. (18) NFPA 72E-1990, Standard on Automatic Fire Detectors. (19) NFPA 72G-1989, Guide for the Installation, Maintenance, and Use of Notification Appliances for Protective Signaling Systems. (20) NFPA 72H-1988, Guide for Testing Procedures for Local, Auxiliary, Remote Station, and Proprietary Protective Signaling Systems. (21) NFPA 74-1989, Standard for the Installation, Maintenance, and Use of Household Fire Warning Equipment. (22) NFPA 90A-1989, Standard for the Installation of Air Conditioning and Ventilating Systems. (23) NFPA 101-1985 and later editions, Code for Safety to Life from Fire in Buildings and Structures (Life Safety Code), or a local jurisdiction may adopt one set of the model codes listed in subsection (b) of this section in lieu of NFPA 101. (24) NFPA 170-1991, Standard for Firesafety Symbols, Chapter 4. (b) The acceptable alternative model code sets are: (1) the Uniform Building Code-1985 and later editions, and the Uniform Fire Code-1985 and later editions; or (2) the SBCCI Building Code-1985 and later editions, and the SBCCI Fire Code- 1985 and later editions; or (3) the BOCA Building Code-1985 and later editions, and the BOCA Fire Code- 1985 and later editions. sec.531.10. Certificate of Registration. (a) Business location. A specific business location must be maintained by each registered firm. The location must be indicated on the certificate. (b) Posting. Each certificate must be posted conspicuously for public view at the business location. (c) Business vehicles. All vehicles regularly used in installation, service, maintenance, testing, or certification activities must prominently display the company name, telephone number, and certificate number. The numbers and letters must be at least one inch high and permanently affixed or magnetically attached to each side of the vehicle in a color contrasting with the background color of the vehicle. The certificate number must be designated in the following format: TX ACR-(number). (d) Change of ownership. (1) The total change of a firm's ownership invalidates the current certificate. To assure continuance of the business, a complete application for a new certificate must be submitted to the state fire marshal at least 14 days prior to such change. (2) A partial change in a firm's ownership requires a revised certificate if it affects the firm's name, location, or mailing address. (e)-(f) (No change.) (g) Revised certificates. The change of a firm's name, location, or mailing address requires a revised certificate. Within 14 days after the change requiring the revision, the certificate holder must submit written notification of the necessary change accompanied by the required fee. (h) Monitoring requirements. (1) A registered firm may not monitor a fire alarm system located in the State of Texas for an unregistered firm. (2) A registered firm may not connect a fire alarm system to a monitoring service unless the monitoring service is registered under or is exempt from the licensing requirements of the Insurance Code, Article 5.43-2, so long as the monitoring equipment being used is in compliance with Article 5.43-2, sec.9. (3) A registered firm currently engaged in monitoring must comply with the requirements of sec.531. 13(a)(5) of this title (relating to Applications) within 60 days of the effective date of this chapter, as amended. sec.531.11. Licenses. (a) Types of licenses. (1) Fire alarm technician license-For installing, inspecting, servicing, testing, maintaining, and certifying fire alarm or fire detection devices and systems. (2) Residential fire alarm superintendent single station license-For planning, installing, certifying, inspecting, testing, servicing, and maintaining to single station smoke or heat detectors which are not a part of or connected to any other detection device or system in single-family or two-family residences. (3) Residential fire alarm superintendent license-For planning, installing, certifying, inspecting, testing, servicing, and maintaining fire alarm or fire detection devices and systems in single-family or two-family residences. (4) Fire alarm planning superintendent license-For planning, installing, certifying, inspecting, testing, servicing, and maintaining fire alarm or fire detection devices. (b) Posting. Wall licenses must be posted conspicuously for public view at the firm's business location. (c) Pocket license. A licensee must carry a pocket license for identification while engaged in the activities of the business. (d) Duplicate license. A duplicate license must be obtained from the state fire marshal to replace a lost or destroyed license. The license holder or registered firm must submit written notification of the loss or destruction without delay, accompanied by the required fee. (e) Revised licenses. The change of a licensee's registered firm or mailing address requires a revised license. Within 14 days after the change requiring the revision, the license holder or registered firm must submit written notification of the necessary change accompanied by the required fee. (f) Restrictions. (1)-(2) (No change.) (3) Each person who engages in the activities of the business must have the appropriate license issued by the state fire marshal unless excepted from the licensing provisions by the Insurance Code, Article 5. 43-2, sec.3(b). sec.531.21. Red Labels. (a) If the system or any part thereof is inoperable, a completed red label must be attached to the outside of the control panel cover or, if the system has no panel, in a permanently visible location designated by the property owner to indicate that corrective action or system replacement is necessary. (b) The signature of the licensee on a red label certifies that the conditions listed on the label have caused the system to be inoperable. (c) A completed service label must not be attached to the system by the licensee until the conditions are corrected and the fire alarm system: (1) is reinspected; (2) is in compliance with applicable standards adopted at the time of installation; and (3) is in good operating condition. (d) Red labels must be at least three inches in height and three inches in width and be of a gummed label type that allows for label removal. Labels must be printed with black lettering. (e) Red labels must bear the following information in the format of the label shown in subsection (g) of this section: (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SYSTEM IS INOPERABLE" (all in capital letters, at least 10-point bold face type); (2) the firm's name, address, and telephone number (either main office or branch office); (3) the firm's certificate-of-registration number; (4) the signature and license number of the certifying licensee (a stamped signature is prohibited); (5) the date the label is affixed; and (6) the list of conditions. (f) A red label may be removed only by a licensed employee or agent of a registered firm who has corrected the conditions and certified the service. (g) Red label: [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1993. TRD-9322965 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: June 4, 1993 Proposal publication date: December 8, 1992 For further information, please call: (512) 873-1700 Chapter 591. Fireworks Rules 37 TAC sec.sec.591.1-591.30 The Texas Commission on Fire Protection adopts amendments to sec.sec.591. 1- 591.30, concerning regulation of the sale, distribution, and use of fireworks, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8421). The amendments make minor changes in fireworks classifications and licensing procedures to improve the quality of protection afforded property and life from the use and sale of fireworks. The amendments allow the rules to conform to fireworks classifications used in federal regulations. The amendments also clarify the definition of "school" and clarify provisions relating to the proximity of fireworks displays to schools. Additionally, certain licensing procedures are modified by some amendments. No comments were received regarding adoption of the amendments. No groups or associations made written comment on the sections. The amendments are adopted under Texas Insurance Code, Article 5.43-4, sec.5 and sec.5A, which provides the Texas Commission on Fire Protection with the authority to adopt rules necessary to its administration through the state fire marshal for the protection and preservation of life and property. 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 May 13, 1993. TRD-9322966 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: June 4, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700